Trial Advocacy, Navigating Structural Barriers, and a 40 Year Career in Justice with Kenneth J Kunken

Welcome to Studying Law Around the World. I'm Claudio Claus. In each episode, I talk with lawyers, law students, and professors from different parts of the world to talk about legal education, careers, and what the profession looks like in real life. We talk about the hard parts, the surprises, and the decisions that shaped their paths. Whether you're planning to study abroad, thinking about working in another legal system, or just curious about how law works around the world, this podcast is for you. Hello everybody, welcome to another episode of studying law around the world. Today I'm having the privilege of interviewing Ken Kunken. Ken has an incredible story and I'm so excited that he's here to share with us today. He has a story that is quite unique. He broke his neck playing football for Cornell University in 1970, living in almost totally paralyzed from shoulders down. After a lengthy hospitalization can return to Cornell where he completed his undergrad degree in engineering. He then earned a Masters of Arts at Cornell in education as well as a Masters of Education degree at Columbia University in psychology. Ken became a nationally certified rehabilitation counselor. He worked for more than two years at Abilities Inc, where he provided vocational and placement counseling for severely disabled individuals. Wanting to accomplish still more, Can enrolled in Hofstra University's School of Law. Can then worked for more than 40 years as a Nassau County assistant District Attorney, where he became a deputy Bureau chief. Thank you so much for making the time to be here, Ken. Once again. Ken is married and a father of triplet boys, and also the writer of I Dream of Things That Never Were, the Can Cancan story, which was published in 2020. 3 Thank you Claudio. Thank you for having me as your. Guest absolutely. I'm very happy you're here today. OK, well I'm currently 75 years old and happily retired, but as you said, in 1970 I unfortunately had a spinal cord things really playing football at the beginning of my junior year in college, and as a result I'm a quadriplegic. I'm almost totally paralyzed below the shoulders, so I have just a little bit of movement in my left arm and nothing on the right side of my body. But I was fortunate that after a lengthy period of hospitalization and rehabilitation, I was able to return to school, get a number of degrees and eventually go to law. School. So when when you look back at your legal career, maybe what are some of the biggest structural or institutional barriers that you faced and which ones do you think should exist for lawyers? Today. Well, that's interesting question. Got injured in 1970. That was about 20 years before the Americans with Disabilities Act took effect. So architecturally, very few facilities were accessible to somebody in a wheelchair. When I went back to Cornell soon after my injury, my first day of classes, I had to be either pulled up or bounced down close to 100 steps just to attend my first day. Well, let me jump ahead to going to law school and then working as a lawyer. Through a lot of help from classmates and personal care attendants and family, I was able to complete law school in the standard three-year time period. I did an internship at the Nassau County District Attorney's Office and really liked it a lot and when I took the bar exam they needed to make special arrangements for me because I couldn't write. So they had somebody assigned to do the writing for me, but they only gave me a little extra time before the other individual started. They didn't give me any extra time on the back end, which meant it takes a few hours just to get me up and ready in the morning and they get to the test. So even if I were to get up at 5:00 in the morning, I would have difficulty getting there at 8:00 in the morning to get a little extra time to start the test. Now in America they give you 2 extra days to take the ball exams instead of in two days you can have four days. They didn't do that when I took it. I still had to do it in the required 2 days and only had a slightly more crime at the beginning then the rest of the test takers. So that was quite a challenge. So let me jump ahead and say that I was able to complete law school in the standard three-year time period. Passed the difficult New York State Bar exam the first time that I took it. Began my work at the District Attorneys office by participating in a very intensive 4 week training program where they taught us all aspects of trial techniques from a prosecutor's perspective. And I very proudly went to court my first day only to find I couldn't fit through the swinging doorways in the courtroom. They were too narrow to allow me to get through in my electric wheelchair to get to where the lawyers sat and to the prosecutors table. So that's how I began. After all that schooling, all that training, I had difficulty getting into the courtroom. So you talk about structural barriers and obstacles. I would say that's one of the 1st that I encountered. Absolutely. And and when you think about, you know, what practicing law looks like today, I'm sure that, you know, a lot has has gotten better over the years. But do you see some kind of kinds of barriers as well in today's world for lawyers? There's still a lot of attitudinal barriers. I mean, people with disabilities, while now they have a better chance of getting employment, still face a lot of discrimination. And it's tough to convince an employer that while you may have a certain physical disability, there's still a lot you could do and they need to look at your abilities rather