October 2002
Hon. Vincent McKusick                                             
Interviewed July 16, 2002 in Portland, Maine.

Chief Justice of Maine's Supreme
Judicial Court, 1977-1992: Part Two
Editor's Note:  Part One appears in the September 2002 interview.

Click Here To Go To Part One

Q: After you stepped down from the bench you have been quite busy?

A: Oh yes. And I knew I was going to be. I intended to be. Again, one advantage of retiring at age 70 or 71 is that you can continue to be busy rather than suddenly drop into oblivion.

Q: What have you done since stepping down from the bench?

A: I came back to Pierce Atwood the first of April 1992 in an "of counsel" role.  When I was fully retired after the end of February 1992, I talked with Ralph Lancaster and others at Pierce Atwood and lo and behold, the firm took me back.  It has been a most fulfilling "return of the native" - a return to the group with which I practiced for my first 25 years at the bar. 

Q: What is the nature of your work with your law firm? 

A: The term "of counsel" is used by law firms to identify a range of different types of lawyer relationships.  Although from time to time I am consulted by other attorneys in the firm on their matters, I have been principally engaged in substantial commercial arbitration and mediation, all outside the State of Maine, and in serving as Special Master by appointment of the U.S. Supreme Court in three suits between States and by appointment of the Massachusetts Supreme Judicial Court in a large insurance company liquidation. 

Q: Please tell me about the role of the Special Master in suits between States. 

A: All suits between states can be brought only in the United States Supreme Court.  In State versus State cases, the Supreme Court exercises original jurisdiction, that is, it is the trial court - and, of course, it is also the court of last resort, it's the only court.  

Often the Supreme Court appoints a Special Master to hear the case between States and to make a recommendation to the Court of an appropriate decision on both facts and law.  The Supreme Court almost always appoints a Special Master when there are critical facts to be found - nine judges aren't very well set up to find facts.  However, the Special Master's fact-findings are only recommendations.  They are, at least in principle, not accorded the deference that is accorded a federal district court's fact-findings on appeal.

Q: Does the Supreme Court appoint Special Masters in many cases? 

A:  No, it is a fairly rare occurrence.  Since February 1992, when I retired, the Supreme Court has taken only six State v. State cases.  It has appointed Special Masters in five of those cases.  The sixth case was New Hampshire v. Maine, No. 130 Original, in which New Hampshire claimed that the Portsmouth Naval Shipyard lay within its borders.  The Supreme Court dismissed the New Hampshire suit, ruling that in a case of the 1970s the Court had already decided the issue adversely to New Hampshire.  The Court thus short-cut the case before appointing a Special Master.  

Q: You have been Special Master in three of those five cases in the last 10 years? 

A:  Yes.  One of mine is ongoing: Kansas v. Nebraska and Colorado, No. 126 Original.  It involves a dispute over compliance with an interstate compact allocating the water of the Republican River among the three states.  In addition to my three cases, Ralph Lancaster of Pierce Atwood is currently sitting as the Special Master in a fourth State v. State case, Virginia v. Maryland, No. 129 Original, involving a dispute over rights to the Potomac River.  So between us, we at a Portland, Maine law firm have received four of the last five Special Master appointments in State v. State cases in the Supreme Court. 

Q: How do you go about deciding these cases? 

A: In all my cases I have appointed a Pierce Atwood associate as my case management assistant and law clerk - currently it is Steve Scott, a very able lawyer.  We maintain a docket separate from that of the Supreme Court in the case.  By Supreme Court Rule 17, the Federal Rules of Civil Procedure and of Evidence are only guides.  We hold hearings in United States Courthouses.  After we file a report with the Supreme Court making recommendations for disposal of the case, the State parties have an opportunity to file briefs and make oral argument before the Court in opposition or support of our recommendations. 

Q:  Have you continued your participation in professional organizations?

A:  Yes.  I've already mentioned the Conference of Chief Justices and the American Law Institute.  I'm active in the Senior Lawyers Division of the ABA and am now one of the three Vice Presidents of the American Philosophical Society.  Incidentally Victor, who became a member before me, and I are the only twin members at the present time - and perhaps the only ones at any time in the Society's 250-year history. 

Q: How long will you keep active?

A: As long as my health permits. I am a great believer that keeping active, both physically and mentally, is the best way to stay healthy. 

Q: You talk about coming to Portland in the early 1950's. My sense is that the legal community back then was a small group of attorneys and everybody knew each other. There has been a big change in numbers since then.

A: Bruce Coggeshall, who now is the managing partner of Pierce Atwood, pointed out to me one day in June that it was the thirty-fifth anniversary of his coming to the firm. He came in 1967. I asked him what number of lawyer he was in the firm and he said Number Twelve. I always say I in 1977 left a big Portland firm of twenty-seven and I came back fourteen and a half years later to a big Portland firm of over ninety.

During the fourteen and a half years that I was away there was an explosion in the number of Maine lawyers. And the other thing that happened was greater specialization. You asked me what I did in my first 25 years of practice.  I tried my hand at anything and everything. You can't do that these days. You have to work either in a specialized department of a firm or in a boutique firm that concentrates on something less than everything.

