The Nebraska Lawyer Magazine January/February 2019 by Elisa Oria

The Demise of the Collateral Order Doctrine in Nebraska Cathy Trent-Vilim and Danny C. Leavitt The Little Things That Kill Credibility in Court Papers Jason W. Grams Opening Statements and Closing Arguments in Bench Trials Pete Wegman Oral Argument in the Nebraska Supreme Court: Four Days in the Dark Richardson R. Lynn

Nebraska State Bar Association 635 South 14th Street #200 Lincoln, NE 68508

PRSRT STD US POSTAGE PAID OMAHA NE PERMIT NO 2270

The

Nebraska Lawyer

Official Publication of the Nebraska State Bar Association • January/February 2019 • Vol. 22 No. 1

Features

President’s Page:

Pro Bono Service: Offering Your Time and Talent, or Treasure .................................................................. J. Scott

Pleasing the Court: Advice for Trial and Appellate Lawyers

Chasing Opportunities: The Ins and Outs of the New Opportunity Zone Program

Paul

J. Scott Paul

Executive Director's Page: NSBA Health Insurance Consortium Officially Launched ........................................... Elizabeth

M. Neeley

....................................... Kendra

Elizabeth M. Neeley

The Demise of the Collateral Order Doctrine in Nebraska

and Danny C. Leavitt

The Little Things That Kill Credibility in Court Papers ....................................................... Jason W. Grams

Opening Statements and Closing Arguments in Bench Trials ..............................................................Pete Wegman

Looking Beyond the Pleadings: Outside Evidence Courts May Consider for Motions to Dismiss .... Cathy Trent-Vilim

and Janae Hofer

Oral Argument in the Nebraska Supreme Court: Four Days in the Dark ............................................ Richardson

R. Lynn

Uncovering Unconscious Motives: Recognizing "Implicit Bias" to Ensure a Fair Trial .. Jeffrey

J. Ringenberg and Jennifer L. Rattner

Departments

............................................... Cathy Trent-Vilim

L. Goodman, Max Maharry and Richard Wiener, Ph.D.

www.nebar.com

45 Plain Language A Dozen Words and Phrases to Doubt by Ross Guberman 49 Wellness Brief Building Resiliency - It's About Good Mental Health by Chris Aupperle 53 Court News 54 Legal Community News 54 Classified Ads 55 Letter to the Editor 56 NSBA News The NSBA Legislative Program The NSBA Client Assistance Fund Casemaker4: New and Improved 64 New Judges in 2018 Spotlights 68 Volunteer Lawyers Project Pro Bono Legal Service: Increase Your Reach in 2019 by Laurie Heer Dale and Carol Cleaver 72 NSBA Section Connection 74 Manual Maven 76 Upcoming CLE Programs 77 CLE Faculty Recognition 78 Transitions 81 In Memoriam

The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A bi-monthly publication, The Nebraska Lawyer is published for the purpose of educating and informing Nebraska lawyers about current issues and concerns relating to their practice of law. THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

Nebraska State Bar Association 635 S 14th St. #200, Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 • www.nebar.com

EXECUTIVE COUNCIL President: J. Scott Paul, Omaha President-Elect: Steven F. Mattoon, Sidney President-Elect Designate: Jill Robb Ackerman, Omaha House of Delegates Chair: Michael J. McCarthy, North Platte House of Delegates Chair-Elect: Hon. Patricia A. Freeman, Papillion House of Delegates Susan K. Sapp, Lincoln Chair-Elect Designate: Past President: Timothy R. Engler, Lincoln Past House of Delegates Chair: Jane Langan Mach, Lincoln First District Rep.: Jane Langan Mach, Lincoln Second District Rep.: Kenneth W. Hartman, Omaha Third District Rep.: Jason S. Doele, Norfolk Fourth District Rep.: Hon. Stefanie Martinez, Papillion Fifth District Rep.: Julie E. Bear, Plattsmouth Sixth District Rep.: Jon S. Schroeder, Curtis ABA State Delegate: Warren R. Whitted, Jr., Omaha Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln Young Lawyers Section Chair: Leslie A. Shaver, Scottsbluff Executive Director: Liz Neeley, Lincoln

issue editor Daniel Cummings serves as a judicial law clerk for the Hon. L. Steven Grasz of the U.S. Court of Appeals for the Eighth Circuit. Prior to clerking for Judge Grasz, Daniel clerked for the late Hon. John F. Wright of the Nebraska Supreme Court and graduated magna cum laude with his J.D. from Creighton University School of Law.

Daniel Cummings

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Melodie Turner Bellamy, Minden Sheila A. Bentzen, Lincoln Elizabeth Stuht Borchers, Omaha Edward E. Brink, Omaha Daniel E. Cummings, Omaha Elizabeth Eynon-Kokrda, Omaha Thomas J. Freeman, Lincoln Andrea V. Gosnold-Parker, Papillion Brandy R. Johnson, Lincoln

Luke H. Paladino, Omaha David J. Partsch, Nebraska City Edward F. Pohren, Omaha Kathleen Koenig Rockey, Norfolk Monte L. Schatz, Omaha Ronald J. Sedlacek, Lincoln Carol A. Svolos, Omaha Colleen E. Timm, Omaha Emily J. Wischnowski, Omaha

publications chair

Executive Council Liaison: Kenneth W. Hartman, Omaha Executive Editor: Amy E. Prenda aprenda@nebar.com Layout and Design: Sarah Ludvik sludvik@nebar.com

P. Brian Bartels

Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934

P. Brian Bartels is a partner in the Omaha office of Kutak Rock LLP. Brian’s practice includes advising governmental, tax-exempt, and for-profit employers on health and welfare benefit plans, the Patient Protection and Affordable Care Act, and HIPAA compliance. He also advises clients on employee benefit issues in the context of mergers, acquisitions, and divestitures. Brian graduated summa cum laude from Creighton University School of Law. He earned a Master of Arts degree in Political Science from Indiana University and a Bachelor of Arts degree, summa cum laude, from Creighton University.

ADVERTISING SALES: Sam Clinch NSBA 635 S 14th St. #200 Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125 Fax: (402) 475-7098 sclinch@nebar.com www.nebar.com CLASSIFIED ADVERTISING: Sarah Ludvik Nebraska State Bar Association (402) 475-7091, ext. 138 • sludvik@nebar.com

THE NEBRASKA LAWYER

The Nebraska Lawyer The Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine.

JANUARY/FEBRUARY 2019

president’s page

Pro Bono Service:

Offering your Time and Talent, or Treasure J. Scott Paul For many of us, the decision to become a lawyer arose out of a desire to help people and pursue justice. However, the burden of substantial debt from college and law school loans can take a toll on such idealistic goals. Instead, after having existed for three years on macaroni and cheese, frozen pizza and cheap beer, many of us became motivated by our new-found employment. As a result, it was easy to put our intentions to help those in need of legal services on the back burner. Our altruistic intentions became less of a priority given our focus on our jobs and careers. Upon passing the bar, we became regulated by the Nebraska Rules of Professional Conduct (“Rules”) which codified our special responsibility to help people of limited means. Although pro bono service is aspirational, we are encouraged through that responsibility to perform pro bono service. Even though the responsibility set forth in Rule 3-506.1 is “not intended to be enforced through the disciplinary process.” Comment 9 to Rule 3-506.1. Comment 1 to that Rule refers to pro bono service by stating in part: Every lawyer, regardless of professional prominence or professional work load, has the responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. (emphasis added) It is interesting that the drafters of this Comment found it necessary to couple the statement of our professional duty with the qualitative declaration that pro bono service constitutes a rewarding experience. Apparently, just making it our “responTHE NEBRASKA LAWYER

sibility” wasn’t enough. By including that language, it was as if the drafters felt lawyers needed to be reminded of the value of pro bono service and the factors that motivated us to become lawyers in the first place. Perhaps such a reminder is necessary. More on that below. *

I was surprised to note that the language in Comment 6 to Rule 3-506.1 permits lawyers to satisfy their pro bono service responsibility without actually spending the time representing an indigent client. Comment 6 to Rule 3-506.1 states: Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. A lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of hours of service that would have been otherwise provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as a firm’s aggregate pro bono activities. (emphasis added) As shown by this Comment, monetary contributions to organizations that provide legal services to those of limited means allow lawyers to avoid the time and effort of actually performing pro bono services. In those situations where it is not feasible to engage in pro bono services, our checkbooks serve as a “buy-out” of our service responsibility.

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JANUARY/FEBRUARY 2019

PRESIDENT’S PAGE Nebraska is not alone in providing this feasibility option. For example, Virginia’s Rule 6.1 says a lawyer “should render at least 2% per year of the lawyer’s professional time to pro bono publico legal service.” However, Virginia also approves “direct financial support of programs that provide direct delivery of legal services to meet the need described as an alternative method for fulfilling a lawyer’s [pro bono service] responsibility.” Similarly, Wyoming’s version of Rule 6.1 largely follows the ABA Model Rule stating “a lawyer should aspire to tender at least fifty (50) hours of pro bono legal services per year.” However, Wyoming also states: “In the alternative, a lawyer should voluntarily contribute $500 per year to any existing non-profit organization which provides direct legal assistance to persons of limited

means. . .” Finally, New Mexico’s version of Rule 6.1 conforms to the ABA Model Rule 6.1 and is similar to Wyoming’s version in that a lawyer may fulfill this aspiration by contributing financial support to organizations that provide legal services to persons of limited means in the amount of $500 per year. It should be noted some of those who place a high value on lawyers actually providing pro bono services take a dim view of financial contributions in lieu of volunteer service based on the belief that pro bono service is a responsibility that should require a lawyer to actually expend his or her time in representing a client of limited means. The reasoning is that lawyers, “should personally engage in this pro bono service not only to help clients, but to understand, first hand, the legal problems of

Pro Bono Legal Service

Nebraska Free Legal Answers www.NE.FreeLegalAnswers.org

Convenient, rewarding, and impactful pro bono All lawyers—All practices* Answer questions posted by low-income residents • No travel or training to do pro bono • Pick questions you want to answer • Volunteer names are not disclosed • Malpractice insurance coverage • Make justice happen–today

Register today at www.NE.FreeLegalAnswers.org *Active members of the Nebraska Bar; civil law questions only NE Free Legal Answers is a website operated by the ABA and the NSBA Volunteer Lawyers Project 635 South 14th St. #200 Lincoln, NE 68508 (402) 475-7091

THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

PRESIDENT’S PAGE the poor.” Legal Ethics: The Lawyer’s Desk Book on Professional Responsibility (2018-2019 ed. p. 1212). However, in his treatise, Legal Ethics, Ronald Rotunda noted that personal pro bono service may not always be the most viable option, stating: “If lawyers, personally, must engage in pro bono representation, that would mean that even in a very large firm, the senior partner in charge of securities law could not assign to the junior partner or associate in the family law section of the law firm the duty of handling a no fault divorce for a poor person, even though the younger lawyer might be more efficient in performing this type of work. Granted, ‘many legal aid programs have found that, with relatively modest amounts of training, even bond indenture lawyers can re-emerge from their specialist shells.’ Thomas Ehrlich, Rationing Justice, 34 Record of the Association of the Bar of the City of New York 729, 744 (Dec. 1979). Yet, opponents of this view argue that, if the real purpose of pro bono work is to help the poor, the poor would be more efficiently helped by a legal service lawyer specializing in their problems rather than a municipal bond lawyer who was forced to learn about the law of evictions.”

Id. at p. 1212. Therefore, it is helpful that Rule 3-506.1 and its Comments provide the necessary flexibility in the manner in which our pro bono responsibility can be satisfied. On the one hand, the individual pro bono service contemplated by the Rules can be accomplished through NSBA programs such as the Volunteer Lawyers Project, Nebraska Free Legal Answers and the Self-Help Desk. On the other hand, the “feasibility” option is often overlooked by lawyers as an alternative to satisfy our pro bono responsibility. Tax deductible contributions intended to satisfy the pro bono feasibility option can be directed to the Nebraska Lawyers Foundation, the NSBA’s charitable 501(c)(3) corporation, directed specifically to the Volunteer Lawyers Project (“VLP”). This facilitates provision of services to those in need of legal services and access to justice by providing funding for case placement, online services and funding for the Self-Help Desk. These NSBA programs lie at the heart of our special

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responsibility as public citizens. These programs serve the dual purpose of providing a vehicle through which you can volunteer to provide legal services while also providing an option whereby lawyers can make financial contributions to satisfy the pro bono service responsibility.

Several years ago, my service at the NSBA Douglas County Self Help Center reminded me of the phrase in Comment 1 to Section 3-506.1 that characterized pro bono service as being “one of the most rewarding experiences in the life of a lawyer.” When I started at the Self Help Center, I felt uncomfortable. I wondered, “What was a lawyer like me, an insurance defense lawyer, doing trying to answer questions about family law, landlord-tenant matters or debt collection cases?” It seemed like the people seeking assistance knew more about the legal aspects of their problem than I did. In fact, quite a few of them did. Nevertheless, I kept going back month after month, and with each visit, I became more comfortable answering questions and providing assistance as to how people could help themselves with their legal problems. Of particular help was the website of the Nebraska Supreme Court that provides legal resources to assist lawyers providing pro bono services. See http://supremecourt.nebraska.gov/self-help. After a while, I began to look forward to my scheduled time at the Self Help Center. It made me realize pro bono service was indeed the rewarding experience noted in the Comment. I encourage you to consider pro bono service. Let this article serve as a reminder there is something uniquely satisfying about taking the time to help persons of limited means. It rekindles those altruistic intentions that made you want to become a lawyer in the first place. However, if pro bono service is truly not feasible for you, please consider making a tax deductible contribution to the Nebraska Lawyers Foundation directed to the Volunteer Lawyers Project in order to comply with your pro bono responsibility under the Rules.

J. Scott Paul, President (402) 341-3070 spaul@mcgrathnorth.com

JANUARY/FEBRUARY 2019

2019 NSBA Member Benefits & Programs Please take a moment to make sure you’re taking full advantage of your NSBA member benefits. To learn more about these benefits, visit www.nebar.com.

Core Member Benefits

Support the Public

Casemaker: Unlimited access to a vast online legal research

Volunteer Lawyers Project: Provides pro bono opportu-

engine including legal authorities for all 50 states and the federal government and a mobile application. Casemaker premium services also available for free: Casecheck+, Citecheck+, and Casemaker Digest. Access to Casemaker is valued at $450 per year.

nities to Nebraska lawyers to serve low income Nebraskans through case placement, online legal assistance through Nebraska Free Legal Answers (www.ne.freelegalanswers.org), and Self-Help Desks for self-represented litigants.

Client Assistance Fund: Provides financial assistance to cli-

Free and Reduced-Cost CLE: Receive two free hours of eth-

ents who have suffered financial loss due to dishonest acts by a Nebraska attorney.

ics credit at certain NSBA-produced seminars and webinars (a $130 value) as well as a significant discount on all NSBA-produced CLE seminars and webinars, including our On-Demand webinars at www.nebarondemand.com.

Rural Practice Initiative: Expands access to legal services by helping to facilitate the placement of attorneys in underserved communities.

Child Support Calculator: Unlimited free access to the Ne-

Professional Growth & Support

braska Child Support Calculator, a state-of-the-art platform for calculating child support in all Nebraska courts, valued at $109 per year.

Nebraska Lawyers Assistance Program (NLAP): Provides confidential assistance to lawyers, judges, and law students for substance abuse, stress, depression, and other issues negatively impacting their professional and personal lives.

NSBA Library: Access past NSBA seminar materials, manuals, forms, and videos, all categorized by practice area. Sections: Connect with other attorneys in your areas of practice

The Nebraska Lawyer Magazine: Published bi-monthly,

through Section events, seminars and listservs. Access resources developed specifically for your area of practice.

the magazine provides information on legal topics, practice tips, and ethics, as well as information and news from the NSBA, the courts, and your colleagues.

NebDocs: NebDocs is a document assembly system on a Hot-

Docs platform that covers most practice areas. NebDocs templates automatically create customized documents based on the answers given—saving members time, effort, and money in the production of documents and forms (available for an additional fee).

Leadership Academy: Nurtures effective leadership with respect to ethical, professional, and community service issues; builds relationships among legal leaders across the state and disciplines; raises awareness regarding issues facing the profession; and enhances the diversity of leaders within the profession.

Find-A-Lawyer: Let the NSBA help connect you with potential clients through its new Lawyer Referral Program (available at a discount).

SOLACE: A mechanism to request support for anyone within the legal community who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury through the help of a statewide volunteer attorney group.

NetWORKS!: Join the NSBA’s Professional Networking Group

to be matched with six lawyers for coffee or lunch at your mutual convenience throughout the year. Join groups in Omaha, Lincoln and/or Greater Nebraska.

Strengthen the Courts

NSBA Health Insurance Consortium: The Health Insur-

ance Consortium consists of multiple employers, with NSBA membership, pooling together to obtain affordable health insurance coverage on terms similar to those currently available only to large employers. There are seven Blue Cross Blue Shield of Nebraska plans to choose from. Employers also have the option of selecting “narrow networks” to achieve additional savings. In addition to staff, employers may offer family and dependent coverage to their employees.

Judicial Resources Committee: The NSBA proposes, considers, and comments on the creation, reduction, and relocation of judicial vacancies in the state courts.

Legislative Program: The NSBA supports the court system

and represents the professional interests of attorneys before the Nebraska Legislature through the introduction of legislation and the review of bills introduced each session.

Self Help Centers: Provides assistance to Courts across the

Insurance: Through its partnership with Mercer, the NSBA of-

state as they face an increasing number of self-represented litigants.

fers a full range of insurance options, including life, disability, and employment practice liability. Our most popular option is our professional liability coverage. Mercer is the exclusive provider of professional liability insurance to members of the NSBA. For additional information on insurance products, call 1-866236-6582 or visit www.nebarinsurance.com. For professional liability inquires, contact John Collentine at (800) 328-4671. THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

executive director’s page

NSBA Health Insurance Consortium Officially Launched Both small and large law firms face challenges in relation to the availability and rising cost of health insurance options. The Nebraska State Bar Association (NSBA) has developed a health insurance option for its members known as the NSBA Health Insurance Consortium. In simple terms, the Consortium consists of multiple employers, with a NSBA membership, working together to obtain affordable health insurance coverage on terms similar to those available only to large employers. The Consortium allows member employers to negotiate and manage the coverage as a single entity. The Consortium’s plan is a multiple employer welfare arrangement (MEWA) several of which have existed in Nebraska for decades. Blue Cross and Blue Shield of Nebraska (BCBSNE) is the insurance carrier for the Consortium. Coverage for the Consortium went live Jan. 1, 2019. There are seven plan options, three PPO and four HSA options. Each employer in the Consortium has the option of selecting up to two health plans that work best for its employees (high deductible plan vs. low deductible plan, etc.). Employers also have the option of selecting regional networks to achieve additional savings. In addition to staff, employers participating in the Consortium may offer family and dependent coverage to their employees.

Elizabeth Neeley

If you want another opportunity to have your group join the NSBA plan, BCBSNE is going to open the online quoting tool after the first of the year and allow groups to receive quotes for a March 2019 effective date. All quotes must be received at least 45 days prior to the effective date (i.e., March 2019 effective dates must be submitted by 1-15-19, April 2019 effective dates must be submitted by 2-15-19, etc.). If your current health plan is a fully insured plan, you can change on any given month.

What is the Process? The plan is available to voluntary due paying members of the NSBA that are Nebraska domiciled employers providing legal services. Standard underwriting guidelines apply which means: • Employer Contribution Requirement – Groups must contribute a minimum of 50% of the single employee premium for all eligible employees within the firm. • Participation Requirement – The minimum participation requirement is 50% of total eligible employees,1 and 75% of total eligible employees after considering valid waivers.

Can Your Firm Still Join the Consortium?

The next step is to complete a census and submit it to Aon. You can download the census from the NSBA website or contact Aon to have them send it to you directly.

If you missed the Jan. 1, 2019, enrollment but are still interested, you can still join at any time. Our broker, Aon, can assist you with exiting your current plan and enrolling your firm in the Consortium plan without penalty and assuring your firm never goes without coverage and doesn’t pay for double coverage. BCBSNE will also credit what you have paid out of pocket to your new plan so there is no financial disincentive for you to join.

There are two versions: firms with more than five employees and firms with five or fewer employees. Firms with five or fewer employees will also be required to complete an additional electronic health information questionnaire. Once your information has been submitted, BCBSNE will rate you into a tier and Aon will provide you with a table showing you the premiums for each plan and network option.

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JANUARY/FEBRUARY 2019

EXECUTIVE DIRECTOR'S PAGE

Update on Solo Proprietors

Thank you to our Inaugural Board!

If you are a sole proprietor with at least one staff person who works at least 17.5 hours per week, you are eligible to join the NSBA Health Insurance Consortium. If you are a sole proprietor with no staff, you are currently ineligible to join the NSBA Health Insurance Consortium. In June of 2018, the U.S. Department of Labor (DOL) issued new rules which allow sole proprietors to join Association Health Plans. Solos are defined by the DOL and insurance companies to mean one lawyer with no support staff. However, in establishing the NSBA Health Insurance Consortium, no fully-insured products were available to the NSBA under the new DOL rules. The NSBA, with the assistance of the Nebraska Department of Insurance, has made a legal argument for inclusion of sole proprietors to the DOL. Our request is still pending. As soon as we hear back, we will communicate the decision to our members and work with BCBSNE to allow open enrollment for that group. Thank you for your patience. For more information: You may also directly contact Aon representative Pat Bourne (pat.bourne@aon.com or 402-6975260) or Michaela Valentin (michaela.valentin@aon.com or 402-697-5254) to visit with them or to schedule a meeting specifically for your firm.

A special thank you to the lawyers that devoted their time to getting the NSBA Health Insurance Consortium up and running: TRAVIS SPIER (President) of Atwood Holsten Brown Deaver & Spier Law Firm, PC LLO; BILL BROWN (Vice President) of Brown & Brown LLC ; ERIN PEMBERTON of Wolfe Snowden Hurd Luers & Ahl, LLP; TIM BROUILLETTE of Brouillette, Dugan & Troshynski, P.C., LLO and DAN WINTZ (Secretary) of Badura & Wintz Law.

Meet the New Board! The new NSBA Health Insurance Consortium Board includes: BOB GOODWIN of Sonntag Goodwin & Leef, P.C.; DAN PAPE of McGrath North; MELANIE WHITTAMOREMANTZIOS (President) of Wolfe Snowden Hurd Luers & Ahl, LLP; ABBIE WIDGER (Vice- President) of Johnson Flodman Guenzel & Widger; and DAN WINTZ (Secretary) of Badura & Wintz Law.

Free Wellness CLE on January 31, 2019 On January 31st the NSBA Health Insurance Consortium will be partnering with BCBS of Nebraska to offer a FREE two-hour ethics CLE on wellness. Representatives from Aon will be available before and following the event to answer your questions about the NSBA Health Insurance Consortium.

Elizabeth Neeley, Executive Director (402) 475-7091 ext. 129 lneeley@nebar.com

Endnote 1

THE NEBRASKA LAWYER

Regarding part-time employees, firms set the eligibility requirements with regard to minimum required hours per week to be eligible for benefits between 17.5 and 30 hours a week.

JANUARY/FEBRUARY 2019

feature article

The Demise of the Collateral Order Doctrine in Nebraska by Cathy Trent-Vilim and Danny C. Leavitt

The Nebraska Supreme Court is cleaning house. Within the past few years, it has overruled or disapproved several of its prior opinions, both civil and criminal.1 One area where the Court has especially been taking its prior jurisprudence to task is in the area of appellate jurisdiction. The number of appeals being dismissed for lack of jurisdiction has noticeably increased, because the order from which appeal was taken failed to satisfy the final order requirement found in Neb. Rev. Stat. §§ 25-1902 and 25-1911. As part of the uptick of dismissals, the Court has recently overruled or disapproved caselaw in which it had construed Nebraska law to permit certain interlocutory appeals. This includes the collateral order doctrine. In this article we try to shed light on the recent changes dealing with collateral orders and the future of the collateral order doctrine in Nebraska.

language of the final order statute, found at Neb. Rev. Stat. § 25-1902, when determining whether appellate jurisdiction exists. That statute requires an order to be final for purposes of appeal if it affects a substantial right and (1) determines the action and prevents a judgment, (2) is made during a special proceeding, or (3) is made on summary application in an action after judgment is rendered.2

Discussion of the Final Order Requirement and Collateral Order Doctrine in Nebraska

In 1997 the Supreme Court of Nebraska ruled in Richardson v. Griffiths3 that exceptions outside the plain language of § 25-1902 were reviewable as interlocutory appeals. In Richardson, a home purchaser alleged she had conversations with a member

The Nebraska appellate courts have relied on the plain

Cathy Trent-Vilim

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Danny Leavitt

Cathy Trent-Vilim is a partner of Lamson Dugan & Murray. She obtained her J.D. with honors from the University of Nebraska College of Law. She focuses primarily in the areas of appellate practice, commercial litigation and legal malpractice defense. She is currently the President of the Nebraska Defense Counsel Association and Chair of the Appellate Practice Section of the Nebraska State Bar Association. THE NEBRASKA LAWYER

The Supreme Court of Nebraska has allowed for an exception to the final order requirement, permitting interlocutory appeals. For an interlocutory appeal to be reviewed on appeal, it must be founded in a statute—appellate jurisdiction granted from the Legislature. But what if an issue ruled on at the trial court but collateral to the underlying action is appealed? Enter the collateral order doctrine.

Danny Leavitt is an associate attorney at the Law Office of Terrence J. Salerno & Associates. He earned his bachelor's degree from Brigham Young University and his J.D. from Creighton University School of Law in 2014. He’s an originating member and past co-chair of the NSBA’s Appellate Practice Section.

JANUARY/FEBRUARY 2019

THE DEMISE OF THE COLLATERAL ORDER DOCTRINE IN NEBRASKA of a law firm that was later hired by the vendors in a purchase agreement gone bad. The purchaser moved to disqualify the vendor’s attorney, and the trial court did so, finding that, although the attorney’s involvement was “peripheral and would not appear to be substantial[,]” the totality of the evidence supported disqualification. At the time the vendors appealed the trial court’s ruling, the case had not proceeded to trial.

reasoned, the Court has no power to fix the time for an appeal when the Legislature already had done so, and in the context of final orders, the Legislature had already acted in § 25-1902, leaving the Court without power.10 The Court thus refused to engage in “judicial legislation.”11

On appeal from the order disqualifying counsel, the Richardson court concluded the trial court’s order was nonfinal. Yet it went on to adopt the collateral order doctrine—later referred to as the Richardson exception—as an exception to the final order requirement. The collateral order doctrine provides that an interlocutory order is immediately appealable if it (1) finally decides an important matter (2) that is separate and distinct from the merits and (3) is effectively unreviewable at the end of the litigation.4

• The Richardson court failed to provide any statutory authority for the purported exception.

The court reasoned the exception was appropriate because Maddocks v. Rocker,5 a Massachusetts case cited just two years earlier in a Supreme Court of Nebraska opinion,6 concluded interlocutory review of a collateral issue regarding attorney disqualification protects the client’s interests. The Richardson court determined delaying the collateral issue would not protect the vendor’s interests in the counsel of their own choosing and the time and expense associated with hiring a new attorney. The collateral order doctrine in Nebraska was effectively born.

The (Ostensible) Death of the Collateral Order Doctrine: Heckman v. Marchio But the collateral order doctrine’s life was short-lived. In 2017, just twenty years after the Richardson opinion, the Supreme Court of Nebraska was again faced with an interlocutory appeal concerning the disqualification of counsel. In Heckman v. Marchio,9 a putative father motioned the trial court to disqualify the mother’s attorney. The trial court granted the motion, and the mother filed a motion to reconsider, which the trial court denied. The mother then appealed. But before she could get to the merits of the case, she had to show the Supreme Court of Nebraska had jurisdiction based on the order granting the disqualification of her attorney. The Richardson decision had been relied on in at least eight other occasions, so the mother presumably thought she could establish appellate jurisdiction. But the Court went a different way. First, the Court penned the foundation and constitutional underpinnings for appellate jurisdiction in Nebraska. Citing numerous cases in Nebraska, the Court reiterated that appellate jurisdiction is “purely statutory.” Not only is it then a question of jurisdiction—it’s a matter of separation of powers between the Legislature and the Court. The Court explained that an appellant must satisfy the statutory requirements to procure jurisdiction. By analogy, it THE NEBRASKA LAWYER

Second, the Court took issue with the Richardson exception in some of the following ways:

• The Richardson court’s citation of the Massachusetts case failed to analyze how the exception fits within § 25-1902. In effect, the Court’s rationale relied, in part, on the negative-implication cannon of statutory interpretation (“The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius)”).12 In other words, the use of the Legislature’s express use of the three categories in § 25-1902 from which an appeal can be taken, implies the exclusion of an appeal for any other reason, collateral or otherwise. • The Richardson court failed to mention the U.S. Supreme Court disallowed interlocutory appeals from orders disqualifying counsel in civil cases, specifically holding that such orders do not fall within the collateral order doctrine.13 • A commentator noticed the Richardson court usurped legislative authority but mentioned the Legislature acquiesced14 by failing to amend § 25-1902, thereby justifying the use of the collateral order doctrine moving forward.15 But the Heckman court rejected this justification, concluding there has been no interpretation of § 25-1902 (in applying the collateral order doctrine) in which the Legislature could be said to have acquiesced. The Heckman court ultimately overturned Richardson. In doing so, it reasoned that principles of stare decisis didn’t serve the broader, sounder doctrine of eliminating inconsistency.16 In effect, the Court reasoned stare decisis is not a justification for perpetuating a mistake.17 The court’s holding in Heckman—and its underlying rationale—seemed to be the death knell for the collateral order doctrine in Nebraska.

Resurrecting the Collateral Order Doctrine: D.M. v. State Although Heckman seemingly signaled the demise of the collateral order doctrine in Nebraska, the Court of Appeals took a more optimistic view. Less than a year after the Supreme Court decided Heckman, the Court of Appeals faced an appeal JANUARY/FEBRUARY 2019

THE DEMISE OF THE COLLATERAL ORDER DOCTRINE IN NEBRASKA reliant on the collateral order doctrine. Only this time, instead of attorney disqualification, the issue was the trial court’s denial of a qualified immunity motion to dismiss a lawsuit brought under 42 U.S.C. §1983.18 Because jurisdiction is the first question to be answered before taking up the merits of an appeal, the court first had to determine whether it existed. Addressing this question, the court first acknowledged that an order denying a motion to dismiss is not a final order.19 However, that did not end the court’s inquiry. It had to consider whether the collateral order doctrine conferred appellate jurisdiction. The court properly noted that in federal courts, the collateral order doctrine provides grounds for an interlocutory appeal of certain orders denying a motion to dismiss on the basis of qualified immunity.20 This factor, the court found, made Heckman distinguishable and allowed the appeal to proceed on an interlocutory basis. Besides this federal precedent, the D.M. court also noted that the Nebraska Supreme Court had recently permitted interlocutory review of a qualified immunity question in Carney v. Miller.21 As the D.M. court explained, Heckman “did not specifically overrule Carney.”22 The Court of Appeals thus read Heckman narrowly and concluded that the collateral order doctrine remained a viable basis for appellate jurisdiction. “[Heckman] did not abrogate the collateral order doctrine with respect to appeals involving qualified immunity which present purely questions of law[.]”23 Carney, however, suffered from the same defect that led to Richardson’s overruling: treating the collateral order doctrine as an “exception” to the final order rule without any constitutional or statutory authority.24 Perhaps strategically, the Court of Appeals did not endeavor to resolve this dilemma. Having decided that the collateral order doctrine survived Heckman, the court proceeded to the merits of the qualified immunity issue.

