When it’s time to revise your will, arrange assisted care, negotiate a severance agreement or get your new driver a fair deal for a youthful indiscretion, you need someone who doesn’t make mistakes.
Sitting across the kitchen table from an alleged drug dealer’s mother is not every college coed’s dream. But Michele Allen drove through crack-ridden neighborhoods of Washington, D.C., usually alone, to meet family and friends of the accused to get information for their defense. An investigator with the D.C. Public Defender’s Office, Allen was still an undergraduate intern from Trinity College, but the experience convinced her to pursue the law.
“To sit in the homes of people who are at or below the poverty level and meet their family members—and to hear their mistrust of law enforcement—gave me a distinct view that I wouldn’t otherwise have,” Allen says. “If my kids ever wanted to do it, I’d have a heart attack. But it was one of the greatest experiences of my life.”
Allen is still seeking justice for the underrepresented, though in a different way. With a practice largely focused on labor and employment law, she has many cases that deal with the Family Medical Leave Act and Delaware’s Pregnant Workers Fairness Act of 2014. The issue is how to respect the rights of pregnant women while keeping businesses running. “Both of those are difficult laws for employers and employees to fully understand based on their specific circumstances,” Allen says. “A lot of my job is counseling people about what the law is and where they fit into it.”
Racial discrimination in the workplace is another big issue. “Human resources departments taught people what not to do, but that didn’t change the way people think,” Allen says. Racial discrimination is often subtle, so it’s hard to prove, Allen says, but she is working on a big case that, if it reaches a jury, will make headlines.
Chase Brockstedt recalls the day the first client whose child was abused by serial rapist Earl Bradley walked into his office.
When the woman delivered her baby, the hospital assigned Bradley to be her pediatrician, though it had investigated Bradley years earlier for complaints of child sexual abuse. The client wanted the hospital held responsible for allowing him to continue to practice.
“I came up with the theory of negligent credentialing,” Brockstedt says. “The theory was that [the hospital] failed to vet Bradley. I felt strongly that the hospital had to be held accountable for that.”
Superior Court Judge Joseph R. Slights III agreed with Brockstedt and other attorneys involved in a class-action suit, approving a $123 million settlement that created a pool of funds to help Bradley’s victims. “That’s the case I’m most proud of,” Brockstedt says. “At the time, my kids were 4 and 2 and it hit home with me.”
Not all of his cases make the papers or settle for millions. “Often, I’m representing people who haven’t been compensated for injuries they sustained on the job,” he says. “In many cases they are unable to work, so they can’t pay for medical care. They may live paycheck to paycheck. Getting them compensation can be the difference between staying in their home or living on the street.”
Nursing home negligence has dominated his practice of late. Brockstedt became an expert when he represented the family of a patient who died horrifically at a care facility owned by a local hospital. In 2006, the court awarded the family $13 million in damages.
“I felt strongly that a severe wrong occurred,” Brockstedt says, “one that was avoidable.” But change often isn’t made until a company is forced to deal with its mistakes. Change, says Brockstedt, is what settlement money represents.
William Erhart’s recurring nightmare appears to be coming true. Healthcare costs are rising, and senior citizens are going bankrupt paying them. “The most pressing issue I see in this country is that we have no clear plan to pay for long-term care,” Erhart says. “Healthcare professionals and government officials know this crisis is coming, but are not prepared for it.”
Medicare doesn’t pay for necessities such as hearing aids and dental care, so seniors go without or pull from their savings. “You can pay for these things yourself until you go broke,” Erhart says. “Then what?”
Erhart focuses on helping people plan for medical costs while preserving their assets. Though he has practiced law since 1983, a confluence of events in 2006 led him to elder law. The Deficit Reduction Act of 2005 tightened restrictions on Medicaid payments, and estate tax laws changed. “At the time, I was doing some soul searching about what I wanted to do in law and how I wanted to serve people,” Erhart says. “Going into elder law allowed me to help senior citizens and their families, and for me, it was a fortuitous mix of vocation and avocation.”
But he knows that, no matter how many clients he helps, the crisis still looms large. “It’s more about economics than law, and the issues are too big to be decided on a state level,” he says. “Congress needs to take action for the benefit of all Americans.”
