Trial Briefs

Q&A With NCAJ Hero Susan Olive

March 22, 2021   |   Amber Nimocks

As we celebrate Women’s History Month, we recognize NCAJ member Susan Olive, one of North Carolina’s groundbreaking woman lawyers, with this profile published originally in Trial Briefs in July 2020.

Firsts are nothing new for Susan Olive. In more than four decades of practicing law, she has been: the first woman president of the Durham County Bar, the first woman to chair the North Carolina Board of Law Examiners, the first woman to chair the Federal Bar Advisory Council, and the first woman to chair the Intellectual Property Section of the North Carolina Bar Association, among others. Olive said pioneering in the legal profession made her feel a special responsibility to achieve.

“I was there certainly on my own merits as much as was the case for any of the males who served in similar positions, but I was also a representative of all female lawyers and all those yet to come, and that was both a joy and a challenge,” she said.

Olive tallied another first in 2019 when the U.S. Supreme Court accepted petition for cert in Allen v. Cooper, aka the Blackbeard’s shipwreck case. At issue in the case was whether states are entitled to assert sovereign immunity when sued for damages after they copy an author’s work without the author’s permission. The Court ruled against Olive’s client, but she is optimistic about the headway the case made on behalf of content creators.

A graduate of Brown University and Duke University School of Law, Olive grew up in Durham and has based her law practice there for more than 40 years. Olive & Olive, P.A. focuses on patent law and trademark and copyright disputes. Olive lives between Durham and Hillsborough with her husband Tony Rall and Besita, her Havanese. Her three adult children are Erin, Park and Ashley Rall. She answered some questions for us here.

How did you decide to become a plaintiff’s lawyer?

I always had an interest in science and medicine, enjoyed learning, and enjoyed talking with my father (himself a patent attorney) about his work. Both he and my grandfather were full of stories about the importance of helping others and were full of examples in both word and deeds. For instance, one of the stories I grew up with was how my grandfather got justice for a child, a young Black boy, who’d been bitten by a circus lion. The circus was near the end of its scheduled time in town and apparently thought they’d just stonewall and then skip town. My granddad slapped them with a lien, and when they realized their stay in Durham was going to be unexpectedly extended, they suddenly managed to find the funds to pay for the child’s pain and suffering. And I could observe my father with his clients, many of whom had very little money but all of whom had real excitement about what they’d come up with. He’d stick with them through thick and thin — even sitting down in the dirt with one of his clients who had very little formal education but was a wizard when it came to race cars. That client would draw out his designs in the dirt, and Dad would “translate” them into the drawings and words that would protect those ideas. Both of them — as well as my mom, a teacher, who died when I was still in high school — taught me the importance of the law but more significantly, the importance of people.

What career accomplishments are you most proud of?

In my opinion, “career accomplishments” are almost always the result of a lot of effort by a lot of people. In many ways, it’s as much a matter of “right timing” as it is “right person.”

I’ve held a lot of bar positions over the years, and I’ve enjoyed all of them — and I still do. There weren’t many other women who practiced law when I started out, and that was a mixed blessing. Katherine Everett used to describe having people come from miles around just to see the phenomenon of a woman in the courtroom when she started out. I didn’t have quite that experience, but being the only woman in, for instance, federal court, meant that I got to know the judges and court personnel a lot faster than many other lawyers, simply because I’d stand out from the crowd. And knowing that, there also was a burden to remember — in court and in general — that all women would be judged, to some extent, by the way the “token” woman lawyer was perceived.

That probably molded my thinking about positions like that, but in general I’ve always thought that once you agree to do something, you need to be sure you spend the time to do it well, and I’ve worked hard to make a positive difference in the time I’ve spent in those positions.

In my firm, I’m always delighted by how young lawyers and paralegals and other staff members grow in their positions and accomplishments. Several of our former paralegals now are lawyers, both in North Carolina and elsewhere around the country, and that’s pretty neat. But that’s just one way folks grow, and I’ve been inspired to see — for instance — the way everyone in our office has pulled together to help each other and our clients and our firm during this COVID crisis.

