The Nebraska Lawyer Magazine May/June 2019, Vol. 22 No. 3 by Elisa Oria

by David J. Bargen, Rembolt Ludtke, Lincoln, NE photograph

Winner of The Nebraska Lawyerâ&#x20AC;&#x2122;s Fourth Annual Cover Art Competition

Bringing Back Creative Susan Ann Koenig Lawyers for the Talent: Entertainment Law Prof. Richard Dooling Using O and P Visas to Bring Foreign Entertainers, Artists, and Athletes to the United States Clete Samson and Maggie Ebert Understanding Copyright in Creative Works Grayson J. Derrick and Patrick M. Kennedy

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 • May/June 2019 • Vol. 22 No. 3

Features

Judicial Independence and the Nebraska Merit Plan

J. Scott Paul

.................................................................. J. Scott

The NSBA's Position on Public Service Loan Forgiveness

........................................... Elizabeth

M. Neeley

Bringing Back Creative ................................................ Susan

Ann Koenig

Lawyers for the Talent: Entertainment Law ...................................... Prof. Richard

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Samson and Maggie Ebert

Young Lawyers Section Page: Significant Cases and Trends in the Areas of Cyberlaw, Copyright Law, and Trademark Law ........................................................... Alyssa

Dooling

Using O and P Visas to Bring Foreign Entertainers, Artists, and Athletes to the United States ........... Clete

Paul

Executive Director's Page:

Elizabeth M. Neeley

President’s Page:

Martin

Understanding Copyright in Creative Works: Do I Need a License? ............................................... Grayson

J. Derrick and Patrick M. Kennedy

Tracy Dixon Finds Success in Practice and Fiction .................................................... Prof. Alan

Frank

www.nebar.com

Departments

over Art Competition Honorable C Mention Selections 44 NLF News 45 For the Good of the Profession Bryan Stevenson Discusses Making a Difference as a Legal Professional by Teresa Matich 47 Plain Language Editorializing, Gratuitous Verbiage, and Verbatim Tracking Don't Persuade by Kenneth Oettle 49 Tech Corner Tech Tips for the Modern Law Firm by Adam Callahan 52 Wellness Brief It Should Be Confidential, But Not a Mystery by Chris Aupperle 55 Speaking of Ethics The Ethics of Working as the Sole Professional on a Family Law Matter in Nebraska by Prof. Kristen M. Blankley 59 Court News 61 Legal Community News 62 NSBA News 66 NSBA Member Spotlights 69 Volunteer Lawyers Project Volunteer Spotlight: Volunteer Lawyers for the Arts - Nebraska by Laurie Heer Dale and Carol Cleaver 73 NSBA Section Connection 74 Manual Maven 75 Upcoming CLE Programs 75 CLE Faculty Recognition 78 Transitions 80 In Memoriam 81 Classifieds

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

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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 Matthew Parker is an Associate with National Litigation Law Group, and represents clients in Nebraska, Iowa, Kansas, Missouri, and Colorado. He has also had two law journal articles published in the field of Intellectual Property, and co-authored an amicus brief with the Supreme Court of the United States in Star Athletica v. Varsity Brands, Inc.. He lives and practices in Omaha.

Matthew Parker

publications chair

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

P. Brian Bartels

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.

Executive Council Liaison: Kenneth W. Hartman, Omaha Executive Editor: Amy E. Prenda aprenda@nebar.com Layout and Design: Sarah Ludvik sludvik@nebar.com Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934 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

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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.

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president’s page

Judicial Independence and the Nebraska Merit Plan Nebraska is fortunate to have a judicial merit selection plan as opposed to a more politicized selection process or, worse yet, judicial elections. Merit selection plans are vital to the preservation of judicial independence. Merit selection commissions such as those currently in place in Nebraska are designed to appoint the best candidate to the bench, not necessarily the candidate that has the most political connections or most political experience. In The Case for the Nebraska Merit Plan, Neb. L. Rev. Vol. 41 No. 4 (1962), Virgil J. Haggart Jr. extolled the virtues of the proposed Nebraska Merit Plan. In his article, Haggart noted that support for the Nebraska Plan was strengthened by Missouri’s adoption of the “Missouri Plan” in 1940. The “Missouri Plan” provided for the filling of judicial vacancies by appointment by the governor from a list of names submitted by a nominating commission. Haggart correctly predicted that the Nebraska Plan would result in a) a better informed selection of judges and nominees for judicial office; b) a shifting emphasis from political ability to professional ability as the prime qualification for judicial office; c) elimination of the necessity for Nebraska judges to campaign; and d) judges being free to devote their full time and attention to their judicial duties. However, Haggart acknowledged that the Nebraska Plan was not totally free of political influence, stating: “It is possible that under the Nebraska Plan, governors would tend to appoint members of their own political party to office. This is not a valid objection to the Plan, per se. . . . It is unlikely that a member of the highest court in the state would subordinate an objecTHE NEBRASKA LAWYER

J. Scott Paul tive evaluation of a prospective nominee’s professional qualifications to political considerations. It is likewise unlikely that the lawyer members of a commission, entrusted by their fellow members of the profession with the selection of well qualified nominees, would breach their obligation for political reasons.” Up until the adoption of the “Nebraska Plan” in 1962, judges in Nebraska were elected. Article V-21 of the Constitution of the State of Nebraska now provides that when there is a vacancy on the Nebraska courts, it shall be filled by the Governor from a list of at least two nominees presented to him by the appropriate judicial nominating commission. Such commissions are described in Neb. Const. Article V-21 (4) which states: “The members of the bar of the state residing in the area from which the nominees are to be selected shall designate four of their members to serve as members of said commission, and the Governor shall appoint four citizens, not admitted to the practice of law before the courts of the state, from among the residents of the same geographical area to serve as members of said commission. Not more than four of such voting members shall be of the same political party.” As public servants and holders of offices of public trust, judges should be accountable. However, judges should not have to look over their shoulder when faced with resolving a difficult dispute. As much as possible, the Nebraska Plan insulates judges from public pressure in such cases.

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PRESIDENT’S PAGE Even in states having judicial nominating commissions the voting public can still assert its political will. For example, in 1996, Nebraska Supreme Court Judge David Lanphier was not retained by the voters largely based on public dissatisfaction over the court’s ruling on a second-degree murder case. In Iowa, the most recent example of such a successful political effort to oust sitting judges occurred in 2010. Voters expressed their opposition to the Iowa Supreme Court ruling in Varnum v. Brien, a decision written by Chief Justice Mark Cady, in which the court recognized the right to same sex marriage equality under the Iowa Constitution. The critics of the Varnum decision organized an effort to defeat the three justices who were next up for a retention vote. The three Iowa justices up for retention failed to reach the 50% threshold of votes and were removed from office. Bob Vander Plaats, President and CEO of The Family Leader, who led the campaign to oust the Iowa Supreme Court justices, explained the electoral victory by stating that the result was based on voters’ belief that, “It’s ‘we the people’ not ‘we the courts.’” It is noteworthy that 48 years earlier Haggart’s article anticipated and rejected Vander Plaats characterization, stating: “Many people seem to believe that a judge should be responsible to the will of the people, and that this is the justification for election of judges by popular vote. This belief is entirely incompatible with the proper concept of American jurisprudence. Simply stated, a judge is not responsible to the will of the people, but rather to the law. It has been more eloquently stated as follows:

NSBA has created a presentation that any lawyer or judge may use when invited to give a presentation to a local civic or school group. The topic is “Fair and Impartial Courts,” including an explanation of how judges are appointed and the role of courts in our society at both the state and federal level. The presentation includes a PowerPoint, a loose script and links to background information. It can be tailored to suit the audience and length of a presentation. It’s available for download on the NSBA website (www.nebar.com) to all lawyers and judges. NSBA created this presentation for several reasons: Most lawyers and judges are invited to give presentations to local groups, and having an on-the-shelf presentation may help them say “yes” to invitations. Attacks on the judiciary have become more common at a time when basic civic education seems to be declining; this presentation seeks to increase citizens’ understanding of, and support for, fair and impartial courts. Although the effort to remove Iowa Supreme Court justices lost public support after 2010, Iowa courts now face a new threat to judicial independence. In 2019, Iowa House Bill 110, and Senate Bill 1101 were proposed. These bills would revise the nominating commissions that Iowa uses to select judges. In a move that would inject more politics into the selection of judges, the 8 lawyers currently sitting on the judicial selection commission and, a seat reserved for a supreme court justice, would be replaced by commissioners appointed by the majority and minority leaders in the legislature. Since the Iowa governor already appoints 8 commissioners, the new legislation would guarantee that members of the governor’s party appoint 12 out of the 16 commissioners, all of whom would be political appointees.

The solid reasons which require direct election in the other branches of government do not exist in the judicial. The judge is not in the usual sense, a servant of the people, but rather a servant of the law, a guardian of our constitution, and an impartial magistrate between litigants. The functions of the various departments of government differ. It is the legislative and executive which represent, enact and execute the mandates of the majority public opinion. It is not the function of the judiciary to represent, enact and execute current views. No policy making or question of majority rule is involved. On the contrary, courts must in times protect minorities and decide against the popular prevailing view and restrain the power of the temporary majority. The courts represent all of the people. Harris, In Support of the Pennsylvania Plan, Pa. Bar Ass’n Philadelphia, Pa. 6 (1961).”

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Fair and Impartial Courts

In order to minimize the influence of politics in the selection of Nebraska judges, we should be mindful of the likely changes to the judicial selection process in Iowa. Those changes should serve as a reminder that we must guard against political agendas encroaching on the existing merit selection and retention process for Nebraska judges.

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

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executive director’s page

The NSBA’s Position on Public Service Loan Forgiveness

Elizabeth Neeley

The Nebraska State Bar Association does not frequently take positions on legislative matters before the Congress of the United States, but consistent with our Legislative Program and Policy Statement, the Association will take a position on issues related to the quality of legal services and promoting access to the justice system. For example, the NSBA will frequently contact its elected representatives to support funding for the Legal Services Corporation, the primary source of funding for Legal Aid of Nebraska. This spring, an additional issue has surfaced, a proposed termination of the Public Service Loan Forgiveness Program. The NSBA has contacted our elected representatives and, if you are so inclined, would encourage you to also do so. The Nebraska State Bar Association opposes terminating or limiting the Public Service Loan Forgiveness program (PSLF) that enables law school graduates to embark upon less remunerative public service careers. These public service attorneys provide critical services to our state, local, and tribal communities. The federal Public Service Loan Forgiveness (PSLF) program was created in 2007 in response to the concerns of public sector employers over their difficulties attracting and retaining skilled professionals to fill chronically vacant positions. The program provides employers an invaluable resource by lowering the primary barrier keeping new graduates from pursuing public service careers – student loan debt. An advanced degree frequently is a condition of professional licensure, as it is for lawyers, but the higher student debt incurred in obtaining these degrees effectively prevents borrowers from accepting or staying in low-paying public service jobs.

Under the program, borrowers who have made 120 timely payments on their federal Direct Loans while employed fulltime in qualifying public service jobs are eligible to receive forgiveness of whatever portion of their loan remains after completing the payments. Under the Department of Education regulations, a qualifying public service job is a full-time position working for a federal, state, or tribal government entity (including the military), 501(c)(3) organizations, or other nonprofits that provide specific types of qualifying public services. Lawyers often incur significant student loan debt that deters them from lower-paying public service jobs. Without PSLF, law school graduates considering public service would face 20 years or more of student loan payments, during which time their loan balance would increase. These men and women would further need to forego major life decisions and expenses, all in the name of pursuing laudable careers. PSLF makes it possible to place lawyers in rural and underserved areas of our state. Eighty percent of law students take out student loans to attend law school. On average nationally, those who graduate from a private law school incur law school debt of $122,000 and those who graduate from public law schools incur $88,000. These sums are in addition to an average of $30,000 in undergraduate debt. The promise of PSLF makes it feasible for a young lawyer with a staggering amount of debt to choose a career as a legal aid attorney, public defender, or prosecutor − jobs with typical starting salaries of $50,000 or less that are essential to the functioning of our justice system. People in other professions that provide the public with a continuum of care, such as doctors, nurses, teachers, social workers, and first responders, face similar financial obstacles and likewise are eligible for the program.

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EXECUTIVE DIRECTOR'S PAGE PSLF is under threat of elimination. PSLF has become caught in the crosshairs of larger discussions about higher education affordability that fail to take into consideration the important purpose of the program. Both the President’s FY 2018 budget and H.R. 4508, legislation known as the PROSPER Act (Foxx, R-NC), would eliminate PSLF as part of a plan to reform federal student lending. An amendment to preserve PSLF under the PROSPER Act, which had bipartisan support, failed by one vote during committee consideration. The legislation was reported by the Committee on Education and the Workforce last December and now awaits action on the House floor. The Nebraska State Bar Association urges the preservation of the Public Service Loan Forgiveness Program. • PSLF serves an important purpose that benefits the public. Repeal of PSLF would harm state, local, and tribal communities by denying them a tool that enables them to provide critical services to their residents.

If you also feel this issue is important, please contact your elected official to voice your concerns: U.S. Senator Deb Fischer 454 Russell Senate Office Building Washington, DC 20510 U.S. Senator Benjamin Sasse 107 Russell Senate Office Building Washington, DC 20510 U.S. Congressman Don Bacon 1024 Longworth HOB Washington, DC 20515 U.S. Congressman Adrian Smith 502 Cannon HOB Washington, DC 20515 U.S. Congressman Jeff Fortenberry 1514 Longworth House Office Washington, DC 20515

• PSLF should be allowed to continue to function as envisioned until there has been an opportunity to assess the impact of the program. Any attempt to reduce or eliminate the program should include an alternative strategy for addressing the underlying problem PSLF addresses.

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

NSBA representatives met with U.S. Congressman Fortenberry in April to discuss Public Service Loan Forgiveness, while the Congressman was back in Nebraska. Pictured left to right: NSBA President J. Scott Paul, U.S. Congressman Jeff Fortenberry, NSBA Executive Director Liz Neeley and NSBA Legislative Counsel William Mueller

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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

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.

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

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.

NSBA Health Insurance Consortium: The Health Insurance 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.

Volunteer Lawyers Project: Provides pro bono opportu-

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-

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

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

Professional Growth & Support 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.

The Nebraska Lawyer Magazine: Published bi-monthly,

Child Support Calculator: Unlimited free access to the Ne-

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.

NSBA Library: Access past NSBA seminar materials, manuals, forms, and videos, all categorized by practice area.

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.

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

Sections: Connect with other attorneys in your areas of practice

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

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).

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.

Strengthen the Courts

Find-A-Lawyer: Let the NSBA help connect you with potential

Judicial Resources Committee: The NSBA proposes, con-

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.

Legislative Program: The NSBA supports the court system

clients through its new Lawyer Referral Program (available at a discount).

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

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

siders, and comments on the creation, reduction, and relocation of judicial vacancies in the state courts.

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

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

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feature article

Bringing Back Creative by Susan Ann Koenig

Lawyers are problem solvers. We often see situations we’ve never seen before. Our creativity is required for everything from how to argue for a change in longstanding law to how to help a jury like our unlikeable client. But what about our creativity outside of the office? I’ve been coaching lawyers for fifteen years. Our profession is a serious one. Mistakes we make can cost a client their life’s savings or cost us the continued privilege of practicing law. Add to this pressure long hours and looming deadlines. Where is there room for the possibility of play? It calls for creativity to find out.

No Talent Required Luckily for me, no talent is required to be creative. I long associated creativity with the paintings of Matt

Susan Ann Koenig

“I’m not creative,” I insisted. As a student, two courses guaranteed to crush my GPA—art and physical education. As an adult, I muddle through multiple private lessons with a seasoned dance instructor to master a basic box step. While artistic talent is an obvious expression, creativity comes in countless containers. Like the practice of law, it is not about being a mere technician. Our creativity cannot be outsourced. It cannot be found in an app (although it might lead to you developing one). Indeed, the very definition of creativity is that it is unique. I can lose myself in arranging a bouquet of wildflowers or be exuberant over a holiday dinner place setting. No two bouquets or tables ever look the same. You have always been creative. You are continuously creating. It is that call to creativity that propels us to dance, even if family weddings and the kitchen are as far as we get. Regardless of talent, we feel delightfully compelled.

Susan Ann Koenig is of counsel at Koenig|Dunne, a divorce and debt resolution firm that focuses on the client’s future as family and financial circumstances change. She enjoys an encore career as an executive coach, speaker, and writer. Susan is the co-author with Angela Dunne of the book, Divorce in Nebraska: The Legal Process, Your Rights, and What to Expect and presents annually to the NSBA Leadership Academy. You can watch her TEDx Talk, The Energy of Eulogy, at www.coachkoenig.com and read her blog NEXT at www.koenigdunne.com. THE NEBRASKA LAWYER

Higgins that make my jaw drop, the songs of Tom Shomaker whose sweet singing made me weep, and stage performances by Dennis Carlson and Jennifer Gilg that wow packed theaters.

Are you curious about where your creativity is calling you?

What Will It Get You? One study of 658 volunteers showed that those with creative pursuits were significantly more engaged, enthusiastic, and simply more excited about the next day. What lawyer couldn’t use that? When we are creative, our focus is on the flow of the process, no matter the ultimate outcome. We can lose track of time, getting lost in pure pleasure. The risotto may not come

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BRINGING BACK CREATIVE out perfectly creamy, but you don’t regret the time you spent stirring it. As lawyers, our brains spend their days analyzing statutes, pouring over precise word choices, and calculating contract dollars. Our brains work hard. We worry about where to get our next client. We stress over high stakes negotiations. Billable hours become burdensome. Even when the work day is done, enjoyment of our time away from the office can be robbed by our anxiety about tomorrow. Our brain functions by firing neurons along pathways. Our neurons are smart. They take the easiest path, which is along the well-worn road of our old thoughts. Coming up with a new idea requires our brain to travel a new path. This is only possible if we allow space—room for the formation of new connections—for our thoughts to take a different path.

Even the lawyer who is no longer required to put in long weeks at the office does so out of habit, the satisfaction of the work, or the desire for the income. We gather our evidence to make the case that we need to work each and every weekend. Meanwhile, our saxophone stays stuck in its case in the closet corner.

Felt Fun My law partner Angela is an impressive role model for living a creative life. Her home is a holiday happening year round. From the red, white and blue of the 4th of July to the shamrocks of St. Paddy’s Day, she celebrates her creative side in every season. She expresses her love of life in the colors and objects she surrounds herself with. While many might think of Angela as creative because she’s a blogger and an author (Patched Up Parenting), few know that her passion is creating works of art out of felt. Stitching beads by the hour, she creates sparkling treasures from tooth fairy pouches to family heirlooms.

We leave no room for our creative ideas to enter our minds when they are so crammed full we get tension headaches. When a mind is relaxed by baking a batch of blueberry muffins from scratch, there is space for new ideas to emerge. Neuroscience aside, we know the benefits of more balance in our lives.

Sewing hundreds of tiny sequins by hand is a solace to the mind of a litigator who manages a caseload, a law firm, and a household with two active adolescents. She rediscovered the satisfying pastime she learned from her mother as a young child.

Engaging in creative pursuits quiAngela’s time with a needle in her ets the lawyer’s busy brain and gives it hand and a cat near her feet is restorsome breathing room. When we are Felt work-of-art made by Angela Lennon. ative. She began from the sheer cheer not constantly taking in information of it. When she had exhausted gift giving of her felt works to from briefs, texts and emails, there is space for something else to her family, she began sharing with others. Now her creative emerge. Something new. Something we never thought of before. craft brings delight to people as far away as the Netherlands What Gets in the Way and Germany and there is a wait list for creations. Law school can be the beginning of the end of much of what once brought us joy. When there are hundreds of pages to read, taking time writing a short story can seem absurd. Once we land a job, we put in long days proving our worth and hoping we meet expectations. The demands of family, friendships and our firm push our creative pursuits farther and farther down our list of priorities. Workaholism is rampant among attorneys, whether of our own making or of the cultures in which we work. When exhaustion and anxiety become a way of life for a lawyer, energy for playful possibility diminishes. Even if we can find the time, our ever present phones are built to take our brains to buying things rather than being makers of our own creations. THE NEBRASKA LAWYER

The joy Angela’s felt fun brings to others is obvious by the demand for her creations. But those recipients are not the only beneficiaries of every sequin sewn. The legal team she manages and her clients alike get a happy burst from her when that effervescence bubbles out from this part of her life.

