Winter Edition 2013
Vol. 22, No. 2
IN MEMORIAM – JUDGE CHARLES SCHWARTZ, JR.
Judge Charles Schwartz, Jr.,
of the United States District
Court for the Eastern District of
Louisiana, died on November
3, 2012. He was 90 years old.
Judge Schwartz was born in New
Orleans, and, after graduating
from Fortier High School, he
received a B.A. from Tulane
University in 1943, where he
was Phi Beta Kappa. During
World War II, he served in the Philippines as a Second
Lieutenant and continued his military service in the Army
Reserves until 1966, when he retired as a Major. After the
war, Judge Schwartz attended Tulane Law School, was on
its Law Review, and, in 1947, graduated Order of the Coif.
civic, and educational organizations. He served on the
Boards and was President and Treasurer of the Greater
New Orleans Area Unit of the American Cancer Society;
the Cancer Association of Greater New Orleans; and the
United Cancer Council of America. For over twenty years,
he volunteered at Tulane Law School, where he was an
Adjunct Professor. He was also on the Boards of the United
Way for the Greater New Orleans Area, Touro Foundation,
and Metairie Park Country Day School.
Judge Schwartz was in private practice from 1947 until
1976, first with the Guste, Barnett & Redmann firm. In
1969, he co-founded the firm Little Schwartz & Dussom.
During his time in private practice, he represented many
individuals and commercial clients and served as district
counsel for the Gulf Coast District of the U.S. Maritime
Administration.
Eulogy for Hon. Charles Schwartz, Jr.
By: Randall A. Smith1
A host of young lawyers were privileged to serve as law
clerks to Judge Schwartz during his tenure on the federal
bench. We are pleased to publish the following tributes
by Randall A. Smith, Esq., who was a law clerk for Judge
Schwartz in 1982-1983, and C. Peck Hayne, Jr., Esq., who
clerked for Judge Schwartz in 1987-1988.
“You’re late, late for my funeral, Smith.”
“I’m sorry, Judge, but I have a good excuse – my plane
was late.”
President Gerald Ford appointed Judge Schwartz to the
Eastern District bench in 1976, where he served until
his retirement in 2001. In 1991, Chief Justice William
Rehnquist appointed Judge Schwartz to the United States
Foreign Intelligence Surveillance Court in Washington,
D.C., where he oversaw requests for surveillance warrants
against suspected foreign intelligence agents inside the
United States.
“Excuses, excuses. Makes no difference to me. Take
responsibility for your actions.”
Judge Schwartz was involved with many charitable,
(cont’d on next page)
“Sorry, Judge.”
And we all know that is how it would go.
Judge Charles Schwartz was a tough taskmaster. He
expected the best of his law clerks, of the lawyers who
Editorial Board: Raley Alford, Kathryn Knight, and Steve Griffith
T H E A D V O C AT E
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IN MEMORIAM (CONT’D)
appeared before him, and of his peers. He could be
hard on all of us, but few resented it because they
knew he just wanted to get it right.
was only matched by the noise that came out of his
mouth: “Smith, did you hear what I told you to do?
Draft an order and opinion granting the motion!”
Many judges are considered to be more plaintifforiented or defense-oriented. Not Judge Schwartz.
He just wanted to get it right. And he hated to
be reversed by the Court of Appeals. This rarely
happened because he almost always did get it right.
I sheepishly withdrew to do so. And then a few
minutes later I heard his heavy footsteps pounding
around the library pulling out books and taking
them into his office. About thirty minutes later it
was, “Smith, get in here.” Then, when I did, he
barely looked up and said, “You’re correct. Write
it up the other way.”
He and I had a lot of fun sometimes. He loved to
ride in my green Fiat convertible and check out
the sights. He had a wonderful smile, a wonderful
laugh.
But he could also be scary. I remember that I had
been working in federal court for only three weeks
when one day he asked me to draft up a ruling
granting a motion to transfer. After doing the
research, I went back in to see him and confidently
informed him that the law really seemed to require
that we deny the motion. Well, the look on his face
He wanted to get it right. And he did, even at the
expense of his ego. Charles Schwartz was a great
judge. He was not result-oriented. He was not
biased. He was fair. He had the opportunity to
make a big difference in this world, and he did. He
did get it right. And we are the better for it.
