Increasingly in North Carolina, a signifi-cant issue at trial in malpractice actionsinvolves the somewhat loose definition of the“same or similar communities” requirement ofthe standard of care. Physicians and surgeonsfrom other states—or even within NorthCarolina—who might otherwise be well-qual-ified experts, can be precluded from testifyingat trial if they are not familiar with the com-munity where the malpractice action arose.Frequently, the biggest issue at trial hasbecome which standard of care are we talkingabout: Is it the standard of care practiced in

Raleigh, Charlotte,or inHendersonville? Isit the standardobserved in NorthCarolina, or inGeorgia, or perhaps New York? Is there—orshould there be—any difference?

Since the phrase “standard of care” is at theheart of any malpractice case, one would thinkthat by now the courts and the legislaturewould have either created, or at least workedout through judicial opinion, a working defi-

nition of the standard to guide counsel in hisor her selection of experts both prior to, andduring, discovery. Unfortunately, as a numberof recent appellate decisions indicate, that isnot the case.

This article discusses the perils and pitfallsof qualifying expert witnesses under the “same

6 WINTER 2005

Here’s a riddle: When is a board

certified medical doctor with

20 years of directly related sur-

gical experience not qualified

to testify as a surgical expert on the standard of care in a medical

malpractice case? When he or she is asked to testify in a North

Carolina courtroom.

Making Your Way Through theMinefield of Expert WitnessSelection in Malpractice Cases inNorth Carolina

B Y M A R K C A N E P A

Curtis Parker/SIS

or similar communities” requirement in mal-practice actions pursuant to N.C.Gen.Stat. §90-21.12. It analyzes recent appellate courtopinions on the subject—which are variedand not altogether consistent—and concludeswith suggestions as to how to ensure that yourexperts are allowed to reach the most impor-tant issue in the case—the standard of care—when they are called to the stand at trial.

The StatuteIn most jurisdictions, an otherwise-quali-

fied physician may testify on the standard ofcare from a national point of view in any med-ical malpractice action.

For example, an orthopedic surgeon fromDuke can testify at trial in California that thestandard of care for an arthroscopic repair of atorn rotator cuff is the same in Mendocino asit is in the Triad. The fact that Mendocino,California, is a coastal resort with limitedmedical facilities and resources, and Duke is aleading national medical center, has no impacton the admissibility of the expert’s opinion. Itsimply goes to the weight of the testimony

However, the same is not true in thereverse: A physician from a leading medicalfacility in California—or any other state—canbe blocked from testifying in a North Carolinamalpractice action unless that expert can testi-fy, with some authority, that he or she is famil-iar with the standard of practice in the verycommunity where the alleged negligence tookplace.

The reason for this is that North Carolinahas refused, for the most part, any attempt torecognize a national standard of care in con-nection with malpractice suits that are filedhere. This refusal is codified in N.C.Gen.Stat.§ 90-21.12, which provides, in pertinent part:

In any action for damages for personalinjury or death arising out of the furnish-ing or the failure to furnish professionalservices in the performance of medical,dental, or other health care, the defendantshall not be liable for the payment of dam-ages unless the trier of fact is satisfied by thegreater weight of the evidence that the careof such health care provider was not inaccordance with the standards of practiceamong members of the same health careprofession with similar training and experi-ence situated in the same or similar com-munities at the time of the alleged act giv-ing rise to the cause of action.

N.C. Gen.Stat. § 90-21.12 [emphasis added]The rationale for the statute is easy to

understand. The Legislature did not wantlocal physicians, with limited resources, to bejudged by distant experts who practiced incities with unlimited access to the latest med-ical technology and support. While the rulewas never meant to insulate local health careproviders from any and all outside influence, italso reflected a common sense approach tomedicine that recognizes that there are differ-ent approaches to medical practice in differentparts of the country. As the North CarolinaSupreme Court observed in a malpracticeaction decided just one year before § 90-21.12, not all injuries are uniform and not alltreatment is handled the same way in everycommunity:

The medical profession in Alaska, forexample, would be informed and knowl-edgeable on the treatment of snow blind-ness, frozen feet, and frostbitten lungs, butthey would be without experience in thetreatment of rattlesnake bites. A Floridadoctor would know about snake bites, butnot about frozen feet…

Rucker v. High Point Memorial Hospital, 285N.C. 519, 527-528, 206 S.E.2d 201-202(1974).

Unfortunately, in recent years the rule setforth in § 90-21.12 has turned into a mine-field for lawyers on both sides of the bar, leav-ing a trail of summary judgments, directedverdicts, and reversed decisions in its wake.And the biggest problem—by far—is figuringout what “in the same or similar communi-ties” really means.

What Community Are We TalkingAbout?

Does § 90-21.12 require that your expertmust be familiar with the exact communitywhere the alleged malpractice took place?

The answer to that question is probablyno, but it sure helps if you educate your expertabout the community in question. And therehas been plenty of confusion on this issue—for the bench and the bar.

Pitts v. Nash Day Hospital, 605 S.E.2d 154(2004), is a good example of such confusion.

Pitts was a wrongful death action filed bythe family of a 28-year-old woman who diedthe day after a laparoscopic surgery at theNash Day Hospital in Rocky Mount.

At trial, Plaintiffs offered the testimony ofDaniel M. Strickland, MD, on the standard ofcare. The trial judge allowed Plaintiff ’s counselto make three separate attempts to tender Dr.Strickland as an expert. Each time, defense

counsel objected, contending that Dr.Strickland was not familiar with the standardof care in Rocky Mount “or a similar commu-nity.” The last attempt to qualify Dr.Strickland came after a 45-minute recess dur-ing which the doctor drove around the com-munity, consulted the phone book, and other-wise tried to get an impression of the local areaso as to allow him to finally meet the “same orsimilar community rule.” Pitts v. Nash DayHospital, Inc., 605 S.E.2d 154, 155-159.

But to no avail. The court found that Plaintiff ’s expert was

not able to competently testify on the com-munity standard in Rocky Mount. With noexpert, the Plaintiffs’ case was finished, and adirected verdict was granted.

On appeal, a divided appellate panelreversed.

First, the appellate court noted that experttestimony that a particular procedure is gov-erned by a national standard is not, in and ofitself, fatal to the introduction of that expert’stestimony at trial. The expert’s opinion mustbe taken as a whole, noted the court, whichwent on to observe that Dr. Strickland hadtraining and experience that was similar tothat of the defendant, and that both doctorshad practiced in multiple communities withinNorth Carolina. Dr Strickland was licensed infive states, and at the time of trial practiced inWest Jefferson, North Carolina, said the court.The evidence presented at trial also showedthat Dr. Strickland was familiar not only withthe equipment used in the laparoscopic proce-dure, but also with the physical and financialenvironment in Rocky Mount. Accordingly,held the court, he should have been allowed totestify. Pitts v. Nash Day Hospital, Inc., 605S.E.2d 154, 156-157.

The dissent was unconvinced. In the opinion of Justice Steelman, the trial

judge was correct in excluding Dr. Strickland,because, although Dr. Strickland practiced inseveral different communities in NorthCarolina, he had no basis for testifying as tothe standard of practice in Rocky Mount.Justice Steelman noted the following testimo-ny in his dissent:

Q: [Defense counsel:] So, to summarize,what you know about the standard of care forOB-GYN surgeons practicing in RockyMount is that you’ve practiced in other smalltowns in North Carolina, you have driven pastthe hospital here, you have driven aroundenough to have knowledge in passing of whatthe industrial base was, and you’ve looked at

THE NORTH CAROLINA STATE BAR JOURNAL 7

the telephone book to see what the medianincome and population is. Is that basicallywhat your basis is, Doctor?

A: [Dr. Strickland:] My basis for conclud-ing that they are similar?

Q: Is that your basis—is that the basis ofwhat you know about Rocky Mount, NorthCarolina, and the standard of practice here?

A: I suppose that’s accurate.Pitts v. Nash Day Hospital, Inc., 605 S.E.2d154, 158-159.

After reading the majority opinion in Pitts,one would think that, in addition to medicalrecords and depositions, counsel had bettersend their expert an almanac, the YellowPages, and a chamber of commerce brochurebefore calling them to the stand at trial.

Sound unnecessary?Then consider another very recent case,

Barham v. J. Hawk MD, et al 165 N.C. App.708, 600 S.E.2d 1 (2004), review allowed 359N.C. 410, 612 S.E.2d. 316 (NC April 16,2005).

In Barham, a patient’s estate brought amalpractice action against the defendant,alleging that the physician’s improper treat-ment of a cyst-like growth in the patient’s earresulted in chronic infection and, ultimately,death. At trial, the defendant called one of thedecedent’s subsequent treating physicians, Dr.Danko Cerenko of Atlanta, to testify not onlyregarding his own treatment of the patient,but also to testify on the standard of care.

Plaintiffs objected to Dr. Cerenko’s testify-ing on the standard of care, based on § 90-21.12. Both parties conducted voir dire.Clearly, Dr. Cerenko was not familiar withHendersonville. However, defense counselposed hypothetical questions to Dr. Cerenkoin which he asked the expert to assume factsrelating to the defendant’s care, and to alsoassume facts about Hendersonville itself.These “assumed” facts included the city’s pop-ulation, the size of its hospital, the number ofphysicians there, and the number of specialiststhere. After assuming these facts, Dr. Cerenkosaid that he was familiar with the standard ofcare in the defendant’s community. Barham v.J. Hawk MD, 165 N.C. App. 708, 600 S.E.2d

1, 4-5.It was a good try by defense counsel, but it

didn’t work.The court of appeals agreed with the trial

judge, who allowed the doctor to testifyregarding his own treatment of the decedent,but not on the standard of care. Dr. Cerenkoadmitted that he “knew nothing aboutHendersonville, had no idea of the size of thecommunity, knew nothing about the hospitalin Hendersonville or its resources, and had noknowledge about the physicians practicing inthat area,” said the court. The only informa-tion he had was from the hypotheticals posedby defense counsel and this was not enough:“This testimony establishes that Dr. Cerenkoneither had any knowledge about the standardof care in Hendersonville nor had any knowl-edge of the resources available inHendersonville sufficient to be able to testifyabout the standard of care in similar commu-nities.” Barham v. J. Hawk MD, 165 N.C.App. 708, 600 S.E.2d 1, 5-6.

The Education of Your ExpertThe court in Barham did not say that an

expert could not educate himself about a par-ticular city and its resources prior to taking thestand.

In Coffman v. Roberson 153 N.C.App. 618,571 S.E.2d 255 (2002) review denied 356N.C. 668, 577 S.E.2d 111 (N.C. Feb. 27,2003), the court allowed an expert to testifypursuant to § 90-21.12 based partly on inter-net research he conducted to become familiarwith the defendant’s city.

In Coffman, Plaintiffs alleged that a preg-nancy was terminated as a result of a negligentdiagnosis of an ectopic pregnancy. Plaintiffsoffered two experts at trial on the standard ofcare. There was no indication in the court’sopinion to suggest that either expert had everbeen to, or practiced, in Wilmington wherethe alleged negligence took place.Nevertheless, and over objection of defensecounsel, both experts were allowed to testifyunder § 90-21.12. The jury returned a verdictfor the Plaintiffs. Coffman v. Roberson 153N.C.App. 618, 571 S.E.2d 255

On appeal, Defendant contended, amongother things, that the trial court should nothave allowed the Plaintiff ’s two experts to tes-tify, as they were not familiar with the com-munity standard in Wilmington. The appel-late court affirmed.

The court found that internet researchconducted by Plaintiff ’s experts was enough toqualify under the statute: “At trial, Dr. Hornertestified that he was familiar with the standardof care with respect to obstetrics, gynecology,and sonography in communities similar toWilmington, North Carolina,” said the court.“He based this opinion on internet researchabout the size of the hospital, the training pro-gram, and the AHEC (Area Health EducationCenter) program…This testimony is suffi-cient to satisfy the requirements for N.C.Gen.Stat.§ 90-21.12.” Likewise, the remain-ing expert was also allowed to testify as theresult of internet research he had conducted.Coffman v. Roberson 153 N.C.App. 618, 624-625, 571 S.E.2d 255, 259. See also Billings v.Rosenstein, MD. 2005 WL 2648953 (trialcourt erred in disallowing expert opinionbased on Section 90-21.12).

So although an expert cannot becomeacquainted with your community while he orshe is on the stand (by hypotheticals, as inBarham), they can apparently become quali-fied by doing their own research (or drivingaround, as in Pitts), even on the internet, priorto trial.

But the expert better not forget what he orshe learned about the local community beforetaking the stand.

In Smith v. Whitmer, 159 N.C.App. 192,582 S.E.2d 669 (2003), a Nash County case,Plaintiff offered the expert opinion of Dr.Melvin Heiman, an orthopedic surgeon fromVirginia who testified that he was familiarwith the standard of care in Tarboro andRocky Mount. Dr. Heiman said, among otherthings, that he had taken steps to becomefamiliar with these communities and that heunderstood “about the approximate size of thecommunity and what goes on there...” Smithv. Whitmer, 159 N.C.App. 192, 193, 582S.E.2d 669, 670.