Courage in Countless Containers Creativity comes in countless containers. You might be the lawyer who wears fuchsia bow ties or socks with little yellow giraffes. Those who reveal their uniqueness in their personal style expose a piece of themselves to the outside world. Others will play the flamenco guitar in their basement where no one else will ever hear. MAY/JUNE 2019

BRINGING BACK CREATIVE Courage can be required to connect with our creativity. Being human, we fear being rejected by our tribe. Consequently, we are reluctant to go against the grain of usual behavior. For many years when I lawyered in the courthouse every week, I was recognized by wearing one of my many hats from my collection. Others may have considered it charming, odd, or simply silly. But for me it felt genuinely joyful. To be your authentic self is to be vulnerable. We fear our imperfection. We fear failing. We fear being mocked or at a minimum not fitting in. And yet to own our true selves is to live the life we were called to live. After all, do you want to live anyone else’s life but your own? If you’ve neglected this part of your life lately and are ready to reconnect, consider these simple steps. Select a passion, a pursuit or perhaps a playfulness. It’s been said that our greatest power is the power of choice. What creativity has been calling you? Perhaps you know exactly what it is. If not, ask yourself: How often have I said, “I’ve always wanted to________?” When I was a child, what was one of my favorite activities? What do I hope to do more of when I retire? If I had more time, I would enjoy ________. When I was a girl, our home had one cookbook. It was green and tattered with broken binding. We rarely had the ingredients to make any of the recipes, but I enjoyed experimenting with possible substitutions to have a batch of fresh baked cookies. To this day, the bricolage of making a frittata out of whatever is available in the refrigerator gives me great joy. When we don’t pause in life long enough to reflect, we make the choice to ignore areas of our life that matter. If you’re tempted to skip to the end of this article, take that moment now. Make a choice. Start. Lawyers are really good thinkers. The downside is that we are at risk for overthinking. Perhaps you’ve always dreamed about doing leatherworking. You’ve thought about the designs you would create. You’ve imagined the smell of the leather in your workroom. You’ve thought about it a lot, yet you’ve never done a minute of it. Lawyers can also be great researchers. Rather than restoring that El Camino that’s been sitting in the garage we stay studying car restoration books and googling special tools for hours on end. Soon we’ve become experts, but haven’t lifted the cover off the car in three years.

THE NEBRASKA LAWYER

Many an estate sale is filled with yarn from someone’s unfulfilled intentions to create. Don’t let it be yours. Step small. If you have always been fascinated by photography, you don’t need to travel with tripods to Machu Picchu. When our enthusiasm for something new runs high, it’s easy to overdo a interest then give up because it’s too much. The idea is to reduce burnout, not add to it. Try taking a picture of a scene at the farmers’ market or a leaf in your own backyard instead. What would it be like to allow yourself merely 5 minutes a day in something you love? What might spending a few minutes at the end of your day playing your ukulele get you? Seek a support. If you are already engaged in a rich creative life, you may not need support. But many of us find ourselves pushing it down to the bottom of our long list of “shoulds.” Give yourself a little help. Invite a buddy to join you. Ask a person who • has a personal trainer why they are having such success. Most of them will tell you that a big part of their progress is simply having someone hold them accountable. When you know someone is waiting for you, you’re more likely to show up. • Set specific times in writing. If you’ve seen the success of calendar blocking for work projects you know its value. When we are vague about the “when” our promises keep getting put off to the tomorrow that never comes. • Keep a symbol to remind you. The mere sight of the cover of books of collections of poems by Maya Angelou or Rumi can remind me that when inspiration hits I’ll want to heed the call to pen a poem, even if it never makes it beyond my tattered spiral notebook. Stay the course. We all get derailed at times. The big case. The flu. The business trip. Recognize that it’s normal to fall off the path from time to time. Give yourself a little grace, then put on your gloves and get back out into that herb garden that’s been waiting for you. Who doesn’t want to love their life just a little bit more? Connecting with our creative lives enables us to be better problem solvers for our clients, happier people in our relationships, and experience a little more fun in life. It’s said we all need something to love, something to do, and something to look forward to. Maybe it’s your ukulele.

MAY/JUNE 2019

THE NEBRASKA LAWYER

MAY/JUNE 2019

feature article

Lawyers For the Talent: Entertainment Law

by Prof. Richard Dooling

“Art is making something out of nothing and selling it.” –Frank Zappa

What is Entertainment Law? The leading Entertainment Law textbook begins with a Prologue entitled “Speech For Fun And Profit,” in which the authors observe: Entertainment is a human activity and economic venture. Its internal relationships and products are, of course, shaped by contract, as well as constitutional, copyright, labor, antitrust, and trade law. Yet every one of those branches of the law applies as well to other industries, such as auto manufacturing. Professors do not, however, teach and write books about “automobile law.”1

First Things First “The First Amendment reads more like a dream than a law.” –Kurt Vonnegut

A Giant Speech Factory

Prof. Richard Dooling

The First Amendment to the U.S. Constitution provides that: “Congress shall make no law … abridging the freedom of speech.” Sounds great, especially when we think of “speech” as Patrick Henry crying, “Give me liberty, or give me death!” at the Second Virginia Convention, or Thomas Paine standing on a soapbox reading aloud from “Common Sense.”

Professor Richard Dooling began teaching at the University of Nebraska College of Law in 2008 after almost two decades of working in the publishing, television, and film industries. He attended the St. Louis University School of Law and worked in private practice for five years before launching a career as a novelist. He is the author of five novels and two books of nonfiction. Professor Dooling teaches Entertainment Law, First Amendment: Freedom of Speech and Press, Legal Profession, and Law & Storytelling. THE NEBRASKA LAWYER

With the notable exceptions of insurance law and agricultural law and some others—health law?—most industries do not call for their own law school courses. Maybe Hollywood lawsuits are just more fun to read about than the law of nondurable manufacturing? Maybe, but that’s not the whole story. The entertainment industry doesn’t sell insurance or soybeans or widgets or health care. It sells speech (movies, music, art, TV shows, video games, books, poems, essays, and YouTube videos), which means the First Amendment looms over every attempt to punish, tax, censor, ban, regulate, buy, sell, license or commodify the speech of artists and entertainers and their names, images, and likenesses.

Here in the 21st Century, after nearly 100 years of modern First Amendment jurisprudence, “speech” means a lot more than just political speech, and includes violent video games, rap music, the paintings of Jackson Pollock, pornography that is not “obscene,” profanity, and so-called “hate speech.” It’s easy to think of the entire entertainment industry as a giant speech factory churning out everything from greeting cards

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LAWYERS FOR THE TALENT to Cardi B’s latest to tent-pole superhero movies. But the First Amendment obviously does not protect all speech. So what speech does it protect? Any behaviors meant to convey a message? Flag burning? Nude dancing? Child pornography? Writing a book called: How To Make A Suitcase Nuke? What about libel or slander? Aren’t they speech? Or fraud, or hiring somebody to murder your spouse, or lying to an IRS agent, or soliciting a prostitute? When courts try to decide whether speech is protected or unprotected they naturally wonder: Is this the sort of speech the Founders had in mind when they wrote the First Amendment? As far as we know, no framer of the Constitution said, “Yay, free speech, but what is speech?” Did the Founders mean to say that public nudity, live sex acts, and bestiality are all speech, and therefore Congress had no power to pass laws against such “expressive conduct”? Probably not, but should the First Amendment protect such “speech”? First Amendment questions never seem to go away in the entertainment and publishing industries. Even when an artist exercises her First Amendment right to create protected speech, what happens if her right to tell a story or write a song or make a movie collides with somebody else’s right to be protected from defamatory speech? Or their right to privacy, trademark, copyright, or contract rights? What if a client’s movie dramatizes a sexual relationship between underage children? (Romeo and Juliet). Or what if the client’s rap song arguably inspires others to attack police officers? Or what if the client is an exCIA agent, and her book spills state secrets protected by the Espionage Act? Or what if the client is a criminal who gets a million-dollar advance to write a book about his life, when the families of the victims are still uncompensated? Is it easier to ask what speech is not protected by the First Amendment? Either way, an entertainment lawyer is also a First Amendment lawyer.

Art v. Commerce

“What do you think, I’m a sucker?” Whether artists make music, art, and letters for fun is nobody’s business but the artists. However, when artists want to turn their art into a trade or a professional business, all the rules of the marketplace and the courts apply.

The Talent The entertainment industries run on art created by artists, sometimes called “the talent,” people who can make or do something that others want to read, see, hear, watch, share or like are “the talent,” the natural resources of the entertainment industry, human oil wells gushing potentially valuable intellectual property. As Orson Welles once put it, a writer needs a pen, an artist needs a brush, and a filmmaker needs an army. The average big budget Hollywood feature probably boasts a crew of at least five hundred people. For special-effects-driven tent-pole spectacles, crew numbers climb into the thousands – Iron Man 3, for example, credited a staggering total of 3,310 people. That’s an army. Modern information technologies make it easy for hundreds, even thousands, of musicians, visual and graphics artists, programmers, technicians, writers, producers, and editors (sometimes working on different continents) to collaborate on mega entertainment franchises, Lord of the Rings or Avatar or Pirates of the Carribean which generate billions in profits for their global corporate owners. At the other extreme, anybody with a computer can write and publish books, or even make like Dave Eggers and start your own Internet publishing house (McSweeney’s). The 50 Shades of Grey empire (90 million sold and counting) began on a Twilight fan-fiction website. Anybody with a decent video camera can ring the bell with a 100 million YouTube views. Young artists now often have the tools of production in their basements and lofts.

“Nobody but a blockhead ever wrote except for money.”

Technology and Intellectual Property

–Samuel Johnson

Thanks to Moore’s Law and the relentless advance of information technologies, “the talent” is producing more intellectual property than ever before. The global nervous system called the Internet makes that property rise and fall and sometimes explode in value when it goes viral.

If filmmakers or philosophers want only to make art, if the poet wants only to pen a sonnet to a sparrow and is not interested in publishing his work, no lawyer is required, except perhaps to suggest registering copyright in the work, if only to prevent another artist from pilfering. Many artists start out making art for art’s sake, and working without pay, but the hard labor of creation often inspires a different sentiment. Writing is work and so is filmmaking and music and all the other arts that require composition, performance, or creation. Billy Wilder, director of a string of Hollywood classics from Sunset Blvd to Some Like It Hot and Double Indemnity was once asked in all seriousness if would make movies, even if he wasn’t paid to do so. Wilder’s reply: THE NEBRASKA LAWYER

Mark Twain once said that we should buy land because they stopped making it, but unlike real property, the supply of intellectual property is potentially infinite, bound only by the limits of the human imagination. The modern entertainment industry runs on technology and intellectual property. The songs, movies, books, and TV shows are easier to create and disseminate (a good thing), but also easier to copy and pirate (a bad thing). Again, more copyright, trademark, licensing and contract issues. MAY/JUNE 2019

LAWYERS FOR THE TALENT

Contracts, Contracts, and More Contracts

ness of creating shows for film, television, radio and theaters. Nowadays, thanks to the Internet, “entertainment” can happen anywhere you have an Internet connection, so the “entertainment industry” arguably embraces almost all artistic endeavors from publishing to video games, to the visual arts, fine arts, dance, making vines, mashups, music (all kinds!), as well as the usual feature films, television, and radio (Pandora, Spotify, and your local AM station). Many giant entertainment industry conglomerates are losing money in their film divisions, but making it back with video games. See, e.g., Warner Loses at Box Office, but Its Videogames Score Big: Most of studio’s high-profile movies fall flat, while its big investment in games is paying off.

The entertainment industry thrives on collaboration. Many different companies and artists come together, make oral or written agreements to create and distribute works of art, and then disperse, often leaving questions about who is owed what for personal services and who owns what rights in the final product. Contracts, including personal service contracts, govern these relationships, but often the industries move too fast for the talent to sit around waiting for the lawyers to finish poring over long-form agreements. Instead oral contracts, handshake deals, and “napkin agreements” are quite common, even though there may be tens of millions of dollars at stake. The Godfather movies were handshake deals with their director, Francis Ford Coppola.

Wikipedia breaks the industry down into the following categories, most of which come with their own issues, specific trade unions, production techniques, rules, customs, case law, and negotiation strategies:

Finally, the economics and indeed the international economics of the industry quickly lead to complicated deals where everybody at the table has specialized legal needs. A lawyerless artist dealing with sharkish producers and media companies will quickly learn the old adage about the patsy at the poker table the hard way: “If after ten minutes at the poker table you do not know who the patsy is–you are the patsy.”

• film - covering option agreements, finance, chain of title issues, talent agreements (screenwriters, film directors, actors, composers, production designers), production and post production and trade union issues, distribution issues, motion picture industry negotiations distribution, and general intellectual property issues especially relating to copyright and, to a lesser extent, trademarks;

Entertainment Categories Entertainment used to mean “show business,” or the busi-

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LAWYERS FOR THE TALENT • multimedia - including software licensing issues, video game development and production, Information technology law, and general intellectual property issues;

The Hollywood Reporter’s Power Lawyers 2018: the Talent Lawyers • A talent guild. Notable examples: The Writers Guild Of America, The Screen Actors Guild of America, and The Directors Guild of America.

• music - including talent agreements (musicians, composers), producer agreements, and synchronization rights, music industry negotiation and general intellectual property issues, especially relating to copyright (see music law);

Each of these representatives will have oral or written contracts with the talent. They are agents and fiduciaries to their clients. If all goes well they do deals on behalf of their clients and are usually paid commissions for their work. Agents, managers, and even entertainment lawyers don’t make money unless their clients do, meaning everybody is in the talentspotting business, because the talent lays the golden eggs of rights and personal services.

• publishing and print media issues - including advertising, models, author agreements and general intellectual property issues, especially relating to copyright; • television and radio - including broadcast licensing and regulatory issues, mechanical licenses, and general intellectual property issues, especially relating to copyright;

Entertainment lawyers want to represent talented professionals who are likely to succeed, because then the lawyer’s investment of time and attention in their client pays off. Some typical commissions:

• theater - including rental agreements and co-production agreements, and other performance oriented legal issues;

Talent Rep Commission talent managers

talent agents 10%

• visual arts and design - including fine arts, issues of consignment of artworks to art dealers, moral rights of sculptors regarding works in public places; and industrial design, issues related to the protection of graphic design elements in products.

literary agents 15% entertainment lawyers

business managers

talent guilds 2%

Wikipedia: Entertainment Law Categories

These industries tend to have common denominators of intellectual property, representation, contracts, taxes, satisfactory work product, guilds and unions, and more.

Talent Representatives Depending on which entertainment industry category the talent works in, they may be represented by one or more of the following. • A talent agent or literary agent - a person or company who finds work, field offers of employment, supports and promotes the interests of their clients. A finder and maker of deals. Notable examples: Creative Artists Agency (CAA), William Morris Endeavor (WME), and Paradigm.

(Artists don’t pay “commissions” to the talent guilds, but they do pay dues, usually 2%.) With all of their representatives taking percentages of their earnings off the top, it may seem that precious little cash is left for the talent, but if the representatives are doing their jobs they contribute services worth at least the commissions they are paid. In an ideal world, all the talent has to do is show up and act, sing, direct, write, produce, or create more intellectual property.

Lawyers For The Talent Lawyers play big roles in the entertainment industry because, like agents and managers, they are often paid on commission, are part of the team responsible for getting entertainment products made, and are key to protecting rights and getting people paid. What do entertainment lawyers do? No easy answer will suffice, only a bland one, namely, they provide legal services to those who work in the entertainment industry.

• A talent manager - a person or company who guides the professional career of artists in the entertainment industry. Notable examples: Brillstein Entertainment Partners, Untitled Entertainment, and Anonymous Content.

A lawyer drafting or editing a contract for a poet whose works will soon appear in a free literary rag or on a poetry website, and the lawyers responsible for drafting Beyonce’s $50 million deal with Pepsi are all working in the entertainment industry, because after all: What is entertainment?

• A business manager (typically manages the talent’s money). • An entertainment lawyer. For notable examples see THE NEBRASKA LAWYER

15-25%

Entertainment lawyers often help clients “do deals” for pro18

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LAWYERS FOR THE TALENT fessional artistic services or for “rights” (intellectual property). Lawyers may work with talent agents or managers from the beginning to help negotiate terms, or they may be called in only after to “paper” an agreement that is already memorialized in a deal memo. When deals fall apart, the parties may end up in litigation or arbitration. Along the way, entertainment lawyers practice any and all of the following: employment law, contract law, torts, labor law, bankruptcy law, immigration, securities law, security interests, agency, intellectual property (especially copyright and trademark), the right of privacy (especially the so-called “Right of Publicity”), defamation, clearance of rights, product placement, advertising, criminal law, tax law, international law, and insurance law. Wikipedia: Entertainment Law

Entertainment Law Resources • The Hollywood Reporter, Esq.. I often wonder about teaching an entire Entertainment Law course just by following the day’s stories in THR Esquire. •D eadline, currently the website of choice for industry news and gossip. •P ublishers Weekly. • I MDB. Regular IMDB is free, but there is also a professional subscription, which often provides contact information and identifies agents, managers, and lawyers for each artist. •A llMusic.com. The near-equivalent to IMDB in the music world is Like IMDB it lists credits, albums, and songs of all musicians. But to my knowledge there is no “Pro” feature providing information about representation.

artist and discover the publisher for each song:

The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) also provide databases where you can search for music by title or by THE NEBRASKA LAWYER

• ASCAP title search • BMI repertoire search

MAY/JUNE 2019

Helping Elderly and Disabled Clients:

THURSDAY MAY 30, 2019 1:00 PM - 3:30 PM CREIGHTON UNIVERSITY SCHOOL OF LAW 2133 CASS STREET OMAHA

A LIFE-CYCLE APPROACH

The “life cycle” approach of this session is intended to help attorneys advise their clients appropriately and in so doing...

improve their quality of life.

This CLE brings together experts from across the spectrum of elder and special needs services for a panel discussion of the issues that families face when caring for loved ones who are disabled or advancing into their golden years. This session is aimed at providing attorneys with valuable information on topics such as Medicaid and other forms of long-term care planning, financial tools such as special needs trusts and ABLE accounts, home modification and transition services, end-of-life planning, and dealing with care facilities. As advances in health care have extended the lifespan of many disabled and older individuals, it is more important than ever for attorneys to be aware of the services available and to serve their clients as effective members of their care planning team.

PANEL OF EXPERTS NICCI L. CLARK

CFP Morgan Stanley Wealth Management

DIANE STEWART

After graduating from the University of Nebraska-Lincoln with a B.A.B.S. in Finance, Nicci attended Creighton Law, where she earned a J.D., specializing in corporate law. After several years of private practice, she taught Financial Planning and Insurance at Mississippi State University and served as Executive Director for a multi-national non-profit in Europe. She joined Morgan Stanley Wealth Management as a Financial Advisor in 2013 and has clients in over 30 states. In April 2019, she joined The Omaha Group at Morgan Stanley.

ANDREW DIEDIKER

CATHERINE N. SWINIARSKI, ESQ.

Senior Advisor Simple Senior Solutions, LLC

RACHEL A. TRUHLSEN, ESQ.

Occupational Therapist Key Complete Therapies

DAVID M. THOMPSON, ESQ. {MODERATOR}

She is both a licensed Occupational Therapist in Nebraska and Iowa, and a Certified Aging in Place Specialist through the National Association of Home Builders. She completed the program for Executive Certificate in Home Modification through USC Leonard Davis School of Gerontology and the National Resource Center on Supportive Housing and Home Modification.

THE NEBRASKA LAWYER

Carlson & Burnett, LLP

David M. Thompson is an Associate Attorney on Carlson & Burnett’s estate planning team. Prior to joining the firm, David was a sole practitioner in Omaha whose practice focused on guardianships and conservatorships, Medicaid planning, veterans’ benefits, and end-of-life planning. David earned his B.A. at the University of Nebraska-Lincoln with distinction, then attended Oxford University on a Marshall Scholarship. After returning to the United States, David moved to Chicago where he completed his doctoral studies at the University of Chicago. He earned his Juris Doctor from the Northwestern Pritzker School of Law, where he served as Editor-in-Chief of the Northwestern University Law Review.

