Sherry Broder


Sherry Broder: A First in a 92-year History

March 1993

Against staggering odds, she obtained a $4 million settlement from Meadow Gold and Foremost dairies, pineapple companies, chemical companies, and the State of Hawaii in a class action on behalf of 850,000 Oahu consumers exposed to the milk contaminated by the pesticide heptachlor. Because of her efforts in this case, she received the 1985 National Wildlife Federation Conservation Service Citation and was named Outstanding Woman Lawyer in 1985 by the Hawaii Women Lawyers.

On March 20, 1986, she filed a complaint against Ferdinand Marcos and Imee Marcos-Manotoc for the wrongful death of a 21-year-old engineering student named Archimedes Trajano. He dared to question Imee Marcos-Manotoc during a forum in the Philippines in 1977. He was later taken away and tortured to death. On March 26, 1991, visiting United States District Judge Manuel Real ordered the Marcos daughter to pay the Trajano family in excess of $4 million.

She is also one of the class counsel in an ongoing class action against Ferdinand Marcos on behalf of all the victims of torture, summary execution and disappearance during the Marcos martial law regime.

She graduated from Boalt Hall (University of California at Berkeley) with highest honors and was a member of Order of the Coif. Young and adventurous, she traveled to Hawaii a year after law school with Jon Van Dyke, her husband, for a "visiting" year. Van Dyke, then a law professor at Hastings, joined the faculty at the William S. Richardson School of Law as a visiting professor for a year. And of course, the year turned into another and in a blink of an eye seventeen years later...

The quintessential woman who has managed to balance both career and personal goals.

There are frequent articles about our bar president. In fact, fighting for the underdog catapults her to the fore.

Her Practice

Q: The Marcos human rights cases and the heptachlor case were front page news. What other interesting cases are you involved in?

A: I represent the family of Dana Ireland in a civil case against the County of Hawaii for wrongful death. Dana Ireland was brutally assaulted, raped and murdered on Christmas Eve 1991 on the Big Island. The crime has not been solved. The law suit alleges that the County of Hawaii failed to timely respond to emergency calls

Which case in your career has been the most challenging?

The Marcos case is the most exciting because the ramifications are so great in terms of the international arena.

What is the range of the damages?

I don't know. We have secured a judgment in excess of $4,000,000 in the Trajano case. In the class action, the jury found in September 1992 that Ferdinand Marcos was liable for the torture, murders and disappearances, and now we are working on the damage phase. Judge Real has tentatively set a trial on exemplary damages for June, 1993.

Did you work on these Marcos human rights cases alone?

I am class counsel with Robert Swift of Philadelphia, Pennsylvania in the class action. I worked on the Trajano case with Jon Van Dyke, my husband, and Lillian Ramirez-Uy who is now a per diem family court judge. We also have co-counsel in Manila, a former Philippine senator, who is assisting us in trying to collect the judgment against the daughter, Imee Marcos-Manotoc. The Ninth Circuit has recently upheld the judgment in the Trajano case and a petition for rehearing en Banc was denied.

Is this the first case of this sort?

There have been other cases. This is the first case that has been contested in a jury trial. The seminal case called Filartiga involved a young Paraguayan man who was brutally beaten and executed by the Paraguayan police. His family had opposed the Paraguayan dictator. The government claimed that young Filartiga had been murdered be-cause he had been sleeping with a married woman. His father, a Paraguayan doctor, had the body exhumed. The family brought in another doctor, took photographs, and gathered evidence to show that their son had been brutally beaten. They pursued the case in Paraguay but never got anywhere. Then Pena Irala, the defendant, was seen one day on the streets of New York. The family instituted action in New York. The Second Circuit ultimately ruled that there is jurisdiction in the federal district courts under the Alien Tort Claims Act (28 U.S.C. section 1350) and at that point in time the U.S. government through the Department of Justice and the State Department filed an amicus curiae brief supporting the concept that these cases should be heard in the United States. Interestingly, on appeal in the Marcos case, the Reagan administration, in an amicus curiae brief, repudiated that position.

How did you become involved in the Marcos case?

