Promoting Public Trust and Confidence in Courts Vital to Our Future

By Forrest James “Jim” Robinson Jr.

We continue to see a trend of eroding public trust and confidence in courts that should alarm us all. Courts exist to uphold the rule of law. Properly functioning courts depend on the public’s trust and confidence. Society’s rules and norms are largely voluntary. We expect people will comply, not just because of possible penalties for non-compliance, but also because people perceive courts to be fair and impartial.

Surveys tell us that eroding public trust and confidence is undermining courts’ foundation. 

Each year, the National Center for State Courts conducts a national survey on how the public perceives courts. The center’s 2022 State of the State Courts survey in late October 2022 found the public’s confidence in state courts declined from 76% in 2018, to 64% in 2021, and to 60% in 2022. Similarly, the public’s confidence in the U.S. Supreme Court declined from 73% in 2012, to 63% in 2021, to 53% in 2022. 

Other surveys produce consistent findings. Results from a September 2022 Pew Research Center survey found the public is almost evenly split in its views of the Supreme Court: 48% held a favorable view of the court while 49% held an unfavorable view. A June 2022 Gallup poll found the public’s confidence in the Supreme Court was 25%, down from 36% in 2021 and five points lower than the previous low recorded in 2014. 

A 2022 Annenberg Public Policy Center survey found that only 40% of Americans believe the Supreme Court justices “set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case,” down 19 points from 2021. A 2021 Annenberg survey found that 34% of Americans would consider abolishing the Supreme Court if it issued a decision that most Americans disagreed with, up from 20% in 2019.

The NCSC’s 2022 survey provides a quick snapshot of an eroding respect for the judiciary, but it does not specifically identify the causes. Even so, the Center’s polling firm noted the Supreme Court’s recent abortion decision and the sensed politicization of the Court were likely driving down the numbers.

The center’s findings show that liberals and moderates who once held the percentages up are now dragging them down. In 2017, there was almost no difference in respondents’ views of the Supreme Court based on ideology. Since then, confidence in the Supreme Court has fallen three points among conservatives, 25 points among moderates, and 45 points among liberals. The survey found similar, but smaller, trends in views of state courts.

As for race, confidence in the Supreme Court dropped nine points among white voters and 19 points among Black voters. Confidence in state courts declined two points among white voters and seven points among Black voters. 

The largest shift in public confidence is due to racial, gender, and socio-economic bias. Responding to a question about whether state courts were “fair and impartial,” in 2021 42% said that state courts were not doing well, and that increased to 49% in 2022. 

Equally troubling, on whether courts deliver “equal justice for all,” in 2014 62% said the courts were doing well or very well while 35% said the opposite. In 2022, 43% said the courts were doing well or very well, while 49% said the opposite. On this measure, the gulf between white respondents and people of color is wide. In 2022, 46% of white respondents said courts are doing well or very well while just 38% of Hispanic respondents and 30% of Black respondents said the same.

The survey revealed a new low on the question of whether courts were unbiased in their decisions. In 2019, the survey showed a net 11-point positive agreement with the statement, but that dropped to a net 3-point disagreement in 2022.

On a positive note, the 2022 survey shows growing confidence in remote court appearances. Also, strong majorities believe the judicial system does a good job of holding judges accountable. 

Now, more than ever, we must champion civics education about the importance of the rule of law and the role of courts. We must disarm organized disinformation attacks. The public needs to understand that state courts are far removed from the Supreme Court battles that make national headlines. As the NCSC’s polling firm notes, we must “emphasize the ability of state courts to better reflect the values and customs of the communities they serve and the historic preference of the country’s founders for state constitutions and state courts as the first line of defense for our rights and liberties.”

With so much work ahead, inaction is dangerous, and complacency allows the slide in trust and confidence to continue.

Forrest James “Jim” Robinson, is a senior partner at Hite, Fanning & Honeyman LLP, Wichita. He engages in a broad litigation and counseling practice spanning trial and appellate courts at the state and federal levels. He has been inducted into the D.C.-based National Center for State Courts’ Warren E. Burger Society, which honors persons who have made an extraordinary commitment to the administration of justice. In 2018, he was appointed by the Kansas Supreme Court to the Kansas Judicial Council.