Rachel A. Truhlsen Law Office, PC LLO

Rachel Truhlsen offers legal services in the areas of estate planning, probate administration, trust administration, elder law planning, long-term care planning, Medicaid eligibility and asset protection. She also advises clients on the potential tax issues that may affect these areas of practice. Ms. Truhlsen received her Juris Doctor from Creighton University School of Law.

BevVan Phillips, OTR/L, CAPS, is an Occupational Therapist who has specialized in residential environmental modification and assistive technology for over 20 years in the private, government, and non-profit sector. She is currently employed as the Home Modification Program Coordinator at Key Complete Therapies in Omaha, Nebraska.

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Elder Law of Omaha, PC LLO

Catherine Swiniarski received her Juris Doctorate from Creighton University School of Law in 1986. Since that time she has practiced law in a variety of settings, from corporate to private practice. In addition, she has taught legal topics at several Omaha area colleges and universities. She has settled into the practice of Elder Law, an emerging area that has grown dramatically with the aging of the baby boomers.

Andrew Diediker started his profession in a skilled nursing facility as a dietary aide in 1996. He joined the Army in 1999 and is currently in the United States Army Reserve (USAR). He received his degree in recreational therapy from the University of Nebraska Omaha (UNO). He went on to get his graduate in Healthcare Administration through Bellevue University. He and his wife recently started up Simple Senior Solutions, which is a company that assists anyone looking into Senior Living Communities.

BEVVAN PHILLIPS

Enable Outreach Specialist First National Bank

Diane Stewart joined First National Bank in 2017. As the Outreach Specialist, she facilitates product training to diverse audiences ranging from personalized presentations to remote or on-line-based forums. Ms. Stewart has over 30 years of Banking Experience and Decades of serving in Leadership roles with Local Nonprofits such as United Cerebral Palsy and Quality Living, Inc. Ms. Stewart is a graduate of Nebraska Wesleyan University and has a Series 6 FINRA Securities License.

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MAY/JUNE 2019

feature article

Using O and P Visas To Bring Foreign Entertainers, Artists, and Athletes to the United States by Clete Samson and Maggie Ebert

If you have your eye on immigration issues, you may have wondered how famous international bands or artists like the Rolling Stones, Adele, and U2 gain entry to the United States to perform tours at American venues. Or you may have wondered how the world’s greatest golfers gain permission to enter the United States to play in American tournaments like the Masters or U.S. Open, or how your favorite international actors or actresses work on American movie sets for extended periods of time. The most likely answer to these questions is that the foreign entertainers, bands, artists, and athletes were approved for either O or P visas by U.S. Citizenship and Immigration

Although diversity of culture is regularly acknowledged as an enhancer of both art and entertainment, the United States demands that heightened evidentiary requirements be met before approving the entry of foreign-born entertainers, artists, and athletes to the United States. This article will discuss those evidentiary requirements and the use of the O and P visas to bring foreign talent to the United States. As discussed in more detail below, the O visa classification is designed to allow an individual who possesses extraordinary

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Clete Samson

Maggie Ebert

Clete Samson is a partner at Kutak Rock LLP. He focuses his practice in immigration law, employment law, and litigation. Having previously served for seven years as a federal trial attorney for the U.S. Department of Homeland Security, Mr. Samson has extensive knowledge of the Immigration and Nationality Act and corresponding topics including visa availability and compliance, immigration removal and custody, and criminal/immigration matters. He also has experience assisting internationally recognized athletes and entertainment groups with obtaining proper visas for entry to the United States. He has been a frequent presenter on a variety of immigration issues. He graduated from the Sandra Day O’Connor College of Law at Arizona State University in 2006. THE NEBRASKA LAWYER

Services (“USCIS”), which allowed them to enter the United States to perform at American venues, work on American movie sets, play on American professional teams, or compete in American tournaments or events.

Maggie Ebert is an associate attorney at Kutak Rock LLP. She specializes in intellectual property and information technology litigation, business competition litigation, general commercial litigation, and assisting international performance groups obtain non-immigrant visas. She has been licensed to practice in Nebraska and the Federal District of Nebraska since 2010. She graduated from the University of Nebraska College of Law in 2010. Prior to entering private practice, Maggie clerked for the Honorable Lyle E. Strom, United States District Court for the District of Nebraska and the Honorable Michael G. Heavican, Chief Justice of the Nebraska Supreme Court. 21

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USING O AND P VISAS ability in the sciences, the arts, education, business, or athletics or who has a demonstrated record of extraordinary achievement in the motion picture or television industry to enter the United States for a temporary period of employment pursuant to an agreement with a U.S.-based petitioner.1 Think Bono, Adele, Paul McCartney. Conversely, the P visa classification is typically used if an athlete, artist, or entertainer is coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, either individually or as part of an entertainment group or team, at an internationally recognized level of performance.2 The P visa classification, therefore, carries with it a slightly lower evidentiary burden of proof for gaining entrance to the United States. Under either the O or P classification, a U.S.-based petitioner, often the individual’s or group’s proposed employer, must file a petition with USCIS to qualify the individual or group for the O or P visa classification. This begs the question how an individual artist or performer or an entertainment group demonstrates it meets the criteria for such visa classification.

Individuals With Extraordinary Ability or Achievement: O-1 Visas A U.S. petitioner/employer seeking to obtain an O-1 visa for a foreign-born entertainer, artist, or athlete must demonstrate that the individual artist has “extraordinary ability” in the arts in one of three ways. The easiest way to show extraordinary ability is through evidence the artist has received or been nominated for a “significant national or international” award or prize in the artist’s particular field.3 Such awards would include an Academy Award, an Emmy Award, or a Grammy Award. If the individual artist has not been nominated for or received such an award, the petitioner/employer can still show extraordinary ability by showing the individual entertainer meets at least three of the following criteria: • Has performed/will perform as lead/starring participant in productions/events with distinguished reputations, shown by critical reviews, ads, PR releases, publications, contracts, endorsements; Has achieved national/international recognition • for achievements through critical reviews or other published materials by or about the alien in major papers, trade journals, etc.; • Has performed/will perform in lead/starring/critical role for organizations that have distinguished reputations, shown by media articles, testimonials, etc.;

• Has commanded/will command a high salary or other substantial remuneration relative to others in field.4 Any evidence petitioners/employers attempt to use to establish these elements will be highly scrutinized by USCIS. Petitioners/employers must, therefore, be prepared to establish the elements with credible documentary evidence. Finally, the comparable evidence approach is a third option by which U.S. petitioners can establish an entertainer’s extraordinary ability. Given that the “arts” are broadly defined under the applicable regulations, there may be a specific “artist of extraordinary ability” whose specific talents cannot be easily shown through the first two methods in the way a famous singer’s or athlete’s abilities are established. Under the comparable evidence approach, a petitioner can submit letters from experts in the artist’s particular field of expertise no matter how unique the field of art or entertainment may be (for example, the world’s most famous flaming sword thrower). Notably, USCIS does not accept video or audio content to demonstrate the abilities of an artist or entertainer. Thus, preparing an O-1 visa petition requires the artist and/or the U.S. petitioner to prepare and submit a packet of documentary evidence highlighting the artist’s greatest hits, achievements, and performances.

Internationally Recognized Athletes: P-1A Visas The P-1A visa classification applies to an athlete if they are coming to the United States temporarily to perform at a specific athletic competition, individually or as part of a group or team, at an internationally recognized level of performance.5 Such athletes would include Olympians or foreign-born athletes playing in the NFL, NBA, NHL, MLS, MLB, or PGA. Individual athletes must demonstrate they are coming to the United States to participate in an individual event, competition or performance in which they are internationally recognized with a high level of achievement, evidenced by a degree of skill and recognition substantially above that ordinarily encountered. Similarly, athletic teams (for example a Jamaican bobsled team) seeking a P-1A visa must show they are coming to the United States to participate in team events and must have achieved significant international recognition in the sport.6 The event must be distinguished and require participation of athletic teams of international recognition. For the P-1A visa, it is essential that petitioners submit to USCIS the following evidence: (1) a written consultation from an appropriate labor organization, (2) a copy of the contract with a major U.S. sports league or team or a contract in an

• Has a record of major commercial/critically acclaimed success; THE NEBRASKA LAWYER

• Has received significant recognition from organizations, critics, government agencies, or recognized experts;

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USING O AND P VISAS individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport, (3) an explanation of the event and itinerary (league schedule), and (4) documentation of having participated in a prior season with a professional U.S. sports league, international competition, or U.S. college or university along with a written statement from a U.S. sports league, a member of the sports media or a recognized expert in the sport that details how the athlete or team is internationally recognized.7

Internationally Recognized Entertainment Groups: P-1B Visas Similar to the P-1A visa classification, the P-1B visa classification applies to an artist or entertainer if they are coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.8 There are two main criteria that an entertainment group must demonstrate in support of a P-1B visa: (1) at least 75% of its members must have been associated with the group for at least one year, and (2) the group has to have been internationally recognized for a sustained and substantial period of time.9 The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is what is essential. To be “[i]nternationally recognized” means: [H]aving a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well known in more than one country.10 To establish international recognition, a U.S. petitioner may rely either on documentation of a major, one-time achievement by the group, such as the nomination for or receipt of a significant international award or prize (this is the same as the first method for the O-1 visa), or on at least three of the following (again, same as the O-1 visa): • Has and will perform as leading/starring group in productions/events with distinguished reputations; • Has achieved international recognition/acclaim for outstanding achievements;

Similar to the O-1 visa, a petitioner must establish the above elements by submitting a historical evidentiary packet of materials highlighting the group’s greatest hits, achievements, and performances. Notably, the comparable evidence approach discussed with regard to O visas above cannot be used to satisfy eligibility criteria for the P-1 visa.11 However, the burden of establishing “international recognition” in support of a P visa is not as high as that required for O visas and the evidence in support of a P visa is not typically as highly scrutinized by USCIS.

Preparing the P-1B Visa Petition for an Entertainment Group Importantly, a petitioner for an entertainment group must provide documentation of any awards the group has won at home and abroad for achievements in its field. A petitioner should compile and submit the group’s promotional posters, advertisements, and any other documentation that provides proof of the group’s performance at famous events, venues, festivals, and/or organizations. A petitioner must also establish the group has performed in at least one country other than its home country (the more countries and venues the better).12 Also, if the entertainment group has opened for or shared the stage with any Grammy Award-winning artists or otherwise famous musicians, a petitioner should submit that documentation to USCIS as well. USCIS also requires that a petitioner demonstrate the significance of the group’s awards received, including the prestige of the productions, events, venues, festivals, and/ or organizations at or for which the group has performed.13 Essentially, this means a petitioner must gather and submit “background material” to support the prestige of the venues or awards while proceeding as if the USCIS adjudicator knows nothing about the specific industry related to the group’s field of expertise. For example, a documented performance at the famous Glastonbury Festival in the United Kingdom is not enough for USCIS; a petitioner must provide evidence related to the history of the Glastonbury Festival through an article or publication of noteworthiness. Next, a petitioner must show that the international group has received “significant recognition from organizations, critics, government agencies, or other recognized experts in the field.”14 It is particularly useful if the group can provide articles from organizations outside its home country as well as letters of support from any recognized experts in its field. These letters can be from agents, managers, festival organizers, or heads of radio stations. For example, if a music band has published any

• Has and will perform as leading/starring group for organizations with distinguished reputations; • Has a record of major commercial/critically acclaimed success; • Has received significant recognition from organizations, critics, governments, other recognized experts; THE NEBRASKA LAWYER

• Has commanded/will command a high salary/other substantial remuneration relative to others similarly situated.

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USING O AND P VISAS albums, it is imperative that any articles containing positive remarks concerning the album be submitted with the packet of evidence. In today’s world of streaming both music and television, a petitioner may also want to gather and submit documentation about an entertainment group’s international radio or television airplay (including likes or views) and presence on any international streaming services such as YouTube, Deezer, or Spotify. Again, the key is to then provide USCIS with background materials on any of these stations or services, demonstrating their noteworthiness and widespread distribution. Finally, if the group has evidence of past contracts for performances showing significant performance fees, those contracts should be provided with the petition as well.

Establishing a Group’s Experience and Composition As noted above, a petitioner for an entertainment group must also establish that 75% of the entertainment group has been performing regularly together for at least one year from the time of filing the visa petition. This element can sometimes be difficult to establish, especially for music groups that swap out backup or rhythm musicians for certain performances. To satisfy this prong, it is recommended that a chart be submitted with the visa petition that details the exact start date for each group member who will be entering the United States under the P visa.

Certified Translations of Foreign Documents

Conclusion From the screaming fans at the Beatles concerts in the 1960s to the brilliance of a Rory McIlroy tee shot at Augusta, there is no doubt that the United States greatly benefits from foreign entertainment groups, athletes, and artists playing at American venues, in American tournaments, or on American professional teams. This article is a reminder, though, that behind every successful foreign entertainer, artist, or athlete in America is an immigration attorney who artfully constructed the evidence in support of the visa that allowed the foreign talent to enter the United States for the benefit of us all.

Endnotes 1

3 4

For any of the above visas, a petitioner must remember that any document that is in a foreign language must be translated and submitted with a Certification of Translation signed by a certified translator. This can be a challenge as promotional materials are often in the native language of that country. For example, even if a promotional poster simply shows the name of a group, the name of the venue, and the date and time of the performance in a foreign language, it would still be considered a foreign language document and a translation of the date and time must be included.

Itinerary Visas As one can imagine, a foreign entertainment group is often interested in booking and performing at more than one event while in the United States. USCIS regulations allow petitioners for an O or P visa to request entry for one specific event or for an itinerary or schedule of events.15 The O-1 visa can be valid for up to three years, the P-1A visa can be valid for up to five years, and the P-1B visa can be valid for up to one year. If a petitioner opts to submit an itinerary petition, there are a few protocols to keep in mind. THE NEBRASKA LAWYER

The visa petition must set forth all of the events at which the athlete, artist, or entertainer will perform. In other words, no dates or events can be hypothetical; a performance tour or schedule of events must be fully planned before filing the itinerary petition. Finally, any large gaps in time between events or competitions (two months or more) must be explained in the petition in order to justify the foreign national’s continued presence in the United States.

O-1 Visa: Individuals with Extraordinary Ability or Achievement, U.S. Citizenship and Immigration Services, https://www. uscis.gov/working-united-states/temporary-workers/o-1-visaindividuals-extraordinary-ability-or-achievement (last updated Jan. 5, 2017). Explore More Options-P-1A or P-1B Visa, U.S. Citizenship and Immigration Services, https://my.uscis.gov/exploremyoptions/ p1a_p1b_visa (last updated Jan. 11, 2019). 8 C.F.R. 214.2(o)(3)(iv)(A). 8 C.F.R. 214.2(o)(3)(iv)(B).

5 P-1A

6 7

Visas: Internationally Recognized Athlete, U.S. Citizenship and Immigration Services, https://www.uscis.gov/ working-united-states/temporary-workers/p-1a-internationallyrecognized-athlete (last updated July 15, 2015). 8 C.F.R. 214.2(p)(4)(ii)(A)(2018). 8 C.F.R. 214.2(p)(4)(ii)(B)(2018).

8 P-1B

Visas: A Member of Internationally Recognized Entertainment Group, U.S. Citizenship and Immigration Services, https://www.uscis.gov/working-united-states/ temporary-workers/p-1b-member-internationally-recognizedentertainment-group (last updated July 17, 2015). 8 C.F.R. 214.2(p)(4)(B)(2018).

10 8

C.F.R. 214.2(p)(3)(2018).

12 8

C.F.R. 214.2(p)(3)(2018).

11 8 13 8 14 8 15 8

C.F.R. 214.2(p)(4)(iii)(B)(2018). C.F.R. 214.2(p)(4)(iii)(B)(3)(2018).

C.F.R. 214.2(p)(4)(iii)(B)(3)(v)(2018). C.F.R. 214.2(p)(2)(iv)(A)(2018).

MAY/JUNE 2019

young lawyers section page Submissions to the Young Lawyers Section Page from young attorneys across the state are always welcome. If you’re interested in writing, please contact Amy Prenda, Editor, at aprenda@nebar.com.

Significant Cases and Trends in the Areas of Cyberlaw, Copyright Law, and Trademark Law by Alyssa Martin

Creative counselors should take note of the following significant cases and trends in the areas of cyberlaw, copyright law, and trademark law, which have implications for (1) web scraping, (2) online service providers’ liability for their users’ copyright infringement, (3) enforcement of copyrights, and (4) the registration of “immoral” or “scandalous” trademarks: 1. Web scraping – hiQ Labs, Inc. v. LinkedIn Corporation (hiQ) (N.D. Cal. 2017), on appeal In 2017, the District Court for the Northern District of California decided a significant case related to the legality of web scraping, a technique that has become increasingly employed by companies for a variety of purposes, including for purposes of fostering competition and innovation. “Web scraping” refers to the retrieval of content posted on the Internet using a program other than a web browser or application programming interface.1 It is typically done through a computer script or “bot” that will send tailored queries to websites to retrieve specific pieces of content, either as a means of extracting data across an array of websites or as a means of extracting a large amount of data from a specific website.2 For example, a real estate data analytics company devised a program for scraping online county public records so that it could gather certain county-level data across an array of websites, aggregate and standardize said data, and license it to customers.3 Others have used scraping tools to enable consumers to find deals and discounts in online services, to identify and correct issues of algorithmic bias, and to identify and extract data for analysis, among other things.4 On the less innovative and more pernicious side, some have used scraping tools to copy websites wholesale and to free ride off of the innovation of others.5 Website owners have tried to prevent others from scraping their websites using a variety of legal means, including challenging scraping as a violation of contract law (on the theory that scraping violates the terms of use of a website, which terms often prohibit scraping and the use of scraping tools), the Computer Fraud and Abuse Act, copyright law, trademark law, and tort law (on the theory that scraping constitutes digital trespass to chattels), among other things.6 These challenges have often been successful, especially as it relates to the Computer Fraud and Abuse Act (“CFAA”).7 Originally THE NEBRASKA LAWYER

conceived as a limited federal anti-hacking statute, the CFAA, which contains both civil and criminal penalties, has taken on new form and has been wielded by prosecutors and companies to go after people for defying website owners’ wishes regarding the collection and use of data from their sites.8 Over time, courts adopted the following rules as a means of clarifying and limiting liability under the CFAA: (1) “a violation of the terms of use of a website—without more—cannot establish liability under the CFAA” (otherwise, many ordinary people would unwittingly become criminals, as people often violate website terms of use without knowing it); and (2) “a defendant can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly.”9 With respect to the latter, courts have found that a defendant violates the CFAA when he or she continues to access a website after receiving a cease and desist letter purporting to revoke the defendant’s access to the website.10 Against this backdrop, hiQ Labs, Inc. (“hiQ”) brought suit against LinkedIn Corporation (“LinkedIn”) after LinkedIn sent hiQ a cease and desist letter purporting to revoke hiQ’s access to LinkedIn’s website.11 LinkedIn’s cease and desist letter represented a significant blow to hiQ’s business, as hiQ’s business was built on scraping publicly available data from LinkedIn’s website and using this information to provide statistical analysis to companies about their workforces.12 hiQ sought a preliminary injunction against LinkedIn on the basis that LinkedIn’s actions constituted “unfair business practices” under Cal. Bus. & Prof. Code §§ 17200 et seq., among other things.13 LinkedIn argued that hiQ’s actions violated the CFAA, the Digital Millennium Copyright Act, and the common law of trespass to chattels, among other things.14 In a rather surprising move given the history of caselaw in this area, the District Court granted hiQ’s request for a preliminary injunction, finding that the balance of hardships tipped sharply in hiQ’s favor and that there were serious questions going to the merits of hiQ’s unfair business practices claim and LinkedIn’s CFAA claim.15 The Court found that the balance of hardships tipped sharply in favor of hiQ because hiQ would likely go out of business were it not allowed to scrape publicly available data from LinkedIn’s website.16 The Court also discounted the extent of LinkedIn’s touted harm—the potential threat to LinkedIn users’ privacy interests—because there was little evidence that hiQ threatened users’ privacy expectations by