What Remains After Heckman and D.M.: The Outlook of the Collateral Order Doctrine in Nebraska While the Court of Appeal remained optimistic about the future of the collateral order doctrine, Heckman likely set the stage for the doctrine’s ultimate demise (barring any legislative action to the contrary). If the Heckman court was correct, and the Nebraska Supreme Court’s adoption of the collateral order doctrine in the first instance amounted to “judicial legislation,”25 narrowly construing the judicial legislation is of no import. If the Court “should not have adopted the Richardson exception to the final order rule as a means to provide appellate jurisdiction “where none would otherwise exist,”29 it does not matter how broadly or narrowly one reads Heckman. Adopting the collateral order doctrine was an ultra vires act, so any application of the doctrine will be as well.27 THE NEBRASKA LAWYER

Since D.M., the Nebraska Supreme Court has since driven yet another nail into the coffin of the collateral order doctrine. In April 2018, the Court decided E.D. v. Bellevue Pub. Sch. Dist..28 Rather than qualified immunity, the issue was sovereign immunity in a §1983 action. The trial court denied Bellevue Public School’s motion to dismiss a lawsuit brought by a former student who alleged she had been subjected to nonconsensual sexual contact with a teacher. The school district appealed. Surprisingly, the Court of Appeals diverged from its holding in D.M. and dismissed the appeal under Neb. Ct. R. App. P. § 2-107(A)(2), finding the ruling on the motion to dismiss was not a final, appealable order.29 The school district moved for reconsideration, which the Court of Appeals granted and reinstated the appeal.30 The Supreme Court then removed the case to its own docket. The Supreme Court made quick work of jurisdiction, finding it to be lacking. In doing so, the Court overruled its 2011 decision in StoreVisions v. Omaha Tribe of Nebraska.31 Clarifying Heckman’s scope, the Court held that while Heckman dealt with attorney disqualification, “we also disavowed Richardson based on the lack of statutory authority for the decision.”32 Thus, “[w]hile our holding in Heckman was limited to overruling Richardson and our use of the Richardson exception, our reasoning therein is directly at odds with our continued application of the collateral order doctrine to an interlocutory order denying sovereign immunity.”33 Though the court was selective and precise in its language, finding Heckman to be “at odds with” interlocutory review of sovereign immunity orders, it is difficult to imagine a scenario in which the collateral order doctrine survives, irrespective of the underlying issue. No amount of creative legal gerrymandering will be able to fill the statutory gap the Court has concluded exists.

The Practical and Legal Effect the Collateral Order Doctrine’s Absence in Nebraska Looking to the totality of Nebraska jurisprudence addressing the collateral order doctrine, its abolition is likely to have a variety of practical and legal effects. Some of those effects may not be felt for years or decades to come. Although it may be difficult to predict the impact of Heckman, D.M. and E.D., some predictions are more apparent. Take, for example, qualified immunity. With no statutory basis supporting the adoption of the collateral order doctrine, D.M.’s time is likely fleeting. The fact that federal courts allow interlocutory review of qualified immunity denials does not create jurisdiction under Neb. Rev. Stat. § 25-1902. This procedural disparity between state and federal courts is significant. Qualified immunity, and the right to seek immediate appellate review, are important quills in the quivers of § 1983

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THE DEMISE OF THE COLLATERAL ORDER DOCTRINE IN NEBRASKA defendants. Consequently, a § 1983 defendant sued in state court, who would otherwise be content to stay there, may give serious consideration to removing the action to federal court in order to ensure his or her right to appeal an adverse qualified immunity ruling. Otherwise, he or she will forever forfeit the right to obtain interlocutory review on this issue. Even though § 1983 is a federal statute, the U.S. Supreme Court has already held that the Supremacy Clause is not grounds to compel a state to review qualified immunity on an interlocutory basis where appellate jurisdiction would otherwise be lacking under state law.34 Attorney disqualification is another area where the loss of the collateral order doctrine may lead to incongruent results. With interlocutory appeal no longer a viable option, is there any recourse? The answer: it depends. Under existing caselaw, parties for whom a disqualification motion has been denied may seek mandamus relief.35 However, for those litigants whose attorneys have been disqualified, mandamus is not an option. As the Court explained in Trainum v. Sutherland Assoc.,36 The exception adopted in Richardson was necessary because where the order sought to be reviewed is an order granting disqualification, mandamus is not an appropriate remedy. The general rule is that mandamus is not a preventive remedy but essentially a coercive writ, one that commands performance of a duty and not desistance therefrom. Thus, the appellants in Richardson could not bring an original action for mandamus to compel the district court to vacate its order of disqualification. However, to allow the district court’s disqualification order to stand, without allowing an immediate avenue for appellate review, would have prejudiced the rights of the party whose counsel had been disqualified.

This outcome, however, does not comport with the Court’s historical treatment of the loss of one’s attorney. As it once observed,40 We are also mindful that disqualification can wreak considerable havoc on a party’s efforts to resolve its dispute. At a minimum, the practical effect is that a party must seek and find new counsel; furthermore, a party may be substantially prejudiced because its new attorney must litigate against an opposing counsel who inarguably is more familiar and more facile with the case. At the worst, a litigant can use a motion for disqualification as a technique for harassment and delay. Given the serious implications of a litigant having his or her attorney disqualified, the Supreme Court’s about-face in Heckman, coupled with existing mandamus jurisprudence precluding review, are cause for concern. Instead, perhaps the Court will reconsider its position on how “coercion” and “prevention” are construed. In some respects, they are two sides of the same mandamus coin. From the trial court’s point of view, and practically speaking, a mandate from the Court instructing the trial court to enter an order disqualifying an attorney is no more “coercive” than an order from the Court instructing the trial court to vacate its order compelling disqualification.

In other words, “mandamus can be used to compel the lower court to disqualify counsel (do something)—but it cannot be used to prevent the lower court from disqualifying counsel (do not do something).”37 Heckman, of course, held that appellate review of an order compelling disqualification can be adequately remedied by an appeal of the entire case, because “[a]ll that is required is a ‘willing[ness] even when necessary to set aside verdicts—even when they result from lengthy civil proceedings.’”38 Yet if having one’s attorney improperly disqualified can be adequately reviewed on an appeal of the merits after trial, and if mandamus is inapplicable where disqualification has been ordered, parties who fail at getting another party’s attorney disqualified have greater rights and remedies than parties who have been deprived of counsel of their choosing. In the former situation, the party whose motion to disqualify was denied could file a writ of mandamus and potentially obtain interlocutory review; in the latter scenario, however, the party against whom the THE NEBRASKA LAWYER

motion was granted would have to complete the case with different counsel and then, if he or she succeeds on appeal, do it all over again with the original attorney.39

In fact, the Nebraska Supreme Court has exercised its mandamus powers to reach precisely this result. In State ex rel. Stivrins v. Flowers,41 the Nebraska Supreme Court directed the trial court to vacate its order compelling a witness to answer certain deposition questions after concluding the questions were covered by the attorney-client privilege. It is unclear why compelling a trial court to vacate its order disqualifying counsel should be treated differently—particularly where regulation of attorneys in the State of Nebraska is vested in the Supreme Court42 and courts “have a duty to maintain confidence in the legal system and protect and enhance the attorney-client relationship in all its dimensions.”43 Finally, the Court may want to re-evaluate the extent to which legislative acquiescence applies. In Heckman, the Court rejected the notion that the Nebraska Legislature’s failure to legislatively overrule Richardson amounted to legislative acquiescence:44 in applying the Richardson exception, we have never purported to interpret a statute as allowing for an interlocutory appeal. Thus, there has been no interpretation of any statute in which the Legislature could be characterized to have acquiesced. Quite to JANUARY/FEBRUARY 2019

THE DEMISE OF THE COLLATERAL ORDER DOCTRINE IN NEBRASKA the contrary, this court admitted that the disqualification order “d[id] not meet any of the definitions of a final order.” Nonetheless, without citing any statute, we baldly proclaimed an exception.

Endnotes 1

See, e.g., Fidler v. Life Care Ctrs. of Am., Inc., 301 Neb. 724, - N.W.2d - -(November 30, 2018), overruling Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993), and disapproving Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803, 366 N.W.2d 751 (1985); A. Hirsh, Inc. v. National Hair Co., 210 Neb. 397, 315 N.W.2d 236 (1982); and Fanning v. Richards, 193 Neb. 431, 227 N.W.2d 595 (1975); State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016), disapproving language in State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007); In re Adoption of Madysen S. (Nicole K. v. Jeremy S.), 293 Neb. 646, 879 N.W.2d 34 (2016), overruling In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010), and disapproving In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990); State v. Warner, 290 Neb. 954, 863 N.W.2d 196 (2015), disapproving State v. Bourke, 237 Neb. 121, 464 N.W.2d 805 (1991). These are but a few examples of cases where the Nebraska Supreme Court has disapproved of or explicitly overruled precedent in the past four years.

See Cullinane v. Beverly Enterprises-Nebraska, Inc., 300 Neb. 210, 912 N.W.2d 774 (2018).

251 Neb. 825, 560 N.W.2d 430 (1997), overruled by Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).

See John P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 297 (2001) (citing Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999); Swint v. Chambers County Comm’n, 514 U.S. 35, 43 (1995)).

403 Mass. 592, 531 N.E.2d 583 (1988).

CenTra, Inc. v. Chandler Ins. Co., 248 Neb. 844, 540 N.W.2d 318 (1995).

Richardson, supra note 4, at 831.

The use of the term “collateral order doctrine” was not actually used in Richardson. The term was officially used in Jacob North Printing Co. v. Mosley, 279 Neb. 585, 779 N.W.2d 596 (2010).

296 Neb. 458, 894 N.W.2d 296 (2017).

The Nebraska Supreme Court in Richardson, however, was no bolder (or balder) in its proclamation than was the U.S. Supreme Court when it adopted the collateral order doctrine. In Cohen v. Beneficial Indus. Loan Corp.,45 the U.S. Supreme Court spent only a few short paragraphs addressing the appealability of the order before it. The Court acknowledged the order was not “final” within the meaning of 28 U.S.C. § 1291.46 Nevertheless, the Court pointed out that § 1292 allows appeals from certain interlocutory orders.47 After a brief discussion of cases in which interlocutory appeal is not permitted, the Court went on to proclaim that the appeal in question fell into “that small class” of cases “which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”49 With a wave of its judicial wand, the Court concluded that it had “long given this provision of the statute this practical, rather than a technical, construction.”50 And with that, the federal collateral order doctrine was born. Similarly, in Richardson, the Nebraska Supreme Court cited and discussed §§ 25-1902 and 25-1911. As did the Cohen court, the Richardson court concluded the order was not “final” and did not meet any of the requirements under the interlocutory appeal statutes. Citing a “practical” rather than “technical” interpretation of the statutes, the Court developed the collateral order doctrine. For decades after Cohen, Congress acquiesced in the Supreme Court’s interpretation.51 When it finally acted, rather than reigning in the Court or “restoring clarity through statute,”52 Congress instead delegated all authority to define “final” to the Court as part of the Court’s rule-making powers.53 If Congress’s failure to act can be considered Congressional acquiescence, why shouldn’t the Nebraska Legislature’s decision not to “restore clarity through statute” be treated as anything other than legislative acquiescence? Doing so would allow the collateral order doctrine to live on in Nebraska jurisprudence.

Conclusion

at 462.

11 Id.

at 466–67.

12 Bryan

A. Gardner, Antonin Scalia, Reading Law: The Interpretation of Legal Texts, 107 (2012).

13 Richardson-Merrill

(1985).

Inc. v. Killer, 472 U.S. 424, 105 S.Ct. 2757

14 “Where

a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent.” Heckman, supra note 10, at 465.

15 Lenich,

supra note 4, at 308.

16 Heckman,

supra note 9, at 466–67 (concluding “remaining true to an intrinsically sounder doctrine better serves the values of stare decisis than following a more recently decided case inconsistent with the decisions that came before it.”).

17 Id. 18 D.M.

v. State, 25 Neb. App. 596, 911 N.W.2d 621 (2018).

19 Id.

at 603 (citing Hallie Mgmt Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006)).

20 Id.

Much has changed to the collateral order doctrine in the recent past. From Richardson to Heckman and from D.M. to E.D., the net upshot of the collateral order doctrine in Nebraska is this: it’s dead. And to the extent it is still kicking, the practical and legal effects in the context of attorney disqualification, qualified immunity, or legislative acquiescence portend its ultimate and total demise, barring a legislative amendment to Nebraska’s final order requirement. THE NEBRASKA LAWYER

10 Id.

at 604 (citing Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534 (1991)). Interlocutory appeal is only allowed, however, if the question of qualified immunity is one of law. If factual disputes must be resolved before qualified immunity can be determined, interlocutory appeal is not permitted. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806 (1985) (order denying a claim of qualified immunity on summary judgment is immediately appealable, to the extent it turns on an issue of law).

21 Carney

v. Miller, 287 Neb. 400, 842 N.W. 2d 782 (2014). See also, Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007) (providing a lengthy discussion of the collateral order doctrine

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THE DEMISE OF THE COLLATERAL ORDER DOCTRINE IN NEBRASKA and applying the doctrine to review a trial court’s denial of summary judgment to the defendant based on qualified immunity). 22 D.M., 23 Id.

44 Heckman,

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949).

supra note 18, at 604.

at 605.

46 Id.

at 545 (stating “[i]t is obvious that, if Congress had allowed appeals only from those final judgments which terminate an action, this order would not be appealable.”). 28 U.S.C. § 1291 provides: “The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States. . . except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.”

24 Heckman,

supra note 9, at 463 (citing Richardson and commenting, “We did not, however, provide any statutory authority for the purported [collateral order] exception.”).

25 Id.

at 466.

26 Id.

at 464.

27 See,

e.g., Travelers Indem. Co. v. Wamsley (In re Estate of Evertson), 295 Neb. 301, 307, 889 N.W.2d 73, 79 (2016) (“A court action taken without subject matter jurisdiction is void.”); U.S. v. Harwell, 448 F.3d 707, 715 (4th Cir. 2006) (“[A]ny action by a court without subject matter jurisdiction is ‘ultra vires’ and therefore void.”).

47 Id.

At the time Cohen was decided, the U.S. Supreme Court was interpreting the initial version of 28 U.S.C. § 1292 enacted in 1948. At that time, the statute provided, in part: The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;(3) Interlocutory decrees of such district courts . . . .determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed; (4) Judgments in civil actions for patent infringement which are final except for accounting.”

28 E.D.

v. Bellevue Pub. Sch. Dist., 299 Neb. 621, 909 N.W.2d 652 (2018).

29 Id.

at 624.

30 Id. 31 281

Neb. 238, 795 N.W.2d 271 (2011).

32 E.D.,

supra note 28, at 627.

33 Id. 34 Johnson

v. Fankell, 520 U.S. 911, 916–17, 117 S. Ct. 1800 (1997) (“While some States have adopted a similar ‘collateral order’ exception when construing their jurisdictional statutes, we have never suggested that federal law compelled them to do so. Indeed, a number of States employ collateral order doctrines that reject the limitations this Court has placed on § 1291.7 Idaho could, of course, place the same construction on its Appellate Rule 11(a)(1) as we have placed on § 1291. But that is clearly a choice for that Court to make, not one that we have any authority to command.”)

Today, § 1292 provides, in part: (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts . . . .determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. . . .”

35 See,

e.g., State ex rel. Wal-Mart v. Kortum, 251 Neb. 805, 559 N.W.2d 496 (1997); State ex rel. Creighton Univ. v. Hickman, 245 Neb. 247, 512 N.W.2d 374 (1994); State ex rel. FirsTier Bank v. Buckley, 244 Neb. 36, 503 N.W.2d 838 (1993); and State ex rel. Freezer Servs., Inc. v. Mullen, 235 Neb. 981, 458 N.W.2d 245 (1990).

36 263

Neb. 778, 783, 642 N.W.2d 816 (2002).

37 Lenich,

supra note 4, at 306 n. 288.

38 Heckman,

supra note 9, at 468.

39 See

Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 297, 673 N.W.2d 558, 565 (2004) (dismissing appeal of case where a motion to disqualify had been denied, finding instead that mandamus was the appropriate method for obtaining interlocutory review. “[O]riginal actions for mandamus, and not interlocutory appeals, [are] the appropriate method of review for denials of motions to disqualify.”).

48 Such

cases include “even fully consummated decisions” that are but “steps toward final judgment in which they will merge.” Cohen, supra note 44, at 546.

49 Id. 50 Id.

40 CenTra,

Inc. v. Chandler Ins. Co., 248 Neb. 844, 852, 540 N.W.2d 318, 326 (1995).

51 Dodson,

Scott. The Complexity of Jurisdictional Clarity, 97 Va. L. Rev. 1, 42 (2011) (“Congress has acquiesced in the Court’s interpretation of ‘final’. . . .).

41 State

ex rel. Stivrins v. Flowers, 273 Neb. 336, 729 N.W.2d 311 (2007).

52 Id.

42 See

In re Integration of the Nebraska State Bar Association, 133 Neb. 283, 275 N.W. 265 (1937) (The right to define and regulate the practice of law belongs to the Judicial Department of state government.).

43 Stivrins,

supra note 9, at 465.

45 Cohen

53 See

28 U.S.C. § 2072(c) (“Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.”).

supra note 41, at 344.

THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

feature article

The Little Things That Kill Credibility in Court Papers by Jason W. Grams

The purpose of any court paper, from a simple motion to extend a deadline in county court to an appellate brief in the Supreme Court, is to request action from the court and to persuade the court to take that action. Knowing what to ask for is usually easy—grant or deny a motion, affirm or reverse or modify a judgment. The persuasion is the hard part. As lawyers, our task is to convince someone whose job it is to be skeptical to side with us and act in our client’s favor. Some of us specialize in doing the work of persuasion live and inperson. But many important issues are decided solely on or heavily influenced by the papers. Mercifully, although the application may be different, the principles of persuasion are the same whether you are giving a closing argument or writing an appellate brief.

Jason W. Grams

Aristotle teaches us the three modes of persuasion are logos, pathos, and ethos. Logos is your argument, your appeal to logic. Pathos is your story, your appeal to emotion or justice, usually told in the facts section of your brief. Ethos is your ethical appeal, directed to the audience. Ethos is the Greek word for character and focuses on the speaker’s need to establish credibility with the audience. It is easy to see how credibility is important in in-person settings. A calm and well-spoken lawyer with a polished, professional appearance is more likely to be thought of as careful, analytical, and prepared. Rightly or wrongly, a judge may think such a person less likely to make factual or legal errors than someone in sandals and a t-shirt pounding on a lectern, regardless of the merits. But where does ethos fit in to writing? Unlike logos or pathos, which are largely accounted for in formal sections of a brief, the writer’s ethos permeates the whole document. Credibility can be affected by big things and little things. The big things are often written about: high level structure and organization, argument choice, presentation order, depth of treatment of topics, omitting weak arguments, and so on. The big things are big, they are often strategic, and they are important to establishing credibility, but they are not the focus of this piece. This article is about the little things: following the rules and conventions of the court and the community in which you are practicing. The little things may often be neglected, but they should not be. A writer seeking to earn and maintain credibility ignores the little things at his peril.

Jason Grams is a partner of Lamson, Dugan & Murray, LLP. Jason’s practice is focused on appeals and business litigation. He holds a B.A. in political science from UNL and a J.D. with high distinction from the University of Nebraska College of Law (order of the coif, order of the barristers), where he was an executive editor of the law review and member of the national moot court team. After law school, Jason served as a law clerk to Senior Judge Lyle E. Strom of the US District Court for the District of Nebraska and Chief Judge William Jay Riley of the US Court of Appeals for the Eighth Circuit. THE NEBRASKA LAWYER

For Some Reason, Everything Always Starts with Ancient Greece

Credibility is trust: trust that you will tell the truth; trust that you know what you are talking about; trust that you can help. You need credibility to avoid the thought, however fleet-

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JANUARY/FEBRUARY 2019

THE LITTLE THINGS THAT KILL CREDIBILITY IN COURT PAPERS ing, that “if I cannot trust you to get the ‘easy’ details right, how can I trust you to get the ‘hard’ legal analysis right?” What are the “easy” details? Following the court’s rules is one, which starts with reading them. If the court rules require you to include certain things in your brief, include them. If the rules require you to individually number each statement you claim is an undisputed material fact and provide a record citation for it, do that. If the rules require you to provide a statement of the issues and a list of “most apposite cases,” provide them. Some courts want particular font sizes, page lengths, section headings, or certificates. Give them what they want. Otherwise you risk being seen as careless, and your judge will think she cannot trust you. Worse, you risk being seen as disrespectful, choosing not to comply with the court’s rules. You did not double space a block quotation or number your statements of undisputed facts. Therefore you either did not care enough to read the court’s rules or you felt your personal preference was more important than the court’s. Either way, your credibility suffers. Worse, you will likely never know whether or how much this cost you, and there is no appeal from a loss of credibility. But, you say, the judge should look past all of this and just make the right decision based on the facts and the law! It should not matter what I look like in court or whether I proofread my briefs! Maybe. But this position overlooks how elusive the right decision can be and how much courts need to trust advocates— to rely on your credibility—to help them understand both the facts and the law. If your judge cannot trust you to get the little things right, how can she trust you not to stretch the facts or cite a case for a proposition it does not support? Lawyers often underestimate the extent to which courts need to trust them in order to do their work. Except for those reading this article, judges are not superhuman. They need to trust that you will clearly and accurately report the relevant law and facts to them for decision. They need to rely on your credibility.

The Grand Dame of Minneapolis and the Horse A great way to tax your credibility with most judges is to assign the work of reasoning out your argument to the court. This can take many forms, from attempting to force the court to mine your brief or evidence by failing to provide citations to hopeful suggestions that your point is “clear” or “obvious.” This comes up more often than you might think, and the courts are well aware of this frequent, and lazy, dodge. For example, in an annual training session for new appellate law clerks, the late Circuit Judge Diana E. Murphy instructed the clerks that “any time a lawyer uses the words ‘clearly’ or ‘obviously’ in a brief, scrutinize it carefully. That means it is not clear at all.” In a similar vein, Harvard Law Professor Henry Steiner is quoted as saying, “Whenever someone says ‘clearly,’ that’s where the horse is buried.” It is unclear whether the horse’s burial is a reference to THE NEBRASKA LAWYER

the progress of an old west investigation or merely the suggestion that using “clearly” or “obviously” in legal writing stinks. Regardless, showing your audience why your point is correct is always more persuasive than asking your reader to rely on your credibility—to trust you. Don’t do it! Save your credibility for the court’s evaluation of your argument. Rather than saying, “clearly the sky was blue,” try something along the lines of, “It being 2:00 p.m. on a 68 degree day in May, with the National Weather Service reporting no clouds or precipitation, it is safe to say the sky was blue on the date of the incident.” If the fact matters enough to include in your brief at all, it matters enough to show instead of tell.

Death by Bluebook Not understanding the Bluebook can hurt your credibility. Don’t believe me? Consider Bluebook Rule 1.2. Under Rule 1.2 if you cite a case and put no signal in front of the citation, you are telling the court that your “[c]ited authority (i) directly states the proposition, (ii) identifies the source of a quotation, or (iii) identifies an authority referred to in the text.” If, instead, your “proposition is not directly stated by the cited authority but obviously follows from it [or] there is an inferential step between the authority cited and the proposition it supports,” your citation must lead with the “See” signal. And if your citation merely “supports a proposition different from the main proposition but sufficiently analogous to lend support,” you should use the “Cf.” signal. Thus, if you make a statement about a case that does not appear in the case itself, at a minimum you should be introducing your citation with a “See” signal. If you just list a citation with no signal, you are representing to the court that your proposition is to be found directly in the cited case. If it is not there, your representation is false. Is the misrepresentation unethical? It is if you knew what you were doing! And if you did not know what you were doing, your competence is questionable. Either way, the court cannot trust that your citations are accurate and must delve into each case you cite to check them. A corollary is that if you cannot manage to put an ordinary cite to a case or statute in proper form it leads one to wonder if you know the rules well enough to understand things like Rule 1.2. Not every judge will lose trust in you for minor transgressions in this area, but some will. And their law clerks certainly will. Speaking of law clerks, because their work involves a great deal of careful review of the parties’ briefs, they quickly become experts at noticing misrepresentations and neglect. One clerk friend of mind was working on an attorney-filed brief when she noticed the lawyer had used an ellipsis to denote the removal of the word “not” from a quotation of a legal proposition. Another was assigned to try to make sense out of a “brief” filed by a party which was nothing more than a caption and signature block with three long cases pasted in as the body, complete with graphics JANUARY/FEBRUARY 2019

THE LITTLE THINGS THAT KILL CREDIBILITY IN COURT PAPERS and formatting from Westlaw. I personally cannot even count the number of times I looked up a quote or a proposition a lawyer had cited in his paper and it did not appear in the case. And then there was the federal appellate brief bound with silver duct tape, and two months later the reply brief bound the same way. Don’t do these things. Whether intentional or not, these kinds of issues can damage an attorney’s credibility well beyond the particular case the issue occurred in.

Garner and Butterick There is a movement of sorts afoot to overthrow the tyranny of spacing twice after ending a sentence. The leaders of this insurrection appear to be legal style luminary Brian Garner and typography guru Matthew Butterick. Garner suggests in his legal style manual, the Redbook, that although “[t]he custom during the reign of the typewriter was to insert two spaces between sentences,” we should now place one space after all punctuation marks, including periods, because of computers. Butterick goes further and suggests we should switch to one space because “one space is the well-settled custom of professional typographers. You don’t need to like it. You only need to accept it. . . . No one has yet shown me contrary authority.” The authority Butterick seeks wears a black robe. What is one thing that judges have in common? They are, let’s say, seasoned. Seasoned is defined as “accustomed to particular conditions; experienced.” For present purposes, that means your judge—the person you are attempting to persuade with your brief—is more likely to have learned to type on an IBM Selectric than on whatever fancy word processing software that you (and Garner and Butterick) are hammering away on these days. Most had it drilled into them that you press the space bar twice at the end of a sentence. Two spaces is the right way. Anything else is a typographical error, a sign of carelessness. Dismissing another of Brian Garner’s innovations, Justice Scalia aptly summarized the case against the single space. “Of course, whatever the merits of this debate, the conclusive reason not to accept Garner’s novel suggestion is that it is novel. Judges are uncomfortable with change, and it is a sure thing that some crabby judges will dislike this one. You should no more try to convert the court [to single spacing after sentences] at your client’s expense than you should try to convert it to colorful ties or casual-Friday attire at oral argument.” This is no mere academic point. I once saw a California federal circuit judge’s copy of a brief filed by a party just before the appeal was argued. This appellate judge had circled the end of every sentence, where the author had touched the space bar only once before starting a new sentence. Where legal briefs are concerned, it does not matter if you are right. The only opinion that counts is your audience’s. And even if your audience thinks your method is innovative, it may cause her to pause and think about it. But you want her to do her thinking about your substantive arguments, THE NEBRASKA LAWYER

not your position on how many spaces should be put at the end of a sentence. What’s more, you will probably not ever know if your judge found your innovation refreshing or just a sign that you do not know the right way to do it. If you’ve been following along, the point should be obvious. Take no risks with style, lest you take attention away from making your point.

With This Shield or On It When a young Spartan first went out to battle, his mother would give him a shield, and tell him to return only with his shield or on it. The phalanx required large, heavy shields and a hoplite could not escape the field of battle unless he tossed it away. “Losing one’s shield,” meant desertion. Dead fighters were carried back home on their shields. The mother’s exhortation therefore amounted to “fight the battle honorably or be carried home dead on your shield.” Your credibility is your shield. You carry it into every battle, not just the one you are fighting today. You must do everything you can to keep it. This does not mean you can never make a mistake. Courts generally forgive honest mistakes. But they do not forgive dishonesty or habitual carelessness. If a judge feels you have been dishonest or disrespectful with her, she will remember. And it may be years before she trusts you again. Think of credibility like a bank account you have with the court. Try to maximize the little deposits and minimize the withdrawals. Come back with your credibility intact. You’ll need it for the next case.

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feature article

Opening Statements and Closing Arguments in Bench Trials by Pete Wegman

Nebraska statutes are silent with respect to opening statements and closing arguments in bench trials. Neb. Rev. Stat. §25-1107 (reissued 2016) addresses opening statements and closing arguments in jury trials When the jury has been sworn the trial shall proceed in the following order, unless the court for special reasons otherwise directs: (1) The plaintiff must briefly state his claim, and may briefly state the evidence by which he expects to sustain it.

If several defendants have separate defenses and appear by different counsel, the court shall arrange their relative order. Opening statements in bench trials should be viewed as opening arguments. There does not appear to be any statutory or case law that would prevent one from arguing the case in opening statements. The traditional review of opening statements is that they are restricted to what the parties expect to prove during the trial through witnesses and exhibits. Thomas A. Mauet, Trial Techniques and Trials 76 (10th ed. 2017), while the modern view allows attorneys to discuss themes and argue parties’ positions on disputed facts and issues. Id at 6.

(2) The defendant must then briefly state his defense and may briefly state the evidence he expects to offer in support of it.

Opening statements should be viewed as an opportunity to tell the court what the evidence will show and why the evidence supports your clients’ position.

… (6) The parties may then [after jury instructions are given] submit or argue the case to the jury. In argument, the party required first to produce his evidence shall have the opening and conclusion.

Some attorneys choose to waive opening statements, perhaps assuming the judges are busy and simply want to get on with the trial. I believe that is a significant mistake. Most judges are overwhelmed with caseloads and may not have an opportunity to review a trial brief prior to trial. In Lancaster County, for example, a district court judge may have approximately 100 modification cases and 120-150 divorce actions plus the remaining civil and criminal docket.

Pete Wegman Pete Wegman has been with Rembolt Ludtke for almost 37 years. Pete has a statewide practice specializing in plaintiff’s personal injury and wrongful death, and domestic relations. He handles cases in a majority of Nebraska’s counties. Pete speaks regularly on topics at trial attorney seminars.

Opening argument is a critical opportunity to briefly, in less than five minutes, summarize the key issues, the key testimony or the key exhibits and highlight those for the judge to focus on. Preparing an opening argument forces one to step back and summarize their claim in several brief statements. Clients often are paying significant money to have a case

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JANUARY/FEBRUARY 2019

OPENING STATEMENTS AND CLOSING ARGUMENTS IN BENCH TRIALS Opening argument is a rare opportunity to argue your case to the fact finder. Do not waive or underestimate the significance of opening. So what if your opponent objects to your opening being argumentative – stay at it until any objections are sustained.

taken to trial. They are paying for their lawyer's skills, experience, and talents. The clients expect the lawyer to argue their case from the commencement of the trial through the end. Waiving opening argument misses an opportunity to show the client that you’ve done your homework, you have the case ready for trial, and you’ve identified the significant issues for the court to focus on. Waiving opening argument may send a message to your client that you don’t care.

Likewise, I often see lawyers in a bench trial waive closing arguments and instead request permission to submit written closing arguments. Again, I believe that is a mistake. One would never consider waiving closing argument at a jury trial. Why waive closing argument in a bench trial, even if the judge asks for written closing arguments? In that situation, you still should be prepared to do a three- or four-minute closing argument while the facts are still fresh in your and the court’s mind. And, your client probably expects that. When we waive closing arguments and submit written closing arguments, the client misses the context of the litigation and waiving closing does not engender respect and confidence in the judicial system for litigants when things are simply said on paper and not argued in the courtroom. In addition, I believe it always helps my client to hear how the other lawyer frames the issues in their closing argument.

There are ethical guidelines with respect to what one may say in opening regarding the facts in the case. For example, ethically [a] lawyer shall not: … (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused;….

There really is not much law on opening statements and closing arguments in bench trials. I think the best advice is to be as aggressive as possible while being brief and try to read the judge on how aggressive one can be.

Neb. Sup. Ct. R. § 3-503.4€; see also Model Rules of Prof’l Conduct r. 3.4 (Am. Bar Ass’n 2018).

