Retiring Professor Kent Sinclair Reformed State Court Procedure, Boosted Clinics

Agent of Incremental Change in Judiciary Also Helped Students Gain Practical Experience
Kent Sinclair

Professor Kent Sinclair, director of advocacy and lawyer training, is retiring after 35 years of effecting incremental change.

April 24, 2018

When Kent Sinclair arrived at the University of California, Berkeley, as a law student in 1968, the campus had become a hotbed of an­ti-war and leftist activism. Over the next three years, the university witnessed some of the most tumultuous student protests of the era.

“There were National Guard troops on every cor­ner for my second and third years of law school,” Sinclair said. “It was a police-state feel in some re­spects, but the law school was a little citadel on a hill.”

Sinclair spent most of his time up in that citadel, working methodically at honing his skills rather than joining his more revolutionary-minded colleagues down at the barricades.

Retiring in August as a UVA Law School profes­sor and director for advocacy and lawyer training, Sinclair can look back on a career that proves the value of quietly working toward change over time.

Across Virginia, he has played a leading role in updating the state’s civil court procedures and evi­dentiary rules. At the Law School, he has helped expand clinical education.

Throughout his career of incremental reforms, Sinclair con­tinued his work as an educator, teaching civil procedure, evi­dence and Virginia practice. He published more than a dozen books, including textbooks on Virginia civil procedure as well as trial handbooks, and he continues to work on new editions and updates.

Roots in Court

Sinclair's grandfather was a California lawyer and his great-grandfather was a barrister in London, so it felt natural for him to study law.

“It seemed like the path for somebody who liked public speak­ing and writing and marshaling of arguments,” he said.

At Berkeley’s Boalt Hall, Sinclair developed his abilities in oral and written argument. He worked on the California Law Review as the chief notes and comments editor, and won the school-wide James Patterson McBaine Moot Court Competition.

Sinclair (second from right, front row) with then-Gov. Robert McDonnell, state officials and Virginia Bar Association representatives at a ceremonial signing in 2012, adopting the Virginia Rules of Evidence.

After graduating, Sinclair clerked for Chief Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit.

He next joined the litigation department at Shearman & Ster­ling in New York, where he focused on securities and antitrust litigation. Nearly all of his experience was in civil litigation, with his only criminal experience coming during a stint representing the chairman of Gulf Oil during the Watergate prosecutions.

In 1976, a magistrate judgeship became available in the U.S. District Court for the Southern District of New York. Magistrates are responsible for the handling of civil and criminal cases, handling pretrial matters in civil litigations and preliminary proceedings in misdemeanor cases, setting bail or conduct­ing evidentiary hearings. They also preside at civil trials on consent of the parties.

The position required expertise in civil procedure and the law of evidence, and appealed to Sinclair’s desire to grow beyond advocacy.

“It had that judicial role, that independence, and the obligation to try to be fair and to weigh the arguments rather than to push for a particular client’s position,” Sinclair said.

He applied for and received the position.

Sinclair’s experience handling securities and anti­trust cases dovetailed well with much of the New York Southern District Court’s docket, which oversaw New York’s financial industry. However, the judges worked on rotation; Sinclair presided in criminal court once every seven weeks. Since his experience in criminal matters was more limited, he had to hustle to catch up.

“I followed a lot of checklists and did a lot of research in the weeks when I was on criminal duty,” he said.

Defendants Irwin Margolies and Madeleine F. Margolies, U.S. Attorney Stephen Schlessinger and Sinclair, then a U.S. magistrate judge, appear in court in 1982.

After about seven years on the court, Sinclair decided to pursue a passion he had begun developing while at Shearman & Sterling: legal education.

Creating Clinics

Sinclair's teaching career began in 1973. He taught evening classes on evidence and trial procedure at Fordham Law School.

“I looked forward to that every year when the aca­demic year began,” he said. “So when it came time to leave the court, it was pretty clear that devoting my energies to teaching, as opposed to going back to a large New York law firm, would be a more satisfying path.”

Sinclair and his wife, Katy, moved to Charlottesville in 1983. The first classes he taught at UVA Law were Civil Procedure and Evidence. He also supervised the Virginia Continuing Le­gal Education Office part time and oversaw the Law School’s Criminal Defense Clinic.

In the early 1980s, there was no clinical education depart­ment, just the lone clinic.

“Clinical education at the time was not a focus for top law schools,” Sinclair said. “That started to change.”

Under Dean Richard Merrill and continuing through Dean Bob Scott’s tenure, Sinclair worked with the Charlottesville Bar Association to identify bodies of litigation in the local courts that might allow students to engage in supervised practice.

“We were fortunate in 1984 to hire Richard Balnave from Pennsylvania to work on a clinic involving domestic rela­tions law,” Sinclair said. “And I guess the trajectory of the Law School’s clinical offerings has been steeply upward ever since.”