 National Center for State Courts, State of the State Courts // 2022 Poll, https://www.ncsc.org/consulting-and-research/areas-of-expertise/court-leadership/state-of-the-state-courts.

 Pew Research Center, Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, https://www.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-following-abortion-ruling/.

 Gallup, Confidence in U.S. Supreme Court Sinks to Historic Low, https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx.

 Annenberg Public Policy Center, University of Pennsylvania, Over Half of Americans Disapprove of Supreme Court as Trust Plummets, https://www.asc.upenn.edu/news-events/news/over-half-americans-disapprove-supreme-court-trust-plummets.

 Annenberg Public Policy Center, University of Pennsylvania, 1 in 3 Americans Say They Might Consider Abolishing or Limiting  Supreme Court, https://www.annenbergpublicpolicycenter.org/1-in-3-americans-say-they-might-consider-abolishing-or-limiting-supreme-court/.

This article was originally published in the Kansas Bar Journal, January/February 2023, Vol. 92, No. 1, and is posted with the permission of the Kansas Bar Association.

This fall, the firm welcomed D. Pamela Saenz and Peter Qiu as new associates following law school graduation.  Unique to this class of attorneys is that they are both bilingual.  Peter’s parents were both Chinese born moving to United States in the early 1990s, with Peter being the first generation in his family to be born and raised in the United States.  Born in New York City, Peter has lived in New York, Georgia, Mississippi and Louisiana before settling in Kansas during fourth grade.   Peter spent his final years of grade school and  middle school and high school in the Hutchinson, Kansas area.  Peter then attended Washburn University (BA 2017) and the University of Kansas School of Law (JD 2021).  Peter was able to study abroad in Beijing, China following his first year of law school at the University of Kansas School of Law where he studied Chinese corporate law, labor law, constitutional law, and many others. 

Peter is fluent in both Mandarin and English, with Mandarin being the primary language spoken in Peter’s home growing up.  His Mandarin fluency which makes him invaluable with international clients and cases.  But this trait is equally as attractive with local clients and cases, with Peter able to serve central Kansas’s noticeable Chinese population.  Through Peter’s life experiences (including working in a family-owned restaurant throughout his life), Peter believes that many Asian business owners that are not native English speaking tend to avoid retaining lawyers when prudent because of the cultural and linguistic differences.  Peter hopes his experiences can help better serve these populations.

Pam is a first generation Hispanic-American, with her father immigrating from Mexico and her mother immigrating from Honduras in the 1990s.  Her parents, having met in Wichita, have called Wichita home for Pam’s entire life.

Spanish is Pam’s first language since it was the only language her parents could speak at the time of her birth.  However, once in school, English overtook her communication both inside and outside her home as she and her family worked to assimilate.  As a result, while she always understood Spanish, she was not very comfortable speaking Spanish during a large part of her childhood.  Pam began taking formal Spanish classes in high school and majored In Spanish in college.  It was through these formal teachings that she learned to read, write, translate, and interpret Spanish, and gained confidence in her Spanish-speaking abilities.

Being the child of immigrants, Pam saw firsthand how difficult it was for her parents, relatives, and family friends to obtain services in Spanish—be it at doctor’s appointments, banks, county offices, or nearly anywhere else. This became a strong motivating factor for her to attend law school – the desire to provide competent representation for Spanish-speaking individuals in the language in which they felt most comfortable.  Pam felt the impact of her bilingualism when she worked as an office assistant for an immigration attorney, and in law school when she served as an intern for the Washburn Law Immigration & Family Justice Clinic. These opportunities allowed her to build trust with clients and avoided the complications of coordinating and communicating through an interpreter.  Now as a lawyer, there is a significant Hispanic population in Wichita that Pam looks forward to assisting.

Associate Mackenzie Baxter recently joined the Board of Directors for Ronald McDonald House Charities Wichita. The mission of RMHC is to create, find, and support programs that directly improve the health and well-being of children and their families. We know that Mackenzie will be an asset to the organization and we appreciate her making time to be a part of our community outside of work.

Partner Linda Parks was recently recognized with the Lifetime Achievement Award from Washburn Law School. Of course, this came as no surprise to the HFH team! We have seen Linda excel in her profession every day, and in every way that she commits her talents to the firm and her clients. 