Mr. Smith delivered this eulogy at Judge Schwartz’s
funeral on November 10, 2012.
1
In Tribute to the Honorable Charles Schwartz, Jr.
By: C. Peck Hayne, Jr.
On November 3, 2012, the Honorable Charles
Schwartz, Jr., United States District Judge for the
Eastern District of Louisiana, died at the age of 90.
An invisible red thread, the Chinese say, connects
those who are destined to meet. As my wife
observed, the invisible red thread in my life was
spun in large measure by Judge Schwartz. So my
debt to him is immeasurable.
My first encounter with Judge Schwartz was about
one month after I had started law school in New
York. We both happened to be guests at a wedding
outside of New York City. A mutual acquaintance
introduced me to Judge Schwartz on the slim
connection that he’s a judge in New Orleans and
I wanted to be a lawyer (although at the time I
foolishly thought I wanted to practice law in New
York City). I had no idea who he was; I hope I was
polite to him.
Fast forward about a year and half later. My sister
was dating an Assistant U.S. Attorney at the time.
When I told him that I was thinking about applying
for a judicial clerkship, he asked me if I had any idea
who I wanted to work for. Of course, I had no idea.
He immediately said, “Apply to Judge Schwartz.
He’s a real judge’s judge. He’s maybe a little gruff,
but no judge in New Orleans works harder than he
does.” So with that advice and a dim recollection
that I had met him before, I sent Judge Schwartz my
resume.
When I then met Judge Schwartz again at my job
interview with him, he immediately hired me. (I
thought, he’s obviously a smart guy, but I had no
clue how right I was.) Spinning that thread, he then
introduced me to his then-permanent law clerk,
Vivienne Monachino. Those who know us know
the punch line: we would marry eight years later.
As Vivienne and I strode into our wedding reception
in City Park, the first person we saw was of course
Judge Schwartz, with a grin from ear to ear. Who
knew this judge was such a matchmaker?
I started work for Judge Schwartz on a Monday,
when he was still on vacation. Wednesday was his
regular motion day, but he wouldn’t be back from
vacation until Wednesday morning. So my first task
(assigned by Vivienne as the senior clerk) was to
(cont’d on page 3)
prepare a bench memo on one of the motions to be
heard on Wednesday. It seemed straight-forward
enough: could the surviving parents of a guy who
died in a boating accident collect survival damages
under general maritime law? Shortly after Judge
Schwartz had hired me, I asked him if there was
any particular course I should take in my last year
of law school; without hesitation, he said, “Take a
course on admiralty.” (I dutifully did, and while
it was by far the most boring course I had in law
school, it was also the most practical.) So I felt
well prepared for drafting my first bench memo for
Judge Schwartz. It should be an hour or so project,
I smugly assumed. After spending two days at work
past midnight, I was surprised to learn the answer
was anything but simple. I drafted my memo and
awaited Judge Schwartz’s reaction.
He strode into his chambers Wednesday morning
about 8:15. All his staff were already in the
office. Having been told that Judge Schwartz read
everything anyone files in his section and everything
any law clerk writes and that this was the first time
he had ever not yet read everything for a motion day
beforehand, I was, to put it mildly, nervous. His first
words were, “Welcome, Peck.” While I was ready
to talk about my little motion and memo, he had no
interest in that. He started in midsentence about his
trip: “That policeman stopped Pat and me, but we
were on the right side of the road going to dinner,
and couldn’t he see we were late?” While everyone
else nodded knowingly, I had no idea what the man
was talking about. I quickly learned that no one
else knew either, but they were used to his Homeric
style of starting in the middle of a tale so that he
could give a juicy tidbit up front to ensure we would
then want to hear the whole story. I was hooked.
After his engaging story, he read the motion and
opposition plus my memo, asked me a handful
of questions, and then flew into the courtroom
punctually at 9:00. He grilled the attorneys, who
seemed a bit chagrined about how much Judge
Schwartz knew about the case law on the subject.
Right after the hearing, he said, “This is an important
case. Write up something we can publish.” A few
years later, the same issue went all the way to the
U.S. Supreme Court in a similar case before Judge
Heebe; Judge Schwartz had of course pegged it
right.
