Montana Lawyer October/November 2024

Defending Democracy: ABA President Bill Bay and Bar Leaders Address Challenges and Responsibilities

Hon. Anthony Johnston of the Ninth Circuit Court of Appeals was joined by former acting Montana Solicitor General Matthew Cochenour, Tim Tatarka, Appellate Chief with the United States Attorneys office and Prof. Constance Van Kley who teaches ap pellate advocacy at the Bleweet School of Law for an in-depth panel addressing into the nuances of appellate practice moder ated by outgoing State Bar President Stuart Segrest at this year’s Annual Meeting. Segrest opened the discussion by introducing the panelists, all of whom have significant experience in appellate work. Johnstone, formerly Montana’s Solicitor General and a law professor, shared his perspective as an appellate judge. Cochenour, with his back ground in handling appeals for the Attorney General’s office, American Bar Association President William (Bill) Bay of St. Louis arrived in Missoula for the 2024 Annual Meeting with a message: “Since the founding of the Republic, lawyers have played a key role, almost at everything we do … And I think we play a really key role in ensuring that laws are applied equally to all citizens and that government actions are subject to the review that is needed, that leads to accountability, transparency [and] predict ability.” Bay made the comments at a plenary panel discussion, adding: “In a very real sense, lawyer make justice real.” Bay was joined by Dan Cotter, President of the National Conference of Bar Presidents, for a discussion moderated by incoming State Bar President Toni Tease of Billings, The panel was presented in partnership with the Mansfield Center at the University of Montana as part of its Community Dialogues series. Tease opened the session by framing the panel’s focus on lawyers’ duty to uphold democratic principles, promote civility, and counteract misinformation. She emphasized that, as officers of the court, lawyers hold a unique position to influence public trust in legal institutions. Bay and Cotter echoed that sentiment, noting that with public trust in democratic institutions under pressure, lawyers have an opportunity—and responsibility—to demonstrate accountability and ethical standards in their work. “Thirteen percent of Americans, regardless of political affiliation, say that they don’t have to follow laws of a party for which they have not voted,” Cotter emphasized, citing to a new World Justice Project survey. The three leaders covered the importance of the legal profes sion in preserving judicial independence, especially as judges and judicial staff face increasing scrutiny and even threats. Cotter noted several examples including a tragic attack on a judge’s fam ily by a defendant before the court, illustrating the real dangers faced by members of the judiciary and their families. But the panel also addressed another potential threat facing the

profession, one that also might present opportunities: The role of artificial intelligence in the practice of law. Bay and Cotter both ac knowledged the challenges and opportunities AI presents, urging lawyers to be proactive in understanding and applying technology responsibly. They encouraged attorneys to use AI tools to en hance their work but emphasized the need to verify the accuracy of information, remaining vigilant against potential AI-generated errors that could impact client outcomes and public perceptions of the profession. Cotter pointed out that AI’s potential to introduce errors or “hallucinate” information underscores the necessity of human oversight in legal work. Bay and Cotter each highlighted the importance of mentoring and involving the next generation of lawyers in bar associations and community initiatives. By participating actively, young law yers can connect with the profession’s history and values, which ultimately benefit the public. Cotter urged senior lawyers to guide younger colleagues, providing them with practical experience and ethical ground ing that will support them in becoming effective advocates. “We have to convince young lawyers, particularly coming out of law school why the profession is important, why bar associations are important. Why it’s not just a matter of being a member but being involved,” Bay added. Of the future of the profesion, which Bay admitted remains uncertain, “I do know these things. I know number one, what we stand for, as a profession, [State Bar of Montana], the ABA, the many state and local bars. I know what we stand for and I know what we do. I really know what we do every day to make lawyers better. To advocate for the things we believe in … [and] I know who is there with me. I know a number of Montana lawyers, this is not my first visit. And I am glad to be in the trenches there with you.”

Mastering the Art of Appeals: Insights from the Appellate Advocacy Panel at the Annual Meeting

and Tatarka, the appellate chief for the U.S. Attorney’s Office in Montana, brought a government-focused viewpoint to the discus sion. Van Kley,who also teaches constitutional law and active litigator, provided insights into her experiences as both a scholar and practitioner. A central theme of the panel was the difference between trial and appellate advocacy. Van Kley explained that appellate prac tice is more focused and streamlined than trial work, where dis covery and fact-finding are still ongoing. On appeal, the issues are framed around a static record, and the legal questions come to the forefront. Cochenour and Johnstone added that there is a need for precision in appellate arguments, emphasizing that the ap peal should concentrate on specific legal errors, with Cochenour

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