Partner and Chair of the Education Law Practice Group, Mary L. Dowell, was interviewed in a Law360 Q&A. The article was also published in Employment Law360.
Law360, New York (July 15, 2011) --
Mary L. Dowell is a partner in the Los Angeles office of Liebert Cassidy Whitmore and chairwoman of the firm's education law practice group. With over 30 years of experience in labor, employment and education law, Dowell has an extensive background in education-related and employment issues. Her primary area of expertise is representing and advising community college districts as general counsel and in litigation.
Dowell has tried cases before state and federal trial and appellate courts, the Public Employment Relations Board, and various state and federal administrative agencies. She has represented clients in cases involving labor relations, employment discrimination and employee discipline, as well as in cases involving education law, free speech rights, student issues, and general public agency property and business issues.
Q: What is the most challenging lawsuit you have worked on and why?
A: The most challenging lawsuit I have worked on was relatively early in my career. It was Garcia v. Hayward, a case filed in U.S. District Court for the Eastern District of California. It was a class action claiming that the way California's community colleges were determining residency for undocumented students violated the equal protection clause of the U.S. Constitution, and it sought millions of dollars in damages. The case taught me about class actions.
It was also the first successful assertion in any California court, state or federal, of the Eleventh Amendment as a defense to a claim for damages under 42 U.S.C. § 1983 brought against a school or college. Today, this defense is so well established that it serves regularly as the grounds for a motion to dismiss. In Garcia, I had to establish as a matter of fact, as well as of law, that community colleges were state agencies, and that any money judgment would be satisfied out of state funds. This required presenting witnesses and documentary evidence to show how funds flow from the state to colleges.
The trial judge was persuaded and concluded that no money damages could be awarded, but his very thoughtful analysis was not reported. Shortly thereafter, I made the same showing at trial in a case that resulted in a reported decision, Stones v. LACCD (1983) 572 F.Supp.1072 , affd. (9th Cir. 1986) 796 F. 2d 270. However, in Stones I just repeated the showing developed for Garcia; Garcia was the first time the issue was tried successfully.
Q: Describe your trial preparation routine.
A: There is so much that goes in to trial preparation that to identify a routine is almost impossible, but there are three things I do every time. The first is the meticulous preparation of many binders: evidence binders, binders containing witness testimony outlines, and a binder that is my trial book containing pertinent cases, statutes, pleadings, jury instructions, etc.
The second is a thorough review of a cheat-sheet of evidentiary objections — there is no excuse for allowing your opponent to ask bad questions. Finally, I plan and write out all the ensembles I'll wear for the expected duration of the trial, so that every morning, I just don the one next on the list and don't have to think about it!
Q: Name a judge who keeps you on your toes and explain how.
A: Can I name three?
Judge Dzintra Janavs, recently retired from Los Angeles Superior Court, Writs and Receivers. Judge Janavs is famous; she absolutely demands organization, but more to the point she demands intellectual rigor. You absolutely cannot be sloppy, either in the record you present or in the arguments you make. You have to know that record, and you have to know your authorities.
Judge Shahla Sabat, San Bernardino Superior Court. Judge Sabat is one of the most crisply organized trial judges I have ever faced. She gives detailed, lengthy, thoughtful verbal tentative rulings on all motions, and she expects you to pay attention and be ready to argue thoughtfully in return, even if it is going your way. Her knowledge of civil procedure is encyclopedic, and she assumes yours will be too.
Judge Stuart Waxman, formerly California Office of Administrative Hearings. Judge Waxman, who is now an administrative law judge for the federal government, was exceptionally knowledgeable in the area of medical law, but he handled teacher dismissal cases as well, and ran a very tight, well-organized hearing in an area of the law that can quickly get out of hand before a weak judge.
Q: Name a litigator you fear going up against in court and explain why.
A: No decent, reasonably competitive litigator admits to fearing any opposing counsel. There are some people whose lack of common civility in the practice of law makes me dread going up against them, but that is not the same thing.
A litigator who always pushed me to pay better attention and be more thoroughly prepared is Paul Powers of the Hathaway Law Firm in Ventura, Calif. He is unfailingly courteous and professional, but I tell my clients frankly that Paul can do more damage with a few well-crafted cross-examination questions than most other lawyers can do in an hour. His appellate skills are extraordinary. If I know that Paul will appear personally on a matter, I prepare my witnesses differently, and I push myself a little harder to be ready.
Q: Tell us about a mistake you made early in your career and what you learned from it.
A: Just one? There were so many! For example: My first ever motion, I forgot who the judge was; I learned this is important, because if you win, you have to prepare the order. I forgot to order a court reporter for an administrative hearing; to this day, my recurring nightmare is that I show up and there is no reporter. I learned to pay attention to which side of the court room I'm supposed to be on — some days you are the moving party, and some days you aren't.
I learned that if I am winning, I need to sit down and shut up, and not snatch defeat from the jaws of victory (actually, that never happened to me, but I came close once early on, and I have seen others do it many times). I learned that yes, you really do have to lay a foundation with a witness, a difficult task if you haven't thought it out ahead of time. I learned that with a news reporter, there really is no such thing as "off the record."
But probably, the most costly mistake was a failure to sufficiently prepare the witnesses in my first evidentiary hearing, and to prepare myself for their questioning: They said things I was not expecting, they didn't understand my questions, and they got thoroughly confused on cross-examination. The result was a PERB decision that is cited regularly — and I privately wince every time.
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