Judge Schwartz once remarked that the most
important case he ever decided was the Home Depot
case, where he struck down Louisiana’s Sundayclosing laws mandating that all stores (other than
a long list of exceptions that often had no apparent
rationale other than perhaps a good lobbyist) be
closed on Sundays. As he saw it, the case affected
more Louisiana residents than any other case he
handled. He was reversed by the Fifth Circuit. But
Judge Schwartz had the last laugh: promptly after
the Fifth Circuit ruled, the Louisiana Legislature
(cont’d on page 15)
IN MEMORIAM - MICHAEL H. ELLIS
Former Chapter President Michael H. Ellis, Sr. died at his home on December 20,
2012, after a courageous 12-year battle with cancer. Mike, a founding partner of
Chehardy, Sherman, Ellis, Murray, Recile, Stakelum and Hayes, L.L.P., received
his Juris Doctorate from Tulane University in 1968 and practiced law until he retired
in 2011. Before entering private practice, Mike was an assistant district attorney for
the Parish of Orleans and went on to serve as an Assistant United States Attorney for
the Eastern District of Louisiana, where he was the chief of the Criminal Division.
Mike then returned to the Orleans Parish District Attorney’s Office as Chief of Trials
in all sections of court.
Mike also gave generously of his time to help his community and those in need.
He was a proud board member of Boys Hope-Girls Hope and a former chairman of the Leukemia and
Lymphomia Society’s Lite the Night, and he was involved in many other charitable organizations. The
New Orleans Chapter of the Federal Bar Association fondly remembers Mike, his contributions to the legal
profession and to the community, and his service as Chapter President in 2000-2001.
T H E A D V O C AT E
IN MEMORIAM (CONT’D)
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T H E A D V O C AT E
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Message from the President
By: Eric R. Nowak
On October 25, 2012, Hurricane
Sandy hit a large section of the
East Coast not accustomed to
hurricanes and storm surges.
Unfortunately, the pictures
and stories of devastation
were too familiar to all of us
in Louisiana. We understand
what it feels like to live through
and wake up on the other side of a disaster. We
also know that after the first responders perform
their heroics, the region will need help to rebuild
and rebound. Experience has taught us that the
effects of these storms can be long-lasting and
disruptive on many levels – even reaching the
courts, lawyers, and legal organizations.
Our Chapter immediately reached out to our
National Organization and our legal colleagues
in the disaster-affected areas. We wanted our
colleagues to know that the FBA cared and that
we stood ready to answer their call. Our National
Organization appointed a taskforce including
Patrick O’Keefe (our chapter president during
Katrina) to identify needs and corresponding
resources the FBA can offer the affected chapters
and their members in the coming months and
years.
One of the first requests to the FBA from lawyers
and local bar groups in New York was guidance
in dealing with FEMA, the National Flood
Insurance Program, and first-party insurance
claims. Many of their lawyers were looking to
assist families, friends, and clients, but they had
no background or experience in these areas. The
FBA responded quickly. Within two weeks our
chapter had three lawyers traveling to New York
to participate in a free 3-hour seminar and CLE
program discussing FEMA, flood insurance, and
insurance claims. Matt Moreland moderated
the panel that consisted of Soren Gisleson,
New York attorney Phil Wellner, and me. The
program was financially sponsored by the New
Orleans Chapter and the National FBA Litigation
Section. The New York FBA Chapter and several
other New York state bar associations handled
the logistics, providing the Manhattan venue and
the technology to simultaneously webcast the
seminar. Thirty-seven New York practitioners
attended in person, and over 130 people watched
the webinar. The effort was greatly appreciated,
and our Chapter stands ready to support our sister
Chapters and fellow lawyers as they face the
Sandy challenges that lie ahead.
You will read and see in this Advocate that our
Chapter has also been busy closer to home. The
past few months have been filled with great
events, substantive CLE at bargain prices, and
opportunities to approach and interact with our
local judiciary. We hosted the annual Federal
Judges’ Reception in November during the week
that the U.S. Fifth Circuit sat and heard oral
arguments. Over 300 lawyers, judges, and court
staff met at the Ogden Museum of Southern Art
and enjoyed great company, art, and autumn
weather. We also hosted several Lunches with the
Court and a free YLD Cocktails with Court.