8 WINTER 2005

“After reading the majority opinion in Pitts, one would think that, in addition to medical recordsand depositions, counsel had better send their expert an almanac, the Yellow Pages, and a chamber

of commerce brochure before calling them to the stand at trial.”

But Dr. Heiman admitted on cross-exami-nation that the information he obtained con-cerning the local communities had come fromPlaintiff ’s counsel, that it was not writtendown anywhere, and that he no longerrecalled any of the specifics. Moreover, whenhe was asked again about the standard of carein the communities in question, Dr. Heimanasserted his belief that the standard was nation-al, “regardless of what the medical communi-ty in Tarboro, North Carolina might do.”Smith v. Whitmer, 159 N.C.App. 192, 196-197, 582 S.E.2d 669, 671-673. As a result ofthis testimony, Dr. Heiman’s opinions on thestandard of care were excluded.

The National Standard of Care and § 90-221.12

Testimony by medical experts on a“national standard of care” is a hazardous areafor the unprepared. Although North Carolinacase law allows such testimony, it is subject toseveral important conditions. The mostimportant caveat is this: If your expert has nottaken steps to become familiar with the localcommunity, or refuses to even consider a localstandard, he or she will likely be rejected.

Bak v. Cumberland County Hospital System,Inc. 165 N.C.App. 904, 602 S.E.2d 727(table), decided in 2004, is an unpublishedopinion that drives home this point.

Bak was an action brought by a husbandand wife after the wife suffered a stroke fol-lowing her hysterectomy. When defendantsmoved for summary judgment, Plaintiffsoffered the expert testimony of Dr. Ahn, anOB-GYN specialist who practiced at EmoryUniversity Medical Center. On direct exami-nation, Dr. Ahn testified that the standard ofcare had been breached in the treatment ofMrs. Bak.

But on cross-examination, defense counselelicited the following testimony:

Q: [Defense counsel:] Okay. Now, Dr.Ahn, today you have spoken about standard ofcare, and you have told Mr. Cooper, the plain-tiff ’s lawyer, that by standard of care you arereferring to a national standard of care; is thatcorrect?

A: [Dr. Ahn:] Yes.Q: And is it also correct that you are not

licensed to practice medicine in the state ofNorth Carolina?

A: That’s correct.Q: And you have never practiced in North

Carolina because that would be unlawful; isthat correct?

A: That’s correct.Q: And you have never been to the Cape

Fear Valley Hospital; is that correct?A: That’s correct.Q: And you have never been to any other

medical facility in the state of North Carolina;is that correct?

A: That’s correct.Q: And so when you give your opinions

about standard of care, you are making theassumption that the standard of care is thesame all over the United States? That there is anational standard of care, correct?

A: That’s correct.Bak v. Cumberland County Hospital System,Inc. 165 N.C.App. 904 602 S.E.2d 727,(unpublished). Since Dr. Ahn’s testimonywent only to the national standard it wasinsufficient, said the court, to raise a triableissue of fact as to whether the defendant physi-cian breached the standard of care inFayetteville.

The Bak court noted that more than 20years ago, in Haney v. Alexander, 71 N.C. App.731, 323 S.E.2d 430 (1984), the courtallowed a medical expert to testify that the tak-ing and reporting of vital signs by a nurse wasthe same in accredited hospitals across thecountry. But the Bak court refused to extendsuch a standard to a hysterectomy: “[A] hys-terectomy is a procedure not of the kindwhich fits within the narrow exception of pro-cedures so uniform, routine, and uncompli-cated, that a national standard of care can beapplied.” Bak v. Cumberland County HospitalSystem, Inc. 165 N.C.App. 904 602 S.E.2d727, (unpublished).

Issues involving experts who testify as to anational standard of care have appeared fre-quently. These cases may be distilled downinto a few common principles.

First, and as set forth above, an expert whoinsists on testifying only as to the nationalstandard of care will likely be rejected, either atthe trial court level, or later on appeal (subjectto one recent exception, discussed below). Ifyour expert will not testify on a local standard,find another one. See, for example, Smith v.Whitmer, 159 N.C.App. 192, 582 S.E.2d 669(2003) (grant of summary judgment appro-priate where plaintiff ’s expert testified only toa national standard of care).

Second, testimony on the national stan-dard of care is not, in and of itself, fatal to anexpert’s testimony where such testimony isused in conjunction with other evidence.Leatherwood v. Ehlinger, MD, 151 N.C.App.

15, 564 S.E.2d 883 (2002), review denied357 N.C. 164, 580 S.E.2d 368 (N.C. May 1,2003); see also Baynor v. Cook, 480 S.E.2d 419(1997), review denied 346 N.C. 275, 487S.E.2d 537 (N.C. June 5, 1997) (discussion ofthe national standard of care was allowed buta jury instruction specifically recognizing sucha standard was properly rejected).

Leatherwood was a shoulder dystopia casebrought in Swain County. The case was filedby a mother who alleged that her obstetricianwas negligent in the care and treatment of herchild during delivery.

Plaintiff ’s expert, Dr. Jones, was an OB-GYN licensed to practice medicine in SouthCarolina and Alabama. At trial, Dr. Jones tes-tified regarding the risks of shoulder dystopiain large babies, the impact of gestational dia-betes on growth rates, and on the propermethods for delivery of a large baby to mini-mize injury to the infant. Among other things,Dr. Jones also used an anatomical model todemonstrate the proper method of delivery inthese types of cases. The trial judge granted adirected verdict for the defendant after findingthat Dr. Jones was not qualified under § 90-21.12.

Plaintiffs appealed the directed verdict onseveral grounds, including the court’s decisionthat Dr. Jones was not qualified under § 90-21.12. In opposition, the defendant contend-ed “Dr. Jones’ testimony related only to anational standard of care which is not permit-ted under N.C. Gen.Stat. § 90-21.12.”Leatherwood v. Ehlinger, MD, 151 N.C.App.15, 21-22, 564 S.E.2d 883, 888-889. In sup-port of this argument, Defendant cited Henryv. Southeastern OB-GYN Associates, PA. dis-cussed infra, decided in 2001. (In Henry, tes-timony on the national standard was deemedinsufficient where the expert could not linkthe national standard to the local community.)

But the court of appeals didn’t see it thatway. In reversing the trial judge’s directed ver-dict, the appellate court distinguished Henryon its facts:

In contrast with the expert in Henry, Dr.Jones specifically testified that he had“[k]nowledge of the standards of practiceamong obstetricians with similar trainingand experience as that of [defendant] inAsheville and similar communities [at thetime of Amelia’s injury] with regard to theappropriate management of shoulderdystopia in delivering children.”Additionally, he testified that, as a medicalstudent, he attended rounds at the hospital

THE NORTH CAROLINA STATE BAR JOURNAL 9

in which Amelia was delivered. Further,the record shows that Dr. Jones practices inGreenville, South Carolina, and has prac-ticed in similar communities in Alabamaand Mississippi, which are similar in size toAsheville. Finally, he specifically testifiedthat “Asheville and other communitiesthat size practice the same national stan-dards” with respect to the management ofshoulder dystopia.

Leatherwood v. Ehlinger, MD, 151 N.C.App.15, 22, 564 S.E.2d 883, 888.

A similar result was reached two years agoin Cox v. Steffes, MD et al, 161 N.C.App. 237,587 S.E.2d 908 (2003), review denied 358N.C. 233, 595 S.E.2d 148 (N.C. April 1,2004).

Cox was a malpractice action following asurgery to correct a stomach acid reflux prob-lem. The jury found for the plaintiff, but thecourt granted JNOV, based primarily on thetrial judge’s finding that the expert for Plaintiffwas not qualified to testify on the standard ofcare in Fayetteville “or similar communities.”

Plaintiff ’s expert was Joseph Donnelly,MD, a board-certified general and thoracicsurgeon who was then retired. It is not entire-ly clear, but it appears from the appellate courtopinion that Dr. Donnelly had extensive expe-rience in performing the surgery at issue inCox. Dr. Donnelly was apparently licensed inPennsylvania.

The record revealed that Dr. Donnellypracticed in a similar size community inPennsylvania and that he had been providedmaterials by Plaintiff ’s counsel about the localcommunity in North Carolina and the Level2 hospital where the surgery took place. Dr.Donnelly testified “Reading [Pennsylvania]was similar to Fayetteville with respect toboard-certified physicians, sophisticated labservices, x-ray departments, anesthesia servic-es, hospital certification, and access to special-ists.” Cox v. Steffes, MD et al, 161 N.C.App.237, 244-245, 587 S.E.2d 908, 913. But thiswas not enough.

The appellate court reversed. The court ofappeals looked not just to the testimony of Dr.Donnelly, but also to the testimony of thedefendant’s expert, Dr. McGuire, to find thatthe standard of care in Fayetteville was thesame as everywhere else in the country, andthat the trial judge had erred:

Equally important, Dr. McGuire [thedefense expert] testified that the standardof care at issue in this case was in fact thesame across the nation. As to post-opera-

tive care, Dr. McGuire first testified, “Ithink it is the universally accepted standardof care.” He then agreed more specificallythat with respect to post-operative care “thestandard of care applicable for that wouldbe the same across the US in 1994 for anyboard-certified surgeon.”

Cox v. Steffes, M.D. et al, 161 N.C.App. 237,244, 587 S.E.2d 908, 913.

The appellate court also said that Dr.Donnelly was probably qualified to testifybased solely on his review of the record and hisknowledge of Fayetteville, but added that,“even if this testimony is disregarded, Dr.McGuire’s testimony established that the stan-dard of care with respect to post-operative careby board-certified general surgeons, under thecircumstances of this case, is the same for allcommunities.” The lesson here: If bothexperts agree that the standard of care isnational, then it is acceptable, per Cox.

Is there a Statewide Standard of Care?Is it enough for your expert to say that he

or she is familiar with a statewide standard ofcare in North Carolina?

The answer to this questions is no. The factthat an expert witness testifies that are gener-ally familiar with the standard of practice inNorth Carolina is not enough to meet theburden established by the statute. The expertmust be able to testify that are familiar with“the same or similar communities” where thedefendant practiced medicine.

This issue has also caused problems forcounsel in recent years.

For example, in Tucker v. Meiss, 127N.C.App. 197, 487 S.E.2d 827 (1997), theappellate court affirmed a directed verdict infavor of the defendant physician, even thoughthe plaintiff ’s expert testified that he wasfamiliar with the standard of care in NorthCarolina.

In Tucker, a case out of Iredell County,Plaintiff and her husband sought to recoverfor an allegedly negligent episiotomy inWinston-Salem. Plaintiff ’s expert, Dr. Tasker,testified that although he was an OB-GYNlicensed in Tennessee, he was quite familiarwith the standard of practice for OB-GYNswho performed episiotomies in NorthCarolina. What he did not say, according tothe appellate court, was that he was specifical-ly familiar with the standards of practice inWinston-Salem. As such, his testimony wasprecluded, and Plaintiffs were left withouttheir standard of care expert. Tucker v. Meiss,

127 N.C.App. 197, 198-199, 487 S.E.2d827, 828-829.

A similar result was reached again fouryears later in Henry v. Southeastern OB-GYNAssociates, PA, 145 N.C.App. 208, 555 S.E.2d245 (2001), affirmed 354 N.C. 570, 557S.E.2d 530 (N.C. Dec. 18, 2001), a case outof New Hanover County that also resulted ina directed verdict for the defense.

Henry was a shoulder dystopia casebrought by the parents of an infant to recoverfor allegedly negligent care rendered inWilmington. Plaintiffs retained Dr. Chauhanof Spartanburg as their expert. Dr. Chauhantestified that he was familiar with standards ofpractice at both Duke and Chapel Hill. Healso said that the standard of care was the samein all three communities—Spartanburg,Duke, and Chapel Hill. Therefore, Plaintiffargued, Dr. Chauhan met the “similar com-munities” requirement imposed by the statute.

The trial judge, and later the appellatecourt, disagreed. “Even if Dr. Chauhan wasfamiliar with the standard of care in ChapelHill or Durham,” observed the court, “therewas no evidence that a similar standard of careprevailed in Wilmington.” The directed ver-dict was affirmed. Henry v. Southeastern OB-GYN Associates, PA, 145 N.C. App. 208, 211-213, 550 S.E.2d 245, 247-248 (the court alsorejected testimony from Plaintiff ’s expert thata national standard of care applied in shoulderdystopia cases). For an even more recent caseon this issue, see Ramirez v. Little, MD. 609S.E.2d 499 (Table-unpublished), 2005 WL465525 (N.C.App. March 2005).

What About Other States?What if your expert in North Carolina is

seeking to testify as to the standard of care inanother state? Does the expert have to testifyas to the “same or similar community” of theforeign jurisdiction?

The answer to that question is yes, at leastwhere the underlying action is brought here.