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YOUNG LAWYERS SECTION PAGE scraping and distributing data that the users themselves had made publicly available.17 The Court also found that hiQ raised serious questions going to the merits of its unfair business practices claim because there was evidence that LinkedIn was leveraging its power in the professional networking market to secure an anticompetitive advantage in another market—the data analytics market.18 The Court observed that the timing of LinkedIn’s termination of hiQ’s access to the LinkedIn website was fishy in the sense that it coincided with the rollout of a workforce analytics product that LinkedIn was hoping would supplant hiQ’s workforce analytics product.19 The Court noted that while hiQ would have to do much more to prove its claim of unfair competition, hiQ provided at least some evidence to support its assertion that LinkedIn’s revocation of access was “made for the purpose of eliminating hiQ as a competitor in the data analytics field,” and such evidence was sufficient to justify an injunction against LinkedIn.20 As for LinkedIn’s contention that hiQ violated the CFAA by ignoring LinkedIn’s cease and desist letter, the Court found that there were nevertheless serious questions going to the merits of this claim due to the publicly available nature of the data that hiQ was scraping.21 The Court ultimately concluded, after reviewing the history of the CFAA and considering the policy implications, that the CFAA was best read not to apply to situations involving access to public data, but was instead best read to apply to situations involving access to nonpublic data gained by bypassing an authentication system (such as password protection).22 The Court noted that under LinkedIn’s interpretation of the CFAA, “a website would be free to revoke ‘authorization’ [to its website] with respect to any person, at any time, for any reason, and invoke the CFAA for enforcement, potentially subjecting an Internet user to criminal, as well as civil, liability,” a “deeply concerning” result.23 The Court also found that the public interest weighed in favor of an injunction, as “conferring on private entities such as LinkedIn the blanket authority to block viewers from accessing information publicly available on its website for any reason, backed by sanctions of the CFAA, could pose an ominous threat to public discourse and the free flow of information promised by the Internet.”24 The Court thus enjoined LinkedIn from blocking hiQ’s access to and scraping of its website.25 LinkedIn appealed this decision to the Ninth Circuit Court of Appeals, and several notable organizations and attorneys provided amici brief in the case. The briefing on appeal focused on the policy implications of the Court’s ruling, with both sides agreeing that the stakes were high from an innovation perspective but disagreeing as to how those stakes cut. On the one hand, hiQ and its supporters argued that LinkedIn’s position would threaten open access to the Internet, criminalize socially valuable scraping tools and so-called “good bots” (such as the bots employed by services like Google), THE NEBRASKA LAWYER

and would impose criminal liability on Internet users without adequate notice to users or consistency in enforcement.26 On the other hand, LinkedIn and its supporters argued that hiQ’s position would undermine consumer privacy, incentivize so-called “bad bots” (such as bots employed for the purpose of replicating or crashing websites), and would hinder innovation by encouraging people to free ride off of the investments of website owners without obtaining those owners’ consent.27 The Ninth Circuit held an extended oral argument on this matter on March 15, 2018, and, as of this writing, has yet to rule on the matter. Creative counselors should be on the lookout for the Ninth Circuit’s ruling in hiQ v. LinkedIn, as it will have significant implications for companies engaged in the business of web scraping, particularly those engaged in the business of scraping of public information from the Internet. 2. Online service providers’ liability for their users’ copyright infringement – Mavrix Photographs, LLC v. LiveJournal, Inc. (“Mavrix”) (9th Cir. 2017); BMG Rights Management (US) LLC v. Cox Communications, Incorporated (“BMG”) (4th Cir. 2018); Ventura Content, Ltd. v. Motherless, Inc. (“Ventura”) (9th Cir. 2018) Recent cases involving the Digital Millennium Copyright Act of 1998 (“DMCA”) illustrate the complexities courts face in managing the tradeoff inherent in the DMCA and copyright law generally between “supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.”28 The DMCA, for its part, represents a delicate balancing act between the interests of online service providers (“OSPs”), such as internet service providers and website operators, and the interests of copyright holders. While OSPs want to host user-generated content on their websites and to store such content on their servers without being held liable for their users’ infringing acts, copyright holders generally want to hold OSPs responsible for their users’ copyright infringement to prevent the Internet from becoming a vehicle for large-scale copyright infringement. One way in which the DMCA balances these competing interests is by giving OSPs some safe harbors—if an OSP qualifies for the relevant safe harbor(s), then the OSP will not be held liable for its users’ copyright infringement and will instead be treated as a mere conduit of infringing content.29 Because an OSP’s responsibility for its users’ copyright infringement can result in significant liability—including exposure to statutory damages of up to $150,000 per act of infringement and attorney fees30— OSPs have a particular incentive to qualify for safe harbor protection under the DMCA. In Mavrix, BMG, and Ventura, the Courts reached mixed results in applying the DMCA’s safe harbors, reinforcing the need for creative counselors to keep abreast of developments in the DMCA landscape and to pay attention to legal nuances and facts in this area. MAY/JUNE 2019

YOUNG LAWYERS SECTION PAGE OSPs that host user-generated content on their websites and store such content on their servers must establish that the user-generated content was “stored at the direction of the user” in order to qualify for the relevant DMCA safe harbor.31 This provision was at issue in Mavrix and Ventura. In Mavrix, Plaintiff Mavrix Photographs, LLC (“Mavrix”) sued defendant LiveJournal, Inc. (“LiveJournal”) when celebrity photos owned by Mavrix appeared on one of LiveJournal’s online platforms.32 Specifically, the photos appeared on LiveJournal’s “Oh No They Didn’t” (“ONTD”) platform, which is a platform that features up-to-date celebrity content submitted by users.33 Of relevance, LiveJournal does not automatically post every piece of content submitted by its users; LiveJournal curates its content by enlisting volunteer moderators to review and screen user submissions before posting them.34 Evidence showed that moderators of the ONTD platform would screen submissions for copyright infringement, pornography, and harassment, and that they would only post submissions that were “relevant to new and exciting celebrity news.”35 Consequently, only about one-third of user submissions end up being posted on the ONTD platform.36 In light of the above, one can infer that the Mavrix photos that appeared on the ONTD platform were submitted by users and were posted to the LiveJournal website after being reviewed by moderator(s). On these facts, the district court granted summary judgment to LiveJournal and found that LiveJournal could not be held responsible for its users’ copyright infringement because (a) the volunteer moderators were not “agents” of LiveJournal (and thus their actions could not be attributed to LiveJournal); and (b) the Mavrix photos were stored on LiveJournal’s servers at the direction of users because it was the users who submitted the photos (i.e., LiveJournal’s moderation of the user-generated content is immaterial).37 The Ninth Circuit reversed and remanded, finding that there were genuine issues of material fact as to whether the moderators were agents of LiveJournal and as to whether user-generated content on the ONTD platform was stored at the direction of users.38 With regard to the latter, the Court noted that “[i]nfringing material is stored at the direction of the user if the service provider played no role in making that infringing material accessible on its site or if the service provider carried out activities that were ‘narrowly directed’ towards enhancing the accessibility of the posts” (e.g., reformatting of the post to make it easier to read).39 The Court further noted that while screening for infringement and harassment may be considered “accessibility-enhancing” and thus insufficient to take an OSP outside the DMCA safe harbor, screening for substance—like screening for “new and exciting celebrity gossip”—might not be considered “accessibility-enhancing” and thus might place the OSP outside the DMCA safe harbor.40 Critics of the Mavrix ruling note that it has the perverse effect of discouraging online platforms from moderating their content, which could, THE NEBRASKA LAWYER

paradoxically, lead to a proliferation of unlawful and infringing content on the Internet, as it incentives OSPs to simply rubberstamp user submissions without reviewing them.41 The Court reached a somewhat different result in Ventura. In Ventura, Ventura Content, Ltd. (“Ventura”), a distributor of pornographic movies, sued Motherless, Inc. (“Motherless”), a website featuring pornographic video clips, when copyrighted clips of Ventura movies appeared on the Motherless website after being posted by users.42 Ventura argued that the Ventura clips were stored at the direction of Motherless, not users, because Motherless screened user submissions for child pornography, copyright infringement, and bestiality, thus playing some role in which user submissions were publicly displayed on the Motherless website.43 The Court rejected Ventura’s argument, noting that Motherless’s screening was limited to screening for illegality, not substance, and the Court distinguished Mavrix on this basis.44 The Court emphasized the lack of discretion exercised by Motherless when moderating user-generated content, observing—and endorsing—Motherless’s rule of “anything legal stays.”45 In light of the competing, fact-specific rulings of Mavrix and Ventura, creative counselors should advise OSPs to exercise caution when it comes to moderating user-generated content. Other areas of the DMCA have likewise yielded competing, fact-specific rulings. For example, in BMG and Ventura, the Courts considered the DMCA’s requirement that OSPs “reasonably implement” a policy for terminating repeat copyright infringers in order to obtain the benefit of the DMCA safe harbors, and the Courts came to different conclusions.46 In Cox, the Fourth Circuit held that Cox Communications, Incorporated (“Cox”) failed to reasonably implement a policy for terminating repeat infringers and thus could potentially be held liable for its Internet users’ copyright infringement because, although Cox had a 13-strike policy for terminating repeat infringers, Cox failed to enforce this policy “in any meaningful fashion,” as it would often reinstate terminated users and disregard notices that its users were committing copyright infringement.47 As a result of this ruling, Cox was exposed to potentially $25 million in damages.48 The Ninth Circuit reached a different result in Ventura. There, the Court concluded, as a matter of law, that Motherless reasonably implemented a policy for terminating repeat copyright infringers, notwithstanding the absence of a detailed written policy to that effect, because Motherless’s sole employee testified that he terminated users after receiving multiple notices of infringement and after considering many factors, including the user’s history, the severity and extent of the infringement, and the user’s intent, among other things.49 The Court noted that there was a “paucity of proven failures [by Motherless] to terminate,” and that safe harbor eligibility “does not require perfection, just ‘reasonable’ implementation

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YOUNG LAWYERS SECTION PAGE of the policy.”50 These set of rulings again reinforce the need for creative counselors to keep abreast of DMCA-related developments and to advise online service providers accordingly in regard to policies and practices. 3. Enforcement of copyrights – Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC (“Fourth Estate”) (U.S. S. Ct. 2019) The United States Supreme Court recently clarified that copyright owners wishing to enforce their rights in a copyrighted work generally can only commence an infringement suit after the work has been registered by the United States Copyright Office.51 In so doing, the Court resolved a circuit split on this matter, as the Ninth Circuit had previously held that a copyright infringement suit can be initiated with respect to a copyrighted work upon the filing of an application for copyright protection of the work, as opposed to upon registration.52 In response to plaintiff’s concern that copyright owners would lose the ability to meaningfully enforce their copyrights if they have to wait for registration before suing for infringement, the Court stated: True, the statutory scheme has not worked as Congress likely envisioned. Registration processing times have increased from one or two weeks in 1956 to many months today. . . . Delays in Copyright Office processing of applications, it appears, are attributable, in large measure, to staffing and budgetary shortages that Congress can alleviate, but courts cannot cure. . . . Unfortunate as the current administrative lag may be, that factor does not allow us to revise [the Copyright Act’s] congressionally composed text.53

In sum, creative counselors should be aware of the following cases and trends: 1. Web scraping continues to be a legally fraught endeavor, particularly when it comes to the Computer Fraud and Abuse Act, but the Ninth Circuit may, depending on the outcome of hiQ, make it more difficult for website owners to prevent businesses from scraping publicly available data on their websites.

Because copyright registration can take many months (on average, seven months), creative counselors should advise their clients to promptly register their copyrightable works if they wish to enforce their rights to such works by suing for infringement. 4. Registration of “immoral” or “scandalous” marks – In re: Brunetti (“Brunetti”) (Fed. Cir. 2017), petition for certiorari granted The United States Supreme Court is poised to decide a significant trademark question this term: Is the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks facially invalid under the free speech clause of the First Amendment? The Federal Circuit in Brunetti concluded that the answer to this question was yes.54 The dispute at issue arose when Erik Brunetti sought to register the mark FUCT and the Patent and Trademark Office (“PTO”) denied registration on the basis that the mark consisted of or comprised “immoral” or “scandalous” matter.55 The Federal Circuit upheld the trademark board’s conclusion that the mark was vulgar and therefore “scandalous,” but the Court held that the Lanham Act’s prohibition on registration of immoral THE NEBRASKA LAWYER

or scandalous marks was unconstitutional under the First Amendment.56 In so ruling, the Court noted that the Supreme Court, in Matal v. Tam, 137 S. Ct. 1744, (2017), invalidated the Lanham Act’s prohibition on registration of disparaging marks because the prohibition violated the First Amendment by discriminating on the basis of viewpoint.57 In Brunetti, the Federal Circuit held that the prohibition on registration of immoral or scandalous marks violated the First Amendment because it discriminated on the basis of content and failed to withstand strict scrutiny review.58 (The Court also found that the prohibition failed even the intermediate scrutiny standard of review reserved for commercial speech.59) The U.S. Supreme Court granted certiorari in this case and set oral argument for April 15, 2019. Creative counselors should be on the lookout for the Supreme Court’s decision in this case, as it should provide valuable insight into the interplay between the Lanham Act and the First Amendment. If the Court affirms, which it likely will, one can expect an uptick in trademark applications submitted to the PTO based on heretofore unregistrable marks, as well as an uptick in trademark litigation to sort out trademark rights in scandalous, immoral, or disparaging marks.

2. The Digital Millennium Copyright Act continues to be a source of conflicting and often highly fact-specific rulings. Businesses wishing to avail themselves of the protections of the DMCA and its safe harbors must monitor developments in the DMCA landscape and adjust their policies and practices accordingly. 3. The United States Supreme Court has clarified that registration of a copyrighted work is a precondition to filing an infringement suit in many instances. As a result, businesses wanting to enforce their copyrights in a diligent and thorough manner should promptly register their copyrightable works, lest they be caught in a situation where they must hold off suing an infringer until they obtain a registration. 4. Depending on the outcome of Brunetti, the PTO may no longer be able to deny registration of “immoral” or “scandalous” trademarks, which could open a floodgate of applications for controversial marks and lawsuits over the rights to controversial marks. This outcome would represent yet another victory in the battle between the First Amendment and the Lanham Act. MAY/JUNE 2019

YOUNG LAWYERS SECTION PAGE ALYSSA MARTIN is an associate at Rembolt Ludtke specializing in intellectual property, corporate governance, and business litigation. Prior to working at Rembolt, Alyssa clerked for Judge David Barron on the U.S. Court of Appeals for the First Circuit and worked at a Silicon Valley law firm, where she practiced startup and securities law. Alyssa graduated from Harvard Law School (2014), where she served as Articles Co-Chair for the Harvard Law Review, and Stanford University (2010).

2 3

6 7 8 9

at 1117-18.

19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id.

26 See

at 1050. at 1056.

at 1056-57.

at 1056.

Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 599-602 (9th Cir. 2018).

43 Id. 44 Id. 45 Id.

at 605.

at 604-08.

46 17

U.S.C. § 512(i)(1)(A).

48 Id.

at 300.

50 Id.

at 618.

52 Id.

at 887.

47 BMG

Rights Management (US) LLC v. Cox Communications, Incorporated, 881 F.3d 293, 303-04 (4th Cir. 2018).

49 Ventura

Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 613-19 (9th Cir. 2018).

at 1103-04.

18 Id.

at 1049.

42 Ventura

Labs, Inc. v. LinkedIn Corporation, 273 F. Supp. 3d 1099, 1103 (N.D. Cal. 2017).

17 Id.

33 Id.

generally Brief of Amici Curiae Electronic Frontier Foundation, et al., Case No. 14-56596 (9th Cir.), Mavrix Photographs LLC v. LiveJournal, Inc. (June 22, 2015).

supra note i, at 401-08 (collecting cases).

at 1105-06.

Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045, 1048-50 (9th Cir. 2017).

41 See

See, e.g., Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1067 (9th Cir. 2016).

16 Id.

32 Mavrix

40 Id.

Id.

15 Id.

U.S.C. § 512(c).

U.S.C. § 504.

at 1056 (emphasis added) (citing UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1092 (C.D. Cal. 2008)).

supra note i, at 374-75.

See generally Sellars, supra note i (collecting cases).

14 Id.

31 17

30 17

39 Id.

Rory Van Loo, Rise of the Digital Regulator, 66 Duke L.J. 1267, 1287 (2017). See generally Sellars, supra note i.

13 Id.

U.S.C. § 512.

38 Id.

Craigslist, Inc. v. 3Taps Inc., 942 F. Supp. 962, 966-67 (N.D. Cal. 2013) (noting Craigslist’s allegation that defendant 3Taps “essentially replicated [and posted] the entire craigslist website” on its website).

12 Id.

Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005).

29 17

37 Id.

Fidlar Technologies v. LPS Real Estate Data Solutions, Inc., 82 F. Supp. 3d 844, 846-48 (C.D. Ill. 2015).

11 hiQ

28 MGM

36 Id.

Id. at 373-74.

10 Sellars,

generally Brief of LinkedIn Corporation, Case No. 17-16783 (9th Cir.), hiQ Labs, Inc. v. LinkedIn Corporation (Oct. 3, 2017) (Dkt. No. 6); Brief of Amicus Curiae Craigslist, Inc., Case No. 17-16783 (9th Cir.), hiQ Labs, Inc. v. LinkedIn Corporation (Oct. 10, 2017) (Dkt. No. 17).

35 Id.

Andrew Sellars, Twenty Years of Web Scraping and the Computer Fraud and Abuse Act, 24 B.U. J. Sci. & Tech. L. 372, 373 (2018).

4 Sellars,

27 See

34 Id.

Endnotes 1

Foundation, et al., Case No. 17-16783 (9th Cir.), hiQ Labs, Inc. v. LinkedIn Corporation (Nov. 27, 2017) (Dkt. No. 42).

51 Fourth

Estate Public Benefit Corporation v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).

at 1106-07.

53 Id. 54 In

55 Id.

at 1108-14.

56 Id.

at 1110.

57 Id. 58 Id.

at 1119.

59 Id.

at 1120.

at 892.

re Brunetti, 877 F.3d 1330 (Fed. Cir. 2017). at 1336-37. at 1337-40. at 1341.

at 1342-48. at 1350-55.

generally Brief of Amici Curiae Electronic Frontier

THE NEBRASKA LAWYER

MAY/JUNE 2019

THE NSBA YOUNG LAWYERS SECTION {YLS} PRESENTS:

2019 YOUNG LAWYERS SECTION {YLS} BEST PRACTICES SEMINAR FRIDAY MAY 17, 2019 9:00 AM - 4:00 PM CREIGHTON UNIVERSITY SCHOOL OF LAW 2133 CASS STREET OMAHA, NEBRASKA

9:00 am

Ten Ways to Be More Persuasive in Your Next Mediation Amy Van Horne

12:15 pm

Lunch

12:45 pm

Should I or Shouldn’t I Take This Case?

Kutak Rock LLP

Dave E. Copple & Allison K. Rockey

This session will provide lawyers with 10 practical tips to be more persuasive in a mediation.

10:00 am

Copple, Rockey, McKeever & Schlecht, PC LLO

This session will explain the process of evaluating a potential personal injury case from a Plaintiff’s perspective.

The Basics of the Counsel for Discipline Mark A. Weber Nebraska Counsel for Discipline

1:45 pm

This session will provide lawyers with an overview of the responsibilities of the Counsel for Discipline and will also address decorum, candor to the tribunal, punctuality and other issues of legal professionalism.

A View from the Bench: How Logic and Common Sense Can Lead to Success Hon. James G. Kube District Judge of the 7th Judicial District

This session will provide lawyers with a judge’s perspective on what it means to be a lawyer.