Our Younger Lawyers Division, chaired by Amy
Malish, continued its outstanding work. The
Malcolm Monroe Seminar – a flagship program of
our Chapter that has been replicated by chapters
around the country – provided a full day of CLE
along with the opportunity to be sworn into all
three Louisiana U.S. District Courts and the U.S.
Fifth Circuit Court of Appeals. The Malcolm
Monroe Seminar was immediately followed by
our Chapter’s Holiday Party at the Great Hall of
the Fifth Circuit. The YLD organized the party
that was open to all members. We had a terrific
turnout of judges and lawyers. Finally, I need to
highlight and thank the YLD for organizing the
fantastic Criminal Law CLE focusing on federal
criminal practice tips.
Our Chapter accomplished great things in 2012,
and I am excited that we will continue to do so
in the coming year. Our Board is working hard
to give you many opportunities to get involved
in the largest and most dynamic FBA chapter in
the country. If you read the Advocate and stay
connected with us online at www.nofba.org, you
won’t miss superb events like: a one-of-a-kind
Cultural Property and Natural Disasters CLE at
the Historic New Orleans Collection with a panel
of national experts, our Lunches and Cocktails
with the Court, the annual Rubin Symposium,
philanthropy projects, and more.
Here’s to a Happy and Successful FBA New Year.
Michael DePetrillo, Corey Dunbar, and William Sentell
discuss life as a young lawyer
Brian Capitelli and Sara Mouledoux
discuss law practice management
Buddy Stockwell addresses attendees
The Younger Lawyers Division of the
Federal Bar Association’s New Orleans
Chapter hosted this year’s Malcolm W.
Monroe Federal Practice Seminar on
December 6, 2012, at the Pan American
Life Conference Center. In addition to
CLE credit, this event provided new
Louisiana attorneys with an opportunity
to be admitted to the United States
District Courts for the Eastern, Middle,
and Western District of Louisiana, as
well as to the United States Court of
Appeals for the Fifth Circuit. Many
attendees also became first-time
members of the Federal Bar Association.
The seminar presentations focused on
ethics, professionalism, and law practice
management, and this year’s speakers
were very well received by the 109
attendees. In the morning, YLD board
members Michael DePetrillo, Corey
Dunbar, and William Sentell presented
“Life as a Young Lawyer: What They
Didn’t Teach You in Law School;”
Chapter board member Brian Capitelli
and YLD board member Sara Mouledoux
provided an interesting presentation
on Law Practice Management; Dana
Douglas gave a presentation on legal
ethics; and Buddy Stockwell from
the LSBA’s Lawyers Assistance
Program presented information about
the services his office provides. After
lunch, the attendees heard from Ernie
Svenson and Dane Ciolino,
who spoke on ethics and
professionalism, and Judge
Jay Zainey presented a
heartfelt
professionalism
hour. The Malcolm Monroe
Seminar is one of the
Chapter’s signature events,
and, thanks to the quality
of this year’s presentations,
the seminar will continue to
be highly anticipated.
T H E A D V O C AT E
MALCOLM MONROE FEDERAL PRACTICE SEMINAR
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T H E A D V O C AT E
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YLD HOLIDAY PARTY
The holiday season kicked off on
December 6, 2012, at the Federal Bar
Association’s Annual Holiday Party,
which is sponsored by the Younger
Lawyers Division. The YLD held the
event immediately following the Malcolm
Monroe Federal Practice Seminar. The
YLD held the two events together in the
hope that the newest members of the
YLD who attended the Malcolm Monroe
Seminar would have an early opportunity
to interact with established YLD members.
That goal was achieved: the event was
well attended by the new YLD members,
YLD board members, the general membership
of the FBA and the Eastern District judges. The
party returned to its traditional location in the
Fifth Circuit Court of Appeals’ Great Hall this
year, and everyone had a great time!
Matt Moreland, Karen Silberman, Virginia Schlueter
and Ashley Belleau
Sara Johnson
and
Joseph St. Amant
Larry Centola and Eric Nowak
Elizabeth
Richard
Jerilyn and Brian Richoux
On December 13, 2012, the Federal Bar
Association’s New Orleans Chapter hosted its
Last Chance CLE. More than one hundred lawyers
gathered in Judge Ivan Lemelle’s courtroom for
two hours of professionalism and ethics.