than your disability. I might add that when I was first heard in 1970 and I was undergoing rehabilitation, I was at a well known rehabilitation institute and I kept trying to find out more about my disability and the medical profession seemed reluctant to share much information with me. But I was able to get a hold of a pamphlet that the rehab facility put out and it described a lot about spinal cord injuries. And I'm injured between the 4th and 5th cervical in the neck. And they had sections broken down by the level of your injury because that determines how much movement you might have. Now I have, as I said, just a very little movement in my left arm, nothing in my fingers on my wrist, and nothing on the right side of my body. So I remember when I looked up what type of career I could do as what they call it, C45 quadriplegic. The only job that I saw for somebody in my condition would be to someday sell magazine subscriptions over the telephone. And I was devastated. I mean, here I had been studying engineering at one of the finest colleges for engineering in the country. And now it seemed like I was looking forward to selling magazine subscriptions over the telephone. And then to make it worse, Claudio, they didn't even have touch tone phones back then. They only had Rotary phones. So I was not even able to dial a telephone, let alone take notes right or make the phone call. So it didn't look very promising. And the computers back then, this was before they really had laptop computers or, you know, they were just starting to develop it. So I really didn't have enough movement to use, you know, one of these tabletop computers. And it was difficult to do anything my computer. And it was really before they started with the voice recognition computers. So trying to do legal research when I was in law school was really, really difficult. And, you know, getting books to do research or, you know, help with trying to prepare, you know, a case when you have difficulty taking notes was incredibly frustrating and difficult getting through law school. I mean, there was so much reading to do and I had difficulty having turning pages of a book to try and read, you know, let alone get books off the library shelf to do legal research. So I faced a lot of challenges. Most people never had a face. How did other peoples expectations, you know, whether they were low or whether they were very high, shape your career choices and opportunities overtime, especially as you joined the legal field. The expectations for someone in my condition was so low that everybody seemed to have the attitude, you just can't do it. I mean, face it, with your disability, you're not going to be able to do it. And I was convinced, you know, I can still do an awful lot if I'm just given the opportunity. So let me talk a little bit about before I even went to law school here. I got a bachelor's degree from Cornell and engineering became the first quadriplegic to ever graduate from Cornell. But I knew engineering was not a viable field for me. Again, this was well before they had laptop computers. So I pursued a career in counseling and I went to Cornell, earned a Master of Arts degree in counseling and student personnel administration, became the first quadriplegic to ever earn a graduate degree from Cornell. And then I went to Columbia University and earned a second graduate degree. This one was in psychological counseling and rehabilitation. And at the very beginning of that degree, I met with my advisor who told me despite what they were teaching in rehabilitation counseling, he wasn't sure I'd ever be able to even get a job. He felt it would be so difficult to get a job in my condition. Even people in the rehabilitation field would be hesitant to hire. Well, I was determined to move forward. And you know, when I completed the schooling here, I had two degrees from Cornell, 1° from Columbia, 3 prestigious Ivy League degrees in America, which is very prestigious, 2 masters degrees, and no one would hire me. I mailed out and not emailed. They didn't have it. Mailed out physically more than 200 resumes and looked for a job for a year. And everybody seemed to think that was just too disabled to work, Claudio. I was even turned down when I offered to volunteer my services. So that's what it was like back then. And I was fortunate to find one organization willing to give me the opportunity to show what I could do. And that organization was Abilities Incorporated, which is part of what's now called the Viscardi Centre, after its founder, Doctor Henry Viscardi. And they hired me to work as a vocational rehabilitation counselor for other individuals with disabilities. And part of my duties would be to speak at conferences and organizations concerning affirmative action and non discrimination for people with disabilities. And after my talks, I would often be asked questions and I was always careful to caution. The question is they should really consult with a lawyer about their concerns. And I guess it didn't take long before I started to think, you know, there's no reason why I couldn't become that lawyer. So I left my job and went to the Hoster University School of Law. And I might add that I have an older brother who was practicing criminal law at the time. He was a defence attorney. So I used to go to court and watch him. And I thought this looked like something interesting that perhaps I could do. Now, I might add that when I was finally given the chance to work, that did wonders for my self esteem, myself, confidence, my feelings of self worth. Because after being told no so many times and that you just can't do it, finally I was there in a position where I could help others. And that