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Bar News - March 19, 2010


DOVE Case a Milestone for New Lawyer

By:


Kirk Simoneau, a first-year lawyer, appeared before the NH Supreme Court to appeal an unfavorable ruling in a DOVE case.
Dave Nixon walked into Kirk Simoneauís office last summer and threw a file on the new associateís desk. Nixon told Simoneau, admitted to the Bar in 2009: "Maybe weíll have better luck if you take this one, kid." Simoneau didnít know that taking the case would mean appearing before the NH Supreme Court in his very first year of practice, and winning what turned out to be a significant victory in domestic violence law.

A 2009 graduate of the Webster Scholarís program at Franklin Pierce Law Center (FPLC), he had been with Nixon, Raiche, Vogelman, Barry & Slawsky only a few months. In the folder was a domestic violence case referred through the NH Bar Pro Bono Referral Programís DOVE Project which David Nixon had argued in the lower court.

Simoneau received a lot of help on the case from his boss as well as from another new lawyer, Wendy Guthro, a Massachusetts attorney who was being mentored by Nixon through the Bar Associationís New Lawyerís Committee Mentor program.

"Sheís terrific," says Simoneau. "She did so much researchóright up until we entered the courtroom, really. And since there was a question about personal jurisdiction in the case [because the abuse had taken place in Florida], she said, ĎLetís just argue that itís a status determination, so you donít need personal jurisdictionóthat should be enough.í"

In late January the decision on the case (Hemenway vs. Hemenway), which was argued in October of 2009, was handed down and affirmed the family divisionís order protecting the plaintiff from abuse. The Court decided that the language of RSAs 173-B and 490-D2 grant New Hampshireís family division subject matter jurisdiction over domestic violence petitions regardless of whether the alleged acts occur outside New Hampshireís "geographic territory." Personal jurisdiction over a client is not necessary for a New Hampshire court to issue a domestic violence order of protection.

Taking a DOVE case was not an unusual thing for Nixon to do; he is known for his on-going involvement in pro bono work. "I think itís his way of giving back," said Simoneau in a recent interview with Bar News. [Nixon, Jack Middleton and Kimon Zachos recently shared the Distinguished Service to the Public award at the NHBA Midyear meeting.] "Heís a great boss and itís a great place to work," continued Simoneau. "Dave and Larry (Vogelman) and the other guysóthey keep me involved; they say itís part of my education."

Going the Extra Mile for Mentoring

"Dave arranged for me to have lunch with retired Supreme Court Chief Justice David Brock before I went into court," says Simoneau. "Justice Brock told me: ĎDonít try to entertain the court. Keep it short and to the pointóand sit down early.í I tried to follow that advice."

  Nixon, Simoneau and Guthro all worked on the brief, keeping it to only eight pages. Simoneau, speaking without notes, gave the oral argumentóand kept it as short as possible.

Simoneau also argued the case beforehand in moot court. "I got that idea from Amy Messer when I did my externship at the DRC (Disabilities Rights Commission). She did a moot court for one of her cases."

Simoneau asked two of his former teachers at FPLC, Ellen Musinsky and John Garvey (director of the Webster Scholarís program) to help him set up his moot court using the current Webster Scholars. "Practicing my argument ahead of time in a court setting helped so much," says Simoneau. "NHLA (NH Legal Assistance) also participated and was very helpful."

Garvey attended Simoneauís Supreme Court presentation in November and as they were leaving the courthouse, Simoneau asked his former teacher, "How do you think it went?" Garvey replied with a smile, "I think youíre client-ready," a reference to the aim of the Webster Scholarsí program: to make students client-ready by graduation.

Becoming a Lawyer

It was a family tragedy that made Simoneau, at the age of 35, decide to become a lawyer.

"My wife and I and our young daughter had flown down to Florida to visit my parents. It was our first visit to their new condo and my father had come out to wave us in and show us where to park." Simoneauís parents had both been born deaf and did not have a telephone, so Simoneau had not called from the airport to tell them they were on the way. "But I knew Dad would probably be outside waiting for us," Simoneau said.

When they arrived, Simoneauís father was outside to show them where to park. At that moment, a drunk driver came careening down the street. She struck Simoneauís father, fatally injuring him.

The driver did not stop. Simoneau had the presence of mind to run into the street, flag down a passing motorist and ask him to "follow that car," giving a description of the vehicle and the license number. The driver obliged and actually pulled the drunk driver over. Simoneau held his injured father until the ambulance arrived.

When the police caught the driver and tested her, she had more than three times the legal limit of alcohol in her bloodstream.

A criminal case followed some months later, in Florida. Simoneau flew down to help his mother and discovered that the defense, in an effort to delay the trial, had petitioned the court to put off the up-coming hearing because of a recent hurricane. Appearing in court himself, Simoneau told the judge, "In spite of the hurricane, I was able to fly in today, my hotel housed me, restaurants fed me and the court is openóand I see many other activities going on as usual."