This session is FREE to all Nebraska attorneys but you must register

11:00 am

Break

2:45 pm

Break

11:15 am

Changing Our Approach to the Criminal Trial

3:00 pm

Now Your Aunt Wants a Will: Estate Planning Tips Every Lawyer Should Know

Bell Island

Christin P. Lovegrove

Island Law Office, PC LLO

Heinisch & Lovegrove Law Office, PC LLO

This session will provide attorneys who practice criminal law with practice tips for reframing their cases so they are proactive instead of just being reactive to the prosecutor’s case.

This presentation will cover the basic tips and issues when dealing with a client’s estate plan.

APPROVED FOR NEBRASKA AND IOWA CLE CREDIT

6.0 HOURS INCLUDING 1 HOUR OF ETHICS DISTANCE LEARNING NE MCLE #171735 IA MCLE #315840 REGULAR / LIVE NE MCLE #171734 IA MCLE #315841 Only 5 distance learning CLE hours may be claimed per year for Nebraska

THE NEBRASKA LAWYER

MAY/JUNE 2019

feature article

Understanding Copyright in Creative Works: Do I Need a License?

by Grayson J. Derrick & Patrick M. Kennedy

Copyright can be one of the most misunderstood topics in intellectual property law. Unlike other forms of intellectual property, copyright protection arises automatically with the fixation of a work—and little action is necessary in order for the author of that work to have legal, enforceable rights in his or her work. Compounding the confusion is the complex set of limitations on a copyright owner’s rights. It is important that consumers of creative works—such as music, books, and art— understand the contours of their rights with respect to such works, as well as the bounds of the copyright owner’s rights. This article provides a basic overview of copyright protection and licensing, and also sets out the steps and actions businesses can take to avoid potentially disastrous results of copyright infringement. First, we summarize the nature of copyright and how it arises. We then examine the most commonly-invoked limitations on the exclusive rights of a

Grayson J. Derrick

What Is Copyright? Copyright is an intellectual property right that provides an owner with several exclusive rights with respect to an original work. Works eligible for copyright protection include literary works (e.g., books, software code), musical works, dramatic works, choreographic works, pictorial, graphic, and sculptural works, motion pictures, sound recordings, and architectural works. For a work to be protected by copyright, it must: (1) be original (in that it was not copied from another existing work); (2) be fixed in a tangible medium of expression—that is, it must exist in a permanent form such that a person can perceive it, reproduce it, or communicate it for a period of more than transitory duration; and (3) have a minimum degree of creativity.

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Patrick M. Kennedy

Grayson Derrick is a partner at Baird Holm LLP, and chair of the Firm's Technology and Intellectual Property Section. He focuses his practice on the development, acquisition and use of technology and other forms of intellectual property. He handles a wide range of matters relating to various aspects of intellectual property law, including domestic and international trademark prosecution, copyright prosecution and resolving domain name and other Internet related conflicts. THE NEBRASKA LAWYER

copyright owner and describe how and when the user of a copyright owner may rely on them. Lastly, we will walk through the licensing process generally, and will outline important considerations that a potential copyright licensee should make.

Patrick Kennedy is an Associate in Baird Holm LLP’s Technology and Intellectual Property Section. Patrick is a registered patent attorney and works with clients to provide the most comprehensive and effective protection for their intellectual property—including through patents, copyrights, and trademarks. He also advises on issues related to technology acquisition and data privacy. 31

MAY/JUNE 2019

UNDERSTANDING COPYRIGHT IN CREATIVE WORKS Once a work is fixed in a tangible medium, the author gains copyright protection. Although registration of a work with the Copyright Office may be a desirable—and, in fact, necessary before an infringement claim can be filed—it is not required to obtain copyright. Copyright, with each of its exclusive rights, attaches upon fixation.

argue over this definition and its application to case-specific facts, court opinions tell us that showing a movie or playing music at a restaurant or bar is a public performance, as is playing music in a live venue, in elevators, or on the radio, but that playing music or displaying a copyrighted photograph in your home is not.

Exclusive Rights of a Copyright Owner

Public Performance by Means of Digital Audio Transmission

The exclusive rights comprising copyright include the right to (1) reproduce the work; (2) prepare derivative works based on the work; (3) distribute or sell copies of the work; (4) in the case of literary, musical, dramatic, and choreographic works, to publicly perform the work; (5) in the case of literary, musical, dramatic, and choreographic works, and pictorial, graphic, or sculptural works, to display the work publicly; and (6) in the case of sound recordings, to perform the work publicly by means of digital audio transmission. Each of these exclusive rights is separate and independent of the others, and the grant of one of these rights (for example, through a license), is a grant only with respect to that one right, and not the others. While the precise definition of each of the copyright owner’s exclusive rights is frequently the subject of debate (and litigation), there are a few concepts that are widely accepted, and that can be important in determining whether a license to use a copyrighted work is necessary.

Derivative Works A derivative work is a work based upon one or more preexisting works. Examples include (but are not limited to) motion pictures based on novels, translations of a novel or play, editorial revisions of a previously published book, sculptures based on a preexisting drawing, drawings based on photographs, and revisions to a website. While a derivative work may carry copyright independently of the preexisting work on which it is based, copyright in the derivative work protects only the new material appearing for the first time in the derivative work— and the right to prepare a derivative work (and hold copyright to the derivative work) is exclusive to the owner of the preexisting work. An individual or organization wishing to prepare a derivative work must ensure that, in doing so, it does not infringe the exclusive rights of the owner of the copyright in the preexisting work (either by obtaining a proper license or by falling within one of the limitations described below).

Public Display and Performance A “public display” or a “public performance” of a work consists of a display or performance, as the case may be, of a work, at a place open to the public or where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. Though copyright litigants may THE NEBRASKA LAWYER

This right was added by Congress in 1995 in an attempt to give owners of sound recordings the right to perform a work by means of a digital audio transmission—that is, a transmission in a non-analog format. Examples include the performance of a song on Internet or satellite radio, or through a live social media broadcast.

What Constitutes Copyright Infringement? Copyright infringement is the use of a copyrighted work (whether or not registered) without the permission of the copyright owner, such that one or more of the exclusive rights of the copyright owner is infringed. Put another way, one infringes another’s copyright when he or she reproduces, distributes, displays, performs, or makes derivative works from the copyrighted work without the permission of the owner. Usually, copyright infringement constitutes a civil violation of law, and copyright holders must take infringers to court in order to recover (recall that the copyright must be registered in order for a copyright owner to sue for infringement). Frequently, once an infringer is “caught” by the copyright owner, the threat of litigation is enough to persuade the infringer to cease its use of the work and/or settle for a negotiated amount or license arrangement. Where the infringement is willful, the infringer may be subject to criminal fines and penalties, as well as imprisonment.

Limitations on Exclusive Rights Due to the imprecise nature of the definitions describing a copyright owner’s exclusive rights, analysis of whether an act constitutes infringement frequently depends on the facts and circumstances of the act at issue. Even where a copyright owner has established infringement, the copyright defendant may still not be liable if he or she can establish that a limitation on the owner’s exclusive rights, such as one of those described below, applies.

Fair Use One of the most frequently-invoked limitations on a copyright owner’s exclusive rights is the fair use limitation. The use of a copyrighted work is not infringement, as a matter of law, if used for criticism, comment, news reporting, teaching, scholarship, or research, provided that the use is fair. In MAY/JUNE 2019

UNDERSTANDING COPYRIGHT IN CREATIVE WORKS determining whether such a use is fair, a court will look to the following factors: The Purpose and Character of the Use. To justify the use of a copyrighted work, the user must demonstrate that the use advances knowledge or progress in a way different from the copyrighted work. Recently, courts have assessed whether the use of the work was “transformative” or whether the use had a similar purpose or character. Commercial use of a copyrighted work for profit will weigh heavily against a finding of fair use.

First Sale Doctrine Recall that a copyright owner has the exclusive right to sell or transfer the copyrighted work. In order to protect the owner of a lawful copy of a copyrighted work from liability for the private sale of that copy, copyright law permits the owner of the copy to sell or transfer such copyrighted work. There are several nuances to this doctrine, including that it generally does not apply to software because the owner of a “copy” of software is usually the owner of a mere license to use the software.

The Nature of the Work. This factor relates to the creative nature of the copyrighted work. Use of a more creative work (such as a novel, movie, or song) is less likely to support a finding of fair use than use of a factual work (such as a trade paper or newspaper article). Additionally, the fact that a work is unpublished will cut against a finding of fair use.

Limitations on Display, Performance, and Reproduction Rights

Amount and Substantiality of Portion Used. If the use of a copyrighted work includes a significant portion of the copyrighted work, a court will be less likely to find fair use. However, even where only a small portion of the work is used, a court may find that the use was unfair if the portion used was an important part of the work.

THE NEBRASKA LAWYER

Effect of Use Upon Market for Copyrighted Work. If the unlicensed use of a copyrighted work will have a harmful effect on the current or future market for the copyrighted work, a court will be less inclined to find fair use.

The display or performance of a copyrighted work is not considered to be public if the display or performance occurs in the course of instruction by an educational institution or as a part of religious services. Subject to certain restrictions, libraries and archival entities may reproduce copyrighted works for preservation purposes.

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MAY/JUNE 2019

UNDERSTANDING COPYRIGHT IN CREATIVE WORKS

License to Use a Copyrighted Work When a desired use of a copyrighted work would constitute infringement of one or more of the copyright owner’s exclusive rights, and when none of the above limitations apply, a license is necessary to avoid liability for infringement. A license is simply a contract between the copyright owner and a licensee. A license may grant a licensee any one or more of the exclusive rights held by the copyright owner. While there is no requirement that consideration be given in exchange for a license, copyright owners frequently charge royalty fees, place restrictions on the licensee, or require that the licensee meet some other obligation with respect to the work. Typically, a license agreement will describe the terms and restrictions of the licensee’s use of the copyrighted work. Frequently, the license will permit the licensee to use the copyrighted work for only a limited period of time or only in a specific geographic area. Violation of the terms of the license agreement may expose the licensee to damages under the license agreement and may also constitute copyright infringement. Often times, third-party organizations and associations are authorized by the copyright holder to engage in licensing transactions on behalf of the copyright holder. For example, owners of copyright in books and written works are generally represented by the Authors Guild, owners of copyright in photographs are frequently represented by the American Society of Media Photographers (“ASMP”) or Getty Images, and motion picture artists are generally represented by licensing arms of the motion picture studio (such as Sony Pictures or The Walt Disney Studios). Depending on the nature of the copyrighted work for which a license is desired, as well as the intended use of the work, several licenses may, in fact, be necessary. Recall each of the exclusive rights granted to a copyright holder. In the case of a song, a licensee may wish to perform the song in a live, public setting, but also stream a live video of the performance on the licensee’s social media page. The live performance (and the streaming) would certainly constitute a public performance, but streaming the video of the performance may also constitute distribution of the work or transmission by digital means. Because each of these acts is within the exclusive rights of the copyright owner, a license for each act is necessary. As an example, below is a summary of the various licenses available for musical works: Performance License. The performance license grants to the licensee the right to publicly perform the copyrighted song, whether in a live performance or as part of a multimedia presentation. Typically, a performance license is granted in exchange for royalties to songwriters, musicians, composers, and/or publishers. Synchronization (“Sync”) License. Sync licenses are among the most common music licenses. A THE NEBRASKA LAWYER

sync license permits the licensee to use a song and synchronize it with a visual media. These licenses are often necessary for television shows, movies, and promotional videos. Master Recording License. This type of license gives the licensee the right to use the recording of a song. The term “master” is derived from the term “master record” that publishers frequently used to refer to the original, acetate copy of the studio recording of an album or song that was used to create record presses and vinyl copies. The major difference between a master license and a sync license is that the sync license permits the licensee to re-record the song for a specific project, while the master license permits the use of the pre-existing record. Mechanical License. A mechanical license permits the licensee to reproduce a song onto a recording. Artists that wish to record “cover” songs need mechanical licenses in order to do so. Blanket License. Performing Rights Organizations (“PROs”) offer blanket licenses that allow a licensee to have access to a portion or complete catalog of songs for an annual fee. The licensee can be, for example, a bank branch that wants to play background music, or a local bar that hosts a live cover band. Additionally, there are frequently several interested parties to a music license. For example, while a singer/songwriter is generally the author and copyright owner of any songs that he or she writes, others who contribute to a song recording (such as sound technicians, background musicians, etc.) are typically considered authors of the song recording itself. Complicating the licensing process further is the fact that record deals may require artists to assign copyright in certain recordings to the record label. It is important that a music licensee obtain the appropriate licenses from the proper parties before using copyrighted music in an infringing way.

How Do You Acquire the Appropriate Licenses? Because there are so many different types of licenses related to musical works, licensing musical works can involve more than one step. For performance licenses, look to one of the three major PROs—American Society of Composers, Authors and Publishers (“ASCAP”), Broadcast Music, Inc. (“BMI”), and Society of European Stage Authors and Composers (“SESAC”). Each of these PROs functions as a clearinghouse to license the public performance rights of music compositions. Together, ASCAP, BMI, and SESAC can license virtually any copyrighted song. Each of them represents a huge number of artists and composers, but none of the three PROs repreMAY/JUNE 2019

UNDERSTANDING COPYRIGHT IN CREATIVE WORKS sent each and every copyright owner. A BMI blanket license only allows the licensee to publicly perform songs in BMI's catalog. The same is true for blanket licenses from ASCAP and SESAC. Therefore, unless a conscious effort is made to perform music exclusively from any single PRO’s catalog, the safest choice is to acquire licenses from all three major PROs. And, of course, keep in mind that a PRO can generally grant only a performance license. With respect to the other licenses available for musical works (sync, master, and mechanical), the record label is usually the licensing entity. For non-musical works, licenses may be acquired from the Authors Guild, ASMP, Getty, or a motion picture studio, as appropriate. Generally, publishers of copyrighted works have a public-facing licensing office that is well-equipped to handle licensing requests. Some of the larger licensing organizations even have self-service, online licensing portals.

Who Should Obtain the License? Just as a licensee must ensure that it is dealing with the appropriate party in a licensing transaction, the licensee must also ensure that the license permits the appropriate party to use the licensed work as intended. Each party responsible for the use of a copyrighted work must ensure that it is permitted to do so under law. In the case of musical performances, the general rule is that the premises owner, concert or gathering promoter, or the website owner will obtain the license to use the music. Individuals or organizations, for example, planning a meeting or party at a venue during which music will be played, should

THE NEBRASKA LAWYER

ensure that the venue is properly licensed. For use of a nonmusical work, the appropriate party is usually the individual or business that plans to copy, distribute, display, or make derivative works based upon the original work.

Conclusion Individuals and businesses seeking to utilize copyrighted work should take steps to ensure that they have a lawful basis for using the work. Depending on the type of work and the intended use of the work, it is necessary to conduct a thorough analysis of whether the use is violative of the copyright owner’s exclusive rights or whether the use may be covered by a limitation on the copyright owner’s exclusive rights. If a license is required, an assessment of the appropriate parties—on both sides of the transaction—as well as the type of licenses needed is critical. Taking these actions as early as possible, before using the copyrighted work, will help to avoid a potentially costly infringement in the future. A successful infringement claim may permit the copyright owner to recover statutory damages ranging from $750 to $30,000 per work. For willful infringement, a court may award statutory damages in an amount up to $150,000 per work. Additionally, criminal penalties for infringement are cumulative—that is, they increase with each subsequent act of infringement—and can include imprisonment for up to ten years. While copyright licenses can sometimes carry fees, the fees generally pale in comparison to the significant amount of damages a copyright infringer may face.

MAY/JUNE 2019

The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

16th Annual GREATER NEBRASKA GOLF SCRAMBLE Friday, June 14, 2019 at Wild Horse Golf Club in Gothenburg, NE 40950 Rd 768, Gothenburg, NE 69138 (308) 537-7700

Golf Scramble - Friday, June 14, 2019

Format: 4-Person Scramble Lunch & Driving Range: 10:30 AM - 12:30 PM Shotgun Start: 12:30 PM Dinner: 5:00 PM Entry Fee: $150 per golfer Includes: Lunch, dinner, green fee, cart, range balls & door prize drawings Players: Pairings will be made for individual and partial team entries 1) Name:_______________________________________

3) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Phone:_______________________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

2) Name:_______________________________________

4) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Phone:_______________________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

Proceeds to benefit the NSBA Volunteer Lawyers Project. c I am unable to play the tournament but have enclosed $_________ to support VLP. For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091 or sclinch@nebar.com. Please make your checks payable to NLF and return this form to: 635 S 14th St. #200, Lincoln, NE 68508. **Gifts to NLF are deductible as charitable donations to the extent allowed by law.** THE NEBRASKA LAWYER

MAY/JUNE 2019

feature article

This article is reprinted with permission from the University of Nebraska College of Law's Nebraska Transcript, Fall 2017, pg 34

Tracy Dixon Finds Success in Practice and Fiction by Prof. Alan Frank Photo by Dana Damewood

In her day job as a partner in the Omaha office of Kutak Rock, Tracy Dixon, a 2006 graduate of the University of Nebraska College of Law, might write, “Each party agrees to indemnify, defend, and hold harmless the other party from and against any loss, cost, or damage of any kind.” In her night and weekend job, as Chloe Neill, New York Times and USA Today bestselling author of urban fantasy novels, she has written, “At a quick glance, I probably didn’t look much different from the thousands of humans around me. But I was a vampire, and I’d caught the devil’s eye. So there was a House medal around my neck, a Master vampire beside me, and a dagger tucked into one of my boots.” Dixon did not set out to be an attorney or a novelist. After growing up in Jacksonville, Arkansas, she attended Hendrix College in Conway, Arkansas. She was a politics major and worked on both the 1992 and 1996 Clinton/ Gore campaigns, first as a volunteer and then as a staff member. Infatuated with politics, she decided she wanted to be a political science professor and went to the University of Kentucky to pursue a master’s

Prof. Alan Frank

She continued to work in the political arena in Nebraska, at the public information office of the Unicameral. She liked the work, but it felt like she was sitting on the sidelines. One door to a career that would involve a more active role was law school. “I remember fear,” said Dixon on reflecting on her years at the College of Law. That was a good thing. “I run pretty effectively on a low-grade level of anxiety; I’m ambitious, and it keeps pushing me along.” Law school also was challenging. “It was the first time in my life that I really had to focus, really study. It was a complete change intellectually.” In her first week, she was called on in Professor Susan Poser’s Torts class. “It was horrible, but I survived.” In retrospect, she appreciates the experience. “The only way to get better in speaking or thinking through a problem is to have to do it on the spot.” Dixon graded on to the Nebraska Law Review and became its editor. She appreciated working with “a fantastic group of really smart people” and learning how to make an argument on paper and format it correctly. But her most enduring memory was footnotes and the hours spent spading them. When she clerked for Kutak over the summer, she wrote a short memo that contained 88 footnotes. “I’m pretty sure that was the direct result of having been on law review,” she reflected. She still is known at the firm as “the girl who put in 88 footnotes.” Her published law review note was “technically the first time I was published, so that was pretty fantastic.” There would be many more publications.

Prof. Emeritus Frank joined the University of Nebraska College of Law faculty in 1972. He received his A.B. degree from Duke University in 1966 and a J.D. (cum laude, Order of the Coif) from the University of Wisconsin Law School in 1972. Although now retired, Professor Frank still teaches Client Interviewing and Counseling and continues to help with the College's alumni magazine, The Nebraska Transcript, as editor emeritus. THE NEBRASKA LAWYER

degree. She attained the degree, but her life went in a different direction. She found the statistical emphasis of political science in academia unappealing. Meanwhile, she met a Nebraskan, the man who would become her future husband, and moved to Lincoln.