made a huge difference for me. Absolutely huge. But I had the opportunity to do an internship while I was in law school at the district attorneys office. And I just fell in love with the job. And I thought it looked like something I could do because to me, it looked like I'd be using my speaking ability as opposed to a lot of research and writing. And I thought it took a lot of guts on the part of the district attorneys office to hire me when they did. Because when they hired me, there had not been a quadriplegic who was an assistant District Attorney on Long Island ever. So here I thought that took a lot of guts on there. And in fact, they hired me to be a trial attorney. So I was actually going to court and trying cases before juries. You just didn't see that back then, certainly not on Long Island. And I've been very happy with my career choice of pursuing. More that's amazing. So you you did work for decades as a prosecutor and I want to hear a little bit from you, you know, what the justice look like to you in practice and also throughout your career, you know, did your perspective on on fairness on on, you know, this aspect of justice evolved and changed. Very much so. You know, when I worked as a rehab counselor, I think the advice that I was given is going to some type of advocacy law, see if you can help others with disabilities. But as it turned out, I just grew really attracted to working in criminal law thanks to watching my brother and doing the internship at the DA's office. But of course, watching my brother, he was a defence attorney, so he worked on the other side of the Ohio. So I was used to looking at every case from a defence perspective. And suddenly here I did an interview internship, the DA's office and really enjoyed not only the work there, but how physically it made more sense for me to be on that side. For one, my office, the district attorneys office, was in the same building as the courthouse. Now that made a huge difference because defence attorneys didn't have their office in the courthouse too. We had a lot of secretaries and law student intern as well as police detectives and police officers to help with the with the work. It just seemed to make the most sense for me to work on the prosecution side and that was something I never thought I would do. I mean, God, there were a lot of television shows about lawyers when I was growing up. But everyone, the hero was the defence attorney. You didn't see the hero of it being the prosecutor. So it was quite a change for me to decide to work as a prosecutor, and I was so fortunate to be hired and given that opportunity. That's fantastic. Well, I feel like many lawyers, you know, to this day feel pressured to feet, you know, a certain image of what success looked like. And I'm curious, did you ever feel that kind of pressure and and how did you, you know, come to the find success on your own terms? I felt a lot of pressure being in the office because I'm dealing with victims of crimes all day long. And many of these victims have been severely traumatized. They this has changed their life forever. You know, they didn't feel safe alone at times. They didn't feel safe going into court and facing the defendant and being cross examined about, you know, the worst incident of their life. And dealing with witnesses, you know, took a lot of understanding to know how difficult it was for them, right? And to encourage them to come into court and relive that terrible experience while the defence attorney is cross examining them and trying to show that either they don't remember correctly or they're mistaken or just not telling the truth. And here I am dealing with witnesses now trying to reassure them, calm them down because they're all really nervous. And I found my, my background in psychology and education helped a lot with that. I found my background in engineering helped me approach all my cases with a very logical step by step process. So I think my very bracket background helped a lot and what I ended up deciding to do. I understand that throughout your career, too, you have supervised lawyers, you worked closely with different teams. And what have you learned about, you know, leadership, trust, performance? What are some of the things you observed in these environments where people bring very different lived experience? Well, it really helped a lot my background and eventually after doing a whole lot of trials and pretrial hearings and grand jury presentation, I've been promoted a number of times until I eventually became one of the deputy Bureau chiefs of our county court trial Bureau. And now I was supervising more than 25 other assistant district attorneys. So I think both my education and psychology background helped a lot with dealing not only with witnesses, but dealing with the assistant district attorneys as well. Many of them were new assistants, so they were still learning trial techniques. So there was a lot of teaching involved in what I was doing. But in addition, I, I think most people don't realize or recognize a lot of lawyers are very nervous before they go to court as well. People think you're used to that. Well, I was dealing with a lot of relatively new assistance and going into court can be very intimidating And knowing, you know, your witness is going to be cross examined And there are a lot of, you know, not just witnesses, but there are police officers watching you. They're judges and court officers, but also witnesses that are depending on you. And now you're in front of a jury and picking a jury and trying to look confident when there's so many things racing through your mind and trying not to forget anything. And knowing that if you screw up on a