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JANUARY/FEBRUARY 2019

feature article

Looking Beyond the Pleadings:

Outside Evidence Courts May Consider for Motions to Dismiss by Cathy Trent-Vilim and Janae Hofer

As attorneys who frequently defend parties to lawsuits, we sometimes file a motion to dismiss in lieu of an answer. Depending on the grounds for the dismiss, we may even offer (or attempt to offer) evidence in support of the motion. At times, efforts to adduce evidence are met with resistance, both by opposing counsel and the court. Most commonly, opposing counsel objects on grounds that the admission of evidence would convert the motion to dismiss to a motion for summary judgment. If the trial court agrees, evidence that should be admissible is excluded. After months of discovery, the issue raised in the motion to dismiss likely ends up the subject of a motion for summary judgment, with the previously unadmitted evidence being received by the court. If the motion to dismiss was meritorious, chances are the motion for summary judgment is granted. Although the client eventually achieves the desired outcome (dismissal), it often comes with a hefty price tag. However, that need not always be the case. In certain circumstances, evidence is properly admis-

sible on a motion to dismiss by virtue of the ‘incorporation by reference’ doctrine. The purpose of this article is to discuss the types of evidence the Nebraska state courts and the federal courts have determined a court may appropriately consider on a motion to dismiss without converting the motion to one for summary judgment. A trial court’s hesitation in receiving documents into evidence on a motion to dismiss is understandable. After all, Nebraska’s pleading rules1 specifically state: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in §§ 25-1330 to 25-1336, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.

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Cathy Trent-Vilim Janae Hofer

Cathy Trent-Vilim is a partner of Lamson Dugan & Murray. She obtained her Juris Doctor with honors from the University of Nebraska College of Law. She focuses primarily in the areas of appellate practice, commercial litigation and legal malpractice defense. She is currently the President of the Nebraska Defense Counsel Association and Chair of the Appellate Practice Section of the Nebraska State Bar Association. THE NEBRASKA LAWYER

Janae Hofer is a litigation attorney at Lamson Dugan & Murray. She obtained a Bachelor of Science, summa cum laude, from Grace University and a Juris Doctor, cum laude, from Creighton University.

JANUARY/FEBRUARY 2019

LOOKING BEYOND THE PLEADINGS Most practitioners focus on the language providing that “the motion shall be treated as one for summary judgment.”2 They gloss over the important language immediately preceding this: “matters outside the pleading are presented to and not excluded by the court.”3 Reading § 6-1112 too narrowly does the parties and the courts a disservice. Motions to dismiss are an instrumental part of the pleading process. If successful, these motions save clients (on both sides of the “v.”) from spending valuable time and money fighting unfounded lawsuits. Yet success can be difficult on motions to dismiss because courts must assume all well-pled facts in favor of the non-moving party; and generally, courts may only consider evidence within the pleadings. Still, courts across jurisdictions recognize that even limiting evidence to matters within the pleadings does not require that the courts exclude all evidence on a motion to dismiss. While the ‘incorporation by reference’ doctrine is widelyknown and utilized in the federal courts, it has also been explicitly recognized and accepted by the Nebraska Supreme Court and Court of Appeals.4 For example, in DMK Biodiesels, LLC v. McCoy,5 the Nebraska Supreme Court embraced the doctrine, holding: For purposes of a motion to dismiss, “‘the court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings.’” These documents embraced by the complaint are not considered matters outside the pleading. Documents embraced by the pleadings are materials “‘alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.’” The majority of circuits appear to agree that the document must be referred to in the complaint and must be central to the plaintiff's claim.

Conversely, allowing a defendant to offer evidence not attached to, referenced or incorporated into the complaint would disadvantage the plaintiff, as the plaintiff will not have had time to review the materials and prepare its response. In those instances, the motion must be treated as one for summary judgment and proper notice must be given to the non-moving party.7 With this backdrop in mind, it is helpful to explore some of the types of evidence courts may properly consider on a motion to dismiss without converting the motion to one for summary judgment.8 Keep in mind, however, that courts will not consider documents where the authenticity of the document is under dispute.9 They also will not consider documents where parties dispute the actual content of the documents.10

1. Documents Submitted with the Complaint Perhaps most obviously, courts may consider documents attached to or submitted with the complaint when deciding motions to dismiss.11 This encompasses any exhibit a plaintiff submits with her complaint, even when the exhibit contradicts the complaint.12 When the exhibit contradicts the complaint, the exhibit will control.13 For example, courts can consider letters, reports, and affidavits attached to complaints.14

2. Documents Incorporated by Reference in the Pleadings

Courts allow such external documents because doing otherwise would put the pleading party at a disadvantage over the defending party. The plaintiff could cite a document and rely on that document for its claim, but not attach it to the complaint. The defendant, however, would be prohibited from offering the very document into evidence to prove that the plaintiff’s suit fails to state a claim. The ‘incorporation by reference’ doctrine redresses this and places the parties on equal footing. As the Second Circuit has explained,6 [W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference [a document] upon which it solely relies and which is integral to the complaint, the defendant may produce the [document] when attacking the complaint for its THE NEBRASKA LAWYER

failure to state a claim, because plaintiff should not so easily be allowed to escape the consequence of its own failure.

Courts may also consider documents not attached to the complaint but incorporated by reference into the pleadings.15 Where plaintiffs reference documents (or portions of a document), courts may consider the entirety of the referenced documents when deciding motions to dismiss.16 Even if the names of the documents are not referenced in pleadings, courts consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.”17 Most commonly, these documents include written contracts incorporated into a pleading. Other examples have included: • an employee handbook alleged in a plaintiff’s complaint;18 • a collective bargaining agreement incorporated by reference in a complaint;19 • in a libel action, an entire book published by the defendants;20 • the content of a website at issue in a defamation case;21 • a group insurance policy;22 and

JANUARY/FEBRUARY 2019

LOOKING BEYOND THE PLEADINGS effect of a document in drafting the complaint is a necessary prerequisite to the court’s consideration of the document at this stage of a case.”29

• in a dispute arising from representations made in a guarantee policy of a ticket vendor, the policy referenced in the plaintiffs’ complaint.23

Applying this “Eight Corners Rule,” other courts have considered:

3. Documents Relied Upon in Bringing Suits and Central to Claims “In addition to considering the pleadings, the court may consider . . . ‘documents possessed by or known to the plaintiff and upon which it relied in bringing the suit.’”24 The First Circuit held that “when a complaint's factual allegations are expressly linked to—and admittedly dependent upon—a document (the authenticity of which is not challenged), then the court can review it upon a motion to dismiss.”25 In other words, even if a party fails to attach or reference a document, but the document is “integral” to the complaint, or is “necessarily embraced” by the pleading, courts may consider the document.26 Documents are “integral” or “central” to the complaints where plaintiffs are suing primarily on the basis of documents.27 As the DMK Biodiesel court explained, “A prime example of documents "'necessarily embraced'" by a pleading is a written contract in a case that involves a dispute over the terms of the contract.”28 As one court clarified, “[t]o consider a document on a dismissal motion a plaintiff’s mere notice or possession is not enough. Instead, a plaintiff’s reliance on the terms and

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• loan agreements;30 • cardholder agreements, account histories, and monthly statements in claims for violations of the Truth in Lending Act;31 • where a complaint challenged the reasonableness of school regulations, the court considered the regulations;32 and • in a Title VII suit, the court considered the EEOC charges when deciding a motion to dismiss.33 Outside of conventional documents, courts have also considered television and radio show recordings and transcripts, along with articles from newspapers and magazines, upon which plaintiffs relied in bringing their suits.34 The Tenth Circuit agreed the lower court could consider a seminar recording and TV episode in a motion to dismiss a defamation action against a television network where the materials were “(1) attached to or referenced in the amended complaint, (2) central to [the plaintiff’s] claim, and (3) undisputed as to their accuracy and authenticity[.]”35

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JANUARY/FEBRUARY 2019

LOOKING BEYOND THE PLEADINGS

4. Matters of Public Records and Subject to Judicial Notice “[E]ven within the Rule 12(b)(6) framework, a court may consider matters of public record and facts susceptible to judicial notice.”36 Consideration of these matters generally requires no persuasion beyond attaching the record because authenticity is not generally an issue.37 Matters of public record and subject to judicial notice have been held to include: • judicially noticed filings from a previous juvenile court proceeding;38 • a paternity case court file where a litigant sought a permanent injunction to prevent the state from seizing funds from his Social Security disability benefits;39

• Insufficient service: Where defendants seek dismissal on the basis of insufficient service of the complaint, including plaintiffs’ failure to provide timely service, courts may consider evidence regarding service.55 “Because the pleadings themselves will typically shed no light on service issues, motions to dismiss need not be treated as motions for summary judgment even if they are supported by affidavits or other evidence outside the pleadings.”56

• the date on which an estate entered probate;41 42

• documents authored by government agencies;43 • deeds of trust;44 • current and superseded case law, regulations, ordinances, and statutes;45 • legislative history;46 and • in a claim premised on wrongful registration, other lawsuits the plaintiff had brought against a corporate entity.47

Conclusion

5. Concessions in Plaintiffs’ Responses to Motions to Dismiss Courts may consider concessions made by plaintiffs in their responses to motions to dismiss, including statements made by counsel in oral arguments and opposing briefs.48 In an action alleging violations of golf caddies’ rights to publicity and federal antitrust and trademark laws, the Ninth Circuit affirmed the consideration of plaintiffs’ concession that “the PGA Tour has required caddies to wear bibs for decades,” which directly contradicted the complaint, in deciding the motion to dismiss.49

6. Evidence Supporting Certain Defenses Sometimes, a motion to dismiss is not based on the sufficiency of the plaintiff’s allegations, but an alleged procedural defect in the suit. In cases where the procedural defense would be dispositive, courts have allowed extrinsic evidence on a motion to dismiss without converting the motion to summary judgment. These include: THE NEBRASKA LAWYER

• Improper venue: Where defendants seek dismissal on the basis of improper venue, courts may consider matters outside the pleadings without converting the motion to one for summary judgement.52 One court stated that in a motion to dismiss for improper venue, “the court may consider matters outside the pleadings such as affidavit testimony, particularly when the motion is predicated upon key issues of fact.”53 • Lack of capacity: Where dismissal is premised on a plaintiff’s lack of capacity to sue, courts may consider affidavits and other evidence outside of the pleadings regarding plaintiffs’ capacities.54

• a prior Court of Appeals opinion for a claim under the Nebraska Claims for Wrongful Conviction and Imprisonment Act;40 • decisions rendered by government agencies;

• Lack of jurisdiction: Where defendants make a factual challenge to jurisdiction, courts may consider evidence outside the pleadings to resolve disputed facts necessary for the determination of jurisdiction.50 Courts have applied this rule to challenges of both subject matter jurisdiction and personal jurisdiction.51

Despite the seemingly stringent prohibition of evidence on a motion to dismiss, Nebraska state law and federal procedural law allow certain types of evidence to be introduced without converting a motion to dismiss to a motion for summary judgment. Thorough and consistent application of the ‘incorporation by reference’ rule will enable courts to make determinations earlier in a proceeding, thereby leading to greater judicial economy and economic benefit for all parties to an action.

Endnotes 1

See Neb. Ct. R. § 6-1112(c).

Id.

See, e.g., DMK Biodiesel, LLC v. McCoy, 285 Neb. 974, 980, 830 N.W.2d 490 (2013).

DMK Biodiesel, LLC v. McCoy, 285 Neb. at 980.

Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991)

Neb. Ct. R. § 6-1112 (stating that if matters outside the pleadings are offer, the motion must be converted to summary judgment and “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.”). See, also, Perks v. Town of Huntington, 96 F. Supp. 2d 222, 225-26 (E.D.N.Y. 2000) (applying this rationale to affidavits and refusing to consider the affidavit in ruling on the motion to dismiss). JANUARY/FEBRUARY 2019

LOOKING BEYOND THE PLEADINGS 8

Since Nebraska’s pleading rules are modeled after the Federal Rules of the Civil Procedure, the Nebraska appellate courts frequently look to federal decisions for guidance. So, too, does this article, and many of the citations herein will be to federal case law. Although this case law is not authoritative and binding on the Nebraska trial and appellate courts, it should be persuasive authority where direct Nebraska authority is lacking.

Conn. 1999), rev'd in part, vacated in part on other grounds, 228 F.3d 154 (2d Cir. 2000). 14 Reese

v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012); Walker v. Oglethorpe Power Corp., 341 Ga. App. 647, 671, 802 S.E.2d 643, 665 (2017).

15 Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323 (2007); McChesney v. Fed. Election Comm'n, 900 F.3d 578, 583 (8th Cir. 2018), reh'g denied (Oct. 30, 2018); Lister v. Bank of Am., N.A., 790 F.3d 20, 22 n.2 (1st Cir. 2015); Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 466 (4th Cir. 2011); Nadeem v. State, 298 Neb. 329, 334–35, 904 N.W.2d 244, 249 (2017).

Williams v. Employers Mut. Cas. Co., 845 F.3d 891, 903–04 (8th Cir. 2017); Martinez-Rivera v. Commonwealth of Puerto Rico, 812 F.3d 69, 74 (1st Cir. 2016); Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013); Am. Corp. Soc. v. Valley Forge Ins. Co., 424 F. App'x 86. 88 (3d Cir. 2011).

16 Havenick

v. Network Exp., Inc., 981 F. Supp. 480, 509 (E.D. Mich. 1997).

10 Iowa

Health Sys. v. Trinity Health Corp., 177 F. Supp. 2d 897, 927 (N.D. Iowa 2001) (Bennett, C.J.), quoting Jenisio v. Ozark Airlines, Inc. Ret. Plan for Agent & Clerical Employees, 187 F.3d 970, 972 (8th Cir. 1999)

17 Ashanti

v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012) (internal quotations omitted).

18 Dyer

v. Wal-Mart Stores, Inc., 535 F. App'x 839, 844 (11th Cir. 2013).

11 Humphrey

v. Eureka Gardens Pub. Facility Bd., 891 F.3d 1079, 1081 (8th Cir. 2018); McBride v. Warden of Allegheny Cty. Jail, 577 F. App'x 98, 99 (3d Cir. 2014); Williams v. Time Warner Inc., 440 F. App'x 7 (2d Cir. 2011); In re MobileMedia Sec. Litig., 28 F. Supp. 2d 901 (D.N.J. 1998); Walker v. Oglethorpe Power Corp., 341 Ga. App. 647, 671, 802 S.E.2d 643, 665 (2017); Kellogg v. Nebraska Dep't of Corr. Servs., 269 Neb. 40, 45, 690 N.W.2d 574, 578–79 (2005).

19 Caravello

v. Am. Airlines, Inc., 315 F. Supp. 2d 1346, 1348-49 (S.D. Fla. 2004).

20 Hoffman-Pugh

2002).

21 Knievel 22 Strom

12 Ganino

v. Citizens Utilities Co., 56 F. Supp. 2d 222, 226 (D. Conn. 1999), rev'd in part, vacated in part on other grounds, 228 F.3d 154 (2d Cir. 2000).

1999).

example, in Zapata v. Kelly’s Carpet Ltd., No. A-16-1172, 2017 Neb. App. LEXIS (Neb. App. November 14, 2017) (although Zapata brought suit on his own behalf, the documents he attached to the complaint referenced an agreement with an apartment complex; relying on the documents, the court dismissed Zapata’s suit, finding he had no standing, right, title or interest in the subject matter of the alleged contract). See, also, Ganino v. Citizens Utilities Co., 56 F. Supp. 2d 222, 226 (D.

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v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

v. Goldman, Sachs & Co., 202 F.3d 138, 141 (2d Cir.

23 Nooney

13 For

v. Ramsey, 312 F.3d 1222, 1225-26 (11th Cir.

v. StubHub, Inc., 873 N.W.2d 497, 499 (S.D. 2015).

24 Arias

ex rel. Almonte, 2010 WL 4724263, at *1, quoting ATSI Communications, Inc., 493 F.3d at 98.

25 Diva's

Inc. v. City of Bangor, 411 F.3d 30, 38 (1st Cir. 2005) (internal quotations omitted).

26 Williams,

845 F.3d at 903; Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002); Berg v. Empire Blue Cross & Blue Shield, 105 F. Supp. 2d 121, 126 (E.D.N.Y. 2000).

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JANUARY/FEBRUARY 2019

LOOKING BEYOND THE PLEADINGS 27 Id.;

Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999).

28 DMK

45 Morton

v. United States Parole Comm'n, 318 F. Supp. 3d 40, 43 (D.D.C. 2018); Sebastian v. United States, 185 F.3d 1368, 137374 (Fed. Cir. 1999).

Biodiesel, 285 Neb. at 980-981.

46 Lopez

v. Stages of Beauty, LLC, 307 F. Supp. 3d 1058, 1064 (S.D. Cal. 2018); Second Amendment Arms v. City of Chicago, 135 F. Supp. 3d 743, 756 (N.D. Ill. 2015); United States v. Tuente Livestock, 888 F. Supp. 1416 (S.D. Ohio 1995).

29 Guo v. IBM 401(k) Plus Plan,

95 F. Supp. 3d 512, 522 (S.D.N.Y. 2015) (internal citations omitted).

30 Sandza

v. Barclays Bank PLC, 151 F. Supp. 3d 94, 102 n.5 (D.D.C. 2015).

31 Schnall

2000).

32 Angstadt

2004).

v. Erickson, Sederstrom, 272 Neb. 113, 123, 718 N.W.2d 501 (2006) (“the district court did not err in considering the other cases brought by the appellants against AFSC and the majority shareholders”).

v. Midd-W. Sch. Dist., 377 F.3d 338, 342-43 (3d Cir.

33 Whitehead

1994).

34 Condit

47 Ferer

v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir.

48 McCorkle

v. Bank of Am. Corp., 688 F.3d 164, 170, 172 (4th Cir. 2012); Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55–56 (1st Cir. 2012); Maio v. Aetna, Inc., 221 F.3d 472, 500 (3d Cir. 2000).

v. AM Int'l, Inc., 860 F. Supp. 1280, 1286 (N.D. Ill.

v. Dunne, 317 F. Supp. 2d 344, 357 (S.D.N.Y. 2004).

35 Brokers' Choice of Am., Inc. v. NBC Universal, Inc.,

1103–1104 (10th Cir. 2017).

49 Hicks

861 F.3d 1081,

States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co., 839 F.3d 242, 251 (3d Cir. 2016), cert. denied sub nom. Victaulic Co. v. U.S., ex rel. Customs Fraud Investigations, LLC, 138 S. Ct. 107, 199 L. Ed. 2d 30 (2017); Patel v. Facebook Inc., 290 F. Supp. 3d 948, 951–52 (N.D. Cal. 2018); Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1154 (D. Minn. 2010); Doe v. Diocese of Raleigh, 242 N.C. App. 42, 44, 776 S.E.2d 29, 33 (2015); Myers v. Utah Transit Auth., 2014 UT App 294, ¶ 13, 341 P.3d 935, 938; Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11, 14, 999 A.2d 677, 679 (2010); Hutterville Hutterian Brethren, Inc. v. Waldner, 2010 S.D. 86, ¶ 20, 791 N.W.2d 169, 174.

36 Doe

ex rel. Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 83, 727 N.W.2d 447 (2007) (“a court may take judicial notice of matters of public record without converting a rule 12(b)(6) motion to dismiss into a motion for summary judgment:”). See, also, Meaghan H. v. Mark J. (In re Kenten H.), 272 Neb. 846, 852, 725 N.W.2d 548 (2007); Ferer v. Erickson, Sederstrom, 272 Neb. 113, 718 N.W.2d 501 (2006).

37 Tellabs,

Inc., 551 U.S. at 322-23; Funk v. Stryker Corp., 631 F.3d 777, 782 (5th Cir. 2011).

38 Meaghan

H. v. Mark J. (In re Kenten H.), 272 Neb. 846, 852, 725 N.W.2d 548 (2007) (“a court may take judicial notice of matters of public record without converting a rule 12(b) motion to dismiss into a motion for summary judgment. We therefore consider the judicially noticed filings from the previous proceedings in resolving the motion to dismiss.”) (internal citation omitted).

51 Id. 52 Laibe

Corp. v. Gen. Pump & Well, Inc., 317 Ga. App. 827, 831, 733 S.E.2d 332, 336 (2012); Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 643 (Tenn. 2009); Willbros USA, Inc. v. Certain Underwriters at Lloyds of London, 2009 OK CIV APP 90, ¶ 7, 220 P.3d 1166, 1171.

53 Whitwam

v. JetCard Plus, Inc., 34 F. Supp. 3d 1257, 1259 (S.D. Fla. 2014) (internal quotations omitted).

39 Stonebrook

v. Green, No. A-15-394, 2016 Neb.App. LEXIS 96 (Neb, Ct. App. May 17, 2016) (motion to dismiss not converted to summary judgment motion by the court taking judicial notice of a court file).

40 Nadeem

54 Halmos

v. Bomardier Aerospace Corp., 404 F. App'x 376, 377 (11th Cir. 2010); Lake Point Tower Condo. Ass'n v. Waller, 2017 IL App (1st) 162072, ¶ 11, 82 N.E.3d 719, 723, reh'g denied (Aug. 1, 2017), appeal denied sub nom. Lake Point Tower Condo. Ass'n v. Grogan, 93 N.E.3d 1056 (Ill. 2017).

v. State, 298 Neb. 329, 904 N.W.2d 244 (2017).

41 Ennenga

v. Starns, 677 F.3d 766, 773–774 (7th Cir. 2012).

42 Johnson

v. Perdue, 862 F.3d 712, 715 (8th Cir. 2017); Thomas v. Noder–Love, 621 Fed.Appx. 825, 829 (6th Cir. 2015); ZMC Pharmacy, LLC v. State Farm Mut. Auto. Ins. Co., 307 F. Supp. 3d 661, 668 (E.D. Mich. 2018).

43 Yosowitz

2016).

55 Haidon

v. Budlong & Budlong, LLC, 318 F. Supp. 3d 568, 572 (W.D.N.Y. 2018); Rucker v. Taylor, 828 N.W.2d 595, 598–99 (Iowa 2013); Cushman v. Raiford, 221 Ga. App. 785, 786, 472 S.E.2d 554, 556 (1996).

v. Covidien LP, 182 F. Supp. 3d 683, 687 (S.D. Tex.

44 Johnson v. Wells Fargo Bank, NA,

Tex. 2014).

v. PGA Tour, Inc., 897 F.3d 1109, 1117 (9th Cir. 2018).

50 United

56 Boulger

v. Woods, 306 F. Supp. 3d 985, 993 (S.D. Ohio 2018).

999 F. Supp. 2d 919, 926 (N.D.

If you are aware of anyone within the Nebraska legal community (lawyers, law office personnel, judges, courthouse employees or law students) who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury, the NSBA’s SOLACE Program can likely assist that person in some meaningful way. Contact Mike Kinney at mkinney@ctagd.com and/or Liz Neeley at lneeley@ nebar.com for more information. We have a statewide-and-beyond network of generous Nebraska attorneys willing to get involved. We do not solicit cash, but can assist with contributions of clothing, housing, transportation, medical community contacts, and a myriad of other possible solutions through the thousands of contacts available to us through the NSBA and its membership. THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

feature article

Oral Argument in the Nebraska Supreme Court: Four Days in the Dark

by Richardson R. Lynn

Before observing the first week of oral argument of the Fall, 2017, term of the Nebraska Supreme Court,1 I viewed several of the arguments archived on the Court’s website.2 Any citizen or lawyer who watches the arguments live on Nebraska public television3 or on the archive site cannot fail to be impressed with the quality of the Justices’ preparation for oral argument, their thoughtfulness and intelligence, and their evident commitment to doing justice.4 The second overriding impression from the recorded arguments is the courtroom was surprisingly dark. I assumed the

Richardson R. Lynn Richardson Lynn is a graduate of the Vanderbilt University School of Law and is admitted to practice in Nebraska and Tennessee. He came to Nebraska in 1968 to attend York College, but has spent most of his life in lands where Runza® is unknown. After nearly forty years in legal education, including serving as dean at two law schools (Pepperdine University and Atlanta’s John Marshall Law School), he flunked retirement and re-activated his law licenses, intending to focus primarily on appellate practice. His Nebraska office is in Lincoln, but he has spent most of the past year defending a massive, alleged health care fraud case in Tennessee. Richard’s website contains downloadable chapters on oral argument and brief writing from his treatise on appellate litigation. https://richardlynnlawyer.com/ legal-analysis-and-briefs For your use or amusement, it also includes quotations about the legal profession. https://richardlynnlawyer.com/legal-quotations. THE NEBRASKA LAWYER

video system was to blame. Nope. Sitting in the courtroom, even on sunny days, felt like legal glaucoma.5 The faces of the Justices appear in spooky uplighting. There appears to be a sentence carved in the paneling behind the bench, but the only words I could make out, thanks to two weak sconces, were “… Are Poor…The Soul….” After a few minutes, when my pupils dilated, owl-like, I didn’t feel quite so depressed. Modern lighting could fix this, by the way, without affecting the beauty of the historic chamber. Of course, the other reason I was in the dark for four days was that I knew nothing of the substance of the 18 cases argued that week. Not distracted by any substantive knowledge, I came to watch the 27 lawyers who argued those cases.6 They were a representative sample of the quality of oral argument in most appellate courts.7 Over the years, I have argued and observed argument in multiple state appellate courts and U.S. Circuit Courts of Appeal, as well as watching numerous arguments in the U.S. Supreme Court.8 The strengths and weaknesses of the lawyers in all of those courts are remarkably similar and the lawyers I observed for this article performed quite well by comparison. But, we can always improve.9 This Article does not address the underlying question: If it’s only 10 minutes long, is it really oral argument or is it Twitter?10 Based on the 18 arguments I watched, 10 minutes per side was adequate in only a few cases. If you allow 3-5 minutes for questions for a bench as active as the Nebraska Supreme Court, you have only 5-7 minutes to make your argument, less if you are an appellant who reserves rebuttal time, as you should. Time is relative and in oral argument the difference between 10 and 15 is more than five. In most of the arguments, 15 minutes would have allowed the lawyers to explore the issues fully, without repetition, while allowing adequate

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ORAL ARGUMENT IN THE NEBRASKA SUPREME COURT time for questioning by the Court. Thirty minutes per side would have been too much for all but one of the cases, but 15 minutes per side would have been best.11 With 4-5 arguments each morning, there would be only 40-50 minutes of additional argument time for the Court, assuming it was all used. (It’s not as if there’s anything good on daytime TV.) And, if a lawyer runs out of things to say, but won’t sit down, the Court is quite good at suggesting when the lawyer has exhausted the Court’s interest in hearing more.

Formality During the oral arguments, the Justices demonstrated respect for the lawyers appearing before them. Their questions were polite, even gentle, and they had no appetite for embarrassing lawyers who had not sufficiently thought through an argument or failed to anticipate an obvious question. Nor did the Justices appear to be offended by the lawyers’ consistent informality. If anything, the Justices allowed the lawyers to feel too comfortable, leading to a continually casual atmosphere. The good news about this relationship between the Court and the Bar is that it demonstrates a level of trust not often found in appellate courts. The bad news is, as a model of oral argument, informality may be inconsistent with rigorous thinking and focused argumentation. And, while the lawyers undoubtedly felt they were being respectful toward the Court, the informality which characterized most of the arguments was not deferential. For example, it was rare for a lawyer to begin an answer to a Justice’s question with “Yes, Your Honor,” or “No, Your Honor.” Usually, the lawyer launched into an explanation of the answer without indicating what the conclusion would be. The first reason to begin answers with “Yes (or No), Your Honor” in every court is to show deference to the judge. There are no degrees of deference owed to judicial officers, but, if there were, the greatest degree is owed to the judges on the highest courts. The other reasons for this technique are more practical. Stating your conclusion before the explanation gives the judge a chance to ask a follow-up question before a potentially long-winded explanation, helping get to their ultimate concern faster.12 Which the lawyer should want, too. And, during the micro-second it takes to give the formal yes or no, you can mentally organize the explanation you are about to give. Two lawyers repeatedly answered, “Correct!” One lawyer began his answer, “Here’s the whole deal ….” Most of the lawyers who at least began their answers with a “Yes” or “No,” omitted the deferential “Your Honor.” Repeated twenty or thirty times in an argument, it sounds abrupt--a small step from “No, dummy.” Worse than a bare “Yes” were several lawyers whose answer to a question from the bench was “yeah” or “yeah, yeah.”13 A good oral argument is a conversation with the judges, but it is a formal conversation.14 THE NEBRASKA LAWYER

Advocates should also appear to be aware of which court they are addressing. It is true that Supreme Court Justices are judges, but their title is “Justice,” not “Judge.” A few lawyers thought they were being deferential when they said things like, “That’s true, Judge,” while the Justices are thinking, “No, I used to be a judge, now I’m a Justice.” In a few cases, a lawyer knew the names of the Justices and used their names! What a concept! The only thing better than “Yes (or No), Your Honor” is “Yes (or No), Justice Funke.” Or, “Getting back to Justice Stacy’s question, ….” It’s also good to remember that the fellow sitting in the exact center of the bench is known as the Chief Justice and, when addressing him, it is appropriate to use that title, as in “Yes, Chief Justice Heavican” or “No, Chief Justice Heavican.” Unlike one lawyer who replied to the Chief Justice’s question with--and I quote in full, “Tell me what you mean by that.”

Body Language Despite the care lawyers take with language, written and spoken, as much as 93% of communication is non-verbal.15 Because the attitude of an appellate lawyer should be to welcome questions, it helps to have non-verbal communication (facial expression, posture, dress, etc.) consistent with this attitude of openness. During four days of Supreme Court arguments, several lawyers stood with crossed arms during part of their arguments, body language that shouts the opposite of an eagerness to engage with the Court. Crossed arms say “leave me alone.” Also, leaning with a death-grip on the podium, as if you might otherwise faint dead away, conveys a lack of selfconfidence. Almost one-half of the lawyers argued while holding a pen. Since they weren’t allowed to bring their binkie to court, perhaps holding their pen was equally comforting. But when they gestured toward the bench, the pen became an aggressive fixture, seeming to jab at the Justices. Two of the lawyers played with a pair of glasses while at the podium, sometimes taking them on and off or pointing at the Court. Maybe, they lost their pens. If their hands were empty, some lawyers kept them stuffed in their pockets. One lawyer held his hands behind him for most of the argument, like poor Prince Phillip, trailing the Queen. What to do with your hands? Rest them lightly on the podium. Keep them empty. Perfect eye contact with the Justices is the best evidence of your openness to questions and the best way to know when a Justice is about to ask you a question or would do so, if you paused ever so briefly. The Nebraska Supreme Court is definitely a “hot” bench, interested in asking many questions of each side.16 There were several instances when a Justice visibly wanted to ask a question, but the lawyer didn’t look up. From the audience benches, it is hard to know how good the eye contact is. Even the video evidence is inconclusive. However, JANUARY/FEBRUARY 2019

ORAL ARGUMENT IN THE NEBRASKA SUPREME COURT it was frequently clear the attorney was looking down at notes, especially at the beginning of the argument when good eye contact is most important.17 Speed and vocal inflection are a major part of non-verbal communication. A few lawyers talked fast. Real fast. It may have been nervousness, but even if they talk that fast in all settings, this one is different. Slow down. Take a breath. Generally speaking, many appellate judges have old ears. Adjust for that. Only one lawyer had a seriously repetitive, sing-song speaking style. He knew his argument well, but sounded a little bored with it. Practice the argument in moot courts with lawyers who won’t hesitate to remind you when your speaking style distracts. Lawyers should remember the Justices can still see them, even when they’re not at the podium. One appellant’s lawyer sat down triumphantly after his remarks and, while the appellee’s lawyer spoke, leaned back in his chair with his legs crossed, his closed briefcase sitting on the table, apparently waiting for a bus. He forgot to appear to care about what was happening in the courtroom.

