James “J.D.” Smeallie of Holland & Knight in Boston speaks out on athletic conference realignment litigation, leading the Boston Bar and being quoted in Sports Illustrated
Published in 2015 Massachusetts Super Lawyers magazine
on October 13, 2015
Updated on November 23, 2015
Q: J.D. is a pretty appropriate nickname for an attorney. Have you always gone by that?
A: I’ve gotten that before. I’ve been called “J.D.” since I was born. I have the same name as my grandfather. He went by Donald, which is the middle name. They didn’t want to stick me with Donald, so they just started calling me “J.D.” right off the bat.
Q: Was the law always your plan?
A: Coming out of Yale, I was actually interested in journalism, but I had a role model in my uncle, who was a really terrific trial lawyer in upstate New York. I worked for him one summer.
Q: What was his name, and what did you learn from him?
A: Dick Horigan. My dad died when I was little, so he was one of the men in my life who I admired a lot. He’s got tremendous character; very fair, good judgment and a really nice way of dealing with all kinds of people, and it conveyed very well to juries. He’s 90 and stopped practicing not too long ago. He’s still sharp as a tack.
Q: What was your first move after school?
A: I went to a firm called Bronson, Bronson & McKinnon in San Francisco. I had been a summer associate there and really liked the people. I got thrown into the fire quickly, got a lot of good experience.
Q: Do you remember your first trial?
A: I had everything but a trial out there. I was only there for two years. My first trial was here, and I remember trying [it] with another lawyer who was [also] trying his first case. The case involved a fight over who had the rights to a bug zapper technology. We were both about the same age and we over-tried that case brutally. We put in every single document we had in our files. We couldn’t help ourselves. We were so inexperienced we weren’t sure what was really important. The judge had no patience for us. But we wound up winning the case.
Q: Seems like it might be a common mistake for young attorneys.
A: It takes some time to know what’s really important and what the jury really needs to see and not see.
Q: How long did it take you?
A: I learned a lot in that first trial. I’ve learned that it is a big advantage in jury trials to be the party that looks like they’re making the case move more quickly. Jurors are not always happy to be in these longer civil trials. If you are the one that looks like you’re trying to speed things up, you’re going to get some points from the jury.
Q: How did you develop your education-based practice?
A: Most larger Boston firms have a group of education clients. It’s just a big industry here. I had done some defense work for a couple of colleges and gotten good results. There’s an insurer of many of the colleges and universities in the United States called the United Educators. They saw what I had done and asked if I would be what they call their “select counsel” in the Boston area. That got me a lot of work from a number of other institutions in the city.
Q: What’s different about representing an educational institution?
A: I tell people that probably 75 percent of the work we do for our education clients is the same sort of work we would do for any of our other clients. It’s traditional kinds of work that companies produce. There are a number of statutes and issues that are unique to education involving students, Title IX, tenure, financial aid issues, Clery Act reporting.
It’s very important to understand the culture of each institution. They’re all different, and they all have different ways of approaching problems.
Q: You have a unique niche related to athletic conference realignment. Is that a recent trend in athletics?
A: It’s not as recent as you think. I first got involved with those kinds of cases when Boston College moved from the Big East Conference at that time to the Atlantic Coast Conference. That was over 10 years ago. Conferences have constantly been morphing over time. They’re consolidating a little bit more into larger conferences of late. Most recently, I was involved in representing the ACC suing Maryland for the withdrawal payment when it left to go to the Big Ten.
Most of the time, we’re representing colleges, universities. We have a pretty large practice with independent schools in this area.
Q: Are those withdrawal payments what most litigation stems from?
A: There were antitrust issues that were raised in the ACC-Maryland litigation. But generally, at bottom, it’s a fight between the departing entity and the conference over the exit or the withdrawal payment.
