Page 30 - Delaware Lawyer - Summer 2020

FEATURE
Chuck Durante
OF COUNSEL: Judge Mary Pat Thynge
The road to trial in federal court often leads through the office of the magistrate judge, for discovery issues, pretrial motions, arraign- ments or settlement efforts. For 28 years, over thousands of cases, that magistrate judge has been Mary Pat Thynge, who has played an acclaimed role in developing mediation as a rigorous and frequently successful process to resolve disputes.
Mediation was not taught,
or even mentioned, at Ohio
Northern Law School when
Mary Pat Albert was a stu-
dent in the 1970s. Like others
of her generation, she looked
ahead to a career of discovery,
trial and remedies. She mastered those tools at the highest level after returning to Delaware, in one of the most de- manding fields — defense of medical negligence claims, for 13 years at Biggs & Battaglia, three at White & Williams.
Those demands presented an extra staircase for a woman. The 30th woman in the Delaware bar when she was admit- ted in 1976, she could joust with the best, even if at least one time she had to jostle for respect.
At Motion Day, the Friday morning gathering of coun- sel who had filed motions in Superior Court the preceding week (and those who had to respond to them), every matter would either be resolved within five minutes or set for brief- ing or a later hearing. Counsel would gather, often for up to an hour, in a setting designed for collegiality, sometimes jocularity, among rivals.
At least one attorney, though, thought fellowship was only for fellas. “The male attorney who spoke first would step aside for the male attorney who would speak second,” she recalls. “I had to fight for that microphone. One time, counsel would not move from that microphone for me to talk. I just swung my hip as hard as I could and moved him out of the way.
“You could see the judge put his hand up to his face. You could see his shoulders shak- ing, and he said not one word.”
Equally purposeful when no one was watching, she finished her undergraduate degree at Miami (Ohio) in three years, working two jobs along the way. Victor Battaglia hired her for a second-year summer, then asked her to take on one of the most daunting challenges of a courtroom lawyer: to defend a white-coated professional, ac- cused by a patient, perhaps one left with a chronic condition. “She would do 95 percent of the work, and I would get 95 percent of the credit,” Battaglia told an interviewer in 2014.
She learned early what some lawyers learn too late: to listen skeptically in the initial interview with the client. “I retained a medical expert in the field in which the doctor practiced to get an idea of [whether] what the doctor told me was fully reliable. The doctor would provide the records and I would consult privately with the expert.”
When the District Court appointed her as a magistrate judge in 1992, on recommendation from its selection panel, she was charged with implementing a Congressional man- date, in the Administrative Dispute Resolution Act of 1990, into the court’s practices.
The rudimentary manuals for mediation suggested a two-step method that Thynge found cumbersome. She de- veloped her own approach, which proved successful.
“To me, being able to talk to the litigants is so important. That, and to take the time to read their mediation state- ments. In probably 98 percent of the cases, I do outlines of their mediation statements. In the process of doing the outlines, I have questions that I intend to ask each side. For me, just reading the mediation statement and putting tabs
See Of Counsel continued on page 27
28 DELAWARE LAWYER SUMMER 2020
Photo by Eric Crossan