Personal Opinion The most common mistake lawyers made was to give the Supreme Court the benefit of their personal opinion about how

an issue should be resolved or how the case should be decided. Every lawyer did it some of the time and many lawyers did it constantly. They did it by starting sentences with “I think …” or “I don’t think …,” “I feel …,” “I believe …” or “I don’t believe …,” ”I suppose …,” “I guess …,” “I don’t see how …,” “I don’t know …”—I, I, I, I, I. Appellate judges are spectacularly uninterested in your personal opinion, except as anecdotes when they gather in the conference room. They are interested in your party’s position. They are interested in what the law is or, if the law is unclear, what decisional or interpretative tools the court should use to determine what the law is. They are interested in the effects of their decision on public policy and related legal questions. They are interested in logic, analogy, and precedent. Lawyers who say, “I think” or “feel” or “believe,” should say, “The appellant’s position is …” or “The law is …” or “The Court’s decision will …,” and so on. During the four days of oral argument, no Justice jumped down the throat of any of the lawyers who described his or her inner monologue about the law.18 At a minimum, the “I believe,” etc., formulation weakens the argument. Counsel actually had a basis for the legal position he or she cleverly disguised as their personal predilection. The argument would be stronger if it was simply stated as the applicable law or the reasoning the court should use to reach the right result.

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ORAL ARGUMENT IN THE NEBRASKA SUPREME COURT One of the Justices’ favorite questions was: “What’s your best argument for _________?” You should anticipate this question from any judge. A surprising number of the lawyers I watched fumbled this one, sometimes badly. This isn’t a question; it’s a gift. Don’t refuse it.

Here’s the Whole Deal The best way to open any oral argument is to tell the court why it is important to decide in favor of your client.19 Trial lawyers understand the value of reducing a case to a simple theme for the jury. It aids jury comprehension and helps the lawyer organize and simplify her presentation. On appeal, a clear theme may not aid judicial comprehension much—they’re prepared--but it focuses judges on their duty to seek justice, not just “call balls and strikes,” as Chief Justice Roberts has said misleadingly of his job.20 Few of the lawyers began their argument with a statement—a theme—of why this case was important or stated the rule the Court should apply to decide the case. Those who attempted that kind of opening were not entirely successful, but they tried. One lawyer quoted the Chief Justice who said in a CLE program that when lawyers prepare to argue they should talk about what is fair and just. Counsel then said what happened in this case was not fair and just. Good try, but it was too general; every lawyer in every case could say the same thing. One lawyer began by stating that the case was about upholding the State’s commitment to the U.S. Supreme Court. That was better, more specific, and made the case about honor and trustworthiness. Appellate counsel should be encouraged to find the best theme because the Nebraska Supreme Court, unlike many appellate courts, was patient with a lawyer’s efforts to frame the case as more than mere error correction. But, any court will lose interest if the theme goes on too long or relies on platitudes or emotional appeals. Three or four sentences are sufficient. After the clear, brief theme, lawyers should state the rule of law the court should apply to find in their client’s favor. Very few of the lawyers organized their argument around such a rule. This may feel like presumption—the lawyer making up a rule of law. It makes lawyers feel even more awkward than proclaiming a theme; after all, judges decide the law. Nothing could be more natural. Except in cases where a single precedent applies (and, if so, why is the case on appeal), your brief pulls together several cases and distinguishes others in order to support the proposition that you should win. Reduce all that work to a single sentence. That’s the rule of law the court should apply. Then begin your argument explaining the sources of the rule, the reason it is good policy, and how every element of the rule is supported by precedent or by analogy to other cases. THE NEBRASKA LAWYER

Concluding the Argument Another benefit of having a clear theme for the argument is that it is a ready-made conclusion. During the Supreme Court arguments I watched, almost no one made a brief, clear concluding statement of 3-4 sentences to summarize the outcome they sought, including one sentence specifying the relief sought. Those were opportunities missed. A few lawyers just ran out of time and made no effort to conclude the argument effectively. A few closed by saying only, “Thank you.” A few made the rhetorical error of labeling their conclusion by beginning it with, “In conclusion, ….” Numerous in-depth studies that I imagine to exist have found that when a judge-or any sentient being--hears “In conclusion, …,” the brain shuts down the listening function and switches over to prepare for the next speaker. Don’t give them that option. Just segue effortlessly into your mostly prepared conclusion. “Mostly” because you can leave yourself a brief instant to improvise if the argument took an unexpected turn.

The Death of Rebuttal Most appellants during those four days reserved 1-3 minutes for rebuttal. Every appellant should. But those rebuttals usually accomplished little. There are only four possible ways to analyze what happens during the appellee’s argument: 1. Major issues the appellee seemed to be winning. 2. Major issues the appellee seemed to be losing. 3. Minor issues the appellee seemed to be winning. 4. Minor issues the appellee seemed to be losing. The only one to address in rebuttal is the first—major issues the appellee seemed to be winning.21 Do so in a wellorganized, but succinct statement that also allows time for the Court to ask additional questions before your rebuttal time expires. If the appellee’s argument or the Court’s questions did not help the appellee on a major issue, you may rise to modestly state, “The Appellant has nothing further, Your Honors.” That feels good. But, in several of the arguments I heard that week, appellant’s counsel waived rebuttal when there was work left to do because the appellee or the Court’s questions did knock a major hole in the appellant’s case. If you waive rebuttal, do it for the right reason.

In Conclusion Because any critique can sound more negative than the critic intends, let me emphasize that observing four days of oral argument demonstrated the Nebraska Supreme Court is impressive during oral arguments, the most public part of it job, and the lawyers who appeared before the Court were wellJANUARY/FEBRUARY 2019

ORAL ARGUMENT IN THE NEBRASKA SUPREME COURT prepared advocates who represented their clients in the finest traditions of appellate practice. The faults we are all guilty of from time-to-time do not diminish my admiration for them.

Several lawyers argued more than one case during the four-day session, including Assistant Attorney General Nathan Liss who argued four times, once each day, and Mark Rappl, who argued three cases. In this article, I have not identified particular lawyers with either especially good or bad techniques, but I will say that David Domina, who argued two cases, is among the best oral advocates I’ve ever seen, and I’ve seen a lot. And, he wore classy, black cowboy boots. Go thou and do likewise.

In fact, a few days later, on September 6, 2017, I watched arguments before the Tennessee Supreme Court. The comments in this Article apply equally well to Tennessee Supreme Court Justices and the lawyers in those cases.

I have appeared before the U.S. Supreme Court 16 times. Okay, each time I was there as a law school dean moving the admission of alumni groups. However, I can say I’ve never lost a motion in the U.S. Supreme Court. I can also say I wrote the book on appellate advocacy. Richardson R. Lynn, APPELLATE LITIGATION 2nd Ed. (Austin & Winfield, 1993). At the time, there were 800,000 American lawyers and I assumed no one knew what to get them for birthdays and Christmas. I’d be rich! It turns out there are 400 law libraries in the U.S. and I was not rich.

Of course, it is always easier to critique than to perform perfectly under pressure. When I make mistakes in oral argument, you now have license to openly mock me. Nor do I know that the Justices of the Nebraska Supreme Court agree with any of my views on oral argument.

Finally, when I have the honor of arguing before the Court, I will bring my own flashlight.

Endnotes 1

You may notice that these arguments took place almost eighteen months ago. Near the beginning of their second semester. I always told first-year law students the dominant personality trait of lawyers is procrastination and that I meant to tell them sooner, but just didn’t get around to it.

2 https://supremecourt.nebraska.gov/courts/supreme-court/oral-

argument-archive Oral arguments in the Nebraska Court of Appeal are also archived. https://supremecourt.nebraska.gov/ courts/court-appeals/oral-argument-archive

3 http://netnebraska.org/basic-page/television/live-demand-state-

government

4 The

U.S. Supreme Court’s inexcusable refusal to follow Nebraska’s example is intolerable in a free society. We used to blame it on the fact that Justice Souter feared the camera would steal his soul. The Tennessee Supreme Court is belatedly following Nebraska’s lead, although it is not planning to archive them or include arguments before the Tennessee Court of Appeals or Court of Criminal Appeals. https://www.tncourts. gov/press/2018/10/05/tennessee-supreme-court-launches-oralargument-video-initiative

10 Those

of us who value and even enjoy oral argument try hard to dodge the other underlying question: Does oral argument matter at all? Appellate lawyers try to perfect style and skills, but the courts favor substance over style. Michael Vitello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 MISS. L. J. 869 (2006); see Stephanie A. Vaughan, Experiential Learning: Moving Forward in Teaching Oral Advocacy Skills by Looking Back at the Origins of Rhetoric, 59 S. TEX. L. REV. 121 (2017). Given the growing number and percentage of appeals

This is the subjective opinion of one who does not have as many cones and rods left in his retina as younger persons. It is definitely not necessarily the opinion of The Nebraska Lawyer, a licensed ophthalmologist, or anyone who enjoys free parking near the State Capitol.

ARBITRATION AND MEDIATION SERVICES The Honorable William M. "Bill" Connolly, retired after twenty-two years on the bench with the Nebraska Supreme Court, is now Of Counsel with the firm of Erickson | Sederstrom practicing in Arbitration and Mediation. WWW.ESLAW.COM (402)384-6896 BCONNOLLY@ESLAW.COM THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

ORAL ARGUMENT IN THE NEBRASKA SUPREME COURT nationwide decided without benefit of oral argument, not to mention the rise of AI (artificial intelligence), what will the future of oral argument be? See Jay Tidmarsh, The Future of Oral Argument, 48 Loy. U. Chi. L. J. 475 (2016).

14 My

modest proposal: The podium is already wired for lights. It would be a simple matter to fix it to lightly shock lawyers who think oral argument is the same as “shooting the breeze.”

15 http://www.nonverbalgroup.com/2011/08/how-much-of-com-

My hunch is that Nebraska lawyers and judges still subscribe to the conservative position that, in many cases, oral argument is valuable because it helps the judges articulate and improve their reasons for decision, even if it cannot be proven to change the outcome in more than a few cases, ever. See Thomas H. Fegan, On the Value of Oral Argument of an Appeal, 7 APP. L. REV. 69 (Spring-Summer 1998).

munication-is-really-nonverbal One scholar finds seven kinds of non-verbal behavior, several of which apply to oral argument: 1. Kinesics, what a speaker does with his/her body, including facial signals, eye contact, facial expressivity and head movements; 2. Physical appearance, including attractiveness (there go my bowties), body positions, and gestures; 3. Vocalics, what a speaker sounds like, including speaking speed, nonhesitant speech, pitch variation, and loudness; 4. Chronemics, how a speaker manages his/her time. Michael J. Higdon, Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience, 57 U. KANSAS L. REV. 631 (2009).

The outlier is the late Eighth Circuit Judge Myron H. Bright who wrote that his opinion was changed by oral argument 31% of the time and, for two colleagues, their opinion was changed 13-17% of the time. Myron H. Bright, The Power of the Spoken Word: In Defense of Oral Argument, 45 ST. LOUIS L. J. 35, 40 fn. 32-33 (1986); see also Michael A. Wolff, From the Mouth of a Fish: An Appellate Judge Reflects on Oral Argument, 45 ST. LOUIS L. J, 1097, 1099 (2001)(who writes that, after becoming an appellate judge, he understood Judge Bright’s “flip-foppery”); Bridget M. McCormack and Len Niehoff, May It Displease the Court, 44 LITIGATION 33 (Winter, 2018).

16 I

can claim one historic link to the ancient concept of a “cold” bench. In the late 1970s, I appeared before the Tennessee Court of Appeals where, after I referred to a case on a certain page of my brief, the late Judge Thomas Shriver, Sr., said, “Oh, Mr. Lynn. I don’t read the briefs before oral argument. They might prejudice me.”

17 An

Illinois appellate judge wrote, “Try to achieve eye contact with the court and engage in a conversational presentation, as if neither you nor they had anything in writing in front of you. The more you look away from the judges during your argument, the more likely you are to lose the ‘moment.’” Robert J. Steigman, An Appellate Judge’s Suggested Dos and Don’ts for Appellate Lawyers, 3 APP. L. REV. 1, 4 (Summer 1991)

11 A

former Nebraska Supreme Court Chief Justice, William C. Hastings, agreed with part of my opinion. He stated, “When I first went on the Supreme Court in 1978, we allowed 30 minutes to a side for argument. We have now reduced that to 10 minutes a side, with some exceptions, and we have found that the quality of argument has improved tremendously.” Stanley Mosk, In Defense of Oral Argument, 1 J. APP. PRAC. & PROCESS 25, 26 (1999). Fifteen minutes per side is typical of the U.S. Courts of Appeal. Marshall L. Davidson, III, Oral Argument: Transformation, Troubles, and Trends, 5 Belmont L. Rev. 203, 205 (2018).

18 I

would have. But, then, I would wire the podium to shock any lawyer who says “I” twice. Lightly. (I’m noticing a trend in these endnotes.)

19 It

is beyond the scope of this Article to include every good idea about appellate argument, but it would be authorial malpractice to not emphasize the importance of rehearsing the oral argument—by yourself, several times, at a minimum, and whenever possible before a moot court panel of lawyers or law professors. See Thomas H. Fegan, Rehearsal is The Secret Weapon of Oral Argument, 4 APP. L. REV. 48 (Winter 1992). Even some of the better arguments I watched could have benefited from more rehearsal.

12 The

Justices’ questions genuinely seemed to concern issues with which they were grappling, unlike the U.S. Supreme Court where the questions are primarily influence-seeking gambits among the Justices, rather than information-seeking inquiries. James C. Phillips and Edward L. Carter, Source of Information or “Dog and Pony Show”?: Judicial Information Seeking During U.S. Supreme Court Oral Argument, 1963-1065 & 2004-2009, 50 SANTA CLARA L. REV. 79, 143-144 (2010); Timothy R. Johnson, Ryan C. Black, and Justin Wedeking, Pardon the Interruption: An Empirical Analysis of Supreme Court Justice’s Behavior During Oral Arguments, 55 LOYOLA L. REV. 331 (2009). .

20 http://www.uscourts.gov/educational-resources/educational-

activities/chief-justice-roberts-statement-nomination-process; see https://www.thenation.com/article/time-retire-chief-justicerobertss-umpire-analogy/

21 As

Justice Holmes said, “One has to try to strike the jugular and let the rest go.” Oliver Wendell Holmes, Jr., SPEECHES (1913), quoted in, Karen L. Kendall, Oral Argument from a Practitioner’s Point of View, 7 APP. L. REV. 98, 101 (Fall 1996).

13 Which

reminds me of the man who asked his wife, rhetorically, if she would leave him for Willie Nelson. She said, “Yeah.” He then asked if she would leave him just for Willie Nelson’s voice and she said, “Hell, yeah!”

THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

feature article

Uncovering Unconscious Motives: Recognizing “Implicit Bias” to Ensure a Fair Trial

by Jeffrey L. Goodman, Max Maharry, and Richard Wiener, Ph.D.

In a highly-publicized legal battle in 2012, Ellen Pao and her lawyer worked diligently to prove that Kleiner Perkins, a Silicon Valley venture capital firm, discriminated against Pao based on her gender when they fired her. Pao, a Chinese-American woman from New Jersey with a BA in electrical engineering from Princeton University, a JD from Harvard Law School, and an MBA from Harvard

Business School, argued that men were promoted ahead of women, that ideas offered by women were quickly dismissed, and that Kleiner Perkins provided inadequate support to women who complained about sexual harassment. Despite the merits of Pao’s case, the jury concluded that Pao’s job performance was the sole cause of her termination by ruling in favor of Kleiner Perkins on all counts. If asked, the jury would likely respond that they came to their decision based solely on the facts of the case. And perhaps they did. However, discrimination cases like Pao v. Kleiner Perkins can often raise questions of juror bias(es). Trial consultant psychologists have identified two types of predetermined prejudices (e.g., explicit bias and implicit bias) that can offset even the best of arguments that trial attorneys can make to support their clients’ cases.

Jeffrey L. Goodman Jeffrey Goodman is a trial attorney at Goodman Law, P.C. in West Des Moines, Iowa. He is also the President of Harbinger, Inc. Jury Consultants and a member of the American Society of Trial Consultants and the American Board of Trial Advocates.

Explicit bias entails attitudes or beliefs that are available to the conscious mind – considerations that people are aware of and which they actively consider when reaching a decision.

➡ Maxwell Maharry

Richard Wiener, Ph.D. Richard Wiener, Ph.D., is a Professor of Psychology at the University of Nebraska. Dr. Wiener has authored articles and books on jury selection and jury consulting and he is a consultant with Harbinger, Inc.

Maxwell Maharry is a junior at Augustana College in Rock Island, IL, majoring in Political Science and English.

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UNCOVERING UNCONSCIOUS MOTIVES If a juror in the Pao case relied upon an explicit bias to decide which way to rule, the juror’s decision-making process would sound something like: “women do not belong in tech jobs and tend to perform worse than men in the tech industry. Pao was therefore not discriminated against nor wrongfully terminated.” Explicit biases are conscious, known prejudices that one may hold towards any given thing, person, or group. People consciously choose to make decisions based upon these biases. An attorney’s arguments can persuade a juror to abandon these conscious prejudices. That is, proper education and information can eliminate, or at least lessen, one’s explicit bias. Implicit bias, on the other hand, is not so easy to pin down. Implicit biases are attitudes or beliefs that are unavailable to the conscious mind. People do not know that they have these biases and yet these prejudices can have a major impact on their judgments and decisions. Implicit biases result from leftovers of past experience which guided prior behavior but are no longer accessible to people in their conscious awareness. They are habits that activate without the decision maker’s deliberate choice to activate them. In fact, it is difficult for people to either know or control their implicit biases. Thus, if a juror fell victim to his or her own implicit bias in deciding which way to rule in the Pao case, he or she would have no idea that they were making a biased decision. Rather, they would listen to the trial, review the facts, deliberate with the other jurors, and tell

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themselves that the conclusion they reached was based entirely on the objective facts of the case. However, this juror’s decision could have been tainted by an implicit bias, resulting from years of cultural and societal habitual responding. Such a bias would say to the juror that women are less suited for the technical jobs and are more suited to work with children and adults as schoolteachers or nurses. Unlike explicit bias, implicit bias is not impacted by persuasion — for it lurks under the surface and remains entirely unknown to its possessor. Some are dismissive of the concept of implicit bias. Is it real? Does it truly have an impact on the way people think and make decisions? Psychologists have published hundreds of scientific papers in peer reviewed journals that measure implicit bias using computer programs that record people’s response times as they react to “hot” topics. Luckily, anyone can see for themselves how these processes work. “Project Implicit,” a program generated by Harvard University, provides a series of online tests called Implicit Association tests, or, IAT tests, to determine which implicit biases one may unknowingly hold. For more information, and to take an implicit bias test yourself, visit www.implicit.harvard.edu. Studies analyzing the effects of implicit bias have become ample in size and scope, permeating a wide range of human interactions. For example, one study on the National Hockey League (NHL) found that “differences in ethnicity may result

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UNCOVERING UNCONSCIOUS MOTIVES in implicit biases on the ice,” creating strategy implications for coaches and players hoping to win professional hockey games (Waltemyer, 2006). Another study concluded that in the medical field, physicians’ implicit biases may lead to racial/ ethnic disparities between black and white patients in use of medical procedures (Green, et al., 2007). Overall, the examples of conclusions that have been drawn from implicit bias findings are abundant. Implicit bias tends to only affect small, subtle judgements, but those are sometimes the most important judgments that people make in the legal arena. These subtle biases can have a major impact on jurors’ decision-making processes during trials. Thus, the administration of justice in the American judicial system can often be affected by unconscious biases that are entirely unknown to the jurors themselves. Because of this, studies of implicit bias have become prominent in the legal world as well. There are a number of law review articles that describe how implicit bias infiltrates the processes of criminal and civil trials, and what strategies are available to counter implicit biases in judges and juries (Kang, et al., 2012). Some authors go further to make the argument that the “theoretical underpinnings of the entire [judicial] system … are culturally and cognitively inseparable from implicit bias” (Levinson and Smith, 2017), that “implicit racial bias contributes to increases in the length of sentences based on offenders’ darker skin tone” (Bennett, 2017), and that “implicit bias drives decision-making” in immigration law (Marouf, 2011). As attorneys and judges have become more and more aware of the invidious impact of implicit bias, many have come to understand the intricacies and implications of these unavoidable cognitive processes and have increasingly concluded that this understanding is important for success in trial. Trial consultants can play a key role in assessing implicit biases to help layers navigate the pitfalls of bias. Being well-versed in implicit bias, trial consultants can assist in identifying the kinds of implicit biases that jurors harbor. No trial consultant can find jurors without implicit biases because such jurors do not exist. A good trial consultant will combine this expertise with the insight of a practicing trial lawyer to indemnify implicit biases with the goal of not activating or exploiting them. This unique combination will allow for arguments to be designed that ensure biases are neutralized rather than activated. The literature on implicit bias is only growing more thorough and reliable. As psychologists continue to uncover the significance of this concept, attorneys and legal professionals will be forced to incorporate techniques to account for and neutralize implicit bias into their practices. The question then becomes: what must you do to account for implicit bias and THE NEBRASKA LAWYER

ensure a just outcome in the court room? One answer is to rely on the expertise of trial consultants who bring both the legal and psychological knowledge necessary to navigate the treacherous waters of implicit biases that may very well sabotage even the best legal arguments you can make as you try to navigate your case to a successful outcome.

Works Cited Bennett, Mark W. “The Implicit Racial Bias in Sentencing: The Next Frontier.” The Yale Law Journal, vol. 126, 31 Jan. 2017. Green, Alexander R., et al. “Implicit Bias among Physicians and Its Prediction of Thrombolysis Decisions for Black and White Patients.” Journal of General Internal Medicine, vol. 22, no. 9, Sept. 2007, pp. 1231–1238. Kang, Jerry, et al. “Implicit Bias in the Courtroom.” UCLA Law Review, vol. 59, no. 5, June 2012, pp. 1124–1186. Levinson, Justin D., and Robert J. Smith. “Systemic Implicit Bias.” The Yale Law Journal, vol. 126, 31 Jan. 2017. Lundberg, Gustav J.W., et al. “Racial Bias in Implicit Danger Associations Generalizes to Older Male Targets.” PLOS One, vol. 13, no. 6, 6 June 2018. Marouf, Fatma E. “Implicit Bias and Immigration Courts.” New England Law Review, vol. 45, 2011, pp. 417–448. Waltemyer, David Scott. “The Effects of Team Diversity on a Team Process and Team Performance in the National Hockey League.” Texas A&M University, 2006.

Slowiaczek Albers can help your clients with complex family law issues. As part of your team, we can provide legal support and: • Expert Advice about Property Settlements • Litigation Support • Second Opinions • Property Settlement Mediations Contact John S. Slowiaczek at jslowiaczek@saalawyers.com or Virginia A. Albers at valbers@saalawyers.com.

100 Scoular Building | 2027 Dodge Street | Omaha, NE 68102 p 402.930.1000 | www.saalawyers.com

JANUARY/FEBRUARY 2019

Pleasing the Court: Advice for Trial and Appellate Lawyers

We asked Nebraska judges what top advice they would have for trial and appellate lawyers. Some of them wanted lawyers to know they can never over prepare, and others reminded lawyers to talk to their clients and witnesses. Here is some of the other advice judges had for lawyers.

• During trial, pay attention to your use of double negatives.

• Talk to and prep your witnesses well before trial.

• In a controversial trial, please do research on the issues.

- You are better able to identify strengths and weaknesses in your case and are in a better position to effectively plea bargain or settle cases.

• Be straight forward. Hon. Robert C. Wester, County Court, 2nd Judicial District _________________________________________________ • Don’t be so busy taking notes that you don’t hear what is being said. • If available for your type of case, review the jury instructions, even if the matter is tried to the court. It will help you understand what you need to prove or what your opponent needs to prove. • Prepare a checklist in advance and use it. Don’t rely on your memory to determine if damages or venue, for example, have been proved.

- Witnesses are more prepared and relaxed, which will result in fewer trial delays while witnesses ask to look at notes before being able to answer. • Identify your trial defense and position well before trial. - Play to this position with your questioning of witnesses. - Do not simply replay the other side’s direct exam during your cross-exam of each witness. - Identify what you are trying to accomplish at trial – what is the goal? - Keep your eye on the ball throughout trial.

Hon. Frank J. Skorupa, County Court, 5th Judicial District _________________________________________________

Hon. Christopher Kelly, Separate Juvenile Court, Douglas County _________________________________________________

• Come to trial with pre-marked Supreme Court approved exhibit stickers which are numbered, not lettered.

• Be prepared.

• If you refer to a Supreme Court decision which is important enough to quote, bring a copy for the Court and opposing counsel.

• Listen to the judge’s questions.

• Submit jury instructions and briefs on time.

• Listen to the answers of witnesses.

Hon. James T. Gleason, District Court, 4th Judicial District

Hon. Marcena M. Hendrix, County Court, 4th Judicial District

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JANUARY/FEBRUARY 2019

• If you want the judge to do something, ANYTHING, cite the statute and/or case law. Do not assume the judge is familiar with it. • Consider your arguments in advance and then cut them in half. • Engage in settlement negotiations early. Settling something the morning of trial takes a lot of time and money.

ANONYMOUS ADVICE • Prepare all cases as if they will be tried – don’t wing it. • Communicate with your client. Read the pleadings and orders, especially pretrial and • progression orders, before going into court. Comply with the orders before going into court. • Be on time or, if you can’t, let the court’s bailiff know.

Hon. Julie D. Smith, District Court, 1st Judicial District _________________________________________________

• Don’t roll your eyes or otherwise make faces. It makes it hard to take you seriously. It is okay to disagree but be professional.

Make taking care of yourself mentally and physically a • priority to help alleviate the stress of our profession.

• Read and know what the local rules say. Then comply with them.

• Have an attorney mentor, someone you can ask questions and discuss strategies and ideas for your cases.

• Start preparing for jury trials well before 10 days before trial so if the case can be settled it can be done before the jurors are summoned. The jurors are often summoned and have to make irreversible arrangements to come to jury duty, and inevitably the case(s) settle the day before trial because negotiations are started the week before the trial or during late trial preparation (the party notes weakness in case that earlier trial prep would have revealed).

• Take the time to learn and understand the Uniform Court Rules of Practice and Procedure along with the local court rules. Hon. John P. Rademacher, County Court, 9th Judicial District _________________________________________________

• File early – E-filing is not instantaneous. Filing the night before a hearing will not reach the court in time.

• Be mindful of deadlines and file motions timely. • E-filling is great for convenience, but the fact that you can file 24 hours a day does not mean the court can/will review any sooner than if you filed in person.

_________________________________________________

Judicially noticed documents and/or facts may not be • sufficient evidence for appellate review. Hon. PaTricia A. Freeman, County Court, 2nd Judicial District

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JANUARY/FEBRUARY 2019

Rural Practice Initiative Associate and Summer Clerkship Placement Program

Nebraska State Bar Association

Co-Sponsored by

Women and the Law Section

In an effort to provide attorneys and law students with an opportunity to experience the practice of law in Greater Nebraska, the Nebraska State Bar Association is conducting its third annual Rural Practice Initiative Program. We hope to connect participating attorneys with firms looking to hire associates in Greater Nebraska. Students participating in the program can support your firm while gaining practical experience (e.g., draft pleadings and interrogatories, shadow during court days and client meetings; research; and prepare briefs and memos). In-person interviews for our clerkship program or full-time employment will take place at Quality Inn & Suites Sandhills Convention Center in North Platte on Friday, February 15, 2019, from 12:00 pm to 5:00 pm, with a reception to follow. The goal is to provide 15-20 minutes for each interview. We estimate that each attorney will have the opportunity to interview at least six students in the afternoon. Attorneys and students will have an additional opportunity to meet and converse at a reception following the formal interviewing session. If you are interested in hiring an associate or a law clerk for the summer of 2019, please fill out the form below and return to Sam Clinch, 635 S 14th St. #200, Lincoln, NE 68508. Please respond by February 1, 2019. I am hiring a full time associate and am interested in being connected with potential applicants for an associate position within my firm. c

I would like to hire a clerk for: c 5-week clerkship

10-week clerkship

I am a practicing attorney considering relocating to rural Nebraska and want to interview with potential employers at Quality Inn and Suites Sandhills Convention Center in North Platte on February 15th.

I would like to participate in the in-person interviews at Quality Inn and Suites Sandhills Convention Center in North Platte on February 15th. c

Please list your or the firmâ&#x20AC;&#x2122;s areas of practice: ____________________________________________________________________________________________ ____________________________________________________________________________________________ Name:_____________________________________________________________________________________ Firm:______________________________________________________________________________________ Address:___________________________________________________________________________________ City:_______________________________________ State:_____________ Zip:_________________________ Phone:_________________________ Email:______________________________________________________ If you have questions about the Rural Practice Initiative Associate and Summer Clerkship Placement Program, please contact Sam Clinch at sclinch@nebar.com or call at (402) 475-7091.

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JANUARY/FEBRUARY 2019

feature article

Chasing Opportunities:

The Ins and Outs of the New Opportunity Zone Program by Kendra J. Ringenberg and Jennifer L. Rattner

After months of anticipation, real estate business owners, investors, and developers have finally received answers to some of their many questions about the qualified opportunity zone (“QOZ”) program enacted as part of the 2017 Tax Cuts and Jobs Act (the “TCJA”).1 On October 29, 2018, the Treasury Department (“Treasury”) and the Internal Revenue Service (“IRS”) issued some much-anticipated guidance in the form of proposed regulations (the “Proposed Regulations”).2 The IRS also released separate guidance, in the form of a revenue ruling (the “Revenue Ruling”), addressing how the “original use” and “substantial improvement” requirements apply to real estate acquired in qualified opportunity zones.3 While the Proposed Regulations and Revenue Ruling (collectively, the “Guidance”) provide needed guidance regarding this much-hyped program, they leave several questions yet to be answered.

This article sets forth an overview of the QOZ program and highlights a few of the significant issues pertaining to real estate developers hoping to optimize the benefits of the QOZ program.

Kendra J. Ringenberg

Jennifer L. Rattner

Kendra J. Ringenberg is a partner with Dvorak Law Group, where she focuses on the areas of commercial real estate, general corporate and business transactions, including mergers and acquisitions. She represents developers, owners, landlords and tenants with respect to mixeduse, office and retail development across the United States. She received her J.D. (highest distinction) from the University of Nebraska College of Law and her B.A. (highest distinction) from the Nebraska Wesleyan University. She is licensed to practice law in Nebraska, Kansas, Missouri and North Dakota.

Jennifer L. Rattner is an attorney with Dvorak Law Group, where she focuses on the areas of commercial real estate, complex contracts, mergers and acquisitions, and franchise law. She assists developers, owners, landlords, and tenants with respect to mergers and acquisitions, financing, joint ventures, strategic alliances, entity formation and structuring, and corporate governance. She received her J.D. (with honors) from Drake University Law School and her B.S. (cum laude) from Drake University as well. She is a member of the Nebraska State Bar Association and she is a board member of the Nebraska Wildlife Rehab Inc.

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Background and Overview The TCJA established the QOZ program to encourage social advancement and private investment in low-income, disadvantaged communities located within designated QOZs4 to aid job creation and new business formation. The program incentivizes taxpayers to invest capital gains in QOZs by providing for the deferral and partial avoidance of taxes on certain capital gains timely invested in a qualified opportunity zone fund (“QOF”) and, most significantly, allowing for the complete avoidance of tax on profits from the sale of certain interest in the QOF held for a minimum of 10 years, as discussed in more detail below.

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THE INS AND OUTS OF THE NEW OPPORTUNITY ZONE PROGRAM

Investment Incentives Under the current law, any taxpayer who recognizes gains for federal income tax purposes (e.g., individuals, C corporations (including regulated investment companies (“RICs”) and real estate investment trusts (“REITs”), partnerships, and certain other pass-through entities)5 and who sells or exchanges an asset to or with an unrelated person in a transaction that generates capital gains,6 may elect7 to defer the recognition of those gains by timely investing all or a portion of those gains in a QOF in exchange for an equity interest in the QOF.8 Generally speaking, a taxpayer has 180 days from the date of the sale or exchange giving rise to such gain within which to invest the gains in a QOF.9 The reinvested gains will then be deferred until the earlier of (1) the date the taxpayer’s interest in the QOF is sold or exchanged, or (2) December 31, 2026.10 The QOZ program incentivizes long-term investments in QOZs by providing a 10% step-up in basis for capital gains held in a QOF for 5 years and a 15% step-up in basis for capital gains held in a QOF for 7 years.11 For example, if a taxpayer has $100 of gain invested in a QOF with an initial basis of $0, after 5 years the taxpayer’s basis would be $10, and after 7 years the taxpayer’s basis would be $15, thereby reducing the amount of gain owed by the taxpayer to $80 or $85, respectively, at the point at which the taxpayer’s interest in the QOF is sold or exchanged or on December 31, 2026, whichever is earlier. Further, a taxpayer will pay no capital gains on any profit received from the sale or exchange of the taxpayer’s portion of the interest in the QOF funded through deferred capital gains so long as the investment in the QOF is held for at least 10 years.12 It is important to note that while investments in QOFs may consist of both deferred capital gains and other cash, the Proposed Regulations make it clear that only those investments made up of deferred capital gains qualify for the tax benefits of the QOZ program.