very serious case, the defendant could be let go and perhaps threaten or harm, you know, one of your witnesses. And that couldn't be incredibly scary and intimidating when, you know, there's a lot riding on this. And your witnesses, your victims, are placing their entire faith into you and the system, and it's a lot of responsibility. And, and, and, and Ken, thinking about, you know, specifically our audience here, our young lawyers, early career professionals, how they can, you know, navigate all the different pressures that a recent graduate has, whether that is, you know, student loans or whether that is, you know, having a family or just, you know, this need to succeed in the profession that they're just starting and understanding all of this context. I'm curious, you know, if, if a young lawyer today feels that the system was not built with that in mind, what practical steps would you suggest to help them build a meaningful and sustainable career? Well. 1 work on their listening skills. I mean, sometimes you are so focused on the question you're going to ask next or what's the next thing you need to do that you forget to listen to what you're witnesses are telling you happen. And when you're trying to ask questions and a witness may give you an answer you aren't expecting, sometimes you got to deviate from what we planned script you might have and follow up on the questions and answers that you just received. And as I said before, you got to recognize a lot of the attorneys you're supervising are under a lot of stress, are feeling very nervous, and a lot of times you've got to just help them to relax and be the best they can be and develop self-confidence in themselves. And another thing that you need to develop your skills is learning the law really well. I mean, when you're a supervisor, people are hitting you with questions from all different sides and all different cases all at once. And when you're a trial attorney, you usually try to learn as best you can all the facts and rules of law pertaining to that one case. When you're a supervisor, you're being bombarded with questions about 20 or 30 different cases all at once. And you need to try and learn the law as best you can. Be patient with all of these questions and concerns and do your best to guide the young lawyers appropriately, as well as dealing with witnesses and police officers and judges. Will often get frustrated with the district attorneys office because they wanna move cases along and while they're often very cognizant of the defence attorney schedules, all witnesses time where they may be on vacation or away, they usually feel the district attorneys office is so big you could always have somebody step in and do the case. Well, that's not necessarily true. I mean, it takes a lot of work to prepare a case, you know, bring it up to speed where it needs to be. You can't just suddenly substitute one assistant for another. It doesn't work that way. So you're dealing with a lot of factors all at once, whether they be your witnesses, the police officers, the judges, the defence attorneys and their schedule. Um, as well as you all know, offices, guidelines and pressures that there's a lot to juggle all at once. And it's very stressful, not just for the other ADA, it's stressful for you as well. As we, as we go towards the end of our interview today, I wanted to ask you, you know, continuing on on on this idea of what, you know, young lawyers should keep in mind as they, you know, go about their careers. You, you gave an amazing advice of, you know, listen more, see what is needed of you. What are some other things that, you know, maybe as you were working with younger attorneys towards you throughout your career, you maybe saw that somebody did that really impressed you and that, you know, was really helpful? Well, one is to do your best you can to reassure the lawyers your supervising because as I said, many times, they're very nervous. They're under a lot of stress and they feel inadequate that they don't know the law well enough to go into court and face somebody who may be more skilled than them, you know, had more experience as an attorney. And one of the things I got to reemphasize is nobody's born with this knowledge. You know, you learn it oftentimes gradually. And you've got to do your best to study hard, listen to what you know, your witnesses are telling you, read up on the law, attend other colleagues trials and pretrial hearings to get, you know, a lot of suggestions how other people do it and to do your best to relax. You obviously do a better job when you're relaxed than when you're under a lot of stress. And to know that it's a learning process. Don't be too hard on yourself, but don't lose confidence, you know, never quit, never give up. And if one trial doesn't go the way you would have liked it to have gone, move on to the next one and hopefully you'll do better. It's my pleasure. And if I could help others, that would be my pleasure to do. And I might add that in addition to supervising ADA, I also supervised a lot of law interns. And not only did I enjoy that, but I was trying to impart to the interns, whether it be tips or basic information that I thought would have been helpful at somebody imparted to me while I was in law school or thinking about a career. And I hope experienced lawyers will be very willing to help other students in law school or once they're out in the field to gain that knowledge and that experience and know that nobody's born with this knowledge or experience. And it takes a while to develop and get good at it, and to be patient and do your best to help make the system work for everybody. Thank you all for tuning into today's episodes.