Linda Parks was a founding partner with Hite Fanning when it began in 2000 and brings her leadership style to the position of managing partner. Linda  practices in the areas of business transactions, banking, commercial real estate, creditors rights, and estate planning and is also a United States Chapter 7 bankruptcy trustee. She advises financial institutions on multi-million-dollar loan transactions, loan purchases and sales, contractual matters, and day-to-day operational matters.

She has served on the Washburn University School of Law Alumni Association board of governors. In 2019, the governor of Kansas appointed Parks to chair the Court of Appeals Nominating Commission for the state. She was appointed to the Blue Ribbon Commission in 2011 by the chief justice of the Kansas Supreme Court to assist with examining the state’s judicial branch and court structure. In the American Bar Association, she currently serves on the board of governors. She served in the House of Delegates from 2000-05 and 2009-15. She has served on the Steering Committee for the Nominating Committee, the Select Committee, the Commission on Homelessness and Poverty, the Commission on Mental and Physical Disability, and the Commission on Domestic and Sexual Violence. She was president of the Kansas Bar Association in 2007-08 and is a fellow of the Kansas Bar Foundation. Parks was also a founding member of the Kansas Women Attorneys Association, having served as its first president from 1994-96. KWAA awarded her the Jennie Mitchell Kellogg Attorney of Achievement Award in 2000. Parks received the Wichita Women Attorneys Association Louise Mattox Attorney of Achievement Award in 1997. 

(reprinted from https://www.washburnlaw.edu/alumni/awards/lifetime/2021.html?fbclid=IwAR1XXUdsDK58xYbJm4rFLV7cx85bSDJGSBQKSqF2U5P7o2xzVjNRcIfiO-A#parks)

The firm is pleased to announce that Pam Saenz has joined us as an associate. She will primarily practice in the area of employment law, which includes corporate investigation, corporate management and worker’s compensation issues. Pam also brings her fluency in Spanish to the firm which will serve her well with international cases and clients.

Pam received her Juris Doctor from Washburn University School of Law, where she held a variety of leadership roles in the Hispanic American Law Students Association and  the Genders and Sexualities Alliance and participated on the Jessup International Law Moot Court Team. Pam also served as both a legislative intern and legal interns for several firms. Her internships allowed her to work directly with clients while also honing her research skills and allowing her to successfully compile a breadth of experiences.

Prior to law school, Pam earned her undergraduate degree from Wichita State University, studying international studies and participating in several organizations and serving as president of her women’s fraternity. 

Not only is she smart and talented, Pam has been a fun member of our team and we look forward to enjoying her company on firm outings and activities! Come by and welcome Pam to the firm!

Peter Qiu joins us as an associate after spending time working as one of summer associates and we could not be more pleased. Peter will be working with the civil litigation team, which serves clients in the areas of general litigation, aviation law, oil and gas law, healthcare and business...just to name a few.  Peter is also fluent in Mandarin which makes him invaluable with international clients and cases.

After earning his Bachelor of Arts degree in Political Science from Washburn, Peter attended University of Kansas School of Law. While balancing his academic studies, he was also involved with many activities that reinforced his legal education, such as the Kansas Journal of Law and Public Policy, Mock Trial Council, Asian Law Students Association, and American Constitution Society among others. Peter offers a good combination of a strong academic understanding of law with relevant hands-on experience working for several law firms and legal organizations while in law school. Peter also studied abroad in China and Japan.  

Peter has been a good addition to the firm and has been an enthusiastic supporter of firm activities and charitable endeavors. When he isn’t working, he enjoys international travel and playing tennis, pool and gaming. We are happy to have you here, Peter!

Managing Partner Linda Parks will be serving on the Board of Governors of the American Bar Association. We don’t mind saying that this is a very prestigious position and Hite Fanning Honeyman is proud to be the career home to Linda.

Since 1878 the American Bar Association has provided services and resources to members of the legal community, as well as a commitment to advancing the rule of law across the United States. The Board is made up of 43 of the best attorneys from throughout the nation. Congratulations to Linda!

American Bar Association: https://www.americanbar.org/groups/leadership/aba_officers/parks-linda-sue

By Kelly J. Rundell

Employers with Family Medical Leave programs should be aware that the U. S. Department of Labor has issued new, easier-to-read forms.  Using the DOL’s model forms is optional because employers can develop their own forms that seek the same information. 