I really wanted to do a human rights case. I had been called by some other lawyers who were assisting the Republic of the Philippines government in recovering assets to come to some meetings but I indicated at that point in time that what I was interested in was a human rights case. Mrs. Trajano called the Philippine Studies Department at the U.H. and they referred her to me. Meanwhile I read about Bob Swift in the New York Times who had filed a class action against Marcos in Philadelphia and I called him up because I really wanted to participate in the case. I then joined him in that class action and the case was transferred to Honolulu.

How did your practice begin?

I started out taking court appointments. I had my first trial before Family Court Judge Betty Vitousek.

Do you have any partners?

No associates, no partners. I do co-counsel with other attorneys on select cases. I have three legal assistants.

Do you enjoy the independence of being a sole practitioner?

I do enjoy the independence very much but I would also enjoy having partners or a partner. However, I do things that a firm would consider to be high risk. For example, the Marcos case has taken seven years so far, and it's not your normal plaintiff case. Most lawyers would consider it to be too high risk. Not every-body would be willing to devote the time and the resources required to do a case like that.

And also there is no recovery yet?

Right... even seven years after the complaint was first filed.

How do you do it then?

You have to work really hard in the rest of your practice so that you can meet all your responsibilities to your employees and your landlord.

How would you describe your practice?

I would describe my practice as plaintiffs' civil litigation. We can't just be automatons.

Bar Presidency

How do you view your role as the bar president? Do you view yourself as just the bar president or as the first woman bar president?

I view it both ways: as a bar president to provide leadership, to encourage lawyers to move ahead in a positive manner for themselves and for the community; and as the first woman bar president, which I feel is an accomplishment, to provide a role model. I guess that people are looking to me for leadership because I am a first.

Have you encountered any barriers?

It's too early to tell. I have been asked by the ABA to lead a break-out session at the midyear conference. It is interesting that the percentage of women bar presidents across the nation is very low.

Previously you were a director and treasurer. Why did you decide to run as bar president?

I've always been committed to community activities. I became involved in the bar association and a number of women attorneys and other people who were interested in some of the other work that I do encouraged me to run.

Do you think that there is a problem in the 1990s regarding compensation between women and men?

I don't think there is any question about it. There is a problem! The HSBA has done a survey and it shows that women attorneys are not making the same amount as the male attorneys. The differential is quite striking in the high earnings. When you get up to the $100,000 range, you see that 10% of the men are making $100,000, 9.2% between $150,000 and $199,999, and 10% over $200,000, so we have almost 30% of the male attorneys making over $100,000, whereas not quite 10% of the women attorneys make over $100,000. The women attor¬neys seem to be grouped in the $25,000 to $75,000 category, with over 30% in the $40,000-$54,000 range.

Do you think that unequal compensation will be one of the issues you will focus upon during your tenure as bar president?

I definitely am in favor of comparable pay for comparable work.

But how do we accomplish that goal?

I think that doing surveys such as the one commissioned by the HSBA in 1991, drawing attention to the issue, and substantiating the claim is one way of doing it.

What do you think of law firms which may be willing to allow a woman to go part-time so that she may devote more time in raising her child, but they are not willing to allow her to continue on the partnership track?

It does not seem fair that she cannot be on the partnership track. An argument could be made that perhaps it would take a longer period of time to become a partner since she would not be putting in as many hours over the course of the year on a part-time basis, but there does not appear to be any justification to deny her the opportunity to work towards a partnership. We are all human beings and work has to accommodate our situations. We can't just be automatons. Go to the job every day; turn us on; and march forward.

What are your goals for the HSBA?

Another matter we'll be looking into is pro bono. We had a two-year program with an aspirational goal for lawyers to provide two hours of pro bono services per month with 24 hours for the year. The ABA actually recommends fifty hours and the ABA Model Disciplinary Rules have specific provisions for pro bono. When we implemented the two-hour-per-month/24-hour-a-year policy, we had indicated that at the end of two years we would be re-viewing the program. That review will occur this spring.

We will be developing a policy relating to pro bono so I'm looking forward to providing leadership in this area. We'll be working with various segments of the bar to formulate a comprehensive pro bono program.

Because of the underfunding of the Legal Aid Society all across the United States, the ABA is particularly concerned that the needs of the poor are even more unmet than ever before and they are redefining the definition of pro bono to make it more narrow, that is, a portion of the pro bono efforts must actually focus on legal services for the poor. Thus we will be looking at the definition of pro bono legal services: what is appropriate for our community.

