Excerpts from the Keynote Address Given by the Honorable Barbara R. Kapnick at the 14th Annual New York American Inn of Court Opening Dinner on January 16, 2020
The Bencher—July/August 2020
I have been a member of the New York American Inn of Court since sometime in 2006 or 2007 and a member of our illustrious Musical Team of performers for about 10 years.
Our new Inn President, Lauren Moskowitz, is also a member of our Musical Team. I met her when she first joined the Inn about 10 years ago at the invitation of Judge Shira Scheindlin, a retired judge of the U.S. District Court for the Southern District of New York and a former honoree of our Inn for whom Lauren had clerked a few years earlier. Lauren was then just a fifth-year associate at Cravath Swaine & Moore, and the first show we were in together was about Gloria Vanderbilt. We have since worked together in the musical shows for about 10 years—even last year when Lauren had to be out of town on the evening of our performance. She taped a scene before she left, which was a very funny part of our otherwise live show, “Into the Weeds: The Marijuana Musical.”
Lauren has since become a partner at Cravath, has gotten married, and given birth to two beautiful girls. I’m glad that the Inn has afforded us the opportunity to work together and get to know each other, which we otherwise would never have done.
In fact, amongst the goals of the American Inns of Court Foundation, which incorporates the mission of the American Inns of Court, is “to shape a culture of excellence in American jurisprudence by promoting a commitment to professionalism, ethics, civility, and legal skills in the practice of law, and transmitting these values from one generation of lawyers to the next.”
As Justice Sandra Day O’Connor observed in her forward to “The American Inns of Court: Reclaiming a Noble Profession”:
“In the 1960s, well before his appointment to the Supreme Court, Chief Justice Warren Burger envisioned an organization that would help lawyers improve their advocacy skills, with an emphasis on the importance of professional integrity and ethics. He visited England in 1977, returning with the idea of creating in the United States an organization patterned after the English Inns of Court, which have for hundreds of years provided mentoring to young lawyers.”
Since then, the American Inns of Court program has grown substantially and been a great success, strongly endorsed by many organizations throughout our profession. And yet, I was particularly disturbed to hear from one of my former law clerks, who recently became a judge, that as she went around Manhattan this past year speaking to people about her candidacy, many of them alluded to a loss of respect for the judiciary and the court system, perhaps fostered by sporadic and skewed articles about the law or the judiciary and angry and negative comments about judges and their decisions. We know that judges are called upon to make difficult decisions every day, decisions that are not always going to be popular with everyone or make everyone happy. As Chief Justice of the United States John G. Roberts Jr. recently wrote in his annual year-end report for the Supreme Court:
“In our age, when social media can instantly spread rumors and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.”
He urged federal judges, and I’m sure he would include in that all judges, “to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach.” Chief Justice Roberts continued that “we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under the law.”
How do we do this? I think Chief Justice Roberts made a good point about civic outreach—speaking to schools and working on various law-related programs with students is a good start—so people can better understand the law, the judicial process, and the courts, not just through watching “Law and Order” and other TV shows, and I believe this should be a goal of the Inn and of other bar associations as well.
As Chief Justice Roberts also noted, “we should reflect on our duty to judge without fear or favor, deciding each matter with humility and integrity,” and I would note we cannot be deterred or dissuaded, as difficult as it may be, by angry outbursts by those who disagree with our decisions, however correctly those cases may have been decided.
When I give my remarks to newly admitted lawyers at the Appellate Division, I remind them that law is the most important vehicle we have for social change in our society and that we have seen in our own lifetimes historic and momentous court decisions which have helped to change the trajectory of school desegregation, civil rights throughout our country, abortion rights, and same-sex marriage. These decisions did not come about easily or quickly, but rather were the result of a long process of turning the tide—one dissent in a case can ultimately become the majority opinion. And yet, these decisions were not always (and still may not be) accepted by everyone.