Qualified Opportunity Zone Funds (QOFs) A QOF13 is an investment vehicle that (1) is classified as either a corporation or partnership for tax purposes, (2) is organized for the purpose of investing in qualified opportunity zone property (“QOZ Property”), (3) holds at least 90% of its assets in QOZ Property, and (d) has self-certified as a QOF.14 QOZ Property consists of (a) qualified opportunity zone stock (“QOZ Stock”), (b) qualified opportunity zone partnership interest (“QOZ Partnership Interest”), and (c) qualified opportunity zone business property (“QOZ Business Property”),15 each of which is discussed in more detail below. Self-Certification In conjunction with the Guidance, the IRS released a draft Form 8996. This Form is to be used by taxpayers to self-certify as a QOF, as well as for annual reporting of compliance with the 90% Asset Test (discussed in more detail below). The THE NEBRASKA LAWYER

Proposed Regulations clarify that a QOF is permitted to both identify the taxable year in which it will become a QOF and the first month in that year in which it will be treated as a QOF. Any investment in an entity prior to the first month in the year in which the entity becomes a QOF will not qualify for the tax incentives of the QOZ program. Form 8996 also requires the entity to certify that its organizational documents include (1) a statement that the entity’s purpose is to invest in QOZ Property and (2) a description of the qualified opportunity zone business. 90% Asset Test At least 90% of the QOF assets must be comprised of QOZ Property (the “90% Asset Test”).16 The Proposed Regulations require that the QOF use the asset values reported on the QOF’s applicable financial statement for the taxable year for purposes of calculating whether 90% of the QOF assets consist of QOZ Property.17 If, however, the QOF does not have an applicable financial statement, the QOF must use the QOF’s cost basis.18 Although it is not expressly addressed in the Guidance, it appears that the land value is to be taken into account in the 90% Asset Test, even though it is excluded in the substantial improvement test (as described below). The QOF must satisfy the 90% Asset Test on the last day of the first 6-month period of the taxable year of the QOF and on the last day of the taxable year of the QOF.19 The Proposed Regulations clarify that the phrase “first 6-month period of the taxable year of the fund” means the first 6-month period comprised entirely of months that are within the taxable year and during which the entity is a QOF.20 For example, if a calendar-year entity that was created in January chooses May as its first month as a QOF, it will need to meet the 90% Asset Test by the end of October and the end of December. If, on the other hand, such entity chooses July or a later month as its first month as a QOF, it will need to meet the 90% Asset Test by the end of December.21 Further, if an entity fails to specify the first month in which it will be treated as a QOF on Form 8996, the default will be the first month of such entity’s initial taxable year.22 Regardless of what month an entity chooses as its first month, the last day of the taxable year is a testing date. Therefore, it is important that care is taken when choosing the first month in which an entity will be treated as a QOF to avoid being subject to the 90% Asset Test prematurely, keeping in mind that investments made in an entity before the first month in which the entity is treated as a QOF are not eligible for deferral.23 Qualified Opportunity Zone Property As discussed above, a QOF must hold at least 90% of its assets in QOZ Property, which includes: 1. QOZ Stock QOZ Stock is any equity interest in a domestic entity classified as a corporation for tax purposes, so long as (a) the equity interest is acquired after December 31, 2017, from the corporaJANUARY/FEBRUARY 2019

THE INS AND OUTS OF THE NEW OPPORTUNITY ZONE PROGRAM tion solely in exchange for cash; (b) as of the time the equity interest was issued, the corporation qualified as a qualified opportunity zone business (“QOZ Business”) or, in the case of a new corporation, the corporation was organized for the purposes of being a QOZ Business; and (c) during substantially all of the QOF’s holding period24 of such equity interest, the corporation qualified as a QOZ Business.25 2. QOZ Partnership Interest QOZ Partnership Interest is any equity interest in an entity classified as a partnership for tax purposes, so long as (a) the equity interest is acquired after December 31, 2017, from the partnership solely in exchange for cash; (b) as of the time the equity interest was issued, the partnership qualified as a QOZ Business or, in the case of a new partnership, the partnership was organized for the purpose of being a QOZ Business; and (c) during substantially all of the QOF’s holding period26 of such equity interest, the partnership qualified as a QOZ Business.27 In order for an equity interest in a corporation or partnership to be considered QOZ Stock or QOZ Partnership Interest, the corporation or partnership must be a QOZ Business. A QOZ Business is a trade or business in which (i) substantially all of the tangible property owned or leased by the entity is QOZ Business Property (as discussed in more detail in subparagraph 3 (QOZ Business Property) below); (ii) at least 50% of the total gross income of such entity is derived from the active conduct of such trade or business28 in the QOZ;29 (iii) a substantial portion of the intangible property of such entity is used in the active conduct of such trade or business in the QOZ;30 (iv) less than 5% of the average of the aggregate unadjusted basis of the property of such entity is attributable to nonqualified financial property, excluding reasonable amounts of working capital (discussed in more detail below);31 and (v) it is not a private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises (so-called “sin businesses”).32 The Proposed Regulations clarify that so long as at least 70% of the tangible property owned or leased by the entity is QOZ Business Property (the “70% Test”), the entity will satisfy the “substantially all” requirement referenced in subparagraph (i) above.33 Satisfaction of the 70% Test, in general, is determined by utilizing the same rules used to determine compliance with the 90% Asset Test described above. Since a direct investment by a QOF in QOZ Business Property requires the QOF meet the 90% Asset Test, but an indirect investment in QOZ Stock or QOZ Partnership Interest requires the QOZ Business meet only meet the 70% Test, the Proposed Regulations incentivize QOFs to structure investment through lower-tier QOZ Businesses in order to reduce the burden of meeting the 90% Asset Test.

Further, the Proposed Regulations provide a safe harbor relating to working capital when investing through lower-tier QOZ Businesses. As discussed above, when a QOF directly owns QOZ Business Property, it must meet the 90% Asset Test and, therefore, the QOF should not directly hold any more than 10% cash, goodwill, or other intangible property. If, on the other hand, the QOF owns an indirect interest in a QOZ Business whose business is to acquire, construct, and/or rehabilitate real estate (or other tangible property) in a QOZ, then the working capital held by the QOZ Business will not count against its satisfaction of the 70% Test so long as (A) the QOZ Business has a written plan that identifies the working capital asset (which may be in the form of cash, cash equivalents, or debt instruments with a term of 18 months or less) as property held for the acquisition, construction, or substantial improvement of the real estate (or other tangible property) in the QOZ;34 (B) the QOZ Business has a written schedule consistent with the ordinary start-up of a trade or business for the expenditure of the working capital assets and, under that schedule, the working capital assets are spent within 31 months of the receipt by the QOZ Business;35 and (C) the working capital assets must actually be used in a manner that is substantially consistent with such plan and schedule (the “Working Capital Safe Harbor”).36 The Working Capital Safe Harbor is not available to a QOF that directly owns QOZ Business Property. 3. QOZ Business Property QOZ Business Property is tangible property used in a trade or business of a QOF so long as (a) such property was acquired by the QOF by purchase after December 31, 2017;37 (b) the original use of such property in a QOZ commences with the QOF or the QOF substantially improves the property within 30 months from the date the property was acquired; and (c) during substantially all of the QOF’s holding period of such property, substantially all of the use of such property was in a QOZ.38 The Revenue Ruling indicates that, given the permanence of land, the “original use” of the property can never commence with the acquisition by the QOF. Consequently, neither an existing building nor the underlying land on which it is built can be put to “original use” by a QOF. Therefore, in order for real estate to be classified as QOZ Business Property, the substantial improvement test must be satisfied. To satisfy the substantial improvement test, a QOF must purchase a building on land wholly located within a QOZ and, at a minimum, double the QOF’s basis in the building within the 30-month period immediately following the acquisition of the property.39 The Guidance makes it clear that the QOF is not required to separately substantially improve the land.40

Real Estate Development Issues While the initial intent of the QOZ program was to be a

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JANUARY/FEBRUARY 2019

THE INS AND OUTS OF THE NEW OPPORTUNITY ZONE PROGRAM catalyst to investment across a wide variety of business sectors and industries in economically distressed areas across the country, due to the nature of the program, it appears to be poised to be most beneficial and applicable for real estate investments. It has already become a platform for the launching of funds for the purpose of redeveloping property in QOZs and for real estate developers to figure out mechanisms to take advantage of the QOZ program themselves or through the enticement of investors with significant capital gains (often in combination with other federal, state, and local tax programs). While it would be impossible to delve into every issue that has been coming up in connection with real estate development and the QOF program, below is a brief discussion of some of the more pressing issues.

Structure The QOZ program is flexible in how the qualifying business can be structured. Investors can arrange for (1) a single-tier structure in which the QOF invests directly in the QOZ Business Property, or (2) a two-tier structure in which the QOF invests cash in exchange for an equity interest in a partnership or corporation that is a QOZ Business and meets the other requirements of QOZ Stock or QOZ Partnership Interest discussed above. An indirect investment by a QOF in QOZ Business Property (a) requires only that the QOZ Business meet the 70% Test, and (b) has the benefit of the Working Capital Safe Harbor. Accordingly, it is often better to structure QOZ real estate projects as a two-tiered structure. By way of example, if an investor invests $10,000,000 in the QOF entity that owns the real estate directly, then at least $9,000,000 of the QOF’s property must be comprised of QOZ Property by the earlier of 6 months after the first month in which the entity becomes a QOF or December 31 (the “Initial Testing Date”). If the same investor invests the $10,000,000 in a QOF entity that then invests the $10,000,000 in a subsidiary (taxed as a partnership or corporation) that holds the real estate, then only $7,000,000 of the QOF’s property would need to be comprised of QOZ Property by the Initial Testing Date and the QOF would qualify for the Working Capital Safe Harbor. The indirect investment model also helps facilitate a structure with a general partner and limited partners or separate classes of members, which is often desirable in real estate development with third-party investors or developers. One downside to being an indirect investment is that the so-called “sin businesses” are prohibited, which do provide additional restrictions on the uses within the real estate development. Commenters have recommended that the IRS and Treasury adopt a rule that permits cash to be considered QOZ Property if being held for the intent of investing in a QOZ. This would certainly be helpful for real estate development that often takes significantly longer than 6 months and would reduce, but not eliminate, the incentive to structure as an indirect investment. THE NEBRASKA LAWYER

Existing Projects One of the bigger challenges real estate developers are facing is whether they can take advantage of the QOZ program for property in a QOZ that is already owned by an entity controlled by the real estate developer. As discussed in more detail below, there are several challenges in doing so. 1. Pre-Existing Entities While the TCJA is silent on whether a pre-existing entity can qualify as a QOZ, the Proposed Regulations clarify that a pre-existing entity may qualify as a QOF, provided it satisfies the requirements of the TCJA and the Proposed Regulations, but only funds invested in the QOF after the month in which the self-certification is in effect will be eligible for the incentives of the QOZ program.41 Further, to satisfy the 90% Asset Test, the QOF must have acquired the asset after December 31, 2017.42 Therefore, as written, investment in an entity that owns real estate in a QOZ prior to January 1, 2018, cannot qualify for or take advantage of the benefits of the QOZ program. The Treasury and IRS have requested comments on whether there is a statutory basis for additional flexibilities that might facilitate qualification of a greater number of pre-existing entities. 2. Deemed Contribution Since an entity owning real estate prior to December 31, 2017, cannot qualify as a QOF, the next question is whether such entity (or the partners/members of the entity) may contribute such interest to a newly formed entity. Unfortunately, to qualify as QOZ Partnership Interest (or QOZ Stock), the equity interest must be in exchange for cash. Further, the IRS and Treasury have specifically addressed deemed contributions pursuant to 26 U.S.C. § 267 and determined that deemed contributions do not constitute a qualified investment for purposes of the QOZ program.43 As such, a contribution of the real estate or the contribution of ownership in an entity will not be a qualified investment. 3. Related Party Because an entity cannot own the real estate prior to December 31, 2017, and cannot contribute it to a newly formed entity, developers may seek a way to “sell” the real estate or the ownership in an entity to a third party for cash and invest in the new entity that owns the real estate. While this structure could be considered a deemed contribution, if it is not, this structure may still be problematic as the sale cannot be to a “related party,” which is defined more stringently than the IRS has in other situations by changing the threshold from 50% to 20%.44 Thus, in order for current owners of real estate to have a QOF investment in that real estate, they could acquire only a QOZ Partnership Interest of 20% in the aggregate.

JANUARY/FEBRUARY 2019

THE INS AND OUTS OF THE NEW OPPORTUNITY ZONE PROGRAM

Undeveloped Land Neither the Proposed Regulations nor the Revenue Ruling specifically address how to treat unimproved land for purposes of the “original use” or “substantial improvement” requirement. As discussed above, the Revenue Ruling provides that for land, the “original use” can never commence with the acquisition by the QOF. As such, in order for unimproved land to qualify as a QOZ Business Property, it is required to be used actively in a trade or business directly or indirectly owned by a QOF. Accordingly, the logical conclusion is that the land must be developed with new improvements (that double the QOF’s basis in the land) to qualify as a QOZ Business Property. That said, the IRS and Treasury are soliciting comments on the Proposed Regulations on the definition of both “substantial improvement” and “original use.”

Winding Down / Exit Strategy 1. Sale After 10 Years As previously discussed, in order to get the maximum benefit of a QOZ investment, certain QOF investments (those made with deferred capital gains) need to be held for 10 years from the date of the original investment in the QOF, at which time such investment gets a step-up in basis to the fair market value of the investment on the date that the investment is sold or exchanged.45 The TCJA puts no parameters on the timeframe for the sale or exchange after the 10-year holding period. However, the designations of all QOZs expire on December 31, 2028.46 The loss of the designation as a QOZ raises a number of questions regarding the step-up in basis benefit that may not yet be realized by such date. The incentive provided by the step-up in basis is integral to the QOZ program and, as such, the Proposed Regulations address this issue and allow the stepup in basis after the designation as a QOZ expires. The stepup in basis is allowed for a sale or exchange until December 31, 2047, which effectively allows an investor in a QOF who makes an investment at the end of the possible investment period (i.e., June 2027) to hold such investment for the entire 10-year period plus 10 additional years. The Treasury and IRS have requested comments to this proposed fixed timeframe, so there could be additional regulations forthcoming. Several commentators have noted that this fixed date may not align with the taxpayer’s economic interests and would require a sale or exchange on a set date. One alternative considered by the Treasury and the IRS, discussed in the Guidance, was to provide a fair market value determination (similar to the stepped-up basis under 26 U.S.C. § 1014) without disposition of the investment. The fair market valuation would be on a fixed date, which could be the end of the 10-year holding period or some other later date. On the one hand, such a proposal would be advantageous to investors in a QOF THE NEBRASKA LAWYER

as it would avoid the requirement of an actual sale or exchange at what may be an inopportune time. On the other hand, the overall economic benefit could be reduced if the Treasury and IRS chose to shorten the time period to realize the step-up in basis. It would also require a method of valuing assets and could raise administrative and compliance costs. 2. Sale of Partnership Interest v. Sale of Underlying Asset It is important to note that the actual disposition and valuation of the investment under the QOZ program is for the sale or exchange of the taxpayer’s interest in the QOF (i.e., stock or partnership interest), not the underlying assets of the QOF. As such, the sales will need to be structured such that the buyer is actually buying an investor’s equity interest in the QOF and not the real estate itself, which may lead to some challenges in structuring the acquisition. Because the sale must be at the QOF level, it is generally advisable to have separate QOFs for each real estate project so that a QOF does not have to sell multiple assets at one time. This is challenging for QOFs that were structured this year prior to the issuance of the Guidance with the intent of having investors acquire an equity interest in one QOF, which owns or will own and complete several development projects either directly or, more likely, indirectly through wholly owned special purpose entities that are disregarded for tax purposes. As previously discussed, a change to the sale requirement so that there is instead a fair market valuation determination at a fixed time would remedy this problem and allow funds and other developers to structure one QOF with subsidiaries for each real estate project. However, at this point, it is best to isolate each real estate project within a separate QOF.

Conclusion The above issues, as well as many others, remain unanswered and make it challenging to be confident that taxpayers can assure correct structuring, analysis, and compliance with the QOZ program in real estate development. The rules and deal structuring can be very complex and are still subject to change, but the benefits are appealing and have developers and investors alike looking forward to utilizing the QOZ program. The QOZ program is still in its infancy and the Treasury and the IRS are working on additional published guidance and such guidance is expected to address several open issues, including but not limited to, the requirement of sale and the timing for the stepped-up in basis benefit, the meaning of “substantially all” in each of the various places where it appears in the Guidance without clarification, the “reasonable period” for a QOF to reinvest proceeds from the sale of qualifying assets without paying a penalty, rules in connection with the failure of a QOF to satisfy the 90% Asset Test and other various reporting requirements. Stay tuned for additional guidance in the spring of 2019.

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THE INS AND OUTS OF THE NEW OPPORTUNITY ZONE PROGRAM

Endnotes 1

Public Law No 115-97.

Proposed regulations under section 1400Z-2 of the Internal Revenue Code that would amend the Income Tax Regulations (26 CFR Part 1). Section 13823 of the Tax Cuts and Jobs Act, Pub L. No. 115-97, 131 Stat. 2054, 2184 (2017).

See Rev. Rul. 2018-29 (released October 19, 2018)

A complete list of designated qualified opportunity zones is found in Notice 2018-48, 2018-238 I.R.B. 9.

See Prop. Treas. Reg. §1.1400Z-2(a)-1(b)(1).

See Prop. Treas. Reg. §1.1400Z-2(a)-1(b)(2).

To make a deferral election, the taxpayer must complete and file a Form 8949, along with their Federal income tax return for the taxable year in which the gain would have been recognized if it had not been deferred.

See Prop. Treas. Reg. §§1.1400Z-2(a)-1 and 1.1400Z-2(a)-1 (b)(3).

There are some special rules for pass-through entities that allow the partner or shareholder 180 days after the end of the passthrough entity year-end in which to reinvest the capital gain funds. See Prop. Treas. Reg. §1.1400Z-2(a)-1(c).

10 See

26 U.S.C. §1400Z-2(a)-1(b)(1).

11 See

26 U.S.C. §1400Z-2(a)-1(b)(2)(B).

26 Additional

guidance is required to ascertain the meaning of “substantially all of a QOF’s holding period.”

27 26

U.S.C. §1400Z-2(d)(2)(C) and Prop. Treas. Reg. §1.1400Z2(d)- 1(c)(3).

28 Additional

guidance required to ascertain the meaning of the phrase “active conduct of a trade or business.”

29 26

U.S.C. §§1400Z-2(d)(3)(A)(iii) & 1397C(b)(2); Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(5)(i). See Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(5)(v) for a safe harbor for gross income derived from the active conduct of business.

30 26

U.S.C. §§1400Z-2(d)(3)(A)(iii) and 1397C(b)(4); Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(5)(ii). Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(5)(vi) for a safe harbor for the use of intangible property.

34 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(5)(iv)(B). Additional guidance is required to ascertain the meaning of “consistent with the ordinary start-up of a trade or business.”

36 See

property cannot be acquired from a related person. 26 U.S.C. §1400Z-2(d)(2)(D)(iii).

26 U.S.C. §1400Z-2(e)(4); see also Prop. Treas. Reg. §1.1400Z-2(d)-1(a). 26 U.S.C. §1400Z-2(d)(1).

17 Prop.

Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(5)(iv)(C).

37 The

14 See

16 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(5)(iv)(A).

35 See

26 U.S.C. §1400Z-2(d)(1).

Prop. Treas. Reg. §1.1400Z-2(d)-1(c).

U.S.C. §§1400Z-2(d)(3)(A)(iii) and 144(c)(6)(B).

Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(1)(i). Also note that the Proposed Regulations only provide guidance on the “substantially all” threshold for tangible property owned or leased by QOZ Business. Definitions for other uses of “substantially all” threshold require further guidance.

26 U.S.A. §1400Z-2(a)-1(c); see also Prop. Treas. Reg. §1.1400z-2(c)-1.

15 See

U.S.C. §§1400Z-2(d)(3)(A)(iii) and 1397C(b)(8).

32 26 33 See

12 See 13 See

31 26

38 26

U.S.C. §1400Z-2(d)(2)(D). Additional guidance is required to ascertain the meaning of “substantially all” as used in the definition of “Qualified Opportunity Zone Business Property.”

39 See

Prop. Treas. Reg. §§1.1400Z-2(d)-1(c)(4) & (8) and 1.1400z-2(d)-1(d)(4).

Treas. Reg. §1.1400Z-2(d)-1(b)

18 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(b).

40 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(d)(4).

19 See

26 U.S.C. §1400Z-2(d)-1(a).

41 See

Prop. Treas. Reg. §1400Z-2(d)-1(a)(2).

20 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(a).

42 See

26 U.S.C. §§1400Z-2(d)(2)(B)(i)(I) and (C)(i).

21 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(a)(2).

43 See

Prop. Treas. Reg. §1.1400Z-2(e)-1(a)(2).

22 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(a)(1)(iii)(A).

44 See

23 See

Prop. Treas. Reg. §1.1400Z-2(d)-1(a)(1)(iii)(B).

Prop. Treas. Reg. §1.1400Z-2(e)(2); 26. U.S.C. §§1400Z2(d)(2)(D)(iii) and (e)(2), 267, and 707.

24 Additional

guidance is required to ascertain the meaning of “substantially all of a QOF’s holding period.”

45 See

Prop. Treas. Reg. §1400Z-2(c)-1.

46 See

26 U.S.C. §1400Z-1(f).

25 There

are specific restrictions on the redemption of stock (similar to those set forth in 26 U.S.C.§1202(c)(3)). 26 U.S.C. §1400Z2(d)(2)(B) and Prop. Treas. Reg. §1.1400Z-2(d)- 1(c)(2).

THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

plain language

A Dozen Words and Phrases to Doubt

by Ross Guberman

A few tweaks at the word level can liven up your style and lighten the reader’s load. To see how it works, let’s match wits with some of the world’s best judicial writers below. Or is that “match wits with regard to certain of the world’s most illustrious judicial draftspersons infra”? The Rules of Engagement: If a word or phrase is bolded in the first part of each set, the big guns didn’t write it. For each of those terms, think of a lighter or shorter replacement before you peek below. Here are a dozen of the most fruitful changes, before-andafter style: 1. Just Say No: with respect to, with regard to, in regard to, regarding, as regards, and concerning. Mystery Judge Yet the advice from the Supreme Court regarding how to deal with our situation seems scarcely more harmonious than the advice from the legislature.

Ross Guberman

Try on, about, for, as for, or as to. Seventh Circuit Judge Frank Easterbrook, In re Sinclair Yet the advice from the Supreme Court about how to deal with our situation seems scarcely more harmonious than the advice from the legislature. 2. Just Say No: moreover, further, furthermore, and additionally. Mystery Judge [A] growing number of judges in this Court have lately referred to international legal materials. That development is inevitable. It is, moreover, desirable, natural and legally correct. Mystery Judge Although he was a well-known local figure and candidate for public office, he was arrested during the campaign and beaten by the police, ostensibly for not having identification papers on him. Additionally, he received threatening phone calls, which he believed came from the police. Mystery Judge On the other hand, any loss of income attributable to Hubbard’s being denied the job, like any emotional distress or harm to

➡ Ross Guberman is the president of Legal Writing Pro, the author of Point Made: How to Write Like the Nation's Top Advocates, and the creator of the new legalediting app Brief Catch (www. BriefCatch.com).

THE NEBRASKA LAWYER

Editors: BRANDY R. JOHNSON, attorney, Governmental Law, LLC, Lincoln P. BRIAN BARTELS, partner, Kutak Rock LLP, Omaha If you are interested in submitting an article for the “Plain Language” column, please e-mail Amy Prenda at aprenda@nebar.com. 45

NOVEMBER/DECEMBER 2018

PLAIN LANGUAGE reputation that he may have suffered as well, is a consequence of the denial of the offer of employment. Furthermore, the classic remedy for that loss is money damages. Try also or and.

is not required to show more than de minimis injury in order to prevail on a claim of excessive force. Try need not. Chief Justice John Roberts, McDonnell v United States

Former High Court of Australia Justice Michael Kirby, Wurridjal v Commonwealth

[T]he public official need not specify the means that he will use to perform his end of the bargain.

[A] growing number of judges in this Court have lately referred to international legal materials. That development is inevitable. It is also desirable, natural and legally correct.

District Court Judge Patrick Schiltz, Newton v Walker

Seventh Circuit Judge Richard Posner, Cecaj v Gonzalez Although he was a well-known local figure and candidate for public office, he was arrested during the campaign and beaten by the police, ostensibly for not having identification papers on him. He also received threatening phone calls, which he believed came from the police. Former D.C. Circuit Chief Judge Patricia Wald, Hubbard v EPA On the other hand, any loss of income attributable to Hubbard’s being denied the job, like any emotional distress or harm to reputation that he may have suffered as well, is a consequence of the denial of the offer of employment. And the classic remedy for that loss is money damages. 3. Just Say No: even assuming arguendo, assuming arguendo, arguendo, and just even assuming. Mystery Judge We conclude that the [Social Security Administration’s] reading is better attuned to the statute’s text and its design to benefit primarily those supported by the deceased wage earner in his or her lifetime. And even assuming arguendo that the SSA’s longstanding interpretation is not the only reasonable one, it is at least a permissible construction that garners the Court’s respect under [Chevron]. Try even if. Supreme Court Justice Ruth Bader Ginsburg, Astrue v Capato We conclude that the [Social Security Administration’s] reading is better attuned to the statute’s text and its design to benefit primarily those supported by the deceased wage earner in his or her lifetime. And even if the SSA’s longstanding interpretation is not the only reasonable one, it is at least a permissible construction that garners the Court’s respect under [Chevron]. 4. Just Say No: is not required to. Mystery Judge

In Chambers, the Eighth Circuit clarified that a plaintiff need not show more than de minimis injury in order to prevail on a claim of excessive force. 5. Just Say No: demonstrate and exemplify. Mystery Judge The examples demonstrate that the evidence may well be of great importance to getting at the truth and determining whether the accused is guilty or innocent under the law—the ultimate aim of the trial process. Mystery Judge The Home Secretary has adduced evidence, both open and secret, to demonstrate the existence of a threat of serious terrorist outrages. Try show or prove. Supreme Court of Canada Chief Justice Beverley McLachlin, The Queen v Seaboyer The examples show that the evidence may well be of great importance to getting at the truth and determining whether the accused is guilty or innocent under the law—the ultimate aim of the trial process. Former Law Lord of Appeal Hoffmann, A v Secretary of State for the Home Department (dissenting) The Home Secretary has adduced evidence, both open and secret, to show the existence of a threat of serious terrorist outrages. 6. Just Say No: pursuant to. Mystery Judge The only case put before the judge or before us was that the keeper was strictly liable pursuant to the Animals Act 1971. Try under. Former Master of the Rolls Lord Denning, Cummings v Granger The only case put before the judge or before us was that the keeper was strictly liable under the Animals Act 1971. 7. Just Say No: subsequent to and following.

[T]he public official is not required to specify the means that he will use to perform his end of the bargain. Mystery Judge

Mystery Judge Following the accident the plaintiff’s handbag and shoe were found in the middle of the yard.

In Chambers, the Eighth Circuit clarified that a plaintiff THE NEBRASKA LAWYER

NOVEMBER/DECEMBER 2018

PLAIN LANGUAGE Mystery Judge The Grateful Dead play rock music. Their style, often called “acid rock” because it mimics the effects some persons obtain subsequent to using LSD . . . , is attractive to acid-heads. Try after. Former Master of the Rolls Lord Denning, Cummings v Granger After the accident the plaintiff’s handbag and shoe were found in the middle of the yard. Seventh Circuit Judge Frank Easterbrook, United States v Dumont The Grateful Dead play rock music. Their style, often called “acid rock” because it mimics the effects some persons obtain after using LSD . . . , is attractive to acid-heads. 8. Just Say No: in the present case, in the instant case, in the case at bar, and even in this case. Mystery Judge The jury in this case was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” Mystery Judge

9. Just Say No: therefore, consequently, and accordingly. Mystery Judge Therefore, her testimony contradicted John Ennis’ testimony that he had never heard her say she was sorry and that he would not have fired her if she had. Mystery Judge [T]he content of the Ad includes political satire—it pokes fun at the Mayor’s alleged penchant for taking credit for all of New York’s achievements. The question, therefore, is whether the inclusion of political satire in the motif of the Ad removes it from the category of commercial speech in which it would otherwise clearly fall. Mystery Judge Consequently, back pay essentially pays the plaintiff for the economic losses suffered as a result of the employer’s wrong; it does not return to the plaintiff anything which was rightfully his in the first place. Try so, thus, or then.

Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: In the present case, as in many contexts, the distinction is one in search of a difference. Mystery Judge Rarely has this Court rejected outright an interpretation of state law by a state high court. Fairfax’s Devisee v. Hunter’s Lessee, NAACP v. Alabama ex rel. Patterson, and Bouie v. City of Columbia, cited by the Chief Justice, are three such rare instances. But those cases are embedded in historical contexts hardly comparable to the situation in the case at bar. Try here. Chief Justice John Roberts, Snyder v Phelps The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” Supreme Court Justice Elena Kagan, Arizona Christian School Tuition Organization v Winn (dissenting) Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. Supreme Court Justice Ruth Bader Ginsburg, Bush v Gore (dissenting) Rarely has this Court rejected outright an interpretation of THE NEBRASKA LAWYER

state law by a state high court. Fairfax’s Devisee v. Hunter’s Lessee, NAACP v. Alabama ex rel. Patterson, and Bouie v. City of Columbia, cited by the Chief Justice, are three such rare instances. But those cases are embedded in historical contexts hardly comparable to the situation here.

Eleventh Circuit Chief Judge Edward Carnes, Hamilton v Southland Christian School So her testimony contradicted John Ennis’ testimony that he had never heard her say she was sorry and that he would not have fired her if she had. Former District Court Judge Shira Scheindlin, New York Magazine v Metropolitan Transit Authority [T]he content of the Ad includes political satire—it pokes fun at the Mayor’s alleged penchant for taking credit for all of New York’s achievements. The question, then, is whether the inclusion of political satire in the motif of the Ad removes it from the category of commercial speech in which it would otherwise clearly fall. Former D.C. Circuit Chief Judge Patricia Wald, Hubbard v EPA Thus, back pay essentially pays the plaintiff for the economic losses suffered as a result of the employer’s wrong; it does not return to the plaintiff anything which was rightfully his in the first place. 10. Just Say No: in order to. Mystery Judge [T]he agency may indeed exercise delegated legislative authority in order to overrule a judicial precedent in favor of the agency’s preferred interpretation.

➡ JANUARY/FEBRUARY 2019

PLAIN LANGUAGE Mystery Judge In order to be sanctionable, a misstatement or omission must be more than an innocent mistake; in making the misstatement or omission, the attorney must have been “culpably careless.” Try to. Supreme Court Justice Neil Gorsuch, writing as a Tenth Circuit Judge, Gutierrez-Brizuela v Lynch (concurring) [T]he agency may indeed exercise delegated legislative authority to overrule a judicial precedent in favor of the agency’s preferred interpretation. District Court Bankruptcy Judge Benjamin Goldgar, In re Brent To be sanctionable, a misstatement or omission must be more than an innocent mistake; in making the misstatement or omission, the attorney must have been “culpably careless.” 11. Just Say No: prior to. Mystery Judge This Court has generally insisted upon first analysing the impugned legislative language prior to determining a contested issue of constitutional validity.