In Brooks v. Wal-Mart Stores, 139N.C.App. 637, 535 S.E.2d 55 (2000), theappellate court noted that it would be neces-sary for a North Carolina pharmacist, testify-ing against a pharmacist in South Carolina, tootherwise qualify under the “same or similarcommunities” rule of § 90-21.12. This meantthat in Brooks, the experts would have to befamiliar with the standards of practice inGreenville, South Carolina, even though theaction was filed in North Carolina. Brooks v.Wal-Mart Stores, 139 N.C.App. 637, 652-

10 WINTER 2005

657, 535 S.E.2d 55, 65-67. The Brooks case also provides some impor-

tant, albeit confusing, lessons in preservingissues related to § 90-21.12 for appeal.

In Brooks, Plaintiff alleged that his physi-cian was negligent in writing a prescription,and that a Wal-Mart store pharmacist wasnegligent for filling the prescription. The pre-scription was filled in Wal-Mart’s Greenville,South Carolina, store. The physician and thestore, apparently happy to do the work forPlaintiff ’s counsel, in turn sued each other.The Guilford County jury which heard thecase returned a verdict for $2.5 million incompensatory damages and $1 in punitivedamages against Wal-Mart, which subse-quently brought an appeal on more than 33different issues, including the claim that anexpert at trial was not qualified to testify under§ 90-21.12.

Plaintiff ’s expert was Joseph Burton, apharmacist who maintained a practice inGreensboro, North Carolina. The gist of Dr.Burton’s testimony was that Wal-Mart’s phar-macist had failed to adhere to the standard ofcare in filling a prescription of Prednisone,that was too high. Wal-Mart maintained that

Burton was not competent to testify as to thestandard of practice in Greenville because histestimony “revealed a total dearth of knowl-edge or familiarity with the practice of phar-macy in that community.” Brooks v. Wal-MartStores, 139 N.C.App. 637, 654, 535 S.E.2d55, 65.

Although Burton testified summarily thathe believed he was familiar with the appropri-ate standard, he pretty much admitted oncross-examination that the standard to whichhe was referring was a national one. There wasno testimony that he had ever practiced inGreenville, that he had done any independentresearch on that community, or that he hadbeen provided with any information on thecity or its pharmacy community by counsel.Observed the court:

Burton also admitted he was not familiarwith South Carolina Statutes or adminis-trative regulations governing the practice ofpharmacy, that he had not attended anyseminars discussing such statutes or regula-tions, and that he had not discussed theinstant case with any South Carolina phar-macist.

Brooks v. Wal-Mart Stores, 139 N.C.App. 637,

656, 535 S.E.2d 55, 67.Nonetheless, the testimony was allowed to

stand. The appellate court held that Wal-Marthad waived its objections to Burton’s testimo-ny by several actions.

First, said the court, Wal-Mart initiallyinterposed no objection to the tender byPlaintiff of Burton as “an expert in the field ofpharmacy.” The court noted that Wal-Martshould have objected and requested anEvidence Code § 705 hearing to conduct voirdire before the expert was offered to the jury.

To make matters worse, continued thecourt, Wal-Mart failed to move to strike (fol-lowing its objection) Burton’s testimony onthe standard of care and therefore waived itsobjection.

Finally, said the court, Wal-Mart waivedany benefit of its earlier objections to the testi-mony of Burton when defense counsel pro-ceeded to cross-examine the expert and there-by elicited the same testimony that was prof-fered on direct. Brooks v. Wal-Mart Stores, 139N.C.App. 637, 656, 535 S.E.2d 55, 67.

It is hard to fault defense counsel for pro-ceeding on cross-examination (wherein coun-sel effectively proved that the expert was not

THE NORTH CAROLINA STATE BAR JOURNAL 11

qualified under § 90-21.12) when the trialjudge has overruled counsel’s previous objec-tions. In this sense, Brooks is a rather confusingopinion. Still, the case should be a warning,and a possible road map, for future actions inwhich experts are challenged and how to bestaccomplish that task during trial.

The National Standard Allowed?Are there any situations in which an expert

can be totally oblivious to the local communi-ty and still be accepted as an expert on thestandard of care?

Well, maybe.One example is found in Marley v. Graper,

135 N.C.App. 423, 521 S.E.2d 129 (1999),cert. denied, 351 N.C. 358, 549 S.E.2d 214(N.C. Feb. 3, 2000), a case that at first glanceseems to run contrary to decisions both beforeand after 1999.

Marley was a malpractice action broughtby a patient and her husband alleging negli-gence in connection with a surgery performedat a hospital in Greensboro. Following surgery,the patient experienced memory loss, confu-sion, hallucinations, and vision impairment.The patient was ultimately diagnosed withoptic neuropathy, a condition caused bydecreased blood flow to the end of the opticnerve, leading to tissue death. Marley v.Graper, 135 N.C.App. 423, 425, 521 S.E.2d129, 131-132.

The Marley case went to trial inMecklenburg County. The jury returned adefense verdict. On appeal of the verdict,Plaintiff contended, among other things, thatthe trial judge had erred in admitting thevideotaped testimony of a defense expert who,according to the appellate opinion, “did nottestify that he was familiar with the standard ofcare for Greensboro.” Marley v. Graper, 135N.C.App. 423, 430, 521 S.E.2d 129,134-135. What the expert did say, however, wasthat the defendant met any standard of care.

The appellate court observed that thevideotaped testimony of the expert “obviatedthe need” for familiarity with the local com-munity standards. “If the standard of care forGreensboro matched the highest standard inthe country,” said the court, “Graper’s treat-ment of Marley met that standard.” If thestandard of practicing medicine was lower inGreensboro, continued the court, then thetreatment of the plaintiff exceeded the areastandard. Either way, the requirements of §90-21.12 were met.

The Marley decision is best suited to

defense experts in a malpractice trial. As longas the expert testifies that the defendant metthe highest standard of care found anywhere,the testimony comes in. However, the reverseis not true: an expert retained by the plaintiffcould not testify that the defendant breachedthe standard of care anywhere—that expertwould still have to testify as to the standard ofpractice that existed in the same or similarcommunity at the time the treatment was ren-dered.

Getting Your Expert Qualified

What can be distilled from all of theseopinions, and how should counsel bestapproach the task of getting their expert qual-ified?

First, keep a close watch on advance sheetsfrom the court of appeals—both the pub-lished and unpublished decisions. These casesare common, and they appear to be reachingthe appellate court on a regular basis. Evenwhere the opinion is unpublished, the factpatterns involving § 90-21.12 issues can pro-vide guidance for you as you prepare your ownexperts for trial.

Second, be careful with any expert whoinsists that the standard of care in your case isthe same everywhere—that the standard is anational one. Your expert may very well becorrect, but that will be of no benefit to youat trial if the court insists on requiring theexpert to make the link to the “same or simi-lar communities” involved in your case. Ifyou cannot get your expert to understand therequirements of § 90-21.12, find anotherexpert.

On a related question, even if you repre-sent the defendant physician and your expertis ready to state that your client met the “high-est standard of care that there is,” as in theMarley case, be prepared to have a backupplan. There is just too much uncertainty inthese cases to have your entire case depend onan expert who cannot make the local link.

Next, do not assume anything—always agood rule for lawyers. If you find an experthere in North Carolina, find out what heknows about the local community in whichthe alleged malpractice took place. Has he everpracticed there? Does he know any other doc-tors there? Did he do his internship or resi-dency there? Does he ever take referrals fromthat community? Remember, just becauseyour expert is familiar with the standard ofcare in North Carolina, does not mean that hewill be allowed to testify in each and every

county here.There are no cases in which an out-of-state

expert is precluded from testifying simplybecause he does not practice here. What landslawyers in trouble are experts who know noth-ing about the local community.

If the expert has no ties here, educate him,and also instruct him to do a little research onhis own: What type of hospital is there? Whatare the facilities? What kind of medical com-munity is it? Where is it (this is especiallyimportant for out-of-state experts who knownothing about North Carolina), and the like.Internet research is available for your expert (asin the Coffman case) and your own local con-tacts can provide information for your experton the medical community.

If you are representing the defendant, donot forget that your own client may have awealth of information about the local medicalcommunity that can be passed on, throughyou, to your expert.

For either side, once your expert knowsmore about the community, he or she may beable to compare it directly to a similar sizecommunity once practiced in—or that he orshe practices in now.

If you are challenging an expert, considerdoing so pursuant to Evidence Code § 705outside the presence of the jury. If you havealready deposed the expert, you should have apretty good idea prior to trial as to whether ornot you can make a good case that he or shebe precluded pursuant to § 90-21.12. And ifthe court overrules your challenge, keep inmind the requirements for preserving yourchallenge on appeal.

Most medical malpractice cases requireyour expert to spend several hours, at least, inreview of the file to prepare for a deposition.Many cases require much more preparation.So do not fret over asking your expert tospend another hour or two educating himselfabout the local community. If he does not,then all the rest of the time for which you arebilled may be a useless (for you and yourclient) academic exercise.

Mark Canepa is an attorney with theCharlotte defense firm of Morris, York,Williams, Surles & Barringer, located atwww.morrisyork.com. Prior to joining MorrisYork, Canepa was a shareholder in theCalifornia firm of Baker, Manock & Jensenwhere he defended medical malpractice actions.He is a 1988 graduate of the University ofCalifornia, Hastings.

12 WINTER 2005

14 WINTER 2005

Pork on the PrairieB Y W A Y L A N D C O O K E

We didn’t

m a k e

t h i s

t r i p

with the idea of writing about it. But when Steve

Crihfield, one of our State Bar Councilors, heard

about it, he urged that we produce an account of the

venture because “...people need to read about lawyers doing enjoyable things, not just about legal matters.” Steve has long been

involved in attorneys’ quality of life issues such as the secured leave program and thought the story of this trip would be a pleasant

change of pace for the Journal.

It all started when I learned GarrisonKeillor’s public radio show “A Prairie HomeCompanion” would be broadcasting fromthe Corn Palace in Mitchell, South Dakota.This serendipitous juxtaposition was toogood to pass up so I mentioned it to KevinMorse, friend, fellow attorney, and afficiona-do of the show as well as the Corn Palace.Kevin and Greg Brooks, a local sleuth, are thePig Masters—they cook whole pigs easternNorth Carolina style over hickory coals forvarious events. We convinced Greg and my

law partner, Davis North, that “Pork on thePrairie” would be an interesting journey.

The idea was to cook a pig for the cast andcrew of A Prairie Home Companion in con-nection with their appearance at the CornPalace. I wrote to Garrison Keillor extollingthe virtues of the Pig Masters and offering toprovide a meal for him and his entourage.Katrina Cicala, his assistant, called to acceptour offer and we began planning the details.

Davis North and I met over a poker tablein Chapel Hill in the late 60’s. We later both

worked as assistant public defenders for WallyHarrelson in Greensboro and have practicedprimarily criminal law together since 1983.We have taken several lengthy road trips withfriends and this looked like a good opportu-nity for another.

Kevin Morse also practices criminal law inGreensboro. He is married to KathleenO’Connell, an attractive and somewhat flam-boyant assistant district attorney here. I knewKevin enjoyed driving, road trips, and hadvisited the Corn Palace years back. He imme-

Greg Brooks and the author at a rest stop in Iowa.

THE NORTH CAROLINA STATE BAR JOURNAL 15

diately recognized the merit of the idea.Greg Brooks is an ex-policeman, formerly

head of security at Guilford Mills, presently aprivate investigator and full-time philoso-pher. We have learned never to bring up theKennedy assassination around him unlessthere’s about two hours to kill. Besides need-ing his skills as one of the Pig Masters, webrought him along to do the heavy thinkingand PR work.

Kevin and Greg have a 14 foot enclosedtrailer, the “Pig Rig,” with a back door thatdrops to make a ramp. There are kitchen cab-inets built in, a CD stereo, and plasma TVwith dish. It holds a pig cooker made from a275 gallon oil tank, a keg refrigerator, a 55-gallon drum burn barrel, two canopy tents,

several tables, and a large tub for transportingthe pig.

The Red Oak Brewery in Greensborodonated a keg of its amber beer and our localCheerwine distributor contributed threecases of his finest vintage. We were intent onmaking some southern cuisine available tothose who might otherwise be deprived. Inthat vein, we procured two cases of MoonPies and prepared to haul pig.

The Corn Palace rises majestically fromthe rolling plains of South Dakota in thetown of Mitchell (population 14,588), homeof George McGovern. It is designed as a the-ater with a basketball court just in front of thestage. The Mitchell High School basketballteam, The Kernels, plays there and won the

South Dakota state championship this year.The place attracts tourists in bushels to seethe large murals done in a mosaic style madeof corn, grasses and grains grown locally.These huge murals adorn the outside of thebuilding and are replaced annually with a dif-ferent theme portrayed every year. This hasbeen going on since 1892. The combinationof this great building plus A Prairie HomeCompanion beckoned us westward.

We split and loaded a quarter cord ofhickory wood into the bed of Kevin’s DodgeHemi truck and he, Greg, and I left early onWednesday morning. We were to pick upDavis at the Omaha airport Thursday after-noon. The Pig Rig attracted plenty of inter-est at gas stops (and there were an abundanceof those). After we explained our trip to a kidrunning a service station in Tennessee, herefused to let us pay for the fresh bags of icewe’d put on the pig. We kept about 30 bagsof ice under and on top of the pig during itsvoyage west. We got into St. Louis beforedark and photographed the Pig Rig underthe Gateway Arch on the banks of theMississippi River. The parking staff at theRadisson saw the Pig Rig, thought we were

Dinnertime at the Corn Palace (above), the Pig Rig at the Gateway Arch (right), thePigmasters with the Showfolk. From left, Wayland Cooke, Amanda Barrett, Davis North, Garrison Keillor, Abby DeWald, Greg Brooks and Kevin Morse. Abby and Amanda are the Ditty Bops (below).