When she enrolled in the Law College, Dixon envisioned a career in government, perhaps as a legislative committee

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MAY/JUNE 2019

SUCCESS IN PRACTICE AND FICTION legal counsel. Private practice, on the other hand, “would be horrible,” she thought. Nonetheless, after clerking for Rembolt Ludtke in Lincoln and Kutak Rock in Omaha, she “fell in love with insurance coverage. (Probably the first time that has been said in history.)” After graduation, she began working at Kutak. Her job has evolved over the years. Presently, she represents one specific policy holder, making sure its rights are protected. “Pretty much what I do is write,” she said. “I write emails and letters explaining to vendors what their obligations are, explaining to insurance companies what they should be doing that they are not.” She is part of Kutak’s litigation team, but she doesn’t appear in a courtroom. “I get to read all the complaints and see the history of the claim and then get to think about how can we help our clients manage risks going forward.” So, where does Chloe Neill, the best-selling urban fantasy author, fit in? Interestingly, Chloe’s roots also go back to Dixon’s days at the Law College. Dixon’s law school career was far from ordinary. Her marriage fell apart, and she got divorced during her second year. It was “not a good thing to do during law school,” she admitted. She found solace in reading. After

finishing her law school work, she would go home and “basically read for the rest of night.” She read romance novels and vampire novels. She especially liked books in series where she could follow one family and watch the character development. “Reading about those kinds of relationships helped me work through my own issues,” she recalled. “The number one rule of romance is that there has to be a HEA – a Happily Ever After; so I was guaranteed, when I put a few hours into the book, I was going to get a reward. There were challenges and drama, but in the end, there was reward.” Eventually she ran out of books to read, and she thought, “I’ve read all these books; I know how they work; maybe I’ll try my hand at it.”

THE NEBRASKA LAWYER

“I wrote one manuscript that was horrible,” she recalled. “I sent it out, got one rejection and put it in a drawer because I knew it wasn’t good enough.” Around Thanksgiving of her 3L year, she began to write Some Girls Bite. (After being assured that the statute of limitations had run, Dixon admitted to writing some of the scenes while she was in class.) She wrote the book, spent about six months editing it and sent it to one publisher – Penguin (now Penguin Random House). Six months later Penguin agreed to publish Some Girls Bite, which became the first volume in her “Chicagoland Vampires” series. Dixon describes the urban fantasy genre in which she writes as a small subsection of science fiction fantasy that involves vampires, shapeshifters, werewolves, magic and swords usually set in an urban enclave in modern day society. She has written three series of books and is presently working on a fourth. “Chicagoland Vampires” consists of 13 books and four novellas. As Dixon describes it: “The basic premise is that vampires have just been outed to the world. The heroine is attacked and made a vampire and has to learn to make the transition from bookish graduate student to vampire warrioress.”

In “Dark Elite” the heroine is a 16-year-old girl who was sent under mysterious circumstances to an elite private school in Chicago, where she discovers an underground world of magic. There are three novels in this series with a fourth a possibility. The “Devil’s Isle” series also consists of three books to date. It is set in New Orleans, where the supernaturals broke through the vale that had long separated them from the human world. They waged war on the humans and, after a long struggle, the humans won and the supernaturals were confined to a prison called Devil’s Isle. The series’ heroine discovers that she has magical powers and struggles to, on one hand, understand the supernaturals, whom she finds are really not all so bad, and, on the other, not become an enemy of the state and be sent to Devil’s Island.

MAY/JUNE 2019

SUCCESS IN PRACTICE AND FICTION Her fourth series, “Heirs of Chicagoland,” is a spin-off of “Chicagoland Vampires,” and looks at the children of the main characters who, 20 years later, are facing their own issues. Dixon sees her audience as primarily women between 18 and 60 years old. The “Dark Elite” series is aimed at a 16-yearold audience, but is read by adults as well. Her books are sold in at least 13 countries and have been translated into a number of languages. Dixon usually produces two books a year. She has a word count minimum that she has to meet every day; then when she’s done for the night, “I have two hours or so to read or do whatever else I’m obsessed with at that particular time.” Among her other obsessions are spending time with her husband and their dogs, knitting, drawing and learning to play the violin. Being a best-selling author has opened the door to

other activities: book tours, attendance at ComicCon and DragonCon, lecturing at the Library of Congress about international vampire myths, signing autographs and answering fan mail and exploring neighborhoods in Chicago and New Orleans that provide the backgrounds for her novels, although Google Earth is a big help, as well. Hollywood has not yet called, but Dixon is certainly open to having her novels portrayed in movies or television. Her dual career has forced Dixon to adapt to two things she always feared: sitting at a desk for long stretches at a time and writing on a deadline. But she has found that each of her jobs is an intellectual and creative respite from the other. While it might be tempting for her to quit her day job, she currently has no plans to do so. “I don’t see my writing as a way to escape being a lawyer,” she said, “because I really like being a lawyer.”

— CYBER SECURITY Prevent, Detect and Respond to a Cyber Attack WEBINAR

TUESDAY

MAY 7, 2019

1:00 PM – 2:00 PM {CENTRAL}

APPROVED FOR 1.0 CLE DISTANCE LEARNING CREDITS

NE MCLE #174870

We often hear about lawyers experiencing cyber attacks but knowing how to prevent, detect, and respond to a cyber attack is critical. This webinar will guide lawyers on the preventative measures to limit the likelihood of a data-breach, help them understand how to detect if there has been a breach and how to respond to a breach. Finally, the webinar will provide lawyers with the regulatory reporting requirements along with how best to communicate with clients after a breach in an effort to maintain client relationships. SPEAKER Todd Sexton Chief Executive Officer Identillect Technologies Todd Sexton is an accomplished speaker and author in the field of cyber security and data handling regulation. Over the past 15 years, Todd has focused on cyber security compliance in an ever-changing landscape of regulatory requirements. Specifically focused on helping lawyers understand technology, he spends a tremendous amount of effort assisting the legal community on the advancing data handling regulations, cyber-security threats, and wire fraud/data tampering. He focuses on the use of encryption technology, educational awareness, and utilizing advanced technologies such as Artificial Intelligence (AI) and Blockchain technology. He also speaks on the ethical concerns as it relates to law firms as well as Bar Associations, Todd has 2 cyber-security technology patents and has 4 more pending.

MAY/JUNE 2019

2019 Public Service Awards The Nominating Committee of the House of Delegates of the Nebraska State Bar Association is seeking nominees for the Public Service Awards to be presented at the 2019 Annual Meeting in October. Nominations should be made on the following form and returned to the committee on or before May 24, 2019.

George H. Turner Award

The George H. Turner award originated in 1964 and was established to recognize a member of the bar demonstrating unusual effort in furthering public understanding of the legal system, the administration of justice, and confidence in the legal profession.

Award of Appreciation

The Award of Appreciation is awarded to an individual or organization in recognition of outstanding public service creating a better public understanding of the legal profession and the administration of justice.

Award of Special Merit

The Award of Special Merit originated in 1973 and was established to recognize an individual or organization for services advancing the legal profession, the administration of justice and the public interest.

Diversity Award

The NSBA Diversity Award was established in 2010 to recognize outstanding efforts made by firms, organizations or individual attorneys in promoting diversity in the legal profession in the State of Nebraska.

Nomination Form

Please check the award for which you are providing a nomination.

c George H. Turner Award c Award of Appreciation c Award of Special Merit c Diversity Award

Name of Nominee(s):_______________________________________________________________________ Address:__________________________________________________________________________________ Briefly describe the activities and contributions which qualify this candidate as a nominee for the Award: ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ Please include any other information you believe would be helpful to the committee: ________________________________________________________________________________________ ________________________________________________________________________________________ Your name and address: ________________________________________________________________________________________ ________________________________________________________________________________________ Please return this form by May 24, 2019 to: NSBA House of Delegates Nominating Committee, 635 S 14th St. #200, Lincoln, NE 68508 THE NEBRASKA LAWYER

MAY/JUNE 2019

1ST ANNUAL AT THE

The Nebraska Lawyers Foundation raises funding for programs dedicated to ensuring justice for all Nebraskans and strengthening the legal profession. Programs served include: • Volunteer Lawyers Project • Rural Practice Initiative • Nebraska Lawyers Assistance Program • SOLACE • LSAT Prep Scholarship Program • Leadership Academy Visit www.nebar.com/nlf for more information. Sponsorships are available. Contact Sam Clinch at sclinch@nebar.com or (402) 742-8125.

THE NEBRASKA LAWYER

MAY/JUNE 2019

The Nebraska Lawyer Cover Art Competition Honorable Mention Selections by Chris Dibbern

Nebraska Municipal Power Pool, Lincoln, NE Acrylic painted with palette knife

by Michael C. Klein

Anderson Klein Brewster & Brandt, Holdrege, NE Colored pencil on gray card

by Daniel Marks Tucson, AZ Photograph

Lincoln by Paul W. Rea

Law Offices of Paul W. Rea, Lincoln NE Photograph

Missouri River Sunrise by Hon. Mark E. Ford

U.S. District Court - Western District of Arkansas, Fort Smith, AR Photograph

The Nebraska Lawyer Cover Art Competition Honorable Mention Selections Nebraska Winter Sunset: It is For Everyone by Frank Mihulka

Trenches by Shirley Peng

Storm by Susan Napolitano

Dr. Adamâ&#x20AC;&#x2122;s Longhorns by Jay Michelsen

Woods & Aitken LLP, Omaha, NE Photograph

Berry Law Firm, Lincoln, NE Watercolor

Chimney Rock Sunset by Paul W. Snyder

Legal Aid of Nebraska, Lincoln, NE Acrylic

Jackson Kessie, P.C., Canadian, TX Acrylic on masonite panel

Douglas, Kelly, Ostdiek, Snyder, Ossian, Vogl and Snyder, P.C., Scottsbluff, NE Photograph

nlf news: Helping Lawyers Help People Over 500 Nebraska lawyers were greeted to the “Wonderful World of Wonka” by Willy Wonka and three Oompa Loompa’s at the Barristers’ Ball on March 30th at the Embassy Suites in La Vista. The evening was a success and raised more than $100,000. Funds raised will benefit the Nebraska Lawyers Foundation, which supports NSBA’s programs dedicated to the improvement of the legal profession and the administration of justice and includes the Volunteer Lawyers Project (VLP), the Nebraska Lawyers Assistance Program (NLAP), the LSAT Prep Scholarship Program, and the Rural Practice Initiative (RPI). In addition, the Barristers’ Ball also raised $5,900 for Legal Aid of Nebraska to assist with their coordination of legal services for Nebraska flood victims. The Barristers’ Ball also provided a venue for recognizing the exceptional efforts of Nebraska attorneys who are dedicated to the Foundation’s goal of helping ensure access to justice for all Nebraskans. Photos courtesy of The Daily Record

Marilyn Rock accepted the Robert M. Spire Pro Bono Award from NLF President Steve Mattoon on behalf of her late husband, Harold Rock, co-founder of Kutak Rock.

The 2019 Visionary Award winners recognized for their contributions and commitment to the Nebraska State Bar Association were: MOLLY M. BRUMMOND, University of Nebraska College of Law, Lincoln TERRY J. GRENNAN, Cassem Tierney Adams Gotch & Douglas, Omaha TODD A. RICHARDSON, Husch Blackwell LLP, Omaha This year’s Robert M. Spire Pro Bono Award winner was: • HAROLD L. ROCK, posthumously, Kutak Rock LLP, Omaha The NLF would like to thank this year’s co-chairs, WARREN WHITTED, JR. and NANCY WHITTED of Omaha, sponsors, live and silent auction item donors and attendees for their participation in making this year’s event a huge success. Mark your calendars for next year’s Barristers’ Ball on April 18, 2020, at the Embassy Suites in La Vista.

NSBA President Scott Paul discussed the effects Molly Brummond, University of Nebraska of the recent flooding throughout Nebraska. College of Law, received a 2019 Visionary $5,900 was raised for Legal Aid of Nebraska Award. to assist with their coordination of legal services for Nebraska flood victims.

Todd Richardson, Husch Blackwell LLP, Co-chairs Warren Whitted, Jr. and Nancy Terry Grennan, Cassem Tierney Adams Gotch received a 2019 Visionary Award. Whitted sign the “standard form of contract” & Douglas, received a 2019 Visionary Award. before entering the Wonderful World of Wonka. Photo courtesy of metroMAGAZINE.

THE NEBRASKA LAWYER

MAY/JUNE 2019

for the good of the profession

This article originally appeared on the Clio blog under the title “Bryan Stevenson on How Lawyers Can Make a Difference,” by Teresa Matich, on December 13, 2018.

Bryan Stevenson Discusses Making a Difference as a Legal Professional by Teresa Matich

As a legal professional, it can be easy to forget why you got into law in the first place. But for Bryan Stevenson, the opportunity to do good is infinite, and he sees lawyers as being one of the groups best positioned to make a difference. As Founder and Executive Director of the Equal Justice Initiative, a MacArthur fellow, and a New York Times bestselling author, Bryan Stevenson is one of the nation’s most acclaimed and respected lawyers. A visionary legal thinker and social justice advocate, he’s at the center of critical national conversations around mass incarceration and equal access to justice.

being there and talking to him had an impact on the quality of his life. It was the first time I felt like I could make a difference in the lives of people. His humanity, his willingness to accept me as someone who might be able to make a difference despite my limitations, really said something to me about a dynamic, a relationship that’s possible.” For Bryan, relationships are key, and justice is paramount. He believes that if we commit to giving people the dignity and humanity they deserve, then the barriers and conditions that give rise to poverty and sustain it will begin to fall away.

After Bryan gave a keynote speech at the 2018 Clio Cloud Conference in New Orleans, we sat down to talk with him about how more lawyers can truly have a positive effect on the lives of others.

Throwing money at the problem, on the other hand, simply won’t work. “Money, in the absence of justice, in the absence of structural equality and structural reform, isn’t going to be sufficient,” he explained.

Fighting Injustice

Thus far, there have been plenty of misconceptions that have driven some of the general public to turn a blind eye to structures and systems that keep people disadvantaged. By practicing empathy, listening to people’s stories, and building relationships, lawyers can be a big part of how the country faces these issues.

Thousands of legal professionals across the United States fight for justice every day. But for Bryan, it goes a bit further than that: He’s dedicated his career to fighting systematic injustice in the American legal system. His inspiration? The trust that a client put in him when he was a young lawyer: “I was very nervous about my ability to help someone with my limited law school education, but it was clear to me that

Teresa Matich Teresa Matich is a Content Strategist at Clio, where she’s responsible for educating the legal industry on market trends, best practices, and important issues impacting law firms. THE NEBRASKA LAWYER

“I feel like our history is kind of smog in the air,” Bryan said. “It’s toxic, and it makes it hard for us to breathe the way we’re supposed to breathe. It compromises our health and our wellbeing, and our expectations and hopes and dreams. And there are some things we can do to confront, to overcome, to address this pollution. It will be difficult and complicated and challenging, but I fully embrace that concept that you can’t just deny or ignore or run away from the sources of stresses and conflict—you have to address them.”

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FOR THE GOOD OF THE PROFESSION

3 Ways Lawyers Can Make a Difference The United States incarcerates more of its citizens than any other country in the world. Poverty significantly impacts access to justice. Almost a third of the adult working age population in the US has a criminal record, with even a minor conviction creating lifelong barriers to employment, housing, and more. For lawyers to operate effectively within this reality and turn the tide against injustice, Bryan believes that three things are most important:

1. Get Educated Lawyers may have gone to law school, but Bryan says that more education is always a good thing—especially when it comes to looking critically at issues within our society today. “We all have to be more educated about what it means to live with the kind of extreme stratification that our society presents,” Bryan said. “We’re one of the richest nations on the planet but we have a lot of poverty; that there are 60 million people living below the federal poverty line is really quite tragic, and we have to understand what that means and be attentive in addressing that.”

2. Stay Hopeful The first step towards change is believing that things can change. Believing the stories of the disadvantaged, sharing in their experiences, and looking for small ways to change for the better could help move us towards a more just society. “We have to be more hopeful about what we can do. Hopelessness is the enemy of justice and it’s what allows injustice to prevail,” Bryan explained. “In that respect, we need lawyers and people trained and skilled with the tools that the law can provide—people who are motivated to do things, and to change things.”

3. Engage the Heart Finally, Bryan stressed the importance of getting out of one’s head and remembering why you decided to practice law in the first place. Having a passion for justice is what will propel many in the legal profession to fight difficult cases and make a real difference.

“We have to be willing to engage, not just what we know in our head and what we think in our mind, but we also have to engage our heart,” Bryan said. “I think justice comes when the ideas in our mind are fuelled by the convictions in our heart and I don’t think there’s anything wrong with being passionate or motivated or engaged or impacted by the things we do. And this passion-disconnected posture that so many in the legal profession take, I think actually feeds a kind of indifference to inequality and injustice that we need to reject.”

The Potential to Do Good Bryan left us with one final thought: Lawyers may think about volunteering or doing pro bono work because it helps the disadvantaged, but it’s also worth thinking about it in terms of helping themselves—the work they do helping others may be the best work of their lives. Bryan explains: “We all saw the value of people going to the border a few months ago when the crisis emerged down there and children were being snatched from their parents and the massive effort that it took, and it continues to take, to just reunite these families. But I’ve talked to people who have said their work on that has been the most fulfilling thing they’ve ever done. I just think there are these great opportunities waiting for legal professionals if they will orient themselves to helping people who are in need, with no expectations of what they’re going to get. What they’re going to get is immeasurable, but they have to approach it as if they’re doing it to serve.” It can be discouraging and disheartening to focus on some of the biggest problems society faces today, but with a bit of conviction, there’s potential for lawyers to do the best work of their lives, while making a lasting difference. “I think there are a lot of unhappy lawyers, and the opportunity to do good is so infinite that there’s a reason to have the ability to make a difference in the life of someone and to change the burden that many people bear,” Bryan said. “I do think there’s something empowering and affirming and exciting about that.”

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

MAY/JUNE 2019

plain language

Editorializing, Gratuitous Verbiage, and Verbatim Tracking Don’t Persuade by Kenneth F. Oettle

This is the first of a two-part series on what does and doesn’t persuade. First up is what doesn’t persuade. You will probably agree with most of the criticisms below of rhetorical tactics that don’t persuade, but you will also probably continue to use those tactics, perhaps a little less wantonly, because they are hard to resist. Aggressive tactics, such as using intensifiers and taking potshots at the other side, appeal to clients’ bloodlust and the attorneys who pander to it, and they satisfy the desire to vent. Most attorneys acknowledge that aggressive tactics can offend the court, mark the writer as a screamer, and suggest to the court that the writer may be covering for the absence of a viable point, but attorneys also know on which side their bread is buttered (the client side), so they continue to use tactics that clients demand. Indeed, I dare you to find a law-firm partner who eschews all intensifiers and ad hominem attacks. Even I—though I teach this stuff—have to force myself not to take potshots at opposing counsel who make blatantly foolish arguments. The tactics are too client-friendly and too vent-worthy, and frankly, the partners who use these tactics, and thus the associates who train under them, think the tactics work. Rhetorical tactics that add bulk to one’s work—such as overquoting from cases and statutes and arguing every point one can think of—allow writers to avoid the hard, sometimes frustrating work of analysis. It’s easier to quote from opinions than to think a point through, and it’s easier to make every

Kenneth F. Oettle

Rhetorical tactics that seem effective, but aren’t, can be classified in groups (sets) under the following rubrics: “Editorializing,” “Posturing,” “Bulking Up,” and “Avoidance.” These categories are flexible. Some tactics could fit into more than one. This column does not address writing mistakes—typos, errors in grammar and punctuation, or sloppy citational form— that detract from the persuasive effort but aren’t intentional. And it does not address helpful tactics that are often ignored, such as choosing a persuasive theme, starting strong, being generous with headings and subheadings, introducing quotations, and providing internal summaries. This column is about tactics that do not work, though we think they do.

Editorializing Intensifiers Writers think they are driving home their points with adverbs and adverbial phrases such as clearly, obviously, ever, never, whatsoever, in any way, and simply. The intent is to emphasize, but the principal effect is to editorialize—to insert

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Editors: BRANDY R. JOHNSON, attorney, Governmental Law, LLC, Lincoln P. BRIAN BARTELS, partner, Kutak Rock LLP, Omaha

KENNETH F. OETTLE is senior counsel and chair of the writing program at Sills Cummis & Gross PC, in Newark, New Jersey. THE NEBRASKA LAWYER

conceivable argument, weak or strong, than to judge where to concentrate one’s forces.