Just Say No

Try

with respect to, with regard on, about, for, as for, to, regarding, as regards, con- as to cerning moreover, further, further- also, and more, additionally even assuming arguendo, even if assuming arguendo, arguendo, even assuming is not required to

need not

demonstrate, exemplify

show, prove

pursuant to

under

subsequent to, following

after

Try before. Former High Court of Australia Justice Michael Kirby, Wurridjal v Commonwealth This Court has generally insisted upon first analysing the impugned legislative language before determining a contested issue of constitutional validity. 12. Just Say No: despite the fact that and notwithstanding the fact that. Mystery Judge Despite the fact that he was a well-known local figure and candidate for public office, he was arrested during the campaign and beaten by the police, ostensibly for not having identification papers on him. Try although or even though.

in the present case, in the here instant case, in the case at the bar, in this case therefore, consequently, accordingly

so, thus, then

in order to

prior to

before

despite the fact that, although, even though notwithstanding the fact that

THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

wellness brief

Building Resiliency It’s About Good Mental Health By Chris Aupperle, NLAP Director

The Nebraska Lawyers Assistance Program (NLAP) is about helping lawyers, judges and law students in immediate need to address burnout, depression, anxiety, alcohol/drug use or cognitive loss. It is some of the most impactful work we do, and we have seen some remarkable comeback stories. However, that’s only half of what we do. NLAP is also about giving lawyers the information, guidance and tools they need to take “preventative measures” against some of the most common hazards of our profession.

What is Resilience? At the core of good mental health is resiliency. The American Psychological Association defines resiliency as “the process of adapting well in the face of adversity, trauma, tragedy, threats or significant sources of stress — such as family and relationship problems, serious health problems or workplace and financial stressors. It means "bouncing back" from difficult experiences.”1 Maintaining resilience is an essential skill in the practice of law. It’s not a silver bullet guaranteeing good mental health, but it’s essential. Building strong resiliency can be a safeguard against some the perils of the law profession. Research suggests that people who develop and maintain resiliency are less likely to suffer from depression and anxiety – two mental illnesses that hit the legal profession hard.2 Also, people with strong resiliency are less likely to turn to unhealthy behaviors, like alcohol, drugs, dysfunctional eating and gambling as a response to stress. Resilience is also more than just being able to survive difficult experiences. Its learning what will allow you to thrive within the legal profession. When we examine resilience within the legal profession, we see that lawyers with strong resilience are more focused on solutions and good client outcomes than personality conflicts and blame. Resilient lawyers also are more efficient in the way they work, feel a sense of purpose in the work they do and less likely to engage in inefficient behaviors like procrastination.

Nebraska Lawyers Assistance Program

Strengthening Resilience Keep in mind resilience is not static, it can improve or degrade over time. Physical illness, significant personal loss (e.g., death of a loved one or relationship problems), traumatic experiences and the environment in which we live and work can have a detrimental effect on our resilience.3 The legal profession certainly has elements to it which can challenge our resilience. We work in a profession that is literally judged in wins and losses. Our calendars are subject to employer, client and court demands, which often conflict with our personal lives. Additionally, our profession perpetuates a culture reluctant to seek help when we are struggling.4 Conversely, there are simple practices you can incorporate into your daily life to improve your resilience. These practices focus on managing stress appropriately and finding the right balance between all the demands in our professional and personal lives. All it takes is your intent to improve your resilience and consistency. There also may be times when we have been hit with a particularly significant event in our lives and would benefit from professional counseling. Want to learn more? Just give NLAP a call. Work for an organization or firm that wants to offer its lawyers more information on how to build resiliency – NLAP has a 1-hour CLE available to legal employers and organizations to learn more on how to improve personal and professional resilience.

Endnotes 1

American Psychological Association, Retrieved from https:// www.apa.org/helpcenter/road-resilience.aspx.

2 Mayo

Clinic Staff, Resilience: Building Skills to Endure Hardship, May 18, 2017, Retrieved from https://www.mayoclinic.org/tests-procedures/resilience-training/in-depth/resilience/art-20046311

American Psychological Association, Retrieved from https:// www.apa.org/helpcenter/road-resilience.aspx.

Krill, Patrick R. JD, LLM; Johnson, Ryan MA; Albert, Linda MSSW, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, Journal of Addiction Medicine: January/February 2016 - Volume 10 - Issue 1 - p 46–52.

(888) 584-6527

Confidential Help for all Nebraska Lawyers, Judges and Law Students THE NEBRASKA LAWYER

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Wish you could take a recess?

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If you are doubting your decision to join the legal profession, the Nebraska Lawyers Assistance Program (NLAP) can help. We understand the competition, constant stress, and high expectations you face as a lawyer. Dealing with these demands and other issues can be overwhelming. The Nebraska Lawyers Assistance Program offers free and confidential support, because sometimes, the most difficult trials happen outside the courtroom. Nebraska Lawyers Assistance Program Helping you win life’s trials. 24 hours • 7days (888) 584-NLAP (6527)

Personal Resilience and the Workplace Speaker:

Elise McHatton, MA, ACSM EP-C, NSCA-CSCS

Elise McHatton has more than 18 years of experience in individual and group wellness programming. Elise has a bachelor’s degree in Exercise Science and a master’s degree in Organizational Leadership. She also holds certifications

Have you ever wondered how some people pace through life without being phased by the barrage of tasks, deadlines and fires that come their way? Especially in the legal profession when the expectation is for lawyers to be available around the clock (e.g., get to the office early, stay late, work weekends, available to respond to last-minute requests from partners or clients and remain tied to technology 24/7). Join Elise McHatton as she discusses resiliency in the workplace and how to cope with “addicted to busy.” Elise will provide you with an understanding of resilience and why it is so important, an overview of how your mind works and the difference between pressure and stress, and strategies to improve your resilience and performance.

Failing to recharge on a daily basis will take a toll on your mental and physical health!

from the American College of Sports Medicine and the National Strength and Conditioning Association. Her prior work experience includes wellness programming in health club, cardiac rehab and corporate environments.

Wednesday January 16, 2019 12:00 pm – 1:00 pm Hruska Law Center

635 S 14th Street

Lincoln

NE MCLE Accreditation 1 CLE / 1 ethic hour Regular/live #166743 Distance learning #166742 Attend live or via live webcast $65 Regular registration $50 NSBA dues-paying member FREE Senior Lawyer Section member FREE Law students

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Registration on page 2 51

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REGISTRATION FORM:

Please let us know how you heard about this CLE event: c Email (eCounsel, listserv, etc.) c Social Media c Nebraska Lawyer c Another NSBA CLE event c NSBA print mailing c Other:_________________

Personal Resilience and the Workplace Wednesday, January 16, 2019 12:00 PM – 1:00 PM c I will attend the live seminar at the Hruska Law Center in Lincoln. c I will attend the seminar via live webcast. c $65 - Regular Registration c $50 - NSBA dues-paying member c FREE - Senior Lawyer Section Members c FREE - Law Students

Name:_____________________________________________________________________Bar #___________________________ Address:___________________________________________ City:______________________ State:_______ Zip:___________ Telephone:___________________________________ E-Mail:_______________________________________________________ PAYMENT by CHECK {payable to NSBA} Check enclosed _________ PAYMENT by CREDIT CARD: AMEX _______ Amount to be charged $_______ Expiration Date: _________Mo/Yr

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Credit card billing address {if different from above}:____________________________________________________________________ City:_______________________________________________________ State:__________________ Zip:____________________ Signature:__________________________________________________________________________________________________ Return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or email to Karla Roscoe at kroscoe@nebar.com. If you do not receive an email confirming your registration, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA. NSBA CLE Cancellation Policy: • A full refund will be granted only when a cancellation request is received at least 72 hours prior to the live or distance-learning CLE event. • A cancellation request made less than 72 hours of the live or distance learning CLE event or following the live or distance-learning CLE event will be refunded, less a $30 processing fee. • You may send a substitute (e.g., someone from your firm) in lieu of cancelling. • The cancellation policy for a NSBA sponsored CLE event does not apply to independent third-party CLE providers, and attorneys are subject to their cancellation policy.

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JANUARY/FEBRUARY 2019

court news

Nebraska Supreme Court Hosted at Schuyler Central High School for Nov. 2 Arguments by Janet Bancroft, Nebraska Supreme Court Public Information Officer

Students at Schuyler Central High School were invited to ask questions of the Nebraska Supreme Court during a November visit to their school – and they did not hold back. The first student to approach the Court had to set aside his original inquiry regarding TransCanada when he realized the justices couldn’t discuss a pending case. He said that he did not want to go easy on the Court so he asked another question: “I understand you have dealt with a lot of emotional cases, how do you set aside your emotions and come up with your decisions?” A variety of questions followed including a question on DACA executive orders, why multiple life sentences are given when you can literally only serve one, and whether or not judges can be fired. Although some questions could not be answered, the Chief Justice received a round of applause when he noted that the reason the Supreme Court was hearing arguments at Schuler High School is because “The Chief Justice went to High School here.” He continued, “But, we really believe that we have an obligation to make sure that people understand the judicial system and how important the legal profession is to our State. We think this is part of an outreach program that is very important for us. We especially want to reach out to young people and, hopefully, after watching this you will become lawyers and judges.” The questions came after oral arguments at Schuyler Central High School on November 2, 2018, as part of the Nebraska Supreme Court’s outreach and education programming. Two arguments from Western Nebraska were heard on the gym-

Judge panel listens to student questions: Federal Judge John Gerrard, Justice Jonathan Papik, Justice Lindsey Miller-Lerman, Chief Justice Mike Heavican, Justice William Cassel, Justice Jeff Funke, Justice John Freudenberg (not visible, Justice Stephanie Stacy). turned-courtroom stage. The morning began with an educational introduction to the court system and ended with the student question and answer session. The 2018 visit marks the first time that the Supreme Court has held arguments in Schuyler. Former Supreme Court Justice John Gerrard, now a United States District Judge, joined the educational portion of the program to provide background information on levels of the state courts and the types of cases the students were about to hear. Judge Gerrard is also a graduate of Schuyler Central High School. Highlighting the Court’s language interpretation program, portions of the educational session were presented in Spanish by Nebraska State Court Interpreter Coordinator Vladimir Bazan. Spanish language questions from students were also interpreted. All argument sessions, whether held in the Supreme Court courtroom or outside of the State Capitol, are open to the public and several community members took the opportunity to see the Court in action. Current and former state senators dotted the audience as did Schuyler graduates who are now members of the legal community. Former State Senator Mike Flood, Norfolk, attended arguments with members of his News Channel Nebraska crew to video the court session.

Students at Schuyler High School line up to ask questions of the Nebraska Supreme Court justices and Judge John Gerrard.

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JANUARY/FEBRUARY 2019

legal community news Nebraska State Bar Foundation’s Daniel J. Gross Fund Daniel J. Gross was a prominent Omaha trial lawyer. Upon his death in 1958, he established a fund in his will “for the charitable and welfare purpose of active practicing Nebraska lawyers, their wives, widows, and children.” Over the years, the Daniel Gross Fund has assisted active lawyers and their families on numerous occasions. For example, the Fund has worked with the Nebraska Lawyers Assistance Program in providing funds for medical treatment on a confidential basis.

The Nebraska State Bar Foundation is pleased to support CLE for Bar members.

Any active lawyer, or his or her family member, in need of assistance may apply to the Daniel Gross Fund. Doris Huffman, Executive Director of the Nebraska State Bar Foundation, is the contact person. She can be reached at the Hruska Law Center, 635 South 14th Street, Suite 120, PO Box 95103, Lincoln, NE 68509-5103, or by telephone at (402) 475-1042. All inquiries are strictly confidential.

Nebraska state bar FouNdatioN

classified ads OFFICE-SHARE AVAILABLE: Share office space in West Central Omaha. Amenities include parking, conference room, staff assistance and association with two experienced attorneys. Please contact Bob Zuber at (402) 397-1161 for more information. ATTORNEY: Small AV law firm in east-central Lincoln seeks a third, and possibly fourth, lawyer to share office space and expenses and consider possible affiliation. We have a client book of prominent local businesses and institutions as well as the usual cross-section of Nebraska middle class life. If this is a conversation that you think might interest you, or if you simply want to solo it in a nice office suite shared with very good lawyers and their staff, send a letter and CV or equivalent, and anything else you think might be of interest to us, to admin@ morristituslaw.com.

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ASSOCIATE ATTORNEY: Rawlings, Ellwanger, Mohrhauser, Nelson & Roe, L.L.P., an established “AV” rated law firm in Sioux City is seeking to hire an attorney to work in the areas of business, real estate, probate and estate planning. Candidates will be organized and possess excellent writing and oral skills. We offer competitive salary, 401(k), health insurance, CLE and bar dues. Membership in Nebraska and/ or South Dakota bars a plus. Confidential inquiries, including resume, should be sent to Kathleen Roe, 522 4th Street, Suite 300, Sioux City, Iowa, 51101, or kroe@rawlings-law.com.

Check out the NSBA Online Classifieds! Place your ad or search all ads at http://www.nebar.com/?page=ClassifiedAds

JANUARY/FEBRUARY 2019

letter to the editor I read Ms. Scout Richters’s article Under Lock and Key: Hidden Realities for Nebraska Women in Jail and Prison in the November/December 2018 Edition of The Nebraska Lawyer. Her article relied on a single source: a written survey sent to Nebraska’s incarcerated female population. I found no indication that medical, mental health, and key facility personnel were consulted for a meaningful spectrum of viewpoints. Further, there was no mention of record verifications, reviews of treatment files and medical/mental health contact logs, or even a visit to NCCW for the writing of this article. These comments are interesting to read but provide only a negligible amount of value. I do, however, appreciate Ms. Richters’s concern for incarcerated women in Nebraska. I served a 3-year appointment as a Board Member for the Women’s Center for Advancement (WCA) whose mission is to end domestic violence and abuse. I am pleased to continue my support of this valuable mission WCA provides Nebraska and, importantly, their dedicated, passionate, and skilled staff members and leaders. During the early part of my career, I came to understand that women in prisons and jails can become the ‘forgotten prisoners.’ I joined this collective NDCS concern which resulted in our Agency working diligently for decades to mitigate the isolating effects of imprisonment. The work continues to this day. Ms. Richters spoke about substance abuse and mental illness. Women who abuse substances often develop, or exacerbate, mental illnesses as evidenced in their behavioral patterns. Many NCCW residents endured these substance addictions and the consequential volatile relationships. Incarcerated women must have a voice in commenting on their correctional environment. Corrections strongest and most treasured advocates for inmates understand the influences surrounding inmates’ lives and treat each of them as a person worthy of their time and energy. When you listen closely to an inmate’s story, that person will tell you about their regrettable behavior. Their crime is just a snapshot of their life-style. Sadly, their removal from the home likely became their children’s only relief from abuse and neglect. Incarceration can and does serve an honorable mission and purpose for persons adrift in their painful circumstances and crimes. Interestingly, one of the safest and most nurturing places for an infant in Nebraska is in the NCCW Nursery. Women, who qualify, keep their child for 12-18 months after birth. The mother and her assisting residents learn parenting skills under the watchful eyes of officers and the Nursery’s specially trained staff; further, NCCW hosts long term, overnight, visits by inmates’ children. Health and Human Services as well as other organizations play a huge role in overseeing reunification and refining the parenting skills learned. Very simply, NCCW, working collaboratively throughout Nebraska, is a model for the nation in humane and caring confinement for women; staff members provide the best possible quality of care within the realm of imprisonment.

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Ms. Richters’s article jumps between references to Nebraska and national conditions. These two sets of data cannot reside equally as Nebraska has one of the lowest incarceration rates in the nation; other jurisdictions are trying to achieve what Nebraska has been doing for decades. NDCS’s medical and mental health services are understandably stretched thin, but at what price point have we added enough resources to treat an unending number of persons with shattered lives who are survivors of severe abuse with horrible addictions. Ms. Richters’s article implicates that prison crowding is of significant concern for women in community centers. This assertion needs to be looked at in its broader context. Most states envy NCCW crowding level as it is relatively very low. On its own, crowding does not lower the strength of NCCW’s efforts. In fact, Director Scott Frakes recently told me that NCCW is progressing toward a community-based component. This addition coupled with other enhancements he has set in motion means NCCW will soon have the more responsible inmates influencing higher risk individuals rather than the other way around. Further, Director Frakes sought and received a 160-bed community center to specifically enhance the transition of women to the community and, also, lower the overall crowding of women. The crowding at CCC-O and CCC-L is a great sign that re-entry is being used extensively to return women safely to our community. With the robust use of furloughs for family unity, work opportunities in the community, attendance at community treatment facilities and programs, and numerous religion passes with family members, the Centers’ populations becomes very manageable because at nearly every given moment, dozens of women are at places other than the Centers. I doubt that any woman at a community center would voluntarily move back to NCCW to avoid the crowding issues they commented about in the survey. NCCW incarcerates the highest risk, highest needs women in our State. Nebraska should be very proud of NCCW’s successes and the inspired leadership of Warden Denise Davidson and her Executive Team. Under NCCW Warden Davidson, the diversity and quality of rehabilitation programs has grown both in size and effectiveness. This statement fittingly describes the leadership of Community Center Wardens Ryan Mahr and Charles West. I do not believe that Ms. Richters intentionally set out to disparage the hard work being performed at NCCW, CCCLincoln and CCC-Omaha by leadership and staff members. However, with no correlating evidence beyond the selected nameless inmate comments, the excellence in operations and the uplifting culture created through transforming and inspiring leadership was either ignored or not considered important. Robert P. Houston (Bob) was appointed to UNO’s School of Criminology and Criminal Justice (SCCJ) following his 39-year career in Nebraska corrections. His work included 11 years as a prison warden, 2 years as Director of the Douglas County Department of Corrections, and 8 years as Nebraska’s Director of Corrections.

JANUARY/FEBRUARY 2019

nsba news

The NSBA Legislative Program

by William J. Mueller, NSBA Legislative Counsel, Nebraska State Bar Association In an effort to achieve its mission, the NSBA has established and provides a number of programs to educate our members and support the profession (e.g., Continuing Legal Education, the Nebraska Lawyers Assistance Program, Casemaker), to serve the public (e.g., the Volunteer Lawyers Project, Lawyer Referral, etc.) and to improve the Court system (advocating for resources to the Judicial Resources Commission, assistance with Pro Se Litigants, etc.). The NSBA’s Legislative Program is unique in its ability to help the NSBA effectuate its mission by serving all three —the profession, the public and the court system. As the 106th Legislative Session approaches, we wanted to remind you how the NSBA’s Legislative Program creates valuable member benefits while working toward the three goals set forth above.

Educating our Members As lawyers, it is imperative that we are up-to-date on changes to the law. The NSBA’s Legislative Program helps to keep you informed of these changes in a number of ways. The NSBA Legislative Counsel reviews every bill introduced in the Nebraska Legislature (between 600-700 bills every year) and identifies proposed legislation that may be of interest to a particular NSBA Section or Committee or to the profession in general. Once these potential bills of interest have been identified (typically between 100-120 a year), they are summarized and made available to the NSBA membership by topic area, so that NSBA members can easily identify proposed legislation impacting their area of law (e.g., juvenile law; real estate, probate and trust; business law, family law, etc.). The NSBA Legislative Update is sent out weekly while the Legislature is in session with updates on bills of interest, along with reports on legislative actions and hearing dates. Along

Supporting the Profession Like other professions (doctors, dentists, bankers, accountants, realtors, etc.), the NSBA Legislative Program also serves to represent and protect the professional interests of the profession. Poorly drafted bills with legal implications that have not been thought through are regularly introduced. Worse, senators may threaten to introduce legislation on behalf of a constituent who is angry at a lawyer or the legal system. We as lawyers need to be represented, and heard, in both of these situations. Other times, bills are actively introduced on behalf of the NSBA to positively impact a certain area of law. To this end the NSBA has worked to oppose objectionable legislation and introduce and pass legislation: • Adopting and updating of laws including the Probate Code, Commercial Code, Trust Act, Business Corporation Act, Power of Attorney Act, and the Limited Liability Company Act; • Improving laws including the guardianship and conservatorship statutes and court rules; • Adopting changes to the rules of civil procedure, rules of evidence, and the Administrative Procedures Act;

William J. Mueller

• Ensuring the confidentiality of communications with clients;

William J. Mueller is a senior partner and co-founder of Mueller Robak LLC. He advises clients on a broad range of legislative and government relations matters. He received his J.D. from the University of Nebraska College of Law. Mueller has been selected by his peers for inclusion in the Best Lawyers in America and a Great Plains Super Lawyer in Government Relations Law since 2009. Mueller is an Ogallala, Nebraska native. Mueller has served as Legislative Counsel to the NSBA since 1984. THE NEBRASKA LAWYER

with the Legislative Update, the NSBA website is updated each week to ensure all NSBA members have access to the most up-to-date information on legislative action on bills of interest. At the conclusion of the session, Legislative Counsel provides a summary of all legislative activity during the legislative session in The Nebraska Lawyer and offers Continuing Legal Education seminars to inform attorneys about changes to the law that effect their respective practice areas. In addition, the NSBA is working this year on improvements to the website to make this information even more accessible to the members.

• Retaining the current statute of limitations for lawyer malpractice; • Amending statutes governing the issuance and service of subpoenas; • Funding the Legal Education for Public Service and Rural Practice Loan Repayment Assistance Program; • Opposing efforts to sweep the funds in the Attorney Services Cash Fund into the State's General Fund; • Ensuring legal services are not subject to sales tax; and • Protecting the public from non-lawyers practicing law. 56

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NSBA NEWS

Serving the Public A less visible, but still important part of the NSBA Legislative Program serves to protect the public, who rely on the NSBA’s legal expertise. It is in instances like this one that the NSBA, as experts in the judicial process, should and does weigh in. Through this function the NSBA actively lobbies for the creation of additional judgeships to ensure that all Nebraskans have access to the courts of our state. The NSBA also spearheaded the establishment of a grant fund for Civil Legal Services which provides funding for civil legal services across the state.

When does the NSBA take a position on Legislation? The NSBA Legislative Program and Policy Statement, reviewed and adopted by the House of Delegates, provides that the position of the Bar is established by the House of Delegates upon the recommendations of the Legislation Committee and the Executive Council. The Program and Policy Statement also provides a process for positions to be established or changed should that be necessary after the House of Delegates has met. Finally, the Legislative Program and Policy Statement includes the following examples of issues the NSBA would potentially take a position on: • Regulating and disciplining lawyers;

Improving the Court System

• Regulating lawyers trust accounts;

Because lawyers are major participants in the court system, one of the most important functions of the NSBA Legislative Program is the work done to protect, support, and improve the court system in Nebraska. Over the years the NSBA has sponsored major legislative initiatives in this area as well and defended the court system against attacks. Examples of such legislation are:

• The education, ethics, competence, integrity and regulation of the legal profession;

• Creation of 12 new judgeships since 1995, 1 county court judgeship, 5 district court judgeships and 6 juvenile court judgeships;

• Improving the functioning of the courts including issues of judicial independence, fairness, efficacy and efficiency; • Issues involving the rules of practice, procedure and evidence in federal, state and local courts in or affecting Nebraska; • Issues involving the duties and functions of judges and lawyers in federal, state and local courts in or affecting Nebraska;

• Creation of the Judicial Resources Commission to ensure that all Nebraskans have access to the courts of Nebraska—and ensure that judgeships remain in judicial districts across the state—keeping courthouses, and lawyers offices, open;

• Issues involving the allocation of and access to judicial resources; • Issues involving judicial compensation and benefits, selection and retention;

• Establishment of merit selection and retention of judges; • Updating the procedures of judicial nominating commissions;

• Issues involving budget appropriation for the court system;

• Requiring that jury pools be updated regularly throughout the state. Before the legislation passed, many counties had not updated their jury pools in decades;

• Issues involving the availability of legal services;

• Establishment of the Court of Appeals. The 2019 legislative session promises to be an important one for our profession—improvements to the Medicaid recovery process, sales tax on services, and the creation of new judgeships are all likely to be considered. Want to become more involved? One way is to become active in NSBA Sections, which are asked to review proposed bills related to their respective areas of practice. As legislation is reported to members via the website and email updates, issues may arise that you feel the NSBA should, or should not, monitor for the good of a practice area, weigh in on for the protection of the public, or take a position on to improve the service of the courts. Please let us know. As always, all NSBA members should also feel free to voice their opinion to their elected House of Delegates member. THE NEBRASKA LAWYER

Safeguarding and promoting the proper professional • interests of the members of the Bar;

• Providing recommendations and assistance to elected and appointed government officials pertaining to existing or proposed legislation; or • Safeguarding the public from the unauthorized practice of law. The NSBA does not take positions on non-legal matters (to avoid entanglement in ideological and political issues) and will seldom take a position on bills where lawyers who practice in different areas of the law have divergent views. In 2018, 469 bills were introduced, the NSBA reviewed 107 bills and took positions on 30 of those bills. The Nebraska State Bar Association Legislation Review Process diagram shows the process that the NSBA employs to establish NSBA positions on legislation.

JANUARY/FEBRUARY 2019

NSBA NEWS

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JANUARY/FEBRUARY 2019

NSBA Volunteer Lawyers Project 635 S 14th Street, Ste. 200 Lincoln, NE 68508 (402) 475-7091 Email: VLP@nevlp.org Website: www.NEVLP.org

THE POWER OF ONE Every lawyer has a professional responsibility to provide pro bono legal services to the poor. Helping the disadvantaged can be one of the most rewarding experiences in a lawyer’s legal career. Since 1982, VLP has developed and facilitated pro bono programs to help Nebraska lawyers fulfill their responsibility to ensure that all Nebraskans have equal access under law. Programs have changed over the years; the mission remains the same - Helping Lawyers Help People.

The Power of One Lawyer can make justice happen for One Client. PRO BONO OPPORTUNITIES Represent One Client Full or limited scope Telephone consultation Reduced fee Answer One Question Online Pro Bono Online 24/7 www.NE.FreeLegalAnswers.org Lawyers in the City Walk-in legal clinic Brief, limited advice

Volunteer 1-2 Hours Self-Help Center Walk-in limited advice clinic Buffalo County Douglas County Hall County Kimball County Madison County Scotts Bluff County

Mentor New Volunteers Recruit New Volunteers Donate One or More Billable Hours Financially support VLP programs Create Brochures Present on Legal Topics Related to Pro Bono Legal Services

PRO BONO REWARDS • Fulfill pro bono responsibility • Help the poor access justice • Recognition in NSBA media • Malpractice coverage

One Lawyer, One Client. Make Justice Happen. Sign Up www.NeVLP.org THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

NSBA NEWS

The NSBA Client Assistance Fund:

Protecting the Reputation of the Nebraska Legal Profession for More Than Four Decades by Rose Ann Shannon, Immediate Past-Chair of Client Assistance Fund Board

For many clients the first contact with a lawyer comes at the most vulnerable time of their lives—a divorce, a child custody dispute, a death, an accident or a scrape with the criminal justice system. What’s old hat to lawyers is a crisis for the clients and their families. The way a case is handled can have a profound impact on how that client, that family and, in many cases, the public perceives the legal profession as a whole. In 1974 the Nebraska State Bar Association with the authority of the Nebraska Supreme Court established the Client Security Fund. Its purpose was to help clients who lost money because of a dishonest act committed by a Nebraska attorney. The current-day Client Assistance Fund has its roots in the original 1974 fund. Chief Justice of the Nebraska Supreme Court Michael Heavican said he believes the impetus for the Client Assistance Fund came from a southeast Nebraska probate case in which an attorney embezzled a large amount of money from his clients, and Nebraska lawyers felt the need to make things right. According to an NSBA memo, in the spring of 1997, the Bar President created a task force to “review the existing Client Security Fund and to study options to improve client protection in Nebraska.” The task force report stressed the need for additional funding to pay claims arising from dishonest acts. It also outlined some suggestions for improved education and auditing of trust accounts. In 2001, the Client Security Fund became the Client Assistance Fund with a $500,000 allocation from the NSBA. The NSBA then agreed to make an annual $20,000 contribution to the fund using mandatory dues. This annual contribution has been waived since 2014 when dues to the NSBA became voluntary. Many Nebraska lawyers might not know about the Client Assistance Fund. Fewer know how it works. That makes sense. The vast majority of Nebraska lawyers will never commit a dishonest act. However, the small fraction who

Since 2000, the Client Assistance Fund has handled 245 claims—an average of 14 per year. It has paid out more than $386,000. It must be stressed that not all claims result in payouts. The fund covers only losses resulting from dishonest acts committed by a Nebraska licensed lawyer while practicing law in Nebraska. Dishonest conduct relates to actions by the attorney with the knowing intent to deceive the client. Things like fee disputes and malpractice don’t fall under the Fund guidelines. Often, a client will file a claim when the case just doesn’t work out the way he or she wanted. There is no payout for that. The Client Assistance Fund Claims Board reviews claims, determines their validity and authorizes reimbursements. There are eight members appointed by the Supreme Court. Six are lawyers representing each of the six Nebraska Supreme Court Judicial Districts. Two non-lawyers also serve on the Board. Members serve two and three-year terms. Every state, the District of Columbia and every Canadian Province have some sort of client protection fund. There are similarities and differences among the funds. Some large CLIENT ASSISTANCE FUND BOARD 2018-2019 Chair

Shaylene M. Smith, Crete Members

Renee A. Eveland, Lincoln Daniel A. Fullner, Madison Kyle Gifford, North Platte Patrick M. Lee, Kearney Thomas M. Locher, Omaha Frank J. Mihulka, Omaha Rose Ann Shannon, Omaha

Rose Ann Shannon Rose Ann Shannon has been a Nebraska television journalist for more than 45 years. She recently retired as the news director of KETV in Omaha. She has been a member of the Client Assistance Fund Board since 2002.

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do can taint public perception of the legal profession. As Chief Justice Heavican said in a recent interview, “If people have an unfavorable opinion of the legal profession it reflects on the courts and our entire democratic system.” The Chief Justice went on to say, “Lawyers are an important part of our democratic system. If democracy is to function, people need to be able trust their institutions. The legal system is integral.”

Executive Council Liaison

Kenneth W. Hartman, Omaha NSBA Staff

Christopher Aupperle Nancy Harms Elizabeth Neeley 60

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NSBA NEWS organizations in states like New York have three or four paid staff members working strictly on the client protection fund. One state even has a forensic accountant to investigate claims. The large state funds may pay out millions of dollars each year. Some funds advertise.

their immigration status. They were looking for a path to citizenship in some cases and they were exploited by a lawyer and sometimes staff. There was a language barrier.” Locher added, “We tried to help restore confidence—to show we are a nation of laws.”

The Nebraska Client Assistance Fund is administered by the NSBA on behalf of the court. Three NSBA staff members spend a small fraction of their time on fund business. NSBA Executive Director Liz Neeley provides resources to the Board. Director of Administration Nancy Harms handles initial claims, prepares information for the Board, sends out requests for additional information, informs claimants on the status of their claims and makes payouts. Nebraska Lawyers Assistance Program Director Chris Aupperle also assists the Board. The Board works closely with the Counsel for Discipline. All claimants are required to file a complaint with the Counsel. This helps protect future clients. The Counsel for Discipline often refers clients to the Fund to seek restitution. The Counsel also weeds out a lot of complaints that don’t fit fund guidelines.

As a journalist I don’t usually insert my opinion in a story but I’m going to make an exception. I have been a lay member of the Client Assistance Fund Board for sixteen years. I have been very impressed with the lawyers serving on this Board. They often put in hours and hours of work to get to the bottom of a claim. I’ve seen them pore over volumes of confusing and inadequate financial records. These lawyers don’t do it for any personal gain. They do it to help the little guy. They do it to protect the reputation of their profession.