16 WINTER 2005

carrying barbeque ready for eating, and pro-vided space for the truck and trailer at theirfront door. We had a great dinner at CharleyGitto’s, an Italian restaurant about twoblocks from the courthouse where the DredScott decision was handed down. We closeddown the hotel bar while engaging in amulti-topic discussion no one cared to recallin the morning, particularly our PR man,Greg.

Thursday morning we made the obliga-tory stop in Brunswick, Missouri, to visit theWORLD’S LARGEST PECAN.(Lewis andClark Journals, Vol. III “...a nutte of greatesizze.”) This 12,000 pound beauty sitsproudly adjacent to Highway 24 close by aJames Hican tree. That tree was developed

by George James in 1976 and yields nutsthat look like pecans on steroids—partpecan, part hickory. They will ship you a treefor $21.95 (nuthut@mcmsvs.com).

We then visited the house in St. Joseph,Missouri, where Robert Ford shot JesseJames in the back of the head. Jesse wasstraightening a picture on the wall at thetime. He should have left interior decoratingto his wife. After paying our respects, weheaded up the Big Muddy to pick up Davisat the airport in Omaha, which is actually inCarter Lake, Iowa, even though it’s west ofthe Missouri River and all the rest of Iowa iseast of the river. It looks like a situation ripefor a riparian rights controversy with someaccretion law thrown in.

We proceeded on up the Missouri toMitchell where we were met by MarkSchilling, director of the Corn Palace. Hewas there at 9:00 pm Thursday to point outwhere we should set up Friday, and was thereat 8:30 am Sunday when we were leavingtown. He is earning his pay. Mark was veryhelpful and genuinely nice as were all thefolks we encountered in Mitchell.

At 6:30 Friday morning we lit the firebarrel to start producing coals, and put thepig on the cooker at 7:00. We set up twocanopy tents, put out some tasteful outdoorcarpeting, and purchased hanging plants andpalm trees to spiff up the decor at the trailer.After plugging into municipal power at CityHall adjacent to the Corn Palace, we crankedup the Allman Brothers, adding to theambiance. The plan was to serve dinner tothe cast and crew of A Prairie HomeCompanion, employees of the Corn Palace,and folks from South Dakota Public Radioafter the rehearsal that evening.

A Prairie Home Companion is a twohour radio show carried live on publicbroadcasting at 6:00 pm eastern time onSaturdays with a rebroadcast on Sunday.Garrison Keillor is the host and movingforce. He is joined by actress Sue Scott,actors Tim Russell and Fred Newman, whois also the sound effects maestro, and the

The eighth wonder of the world - the CornPalace, Mitchell, South Dakota (right), Cookeand Brooks in Hannibal, MO (below right),the Pig Rig at Churchill Downs, Louisville, KY(below left).

Guys’ All Star Shoe Band headed by RichDworsky. The guests for the week werePrudence Johnson, an accomplished singer,the Ditty Bops, two female musicians fromCalifornia, and George McGovern, formerUS senator and the Democratic presidentialcandidate defeated by Richard Nixon in1972.

Our menu was headlined by a 91-poundpig who hailed from Pikeville, NC. He was ahardy road tripper and made the 1520 miletrip without a squeal of complaint. Wesoaked a bunch of red potatoes overnight inwater, garlic powder, and onion powder, andprepared a huge pot of green beans with sidemeat. It was Fred Newman’s birthday andSue Scott brought us a cake to serve up fordessert along with the tarts de lune.

Downtown Mitchell was soon permeatedwith the aroma of hickory smoke and pigand lots of people stopped by looking to pur-chase a barbeque sandwich. These includedtwo gentlemen from Fayetteville who pro-fessed to cook pigs themselves and recog-nized the bouquet from blocks away. Ayoung attorney from Mitchell, Doug Dailey,dropped by at lunchtime, had a couple ofRed Oaks, and discussed South Dakota lawwith us. We invited him to come for dinnerand he did along with his parents who arebig fans of Garrison Keillor and the show.

I had written to Alice Claggett, mayor ofMitchell, and invited her and the aldermento join us for dinner. Alice first stopped byaround 9:00 am on the way into her office.It was love at first sight. Alice is 78 years oldand an absolute pistol. She speaks her mindand has a great sense of humor. She is asplendid ambassador for Mitchell and thetown is blessed to have her. She enjoyed theRed Oak and granted us an informal dispen-sation to partake of it on city property.

Harold Campbell, reporter for theMitchell Daily Republic, caught a whiff of thepungent pork and dropped by. He took pho-tographs and wrote a story which includedus for the Saturday edition. Needless to say,we wined and dined Harold in great style.We sent a large portion of barbeque back tothe newsroom with him. He was pleased toquote Greg’s explanation about our motiva-tion for making the trip.

At 7:30 pm the rehearsal was over andabout 40 hungry folks descended on us.Musicians and actors like to eat. These peo-ple went through the pig and side dishes likeSherman through Georgia. They ate every-

thing but the squeal. Garrison Keillordevoured two large plates of barbeque andwashed them down with Cheerwine. FredNewman is from southern Georgia and aconfirmed vegetarian except for barbeque.He swore this was the best pig he had everencountered. The Ditty Bops, Amanda andAbby, are also vegetarians but loved the greenbeans. (We neglected to tell them about theside meat.) Many diners ended up pullingpork directly from the pig on the cooker.The Red Oak beer was enthusiasticallyenjoyed.

As the show’s entourage numbers about25, they rarely eat and socialize as a group.Deb Beck, Keillor’s logistics and road man-ager, said the group appreciated the opportu-nity to get together, eat, and talk. Several ofthe cast members autographed the Pig Rigincluding Keillor who penned an impromp-tu poem on the side door. After the meal weadjourned to the Holiday Inn lounge to con-tinue socializing with the cast and crew.

Saturday morning we scrubbed all ourequipment and packed the Pig Rig. GarrisonKeillor showed us around backstage and wedonned earphones to listen to the musiciansrehearse. Keillor was wearing a red“McGovern” button we had given himwhich matched his red tennis shoes. He is afellow of few words but was very generous ofhis time with us.

We had great seats for the live broadcastSaturday and the show confirmed for us howtalented these people are. Fred Newman canmake a zillion different sounds using only his

mouth. Sue Scott and Tim Russell were a joyto watch. The music was great. As the showwas on May 7, most of the songs had aMother’s Day theme. George McGovern dida guest appearance on the “Lives of theCowboys” segment and, for an 82-year-oldgentlemen, did a great job with an awkwardscript. Garrison Keillor’s weekly soliloquy,the “News from Lake Woebegon” wasunscripted and apparently off-the-cuff.Kevin noted, and we agreed, having seen theshow done live, we’d never listen to it thesame way again.

Early Sunday we stopped by the CornPalace on the way out of town. MarkSchilling was on the job and Mayor Claggetdrove by while we were parked out front.Bev Robinson, one of the aldermen, hadjoined us for dinner and she and her hus-band gave us gift bags full of South Dakotaproducts. As I said, all the people we met inMitchell, including the showfolk, were asnice and pleasant as could be.

On the trip back to Greensboro we pho-tographed the Pig Rig at Indianapolis MotorSpeedway and Churchill Downs. We cov-ered almost 3200 miles, met some wonder-ful people, and had a great time. A PrairieHome Companion and the Corn Palacemake a special couple and we were lucky tobe at the wedding.

Wayland Cooke graduated from UNC-CHin 1971 and received his JD from NCCU in1976. He practices with Cahoon & Swisher,North, Cooke & Landreth.

THE NORTH CAROLINA STATE BAR JOURNAL 17

The Pig Rig ready for some fast laps at Indianapolis Motor Speedway.

18 WINTER 2005

More than a few weary and worn mid-career lawyers consider the possibility ofteaching full or part-time in a college ornon-law graduate degree program. Why notteach law school? If you believe you wouldbe competitive for a law school teaching

position, that might be a first choice, butfew of us have the background or experienceto be competitive for a teaching position at alaw school.1 On the other hand, althoughsalaries tend to be lower2 than law schoolsalaries, there are other advantages to teach-

ing outside law schools. These include thefreedom to independently develop courseswithout necessarily focusing on currentjurisprudence (or the bar exam); discussingthe law with young people; and mentoringstudents in the legal and ethical responsibil-

Do You Want to Be a CollegeProfessor?

B Y J O H N W I N N

Tired of grinding out

2,000 billable

hours per year?

Would you consid-

er a career change that lets you spend more time with your spouse

and children? How about a job that gives you time off for holidays

plus summers, with pay? Would you consider a profession that allows

you to make a positive impact on others by instilling respect for the

rule of law? On the other hand, can you accept a significant decrease

in salary, a lesser pension, or a requirement that you move to a new state to practice your craft?

Rob Colvin/SIS

ities of citizenship. If you believe you have areal desire to teach, there is no reason not toat least explore the possibilities, whileremaining aware of the drawbacks.

I. Qualifications of a College ProfessorOnce you decide that teaching is some-

thing you wish to pursue, there are hurdlesthe legally trained jobseeker must confront.The first of these hurdles is teaching experi-ence. There is a maxim that states “the bestway to get a teaching job is to be in a teach-ing job to begin with.” In other words, aca-demic search committees place a great dealof emphasis on experience.

Education is a commodity and tuition-paying students have the right to expect acertain minimum level of teaching ability.Hiring an untested teacher is a gamble mostinstitutions cannot afford. Prior experienceteaching, even in an adjunct position at alocal community college or night schoolprogram will open doors for full-timeemployment. Adjunct teaching is an ideal“entry level” position for lawyers to gain afoothold into academics.

In this respect, if you have the opportu-nity to teach a law-related course as anadjunct, it should be your highest profes-sional priority. Your students deserve a supe-rior academic experience. Poor preparation,tardiness, absences, or lack of respecttowards your students will yield unfavorableterm-end feedback and marginal teachingevaluations. Being an adjunct is a great wayto hone teaching skills and accumulate need-ed experience.

Another obstacle you may encounter iswhat may be termed the “Ph.D. thing.”While your Juris Doctorate (JD) is a doctor-al degree, there are institutional and culturalbiases against lawyers in academia.3 Thisbias exists despite the fact that a JD requiresa comparable number of credit hours ofstudy4 (plus a bar exam). On the otherhand, a Ph.D. often takes longer to com-plete because a dissertation5 is required.While law courses might be more rigorous

than some Ph.D. courses, professors tend toview the Ph.D. as superior to the JD becauseof the added research component in thePh.D. Lawyers applying for non-law teach-ing positions will have to understand theworld of Ph.D. academics as well as theyunderstand the legal environment.

There are also issues of accreditation thatsome schools may wrestle with when consid-ering whether to hire a JD over a Ph.D.College and masters degree programs fallunder both regional6 and program-based7 orspecialized accreditation agencies. Mostaccreditation agencies will recognize the JDas an acceptable terminal degree if the appli-cant’s file demonstrates a commitment toresearch, teaching, or service in that particu-lar field.8 Nevertheless, having an additionalpost-graduate degree of any kind (MS, MA,MBA, or LLM) is a significant advantage ifyou don’t possess a Ph.D. Another option isto enroll in a Ph.D. program part-time or viaan accredited distance learning (internet-based) degree program.9

II. Available Positions and SuccessfulApplications

After deciding that you might wish topursue an academic position, it is importantto focus on the two keys to success: (1) find-ing open academic positions; and (2) creat-ing a marketable curriculum vitae (CV).10

You must bear in mind that there are morelegal jobs than professorial jobs as there aremore law firms than colleges. For some aca-demic positions, English or History forexample, there may be hundreds of Ph.D.-qualified candidates seeking a single posi-tion. This means that lawyers must deter-mine what teaching niche they might occu-py and probably be willing to relocate aswell.

For planning purposes, the normal aca-demic hiring season begins with jobannouncements in late fall, a review of appli-cations during the holiday season, and con-cludes with campus visits in the early springfor positions in the fall semester. Thanks to

the internet, finding available jobs is fairlyeasy. Most teaching solicitations will indicatewhether or not initial letters of interest andCVs may be sent via e-mail.11 It may beworthwhile to mention here that unsolicitedmailings to schools not advertising any openpositions are unlikely to yield any positiveresponses.

Two job information sources of greatbenefit are The Chronicle of HigherEducation’s “Careers Online”12 website andthe American Society of Criminology’s“Employment Exchange.”13 ChronicleCareers lists thousands of teaching positionsby discipline, state, region, and institution.Chronicle Careers also has specific listingsfor “law and legal studies” which includespotential teaching positions in law-relatedfields. Law-related areas include paralegalstudies, labor relations, law enforcement,criminal justice, criminology, homelandsecurity, management of criminal justiceagencies, forensic science, debating, govern-ment, international relations, and, of course,political science.