In the Boston College litigation, it was more that the Big East did not want Boston College to leave. They sought injunctive relief and raised a variety of claims. At the last moment, when they knew Boston College was departing, they amended their constitution and bylaws to make it more difficult for Boston College to leave. Boston College had abided by the previous terms. They were ready to pay a million dollars at that time and give one year’s notice. So we moved for some re-judgment here in Boston, saying that the amendment that was passed was invalid and that we had complied with all we needed to do. The judge here agreed.
Q: Are you a sports fan yourself?
A: Yes. I have said before, the greatest thing about the cases is I get paid for reading the sports pages every day. It’s really not work when you’re doing those kinds of cases.
Q: Which teams do you follow?
A: Both of my boys went to Boston College. I’m a Boston College fan. I’m also fans of Yale and Virginia, where I went to school. And then, on the pro level, if you live in Boston you have a lot of great teams to root for. Primarily, for me, the Patriots and the Celtics.
Q: You were mentioned in a Frank Deford column some years ago in Sports Illustrated about Brian Dowling. Apparently, you did a study as an undergrad on Dowling’s popularity.
A: You’ve done your research. Brian Dowling was a very famous Yale quarterback. Actually, he was the model for the guy in Doonesbury who wears the football helmet all the time: B.D. Anyway, he was legendary in New Haven because teams that he quarterbacked were so good in his years. I had a course in American folklore, and one of the things we studied were legends. Christie Bader [and I] wrote a paper on the legend of Brian Dowling.
We had to squeeze his background and experience into the genre of “legend,” so it was a little tongue-in-cheek, to be frank. We actually got a good grade, and I thought that would be the end of it.
Years later, Deford does this article on Dowling and that great team that he had, and he must have gotten hold of my paper. He was citing it as if it was authority. When I read it, I couldn’t believe he was writing about our paper. There was a line in there about Dowling being “a swash-buckling pirate out of Cleveland, Ohio … ”
Q: “… on a sea of cod fishermen!”
A: Or something like that. It was amusing to me. I was able to say to my friends, “Have you ever been cited as authority in SI’s college football issue? Well, I have.”
Q: So it lived on long after you expected it to, but it shows you were involved in the sports world even back then.
A: Actually, Dowling was my quarterback coach on the freshman team at Yale. I was an erstwhile quarterback that didn’t advance beyond the freshman team, but I got to know Brian. I see him once in a while here in Boston.
Q: And since then you’ve been quarterbacking legal teams. Tell me a little bit about your stint as president of the Boston Bar Association.
A: The staff is terrific. It’s a huge honor to have been elected president. One of the things that you’re allowed to do as president is to have a project for the year. We created a statewide task force to try to figure out how to expand some of the legal aid for the poor in our state. It took a couple years to complete that work, but our report has been well-received here and around the country for some of the information we have in it about how many people are turned away who were eligible. Not only that, [but we also had] three outside consultants come in and make a strong case that you can actually save money. For every dollar you invest in civil legal aid directed towards housing cases, you save about $2.69 in costs of homelessness that the state bears when people are thrown out on the street after they lose a case in housing court.
Q: In fact, you’ve written about the need for people to have counsel in these cases.
A: It’s not a fair fight when someone’s in court without a lawyer and the other side has a lawyer. Even though the judges try to do their best to help unrepresented litigants, a lot of [those litigants] don’t know what evidence to bring to court or how to state their case.
Q: Tell me about the bar’s response to the marathon bombing.
A: Like everybody in the city at the time, people were all trying to figure out how they could be helpful. We at the bar were trying to figure out where lawyers might fit in. The whole area around the bombing itself became one gigantic crime scene for weeks, if not months. All the businesses in that vicinity, even if they weren’t damaged by the bombs, were closed. That created all kinds of issues for them, insurance issues, employment issues, lease issues. We worked with the mayor’s office to offer our services to help those people on a pro bono basis. We had an overwhelming response from lawyers at the Boston Bar who volunteered.
This interview has been edited and condensed.