Omaha attorney Thomas Locher of Locher Pavelka Dostal Braddy and Hammes, LLC, has served several terms on the Client Assistance Fund Board. Locher says client protection funds are unique to the legal profession. Locher stresses, “There is no mandate for this fund. It shows we want to do what we can to help people. We don’t have to do it.” Locher says the Fund works. He cites a period when there was what he called a “very vulnerable” population. There were a number of cases involving immigrants who gave money to a couple of lawyers. The lawyers did little or no work on their cases. Locher said, “They (the clients) were looking to improve

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Most of the claims that come before the Board are for relatively smalls amounts of money. Clients probably wouldn’t hire a lawyer and go to court to recover these claims. But NSBA Staff member Chris Aupperle says, “That $500 or $5,000 loss could mean the world to someone. It could be their life savings and be the difference between paying the mortgage or putting food on the table.” Chief Justice Heavican summed up the Fund’s mission this way. “The legal profession is built on the concepts of truth and honesty. People need to know they can depend on their individual lawyers and the profession in general. We must maintain the utmost integrity.” The Chief Justice added, “I hope over the years the Client Assistance Fund has helped protect the reputation of the legal profession in Nebraska.” More information, rules and application can be found at www. nebar.com/page/CAF.

JANUARY/FEBRUARY 2019

NSBA NEWS

Casemaker4: New and Improved, Yet Reassuringly Familiar by Norman Woolworth

Editor’s Note: At the time this article was written, Casemaker4 was still in beta testing. As a result, it is possible that features described or shown may have been modified slightly in the final version of the new platform’s release. In January, Nebraska State Bar Association members will be introduced to Casemaker4, the next generation legal research platform from Casemaker. In creating Casemaker4, to which NSBA members will have free access, the Casemaker development team was presented with two overarching imperatives: • On the one hand, improve search speed, modernize the interface to enable more intuitive site navigation, and upgrade design responsiveness to better accommodate mobile devices.

Not every change to the new platform is visible to users. As McCade explained, Casemaker invested in significant “back end” enhancements. “We have upgraded our load balancing and database clustering technologies,” McCade said. “And then, along with hardware improvements, we’ve invested in our server operating system, and database and search engine software. The result is faster response time and greater platform stability.” In designing the new platform’s user interface, much thought was put into making the user experience not only more intuitive, but also more efficient. To that end, notable enhancements include:

• On the other hand, retain features and design elements that loyal Casemaker users value and trust, and minimize changes with the potential to disorient. Put another way: Make it new. Make it better. But avoid change for change’s sake. “The history of platform re-designs across various industries is littered with examples of solutions in search of problems,” said Dan McCade, Casemaker’s Chief Information Officer. “We were very conscious throughout the development process of only adding features that would matter to our users, and of not throwing out the baby with the bath water, so to speak.” Guided by several years of user feedback and incorporating refinements suggested through an extensive beta testing process, the team managed to achieve the desired balance, producing a new and improved platform that remains, nonetheless, reassuringly familiar. Casemaker4 features a clean and uncluttered layout, with all of the features NSBA members previously enjoyed, along with faster search speeds, better search filter tools, and new functionality such as type ahead searching. It is both W3C and ADA compliant and includes a much more responsive design for enhanced display on smaller devices.

• Moving the main navigation to the header area so there is no longer a need to return to the home page. • Enabling a search of anything from anywhere by including the jurisdiction selection menu on every page. In concert, the system automatically updates the search jurisdiction as the site is navigated, so that searching on just the content you are browsing remains the default. • Adding time-saving options to the Search Input box, including “Recent Searches,” “Search Tips,” “Advanced Search,” and predictive “Type Ahead” functionality. (see below)

Norman Woolworth Norman Woolworth joined Casemaker as Director of Marketing in the Spring of 2018. He is a seasoned veteran of the online legal research industry, having served in a variety of marketing leadership and general management roles during a nearly 20-year career at LexisNexis, most recently as the head of the company’s Federal Government market segment. THE NEBRASKA LAWYER

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NSBA NEWS • Adding Casemaker Digest (daily summaries of leading cases), Casemaker Libra (eBooks), CiteCheck and CLE Events to the main navigation for easier access, as well as the inclusion of links to Libra citing references where applicable. • A new Alerts feature that allows users to be notified of any new developments pertinent to a predefined topic based on a saved search or list of primary sources. • Incorporating intelligent algorithms to suggest related primary and secondary materials not previously displayed. • And much more! What’s not changing? The expert care and handling of legal content by editorial staff that has long distinguished Casemaker among low cost legal research providers, who tend to rely more heavily on algorithmic approaches to capturing and organizing legal content, with comparatively little to no human intervention. In a study circulated at last summer’s Annual Meeting of the American Association of Law Libraries, entitled “Database Evaluation: Drawing The Silken Thread,”* three highly respected Connecticut law librarians set out to objectively

evaluate seven legal research services by researching six topics. They performed identical searches on each service, and then assessed each result set against five pre-determined criteria. The study showed that Casemaker consistently returned more relevant results than other low cost services, that its content was more current, and that its citator, CaseCheck+®, was more precise and less cumbersome to use than other providers’ citation checking tools. In fact, Casemaker performed on a par with (and in some cases even surpassed) the leading high cost services across multiple points of comparison. As Casemaker Chief Operating Officer Sarah Gorman said at the time, “These results are truly gratifying. Our editors take great pride in their work and here we can see that the human touch really does make a difference.” Soon, as a NSBA member, you can have the best of both worlds: a much-improved platform with state-of-the-art functionality, and content you can continue to rely on with confidence. *The full study may be found at http://casemakerlegal.com/pdf/ public/database-comparision.pdf.

2019 NSBA Election Notices Nominations for NSBA President-Elect Designate The nominee for President-Elect Designate for 2021-2022 will be selected from the members who reside in Lancaster county. If you are interested in serving, please send your name and a short statement of interest (300 words) to Liz Neeley, NSBA Executive Director, at lneeley@nebar.com, no later than March 22, 2019. The Executive Council will meet at the end of March to nominate one individual for the position of President-Elect Designate. When the nominee has been selected by the Executive Council, an announcement will be disseminated to all active members of the NSBA. Any member from the designated counties may submit a petition (signed by 25 active bar members) to run against the nominee of the Executive Council. If no petition is filed within 30 days of the announcement of the nominee, he or she is declared as President-Elect Designate for 2021-2022. If a petition is filed, electronic ballots will be sent. This is a four-year term. The PresidentElect Designate automatically succeeds to the position of President-elect, and then President. They then serve on the Executive Council for a year as Past President.

NSBA Executive Council- 2nd and 3rd Districts Notifications and petitions will be sent to the 2nd and 3rd Supreme Court Districts on April 26, 2019, for the Executive Council vacancies. The deadline for returning a petition will be May 31, 2019. Executive Council terms are four years.

House of Delegates- Odd Numbered Districts (1, 3, 5 ,7 ,9, and 11) Notifications and petitions will be sent to the odd numbered District Court Districts on April 26, 2019, for elections for the NSBA House of Delegates. The deadline for returning a petition will be May 31, 2019. House of Delegates terms are four years.

Electronic Elections In October of 2016, the NSBA’s House of Delegates amended the NSBA By-Laws to allow for electronic elections. The 2019 elections for President-Elect Designate, Executive Council and House of Delegates will be conducted electronically. Electronic ballots will be disseminated on July 2, 2019. THE NEBRASKA LAWYER

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Hon. Chad Brown

Hon. Nathan Cox

Douglas County Separate Juvenile Court

District Court, 2nd Judicial District

Before I became a judge, I wish I had known... How to be a better legal writer. Oh, and to be able to solve a Rubik's Cube.

Before I became a judge, I wish I had known... That the great question of life, the universe and everything is indeed 42.

What is the best career advice you have received? “Attitude + Effort = Everything.” “Attitude” and “Effort” are controlled by us...if you have great attitude and give 100% effort, “Everything” is attainable!

What is the best career advice you have received? "Life moves pretty fast. If you don't stop and look around once in a while, you could miss it."

What kind of legal matter do you find most rewarding or personally satisfying and why? Juvenile Court Cases in general. The ability to help families and young adults be successful is the ultimate reward. What experiences have prepared you for being a judge? Coaching youth sports for 20+ years is probably the biggest one I can think of. You have to learn to find what motivates 12 different kids and then work with them to achieve one common goal on the field. What do you do for fun? Coach youth baseball and basketball in the metro area. I also love to watch my kids in all their various extra-curricular activities. If you weren’t a judge/lawyer, what would you be and why? A Chef. A great meal is the summary of an equation that factors in preparation, hard work, knowledge and a little bit of trial and error. When its perfect, it's a work of art!

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What kind of legal matter do you find most rewarding or personally satisfying and why? Domestic cases in which the parties are able to work with their attorneys and focus on the best interest of their children even when the final decision for their children isn't necessarily what they want for themselves. What experiences have prepared you for being a judge? Years of trials as well as years of resolving cases without trials. What do you do for fun? Spend time with my wife, children and grandchildren. I love them and they are some of the funniest people I know. If you weren’t a judge/lawyer, what would you be and why? A movie critic. I really love the humanity that comes out through movies, even though it is never as weird as real life.

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Hon. Joseph Dalton

Hon. John Freudenberg

County Court, 3rd Judicial District

Nebraska Supreme Court, 6th Judicial District

Before I became a judge, I wish I had known... That it is a very rewarding job!

What is the best career advice you have received? Work hard in whatever you choose to do, keep your word and always be aware of opportunities when they present themselves.

What is the best career advice you have received? Never give up. What kind of legal matter do you find most rewarding or personally satisfying and why? Having children adopted after their parents' parental rights had been relinquished or terminated. These children have gone through so much and they all deserve to have a loving home and an opportunity to be successful. What experiences have prepared you for being a judge? My diverse legal and community service experiences. Also, Dana and I have raised 3 boys! What do you do for fun? Spend time with my wife and 3 sons and their wives/fiancé. If you weren’t a judge/lawyer, what would you be and why? I would be in the landscaping business. I enjoy working with plants and trees and being outside.

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What experiences have prepared you for being a judge? Before becoming a member of the Supreme Court, I was an elected county attorney, partner with a private law firm, the Criminal Bureau Chief for the Nebraska Attorney General's Office and a County Court Judge. Each of these positions helped me understand the importance of fairly and impartially applying the law to a wide variety of difficult factual situations. What do you do for fun? I enjoy coaching youth sports and traveling. If you weren’t a judge/lawyer, what would you be and why? Prior to switching to pre-law in college, I was pursuing an engineering degree.

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Hon. Andrew Lange

Hon. Tina M. Marroquin

County Court, 5th Judicial District

District Court, 5th Judicial District

What is the best career advice you have received? Be prepared. Be open-minded. Be yourself.

Before I became a judge, I wish I had known... What judges really need to know from attorneys at a hearing.

What kind of legal matter do you find most rewarding or personally satisfying and why? I'm most satisfied when all the parties understand the process, have a chance to voice their positions, and accept the result as being fair and based on the law.

What is the best career advice you have received? The Honorable Mary Gilbride told me when I took the bench to be courteous and predictable, and if you do that, even if you get the law wrong, you will still be respected.

What experiences have prepared you for being a judge? Prior to becoming a judge, I spent the great majority of my time in the courtroom as a prosecutor. What do you do for fun? I enjoy cheering on my daughters at their numerous activities, traveling, watching a movie or concert with my wife, hanging out with friends, and following the Cubs. If you werenâ&#x20AC;&#x2122;t a judge/lawyer, what would you be and why? I've taught legal courses before; and I found that to be rewarding. I think I'd return to that, if they'd have me.

What kind of legal matter do you find most rewarding or personally satisfying and why? One of the most rewarding experiences I have had is watching people enrolled in Drug Court programs graduate successfully. I hope to begin this type of program in the counties I am currently serving. What experiences have prepared you for being a judge? Spending many years in front of numerous judges has helped me tremendously. I hope to emulate the demeanor of those judges that I have enjoyed practicing in front of. What do you do for fun? I enjoy spending time with my husband and daughter, shopping, exercising, eating out, and if I can re-organize a closet or cupboard I am a very happy person! If you werenâ&#x20AC;&#x2122;t a judge/lawyer, what would you be and why? I would be a Jazzercise instructor on a cruise ship. I could do what I love to do for exercise and see the world at the same time. This may be my retirement job!

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JANUARY/FEBRUARY 2019

Hon. James Masteller

Hon. Jonathan Papik

District Court, 4th Judicial District

Nebraska Supreme Court, 4th Judicial District

Before I became a judge, I wish I had known... I wish I had known how important it is to read ALL the Nebraska appellate decisions, not just the ones in my primary area of practice.

What is the best career advice you have received? I can't attribute the advice to any one person, but many people have imparted to me the importance of civility. I think that attribute is especially important in the legal profession.

What is the best career advice you have received? Your integrity is more important than any individual case. What kind of legal matter do you find most rewarding or personally satisfying and why? I especially enjoy those legal matters in which people's lives are positively impacted through their interaction with the court system. What experiences have prepared you for being a judge? As a Deputy County Attorney, I spent a lot of time in the courtroom learning from judges, opposing counsel, and from my own mistakes. What do you do for fun? I love to read and play the occasional video game.

What kind of legal matter do you find most rewarding or personally satisfying and why? I enjoy wrestling with complex legal issues and then trying to explain the resolution of those issues in an easily understood manner. I find this work rewarding because I enjoy the challenge, and hopefully, it is also helpful to other judges and the bar. What experiences have prepared you for being a judge? I had the opportunity to clerk for two appellate judges from whom I learned a lot about judging and the law. I also learned a lot from the lawyers with whom I worked prior to being appointed to the bench. What do you do for fun? Spend time with my wife and three kids. I also enjoy reading, running, and watching and playing basketball.

If you werenâ&#x20AC;&#x2122;t a judge/lawyer, what would you be and why? A firefighter. What's not to like about being a firefighter?

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JANUARY/FEBRUARY 2019

Volunteer Lawyers Project Pro Bono Legal Service: Increase Your Reach in 2019

by Laurie Heer Dale and Carol Cleaver, Volunteer Lawyers Project

As we look toward 2019, legal needs in Nebraska will continue to surpass the number of attorneys able to serve them. More than 300,000 low-income Nebraskans are eligible for free legal services. Although Nebraska lawyers have a longstanding commitment to give back to the community through pro bono service, individual legal needs continue to be greater than the number of available volunteers. Doing pro bono work is on the mind of most lawyers and law firms. The American Bar Association recommends that lawyers aspire to render at least 50 hours of pro bono legal services each year. Many lawyers and law firms fulfill this aspirational goal every year. For others, time always challenges the best intentions. There is good news for lawyers wanting to do pro bono work this year. VLP programs and co-sponsored events are designed to help every lawyer do pro bono work. Many cases available for limited scope and extended representation are uncontested. Nebraska Free Legal Answers, a virtual legal clinic, allows lawyers to do pro bono anytime and anywhere the lawyer has Internet access. Self-Help Centers offer the opportunity to meet with walk-in visitors a few hours a month. Special walk-in clinics, such as those noted below, allow lawyers to earn CLE credit, network with other lawyers and do pro bono work as a team. They are a popular option among new and corporate attorneys. A trial is never an ideal situation and is even more daunting for the self-represented litigant. Volunteering can bring hope and encouragement during a challenging time. When you represent someone who would otherwise go unrepresented, you provide a valuable service to the client, the courts, the community, and the legal profession. Volunteers are essential to providing equal access to justice. Visit the new VLP Website at www.NeVLP.org or contact Laurie Heer Dale at lheerdale@nevlp.org to learn how you can add pro bono work into your busy schedule. Let us help you increase your reach in 2019.

Lawyers in the City (October 26, 2018) Lawyers in the City is a one-day legal clinic where volunteers meet with walk-in visitors from the community to

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provide brief advice; referrals to a legal aid service provider; and give self-help forms, brochures, and other helpful resources. This was a collaborative event with VLP, Creighton University School of Law Legal Clinic, Immigrant Legal Center, Legal Aid of Nebraska, Midlands Bar Association, Omaha Bar Association, Womenâ&#x20AC;&#x2122;s Center for Advancement, the Nebraska Commission for the Deaf and Hard of Hearing and students from Metropolitan Community College and Doane University. During this event, a free one-hour ethics CLE was offered to volunteers. That day, 58 walk-in visitors were provided quality limited legal representation by 21 volunteer attorneys, 7 law students, 1 paralegal, 7 paralegal students and 2 certified American Sign Language interpreters. The event was held at the South Omaha Campus, Metropolitan Community College and will occur again in 2019. Contact Laurie Heer Dale at VLP@nevlp.org or (402) 475-7091 for more information.

Legal Aid of Nebraska Set-Aside and Record Sealing Clinic (November 3, 2018) The Set-Aside and Record Sealing Clinic is an event where volunteers meet with visitors from the community to provide limited legal representation in setting aside and sealing criminal records. This was a collaborative event with Legal Aid of Nebraska, Creighton University School of Law and Family First Call to Action. Attorneys from the Omaha City Prosecutorâ&#x20AC;&#x2122;s Office were on site to review requests for setasides and record sealings. During the event, 23 pre-registered visitors were provided quality legal representation by 14 volunteer attorneys, 6 law students and 6 paralegals. Since that date, 22 set-aside pleadings have been filed and 8 records have been sealed. The event was held in North Omaha and will occur again in 2019. For more information, contact Muirne Heaney at mheaney@legalaidofnebraska.org or (402) 348-1069. To learn more about pro bono opportunities with Legal Aid of Nebraska, contact Christine Stolarskyj at cstolarskyj@ legalaidofnebraska.org.

JANUARY/FEBRUARY 2019

Volunteer Lawyers Project Here’s what volunteers are saying about their pro bono experiences. Are you ready to join them? Pro bono work - and participating in legal clinics specifically - is important to me because it is a great way to give back to the community. There is a large segment of the population that does not have ready access to legal services. By giving a few days per year to pro bono work and volunteerism, I feel like I am at least helping bridge that gap. – Eric Adams I have found that, for the most part, what the people you see need is someone to help them understand where they are in the legal system and what they need to do to navigate it. They are so grateful to get this basic information; and, all it requires is you give a little time. – David Blagg I decided it was time to give back to the Omaha legal community by doing some pro bono service. I am a corporate lawyer; so, Lawyers in the City was a good avenue for me to “get my feet wet” since I would be paired with at least one lawyer/paralegal who had been through the process already. VLP did a great job in coordinating and had a lot of material to reference. I enjoyed it and will definitely keep on volunteering. – Denise Hill

Working as in-house for a large company, it can be challenging to see how your day-to-day work has impact on an individual level. With pro bono work, you can see exactly who is benefitting from just a little bit of your time; and, often clients share with you exactly what impact your services have on their lives. In addition, my employer’s vision is to create economic opportunity for every member of the global workforce. Employees are strongly encouraged to participate in pro bono work; and, the Set-Aside and Sealing Clinic aligned perfectly with its vision. Many clients cited their records as an impediment to obtaining employment; and, helping set-aside or seal records will hopefully allow them access to new or higher quality jobs, which can truly be life changing. – Molly Mazour Providing pro bono legal services to individuals without the means to obtain representation is a very rewarding experience. Being able to help even a small percentage of those individuals ensures that a greater number of Nebraska residents have access to justice, which is a crucial need in our state and nationwide. For me, it is truly gratifying to know that we, as attorneys, have the ability to impact others by simply taking the time out of our schedules to share our knowledge with those who need it. – Brock Pohlmeier

Joshua R. Woolf and Abigail Johnson, Lawyers in the City Growing up, I was taught that when you are in the service of your fellow beings, you are in the service of your God. Because of this, I feel that pro bono work is a way I can use my talents and knowledge to help others who haven’t been as fortunate as me. I find pro bono work to be very rewarding, as you know the help you are providing is changing people’s lives. – Alan D. Leidig (Law Student) I choose to participate in pro bono services because it is the right thing to do. It helps me engage with my community. It broadens my knowledge from listening to people and finding the appropriate resources and tools for them. – Peng Li

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Nicole Albers (Paralegal), David A. Blagg and Denise A. Hill, Lawyers in the City

I do pro bono work because people really need help and at times are without the resources to obtain that help. If we don't, who will? – Judith Wells I feel incredibly lucky to be in a position where I have something to give back to my community. I feel it is my duty as someone who has the particular training and education required to navigate the complex legal system to give some of that back to individuals who cannot do that themselves and who are unable to procure legal help. In addition to the feeling of duty, it also just feels good to be able to give something back and have someone walk away from our interaction with their life, hopefully, a little better having found some answers. – Joshua R. Woolf

JANUARY/FEBRUARY 2019

Volunteer Lawyers Project Here’s what attendees had to say about the events. you ready to help them?

Are

“Jason Stapelman was an awesome attorney to work with. He did a great job of getting questions answered and had no problems with seeking guidance to ensure things were handled in a proper fashion. It was a pleasure to work with him and I thank Jason and Legal Aid for the assistance. This was an eye-opening experience and a greatly needed service to the community.”

“I am very satisfied with the legal services I received from John Rogers and William Heaton. They were very personable and amazing! I would recommend Lawyers in the City to others. The attorneys there will take care of you!”

Molly Mazour, Jen Muller (Paralegal), Emily McElravy, Jennifer Racine, Jason Stapelman, Eric Adams, Dan Fried (Paralegal), Matt Breuning, Set-Aside and Record Sealing Clinic

Matt Breuning, Eric Adams, Jason Stapelman, Jerrell Norman (Law Student), Talia Hughes (Paralegal), Phil Martin, Alan Leidig (Law Student), Hattie Miller (Law Student), Lisa Sexton (Paralegal), Matt Kuhse, Bridget DeLeo (Paralegal), Jennifer Racine, Jen Muller (Paralegal), Laurie Heer Dale, Jen Gaughan, Kate Mahern, Ellen Prochaska (Law Student), Alex Clark, Emily McElravy, Muirne Heaney, Pastor Tony Sanders, Kaitlin Logan Wimmer (Law Student), Oscar Aguilar (Law Student), April Kirkendall, Set-Aside and Record Sealing Clinic

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Volunteer Lawyers Project VLP extends its appreciation to the lawyers, law students, paralegals and college students who volunteered OctoberNovember 2018. Thank you for your service.

Pro Bono Cases Kelly Davis, Omaha Julie Fowler, Omaha

Michelle J. Oldham, Hastings Sally A. Rasmussen, Lincoln

Self Help Centers Buffalo Melodie T. Bellamy, Coordinator Jack W. Bessee Elizabeth J. Chrisp Nicholas J. Ridgeway Thomas W. Tye II Douglas Christina Thornton, Coordinator Angela L. Burmeister James F. Busse Katelyn Cherney Kelly R. Davis Joseph S. Dreesen Michael J. Haller, Jr. Karisa D. Johnson Kendall K. Krajicek Catherine “Kate” Mahern Christopher A. Mihalo Hon. Patrick McDermott, ret. Michael P. Moran David J. Myers Melany O’Brien Ralph E. Peppard Justin A. Quinn Alan C. Schroeder

Judith A. Schweikart Karine E. Sokpoh David D. Sommers J.G. “Gerry” Sullivan Hon. Stephen M. Swartz, ret. Kenneth M. Wentz III Hall Shawn J. Farritor, Coordinator Grady C. Erickson Stacie A. Goding Jennifer D. Kearney Charles Maser Erin M. Urbom

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Students Mae Adkins Brianna Jackson Shelby Logan Brooke Loweis Dak Thon Naomi Wellman Maren Westra

Paralegal Nicole Albers

Sign Language Interpreters Teresa Hevner Jenny Corum

Nebraska Free Legal Answers New Registrations Sydney C. Aase, Lincoln

Kory L. Quandt, Omaha Kent A. Schroeder, Kearney

Limited Legal Service Angela L. Burmeister, Omaha Larry W. Beucke, Kearney Carla J. DeVelder, Omaha Quinn R. Eaton, Omaha Timothy R. Engler, Lincoln Michael J. Haller Jr., Omaha

Kent A. Schroeder, Kearney Peter J. Sitzmann, Lincoln Rachael A. Smith, Omaha Ryan P. Sullivan, Lincoln Richard W. Tast, Lincoln Christina L. Usher, Lincoln

Legal Services Committee Madison Ryan J. Stover, Coordinator Joel E. Carlson Dennis W. Collins Alexander Gansebom Christopher A. German

The following law students were appointed to the Committee: Alexander Kelly, Creighton University School of Law Ella Newell, University of Nebraska College of Law Ellen Prochaska, Creighton University School of Law

Legal Aid of Nebraska Set-Aside and Record Sealing Clinic, Omaha, November 3 Attorneys Eric Adams Matt Breuning Alex Clark Makayla Danner Jen Gaughan Muirne Heaney Laurie Heer Dale April Kirkendall Matthew M. Kuhse Kate Mahern Phil Martin Molly Mazour Emily Z. McElravy Jennifer Racine Jason L. Stapelman Christine Stolarskyj

Scotts Bluff Stacy C. Bach, Coordinator Jonas Longoria Astrid Mumm Libby Stobel

Lawyers in the City, Omaha, October 26 Attorneys David A. Blagg Mindy Rush-Chipman Caitlin J. Ellis Amanda J. Fray Ross M. Gardner William P. Heaston Denise A. Hill Abigail Johnson Peng Li Catherine “Kate” Mahern

Law Students Zach Bieber Jessica Gilgor Callie Kanthack Daniel McDowell Kali Roundy Regina Ann Smith Lauren Suchan

Christopher A. Mihalo Patrick M. Patino Ralph E. Peppard Brock J. Pohlmeier Kory L. Quandt John T. Rogers Judith A. Schweikart Karine E. Sokpoh Judith A. Wells Kenneth M. Wentz III Joshua R. Woolf 71

Law Students Oscar Aguilar Alan Leidig Kaitlin Logan Wimmer Hattie Miller Jerrell Norman Ellen Prochaska Paralegals Bridget DeLeo Dan Fried Talia Hughes Jen Muller Lisa Sexton Susan Willis

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nsba section connection

Tops in Trivia Impress your colleagues with your command of trivia at the 2019 Trivia Night from 6-8 pm, Friday, March 15. Teams will compete for trivia bragging rights while enjoying appetizers and beverages. The event is moving to a new location this year: Cunningham’s Pub and Grill at 10904 W Dodge Rd in Omaha. Trivia Night is co-sponsored by the NSBA Corporate Counsel, Real Estate, Probate & Trust Law and Young Lawyers Sections. Proceeds for the fundraiser benefit the Nebraska Lawyers Foundation. Details and team entry forms are on the NSBA website and elsewhere in this issue.

Never Too Late It’s not too late to join an NSBA section, even if you’ve already paid your voluntary NSBA dues for the year. Most of the 31 NSBA sections are planning CLE seminars, networking, and other events for 2019. Any voluntary dues-payer may join a section at any time on the NSBA website or by contacting the NSBA office. Need more information about a section? Contact NSBA Section Facilitator Lorrie Benson at lbenson@ nebar.com or 402-475-7091.

The NSBA Federal Law and Appellate Practice Sections were two of the co-sponsors for a presentation on lessons learned from practicing before Judge Laurie Smith Camp. The presentation was part of a seminar in conjunction with a reception honoring the Judge as she assumed senior status. Pictured here are Catherine Cano, Chair of the NSBA Federal Law Section, and Danny Leavitt, outgoing Co-chair of the NSBA Appellate Practice Section.

The Law Practice Management Section offered an informal discussion on year-end tax planning hosted by Frankel Zacharia, an accounting firm in Omaha. Attendees for the one-hour session over lunch included Gene Eckel, Susan Reff (Section Chair), Tracy Hightower-Henne, Aimee Cizek and Dan Gilg.

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SECTION CONNECTION

The NSBA Corporate Counsel Section offers periodic informal lunch discussions in Omaha and Lincoln. Attending the recent Lincoln lunch were John Adams, Nate Green, Derek Zimmerman and Andrea Snowden. Section member Kris Maples provided a primer on internal investigations.

Judge John Gerrard, Patricia Kiscoan, Jeff Thomas, Karen Keeler, Judge Laurie Smith Camp, Rob Stark, Susan Lehr, and Danny Leavitt spoke at a special CLE seminar and reception honoring Judge Smith Camp as she assumed senior judge status. The seminar included the NSBA Federal Law and Appellate Practice Sections among the co-sponsors.

NSBA’s Professional Networking Group • 2 groups – Omaha and Lincoln • Be randomly matched with lawyers for coffee or lunch at your mutual convenience 6 times during the year • An enjoyable way to build your professional network and hone your networking skills More details at www.nebar.com/NetWORKS THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

manual maven Manual Maven

features an excerpt from a practice manual currentl y available from the online NSBA Store. See what’s available at nebar.com/store!

From Nebraska Civil Practice and Procedure Manual (2016), “Summary Judgment Motions,” by Renee Eveland:

You may also wish to consider whether a cross-motion for summary judgment is warranted when an opposing party files a motion for summary judgment against your client. Cross-motions should be filed when you agree that the material facts are undisputed, but believe that the undisputed facts actually support your theory or defense of the case. By contrast, if you intend to oppose a motion for summary judgment on the basis that the material facts are in dispute, you should not file a cross-motion, but should simply oppose the filed motion and illustrate how the material facts are in dispute and, therefore, such disputes must be decided at trial. (125).

NSBA Publications

2016 Nebraska Civil Practice & Procedure Manual

The Civil Practice and Procedure Manual covers all aspects of civil practice from case analysis through appeals.

See the NSBA Store for more details, tables of contents, or to order online: www.nebar.com/store

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy)

2016 Appellate Practice Handbook

The Appellate Practice Handbook includes: civil and criminal appeals generally; motion practice in the Nebraska Supreme Court and Court of Appeals; special appeals topics such as juvenile, eminent domain, administrative, probate, workers’ compensation, bankruptcy, poverty; and federal appeals topics.

Nebraska Evidence Handbook

Voluntary Dues-Paying Member Discounted Price: $40 (electronic) $60 (print copy)

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy)

Planning for Your Unexpected Absence, Disability or Death

2017 Nebraska Real Estate Practice Manual

The Nebraska Real Estate Practice Manual, commonly called the Red Book, has been completely updated. The three volume, 2,000 page manual includes detailed discussions on buying, financing, leasing, and selling commercial, residential and agricultural real estate and primers on many special topics.

This manual outlines how to prepare for the unexpected and what to do if you’re the lawyer who steps in to another’s practice. It provides a detailed discussion of the ethical and practical issues related to closing files and contacting clients.

$25 (electronic)

Voluntary Dues-Paying Member Discounted Price: $285 (electronic) $345 (print copy)

$35 (print copy)

Understanding Adoption Procedures in Nebraska

This manual includes detailed instructions and forms for every aspect of adoption practice.

2018 Nebraska Probate Manual

The 2018 Nebraska Probate Manual is a complete review and update of the probate process from the initial engagement through the final distribution and estate closing.

Voluntary Dues-Paying Member Discounted Price: $95 (electronic) $110 (print copy)

Nebraska Criminal Offense Penalties List

Voluntary Dues-Paying Member Discounted Price: $190 (electronic) $230 (print copy)

The Nebraska Criminal Offense Penalties List is created and maintained by University of Nebraska Law Professor Steven J. Schmidt and includes: felony penalties, habitual criminal sentencing enhancement and more misdemeanor and infraction penalties.

Closing A Practice

This manual addresses process steps and considerations, including ethical issues, for a lawyer voluntarily closing a practice.

$25 (electronic)

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Updated! The Nebraska Evidence Handbook includes the Nebraska Evidence Rules with cases that apply and/or interpret the rules. (Cases updated through June 2018)

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2013 Real Estate Title Standards $10 (electronic) THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

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March 15, 2019 Cunningham’s Pub and Grill 10904 W Dodge Rd., Omaha 6:00 pm - 8:00 pm Appetizers & cocktails provided.