The new model Notice of Eligibility and Rights and Responsibilities form is much longer than the previous version, partially due to larger print and more check boxes to be completed.  It is, however, well-organized and provides a better explanation of how employer-provided paid leave and FML can run concurrently.  

The model medical certification forms have also been revised.  Although the forms have more boxes for the health care provider to complete, they also seek the best estimate of when the employee can return to work.  The forms clarify that FML leave is available for prenatal care and delivery, but not maternity leave.   Additionally, they include definitions of serious health conditions.  Significantly, the forms clearly allow the health care provider to check a box that there is no serious health condition.  

The DOL has also updated the model Designation Notice.  It has also doubled in length, but includes return to work requirements and provides information on concurrent accrued leave and FML.  These forms also give space for employers to explain missing or insufficient information and the deadline for providing it.   

All of the new forms have an expiration date of June 30, 2023 and are available on the Department of Labor website, https://www.dol.gov/agencies/whd/fmla/forms

We are pleased to announce that Jon Newman was appointed by Justice Luckert to serve a 3 year term on the Client Protection Fund Commission.
The fund was created to offer compensation to clients who suffer economic loss as a result of dishonest actions by an active Kansas-licensed lawyer. Those actions must occur during the course of a lawyer-client relationship and covers most cases in which lawyers have taken for their own use, or misappropriated, clients' money or other property entrusted to them.

Gov. Laura Kelly recently named Jim Robinson to the Steering Committee of her Strengthening People and Revitalizing Kansas (SPARK) Task Force which will advise her on the state's economic recovery during the COVID-19 emergency.

The Recovery Office will be responsible for statewide distribution of at least $1.2 billion in federal economic recovery funding, serving both urban and rural areas across the state.

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by F. James Robinson

Not every company’s communication with its in-house counsel is privileged. Only confidential communications which involve the requesting or giving of legal advice are privileged. Dartez v. Peters, No. 15-3255-EFM-GEB,2019 U.S. Dist. LEXIS 123178 *43, 2019 WL 3318185 (D. Kan. July 24, 2019). There must be a clear connection “between ‘the subject of the communication and the rendering of legal advice’ for the attorney-client privilege to shield the communication from disclosure.” Id. Further, “legal advice must predominate for the communication to be protected. The privilege does not apply where the legal advice is merely incidental to business advice.” Id. 

There is no presumption “that a company’s communications with counsel are privileged.” EEOC v. BDO USA, L.L.P., 856 F.3d 356 (5th Cir. 2017), opinion withdrawn and superseded, 876 F.3d 690, 695-97 (5th Cir. 2017). The party asserting the attorney-client privilege and work-product protection, bears the burden to show that either the privilege or the protection, or both, apply. Dartez 2019 U.S. Dist. LEXIS 123178 *43. 

For the attorney-client privilege to apply, Kansas courts require a “clear showing” that the attorney was acting in his or her professional legal capacity. Id. This starts with a “detailed and specific” showing in the privilege log. Id. at **43-44. But the mere conclusory assertion of an attorney-client privilege in the privilege log, “without more information, is insufficient.” Id. at *49. The privilege’s proponent must provide “sufficient information to enable the court to determine whether each element’ of the asserted privilege is satisfied.” Id. at 45. This burden can be met “only by an evidentiary showing based on competent evidence and cannot be discharged by mere conclusory assertions or blanket claims of privilege.” Id. at *44. One court put the same notion this way: “[c]alling the lawyer’s advice as ‘legal’ or ‘business advice’ does not help in reaching a conclusion; it is the conclusion.” United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996).

In federal court, work product protection for the company’s investigation materials depends on whether “(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for trial; and (3) they were prepared by or for a party or a representative of that party.” Fed. R. Civ. P. 26(b)(3). 

Company materials prepared in the ordinary course of business or investigative work are not protected unless they were done under the supervision of an attorney in preparation “for the real and imminent threat of litigation or trial.” Kannaday v. Ball, 292 F.R.D. 640, 648 (D. Kan. 2013). That means there must be a real and substantial probability that litigation will occur at the time the materials were prepared. Id. Also, courts look “to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected by the work-product doctrine.” Id.