Most (if not all) of the positions listed inthe alternative Employment Exchange spec-ify that a Ph.D. in sociology, criminology, orrelated field is required. Nevertheless, ifteaching responsibilities include criminallaw, courts, terrorism, law enforcement,14

evidence,15 juvenile justice, corrections,conflict resolution, white-collar crime, orhomeland security, a JD with experience inthese fields might persuade a search com-mittee16 to consider a strong non-Ph.D.candidate.

III. Developing Your Curriculum VitaeWhile similar in many ways to a resume,

the curriculum vitae (“CV”) focuses prima-rily upon three academic domains: teach-ing, research (i.e. scholarship), and service.In this context, a curriculum vitae shouldbe longer (2-3 pages or more) and moredetailed than a resume. While work experi-ence is important, the CV should focus oneducation, teaching, publications, lectures,

20 WINTER 2005

“Another obstacle you may encounter is what may be termed the ‘Ph.D. thing.’ While yourJuris Doctorate (JD) is a doctoral degree, there are institutional and cultural biases against

lawyers in academia.”

THE NORTH CAROLINA STATE BAR JOURNAL 21

awards, honors, and professional affilia-tions.

Don’t forget to list continuing legal edu-cation (CLE) courses, especially those atwhich you have taught or lectured. Youshould expect to draft slightly different ver-sions of your CV for each position in whichyou are interested. For example, a CV pre-pared for an undergraduate business lawposition will be different than one preparedin response to an assignment teaching polit-ical science or criminal justice at a commu-nity college.

A carefully drafted cover letter for yourCV is also important. The cover letter iswhat may persuade search committee mem-bers to look at your CV. After referencingthe position for which you are applying,start with your strongest qualification. “Ihave four years of graduate and undergradu-ate teaching experience as an adjunct facultymember at East Westchester CountyCommunity College.” If the positionannouncement specifies a Ph.D., focus yourcover letter on actual knowledge and skills inthe field. “In addition to my teaching, I havesubstantial experience and training in most

of the fields referenced in your positiondescription.”

If members of the search committeehaven’t considered that an experiencedlawyer may be a better choice to teach gov-ernment, labor relations, or criminal justice,this is your opportunity to make your case.Often, the Ph.D. will be a minimum require-ment, especially at more prestigious colleges,but even they might have a need for a JD.For example, a school of education within auniversity will usually hire only Ph.D. pro-fessors, but the school might have a need fora lawyer/professor to teach the courses per-taining to educational law, which involvesfederal and state constitutions and statutes.

Another document that is usuallyexpected with a cover letter and CV is a“statement of teaching philosophy.” Thestatement of teaching philosophy should notexceed a page in length. It simply articulatesyour vision of the learning process and whatyou seek to achieve in the classroom.Frankly, it probably also functions primarilyas a screening tool to weed out applicantswho can’t write, use bad grammar, or don’tproofread.

My statement of teaching philosophyincluded references to active listening andpositive reinforcement, but focused primari-ly on my use of digital imagery(PowerPoint17) in the classroom to appeal tovisual and abstract learners. I ended thestatement by mentioning my most impor-tant goals in the classroom, instilling respectfor the rule of law and ethical decision mak-ing. There is a wealth of useful informationonline on how to prepare effective state-ments of teaching philosophy.18 At a mini-mum, make sure you ask someone to reviewyour statement to ensure it is reasonablyarticulate and free of typos.

IV. Completing the ApplicationProcess

The final component of your packet willbe letters of recommendation and tran-scripts. Most schools will accept photo-copied college and law school transcripts,while others may request official sealed tran-scripts. You should expect to be asked for aminimum of three letters of recommenda-tion. If you have adjunct experience, lettersfrom your department head or other faculty

22 WINTER 2005

will probably be of greater value than lettersfrom local judges, the mayor, or your seniorpartner. If you have been involved in com-munity service, charitable activities, or per-haps a pro se program, letters regarding thisservice should be included.

Letters should emphasize your teachingexperience, popularity with students, andability to get along well with other people.Search committees are not necessarily look-ing for the “best teacher.” They are lookingfor well-qualified candidates that will fit inand contribute to their departments withoutproblems. A “good colleague” is usually bet-ter than a great instructor who does not getalong with others.

With luck and patience, you should startreceiving routine letters from schools seek-ing voluntary disclosure of your racial, eth-nic, veterans, or handicap status. These formletters often come from university or collegeaffirmative action offices. I filled them inand returned them, for no other reason thanto avoid any possible ripple effects of notsending in the form. Another colleagueadvised me to throw them in the trash. Ifyou are a minority or female, I think thisinformation would certainly be in your bestinterests to provide.19

You will probably also begin to receive agood number of polite rejection letters. Don’tlet this discourage you. Remember, as a JD,you are looking for a teaching departmentwith open-minded faculty willing to consid-er your application despite perceptions youmay lack traditional academic qualifications.Even well qualified Ph.D. candidates nor-mally do not expect more than a handful ofpositive responses from among the dozens ofapplications submitted.

V. Interviewing and Campus VisitsWith some luck, however, the next step

may be a friendly phone call from the chair-person of the search committee, or thedepartmental chair, who will arrange for aphone interview (conference call) with themembers of the faculty search committee.Phone interviews may be the most impor-

tant step in the hiring process. A request fora phone interview means that you (andprobably several other candidates) are quali-fied for the job.

The search committee wants to find outin the phone interview if you will fit in as ateacher and colleague. To prepare, you maywrite out a list of questions with answers tothe usual areas of inquiry. Why do you wantto teach? Where do you see yourself in fiveyears? What would you bring that is uniqueto this school or to the department? Are youwilling to relocate with your family to a dis-tant state? Every phone interview is differ-ent. Some committees focus on classroomexperience, others on scholarship or curricu-lum development. Another committee mayutilize a set of numbered questions withgraded responses for each candidate. It iscertainly helpful, and probably even expect-ed of you, to ask the initial point of contactabout the format of the phone interview inadvance.

When preparing for the phone interview,it is essential to research the department,curriculum, and school. The easiest way todo this is to peruse the college or universitywebsite. Write down names of all facultymembers and review their backgrounds andqualifications. Become familiar with thecourses and think about how you wouldteach them effectively. Review the school’svision statement. Be ready to respond toquestions about accreditation and whetheryou would serve on committees. Things likeyour community service can also be of inter-est to the committee.

If you don’t familiarize yourself with theschool and program in advance, yourchances of moving past the phone interviewwill be seriously diminished. Remember, beyourself, listen carefully to the questions,don’t interrupt, and ask for clarification ifnecessary. Be candid about apparent or per-ceived weaknesses in your application. Makesure you emphasize what you can bring to aprogram that other applicants cannot.

If the phone interview goes well, you canexpect to receive an invitation for a campus

visit within a few days. This should be greatnews for you. Invitations to visit campus arenormally granted only to the final two qual-ified candidates. With regard to travel,unless the campus is nearby, you will bereimbursed for airfare, mileage, and otherreasonable expenses. Campus visits often lastmost of the day and involve several meet-ings, interviews, teaching demonstration, ora presentation of your “current research.”20

On a visit, you can expect to meet withthe department head and other facultymembers in the morning, give a teachingdemonstration,21 then a luncheon, followedby a meeting with the dean. While you areon a campus tour in the afternoon, the fac-ulty search committee is probably meetingwith the department chair to discuss yourcandidacy. Do not expect to be offered a jobon the spot, although it may happen onoccasion. Remember, the other candidatemay not have visited campus. Also, despiteyour bravura performance, formal approvalfor job offers usually requires approval by thedean and provost. Expect delays in thesearch process.

Nevertheless, if during your campus visit,your discussions turn toward salary, benefits,and promotion, there is a better than evenchance you have been selected for the job.No matter what occurs, when you returnhome, a follow-up letter of thanks to thedepartment head is an expected courtesy.Even if the other candidate is offered theposition, if the other candidate declines, awell-timed letter of thanks will not hurt yourcandidacy.

If you have been lucky enough to beinvited on several campus visits, the mostdifficult decision you face may involve thetiming of contract offers. One week you arewaiting for your first offer and the next youmay have two offers with short deadlines foracceptance.22 You may even have campusvisits scheduled for subsequent weeks. Thereare worse dilemmas to be sure, but waitingfor the “better offer” from another school isa fairly hazardous option.

Depending upon your qualifications,

“You will probably also begin to receive a good number of polite rejection letters. Don’t let this discour-age you. Remember, as a JD, you are looking for a teaching department with open-minded faculty will-ing to consider your application despite perceptions you may lack traditional academic qualifications.”

THE NORTH CAROLINA STATE BAR JOURNAL 23

there may or may not be an opportunity tonegotiate salary, benefits, promotions,tenure, moving expenses, or other consider-ations. On the other hand, some offers maybe limited to take-it-or-leave-it. Whateveroccurs, do not be surprised at the brevity ofyour employment contract. Many, if notmost of the terms and conditions of youremployment will be found in the school’sfaculty manual.

VI. SummaryTo summarize, maximize your knowl-

edge, skills, and abilities in your cover letterand CV. Don’t be discouraged by rejectionletters, and apply for as many positions asyou can.23 Finally, be realistic about yourown qualifications. Most lawyers would bewasting time by applying for a faculty posi-tion at the Kennedy School of Government,but there are thousands of universities, col-leges, junior, and community colleges thatneed qualified faculty every year.Somewhere out there lies an opportunity toteach and mentor outside the courtroom orlaw office.

Professor Winn is an associate professor atthe Harry F. Byrd School of Business,Shenandoah University, Winchester, Virginia.He also taught undergraduate law and legalstudies at the United States Military Academy(West Point) from 2000-2005 and post-gradu-ate criminal law and trial advocacy in theLLM program at The Judge Advocate General’sSchool (Army) in Charlottesville, Virginia,from 1993-1996. Professor Winn recentlyretired from active duty with the Army JudgeAdvocate General’s (JAG) Corps.

Endnotes1. Typically, law school faculty are distinguished gradu-

ates of nationally recognized law schools, have servedon law review, have experience as legal clerks, or withprestigious law-firms in a major cities.

2. Salaries vary considerably among public and privatecolleges and by geographic region. A doctoral levelassistant professor at a four-year college can expect tomake between $50,000-$60,000 per year. Data fromTable 4, Average Salary and Average CompensationLevels, by Category, Affiliation, and Academic Rank,2004-05, American Association of UniversityProfessors, Annual Report of the Economic Status ofthe Profession.

3. At a recent conference for political science professorsteaching in college pre-law programs, a lecturerspeaking to a colleague (who is a JD) stated in all seri-ousness that “the law is too important to be taught bylawyers.”

4. A Ph.D. requires between 85 and 90 hours of post-graduate credit (which normally includes credits

earned towards a mas-ters degree). One thirdor more of these creditsare awarded for writinga dissertation.

5. A dissertation is alengthy (often a hun-dred or more pages)writing project basedupon original researchwhich demonstratesmastery in the area ofstudy.

6. There are six geograph-ic regions in the UnitedStates that accredit col-lege and universityhigher education pro-grams: The MiddleStates Association ofColleges and Schools;The New EnglandAssociation of Schools& Colleges; The NorthCentral Association ofColleges and Schools;The NorthwestAssociation of SchoolsAnd Colleges; TheSouthern Association ofColleges and Schools;and The WesternAssociation of Schoolsand Colleges.

7. Criminal Justice pro-grams are usuallyaccredited under theauspices of The Academy of Criminal JusticeSciences (ACJS) while MBA programs may seekaccreditation from The Association to AdvanceCollegiate Schools of Business (AACSB).

8. The Academy of Criminal Justice Sciences (ACJS)actually proposed a requirement that two-thirds ofthe faculty members in an undergraduate degree pro-gram and 90% in graduate programs possess a Ph.D.Part I. C. 4 and 5, proposed ACJS CertificationStandards, 2004.

9. Before enrolling in a graduate online (“distance learn-ing”) program make sure it is properly accredited byan agency accepted by the Council on HigherEducation. For more information visit the council’swebsite at: www.chea.org.

10. A curriculum vitae (usually referred to as “CV”) lit-erally means “course of life.” It is used when applyingfor academic or scientific positions as opposed to aresume.

11. Most academic institutions use MS Word for thistype of correspondence

12. http://chronicle.com/jobs/

13. http://www.asc41.com/dir3/index.html

14. Law enforcement, forensic sciences, and homelandsecurity are currently very popular areas of study incriminal justice programs.

15. Most attorneys are surprised to learn that evidencelaw is often taught outside of law schools by Ph.D.faculty with no litigation experience. It should benoted, however, that dual degree (JD/Ph.D.) holdersare not uncommon in criminal justice programs.

16. Most teaching candidates are screened by faculty

search committees of three or more members whopropose nominees to the department head or deanfor final approval.

17. PowerPoint is a proprietary software program of theMicrosoft Corporation for creating classroom andbusiness presentations.

18. One of the better sources for developing your state-ment of teaching philosophy is the Ohio StateUniversity Faculty & TA Development Center web-site: ftad.osu.edu.