Q: How was the court system structured back then?

A: The District Court was not created until 1962.  It took two or three years to get it into operation as municipal court judges' terms ran out. The District Court took the place of something like 120 municipal court judges, trial justices, and so on. That was a big change.

In 1952 the Superior Court was relatively small. I think, either seven or eight judges. The Superior Court was very much a county court. The clerk of courts of each county was elected.  The judges were paid by the state but all the rest of the costs of the operation of the courts was borne by the county. That continued to be true until 1976, just before I went on the bench. The Supreme Judicial Court basically was the same.  We really did not have a court system.

So far as the rules were concerned, we had almost unadorned common law pleadings in 1952. Anybody practicing in the 1850's could have come into court in the 1950's and felt pretty much at home.

Q: You were a leading force in writing the Maine civil rules?

A: I was fortunate to have the chance early in practice to serve on the committee that Chief Justice Williamson appointed to review court procedure and consider the possibility of adopting something on the model of the modern federal rules (which dated from 1938). The chairman of the committee was Leonard Pierce. The reporter for the project was Richard Field, a professor at Harvard Law School from whom I had taken first-year civil procedure. Actually it was called "judicial remedies" when I was in law school.  Dick Field also came from Maine (from the town of Phillips). 

So I became deeply involved in the reform of court procedure on the civil side.  The so-called new rules were going into effect on December 1, 1959 and so Professor Field and I committed a lot of time in the summer of 1959 to produce the first edition of the Maine Civil Practice.

Q: How did you find time to do that and practice law?

A: I owe much to my firm for that.

Q: When did mediation first appear in Maine?

A: I can't claim its origination.  But it happened almost coincidentally with my becoming Chief Justice in that fall of 1977. It started in small claims cases. It proved itself and went on from there. Some very good volunteers, some who, I believe, are still involved in mediation, started at that time.

Q: Accessibility to the poor ... has that changed at all?

A: Tremendous changes. I do want to say ... and this of course goes more easily with a much smaller bar ... that there always was a strong sense of responsibility on the part of Maine lawyers. Lawyers always have performed a whole lot of legal service, particularly in small communities, either for nothing or for a very small fee.

We here in the Cumberland County bar, the bar association, had a volunteer legal aid office for a few hours once a week, I believe, down at the Cumberland County Courthouse. I remember doing that. I'm afraid that not too many people knew about it or took advantage of it. It was very inadequate.

Q: Now we have the Volunteer Lawyers Project and Pine Tree Legal Clinic.

A: Yes, and the law school clinic. The Muskie Commission did its good work over ten years ago. At that time it still found great inadequacies.

Q: Do you think the billable hour is a practice that needs to be re-examined?

A: Yes, I do. It's an unfortunate driver. I applaud Bob Hirshon's attempt to do something on that score. 

Q: Are there any methods or practices of the past that could be revived to benefit the legal profession?

A: I think the building of camaraderie within the bar, anything that will build law as the learned profession that it is or should be, anything to offset the disadvantages that come with the tremendous increase in the size of the bar and of the economic pressures to make a living, all that is desirable. Improved communication within the bar and increased activity by the bar associations are helping on those things.

One small thing that would be desirable to re-institute would be in-court memorial exercises in each county for lawyers who have passed away in the past year, with something more than the mere reading of the names at the county bar meetings. In the past that has had a lot of meaning for older lawyers, and I must say also for us younger lawyers when we were such.

Anything that encourages lawyers to know each other outside of court and outside of their law offices is advantageous.

Q: What are your thoughts on what we can do to improve the legal profession?

A: We do have to recognize that the overwhelming majority of lawyers are very able. They are very well trained when they come to the bar. On that score great strides have been made.

Q: Nowadays many people don't have anything good to say about lawyers.

A: Unfortunately that's true.  I think there's one thing we lawyers ought to be careful about ... not to pass along lawyer jokes that slam our profession. We have to act and live the way we know good lawyers should act. We all know what good lawyers do and do not do. Temptations do come. But recognize and avoid them.

Q: Has the litigious society lost sight of what it means to seek justice?

A: I think it has. Some of the blame lies with our society itself, by its being so litigious and trying to find in the law a solution for every problem - something that is often beyond the capacity of the law.  That is one of the advantages of the whole move in the direction of ADR in its various forms - mediation, arbitration, and so on.  If a dispute is brought into the public eye in court, it takes on a whole new dimension. In the immediate rush to court, many disputes get to court that aren't appropriate for court and the lawyers get blamed for it.

Q: What advice would you give to a young person contemplating entering the legal profession?

A: I would encourage it. Learn just as much as possible about what being a lawyer involves and first be satisfied that the law is the kind of career and the kind of life you would like to engage in. If the answer is yes ... go to it. It is a wonderful profession. For all its faults, I don't know any other I would enjoy more. It has been very good to me. 


Editor's Note:  Part One appears in the September 2002 interview.

Click Here To Go To Part One
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