For the first hour, Professor Dane Ciolino
discussed “Professionalism and E-mail.” His
presentation addressed tips for having e-mail
communications readable for one’s clients and
other counsel. Additionally, he discussed keeping
one’s own e-mail files manageable in order to
better serve clients and communicate with others.
Judges Jane Triche Milazzo and Susie Morgan
presented the final lecture on “Ethics and Social
Media.” The discussion included recent cases
and an explanation of the benefits and pitfalls of
various social media websites. The judges also
provided very useful tips for maintaining ethics
and professionalism online.
The board of directors is grateful to Professor
Ciolino, Judge Triche Milazzo, and Judge Morgan
for their support and outstanding presentations,
and to those in attendance for making this such a
successful event.
Judge Milazzo and Judge Morgan
speak on Ethics and Social Media
Professor Dane Ciolino
speaks on Professionalism
and E-Mail
John Balhoff and Tracey Knight at the sign-in desk
T H E A D V O C AT E
LAST CHANCE CLE
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T H E A D V O C AT E
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FEDERAL JUDGES’ RECEPTION
The New Orleans Chapter hosted its Annual Federal Judges’ Reception on November 7, 2012, at the
Ogden Museum of Southern Art. This event provides the legal community of the Eastern District of
Louisiana an opportunity to honor the judges, clerks, and executive staff of the United States Fifth
Circuit Court of Appeals and all three Louisiana Federal District Courts. More than 300 members and
guests attended. Attendees enjoyed wonderful art exhibits, music, food and drinks, along with great
city views and fall weather from the Ogden’s Fifth Floor Outdoor Terrace. The event was underwritten
by the generous support of several local law firms listed here.
Sponsors of the Federal Judges Reception
PLATINUM
Flanagan Partners LLP
Fowler Rodriguez Valdez-Fauli
Galloway, Johnson, Tompkins, Burr & Smith
Gordon Arata McCollam Duplantis & Eagan LLC
Herman, Herman & Katz, LLC
Irpino Law Firm
Irwin Fritchie Urquhart & Moore LLC
Jones, Walker, Waechter, Poitevent, Carrère & Denègre, LLP
Kean Miller LLP
King, Krebs & Jurgens, PLLC
Sher Garner Cahill Richter Klein & Hilbert, L.L.C.
Stanley, Reuter, Ross,Thornton & Alford, L.L.C.
Stone Pigman Walther Wittmann L.L.C.
GOLD
Adams and Reese LLP
Barrasso Usdin Kupperman Freeman & Sarver, L.L.C.
Blue Williams, LLP
Braud & Gallagher LLC
Brown Sims, P.C.
Bruno & Bruno, LLP
Capitelli & Wicker
Chaffe McCall, LLP
Fishman, Haygood, Phelps, Walmsley, Willis & Swanson, L.L.P.
Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C.
Hailey, McNamara, Hall, Larmann & Papale, LLP
Harrell & Nowak, LLC
Johnson, Johnson, Barrios & Yacoubian
Krebs, Farley & Pelleteri, P.L.L.C.
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC
Montgomery Barnett, L.L.P
Phelps Dunbar LLP
Proskauer Rose LLP
Smith & Fawer, LLC
SILVER
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Christovich & Kearney, LLP
Delise & Hall
Lewis, Kullman, Sterbcow & Abramson
Liskow & Lewis
Schonekas, Evans, McGoey & McEachin, L.L.C.
Williams Law Group LLC
Special thanks to the Ogden Museum of Southern Art; to FBA committee members Tara Richard,
Chris Alfieri, Soren Gisleson, Peter Wanek, and Douglas Moore; and to Courtroom Graphics &
Animation, Inc., and New Orleans Reproductions, Inc., for providing printing support.
Judge Carl J. Barbier,
Peggy Barbier, Virginia Schlueter,
and Judge Brian A. Jackson
Steve Williamson,
Clerk of Court Loretta Whyte,
and Patrick O’Keefe
Hon. Greg Nussel and
Acting Clerk of Bankruptcy
Court Brian Richoux
Thomas Flanagan and
Judge Brian A. Jackson
The Band Plays On!