19. Colleges and Universities often have difficulty find-ing qualified women and minority candidates, espe-cially in scientific and technical fields. See New YorkTimes: Little Advance Is Seen in Ivies’ Hiring ofMinorities and Women, Karen W. Arenson, March1, 2005.

20. This usually means your most recent bar journal orlaw review article. You will probably be expected tobe working on some scholarly article or be involvedin some other research project. Current research doesnot have to be a completed law review article, it canbe at almost any stage of development.

21. Normally a guest lecture can be on almost anytopic, although tailoring your presentation to localcourse goals would be a plus in your favor.

22. Because of other pending candidacies and academ-ic deadlines, job offers must normally be accepted ordeclined within seven to ten days.

23. It would not be unusual for even well qualifiedPh.D. candidates to apply (by mail or e-mail) to 60or more colleges and universities and be seriouslyconsidered by no more than five or six schools.

24 WINTER 2005

Gift-giving by agents under a power ofattorney is important in the context of thefederal/state program known as Medicaid,which pays for half of all nursing home care.Gifts or transfers by nursing home residentscan only be made by competent people ortheir properly authorized agents. In additionto “Medicaid planning” to preserve theirassets, nursing home residents are legally per-mitted to provide for certain people, such asa spouse or disabled child.

Powers of attorney often fail for one oftwo reasons. The person signed a statutory“short form” power of attorney with limitedor no gifting authority. Or he or she used anattorney-drafted document that negates theutility of the gift power. Too many attorneys

include “gifting” provisions that are suitablefor the Mercedes owner, when the client isstill paying off a Chevy. In either case, theproblem is only discovered when the princi-pal is no longer competent—and thusunable to cure the problem by executing anew document.1

The first problem can be resolved by anamendment to the North Carolina statutorypower of attorney that broadens the powersin the widely used form. The second is not soeasily solved, but the beginning point isincreasing the knowledge level of lawyerswho do powers of attorney so that theyappreciate the importance of gifting for gov-ernment benefit programs.

The problem typically arises when the

client goes to a lawyer for a will, and learnsabout the benefits of a power of attorney forpossible incapacity. This is most obviouslyuseful for the older client becoming relianton relatives. The power of attorney allowsanother person, the agent or attorney-in-fact, to make financial decisions for theclient, the principal. The agent is a fiduciaryand can only act for the principal’s benefit.

Giving away the principal’s property,especially to the agent himself, is a breach offiduciary duty unless specifically authorized.In most states, the principal may allow gift-giving by simply adding that power. Such“gifting” powers have long been standard ele-ments in the documents drafted for the well-to-do to enable them to preserve wealth for

Gifts with Powers of Attorney—Are We Giving the Public WhatIt Wants?

B Y K A T E M E W H I N N E Y

The word “gift” conjures up a sur-

prise in wrapping paper and ribbon.

Unfortunately, when it comes to

giving gifts under a power of attor-

ney, often the unhappy surprise is

that the gift that is needed cannot

be given.

the next generation by avoiding federal estatetax. But the gift-giving powers used by thewealthy—the “Mercedes” version—are ofteninappropriate for lower- and middle-classclients.

Moreover, transferring real estate by apower of attorney lacking appropriate giftingauthority can be a trap. The transferee doesnot get a good title, so the buyer cannot gettitle insurance. Like the inadequate power ofattorney itself, the problem becomes appar-ent when it is far too late to cure.

North Carolina’s elder law practitionersare beginning to study how the short formcould be amended to offer gifting optionsthat better fit the financial demands thatfamilies encounter. Also, we are getting theword out to practitioners that the giftingpower drafted for the wealthy client mightnot accomplish the goals of their other estateplanning clients.

The Short Form Power of Attorney—Short but Not Sweet.

North Carolina is one of 17 states thatprovide for an optional statutory power ofattorney, known as “the short form.” Theshort form’s extremely limited gift authorityoften precludes families from preservingproperty when the principal needs nursinghome care.

Who uses it? Often, it is the attorney whodoes not do high end estate planning. Or theform is used without a lawyer and isobtained from the internet or computer soft-ware.

The person executing a statutory shortform power of attorney indicates, by initial-izing options, which powers she wants togive the agent.2 These can include real estatetransactions, banking, and other familiar cat-egories.

The gifting options in the short form per-mit:

(14) Gifts to charities, and to individualsother than the attorney-in-fact(15) Gifts to the named attorney-in-factPutting aside whether non-lawyers

understand “gifts to the named attorney-in-fact,” they surely do not realize that thepower in the form is limited by statute togifts “… in accordance with the principal’spersonal history of making or joining in themaking of lifetime gifts.”3 It is hard to imag-ine the client who has a history of givingaway his or her home or an interest in thehome, or other significant assets. But such

gifts are exactly the option that competentpeople often select when faced with theenormous costs of nursing home care. Forthe client who has lost competence, though,it is too late to execute a new power of attor-ney.

For many clients, the attorney’s failure tooffer a broader “gifting power” may be cost-ly. One option is this provision: “I authorizemy agent to transfer my property for thepurpose of qualifying me for governmentalmedical assistance.” The provision can beenhanced by specifying to whom propertytransfers can be made and in what shares.

Nursing Home Care… or “What theClient Least Wants to Talk About”

Nursing homes are an unappealing topic.But given the odds of needing care and thelimited resources of most people to pay,clients executing powers of attorney shouldconsider how they want the agent to proceedif nursing home care becomes necessary. Theclient might well direct that all of herresources be used to pay for her care, untildepleted. No gifting power would be need-ed. But for the client who prefers to passsomething to his family, an appropriate gift-ing power is necessary if the power of attor-ney comes into play.

What are the odds? Most people over 60will need long-term care for some time.Medicare, contrary to widespread belief, cov-ers very little nursing home care. Most care ispaid by private payment (savings or insur-ance) and about half by Medicaid. Two outof three people who enter nursing homes asprivate pay residents exhaust their resourceswithin one year and then rely on Medicaid.

Three aspects of Medicaid must beaddressed if people are to make an informedchoice about allowing gifts to be made withtheir powers of attorney: strict asset limits,estate recovery, and approval of some assettransfers. The person who obtains the statu-tory short form needs a form that includesan option for gifts to achieve eligibility forgovernmental assistance.

First, the asset limits. Consider the widowwho has a home, $50,000, in savings and$1,000 per month income. Medicaid assetlimits mandate that all but $2,000 of the sav-ings must be spent before Medicaid willbegin to pay. In most cases, she is allowed tokeep the home.

Second, what must one know aboutMedicaid’s claims against a person’s estate, or

“estate recovery”? Unlike Medicare or anyhealth insurance you are familiar with, theMedicaid nursing home program essentiallyruns a tab on each recipient. With few excep-tions, the state demands to be repaid. After ayear on Medicaid, in our example the estaterecovery claim would be about $42,000 andafter two years $84,000. Soon there is nohouse or other asset left in the estate. Thispart of the equation can make the most art-fully drafted will merely a futile gesture.

Third, federal Medicaid law allows fami-lies to protect some assets by transferringthem. In particular, it permits transfers to aspouse or a disabled child. A home may betransferred to a caregiver adult child or a sib-ling co-owner. Any asset may be transferredto a trust for the benefit of any disabled per-son under age 65.

An important and common reason toinclude a gifting power is to provide for one’sspouse. To protect the healthy spouse fromimpoverishment, federal law permits a“resource allowance.” If the couple’s assets arein the name of the incapacitated spouse, the“resource allowance” must be re-titled to thehealthy spouse. This can best be accom-plished using a power of attorney with a gift-ing power.

Without a broad gifting power, the fami-ly can seek guardianship. Court supervisionand permission for asset transfers is required.Another option, not limited to married cou-ples, is a special proceeding for approval toadd a gifting power. Both of these procedurescost money and take time. It is a lot to ask offamilies who are already under tremendousstress.

Gift and Estate Tax Considerations areOnly One Factor

The second problem with the giftingpowers found in many powers of attorney isthat they are written for the Mercedes ownerwhen the client drives a Chevy. Federal estateand gift tax considerations should not dictatethe scope of a gifting provision for suchclients. In any event, they need to be bal-anced against the issue of Medicaid.

Many powers of attorney limit the agentto making annual exclusion gifts. These aregifts to individuals up to $11,000 per spouseper person per year, which are excluded fromthe federal gift tax. This amount is not suffi-cient to fund the “resource allowance” for aspouse or to transfer a home to a disabledchild.

THE NORTH CAROLINA STATE BAR JOURNAL 25

Second, some attorneys are concernedthat overly broad gifting powers will exposeclients to federal estate taxes by creating ageneral power of appointment.4 This wouldcause the principal’s estate to be included inthe agent’s taxable estate if he predeceases theprincipal.5 The problem, not widespread, isavoided by requiring written concurrence forgifts to be given by someone other than theagent, typically one of the principal’s otheradult children or by a “special agent.”

Ethical and Policy Issues Large andSmall

Gifting powers raise big issues—from themicro-climate of the attorney-client relation-ship on up to the level of distributive justiceand social needs.

For practitioners, our goal is to providean atmosphere that allows the client to makefree choices regarding the gifting power. Weask whether the older person is being pres-sured to protect assets for their family.Careful practitioners assess the familydynamics, meeting privately with the olderclient to elicit her goals.6 Some attorneys willnot accept payment of fees from the client’sadult children, although the rules allow this.Procuring the document or taking the leadin client meetings to control the client areindicia of undue influence.

A broad gifting power may open the doorto exploitation, especially of marginally com-petent older clients.7 Mandatory disclosurelanguage on the form would address this tosome extent. Also, if the gifting language isfree of jargon, people will better understandthe import of the power being granted.

Another concern for the practitioner isthat a broad gifting power allows an agent tofrustrate the principal’s testamentary goals bydivesting assets differently. There are solu-tions. One is to draft the gifting provision torequire gifts in accordance with the princi-pal’s will or with intestacy laws. Another is torequire consent of all adult children to majorgifts.

Some will oppose broader gifting optionsbecause they feel that Medicaid planningitself is against sound public policy, whetherby a competent person or by his agent. Theymake two arguments.

First, they argue that assisting clients inbecoming Medicaid eligible is unethical. Aprogram intended for the poor, they con-tend, is being manipulated so that the mid-dle class can shift their responsibilities to the

public. Elder law attorneys would respondthat we have the duty to present legaloptions. Certainly tax lawyers would notwithhold advice from their clients to keepthe federal deficit from growing. In anyevent, most attorneys find that they areassisting families with modest means toavoid the rapid impoverishment that resultsfrom a $60,000 annual nursing home bill.8

A similar argument is that gifting in pow-ers of attorney to obtain governmental bene-fits undercuts personal responsibility andplanning. Of course, that is true of all insur-ance, private as well as public. But mostlong-term care is being provided free by fam-ily members, strong evidence that personalresponsibility and ethics are alive and well.And increasing numbers of people are plan-ning ahead by purchasing long-term careinsurance, though it is too expensive formany people.9 While a comprehensive dis-cussion with the client should include men-tion of the insurance option, this product isextremely difficult to assess. Moreover, thosewith chronic health problems are told thatthey need not apply.

Rather than question the ethics ofMedicaid estate planning, perhaps we shouldask whether our country’s health care systemitself is ethical or even logical.10 Medicarecovers expensive surgery, but not the devas-tating costs of chronic illnesses and strokes.Are these priorities in line with our moralvalues? Should we be looking at ways to eth-ically spread the tremendous burdens of car-ing for the disabled elderly? The desire toleave a legacy to one’s children and grand-children is a universal desire, not limited tothe wealthy.

Proposed Changes The North Carolina short form power of

attorney is overdue for changes to betterserve the public’s needs. An option for giftsto obtain governmental assistance should beconsidered. And the estate and gift taxrestrictions that apply to the few should notbe thoughtlessly included in the powers ofattorney of the vast majority of people. Thesechanges would be two welcome gifts for thepublic.

Kate Mewhinney is a Clinical LawProfessor at Wake Forest University School ofLaw, and the managing attorney of its ElderLaw Clinic. She served as chair of the NCBAElder Law Section in 2003-2004, and is a fel-

low of the National Academy of Elder LawAttorneys. Mewhinney is certified as an ElderLaw Attorney by the National Elder LawFoundation and is also a Certified NCSuperior Court Mediator. Information forpractitioners about elder law issues can befound at www.law.wfu.edu/eclinic .

Reprinted with permission from 35 WakeForest Jurist Magazine (Summer 2005) 14-17.

Endnotes1. The author thanks Karen W. Neely for research when

she was a student in The Elder Law Clinic, and elderlaw attorney Ron M. Landsman, of Rockville,Maryland, for critiquing a first draft.

2. A colleague describes seeing an attorney-prepared shortform on which not a single power had been initialed,so the document accomplished nothing for the client!

3. N.C.G.S. § 32A-2 (15).

4. IRC § 2041.

5. In many elder law cases, gift and estate taxation will notbe relevant since the assets of both the principal and theagent are less than the exemption equivalent of the uni-fied credit. Andrew H. Hook, “Durable Powers ofAttorney: They are Not Forms!” National Academy ofElder Law Attorneys’ Symposium 2000, pp 1-51, 13.