The bar association is always looking to taking a leadership role in professionalism and we are very fortunate this year that Justice Baird Kidwell and Judge Michael Town have agreed to chair our committee on professional responsibility. Charlie Key who is our HSBA elected ABA delegate is Chair of the ABA Standing Committee on Lawyer Competence. Those are areas on which we'll continue to place an emphasis.

Another area which I'd like to work on is the quality of life. It has always been difficult to do business in Hawaii because the costs of doing business are so high. Now with the economic downturn we are experiencing it will be even harder for the lawyers, especially for those in private practice. There will be a lot of demands on attorneys to produce more. I'd like to work in this area to formulate ways to be more efficient in the office and then maybe we can have more time away from the office.

The HSBA should take a leadership role in how we are going to deal with the family leave policy issue, in how we're going to deal with fording more time to spend with our families. It is very important that we keep the overall dues under control.

Will you be using the information from the 1991 survey to accomplish this goal?

For years, I have chaired the Gender Bias and Other Fairness Commit-tee for the HSBA and I've also been the HSBA representative to the Judiciary's Committee on Gender and Other Fairness. I will continue to work towards the equality of pay for women and for other groups such as Native Hawaiians, Filipinos and Pacific Islanders-the breaking of the glass ceiling for people who other-wise haven't been represented in the upper ranks of the Judiciary or in the business community on the boards of major corporations.

How do you compare or contrast yourself with the past bar presidents?

I am more outspoken than other bar presidents have been. I speak my mind. Yet I think of myself as consensus oriented. I'm looking forward to working together with the board, moving forward together.

Another contrast is that I am the first woman president in the 92 year history of the association. Lastly, I am a plaintiffs lawyer and a solo practitioner and that is a little bit unusual because bar presidents have tended to be either corporate or defense attorneys. I hope that the HSBA will develop and grow in a positive direction.

Judicial Appointments

How active a role should the HSBA take on judicial appointments?

We've decided that we will take a "qualified, not qualified" position on Circuit Court and appellate appointments but at this point we don't have a procedure or policy to take a position regarding the District Court appointments. There will be a citizens' conference this summer, which we are co-sponsoring with the American Judicature Society with the participation of the Judicial Selection Commission, Hawaii legislators, the judiciary, and the Office of the Attorney General, to look at the merit selection process in Hawaii and to determine what areas might need improvement. That will be a major project for the summer. I believe that it's worthwhile for the HSBA to provide a forum to look at the procedure for judicial appointments.

What kind of information would the HSBA receive from the Judicial Selection Commission to take a position of qualified or not qualified?

Actually we don't receive any information from the Judicial Selection Commission because their proceedings are entirely confidential.

Then what kind of information would the HSBA receive in order to make such a determination?

We have a specific procedure that is set out on how the HSBA board of directors will approach the question whether a particular nominee is qualified or not qualified. However, the HSBA resources are limited.

Do you think it is necessary for the Board of Directors to take a position?

I believe that there is a need for a check and balance in the system. However, I am planning to solicit input from the members and to have further discussions on the role of the HSBA at the Citizens Conference this summer.

Since these are political appointments, how effective is the HSBA in taking such positions of qualified or not qualified?

The HSBA has some impact as a check and balance. Whether or not the HSBA can convince the Senate in its confirmation process would probably depend on each individual case.

What do you think about the individuals who express resentment or animosity towards the HSBA in taking these positions?

There are procedures in place now and that is positive. I am looking for input from HSBA members on this and other issues. In addition, the entire matter will be examined this summer at the Citizens' Conference.

On Zoe Baird

What do you think of the Zoe Baird episode?

I think that the chief law enforcement officer of the United States of America should not be hiring illegal aliens. However, it is troubling because in today's society with both spouses working, we all face serious child care problems. I do think that the questioning was gender-related.

I am certain that at the confirmation hearings of Ed Meese and John Mitchell there was no questioning revolving around child care. Child care arrangements should not blot out every other accomplishment in a person's life. We all have blemishes in our lives so I hope that de-cent, intelligent people with sincere moral convictions will continue to think about public service.

Since she paid the fines and taxes, can we look beyond the violations and focus on her superior credentials?