In Dartez, a police brutality case, the plaintiff had issued a records subpoena to the Kansas Highway Patrol for an internal investigation of the Patrol’s Special Response Team. The Patrol responded and logged a 98-page report written by the Patrol’s outside counsel for the Patrol’s Chief Legal Counsel, asserting it was done in anticipation of litigation. Dartez, at **37-38. After an in camera review the court decided the report’s main purpose was to evaluate the Special Response Team’s “operations to make recommendations for improvement and to ensure compliance with current law enforcement practice.” Id. at **49-52.  The court found one area in the report that “might come close to being legal advice.” Nonetheless, the court decided it was “incidental to the overall business purpose of the Report.” Id. at *50.

As for whether the report was protected by the work product doctrine, the court noted the Patrol failed to provide any details about anticipated litigation. The court decided, “there is no way to know whether the threat of litigation was ‘real’ and ‘imminent’ at the time the document was prepared.” Id. at *47. The court ordered that the report be produced to the plaintiff.

An adversary’s threats to sue can support a work product claim, but that is not always so. In Lawson v. Spirit Aerosystems, Inc., No. 6:18-cv-01100-EFM-ADM, 2019 U.S. Dist. LEXIS 176497 (D. Kan. Oct. 8, 2019), the court decided that “[w]here parties continue to resolve disagreements amicably, litigation is ‘not a substantial and significant threat.’”  2019 U.S. Dist. LEXIS 176497 *22. 

In sum, even when a company is negotiating to resolve a dispute amicably, to ensure that the attorney-client privilege and work product protection applies the company should internally document that its in-house counsel is conducting an investigation in anticipation of litigation and for the purposes of providing legal advice to the company.  If the in-house counsel is providing business advice it should be documented separately from the attorney’s legal advice. Putting business advice and legal advice in the same document risks that a redacted version will be produced in litigation during discovery.

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by F. James Robinson

By rule, federal courts in the District of Kansas require that a motion to compel discovery be “filed and served within 30 days of the default or service of the response, answer, or objection that is the subject of the motion, unless the court extends the time for filing such motion for good cause. Otherwise, the objection to the default, response, answer, or objection is deemed waived.” D. Kan. Rule 37.1(b). 

This rule may not be as mechanical as it seems.

The rule’s purpose is to “ensure the court can address discovery disputes while they are still fresh, and in turn expedite litigation.” Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC-KGS, 2015 U.S. Dist. LEXIS 193782, 2015 WL 13047860 (D. Kan. Mar. 31, 2015). Black & Veatch and other decisions in the district confirm that the triggering event is the date of the challenged discovery response or the discovery default.  Black & Veatch interpreted the 30-day period as beginning when specific information first leading to a dispute is discovered. That deadline is not tolled “while the parties are engaged in efforts to resolve the discovery dispute without judicial intervention.” However, the parties may “request, prior to expiration, an extension of the deadline to file a motion to compel with respect to any discovery dispute upon which the parties are still conferring.” 

On April 11, 2019, in Lawson v. Spirit Aerosystems, Inc., No. 6:18-cv-01100-EFM-ADM (D. Kan.), a federal magistrate judge denied the defendant’s unopposed motion to extend the deadline. (ECF No. 77) The judge’s order acknowledged “that some judges in this District prefer that parties file such motions on or before the 30-day time period set forth in D. Kan. Rule 37.1(b) expires—e.g., when the parties are continuing to meet and confer to resolve discovery disputes.” Nonetheless, the judge wrote, “[t]he undersigned does not interpret D. Kan. Rule 37.1(b) to require parties to file a motion for extension of time if they are engaged in meeting and conferring.” The judge continued, “[c]ategorical motions for extensions . . . are generally hypothetical and unmeritorious in the abstract.” The judge concluded, “[i]f and when a party files a motion to compel after the 30-day deadline set forth in D. Kan. Rule 37.1(b), the undersigned will, however, expect the party to demonstrate good cause for the late filing by setting forth the parties' diligence in attempting to resolve the discovery dispute at issue.”

In a later, January 29, 2020, order in that case the judge found the plaintiff’s motion to compel was untimely because the defendant’s alleged failure over a period