If you are interested in submitting an article for the “Plain Language” column, please e-mail Amy Prenda at aprenda@nebar.com. 47

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PLAIN LANGUAGE the writer’s personal view. This is not persuasive. Readers are persuaded by facts and by law, not by a comment that something is clear or (to the chagrin of all you simplyusers) simple. It is important to note falls into this category. It is an editorial (the writer’s personal view) within the subset of “intensifier” (because of important), but it is used less to intensify than to avoid explaining why something is important. It’s a classic red flag that what you are talking about is not important or that you have not figured out why it is important. Potshots (ad hominem attacks) Irritated by the brashness of the opposition and the insult to your intelligence in their baseless arguments, you can’t resist impugning their arguments and their motives (for instance, you say that the other side’s position “defies all logic” or that it is “utterly without factual support,” or that counsel “cynically argues” or “disingenuously con-tends”). You are entitled to your opinion, but the court won’t be impressed. The court will view you as a name-caller and will judge you accordingly.

Posturing

weight to your argument when you add words. ...Weight may be good in sumo

wrestling, but not in persuasive writing.

need bulk. If you are a beginner, you may distrust summarizing altogether, believing that candor requires verbatim reporting. It doesn’t. Candor requires only fair reporting, not reporting in bulk. Sometimes, you try to piece together an argument from dicta without having to craft a full sentence yourself. Unsure of your own words, you would rather depend on someone else’s. Oversummarizing Cases Instead of encapsulating the holding, you report the facts of a case and the arguments made by both sides. You rationalize that you are educating the court and being candid through completeness, but you are really just avoiding the harder task of capturing the essence of the holding. Adding Words

Legalese and Latinate Words Just as you instinctively want to tear the other side down, you want to build yourself up, if you can. To this end, you may try to sound important with technical legal terms like vel non and Latinate words like commence, forgetting (or never having learned) that readers are persuaded by facts and law, not by your persona.

Bulking Up Mind-Numbing Repetition Sometimes, for lack of anything better to say, you repeat yourself. The first, middle, and last sentences of a paragraph may be nearly identical, or you may say the same thing several different ways, well past the point where the repetition is beneficial. You rationalize that anything worth saying is worth saying two, three, or even four times. Probably you are covering, consciously or unconsciously, for the absence of anything else worth saying. Overquoting Cases and Statutes You quote lengthy passages from cases and statutes because you don’t trust your ability to summarize, and you feel that you

THE NEBRASKA LAWYER

You think incorrectly that you add

You think incorrectly that you add weight to your argument when you add words (“The contractor is in the process of building an addition” vs. “The contractor is building an addition”). Possibly you are trying to divert attention from your not having much to say. Weight may be good in sumo wrestling, but not in persuasive writing.

Avoidance Dropping a Footnote to Address the Other Side’s Best Point You think, wrongly, that you can minimize the other side’s best point by tucking it into a footnote. You can’t. Many writers who use the footnote dodge don’t even realize that it is a dodge. Failing to Address the Other Side’s Best Point Sometimes the other side’s best point is so formidable that you fail to come up with a refutation, you resist thinking about it, and, accidentally on purpose, you forget to address it. Or maybe you know you aren’t addressing it and just hold your breath. You can’t win that way.

MAY/JUNE 2019

tech corner

This content originally appeared on the Clio blog, “10 Essential Steps for Marketing Your Law Firm,” by Adam Callahan, on July 17, 2018.

Tech Tips for the Modern Law Firm Useful Tips to Help You Manage and Grow Your Firm Better

by Adam Callahan

10 Quick Steps to Better Market Your Legal Practice

Here are a few specific examples of essentials you can put your marketing budget toward:

Law firm marketing may not seem like an art form, but those who’ve learned to do it well can tell you that effective legal marketing takes a good deal of knowhow and patience. (They’ll also tell you that it’s worth it.) Here are 10 steps you can take to market your firm effectively.

1. Set marketing goals Marketing is an investment for your business, so it’s important to think of the return on investment (ROI) of your marketing efforts. Whether you plan to hire a marketing agency or do it yourself, start by brainstorming and recording your trackable marketing goals, benchmarks, and expectations—or key performance indicators (KPIs). It’s essential that you complete this step before taking on any of the other recommendations on this list.

2. Create a marketing budget After you’ve established your marketing goals, set your budget. You don’t have to be a tax attorney to create a marketing budget—the general rule of thumb is to reinvest 7–10% of your revenue back into your own marketing. While this isn’t a one-size-fits-all figure, it is a great starting point.

Adam Callahan As the Director of Client Relations at ONE400, Adam Callahan helps law firms and legal technology companies achieve their design, marketing, and product development goals. He is passionate about all things technology, law, marketing, and entrepreneurship. THE NEBRASKA LAWYER

• Business cards • Website design • Trade-group membership • Google AdWords advertising • Marketing personnel salaries

3. Have a (well-designed) website Your website is your 24/7 virtual office, business card, CV, and billboard. It is still the most essential marketing and business development tool in 2018, and it’s no secret that more and more people use the internet to find an attorney. In fact, according to the 2017 Legal Trends Report, 37% of consumers surveyed said they found their lawyer using an online search engine. If you don’t have a website, build one. If you have a website, optimize it. (Find tips on how to do this on the Clio blog.)

4. Optimize your website for search engines Websites are only valuable if they can be found. Search engine optimization (SEO) is the most competitive environment in digital marketing, and law firm SEO is no different. Optimizing your site for search engines helps Google, Yahoo, Bing, and other search engines identify your site as providing valuable information on different search queries. Learn more about SEO in the Beginner’s Guide to SEO from Moz, a subject matter expert. (A quick Google search of “Moz SEO” should bring it up.) Or consider hiring a law firm web designer to help.

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TECH CORNER

5. Measure and track all of your marketing efforts You should be tracking things like advertising spend, website traffic, and, of course, your return on investment. The biggest impact you can have on your marketing, reporting, and analytics is to do the following: 1. Ask potential clients how they heard about you. 2. Record answers to this question and look for trends. 3. Invest more in the channel that is bringing you the most (or the best qualified) new clients.

6. Install Google Analytics on your website This is the first and easiest step in tracking marketing ROI. Google Analytics is Google’s extremely insightful website analytics tool, and the free version will work for most law firms. Among other things, Google Analytics helps you track website visitors, click behavior, and the rate at which your website converts visitors into potential clients. Installing Google Analytics is as simple as creating a Google account and pasting some very simple code on your website.

7. Maintain a digital database of all contacts Marketing isn’t just about bringing in new contacts—it’s also about following up with your existing contacts so they stay engaged with your firm.

can receive mail in order to verify your account. 3. Your contact information, logos, etc. should be identical and consistent across all channels. 4. For the greatest marketing result, include links to all of your social channels on your website.

9. Get positive reviews The era of the public review is upon us. Don’t fight consumer reviews—embrace them. Manage your online reputation effectively, and reviews can be a boon for your law firm: Be proactive by asking for a review from every happy client, so that if a negative review comes along, it’s far outweighed by the good ones.

10. Stick with it—over time, you’ll see results You don’t need to be the biggest spender to stay in business, but you can’t rest on your laurels either. Referrals are the lifeblood of our industry, but those can slow down, and just like you’ve done with your retirement accounts, you need to diversify. You should get more than one answer when you ask “how did you hear about us?”—not just “so and so told me about you.” Marketing is about experimenting and sticking with what works. To read more on this topic, visit clio.com/marketyourfirm.

To do this, you need to save and organize the contact information of ALL your contacts somewhere that is readily accessible. This includes clients, colleagues, leads, vendors, friends, and referral partners—anyone who might be important for your law firm. Tracking this information might be as simple as using the “Contacts” feature in Outlook or Gmail—but it can also be a curated list saved in a spreadsheet that you store in Dropbox or Google Drive. Or, you can use legal client relationship management (CRM) software, such as Clio Grow. Whatever you use, this virtual rolodex is one of the most valuable assets you have as an attorney.

8. Create Google, Facebook, and LinkedIn pages Social media has a casual reputation, but sites like Google My Business, Facebook, and LinkedIn bring a professional presence to channels that your clients are already familiar with. Likely, every single one of your clients have used at least one of those social media channels before. When setting up social media profiles, remember: 1. Your law firm’s Facebook or LinkedIn pages should not be the same as your personal profiles. Instead, set up a business page on each of these channels.

1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-Free: 800-844-6778 www.landexresearch.com

2. Google My Business requires a non-PO box address that THE NEBRASKA LAWYER

MAY/JUNE 2019

THE NSBA LABOR RELATIONS & EMPLOYMENT LAW SECTION PRESENTS

2019 LABOR RELATIONS & EMPLOYMENT LAW SEMINAR FRIDAY JUNE 14, 2019 9:00 AM - 1:00 PM KUTAK ROCK LLP 1650 FARNAM STREET OMAHA

Keeping abreast of the workplace landscape is crucial for business and employment law attorneys. This seminar will focus on workplace developments including assessing the pros and cons of workplace arbitration; new methods and resources for civil case progression in the Nebraska Federal Court; and advanced issues in discrimination, including navigating the changing waters of gender identity and sexual orientation in the workplace, the evolving landscape of “regarded as” claims under the ADA, and accommodating assistance animals in the workplace. 9:00 am

11:25 am

Assessing the Pros and Cons of Workplace Arbitration

Advanced Issues in Discrimination PART ll: Evolving Landscape of “Regarded As” Claims Under the ADA

Kate E. Jones, Esq.

Kutak Rock LLP

Ashley H. Dugan, Esq.

This presentation will discuss the pros and cons of requiring mandatory arbitration as a condition of employment, including the U.S. Supreme Court’s approval of class action waivers in arbitration agreements and other important considerations in drafting an enforceable arbitration agreement.

Recent case law permits “regarded as” claims under the Americans with Disabilities Act (“ADA”) to proceed to trial under circumstances that suggest a potential expansion. This presentation surveys the landscape of this developing area of law and outlines practical implications for plaintiff and defense attorneys.

9:35 am

12:00 pm

New Methods and Resources for Civil Case Progression in the Nebraska Federal Court

Advanced Issues in Discrimination PART lll: Raining Cats and Dogs: Accommodating Assistance Animals in the Workplace

United States Magistrate Judge for the District of Nebraska

This presentation will address the Court’s newly adopted civil case management practices and online resources for progression and resolution of civil cases, including how these developments may impact discovery and motion practice in labor and employment cases. This presentation will also discuss the purpose behind these changes and additional changes the Court may consider regarding case progression in the future.

Scott P. Moore, Esq.

Baird Holm LLP

Requests for service and emotional support animals in the workplace as a reasonable accommodation under the ADA are on the rise. This session will discuss an employer’s obligation to accommodate employees with a disability-based need for an animal in the workplace, including how to verify the employee’s need for the accommodation and whether the animal’s presence is “reasonable.”

Break

10:50 am

1:00 pm

Advanced Issues in Discrimination PART I: Navigating the Changing Waters of Gender Identity and Sexual Orientation in the Workplace Susan K. Sapp, Esq.

Break [lunch included]

12:15 pm

Honorable Cheryl R. Zwart

10:35 am

Woods & Aitken LLP

Adjourn

Cline Williams Wright Johnson & Oldfather, LLP

Approved for 3.5 CLE credit hours NE MCLE #174732 Regular / Live Distance Learning NE MCLE #174731

This presentation will address special issues arising in connection with transgender or transitioning employees; employee training and awareness, and suggested policies; and provide a recap of the case law on sexual orientation and gender identity discrimination. THE NEBRASKA LAWYER

IA MCLE # 321201 IA MCLE # 321200 MAY/JUNE 2019

wellness brief

It Should Be Confidential, But Not A Mystery By Chris Aupperle, NLAP Director

An unintended consequence of the strong confidentiality protections afforded to individuals seeking help from Nebraska Lawyers Assistance Program (NLAP) is that lawyers, judges and law students often have little understanding of how NLAP works or the success stories that are happening within our legal community. The goal of this article is to remove some of the mystery about what we do, while still respecting confidentiality.

Confidentiality is a Cornerstone One of the cornerstones of NLAP is confidentiality. Lawyers and judges are reluctant to seek help if they believe the information they provide to the lawyers assistance program will be disclosed to disciplinary authorities, their employer, their clients or others in their community. Similarly, law students fear seeking help will become a barrier to getting licensed or securing employment. To foster help-seeking behavior, broad confidentiality rules and policies protect communication with NLAP (for example, see Neb. Ct. R. §§ 3-501.6 and 3-508.3). Bottom line, we will always respect the confidentiality of those who come to NLAP for help. Assistance from NLAP is available to all Nebraska lawyers, judges and law students. We are often the first call someone makes when they need help and don’t know what to do next. While NLAP doesn’t provide treatment, we can assist someone in identifying the assessment and treatment resources (e.g., doctors, counselors, therapists and support groups) that are needed. NLAP can be the rudder that provides direction when a lawyer needs help. We also will be available throughout the assessment and treatment process to listen, answer questions, and provide encouragement.

In 2018, NLAP offered assistance to 65 lawyers, 14 law students and 1 judge. by NLAP based on a belief that the person may benefit from NLAP services. NLAP often became aware of the latter group when we were contacted by a colleague, friend, family member or employer who was concerned about someone. Almost half the calls we get at NLAP are from individuals concerned about a lawyer, judge or law student. They may want education on how they can help and/or want NLAP to reach out to the individual in need to offer assistance. Remember that a lawyer affected by an untreated mental health, alcohol, drug or cognitive issue impacts everyone around them—clients, employers, co-workers, opposing counsel, family, and the court system. The other half of our calls come from individuals who contact us directly (and often reluctantly) for help because their employer or spouse encouraged them to get help, they have had a brush with the law, received a complaint from the Counsel for Discipline or they are simply miserable. There is often a sense of relief when someone finally and fully acknowledges the challenge facing them and becomes willing to seek help to change their situation. We will listen to you, not judge you, and help you refocus on how to change things for the better. The most common types of cases involving NLAP are stress/ burnout, depression, anxiety, alcohol use disorders and cognitive issues (e.g., various forms of dementia). NLAP also provides

Most Common Conditions Facing NLAP Clients: 1) Alcohol Use Disorders 2) Depression/Anxiety 3) Stress/Burnout 4) Cognitive Loss

Removing the Mystery Without disclosing names or circumstances that would reveal the identity of someone seeking help from NLAP, I can shed some light on what types of cases are handled by our program. In 2018, NLAP offered assistance to sixty-five lawyers, fourteen law students and one judge. These individuals either sought help directly from NLAP or they were contacted

Nebraska Lawyers Assistance Program

(888) 584-6527

Confidential Help for all Nebraska Lawyers, Judges and Law Students

THE NEBRASKA LAWYER

MAY/JUNE 2019

WELLNESS BRIEF assistance when an individual is affected by serious injury or illness. We have seen all these types of cases during the past year. Many of the issues we see in NLAP clients are highly treatable. Conversely, mental illness, addiction and cognitive loss typically get progressively worse over time if left untreated.

provided an in-depth look at the types of issues affecting our lawyers, judges and law students—the warning signs of burnout, quantifying the substance use and mental health challenges within the profession, cognitive loss, compassion fatigue, building resiliency, and how employers can help.

Our clients come from all demographics within the legal profession. Men, women, young lawyers; experienced lawyers; and large firm, small firm, solo practitioners, government and in-house lawyers. Mental illness, addiction and cognitive loss do not discriminate—all facets of the profession are affected.

NLAP collaborates with bar associations, courts, legal employers and law schools to improve outreach and education. For example, the University of Nebraska College of Law and Creighton University School of Law have implemented wellness programs aimed at educating law students on how to thrive within the profession and helping them identify the warning signs and where to seek help when needed. The outcome of implementing effective wellness programs in law schools will be seen in future generations of lawyers and will benefit the profession for decades to come. We are now gathering resources to assist legal employers in promoting effective, sustainable wellness programs.

There have been some amazing success stories as well. Lawyers who thought their careers were over have been able to return to productive and successful practices. Others have been able to reinvent their legal careers to better match their personal and career values. Our profession has also made progress to counter the stigma associated with seeking help for mental health, substance use or cognitive disorder.

Taking a Proactive Approach The second aspect of NLAP’s mission involves education and outreach. We want to be proactive about helping lawyers, judges and law students to build good mental health. In 2018, NLAP gave presentations at twenty-one educational programs (six for law students and fifteen for lawyers). These programs

I hope a better understanding of NLAP will encourage those who need help to seek it and for those who know someone who needs help to have an honest conversation about their concerns. If you have questions or want to learn more, please contact the Nebraska Lawyers Assistance Program (NLAP) at (402) 957-8201 or caupperle@nebar.com.

Wish you could take a recess? 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)

THE NEBRASKA LAWYER

MAY/JUNE 2019

THURSDAY

MAY 30, 2019

10:00 AM - 12:15 PM

ETHICAL

LEGAL ISSUES IN 2 HOURS

CREIGHTON UNIVERSITY SCHOOL OF LAW

2133 CASS ST

OMAHA, NE

This seminar will provide attorneys with an overview of two separate, but important, ethical legal they must be aware of when practicing law: the ethical issues which arise in their legal writing and recognizing conflicts of interest.

10:00 am Ethics in Legal Writing

SPEAKERS Professor Carol C. Knoepfler Professor Carol C. Knoepfler,

Creighton University School of Law

This presentation will discuss various ethical issues attorneys face in their legal writing. The focus of the presentation will be on the Rules of Professional Conduct affected by poor legal writing, as well as court opinions that have criticized and, in some cases, imposed sanctions on lawyers for poor writing practices.

10:15 am BREAK

Carol Knoepfler is an Assistant Professor of Law at Creighton University School of Law, where she also serves as the Law School’s Director of Legal Research and Writing. In addition to the required legal research and writing curriculum and Advance Legal Writing, an online course she designed, Prof. Knoepfler also teaches Employment Law and Animal Law. As the Director of Legal Research and Writing, she runs the Law School’s Legal Writing Center and oversees the Law School’s intramural moot court competition. Prior to joining the Creighton faculty in 2008, Professor Knoepfler was a career law clerk for the Honorable Lindsey Miller-Lerman, Justice of the Nebraska Supreme Court. Previously she also was a partner with the Omaha law firm of Baird Holm, LLP, working in the Labor and Employment Section of the firm. While attending the University of Iowa, Professor Knoepfler was the Senior Note and Comment Editor of the Iowa Law Review.

Professor Craig W. Dallon

11:15 am Recognizing Conflicts of Interest Professor Craig W. Dallon,

Creighton University School of Law

The presentation will discuss conflicts of interest based on representation of another current client, representation of a former client, and personal interests of the lawyer. The presentation will discuss the duty of loyalty owed to a client, problems involving situations when a lawyer’s client is directly adverse to a current or former client or when a significant risk exists that a lawyer’s duty to a client would be materially limited by duties to others or by the lawyer’s own personal interests. The presentation will discuss conflicts in the context of civil and criminal litigation as well as nonlitigation matters such as estate planning or transactional work.

Craig W. Dallon is a Professor of Law at Creighton University School of Law, where he teaches on a variety of topics such as: copyright law, torts, trademarks, property, and professional responsibility. He is currently the Director of the Masters in Government Organization & Leadership (GOAL) Degree program at Creighton University. Mr. Dallon earned his B.A. degree and J.D. degree from Brigham Young University. Following law school, he clerked in Olathe, Kansas, for the Honorable James K. Logan on the United States Court of Appeals for the Tenth Circuit. Mr. Dallon then practiced with the law firm of Van Cott, Bagley, Cornwall & McCarthy in Salt Lake City where he was a member of the firm’s Litigation Section and technology law practice group. He was an Assistant Professor of Law at Appalachian School of Law and a visiting assistant Professor of Law at Brigham Young University before joining Creighton University. He was Associate Dean of the Creighton University School of Law from 2006 to 2014.