T H E A D V O C AT E
FEDERAL JUDGES’ RECEPTION (CONT’D)
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T H E A D V O C AT E
LUNCH WITH THE COURT PROGRAM
The Younger Lawyers Division of the Federal Bar Association continues to organize monthly lunches
with members of the local federal judiciary through its “Lunch with the Court” program. Magistrate
Judge Sally Shushan and District Judge Jay C. Zainey hosted the most recent Lunches with the Court,
both of which were very well attended.
-------------------------------------- LUNCH WITH JUDGE SHUSHAN --------------------------------------
Judge Shushan provided the attendees with an overview of the general tasks of a magistrate judge
and discussed the role
that magistrate judges
play in the mediation/
settlement
process.
She also shared some
of the interesting aspects of the Deepwater
Horizon litigation with
the group. While engaging the younger lawyers
in an entertaining Q&A
session, Judge Shushan
discussed some of her
experiences as a practitioner and provided several practice pointers for new lawyers.
-------------------------------------- LUNCH WITH JUDGE ZAINEY --------------------------------------
Judge Zainey was quite generous with his time as he shared several stories from his days as a practicing attorney, traffic
court judge, and LSBA
president. He stressed
to the group the importance of professionalism
and being well-prepared
throughout one’s legal
career, and he advised
the younger lawyers not
to feel intimidated by
older, more experienced
attorneys. The attendees
greatly benefitted from
hearing about Judge
Zainey’s background and
experiences.
The Lunch with the Court Program will continue with Chief District Judge Sarah Vance on
January 16, 2013, and Fifth Circuit Judge Stephen A. Higginson on February 20, 2013.
10
On November 6, 2012, the Younger Lawyers Division of the Federal Bar Association hosted a criminal
law continuing legal education program entitled “Criminal Concerns: The Basics of and Tips for
Practicing Criminal Law in Federal Court.” More than fifty attendees gained valuable insights into
the federal criminal justice system from Federal Public Defender Virginia Schlueter, Assistant United
States Attorney Bill McSherry, and Chief Probation Officer Kito Bess. The speakers discussed at
great length the processes involved in the decision to bring criminal charges, plea negotiations, and the
United States Sentencing Guidelines.
Panelists Bill McSherry, Kito Bess, and Virginia Schlueter
Attendees
listen to the
discussion
SAVE THE DATES FOR UPCOMING EVENTS
Cultural Heritage CLE
“Preparing for the Coming Storm...”
January 25, 2013
Lunch with Judge Stephen A. Higginson
February 20, 2013
Lunch with Chief Judge Sarah Vance
January 16, 2013
Be sure to check future issues of The Advocate and monitor our website, www.nofba.org, for exact dates.
T H E A D V O C AT E
CRIMINAL LAW CLE
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T H E A D V O C AT E
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CULTURAL HERITAGE CLE
Preparing for the Coming Storm: The Legal Framework Governing Cultural Heritage In Natural Disasters In 2011 and 2012, we saw a seemingly unprecedented number of natural disasters around the world, such as the Port-­‐au-­‐Prince Earthquake, Hurricanes Isaac and Sandy, and the Indian Ocean Tsunami. Yet scientists warn the worst is still to come. With these weather related calamities fast becoming the “new normal,” we all must reassess how we prepare for and respond to such crises. The human and economic loss caused by natural disasters is staggering, and should always be our focus, but there is another cost that also warrants our attention: that of our cultural heritage—the objects, places, and traditions that define us as individuals, societies, nations, civilizations, and even human beings. It may be tangible, as in artifacts, antiquities, art, monuments, archaeological sites, historic buildings, and sacred places, or intangible, such as knowledge, beliefs, and practices. It can even be natural; take, for example, culturally significant landscapes. We inherit this legacy from past generations and have a responsibility to preserve it for the next. But protecting such cultural heritage is difficult under the best of circumstances and next to impossible in the chaos of a natural disaster. Nonetheless, governments, organizations, and individuals are working hard to face this challenge. The law — both national and international — is just beginning to understand its role in this process. While it has long sought to protect cultural heritage from the acts of man, ranging from commercial development to outright war, it has only recently sought to do the same for acts of nature. Of course, unlike man, nature cannot be held accountable for its acts in the courts. But there is still a great deal the law can do to safeguard cultural heritage before and