Photo by Ken Richardson.
It is not exaggeration to call Joan Lukey the doyenne of the Boston Bar, and she has few equals in the U.S. in experience in big jury cases. A past president of the American College of Trial Lawyers, and the first woman to hold the position, she spent nearly 30 years as a partner at WilmerHale before joining Ropes & Gray in 2008 and then Choate Hall & Stewart in October 2014 to head the firm's complex trial and appellate group. Her victory for Patricia Cornwell before a jury last year, with a $50.9M judgment against the firm that managed the author’s finances, was one of the most high profile trials of 2013. (The 1974 Boston College Law School graduate may have to do it again, now that the presiding judge on the case granted a motion for a retrial.)
Lawdragon: You’ve had a well-chronicled and high-profile 30-plus year career with two of the country’s top law firms. What were your goals when you first set out to become a lawyer and so far have you gotten what you wished for?
Joan Lukey: Interestingly, when I first started out, I knew I wanted to be a trial lawyer. In fact, I never had the goal in mind of simply being a lawyer. I always wanted to be a trial lawyer. In that sense, certainly, I’ve satisfied my goals and been very pleased with my career. Somewhere along the line, I developed the realization that I would like to have a period in public service … and it never happened. You know, opportunities were presented to me to be a judge, or to take appointments as counsel to various legislative committees and they always seemed to come at the wrong time in my life.
The other day I was looking back, cleaning out some files, and I found a letter from many years ago from Deval Patrick, who is now the governor of Massachusetts, and he was then chairing the judicial nominating committee. He wrote me a letter saying “I really wish that you would reconsider in telling us that this isn’t the time for you to become a judge, because someday you’re going to look back and say ‘Oh, wait a minute, I let the time go by,’ “ and in essence, he’s right. … I don’t think that being a judge was the answer for me, but I wish I had taken time out to do some period in public service.
LD: You’ve have served twice, though, as a Massachusetts Special Assistant Attorney General. Can you tell me what you were involved in specifically? And is it too late, really, to go to public service?
JL: Maybe not, but for the most part, ours is a very youth-oriented society, so I think it would be more difficult at this point to move into a position in the public sector, though maybe not impossible. But … the two stints as Special Assistant Attorney General? One of them is very interesting, the other is really somewhat routine for a trial lawyer. I’ll take the latter first, because it was the most recent and that was in 2008 and ’09 while I was here at Ropes and I was simply representing the commonwealth in a complicated case that related to air rights in connection with the Big Dig when [inaudible 00:04:17], so it was a case of first impression and they decided to go outside the Attorney General’s office to have it handled. Interesting legal case, but again, routine work for a trial lawyer.
The other is more interesting because I was representing the Secretary of Health and Human Services and the Governor of Massachusetts, then Michael Dukakis, who of course, subsequently became an unsuccessful presidential candidate. The issue had to do with foster care rules and regulations in Massachusetts, but the specific issue was whether the commonwealth could claim executive privilege for the governor and the secretaries of the various agencies – his cabinet post position. He wanted to establish that there was executive privilege as there is for the president of the United States and as some states have recognized for their governors.
It was a very, very interesting case. We ultimately lost it, but it was still one of the most fascinating experiences of my professional career and it developed in me an academic interest in the issue of executive privilege about which I’ve written and spoken several times in the many years since that. That was in the late 1980s.
LD: It’s been a pretty relevant issue in a number of presidencies, for certain.
JL: Well, it has; and I wrote a piece back in 2004 that was published by the Washington Post on the 4th of July criticizing the U.S. Supreme Court for extending the concept of executive privilege. Up until that date, executive privilege had been limited to matters of international relations or homeland security and they extended the doctrine, as if it were routine, to the Energy Council that the White House established with Dick Cheney at the helm and I thought that was wrong.
The joke at that time was that I was working on John Kerry’s presidential campaign as a fundraiser and he had also written an op-ed for the Washington Post that was being published on the 4th of July … and they treated mine as an in-depth piece. It was three-quarters of the page and his appeared as a quarter-page underneath mine.
LD: Have you had cause to chat about the treatment with John since?
JL: We talked about it at the time. We both thought it was very funny.
LD: Along the way, who in the legal profession would you say had strong influences on you and why?