However, some argue that an unlimited gifting powerdoes not risk creating a general power of appointmentbecause the creator of the power must join in makingthe gift, at least by failing to revoke the power. See V.Tate Davis, “Basics of Elder Law,” Potpourri for the GP(NCBF CLE), 4/29/05, fn. 50.

6. An NC State Bar ethics opinion provides that lawyersmay not prepare a power of attorney for the benefit ofthe principal at the request of another individual orthird-party payer without consulting with, exercisingindependent professional judgment on behalf of, andobtaining consent from the principal. 2003 FEO-7.Another tool for attorneys is a recent ABA brochure,“Understanding the Four C’s of Elder Law Ethics.”www.abanet.org/aging/lawyerrelationship.pdf

7. Timothy Takacs and David McGuffey, “Revisiting theEthics of Medicaid Planning,” NAELA Quarterly,Summer 2004, pp. 29-37, 33.

8. Ellen O’Brien, “Issue Brief: Medicaid’s coverage ofnursing home costs: Asset shelter for the wealthy oressential safety net?” Georgetown University HealthPolicy Institute, Long-Term Care Financing Project,May 2005; “Long-Term Care Financing: GrowingDemand and Cost of Services are Straining Federal andState Budgets,” U.S. GAO, 4/27/05, GAO-05-0564T,p. 7. Charles P. Sabatino, “Debunking the Myths ofMedicaid,” Legal Times, 1/26/04, p. 25.

9. Fifteen percent or less of middle-aged or elderly personsin North Carolina might conceivably purchase long-term care insurance, based on wealth and income lev-els necessary to afford such a policy. Donald H. TaylorJr., Ph.D.; “Alzheimer's Disease and the FamilyCaregiver: The Cost and Who Pays?” NC Med Jl,Jan./Feb. 2005, Vol. 66, No. 1, 18-24, 24.

10. Germany and Japan have universal long-term careinsurance. Taylor, supra note 9 at 22; “InternationalApproaches to Long-Term Care Financing andDelivery,” Global Report on Aging (AARP), Winter2004, pp. 5.

26 WINTER 2005

THE NORTH CAROLINA STATE BAR JOURNAL 27

Upon his death in 1999, Blackmun lefthis voluminous collection of papers—bothofficial and personal—to the Library ofCongress. In 2004, under the terms of his

will, the collection was opened up to thepublic. In her new book Becoming JusticeBlackmun: Harry Blackmun’s SupremeCourt Journey, veteran Supreme Court cor-

respondent Linda Greenhouse of the NewYork Times has published the first biogra-phy of Justice Blackmun that draws fromthese papers. The result is a fascinating,

Becoming Justice Blackmun:Harry Blackmun’s SupremeCourt Journey

A B O O K B Y L I N D A G R E E N H O U S E , R E V I E W E D B Y M A R K A . D A V I S

Few justices on the United States

Supreme Court ever changed over the

course of their tenure as did Harry

Blackmun. Dismissed by many

soon after his appointment as merely a conservative clone of his childhood

friend, Chief Justice Warren Burger, by the time of his retirement from

the Court he was perceived as a reliable member of the Court’s liberal

wing. Simultaneously a hero and a villain to millions based on his

authorship of Roe v. Wade, Blackmun became the living embodiment of

the landmark (and controversial) 1973 Supreme Court decision articulating a right to an abortion under the United States

Constitution.

highly readable account of the life of one ofthe Twentieth Century’s most interestingjurists.

Following his graduation from HarvardLaw School, Blackmun tried his hand atprivate practice and achieved modest suc-cess before becoming in-house counsel forthe Mayo Clinic, a position he filled fornine years. In 1959, he was appointed byPresident Eisenhower to the United StatesCourt of Appeals for the Eighth Circuit.Eleven years later, he was nominated byPresident Nixon to serve on the SupremeCourt, and he was easily confirmed.

Blackmun was not Nixon’s initial choicefor the appointment, his nominationoccurring only after the nominations ofClement Haynsworth and HarroldCarswell failed to pass in the Senate.While always sensitive to personal slights(real or imagined), Blackmun maintained aself-deprecating sense of humor on thisissue, referring to himself for the rest of lifeas “Old Number 3.” When AnthonyKennedy joined the Court in 1987 follow-ing the failed nominations of Robert Borkand Douglas Ginsburg, Blackmun wel-comed him into the “Number 3 club.”

At the time Blackmun joined theCourt, Burger had recently been namedChief Justice by Nixon. Much has beenmade of Blackmun’s lifelong friendshipwith Burger and their relationship is arecurring theme in Greenhouse’s book. Asboys, they lived on the same street inMinnesota and first met in kindergarten.For the first few years that Blackmun wason the Supreme Court, the two votedtogether so frequently that they weredubbed “the Minnesota twins.” By 1986(Burger’s last year on the Court), their rela-tionship had fractured both personally andprofessionally to the point that they didnot agree on much of anything. Over theyears in which they served together,Blackmun broke with Burger on manyimportant issues including the extension ofconstitutional protection to commercialadvertising, affirmative action, and theCourt’s response to Watergate.

Prior to Roe, Blackmun’s early opinionsas a justice were relatively noncontroversial.A rare exception was his opinion in UnitedStates v. Kras in which he upheld a consti-tutional challenge to the filing fee atten-dant to a bankruptcy petition. He dis-missed the claim of the indigent plaintiff,

writing that the litigant could pay the finein weekly installments for “less than theprice of a movie and little more than thecost of a pack or two of cigarettes.” Thisstatement was perceived by some as evi-dencing a callous disregard for the plight ofthe poor. Nevertheless, he remained large-ly unknown outside legal circles.

Everything changed once he wasassigned to write the majority opinion inRoe striking down a statute making it acrime to perform abortions except to savethe life of the mother. Greenhouse specu-lates that Burger’s decision to assignBlackmun the opinion was based onBurger’s belief that Blackmun would writean opinion invalidating the statute on nar-row grounds. If so, Burger was in for arude awakening.

Upon receiving the Roe assignment,Blackmun immediately contacted theMayo Clinic librarian and asked for bookson the history of abortion. After monthsof painstaking research and writing, heproduced a 50-page opinion which ana-lyzed in great length the history of abortionalong with an exploration of various med-ical issues relating to the procedure. Inessence, his opinion divided a woman’spregnancy into trimesters, setting constitu-tional restrictions on a state’s ability to out-law abortions during the first twotrimesters. Interestingly, Blackmun’s notesshow that even he conceded that histrimester approach was arbitrary.

Blackmun prophetically predicted thatthe Court would be excoriated for the deci-sion. The day Roe was announced, formerPresident Lyndon Johnson’s death domi-nated the news. However, Roe was notignored. Several days later, Blackmun wastraveling to Iowa for a speech and wasforced to obtain police protection due tothe presence of antiabortion protestors.Thus began the after effects of Roe whichBlackmun would have to live with for therest of his life.

Over the years, Blackmun received tensof thousands of pieces of hate mail regard-ing Roe, most of which he read and all ofwhich he kept. His opinion was mostheavily criticized based on the widespreadperception that it rested almost exclusivelyon historical and medical factors and that itannounced a new constitutional rightdespite the absence of any clear constitu-tional language expressly protecting the

right to an abortion. As Greenhousepoints out, Blackmun’s focus appeared tobe on ensuring that a woman’s doctor befree to give his or her best medical adviceregarding the abortion decision withoutfear of criminal prosecution. ToBlackmun, Roe was—at its core—aboutthe rights of doctors at least as much as itwas about the rights of women.Nevertheless, Roe made Blackmun a heroof the feminist movement.

In the decades following Roe, Blackmunfound himself consumed by the decisionand obsessed with ensuring its survival.While he had not sought the onus of writ-ing the opinion, he recognized that it wasthe centerpiece of his judicial legacy.

During the last half of his tenure on thecourt, Blackmun continually fretted aboutthe possibility of Roe being overturned. Tohis great chagrin, several cases began chip-ping away at Roe’s foundation. However, in1992, the moderate wing of the Courtjoined forces in Planned Parenthood v.Casey to definitively reject the argumentthat Roe should be overruled. While thereasoning of Casey was not completelyfaithful to the original Roe opinion,Blackmun was nevertheless greatly relievedthat the basic right to abortion had beenpreserved.

Another theme explored by Greenhouseis Blackmun’s evolving views on the deathpenalty. While he was never a proponentof capital punishment in his personalviews, Blackmun as a judge upheld thedeath penalty on a number of occasionsbefore ultimately concluding near the endof his career that the death penalty—whileconstitutional in the abstract—could neverbe fairly applied. He famously declared ina dissenting opinion during the 1993Term: “From this day forward, I no longershall tinker with the machinery of death.”From that point on, he never voted touphold the death penalty again.

His sympathy for the underprivileged insociety was nowhere more evident than inthe Court’s 1989 decision in DeShaney v.Winnebago County Department of SocialServices. In that case, the Court’s majorityrejected the notion that a county depart-ment of social services had an affirmativeduty under the Constitution to protect aboy who was brutally murdered at thehands of his father. “Poor Joshua” beganBlackmun’s heartfelt dissent in which he

28 WINTER 2005

THE NORTH CAROLINA STATE BAR JOURNAL 29

lamented the majority’s opinion.Greenhouse recounts numerous pas-

sages from Blackmun’s journals and privatecorrespondence. A habitual chroniclersince childhood of events in his life,Blackmun wrote down details about notonly his thought processes, but also con-cerning his insecurities and perception ofthe Court. Blackmun was less than giddyabout his initial appointment, referring toit in his private notes as a “crisis” and stat-ing that the “roof has caved in.” Indeed,upon first being offered the position byNixon, Blackmun made a list of the prosand cons of accepting the appointment.Later, in assessing his years on the SupremeCourt, he wrote that “[i]t has not beenmuch fun.”

Among his habits was jotting downnotes about lawyers during oral argumentswhich addressed not only their skill asadvocates, but also their appearance. Inone such entry, he wrote that future JusticeRuth Bader Ginsburg was clad “[i]n red &red ribbon today.”

The book offers a number of other deli-

cious tidbits, including the fact that themember of Nixon’s staff who was the pointperson for Blackmun’s nomination was ayoung lawyer named William Rehnquist.In a memorandum to Nixon, Rehnquistwrote that Blackmun “can be fairly charac-terized as conservative to moderate” oncriminal and civil rights issues. He furtherdescribed Blackmun overall as “more con-servative than liberal.” Greenhouse alsoquotes from notes of a meeting withBlackmun in which Nixon—while dis-cussing public service—made the poignantobservation that “one is either honest ordishonest in government.”

The primary defect with Greenhouse’sbook is simply that it is too short. Twohundred fifty-one pages is simply notenough to adequately chronicleBlackmun’s career on the SupremeCourt—which spanned from Nixon’s pre-Watergate presidency through BillClinton’s first term and encompassed anumber of the most significant cases of thelast 35 years. Nevertheless, BecomingJustice Blackmun is must reading for any-

one interested in the inner workings of theSupreme Court or the life of one of itsmost intriguing justices.

More than a decade after Blackmun’sdeparture from the Court, a SupremeCourt nominee’s fidelity to Roe remains alitmus test for many special interest groupsand senators. This perhaps is his ultimatelegacy.

Mark A. Davis is an attorney in theRaleigh office of Womble Carlyle Sandridge& Rice, PLLC.

About the book’s author: LindaGreenhouse has covered the Supreme Courtfor The New York Times since 1978 and wona Pulitzer Prize in 1998 for her coverage ofthe Court. She appears regularly on the PBSprogram Washington Week and lectures fre-quently on the Supreme Court at colleges andlaw schools. She graduated from RadcliffeCollege and holds a master of studies in lawfrom Yale Law School.

Times Books/an imprint of Henry Holtand Company, May 2, 2005, 288 pages,ISBN 0-8050-7791-X, $25.00

30 WINTER 2005

Q: What can you tell us about yourroots?

I am a Charlotte native, born andraised. I graduated from J.H. Gunn HighSchool, a community school in the EastMecklenburg neighborhood where I grewup. I am the youngest of four children (twoboys; two girls) born to Grover and LouiseMurphy. My paternal grandfather (AlonzoMurphy) owned a small farm in the areawhere I grew up. I spent a great deal oftime with him before he died in the early60s. It was from him that I learned what itmeant to be a responsible adult. I dearlyloved and respected my grandfather. Tothis day, I own the land where he lived andfarmed until his death.

Q: When and how did you decide tobecome a lawyer?

In 1962—at age 14—to complete aclass project, I had to interview theMecklenburg County Sheriff. While Iwaited in an outer office to meet with thesheriff, a tall, well dressed, well spokenblack man entered the office. The deputiesgreeted him warmly and respectfully. Oneof the deputies promptly alerted SheriffDon Stahl that he had a visitor—not me.The sheriff emerged from his inner officeimmediately, acknowledged the man, andinvited him inside. I thought tomyself…this man must be someone specialto receive that kind of greeting from thesheriff himself. I later learned from one ofthe deputies that the man was a lawyer—Charlie Bell. I was hooked. It was at thatvery moment that I knew I wanted to be alawyer.