after natural disasters. The New Orleans Chapter of the Federal Bar Association is therefore pleased to announce that it will present a CLE on this topic on January 25, 2013. In particular, the following distinguished panel will address the changing administrative and legal framework governing cultural heritage in times of natural disaster: Tess Davis, Executive Director of the Lawyers’ Committee for Cultural Heritage Preservation, Moderator Panelists: Robert Collins, General Counsel, Office of Louisiana Inspector General Marsh Davis, President, Indiana Landmarks John Norris, Property Manager, Felicity Redevelopment James Reap, Associate Professor, University of Georgia John Stubbs, Director of Preservation Studies, Tulane University Ole Varmer, Attorney-­‐Advisor, International Section of the General Counsel, National Oceanic and Atmospheric Administration (NOAA) Federal Bar Association, New Orleans Chapter Presents: Preparing for the Coming Storm: The Legal Framework Governing Cultural Heritage in Natural Disasters Friday, January 25, 2013 9:30 am to 12:30 am Historic New Orleans Collection, Williams Research Center 410 Chartres Street in the French Quarter Application for 3 hours of CLE pending **Pre-­‐registration is encouraged. Registration Form Name: ________________________________________________________________________ Firm/Employer: _______________________________________ Phone: ___________________ Email: ________________________________________________________________________ Address: ______________________________________________________________________ Enclosed Fee: __________ For lawyers seeking CLE credit: $75 FBA Members $100 non-­‐FBA Members Those not seeking CLE credit: $25 members of the Historic New Orleans Collection $50 general public Please return this form and remittance to: Camille Zeller, Attorney Conference Center 500 Poydras St., Room B364 New Orleans, LA 70130 Phone (504)589-­‐7990 Fax (504) 589-­‐7995 Email -­‐ fbano@bellsouth.net ** No Refunds after January 21, 2013 ** T H E A D V O C AT E
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T H E A D V O C AT E
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TRIALS AND TRIBULATIONS
Trials and Tribulations is your quarterly summary of matters recently tried in the United States District
Court for the Eastern District of Louisiana.  Organized by topic, the summaries below are compiled by
the Editorial Board from Verdict Reporting Forms provided by the Court.
v
CONTRACTS
Breach of Contract
In D&S Marine Services, LLC v. Lyle
Properties, LLC, third party defendant Lawson
Environmental Servcies, LLC (“Lawson”)
contracted with BP Exploration & Production
(“BP”) to perform work related to the oil spill
resulting from the blowout on the Deepwater
Horizon in April 2010. Lawson subsequently
contracted with defendant Lyle Properties, LLC
(“Lyle”), in order to obtain a boat for use in
performing its work for BP. Lyle then contracted
with plaintiff D&S Marine Services, LLC
(“D&S”) for charter of the M/V Dustin D, so that
Lyle could fulfill its contract with Lawson.
Prior to the end of the contracts’ terms,
Lawson informed Lyle that it no longer needed
the M/V Dustin D for its work on the BP project.
On October 4, 2010, Lyle returned the vessel to
D&S. After October 4, 2010, Lawson did not pay
Lyle on its contract, and Lyle did not pay D&S on
its contract.
After a one-day bench trial, the court
found that Lawson was liable to Lyle and that
Lyle was liable to D&S. The court awarded
damages to D&S in the amount of $247,674.40
and to Lyle in the amount of $310,674.40. These
awards were based on expected revenue, less
deductions for amounts paid and for amounts
earned in mitigation, and less saved expenses.
Docket No.: 11-508, Section H (Nonjury trial held November 5, 2012)
Redhibition
Edward Bechendorf, et al. v. InteriorExterior Building Supply, LLP, et al. is part of the
Chinese Drywall MDL. A recent bellwether trial
in that case involved four plaintiffs, selected by
the parties to represent a cross-section of the case
census, who purchased defective drywall from a
non-manufacturer distributor, defendant InteriorExterior (“INEX”). The parties stipulated that the
drywall was defective and that plaintiffs lacked
knowledge of the defect.
The bellwether trial focused solely
on whether INEX, for purposes of liability,
was a good faith or a bad faith seller under the
redhibition articles of the Louisiana Civil Code.
Plaintiffs argued that INEX should have known
of the defect at the time of the sales because a
reasonable American distributor, in sourcing a
product from China for the first time, would have
investigated the quality of the source material
and would have found the defect. In response,
defendants argued that INEX took reasonable
steps to source the drywall and, alternatively, that
the defect would not have been revealed even by
taking reasonable steps.