JL: There are so many people, but I guess there are a few who stood out for me. One is our retired Chief Justice Margaret Marshall. She and I actually became friends while we were adversaries when she was in private practice and I was representing a Hong Kong based distributor of a particular computer product and she was representing the computer company. We needed to take depositions in the Far East and spent two weeks over there. I brought my daughter and someone along as a nanny to take care of her and Margie actually ended up taking care of Heather a couple of times on the trip so I could go sightseeing.
We became very close friends and then as she moved on in the world, when she was General Council at Harvard, she broke all tradition and hired me to represent the law school in a piece of tenure litigation. I did not go to Harvard, that’s the breaking of tradition part – I went to Boston College. She was always very supportive of my career and the friendship grew and she remains to this day a very close friend and has been a wonderful role model, even though she’s only a few years older than I am.
I would also cite Jack Curtin, who died within the last few months. He’s former President of the ABA, but started his Bar Association career with the Boston Bar Association where he was president and was one of the people who persuaded me that it was important to be part of the association. I became one of his successors as president and he just generally taught me about the importance of giving back, so he meant a whole lot to my career, as well.
I think those are the two people I would cite. Obviously, within the firm in which I grew up, Hale and Dorr, I had fabulous mentors, like Jim St. Clair and Owen Todd, who professionally were very important to my career, much in the way that Jack and Margie were important in the areas beyond the pure practice of law.
LD: You tried more than 90 cases in front of juries. How do you think the evolution of sophisticated jury selection techniques over the years has affected the just resolution of cases?
JL: I used to feel that there wasn’t a lot of benefit to using jury consultants. I thought that there was more to be gained from good instincts and a lot of experience with juries that would then bear on your selection process. I’ve moved on that. I think a really good jury consultant can be very important, because it is in fact true that there are certain categories within our society – and we all fall into a variety of categories, by gender, by background, by religion, by education – that affect how we think and we don’t even realize we’re being affected. And the jury consultants are extremely helpful in identifying what the factors are in a given case that may be affected positively or adversely, because your jurors do fall into various categories.
I have found that relying on my instincts from time to time has not been good. I’ve made mistakes … I would say, however, that at the end of the day, it’s impossible to know what’s in another person’s mind or what is going to influence them, so jury selection, while very important to the process, is a lot less important than appropriate and persuasive presentation of the case.
You can be told that there’s a certain kind of case where you don’t want someone with a college education, that they will have a certain predisposition, but if you present your case in the correct way and you have a judge that gives the charge about the jury’s responsibility for following the law as she or he directs them to do, then the predispositions will be set aside. At the end of the day, jury consultants are important and helpful, but they are not determinative, by any means, of an outcome.
LD: Looking back, is there a case in which you take particular satisfaction? I know you hate to pick out just one, but I’m going to ask anyway.
JL: Well, there are two. The first goes back to sometime around 2004 or 2005; it’s the first year in which the Brady Patriots won the Super Bowl. That’s the year, because that happened during the trial and I was representing a doctor from the Dana-Farber Cancer Institute, an oncologist named Lois Ayash, who had been incorrectly identified in a Boston Globe article as the doctor who had signed an overdose order that killed Betsy Lehman, a Globe health columnist, an incredible irony. In fact, she was not the signatory on that we brought that to the Globe’s attention, of course, the same day as the article – Lois came to me right away. The Globe took three and a half weeks while they were trying to extract a release from us before they published the retraction.
Dana-Farber then terminated Lois, as if she had been the one who signed the order, even though they knew full well she wasn’t, but someone – as we said at the trial – someone had to be a scapegoat. This was not the institution itself. I want to emphasize that. The Dana-Farber is a fabulous institution, in my view, the very best kind. It was a particular Physician in Chief against whom a verdict was also rendered, but the SJC took that away, saying that the blame had to go to the institution, not the individual. But I want to be clear that I do not consider this systemic to the Farber, for whom many of us have done legal work and I think they’re a great institution.
But, we brought this lawsuit for Lois, who was and is a wonderful woman and she had to relocate her career to the Midwest because of this and the jury returned a verdict of $2.5M against the Globe and $2.5M against the Farber, which for that time was a fabulous result. That was a high verdict then. Dollar amounts have gone up since, but for me it was very satisfying because Lois was such a deserving client who didn’t make any demands of me at all and was always so humble and grateful. She was amazing and I thought it was important to make the point. Again, the Globe is a fine publication, but … obviously, great care wasn’t taken in that instance. Nobody double-checked and what appears to have happened is that the reporter, I guess, looked at the signature and the initials matched. It was actually a nurse’s signature that he was looking at and he relied on that.