Q: What is your practice like now andhow did it evolve?

My practice is principally criminal

defense work. After lawschool my original planwas to join a firm andpractice criminal lawwith another classmatein his brother's firm inChapel Hill. On reflec-tion, I decided the bet-ter course would be toget some experiencebefore unleashing all ofthat book learning onsome unsuspectingclient who perhapsunwittingly placed hisfreedom in my novicehands. And, what betterway to get that experi-ence without sacrificingsome poor soul to jailthan as a prosecutor.The worst thing thatwould happen if I madea mistake was thatsomeone would not goto jail. After five years of prosecuting—fin-ishing with a two-year stint as a career crim-inal prosecutor—I went into private prac-tice. In 1989, Ron Chapman and I started aseparate practice—Murphy & Chapman,PA—where I have remained to this day.

Q: If you had not chosen to pursue acareer in law, what do you think youwould have done for a living?

All during high school, I fancied myself amathematician and loved the subject. Evenwhen I entered Davidson College as a fresh-man, my intention was to major in math,then go to law school. The back-up plan wasto get a degree in architecture if I did not getinto law school. My first semester calculusprofessor quickly disabused my mind of the

notion of becoming a mathematician.

Q: How and why did you becomeinvolved in State Bar work?

For six years before running for a positionas a State Bar Councilor, I served on theMecklenburg County Bar GrievanceCommittee, and for a term on the board ofthe local bar. I thoroughly enjoyed the work.Karl Adkins and Ron Gibson were the firsttwo black attorneys from Mecklenburg to beelected to the council in the early 80s. By thetime Karl's term expired, Ron Gibson hadalready left the council and there was noother black attorney on the horizon whoseemed interested in succeeding Karl. Ijumped at the opportunity to serve my pro-fession at the state level and, fortunately, was

An Interview with Our NewPresident—Calvin E. Murphy

THE NORTH CAROLINA STATE BAR JOURNAL 31

The Publications Committee of the Journal is pleased toannounce that it will sponsor the Fourth Annual Fiction WritingCompetition in accordance with the rules set forth below. Thepurposes of the competition are to enhance interest in the Journal,to encourage writing excellence by members of the bar, and to pro-vide an innovative vehicle for the illustration of the life and workof lawyers. If you have any questions about the contest, please con-tact Jennifer Duncan, Director of Communications, NorthCarolina State Bar, 6568 Towles Rd., Wilmington, NC, 28409;ncbar@bellsouth.net; 910.397-0353.

Rules for Annual Fiction Writing Competition

The following rules will govern the writing competition spon-sored by the Publications Committee of the Journal:

1. The competition is open to any member in good standing ofthe North Carolina State Bar, except current members of thePublications Committee. Authors may collaborate, but only onesubmission from each member will be considered.

2. Subject to the following criteria, the article may be on anyfictional topic and may be in any form (humorous, anecdotal,mystery, science fiction, etc.). Among the criteria the committeewill consider in judging the articles submitted are: quality of writ-ing; creativity; extent to which the article comports with the estab-lished reputation of the Journal; and adherence to specified limita-tions on length and other competition requirements. The com-mittee will not consider any article that, in the sole judgment ofthe committee, contains matter that is libelous or violates accept-ed community standards of good taste and decency.

3. All articles submitted to the competition become property ofthe North Carolina State Bar and, by submitting the article, theauthor warrants that all persons and events contained in the arti-cle are fictitious, that any similarity to actual persons or events ispurely coincidental, and that the article has not been previouslypublished.

4. Articles should not be more than 5,000 words in length andshould be submitted in an electronic format as either a text docu-ment or a Microsoft Word document.

5. Articles will be judged without knowledge of the identity ofthe author’s name. Each submission should include the author’sState Bar ID number, placed only on a separate cover sheet alongwith the name of the story.

6. All submissions must be received in proper form prior to theclose of business on May 26, 2006. Submissions received after thatdate and time will not be considered. Please direct all submissionsto: Fiction Writing Competition, Jennifer Duncan, 6568 TowlesRd., Wilmington, NC, 28409; ncbar@bellsouth.net.

7. Depending on the number of submissions, the PublicationsCommittee may elect to solicit outside assistance in reviewing thearticles. The final decision, however, will be made by majority voteof the committee. Contestants will be advised of the results of thecompetition. Honorable mentions may be announced.

8. The winning article, if any, will be published. The commit-tee reserves the right to edit articles and to select no winner and topublish no article from among those submitted if the submissionsare deemed by the committee not to be of notable quality.

We want your fiction!Historical Fiction Romance

International Espionage Humor Science Fiction

Fourth Annual Fiction Writing Competition

Deadline is May 26, 2006

elected.

Q: What has your experience on theState Bar Council been like? What hassurprised you most? What has pleasedyou most? What has troubled youmost?

Without question, my work at the StateBar has been the most rewarding of my pro-fessional life. I am not sure what I expectedwhen I arrived there, but what I found was acadre of the most committed, respected, andtalented lawyers in the state. Most surprisingwas the level of professionalism that Iencountered. Lawyers—noted for holdingstrong beliefs and opinions—were morethan willing to hear opposing points of viewand change their positions in the light ofsound judgment and reason. Still a source ofconcern to me is the absence of ethnic, racial,and gender diversity on the council. There ismuch work to be done in that regard.

Q: Prior to becoming an officer youserved as chair of the GrievanceCommittee. What was that like?

That was an eye opener. During my termas chair, the State Bar received, on average,between 1900 and 2000 grievances eachyear. Although 80-85% were dismissed for

failure to allege an actionable violation ofthe Rules of Professional Conduct, therewere still too many. I felt it was my challengeto do something to stem that number.Earlier, the Bar had implemented the ClientAssistance Program, but we had not devel-oped sufficient data to determine the directimpact the program was having on thenumber of grievances filed. It was clear,however, that the rise in grievances taperedwhen compared with the rise in the numberof lawyers in the state.

Q: Last year, while serving as the StateBar's president-eelect, you wereappointed to chair a special committeeto look into the State Bar's handling ofa controversial disciplinary caseagainst two prosecutors who wrongfullywithheld evidence from the defense ina capital case. Tell us about that expe-rience and what you learned from it.

The Disciplinary Review Committee wascharged with reviewing what happened inthe handling of that situation to determinehow we might improve the State Bar's disci-plinary process. We were not charged withcorrecting any wrong, or perceived wrong,that occurred during the handling of theunderlying case against the two prosecutors.

It was a historic undertaking in the sensethat this was the first time in the history ofthe State Bar, at least to my knowledge, thatwe opened the disciplinary process to publicscrutiny. There had been a great hue and cryfrom the media and from segments of thebar, particularly from the criminal defensebar, that, generally, the State Bar lawyers hadfailed to investigate adequately the casebefore trial and had failed to prosecute withsufficient zealousness, notwithstanding thefact that the Disciplinary HearingCommission had found in favor of the StateBar concerning three out of four violationsthat had been alleged in the complaintagainst the two prosecutors. It became evi-dent to me early on that, because we are per-mitted to regulate ourselves as a profession,the appearance of how we do things can bejust as important as we do them. On thecommittee were some of North Carolina'seducational, political, legal, and media lumi-naries. The committee produced a finalreport containing a number of recommen-dations that the Bar has already begun toimplement. I was most pleased that the finalreport was by consensus; there was nominority report. All of the committee’s meet-ings were open to the public, and the finalreport, along with all witness interviews,

32 WINTER 2005

With his daughter, Sommer Joy Murphy, looking on, Calvin Murphy is sworn in as president of the State Bar by Chief Justice I. Beverly Lake Jr.

were published on the State Bar's website.

Q: Do you think lawyers can be trustedto regulate themselves? Is our systemseriously flawed? Is there anythingabout it that you would like to seechanged?

I honestly believe that the lawyers of thisstate do an exceptional job of self-regulation.We have public members who serve on theGrievance Committee, and have for manyyears. In addition to serving two terms aspresident, I served on the GrievanceCommittee as a lawyer-member for sevenyears. On many occasions, the discipline thatlawyer-members felt was appropriate in a par-ticular situation was much more severe thanthe public members felt was called for. Myperception is that lawyers often tend to beharder on their own than others might be. Ihave yet to witness an instance when "crony-ism" or any other such influence was a factorthat affected the outcome of a disciplinarymatter. That the State Bar has willinglyopened its disciplinary system to publicinspection this past year suggests to me that ifthere are flaws in the system, the State Bar isnot afraid to have someone point out that"the Emperor has no clothes" and to respondin an appropriate way. I do not believe thesystem is seriously flawed. And, in those areaswhere the need for change has been identi-fied, the Bar has responded appropriately.

Q: You're only the second African-American to be chosen as the presi-dent of the North Carolina State Bar.In your mind, how significant is that?Are we anywhere near where we oughtto be as a profession as far diversity isconcerned?

There are roughly 20,000 lawyers in thisstate. Although the State Bar has neversought to capture or maintain data regardingrace and gender of North Carolina lawyers, Ithink it is fair to say that minorities areunderrepresented in the general populationof lawyers when compared to their presencein the state. The number of female lawyers isgrowing rapidly. According to my daughter,a first year law student at North CarolinaCentral University School of Law, over 60%of the students in her class are female, sug-gesting perhaps that the number of womenlawyers in the profession is growing dispro-portionately to their male counterparts.Although statistically small now, the number

of Hispanic and Asian attorneys in NorthCarolina is growing. And, those numberswill only increase. Currently, we have onlythree black councilors (5% of the council)and seven female councilors (about 12%) ofa total of 55 councilors for the state.Hispanics and Asians are currently unrepre-sented on the council. We can do better; wemust do better. Black, female, Hispanic,Asian, and other minority lawyers must bewilling to make the sacrifice and participatein local bar elections, and local bars mustmake clear that participation by diversegroups is important to the overall health andwelfare of the profession. There is much tobe done to make our Bar more reflective ofthe community we serve.

Q: What in your opinion is the greatestchallenge facing the legal profession atthis time? What can the State Bar dothat would make a difference?

In my installation speech, I said that Iintended to make professionalism a focalpoint of my administration. Unfortunately,the public's perception of lawyers remainsone of the profession's greatest challenges. Asa state agency the Bar has the daunting taskof regulating lawyers and protecting the pub-lic from those who lose sight of their callingor of their duties of loyalty and service totheir clients, to the court, or to the profes-sion. And service should be the clarion call toall of us, for it is lawyers who stand tallbetween the citizenry and the excesses andoverreaching of government. It is lawyerswho help ensure that the least and greatest ofour citizens enjoy the guarantees of life, lib-erty, and the pursuit of happiness assured tous by the Constitution of this great nation.The orderly administration of the law is thesingle-most important deterrent to outrightanarchy in our society. And, the greatdefenders of that order are invariablylawyers. With such awesome power at theirdisposal, lawyers have an obligation and dutyto conduct themselves in such a way as tocommand honor and respect for themselves,for the law, and for the institutions of justice.The way we conduct ourselves in court,before the public, and with each other is per-haps the single most important aspect ofwho we are. It is the measure by which we,and the profession, are judged. Being goodstewards of the law means that how we con-duct ourselves is just as important as theservice we provide. It is a charge we cannot

afford to under serve or take lightly.

Q: Tell us a little about your family?I have two children, a daughter-in-law,

and one grandson, all of whom I am enor-mously proud. My daughter, a licensed secu-rities broker, is now a first year law student atNorth Carolina Central University School ofLaw. She called a few days ago elated that she"aced" her first law school exam. My son isone of Atlanta's finest, having just complet-ed rookie school this year. He now works asa line officer with the Atlanta PoliceDepartment. His wife is a stay-at-homemom to my nine-month-old grandson,Caleb Hunter Murphy. I have three siblings:a sister who lives in Charlotte not far fromme, a brother and his wife in Miami, Florida,and a sister and brother-in-law in Baltimore,Maryland. We are all very close to each other.

Q: What do you enjoy doing when youare not practicing law or working forthe State Bar?

Actually, there is very little time for muchelse. Occasionally, I get a chance to go white-water rafting—one of my passions. And Ienjoy travel. Last year I spent two weekscavorting about London, Barcelona, andParis with my daughter. If my schedule willpermit, I intend to arrange a trip to Africasoon. I have heard that an activity is workonly if you would really rather be doingsomething else. It would be hard to convinceme that Michael Jordan "worked" every dayon the basketball court. I love practicing lawand I find great enjoyment in the work of theState Bar. Despite the rigorous schedule thatI keep, both pursuits bring me a great deal ofsatisfaction and pleasure.

Q: How would you like to be remem-bered by the next generation oflawyers?

It would be nice to be remembered, peri-od, if just by name. But that may be asking alot. The point I think I want to make now,and to have all lawyers remember, is that whatwe do as individual lawyers may be shapingthe ideas, dreams, and aspirations of futurelawyers. I doubt that Mr. Bell ever knew whatimpact he had on the direction of my life. Weshould be careful to make and leave positiveimpressions in our personal, professional, andpublic lives. I hope that I have made a positivedifference to someone on my journey throughthe profession…and through life.

THE NORTH CAROLINA STATE BAR JOURNAL 33