The jury found that INEX had neither
actual nor constructive knowledge of the defect
at the time of the drywall sales to plaintiffs.
Accordingly, the jury rendered a defense verdict.
Docket No.: 09-MD-2047, Section L
(Jury trial held November 26, 2012)

TORTS
Medical Malpractice
In Lachute v. Ochsner Clinic Foundation,
plaintiff alleged that following colon surgery at
Ochsner on January 29, 2007, he experienced
complications and became septic.
Plaintiff
further alleged that, as a result, he suffered
permanent disabling injuries. Plaintiff claimed
that his injuries were due to Ochsner’s failure to
recognize and treat his complications sooner.
cont’d on page 15
Ochsner denied that it was negligent.
Rather, Ochsner argued that it timely recognized
plaintiff’s complications but that plaintiff’s
injuries were an unfortunate side effect of lifesaving treatment.
After a two-day trial, the jury found that
Ochsner failed to exercise reasonable care in
treating the plaintiff and that this failure caused
plaintiff’s injuries. The jury awarded plaintiff
$580,000.00 for pain and suffering, $674,637.44
for past medical expenses, $420,000.00 for lost
wages, and $500,000.00 for future medical
expenses.
Docket No.: 11-2783, Section R (Jury
trial held December 3-4, 2012)
Personal Injury
In Richard A. Clark v. Murphy Oil USA,
Inc., plaintiff alleged that he was injured while
employed as a rigger for Wood Group when a
crane operator employed by defendant Murphy Oil
negligently swung a load into plaintiff. Defendant
first denied that the accident took place or that
plaintiff was injured. Alternatively, defendant
also denied that it was negligent. In addition,
defendant asserted that plaintiff was its “borrowed
employee.”
An eight-person jury rendered judgment in
favor of defendant, after approximately two hours
of deliberation. The jury found that plaintiff was
defendant’s borrowed employee.
Docket No.: 10-4253, Section H (Jury
trial held October 29, 2012 - November 2, 2012)
IN MEMORIAM (CONT’D)
repealed the laws. He never seemed bothered the
few times when the Fifth Circuit would reverse
him: reasonable minds may disagree, he would
posit.
He of course worked like a demon. Whether it was
higher education, voter fraud or electing judges to
the Louisiana Supreme Court, Cuban hijackers or
recusal of federal judges, whether it was serving
as one of the first judges on the FISA court in
Washington or sitting by designation on the Fifth
Circuit or teaching federal civil procedure at
Tulane for over 20 years and whether it was fried
chicken, nuclear power plants, guns, drugs, an
injured back or a flight attendant with an alleged
run-away serving cart, he tackled everything with
alacrity. He believed devoutly that litigants were
entitled to their day in court, even as he castigated
principals who were on golf courses in England
while he was working to settle their claims. He
believed that the American system of justice was
the best in the world. But if things weren’t right,
as in the group of prisoner mistreatment cases he
referred to Magistrate Judge Chasez, he wasn’t
afraid to make sure the issue was addressed.
He expected the lawyers to be as prepared as
he was. He had a knack of uncovering when
a lawyer was overstating some point of law or
overembellishing on some fact. Because he was so
dedicated in getting the right answer and the right
result, he was merciless on lawyers whom he (almost
always rightly) saw as impeding that answer and
result. “What does the statute say?” or “What does
the contract say?” He would pose these questions
time and again. They epitomized Judge Schwartz’s
dedication to reaching the right result for the right
reason. He expected the lawyers to have the same
dedication. I hope I have a modicum of his focus,
insight, dedication and gut instinct.
So President Ford will always be in my mind one of
our greatest presidents. He wisely nominated this
lifelong New Orleanian to the federal bench, where
he served for 25 years from 1976 until his retirement
in 2001. As Judge Schwartz’s long-time law clerk
Jamie Waters observed, “You knew you were going
to get justice when you went before him.”
So when Judge Schwartz’s daughter Penny and son
John asked me to play some music at their father’s
funeral, I was honored. The choice of music was,
of course, easy: patriotic hymns. Thanks yet again,
Judge, for all you did.
T H E A D V O C AT E
TRIALS AND TRIBULATIONS (cont’d)
15
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