The judge denied the petition; the defense attorneys countered by saying that they didnít have power at their office and couldnít read the prosecutionís documents. The judge replied, "Does your building have windows? Do you have daylight? I think you can read the necessary documents."

When the defense tried somehow to use Mr. Simoneauís deafness as an excuse for his death, the judge said, "What do you take me for? Because you canít hear, it doesnít follow that you canít see."

Simoneau returned to New Hampshire and began researching personal injury cases; he wrote a long paper in support of his fatherís case. His motherís attorney called him one evening and said, "Can you be down here tomorrow morning? I want you to present this paper, but we go into court tomorrow."

Simoneau caught a night flight and arrived in time to get to court. The defense wanted to void the second arm of the prosecutionís caseófailure to give aidóbut Simoneau convinced the court to keep it.

The woman, who was a repeat offender, was convicted of DUI/manslaughter and also of failure to render aid. She received total of 25 years in prison and is currently serving her sentence. She never owned up to what she had doneóand never apologized to the Simoneau family. If she had done so, the sentence probably would have been much lighter.

When it was all over, Simoneau asked himself, "What would my mother have done without my help? What if I hadnít been there with the necessary legal arguments?" Thatís when I decided to become a lawyer, he says.

In fact, lawyers do seem to run in the family. Arthur Gormley, Jr., a part-time judge in the Nashua District court, who died in 2009), was Simoneauís uncle. (Arthur Gormley III, an attorney in Nashua, is his cousin.) It was "Uncle Arthur" who came down to Florida to help Simoneau through the civil case. Gormley also helped him choose a Florida lawyer to seek a monetary award for his mother.

When he was a teenager, Simoneau clerked for Gormley. "It was from him that I learned how a gentleman in the law behaves," he says.

Not an Easy Life

Growing Up with Deaf Parents

"I really didnít consider my life that much different from anyone elseís," says Simoneau, reflecting on his childhood. Itís trueówe didnít have bedtime stories read to us or nursery rhymes sungóbut we had two loving and devoted parentsóand my grandparents were around a lot, too, so that helped with spoken language."

Simoneau decided when he was in sixth grade that he would start listening to newscasters and emulating their speech. "Not just because there might be some small differences in my speech because of having deaf parents, but because I wanted to speak without any kind of regional accent. So I listened to them all, Dan Rather in particular. I figured I might never be smart, but that I could sound smart."

Simoneauís grandfather owned property in Hampton, NH, with some beach cottages. His dad noticed there was a little extra space on the property and asked whether he could have that space for a car park. Later on, he bought his fatherís cottages, tore them down and made a larger parking lot. "At first I thought he was crazy," says the elder Simoneau. "But he made more money in one year than I made in four."

During his boyhood and teen years, Simoneau helped his father with the business. "I worked at Hampton Beach, talking for my father if it was necessaryóand signing to him what others said. My dad made a good living with that parking lot." Simoneau has two brothers. "All three of us went to college," he says, "and we all got graduate degrees, too." One of his brothers is a non-practicing attorney.

Note: The April issue of Bar News will feature an article by Kirk Simoneau titled, Working with Deaf Clients. Simoneauís concern for the hearing-impaired recently led his firm to hire a sign language teacher to hold a class for the staff.
 
In spite of some tough times in his personal life, Simoneau persisted in following his goal of becoming a lawyer. Before going to law school, Simoneau helped run several small businesses his father and grandfather had established. He believed his fatherís accomplishments were exceptional, particularly considering his deafness in a hearing world. (See sidebar.)

Simoneau represented the family through Simco Creative Communications, presenting motivational seminars on how to achieve success in businessóand also wrote a regular column for the Nashua Telegraph. He lives in Bedford with his wife and three daughters.

His wife, whom he credits with the success that he has had thus far in his legal career (he graduated from FPLC magna cum laude), has fought breast cancer twice and is presently recovering from reconstructive surgery.

Not long ago, his mother was diagnosed with the early stages of Alzheimerís and has since come to live with Simoneau and his family.

"And even though my wife was facing so many challenges of her own, she welcomed my mother into our home," says Simoneau, huskily. "Sheís a wonderful woman."

Simoneau has recently learned that he himself has an auto-immune disorder (doctors donít know which disease yet), but he hasnít let it slow him down. He has attended many recent Bar events and appeared in court, sometimes with a knee walker, on crutches or using a cane.

And heís recently argued his second case before the Supreme Court.

This time it was Larry Vogelman who came into his office and threw a folder on his desk. "Letís see what you can do with this one, kid," he said.

If you are interested in taking a DOVE case, contact Pam Dodge at pdodge@nhbar.org or by calling 603-715-3230. If you are interested in mentoring (or being mentored!), contact Rose Anocibar at ranocibar@nhbar.org or by calling 603-715-3214.

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