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Proceeds benefit the Nebraska Lawyers Foundation Firm/Company Name:___________________________________________________________________ Number of team members (*maximum of 6 members per team): ________ 1. Team Captain:___________________________

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Team Captain’s Phone:__________________________________________________________________ Team Captain’s Email:___________________________________________________________________ I can not attend but would like to make a donation to The Nebraska Lawyers Foundation: $____________ _____ Check enclosed OR Charge to _____ MasterCard ______ Visa ______ Discover ______ AMEX Amount enclosed or to be charged ($50 per team member): $____________ Card number: _____________________________ Card Expiration (Mo/Yr):_______ CVV Code:________ Name as it appears on credit card: ________________________________________________________ Credit card billing address: _______________________________________________________________ City: ___________________________________________ State: __________________ Zip: __________ Signature: ____________________________________________________________________________ Make checks payable to Nebraska Lawyers Foundation. Return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or Sam Clinch at sclinch@nebar.com. THE NEBRASKA LAWYER

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Upcoming CLE Programs NSBA-Produced Seminars January 16 Personal Resilience and the Workplace Hruska Law Center, Lincoln Live - NE #166743 Webcast - NE #166742 1 CLE ethics hour January 31 Blue Cross Blue Shield Wellness CLE Hruska Law Center, Lincoln *2-Hour Free Ethics Member Benefit* February 21 Identillect Webinar *2-Hour Free Ethics Member Benefit* March 15 YLS Best Practices Seminar Creighton University School of Law, Omaha

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March 22 2019 Annual Estate Planning & Probate Seminar Nebraska Innovation Campus, Lincoln

July 10-14 2019 Advanced Estate Planning Institute Estes Park, CO

May 3 2019 Annual Family Law Seminar Scott Conference Center, Omaha

September 6 2019 Nebraska Diversity Summit Creighton University â&#x20AC;&#x201C; Harper Center, Omaha

May 9-10 2019 Bankruptcy Section Seminar Embassy Suites, La Vista

September 13 2019 Annual Real Estate Institute Embassy Suites, La Vista

June 14 2019 Labor Relations & Employment Seminar Kutak Rock, Omaha

October 8-11 2019 NSBA Annual Meeting Embassy Suites, La Vista

June 21 2019 Government & Administrative Practice Seminar University of Nebraska College of Law, Lincoln

December 12 Gain the Edge! Negotiations Strategies for Lawyers Embassy Suites, La Vista New seminars are added to this list weekly. Visit the NSBA Calendar at www.nebar.com for the most up-to-date listing of seminars being offered.

JANUARY/FEBRUARY 2019

Hon. Matthew L. Acton 3rd Judicial District

Joseph J. Donnelly Berry Law Firm

Joel Oster Comedian of Law LLC

Chris Aupperle Nebraska Lawyers Assistance Program

Hon. James Doyle, IV 11th Judicial District

Hon. Tim Baland (retired)

Howard Epstein The Jewish Federation of Omaha Foundation

Hon. Robert R. Otte 3rd Judicial District Kelsey J. Paumer Prentiss Grant, Attorneys at Law

Nick B. Batter Hawkins Construction Company Todd D. Bennett Rehm, Bennett, Moore, Rehm & Ockander, PC LLO

John Federico Affinity Consulting Group, LLC Jeremy T. Fitzpatrick Kutak Rock LLP

Lorrie Benson Nebraska State Bar Association

Jonathan L. Grob McGrath North Mullin & Kratz, PC LLO

Jonathan Braaten Anderson Creager Wittstruck, PC LLO

Jerusha L. Hancock Berry Law Firm

Nathan T. Burkman Koley Jessen, PC, LLO

Brenda Johnson Crete Carrier Corporation

Catherine A. Cano Jackson Lewis, PC

Dallas D. Jones Baylor Evnen, LLP

Sean Carter Humorist at Law

Suzanne D. Kaufman-McNamara Berry Law Firm

Jennifer Caswell Baylor Evnen, LLP

Karen M. Keeler Union Pacific Railroad

Matthew Dake Wertz, Dake & Anderson

Patricia O. Kiscoan Union Pacific Railroad

Matt Darling Omaha Community Foundation

John Kuhnlein, MD Medix Occupational Health Services

Jake DeNell Lincoln Orthopedic Physical Therapy

Jane Langan Mach Rembolt Ludtke LLP Marty E. Latz Latz Negotiation Susan T. Lehr U.S. Attorney’s Office David A. Lopez Nebraska Attorney General’s Office

CLE Faculty

November - December 2018

Ann C. Mangiameli Legal Aid of Nebraska Stephanie A. Mattoon Baird Holm, LLP Professor Paul McGreal Creighton University School of Law

!r time U O Y K u N ring yo

Ation for voluntee E programs. H T a i c e BA's CL appr

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Hon. Kevin R. McManaman 3rd Judicial District David Miers, PhD Bryan Medical Center Jerry M. O’Doherty, CPA Seim Johnson LLP

Joel D. Pedersen Baird Holm, LLP Hon. C Jo Petersen 5th Judicial District Brynne Holsten Puhl Atwood Holsten Brown Deaver & Spier Law Firm, PC, LLO Jeffrey F. Putnam Law Offices of Jeffrey F. Putnam, PC, LLO Jane Yaffe Rowell Stricklett & Associates, Inc. Mark R. Scherer, PhD University of Nebraska-Omaha Professor Steven Schmidt University of Nebraska College of Law Dan Schweitzer National Association of Attorneys General’s Center for Supreme Court Advocacy Stacey A. Shadden McGrath North Mullin & Kratz, PC LLO Hon. James C. Stecker 5th Judicial District Meghan E. Stoppel Nebraska Attorney General’s Office Hon. Susan I. Strong 3rd Judicial District Daniel J. Thayer Thayer & Thayer, PC, LLO Jeffrey L. Thomas Office of the Federal Public Defender Hon. Steven Timm 1st Judicial District Richard D. Vroman Koley Jessen, PC, LLO Thomas M. Worthington McGrath North Mullin & Kratz, PC LLO John R. Wunder, PhD University of Nebraska-Lincoln Hon. Thomas E. Zimmerman 3rd Judicial District

JANUARY/FEBRUARY 2019

transitions

To submit a career change and/or relocation to the Transitions section of The Nebraska Lawyer, email your announcement to Amy Prenda, Editor, aprenda@nebar.com.

Career Changes.......................... ..........................and Relocations WOODS & AITKEN LLP is delighted to announce that ASHLEY H. DUGAN recently joined the firm’s Labor & Employment practice group. Ashley represents public and private employers in all areas of labor and employment law, focusing on preventative assistance and counseling. Ashley joins Ashley H. Woods & Aitken after clerking in the firm Dugan for two years. She also previously served as a Judicial Extern for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. She received her J.D. with highest distinction from the University of Nebraska College of Law, where she served as executive editor for the Nebraska Law Review and was named to the Order of the Coif. Ashley graduated summa cum laude from the University of Nebraska at Kearney with a bachelor’s degree in business administration. MATTHEW W. HARRIS joined CROKER, HUCK, KASHER, DEWITT, ANDERSON & GONDERINGER, L.L.C. in 2016 as a law clerk. Upon completion of the Nebraska bar examination, he became an associate attorney in September 2018. Matthew practices in the areas of corporate and business law, Matthew W. bankruptcy, real estate, and civil litigation. Harris He graduated with his Bachelor of Arts from the University of Nebraska, Lincoln in 2015 and received his Juris Doctor from the University of Nebraska College of Law in 2018. He is a member of the Omaha, Nebraska State and American Bar Associations. BALLEW HAZEN, PC, LLO is pleased to announce that ALYSON K. BISCEGLIA has joined the firm as an associate attorney. Alyson focuses her practice in the areas of family law, corporate and business law, and estate planning. Prior to joining the firm, she practiced corporate law and estate planning Alyson K. in Connecticut and then Omaha. Alyson Bisceglia is a native of Massachusetts, where her parents, Al and Kathy, still reside. She earned her Bachelor of Science in Accountancy from Bentley University in 2013, and her Juris Doctor from Quinnipiac University School of Law in 2016. During law school, Alyson served as Editor-in-Chief of THE NEBRASKA LAWYER

the Quinnipiac Health Law Journal. She will earn her Master of Laws (LL.M.) in Taxation from Boston University School of Law in 2019. Alyson resides in Lincoln with her fiancé, Brandon, and their dog, Charlotte. GOVIER, KATSKEE, SUING & MAXELL, PC, LLO is pleased to welcome three new attorneys to our growing team of legal professionals: ANDREW M. FERGUSON, KELLY R. DAVIS, and JACQUELYN E. WARREN. Pam Govier and her team from Govier & Milone, LLP merged with Benjamin Maxell and his firm of Katskee, Suing & Maxell, PC, LLO to form Govier, Katskee, Suing & Maxell, PC, LLO (“GKSM”) in January 2017. GKSM continues its expansion and is excited to announce the new additions to its diverse team. Andy is a Creighton University School of Law graduate. Having begun his career in Blair, Nebraska, Andy has lived and worked in Omaha for over 20 years. Andy’s primary practice area is in family law, but he also offers representation in civil litigation. Andy Andrew M. is dedicated to standing up for his clients and Ferguson providing the keen, effective advocacy they require throughout every phase of their case. Kelly is a University of Nebraska College of Law graduate who has over fifteen years of experience helping individuals and small and large businesses solve problems. Ms. Davis’ areas of practice are civil litigation, alternative dispute resolution, business and commercial Kelly R. Davis law, employment law, insurance defense and family law. Ms. Davis is particularly sensitive to clients who have modest needs, and offers Limited Scope Representation. Jacquelyn is an Omaha native who graduated from Creighton University School of law in 2016. Jacquelyn joined GKSM as an associate attorney in September 2018. The primary Jacquelyn E. focus of her practice is family law. Jacquelyn Warren diligently advocates for her clients’ interests, while also providing comfort during their difficult time.

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TRANSITIONS SARAH R. BARNHILL recently joined JACKSON LEWIS P.C. as an Associate in the firm's Omaha office. Ms. Barnhill focuses her practice on representing companies in employment-based immigration law matters. Throughout law school, Ms. Barnhill participated in public interest clinics where she proSarah R. vided pro bono legal services to low-income Barnhill clients. Based on her advocacy performance in the clinics, Ms. Barnhill was selected to argue before the Mississippi Court of Appeals on behalf of the Criminal Appeals Clinic during her third year. Ms. Barnhill earned her J.D. from the University Of Mississippi School of Law and her B.A. from Mississippi State University.

BRANDI J. YOSTEN, has established YOSTEN LAW, LLC in Albion, NE and will continue to serve clients in all surrounding communities. Brandi earned her law degree from the University of Nebraska College of Law in 2012 and received her B.S. in Political Science from the University of Nebraska Brandi J. Yosten at Omaha in 2009. She is a recent graduate of the Nebraska State Bar Leadership Academy (Class of 2018), a member of the Nebraska Criminal Defense Attorneys Association, a Young Lawyers Section Executive Committee Representative for the Fifth Judicial District and serves on the Nebraska State Bar’s Rural Practice committee.

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Questions? Contact Lorrie Benson at lbenson@nebar.com or (402) 475-7091

THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

TRANSITIONS AND AWARDS AND RECOGNITION HUSCH BLACKWELL announced three Omaha attorneys elected to the firm’s partnership, effective January 1, 2019. ADAM CHARLSEN, a nuts-and-bolts commercial real estate transaction attorney, Adam regularly advises retail, office and industrial clients on site acquisitions and leasing transitions, as well as related due diligence and development matters. He assists lenders and borrowers with negotiating and documenting loans and credit facilities with collateral consisting of personal property and Adam Charlsen real property. Adam also advises local government agencies on the gamut of governance issues. He also is active with the firm’s growing Opportunity Zones practice and startup business initiative. Adam earned his J.D. from University of Tulsa College of Law and his B.A. from University of Kansas. GRANT LEACH focuses his practice on export regulatory compliance, anti-bribery compliance, international trade and general corporate matters. His experience includes representing clients in proceedings with the Office of Foreign Assets Control (OFAC), Bureau of Industry and Security (BIS) and other regulatory bodies in connection with global commerce. He also assists clients in Grant Leach organizing their global operations and in structuring all manner of cross-border transactions. Grant earned his J.D. with high distinction from the University of Nebraska College of Law and his B.S. with highest distinction from Nebraska Wesleyan University. Prior to joining Husch Blackwell, Grant spent six years as in-house counsel for a publicly traded international agricultural equipment manufacturer. BRENT MEYER has extensive experience in construction contract drafting and litigation. He has represented government entities, owners, design firms, general contractors, suppliers and subcontractors in civil disputes. He also represents political subdivisions by assisting in a variety of issues including regulatory compliance, contract negotiations, Brent Meyer property acquisitions and condemnation. Brent earned his J.D. with distinction from the University of Nebraska College of Law and his B.S.B.A. summa cum laude from Creighton University.

Awards and Recognition American Bankruptcy Institute (ABI) announced that BRIAN KOENIG, Shareholder at KOLEY JESSEN, has been selected as one of its emerging leaders and honorees for its “40 Under 40” Initiative, which identifies 40 top industry professionals under the age of 40, for his excellence in corporate bankruptcy and Brian Koenig bankruptcy-related litigation. The “40 Under 40” winners, distinguished by professional achievements and service, were selected by experienced professionals from ABI's leadership. The winners were chosen from diverse practice areas such as law, finance, consulting, academia, government and more. More than 300 nominations were received. In Brian’s commercial bankruptcy and financially-distressed transactions practice, Brian counsels a variety of clients including creditors, debtors, bankruptcy trustees, creditor committees, and postbankruptcy investors, to help them evaluate risks, minimize their exposure, maximize their recoveries, structure transactions, and cost-effectively resolve issues. Brian also maintains a wideranging litigation practice focusing on high-stakes disputes. KOLEY JESSEN is pleased to announce that for the second year in a row, our Private Wealth Law practice has been ranked Band 1 by Chambers High Net Worth. This recognition by Chambers is determined by interviews with those active in the market, mainly clients, competitors, and other professional advisors with whom the firms work, as well as an assessment of recent work done. This year, only 4 law firms and 7 attorneys in Nebraska were ranked by Chambers. In addition to being ranked as a firm, three individual attorneys, KURT TJADEN, BRANDON HAMM, and ALEX WOLF, were accredited as notable practitioners by the publication.

Kurt Tjaden

Brandon Hamm

Alex Wolf

ERICKSON | SEDERSTROM is proud to announce that CORY R. WILSON, a 2018 Cum Laude graduate of Creighton University School of Law has joined the firm as an Associate specializing in litigation including construction law, workers compensation, property disputes property damage, personal injury, and commercial real estate. Prior to obtaining his law degree, Cory’s work in the oil and construction industries for several years provided him with experience valuable in his law practice. THE NEBRASKA LAWYER

JANUARY/FEBRUARY 2019

in memoriam

THOMAS E. HELLERICH, 71, of Windsor, passed away on December 9, 2018 at his home in Windsor, Colorado. He was born to William and Sylvia (Johnson) Hellerich on April 2, 1947 in Raymond, NE. Tom joined the US Army from August 1964 to May 1975. After the military, Tom attended Nebraska Thomas E. University, where he received his bachelor’s Hellerich Degree. He then attended and received his Law/ Jurisdiction Degree at Augusta, Georgia. He practiced law for 38 years in Greeley until the time of his death. Throughout those years, he served as a Municipal Judge in Johnstown and Eaton. In addition to his service in the municipalities of Johnstown and Eaton; Tom also supported the Greeley community in other ways, by serving on the board of the Chamber of Commerce for several years and being a member of the Optimist Club. Tom was married to Karen Hansen from 1970 until the time of her death in January 1993. Together, they had one daughter, Robin Hellerich, 36 years old. Tom enjoyed golf with family and friends and he especially loved his trip to Scotland where he played many rounds of golf in the rain. He had the thrill of attending two separate Master Tournaments at Hilton Head, SC. He loved watching College football and was a loyal fan of the Nebraska Cornhuskers. He also loved to run, Tom ran half marathons and the New York Marathon and many times you’d see him running the streets of Greeley before work in the mornings. Travel was a passion of Tom’s, always with family and friends. His favorite and most memorable trip was to the Holy Land in Israel. The Word of God came alive to Tom through this trip. Alaska was a recent destination for Tom and family and will be forever cherished in their hearts. Family was of utmost importance to Tom. He loved and adored his family, particularly his grandchildren. Tom is survived by his wife of 24 years, Joan Hellerich; children, Robin Hellerich, Royce and Jared Danford; 3 grandchildren; siblings, William Hellerich and Charles “Chuck” (Lisa) Hellerich. MILTON ALEXANDER MILLS, III, 97, of Osceola, NE, died July 16, 2018. Milton was born December 12, 1920 to Milton Alexander II and Florence (Lees) Mills in Osceola, NE. He graduated Osceola school in 1938, the University of Nebraska in 1942, received his degree from the College of Law (LLB) in 1947. Member of the Sigma Alpha Epsilon Fraternity and the Phi Delta Phi legal fraternity. Milton served during WWII April 16, 1942 until November 23, 1945 in the United States Navy as a naval aviator. On July 19, 1947 he was united in marriage to Dorothy Helen Gallup in Lincoln. In 1947 began his career practicing law with the family law firm THE NEBRASKA LAWYER

Mills and Mills in Osceola. He retired in 2008. Alex was a member of the United Methodist Church in Osceola, Masonic Lodge, Shrine Temple, American Legion, Nebraska State and American Bar Association, American Bar Foundation, and American College of Probate Council. He was Trustee of the State Bar Association, Executive Council State Bar Association for six years, President's Advisory Council to the University of Nebraska, Life member of NU Alumni Association, Polk County Veteran's Service Committee Officer and Osceola School Board. Alex enjoyed golfing, reading, serving his church and community, but mostly his family. Survivors include daughter, Christina Anne (Richard) Morgan of Larkspur, CO; two grandchildren, Jessica (Gerrit) Ostermick of Denver; Alex (Danielle) Morgan of Denver; three great-grandchildren Gavin, Evelyn, Avery, and one on the way; brother, John (Caroline) Mills of Greeley, CO; brother-in-law, Don (Marg) Gallup of Estes Park, CO; nieces, nephews and a host of other relatives and friends. He was preceded in death by his wife, Dorothy, who passed away April 19, 2014; son, Michael Alexander Mills; his parents; brothers, Robert (Peggy) Mills and Richard (Dorothy Jo) Mills. RANDALL V. PETERSEN, 63, passed away December 12, 2018. He was born to Verlen and Katherine (Larsen) Petersen. Randy had the honor and privilege of 35 years as partner in private practice with the distinguished Mattson, Ricketts Law Firm in Lincoln. His top priority was his family's happiness. His Randall V. favorite place outside of home was annual Petersen family vacations in Frisco, Colo. Randy is survived by his wife; Sandy, son; Ryan (Jennie), daughters: Lindsey (Mitch), Courtney, three grandchildren: Kaylin, Francine, Samira, brother; Jim (Lois), sisters: Judy (Jim), Susie (Marlin). HAROLD L. ROCK, one of the founders of the Kutak Rock law firm, died in Omaha on November 4, 2018 after a brief illness. He was 86. Along with Robert J. Kutak and William G. Campbell, Rock established the firm in Omaha on January 11, 1965. Over more than 50 years, the firm grew from its small Harold L. Rock beginning to a national firm with 18 offices and more than 540 lawyers. Rock married Marilyn Clark, a nurse, in 1954. The union produced six children: Michael, Susan, John, Patrick, Michele and Thomas. The Rocks’ children have given them 14 grandchildren. After graduating from Creighton University in 1954, Rock joined the U.S. Army

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IN MEMORIAM Infantry as an officer trainee, but within two years decided on a law career. He enrolled in Creighton University School of Law in 1956 and received his degree in 1959. Rock clerked for the Honorable Joseph W. Woodrough, Eighth Circuit Court of Appeals, from 1959 to 1960. He was an associate at the firm of Fitzgerald, Hamer, Brown & Leahy in Omaha for five years. In late 1964, Rock, Kutak and Campbell, who had been friends for years, agreed to open their own law practice—without a client to their name. In January 1965, they leased a small office on the sixth floor of the Omaha National Bank Building (now The Omaha Building) and hired a legal secretary. Members of the firm have long observed that the partnership was a blending of complementary temperaments. While Bob Kutak was a restless visionary and Bill Campbell was a hard-charging litigator, both of whom constantly pushed to expand the firm, Harold Rock’s more affable style provided the necessary ballast to their approaches. Rock’s charm, humor and benevolent manner also lifted morale in a demanding work environment. Kutak died in 1983 at the age of 50, and Campbell left the firm in 1992, leaving Rock as the sole link to the firm’s earliest days. He also became the caretaker of the cultural values that the founders articulated in their charter: a commitment to excellent service, mutual respect for all lawyers and staff, no discrimination in hiring and promotion, the enrichment of intellectual life within the firm, and support of projects that benefit society. Rock’s career embodied such cultural values. As a member of the American Bar Association, he served on the Board of Governors for several years in the 1990s, had three stints as a member of the House of Delegates, served on several committees and participated in various special forums. He was also a prominent figure in Omaha’s local legal community and the state bar association. At various times he was President of the Omaha Bar Association and the Nebraska State Bar Association, Director of the Nebraska State Bar Foundation and Chairman of the Nebraska Board of Bar Examiners. He also served as Chairman of the Nebraska Indigent Defense Task Force and President of the Omaha Legal Aid Society. In 2010 the Omaha Bar Association presented him with its Lifetime Achievement Award, citing his “exemplary service to the profession, support and service to the Omaha Bar Association, innovative contributions to improving justice, and longstanding commitment to mentoring in the law.” Rock served on the boards of numerous other law-related entities and on the boards of such charitable and civic organizations as the Public Service Challenge, the United Way of the Midlands, the Douglas County Historical Society, the Nebraska Shakespeare Festival and the Nebraska Humanities Council, among others. He was also Chairman Emeritus of the Robert J. Kutak Foundation. Longtime firm members recall the “anniversary memos” that Rock would send to the entire firm every January 11, a practice he started on the twenty-fifth anniversary in 1990 and kept up for many years. The memos of Father Harold, THE NEBRASKA LAWYER

as he came to be known within the firm, were short essays that expressed his sincere appreciation for the lawyers and staff members who were building on Kutak Rock’s hard-won reputation as an outstanding law firm. The memos included sparkling displays of Rock’s wry take on the world and cemented his longstanding status as a much beloved and unifying force at Kutak Rock. In addition to his wife, children and grandchildren, Rock is survived by his brothers, Tim and Richard. JERRY L. SNYDER passed away on December 5, 2018. He was born February 23, 1934 in Fairbury, NE, and graduated from Jefferson High School. Jerry married Ruthann Chirnside on August 8, 1953 (started dating each other at the age of 14). Jerry received his Doctorate in Law from the University of Nebraska, class Jerry L. Snyder of 1958 and has been a prominent attorney in Lincoln, Nebraska ever since (never retiring). Jerry loved the ‘law’, and no one knew it better than he did. Jerry also loved dogs, horses, hunting, fishing, throwing tomahawks, and most of all his family. Jerry is preceded by wife, Ruthann who passed on July 6, 2018 and his son, Kelly who passed on June 30, 2018. He is survived by his daughters, Cindy Marshall and husband, Tim; Sally Veira and husband, Vernon; Dani Hejl and husband, Frank; granddaughter, Morgan Marshall; grandsons, Justin Modarres, Benjamin and wife, Katie Marshall; Joseph and wife, Jodi Marshall; and David and Jerrid Hejl, along with great-grandchildren, Aubrey, Becca, Jemma, and Kyla and many more family and friends. JERROLD L. “JERRY” STRASHEIM passed away November 30, 2018. He enjoyed a fulfilling and meritorious law career that spanned more than half a century. Over the years, his affiliations grew to include the Nebraska State Bar Association, the Iowa State Bar Association, the American Bar Association, Jerrold L. the Omaha Bar Association, the Nebraska Strasheim Association of Trial Attorneys, and the American Association for Justice. His name appears in “Best Lawyers in America” and in “Chambers USA.” Jerry worked his way through college as a janitor, living with his parents for room and board. Midway through college his studies were interrupted by a two-year stint with the Army ROTC Finance Corps, after which he went back to college and graduated from the University of Nebraska College of Law cum laude in 1957. Following the Army and law school, which he loved (he always spoke fondly of his classmates and professors), he clerked for Federal District Judge Robert Van Pelt. For two years he lived in Washington, D.C. where he served as minority counsel on the Subcommittee of the U.S. Senate Judiciary Committee on Improvements in Judicial Machinery. Jerry served as the US Bankruptcy Judge for the District of Nebraska for 11 years, JANUARY/FEBRUARY 2019

IN MEMORIAM and spent many years in private practice, twenty of them as a partner with Baird Holm. He spent a year as an adjunct professor at Creighton University School of Law, and he served as counsel in many of the major cases in the area. His work was his passion. He loved the law and was very involved in every aspect of it. He also led an active life with his family. After his first wife died following the birth of their second son, he met and married Mary Ann who had three children from a previous marriage. With their blended family Jerry and Mary Ann were together for almost 50 years and were planning to celebrate their Golden Wedding Anniversary this December 28th. During those 50 years his life was filled with things he loved to do. He had a golf group at Happy Hollow Country Club for over 20 years and he learned to snow ski at age 42 and enjoyed over 25 years of annual ski trips with friends and family. He loved to travel and in the early years it was usually a family road vacation or to a legal seminar. After 1985 he and Mary Ann enjoyed traveling to Europe each year and in 1990, they took their first cruise. From then on, that was the way to go and they literally ‘saw the world,’ visiting every continent except Antarctica. He loved the ocean and the ‘days at sea.’ He and Mary Ann were planning to cruise again in December. He never went anywhere without his brief case and yellow legal pad so he could work on the plane or on the ship. Jerry was often referred to as a ‘Renaissance Man’ because he not only loved sports, but also loved music and especially opera, country western and of course the ‘golden oldies.’ He was devoted to Opera Omaha and appeared in “La Traviata” as a ‘super’ in 1987. As he and Mary Ann traveled the world, one of their favorite evenings would be a night at the opera. Members of the Opera Omaha Council since 1987, they enjoyed one of his last social outings at the Opera Outdoors at Midtown in August. And he was just as happy when they attended the “Grand Ole Opry” in Nashville during a Judicial Conference years ago. Jerry was loved by many and respected by all who knew him. Shortly before he went to Hospice House a client came to see him to tell him he was “the best lawyer in the world and the most honest person he had ever known.” We know that, having lived such a life, he will “rest in peace.” Never expecting to live so long, Jerry died at the venerable age of 87 years. He was preceded in death by his parents, Alexander and Marie (Hahler) Strasheim; his sister, Lorraine Strasheim; his wife, Bernadette Ryder Strasheim; his father-in-law, Frederick William Sieman; and his mother-in-law, Mary Nelson Neville Sieman whom he admired and adored.He is survived by his beloved and devoted wife, Mary Ann (Sieman) Strasheim; his five children: daughters, Sharon Frey (Mark) and Elise Aust of Omaha and sons, Alexander Ryder Strasheim of New York City, John Frederick Hanson of Omaha, and Frederick Ryder Strasheim (Maureen) of St. Louis; his 12 grandchildren: Natalie Rose Hudson (Matt), Julie Marie Aust, Brianne Marie Hanson, Brian Alexander Frey, James Gerald Aust, John David THE NEBRASKA LAWYER

Hanson, Keith Frederick Frey, Adam Frederick Hanson, Sophia Pudlowski Strasheim, Sarah AnnMarie Hanson, Henry Pudlowski Strasheim, and Katherine Pudlowski Strasheim; one great-grandchild, Angelina Yuliette Aust Serrano; and one brother, Rollie Strasheim of Lincoln. He is also survived by countless friends, neighbors, colleagues and clients. He will be greatly missed by all. The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, 635 S 14th St. #200, Lincoln, NE 68508. Note: If you hear of the death of a bar member, please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. Your assistance is appreciated in sharing this important information with your colleagues.

JANUARY/FEBRUARY 2019

The Nebraska Lawyer 2019 Cover Art Competition

privacy, publicity or other intellectual property or other rights of any person or entity, and that the content is within the bounds of the fair use doctrine. The Artist further warrants that: (a) he or she has obtained permission from any person whose name or likeness is used in the Work; and (b) publication of the Work via various media, including on the Web, will not infringe on any third-party rights. The Artist indemnifies and holds harmless the NSBA from any claims to the contrary, or from loss or damage of any kind arising from or in connection with the Work and the competition.

Calling all attorney-artists! Would you like to see your art on the cover of The Nebraska Lawyer? The NSBA is now accepting submissions for its Nebraska Lawyer Cover Art Competition! Please see below for rules and guidelines regarding all submissions. Rules of the The Nebraska Lawyer Cover Art Competition 1. The competition is comprised of the following categories: Photography, Painting/Drawing, and Sculpture.

10. The competition is governed by the laws of the State of Nebraska, and the Artist consents to its exclusive jurisdiction for any causes or controversies arising in relation to this competition.

2. Submissions will be accepted beginning January 1, 2019, and must be received by 5 p.m. CT on March 29, 2019. The winning entry will be published on the cover of the May/June 2019 issue of The Nebraska Lawyer. The NSBA may choose more than one winning entry, in which case the additional winning entries may be published on the covers of subsequent issues following the May/June 2019 issue, for as many issues as is necessary to publish all winning entries, or elsewhere in the May/June 2019 issue. *Works previously submitted for this contest will not be considered.* 3. No submission form or cover letter is needed, but a person making a submission (“Artist”) must indicate which category or categories he or she is entering, his or her name, the title(s) of the work(s) he or she is submitting (if applicable), and a means by which to contact the Artist.

11. The NSBA is not responsible for any technical malfunction or service outage related to the competition.

Your Artwork Here!

13. Submissions will not be returned.

4. Submissions from the following will not be accepted: Staff and officers of the Nebraska State Bar Association or members of their immediate family, or members of the Nebraska State Bar Association Publications Board or members of their immediate family.

14. Questions regarding the competition should be directed to the Editor, Amy Prenda, at aprenda@ nebar.com. Guidelines Regarding Submissions 1. Do not send original artwork. All Works must be delivered in electronic format. For example, if submitting Work in the Sculpture or Painting/Drawing categories, send photograph(s) of the work.

5. Artists may enter more than one work (“Work”), and they may enter more than one category. In the “Photography” category, the maximum number of submissions by one Artist is 15. 6. “Legal” subject matter is not required.

2. In the Sculpture category, it is advised that multiple photo views are helpful. In addition, the Artist should describe the scale (dimensions) of the Work.

7. The competition is open to all categories of Nebraska-admitted attorneys (including inactive, retired and judicial). 8. Artists retain the copyright in their own Work. By entering the competition, however, Artists grant to the Nebraska State Bar Association (“NSBA”) and The Nebraska Lawyer magazine a license for the first North American publication in print, and for publication on the website of the NSBA and/or of The Nebraska Lawyer magazine and other electronic channels. Publication in either medium is in the sole discretion of the NSBA. Artists also grant the NSBA a license to grant reprint permission of any Work that is published in the printed magazine or on the website of the NSBA and/or of The Nebraska Lawyer magazine or other electronic channels.

3. In the Photography category, the Artist must explain any significant post-shooting manipulation done to the Work via computer software (e.g., Photoshop). 4. When submitting photos, high-resolution quality is required: 300 dpi at 10” x 12”. 5. In the Photography category, the maximum number of submissions by one Artist is 15. How to Submit To submit Works in any category, send the item to the Editor via email at aprenda@nebar.com or via U.S. Mail to: Amy Prenda, The Nebraska Lawyer, 635 S 14th St. Suite 200, Lincoln, NE 68508

9. By submitting, the Artist warrants and represents that the Work: (a) is the Artist’s original work, (b) has not been previously published, (c) has not received any previous awards, (d) does not infringe upon the copyrights, trademarks, rights of THE NEBRASKA LAWYER

12. NSBA officers, members of the NSBA staff, and members of the NSBA Publications Committee cannot assist Artists in selecting Work for submission to the competition. Submissions are reviewed by the Editor and the Publications Committee, and their decision is final. In their sole discretion, the Editor and the Publication Committee reserve the right not to accept any submission. The Publications Committee reserves the right not to award a prize in any or all categories, or to award an “Honorable Mention” in any and all categories.

JANUARY/FEBRUARY 2019

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