Today, clinical training at the Law School is robust. Nineteen clinics — 17 taught this academic year — allow students to gain ex­perience on actual cases.

Balnave retired last year, be­coming professor of law emeri­tus. He praised Sinclair for his part in laying the groundwork for expanding hands-on student experience opportunities.

“Kent worked with faculty to identify curricular needs and expert practitioners who might willingly give their time and ef­forts to help our law students delve deeper into their areas of interest,” Balnave said. “It was a large and time-consuming responsibility.”

Sinclair began teaching at the Law School in 1983.

Along with developing clinical education, Sinclair and Balnave also worked together to increase the availability of alternative dispute resolution in Virginia. From 1986 to 1992, Sinclair served on the Virginia State Bar Task Force on Al­ternative Dispute Resolution, which developed statutes that made it easier for parties to seek remedies outside of litigation.

Sinclair and Balnave ran a service that provided local Virginia groups with draft versions of the documents they needed to set up community mediation centers. Mediation allowed parties to adopt a less adversarial approach to con­flict resolution.

“There is a positive social good in allowing people to come to their own agreements to resolve things,” Sinclair said.

"Stealth Reform"

When Dean Scott wanted Sinclair to devote time exclusively to teaching and law school administration, he resigned from the Office of Continuing Legal Education. One of his teaching specialties was Virginia law.

In 1986, Virginia Supreme Court Chief Justice Harry L. Carrico appointed Sinclair chair of the Virginia Supreme Court’s Advisory Committee on Rules.

“Virginia was, prior to the 1980s, very quirky,” Sinclair said. “It held out against a large number of reforms and moderniza­tions that characterized civil litigation in the federal system and in most states.”

One issue affecting Virginia courts was separate rules for equity cases versus “cases at law,” such as contract or tort cases. This arrangement was a relic of the 19th century, but had survived efforts at reform. It allowed some litigants to manipulate proceedings by maneuvering cases into whichever court’s rules would be more favorable.

From 1986 to 2006, the Advisory Committee on Rules worked to reform Virginia procedures to bring them closer to the federal court rules. Reform was slow because some members of the Virginia Bar had stakes in maintaining spe­cialized knowledge of the intricacies of Virginia’s old rules.

“There were people who could play that system like a violin,” Sinclair said. “They weren’t particularly interested in making it transparent, in making it simpler.”

To merge the rules involving equity cases and cases at law, he adopted “a conscious path of stealth reform.”

“I basically selected one or two rule topics every year and unified the provisions of the law and equity rules to function in the same way,” Sinclair said. “After 20 years of changing a rule or two at a time, we came to the position that there were no specialized rules that applied to one category of case and not to another.”

In 2006, the Virginia General Assembly amended the stat­utes to create a single form of civil litigation. The move was recognition that Sinclair’s reforms had knocked down the walls between different types of civil litigation.

“We had to change more than 40 statutes that had archaic provisions to allow a single, straightforward system of proce­dures and rules to cover all civil cases,” he said.

Sinclair was involved in another long-term reform effort to draft new Virginia Rules of Evidence that would track closer to the federal rules. He worked on the Rules of Evidence with a Virginia Bar Association group called the Boyd-Graves Conference for 20 years before the Virginia Supreme Court endorsed them and sent them to the General Assembly for approval.

“When I appeared before the General Assembly [in 2012] to urge them to adopt the Virginia Rules of Evidence, it was like selling motherhood and apple pie,” he said.

“Having clear, routinely applicable rules that could be used in arguments to the court and explained in case law seemed like a natural benefit.”

"The Long View"

Some antiquated quirks remain in Virginia procedure. For example, plaintiffs in civil litigation can call a “non-suit” and terminate a case at nearly any stage of the pro­ceedings, even during trial, and start the whole process over.

But for the most part, the reforms instituted in 2006 and 2012 gave Virginia court procedures a much-needed mod­ernization, bringing them closer in line with the rest of the country.

Sinclair expects to keep busy in retirement. He plans to continue working with the rules committee, as well as the Virginia Supreme Court’s Model Jury Instructions Committee, which edits a four-volume set of exemplary jury instructions relevant to the most common civil and criminal litigations.

Additionally, about eight of Sinclair’s books require regular updates.

“Much of my time for free intellectual energies is in updating those books from time to time and then doing newer editions every few years,” he said.

Looking back at the changes that have taken place over the past 30 years at the Law School and in the Virginia court system, Sinclair sees slow but beneficial progress.

“There was a bar presentation in the late 1880s in Virginia that urged that the equity courts should be separate from the law courts,” Sinclair said. “It took me 30 years of working on it, until 2006, so that’s over a century that people in Virginia have been looking for that form of clarity. You have to take the long view.”

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