But it is our job as lawyers and judges, maybe now more than ever, to take a stand and help shape the interpretation of our laws as times change and things that could never have been imagined when the Constitution was written become part of the world we live in, like technology or climate change. I also tell the new lawyers that no matter where they decide to work or what they choose to do, at the end of the day, all they really have is their good names—their reputation for truthfulness and honesty and dedication to their profession and their integrity—which will follow them always.
There is a lot of rhetoric out there these days, much of it with no basis in fact or reality, and people often do not think about the consequences, intended or unintended, of what they say or do. I cannot ignore the recent rise in anti-Semitic and other racist and homophobic attacks in our very city and throughout our country. I was very sad to read that the theme of the New York State Bar’s Presidential Summit to be held at the end of January here in our city is “White Nationalism and Domestic Terrorism in America.” I was perhaps naive enough to hope that our generation would not have to focus on these issues so soon after World War II and the civil rights movement’s advances in the 1960s.
But apparently we do have to go back and go over these lessons, again and again, starting with our children and perhaps even our younger colleagues. That is why it is so important that lawyers make their arguments and judges make their decisions based on the evidence before us—not based on innuendos and unfounded allegations—that we in the legal community base our decisions on documents that can be authenticated, testimony that can be corroborated, and established precedent, not based on social media reports and unsubstantiated statements. We all need to do our part to help restore the country’s belief in the integrity of our courts, our legal system, and our judiciary.
One of the things I have always endorsed in our profession is networking and providing mentoring to younger lawyers, and, as professed by our Inn of Court, transmitting the values of professionalism, ethics, civility, and legal skills in the practice of law from one generation of lawyers to another. I am sure I would never have gotten to where I am today without constant networking through bar associations, other professional organizations, and judicial associations.
At a meeting of the Inn some years ago, Blair Fensterstock, a founder of our Inn, asked me if I would consider having his daughter Laurel be a summer intern for me in the Commercial Division. I interviewed Laurel, really liked her, and she worked for me as an intern in the summer of 2010. I remember the day she found out she was accepted to transfer to Columbia Law School—it was just her and me in chambers, and I knew she needed a hug! Certain moments are important and priceless, as they say. I have always had a special place for Laurel, our executive vice president, secretary/treasurer, after that summer and hope she knows she can always call upon me for advice or help if she needed.
I also credit my involvement with the Inn of Court for a wonderful judicial experience I had working together with our Inn counselor, Judge Richard Sullivan, in March 2012. We had related lawsuits when I was in the Commercial Division and he was still a U.S. District Court Judge—before we both became appellate judges—and the lawyers asked if we would consider holding a joint hearing because it would have been problematical if we ruled differently on the scope of documents to be produced by the same party pursuant to the same or similar subpoenas in each case. My colleagues said to me, “forget it—federal judges never agree to joint hearings with state judges,” but it was different here because Judge Sullivan and I had performed in one or two musicals together at the Inn! We happened to have an Inn program the very next evening, so we talked and decided to have the hearing together. We had a long hearing for several hours on a Friday afternoon with all our law clerks in the courtroom. It was great, and it all goes back to the camaraderie created by our work together in the Inn. This is, in fact, one of the main reasons we all get together, at different stages of our careers—as Masters of the Bench, Barristers and Associates—to learn from each other and interact with others in our profession whom we may otherwise never have met.
I end by encouraging you all to continue to work to maintain the high standards of our legal profession, to encourage others to network and support each other, to treat each other with respect and civility, even when we disagree, and to take the opportunity to mentor newer and younger attorneys whenever you can. This can only help to improve our profession as well as its perception and reputation outside our community and help us to foster the ideals envisioned by the founders of the Inns of Court: to shape a culture of excellence and ethical integrity in our American legal community.
Justice Barbara R. Kapnick sits as an associate justice in the Appellate Division, First Department of the New York State Supreme Court, having been appointed there in January 2014 by Governor Andrew M. Cuomo. She is a member of numerous bar associations, advisory committees, and judicial organizations in New York, a frequent continuing legal education lecturer, and the recipient of many awards from New York bar groups. She is a member of the New York American Inn of Court.