As the chief law enforcement officer of the United States, those particular violations are a problem. It wasn't as if she couldn't afford to hire Americans or those with a work permit. It wasn't as if she was a single mother in a destitute situation. To me her arrangements were economic exploitation.

The Balancing Act

Besides the bar presidency, what are your other volunteer activities?

I sit on the boards of directors for the Hawaii Bar Foundation, Public TV, and Hawaii Lawyers Care. I am on the Distribution Committee for the Hawaii Women's Legal Foundation. I am the HSBA representative to the HSBA Judiciary Committee on Gender Bias and Other Fairness.

Being a mother of three (two sons, ages 14 and 11 and a daughter, age 7), how do you balance it all seven years in an exceedingly complex case, other litigation, community activities?

That's an excellent question and it is very, very difficult to balance it all. I certainly could not do what I do without the unwavering support and love of my husband, Jon Van Dyke. You ask yourself the question whether you are devoting enough time to your children. They seem to grow up so fast. I can remember when my first one was born and then I felt like I blinked my eyes and now here it is fourteen years later. The time has passed really quickly and there are a lot of demands on my time.

On the day I was sworn in as president of the bar, it was also Makahiki at the school. I couldn't make it. The children felt badly and they complained. My children are not afraid to speak up.

How do you do it all?

I always say that you gotta get up and get going. The alarm goes off at 5:30 a.m. I'm in the office by eight and try to get home by six. Sometimes the weekends are not relaxing. For instance, next weekend I will be flying to Kauai to participate in a program to assist the victims of Hurricane Iniki on how to file insurance claims. The week after that I will be attending the ABA mid-year convention in Boston.


Why are the dues so high?

The dues of the HSBA are not that high; they are in the middle range of what state bar associations charge. Because we also collect the fees of the Office of Disciplinary Counsel, the Attorneys and Judges Assistance Program, and the Client Security Fund, that puts us higher.

Do you have any different views personally regarding the dues?

It is very important that we keep the overall dues under control and I am very much opposed to raising the dues. The HSBA has a five-year strategic plan so it's important that the other related entities establish their long-term plans to ascertain whether budgets can be met. All the officers will be reviewing the long-range budgets of the HSBA and related entities to ensure that the bottom line—even if the HSBA doesn't raise the dues—remains the same.

Will there be a decrease in the dues?

I don't really see a decrease right now. After unification of the bar, the Supreme Court passed a number of responsibilities to us, and that explains why the dues went up at that point in time. The HSBA is looking at other ways to raise revenues: endorsements for disability insurance, VISA cards, partnerships with the business community on projects.

There are so many employees hired by the HSBA which add to the HSBA's administrative costs. Are these costs necessary?

I don't think that we want to see the staff expanded any further right now. When you look into the various jobs that the staff does, you'd see that people are extremely busy and necessary. However, there is no foreseeable need to increase the staff at the present time.

Some practitioners feel that they receive no benefit from the HSBA. What is the HSBA trying to achieve?

The main reason for the unification was to increase the self-policing activities and the power of lawyers to take care of their own. Programs like AccessLine, Practice Management Advisory Panel and work-shops, Solo Firm Practitioner's Handbook, and Legal Secretarial Training Program are directed to-wards improving the professional-ism and the competency of attorneys. We all pay our dues for the ODC and hopefully most of us are not utilizing or requiring the expenditure of ODC time or resources, but the Disciplinary Board exists as a service to ourselves and to the public in order to monitor people in our profession. We are given an exclu¬sive license to practice law and with that is a duty and responsibility to monitor our own members and to improve our professionalism and competency as a whole.

Another major function the HSBA has as an entity is to organize volunteer efforts to benefit the public. Mock trial tournaments, homeless clinics, drugs & kids programs, and disaster relief efforts educate the public about the law and foster respect for the legal profession.

Do you think that the dues structure is a system of taxation to benefit certain projects pushed by individual board members?

I don't think so. There are certain projects which represent services to the public but that benefits all of us also, and there are services to the members. At the same time one must realize that we can't design every single service to benefit all 4,000 members. I've heard people complain about the dues and that's why it's really important that the dues not be raised and that we live within the planned budget.

Do you think that what the HSBA does reflects what each individual member wants?

We can always improve. I am always open to input from the members. I hope that the HSBA will develop and grow in the coming year in a positive direction so that members will be pleased and be satisfied with my presidency.

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