How many ways are there to resolve a legal dispute? Judges and juries are options, but that is not the way that most civil cases are settled in Delaware. More plaintiffs are choosing alternative dispute resolution.
There are two options: arbitration and mediation. In arbitration, both sides present evidence. Top ADR practitioner Yvonne Takvorian Saville decides who is at fault and what the value of the case is. In mediation, she helps negotiate the settlement of a case.
Saville has resolved medical malpractice cases, contract disputes, personal injury claims, workers’ compensation issues and more. A special master for complex civil cases in U.S. District Court, Saville is an adjunct professor of law, a fellow of the American College of Civil Trial Mediators and a member of the National Academy of Distinguished Neutrals. She resolves 95 percent of the 1,200 ADR cases she handles each year.
How does she get two opposing sides to communicate? Educating them about relevant laws is a big part of it. Saville also keeps track of every civil jury verdict in Delaware so that, when people discuss financial compensation, they know what is reasonable. Equally important is giving plaintiffs opportunities to present their cases. “I’m often dealing with parties who feel that their lives have been changed and they’ve been wronged,” Saville says. “I want them to feel as though they told their story, participated in putting the case to rest and made informed decisions in doing so.”
“I love what I do,” Saville says. “Attorneys and the court are appreciative of my efforts. And, perhaps more importantly, plaintiffs are confident in their decisions and begin to move on with their lives.”
The Delaware Bar Association includes more people of color than ever, even if there is room for more.
Judge Charles H. Toliver IV remembers a dinner held for African-American attorneys in Delaware in 1975. Only 18 people attended—including spouses. Judge Joshua Martin III was there, and he could count on his fingers the number of African-American attorneys admitted to the Delaware Bar Association. Martin was only the ninth. In 1982, Martin became the first African-American superior court judge in Delaware; Toliver was the second.
“I’m pleased to say that, although we are still underrepresented, I do not personally know all of the African American or minority members of the Delaware Bar—and that’s a good thing,” Toliver says.
Progress has been made, Martin agrees. In 2005, he became a partner at Potter, Anderson & Corroon in Wilmington. At the time, less than 1 percent of partners in Wilmington’s major law firms were people of color. That has changed. “Advances have been slow, but I see significant increases in racially diverse people being named partner and of-counsel at Delaware law firms,” Martin says.
Martin and Toliver credit the progress to groups like the Multicultural Judges and Lawyers Section of the Delaware Bar Association, the Delaware chapter of the South Asian Bar Association of North America, Delaware Hispanic Bar Association, and the Delaware Barristers’ Association, a professional network of African-American attorneys.
Diversity isn’t just an ethical or moral issue—it’s often a business necessity. Many multinational corporations look at diversity reports on the law firms they consider hiring, Martin says. “Larger corporations participate in national programs about diversity, so they want to hire a law firm with a diverse roster of attorneys,” Martin says. “Not having that diversity can be a detriment, business-wise.”
But recruiting those attorneys to Delaware isn’t easy. Not only is the Delaware Bar examination one of the toughest in the country, but Wilmington has trouble competing with big cities. “Whether it is correct or not, many young attorneys of color think their social lives would be better in Philadelphia, New York or Los Angeles,” Toliver says. “It’s an acute problem with people of color because we are already drawing from a smaller pool.”
Martin and Toliver say that many young African-American attorneys who practice in Delaware have roots here. Samuel Pratcher is a perfect example. His father is a past chief of police for Wilmington. Pratcher clerked for Toliver, whom he counts as a mentor. Now an attorney at Weik, Nitsche and Dougherty in Wilmington, Pratcher, 33, is part of the next generation of Delaware attorneys, and he believes that the road to racial diversity has to include creating paths for career advancement.
“Attorneys who are minorities want equal opportunities to grow within their firms,” he says. “We want to be second chairs in trials, or sitting at the negotiating table. And, having people of different backgrounds benefits clients, because we bring different experiences to the case. Ultimately, Delaware’s legal system needs to reflect our society. Not having faces of color represented leads some to perceive that justice isn’t blind.