In the community, one accomplishment that’s delighted me was helping Urban Ministries of Durham — our homeless shelter — first as its treasurer, helping to overcome some financial issues, and then as its Board chair, successfully fundraising to renovate and expand its premises. UMD is a completely nondiscriminatory service provider, in contrast to many “strings attached” facilities. Regardless of race, national origin, gender, sexual orientation, religious preference, education, mental acuity, or any of the other characteristics that divide us … UMD is there to help people move from homelessness and poverty to a stable living situation with a stable income and to provide food, clothing, shelter, and social and training services en route to that goal. I still help out at UMD, though less formally now, and I helped spearhead the creation of a foundation that we hope will, over the years, help alleviate some of the fundraising stress.

Susan Olive and her client Rick Allen on the steps of the U.S. Supreme Court after the court heard their petition for cert in Allen v. Cooper, aka the Blackbeard’s shipwreck case. At issue in the case was whether states are entitled to assert sovereign immunity when sued for damages after they copy an author’s work without the author’s permission. Photo credit: Cindy Burnham, Nautilus Productions

Tell us about your experience with Allen v. Cooper. What was the issue in the case?

Allen v. Cooper was not the first case I’ve had at the Supreme Court, but it was the first one that was argued. In my other cases, we’d been hoping the Court wouldn’t accept the petition for cert — and they didn’t. Here, we wanted them to accept the petition — and they did.

At issue was whether Congress had acted constitutionally in passing the Copyright Remedy Clarification Act. In normal-lawyer speak, the issue was whether states are entitled to assert sovereign immunity when sued for damages after they copy an author’s work without the author’s permission. Congress had passed a law saying states can be sued for damages just like other copyright infringers. The state claimed that was unconstitutional.

Unfortunately, the Supreme Court agreed. That wasn’t a surprising outcome, although we’d hoped for a different result. Our district court victory had been the first in the country that went our way. Other district courts, and other circuit courts, had all concluded that the statute was unconstitutional.

Our loss can still translate into victory. What we got out of the Supreme Court this time was a ton of sympathy, and a roadmap for Congress on how they can pass a new statute that will do exactly the same thing and will stand up to constitutional scrutiny. Essentially, Congress has to say that they’re acting under their Fourteenth Amendment powers, and they have to make an evidentiary record of sufficient magnitude to support the remedy that they provide.

Once Congress saw that decision, and despite being in the midst of the COVID pandemic, they thought this was such an important issue that they already have started that process. The notice that Congress is seeking evidence of state infringements was just published in the Federal Register, and we and our client are helping to gather that evidence, nationwide.

The obvious goal is to make sure that states are held accountable for their misconduct. That will help not just our client, but all authors, artists, musicians, software developers, and other copyright owners around the country. I hope that if any NCAJ members have clients who’ve been stiffed by the state, they’ll let us know.

What were the most memorable aspects of experience?

The moots were fascinating. I worked with the firm we associated in D.C. to organize the moots: We did one in North Carolina (at UNC; we’d done one at Duke for the 4th Circuit argument), one in Massachusetts (at Harvard), and one in D.C. Putting together the panel for our North Carolina moot made me so thankful for the willingness both of NCAJ members and our defense counterparts to help ensure that arguments presented to our appellate courts are as good as we can make them. We wanted a real cross-section of views, and we got them, with con law professors and active practitioners. And it reminded me what a great program our own NCAJ amicus and moot panels are. I’ve used them multiple times and gotten a lot of help each time, and hope I’ve been able to be helpful in turn when I serve on those panels.

Being in the court itself was also quite an experience. Counsel tables are right in front of the Supreme Court bench — much closer than is the case in virtually any other courtroom I’ve practiced in. That meant we could see things that normally aren’t visible. For instance, we could watch Justice [Clarence] Thomas passing notes to Justice [Stephen] Breyer during the argument, and then see Justice Breyer articulate questions that perhaps were motivated by those notes. We also could observe the obvious camaraderie among the Court members that isn’t always evident in their opinions.

How does your membership in NCAJ make you a better lawyer or support your practice of the law?

As I mentioned, I’ve relied on NCAJ moots to help with appellate arguments, and I rarely leave a CLE program without at least a couple of nuggets of real and immediate value to my practice and my clients. I’m inspired by the other lawyers who are members, and their dedication to their own clients and to the work of achieving justice. I use NCAJ programs, as well, to help train our associates and staff — training that I’m just not as equipped to provide on an individual basis. And I am convinced that NCAJ’s advocacy and the work of the NCAJ PAC both will help move North Carolina to an ever-stronger legal system that will benefit our clients and the judicial system as a whole.