Actually, the Globe had to go to trial on the issue of damages only. Liability to finding was entered against them as a sanction, because the reporter refused to identify his confidential source, who is someone he says he talked to to confirm the signature. It was an interesting trial in that sense. Farber was tried on both issues. … It was a result that I was very proud of.
LD: What about the more recent one?
The much more publically acknowledged case occurred last January. The author, Patricia Cornwell, is a longtime client, one of my very favorite clients. She’s a wonderful, wonderful person and a pleasure to work with … Anyway, she began to notice that something appeared to be amiss with relate to her financial statements and her net worth, and we ended up suing her concierge business managers, who really ran every aspect of her life. It was a brutal trial. It took six weeks and the defense was that she had too big a lifestyle and was too flaky and she was a prima donna. They just attacked her day after day after day and the jury returned a verdict of $50.9M. That was a very, special case because of the clients, because they’re special clients. They’re people who I care about.
LD: Actually, I read both those cases – at least some of the press about them – and I thought they were fascinating. Are there particular challenges in representing at trial someone who is rich and famous?
JL: Sure, because you always have the concern that jurors, who are drawn from the broad base of the community, are unlikely to be rich and famous themselves. Very few of us are, so if you are rich and famous, you seem to get out of jury duty. Whenever you’re defending or representing as a plaintiff somebody who is very wealthy and is a celebrity, you know that there will be a certain level of backlash to that, a certain level of resentment that’s possible, at least if you’re outside of L.A. So, in a state like Massachusetts, I was very concerned about it. I thought that the defense lawyers did an extremely good job at what they were trying to do.
Fortunately, it didn’t work, but I was very worried about it. As I said previously when asked about that case, anyone who tells you that you know what a jury is going to do is kidding you, because I didn’t know what the jury was going to do and it was very satisfying to have them say, “OK, your money was mismanaged.”
LD: What do you think of the major differences and challenges facing young women lawyers today compared to when you were starting out?
JL: Many of the challenges remain the same in terms of work/life balance. It continues to be the case that women are the primary caregivers for children and for aging parents. That hasn’t changed, although I think that firms have become increasingly understanding, sympathetic and accommodating to the child-rearing years, but the challenges have changed on the professional side, let’s say, the actual practice side.
When I started, it was difficult to persuade a corporation, a board, that they should “take the risk of hiring a woman” as their trial lawyer. It was an uphill battle. I think that has changed, at least in my own experience. I have many corporate clients who came in to me, came to be represented by me. Obviously, all of us in well-known and big firms also get the advantage of clients coming into the firm, but my sense of it is today there is little or no concern about gender. All they want to know is about experience and track record, so that’s a benefit that young women have today.
I think many of the mountains that women had to climb when I was starting out have not been leveled, but are down to the size of foothills. There are still challenges there, but I think it is getting better, if not with each passing year, certainly with each passing decade. My own daughter is a lawyer now. I always said in my early to mid-career that one of the things I wanted to see happen was that if I had a child, which I did by mid-career, that I wanted to know that if it was a daughter, she could practice law on a level playing field.
She’s at a big New York law firm. I think she is on a level playing field for the most part. There are a few challenges that were there before of being a young wife and newlywed and trying to balance the extraordinary hours that are expected of associates, particularly in New York with married life. That challenge is just as real now as it was before, but I think in terms of assignment to cases and working with clients, I perceive her to be, at least, on an even footing with her male colleagues. So we’re getting better, but the issues that relate to work/life balance aren’t going to go away easily.
LD: Last question – I couldn’t resist this. I wondered if you’ve had time to keep up your second career in the Boston Theater, and have you had any roles since playing Cordelia in King Lear at the 2008 production by the Boston Lawyers Chapter of the Federal Society Production?
JL: I feel like that has such a successful result, since it landed me at Ropes & Gray, that I’ve retired from the theater! (Laughs.) For trial lawyers, it’s theater all the time, but I haven’t done a production since then. That was such an unusual and inspiring moment with all credit going to John Montgomery for his support for as many years as I had and at such a fine firm, too, but I think I’d better stop while I’m ahead.