ACCREDITATION

APPROVED FOR 2 HOURS CLE / 2 ETHICS CREDITS IN NEBRASKA AND IOWA

DISTANCE LEARNING NE MCLE #173070 IA MCLE #317757 REGULAR / LIVE NE MCLE #173071 IA MCLE #317758 THE NEBRASKA LAWYER

MAY/JUNE 2019

speaking of ethics

The Ethics of Working as the Sole Professional on a Family Law Matter in Nebraska by Prof. Kristen M. Blankley

Consider a couple, Pat and Morgan, who walks into a Nebraska family lawyer’s office and wants to get divorced. They are adamant that they only want to hire one person, but they are not exactly sure what they need. The office advertises and provides both legal and mediation services. The lawyer’s initial consultation with the couple uncovers: 1) that Pat filed a pro se Complaint in district court, but no other court documents have been filed, 2) that the couple agree on many, but not all matters in their case, and 3) the couple wants to save money and reduce costs because they have a decent working relationship. More specifically, Pat and Morgan have a rough idea of how parenting time for their three children should be divided, but they have serious disagreements on who should receive the marital home and certain savings, and who should assume credit card and student loan debt. What should the lawyer/mediator do? Work as an attorney for one or both of these clients? Mediate their dispute? Both? Given these simple facts, the parties could potentially benefit from both legal and mediation services. Ethical constraints, however, limit the services that one professional

Prof. Kristen M. Blankley Kristen M. Blankley, Associate Professor of Law at the University of Nebraska College of Law, teaches and writes in the areas of alternative dispute resolution and ethics. She is particularly interested in the intersection of the two fields, and the roles of lawyers and other professionals in resolving disputes. THE NEBRASKA LAWYER

can provide given the different roles of attorney and mediator. Under the comments to legal Ethics Rule 2.4, lawyers acting as professionals in other disciplines, such as mediation, must abide by both sets of ethical rules.1 This article considers the ethical boundaries for lawyers and mediators considering “hat switching” and providing services across multiple disciplines. The ethical issues arise most common in family law matters because divorce and other parenting matters must be approved by courts in litigated cases. Ultimately, this article strongly recommends that professionals choose one role or the other – lawyer or mediator – and not provide multiple services within the same action or case. This article gives suggestions on how clients’ interests may be achieved when only performing one role in the case.

What a Mediator Can and Cannot Do A mediator is a professional who assists parties in negotiating their own resolution to their problem. The mediator is neutral, and a lawyer serving as a mediator cannot represent either one or both of the parties.2 The role of the mediator is to help the parties work through the conflict through dialogue and facilitate communication between the parties. The mediator is very much in the middle of the conflict, yet the mediator does not have a personal or professional stake in the outcome. In the role as mediator, a lawyer/mediator does not practice law and cannot provide legal advice or give answers to legal questions. For Pat and Morgan, a mediator3 could help the parties work through the issues on which they disagree – notably the unresolved issues regarding parenting time and the property division.4 To assist Pat and Morgan with issues regarding

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MAY/JUNE 2019

SPEAKING OF ETHICS parenting time, the lawyer/mediator would need to be an approved Parenting Act Mediator. During the mediation, Pat and Morgan could expect the mediator to help these parties talk through their respective positions, needs, interests, desires, and goals regarding the contested items. The mediator can also ask hard questions of the parties (i.e., “reality test”) to help the parties compromise and reach agreement. The mediator guides them through their negotiations, hoping to reach a resolution of all issues. The mediator may also draft a resulting Parenting Plan and Financial Agreement for the parties’ review and signatures. The mediator, of course, will include into these resulting documents all items on which the parties already agreed, such as Pat and Morgan’s parenting time arrangement. Presuming that Pat and Morgan had a successful mediation and the parties have agreed on all parenting and financial issues, what are they to do next? They have a lot of questions on how this particular agreement will become finalized and the role of the court. Initially, Pat and Morgan ask their lawyer/mediator to handle the rest of the case, including drafting necessary court documents, filing the documents in court, and even appearing at the final hearing. How should the lawyer/mediator respond? Nebraska’s statutory and ethical provisions make clear that a mediator may not act as an attorney for one or both of the parties following the mediation. The Parenting Act states: “No mediator who is also a licensed attorney may, after completion of the mediation process, represent either party in the role of attorney in the same matter through subsequent legal proceedings.”5 The ethical guidelines for Nebraska-approved Parenting Act mediators contain similar rules prohibiting the legal representation of the parties following a mediation in the same case or action.6 Given the prohibition on providing legal services to the parties following a mediation, a lawyer/mediator cannot: • Draft pleadings for the parties7 • Draft documents for judge signatures, such as proposed orders • File documents on behalf of one or more of the parties • Make an appearance on behalf of one or both of the parties • Represent the parties at a hearing Although the mediator cannot perform any of these lawyer tasks for the parties, the mediator may still: • Provide the parties general information on what to expect next • Suggest the parties hire legal counsel, including counsel willing to work on a limited-scope basis8 • Refer the parties to the many forms and instructions for pro se parties on the Nebraska Supreme Court website Following this delineation will help the lawyer/mediator THE NEBRASKA LAWYER

work within ethical boundaries and not cross into the practice of law, thus impermissibly changing hats.

What a Lawyer Can and Cannot Do In contrast to the mediator’s role, the lawyer’s role is as a counselor and advocate for one party, usually adversarial to another party. Ethics rules prohibit an attorney from representing multiple, adversarial clients in a litigated case because of the attorney’s duty of loyalty. What if Pat and Morgan want the attorney to represent them, and not necessarily be their mediator? In litigated cases, lawyers cannot represent opposing parties.9 Although some conflicts of interests may be waived by the parties with informed consent, no lawyer may represent a client when there is the “assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.”10 Because divorce clients necessarily involve litigation involving both spouses, one lawyer can never represent both parties. This rule applies even when the parties agree on all aspects of their divorce, separation, or modification. When the parties do not agree, the lawyer cannot try to mediate the two because any resulting compromise would be at the disadvantage of one of the two clients to whom the attorney owes equal loyalty. One caveat should be mentioned, but discouraged. In some instances, the spouses will come to an attorney for help drafting an agreement that the parties have previously made. In that situation, the attorney is being asked to represent both parties. Given the proper disclosures to the parties, they could conceivably waive the conflict of interest, but only before a case has been filed and only to act as a scrivener for the parties.11 If the lawyer undertakes this role, the lawyer cannot help the parties bargain against one another (as a mediator would) because of the loyalty owed to both parties. A more common practice for lawyers in this situation is to represent one of the parties while the other party is unrepresented. In this hypothetical, the lawyer would represent either Pat or Morgan, but not both. Lawyers need to be clear with both spouses, but particularly the unrepresented spouse, that the lawyer only represents one of them.12 In representing one spouse, the lawyer cannot give legal advice to the unrepresented spouse, other than the advice to secure one’s own legal counsel, and the lawyer should be sure to advise the unrepresented person to seek legal counsel.13 If a lawyer is representing one, but not both spouses, the lawyer could provide to the client any or all of the following services: • Draft Parenting Plans and Financial Settlements • Draft and file pleadings and proposed orders (properly noting the attorney’s representation for one client) MAY/JUNE 2019

SPEAKING OF ETHICS • Negotiate on behalf of the represented party with the unrepresented party – even in a meeting with all three people present A lawyer who represents one of the parties, but not both, may not: • Hold oneself out as a mediator regarding that particular matter • File documents as counsel for both parties These boundaries demonstrate that the lawyer remains in the role of an advocate, even if the parties have relatively little conflict between them. Just as a mediator may not switch roles and become an attorney for one or both of the parties, a lawyer cannot simply switch roles and act as a mediator during the course of the representation of the client. This, of course, does not preclude the lawyer from using mediation strategies and skills, while still representing the interests of the client during the representation. Switching from being an attorney to a mediator would be a conflict of interest for the mediator.14 The Standards of Practice and Ethics for Parenting Act Mediators does not outright prohibit an attorney from becoming a mediator for previously represented parties, but the circumstances are limited: No mediator who represents or has represented one or both of the parties or has had either of the parties

MEDIATION & ARBITRATION William M. Connolly (402) 384-6896 The Hon. William M. “Bill” Connolly (Ret.) serves as a neutral party, providing Mediation and Arbitration services at Erickson | Sederstrom. His tenure as a Judge on the Nebraska Supreme Court for 22 years coupled with his 29 years of experience as a trial attorney, representing both plaintiffs and defendants, has uniquely qualified him to work toward themost effective resolution of your case. BCONNOLLY@ESLAW.COM WWW.ESLAW.COM

as a client as an attorney or a counselor shall mediate the case, unless such services have been provided to both participants and mediation shall not proceed in such cases unless the prior relationship has been disclosed, the role of the mediator has been made distinct from the earlier relationship, and the participants have been given the opportunity to fully choose to proceed.15 This Standard of Practice does not appear to apply in cases involving role switching because the attorney would generally not represent both parties (unless in that narrow pre-filing drafting role noted above). This section more likely applies to cases in which the family used an attorney in the past, for estate planning, child welfare, or other representation, and the spouses would like to continue to use the services of that individual as a mediator in the new family matter.

Conclusion Given the important distinctions between mediators and lawyers, professionals should clearly delineate their professional role and its limitations to the parties. Managing expectations and ensuring clients give informed consent is a foundational legal duty, and the lawyer/mediator and parties need to understand these roles at the outset. Lawyers who advertise and regularly provide both services should carefully explain the differing roles to the parties and help them make an informed choice about which role the lawyer should undertake. Once the role is chosen, the professional should stay within that role, using the appropriate language in reference to him- or herself. Pat and Morgan may decide to hire the lawyer as a mediator. If so, the mediator will help the parties negotiate the sticking points of the divorce and ultimately draft the mediated agreements (Parenting and Financial Plans). For Pat and Morgan to finalize their divorce, they will need to either proceed to court pro se, or one or both of the parties may need to hire an attorney for the remaining steps, either as a full representation lawyer or a limited-scope lawyer. Alternatively, Pat or Morgan may hire the professional as a lawyer. In that case, the lawyer may negotiate on behalf of the client (whose interests may align strongly with the other spouse), draft any resulting agreements and necessary pleadings, and file the pleadings on behalf of the client spouse. If Pat retains the attorney, the attorney must disclose to Morgan (preferably in writing) that Morgan is not represented by Pat’s attorney and that Morgan is advised to hire separate legal counsel. The desire for lay people to find an “all in one” solution is understandable. The limitations and ethical boundaries of the professions require certain separations of duties both to maintain the standards of each profession and to protect the public from overreaching by professionals.



THE NEBRASKA LAWYER

MAY/JUNE 2019

SPEAKING OF ETHICS

Endnotes 1

matter that would raise questions about the integrity of the mediation.”); Neb. Stand. & Ethics for Center Mediators, Directors, and Staff III(B)(4) (“A mediator shall not use the mediation process to solicit, encourage or otherwise incur future services with either party.”).

Neb. Rule §3-502.3, cmt. 2 (“The role of a third-party neutral is not unique to lawyers, although, in some court-connected contexts, only lawyers are allowed to serve in this role or to handle certain types of cases. In performing this role, the lawyer may be subject to court rules or other law that apply either to third-party neutrals generally or to lawyers serving as third-party neutrals.”).

7 The

Mediators do not enter into attorney/client relationships with their clients nor do they practice law. For this reason, nonattorneys may act as mediators. Neb. Rule §3-502.3 (“A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.”).

This case clearly falls under the Parenting Act because a divorce action has been filed and because the parties need to establish a Parenting Plan. Neb. Rev. Stat. § 43-2924 (1) (applying in cases involving parenting functions). The Parenting Act would not strictly apply in family cases that do not involve children, and the Nebraska Lawyer’s Advisory Committee suggested that the Parenting Act does not apply in cases prior to the filing of the divorce complaint or a modification action. Nebraska Ethics Advisory Opinion for Lawyers, No. 17-02 (2017).

Neb. Rule §3-501.2(c)(“A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that said filings are ‘Prepared By’ and the name . . . of the lawyer preparing the same. Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case. Any filing prepared under this rule shall be signed by the litigant designated as ‘pro se.’”). Neb. Rule §3-501.7(b)(3).

10 Id.

11 Neb. 12 Neb.

Rule §3-501.7(b).

Rule §3-504.3 (“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”).

4 The

Nebraska Commission on the Unauthorized Practice of Law issued guidance that non-attorney mediators should not mediate property division or child support calculations in family matters unless: 1) an attorney mediator is also involved in the case, or 2) both parties are represented by counsel and counsel drafts resulting financial plans. Nebraska Commission on the Unauthorized Practice of Law, Advisory Opn. 01-2015, Mediator Role in Developing a Parenting Plan (2015).

13 Id.

(“The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.”).

5 Neb.

Rev. Stat. § 43-2939(3). The Rules of Professional Conduct similarly prohibit a mediator from representing anyone “in connection with a matter in which the attorney participated personally and substantially” as a mediator. Neb. Rule §3-501.12. The attorney ethics rules allow the parties to consent to the post-mediation representation, but the Parenting Act does not contain a similar exception.

14 Neb.

Stand. of Pract. & Ethics for Family Mediators, Std. IV(N) (including former legal representation as a conflict of interest for a mediator).

15 Id.

6 Neb.

Stand. Prac. & Ethics for Family Mediators IV(L) (“Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in the same

THE NEBRASKA LAWYER

UPL Commission stated that non-attorney mediators cannot draft pleadings for parties. Nebraska Commission on the Unauthorized Practice of Law, Advisory Opn. 01-2015, Mediator Role in Developing a Parenting Plan (2015). This Article similarly suggests that even attorney mediators cannot draft such pleadings, but under different authority.

MAY/JUNE 2019

court news

Nebraska Supreme Court Holds Oral Arguments at College By Meghan Straub, Nebraska News Service

On February 28, the University of Nebraska College of Law hosted the Nebraska Supreme Court’s oral arguments, a tradition that has occurred annually for over 30 years.

With provided case descriptions, case briefs and other resources, the students “have enough classes under their belt that they can dig into the arguments,” Moberly said.

With the goal of making the Court’s business accessible to students throughout the state, annual visits are also made to the Creighton University School of Law and select high schools. The arguments were also live-streamed on Nebraska Educational Television for students who were unable to attend.

Upon the completion of these cases, the justices allowed time for the students to ask questions. The topics discussed included the justices’ backgrounds, the number of cases they review each month and advice they have.

“This event is incredibly important,” said Richard Moberly, dean of the Nebraska College of Law. “The students get to see law being practiced at the highest level.”

Assistant Dean Marc Pearce said the session is well-timed for first-year law students, as they are just beginning to learn about oral arguments in the college's legal research and writing course.

Chief Justice Mike Heavican and six associate justices entered a temporary “courtroom” with about 200 observers consisting of students and professors of law, and the oral arguments began.

“This is a wonderful opportunity for our students to review case briefs and see first-hand how attorneys argue those briefs before the Court. In addition to the regular court proceedings, students also have the opportunity to ask questions of the

Nebraska Supreme Court Chief Justice Mike Heavican addresses the crowd during the oral arguments hosted by the Nebraska College of Law. College students and attendees were able to observe four court cases with a range in topics that were designed to demonstrate the variety of legal arguments seen in the court system on a daily basis. “One of the primary goals of holding arguments at the law schools is to give students an opportunity to see and experience the appellate process first hand,” Justice Stephanie Stacy said. Stacy said the video archive lets students and new lawyers develop their oral advocacy skills by watching how experienced lawyers present their cases and respond to questions from the court. “It also allows everyone to see how justice is being administered in our appellate courts,” Stacy said. THE NEBRASKA LAWYER

Justices to learn about how they generally make their decisions, and what the Justices feel makes for a good oral argument,” Pearce said. While this event provides the students with educational opportunities, Heavican said it does the same for himself and his fellow justices. He also thanked those working at the law schools for hosting the event. “We will see you in a courtroom later,” he said to the students. As the commitment to making the business of law accessible to students continues, the Supreme Court completed visits to Creighton and Boys Town in March.

MAY/JUNE 2019

COURT NEWS

Civil Justice Reform Committee Named by Nebraska Supreme Court

Lancaster County Judges Invite Law Students to Courthouse

The Nebraska Supreme Court has formed a Civil Justice Reform Committee with Justice Jonathan Papik serving as chairperson. The committee, which is housed within the Supreme Court Access to Justice Commission, will analyze the civil justice system in Nebraska and consider methods for improvement. In particular, the committee will consider recommendations made by the national Conference of Chief Justices and Conference of State Court Administrators to make state justice systems more innovative and cost-effective.

Soon-to-graduate law students spoke directly with Lancaster County judges inside their courtrooms thanks to the efforts of Lancaster County District Court Judge Robert Otte and Ms. Molly Brummond, Assistant Dean for External Relations at the UNL College of Law.

“Many state court systems all around the country are taking a hard look at their civil justice systems and considering whether the system can be made to run more efficiently, both in terms of cost and time,” stated Justice Papik. “I am looking forward to working with this committee to do the same in Nebraska.” Committee members include:

In late February, five Lancaster County Judges hosted the county’s first Walk Through the Courts. UNL Law Students were invited to 5 courtrooms (4 District and 1 County) and engaged in five different discussions about the courts and the litigation process. Molly Brummond, Kevin Ruser, Steve Schmidt, and Ryan Sullivan from UNL attended with approximately sixty 3rd-year UNL Law students. Judge Kevin McManaman provided a welcome and introduction in Courtroom 30 after which students split into four groups and dispatched to the various courtrooms where the following topics were covered:

Justice Jonathan Papik, Chairperson

Courtroom #34, District Court Judge Robert Otte:

Judge Ryan Carson, District Court

Care and feeding of your judge: Soft skills and unwritten rules that you should know (and judges expect) when you’re a newly minted lawyer.

Judge James Doyle, District Court Timothy Engler, Attorney

Courtroom #33, District Court Judge Andrew Jacobson

Renee Eveland, Attorney Judge Thomas Harmon, County Court

A fistful of traps for new lawyers. How to avoid common pretrial, trial and post-trial mistakes.

Troy Hawk, Clerk of the District Court Senator Mike Hilgers

Courtroom #36, District Court Judge Susan Strong

Judge Darla Ideus, District Court

“We made too many wrong mistakes.” (Yogi Berra). Navigating the main practice areas under the jurisdiction of the District Court.

Amie Martinez, Attorney Jane Martin-Hoffman, Mediator

Courtroom #23: County Court Judge Matt Acton

Carole McMahon-Boies, Attorney Services Division

The wild west of county court: Small claims, probate & estates, felonies and everything in between.

Milo Mumgaard, Legal Aid of Nebraska Ron Murtaugh, Judicial Administrator Prof. Kevin Ruser, UNL College of Law Andrew Sibbernsen, Attorney Corey Steel, Nebraska State Court Administrator Judge Derek Vaughn, County Court James Welsh, Attorney Judge Horacio Wheelock, District Court

THE NEBRASKA LAWYER

MAY/JUNE 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.”

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

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. 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

correction Editor's Note: The first illustrate in the single-sentence effect section of Mark Cooney’s article in the March/April 2019 issue of The Nebraska Lawyer, Snap, Crackle, Pop, was incorrectly formatted. We are reprinting the first illustrate from this section here.

The single-sentence effect Somewhere along the line, you may have heard that singlesentence paragraphs are forbidden. It’s not true. But even if it were, savvy writers would occasionally break this nonrule to make an impact. Look closely when you read literate publications. You’ll see top writers, especially essayists, sprinkling occasional single-sentence paragraphs into their work. The typical strategy is to first build momentum in one direction with an ordinary multiple-sentence paragraph. The writer then follows with a crisp single-sentence paragraph that marks an abrupt conceptual about-face, halting the reader in his or her mental tracks. I’ll first illustrate this approach with an excerpt from a nonlegal essay:

In March 2006, I found myself, at 38, divorced, no kids, no home, and alone in a tiny rowing boat in the middle of the Atlantic Ocean. I hadn’t eaten a hot meal in two months. I’d had no human contact for weeks because my satellite phone had stopped working. All four of my oars were broken, patched up with duct tape and splints. I had tendinitis in my shoulders and saltwater sores on my backside. I couldn’t have been happier.1 In this excerpt, the writer first presents a litany of miseries in a traditional multi-sentence paragraph. As readers, we feel the waves of hardship and woe conspiring against her. But then, in the short, snappy single-sentence paragraph that follows, the author jolts us to attention with a seemingly incongruous idea: she was happy. By breaking the supposed rule against single-sentence paragraphs, she punctuated her point. She made an impact. It popped.

Endnote 1 Savage,

2011.

THE NEBRASKA LAWYER

My Transoceanic Midlife Crisis, Newsweek, March 20, MAY/JUNE 2019

nsba news

NSBA Leadership Academy Fundraiser: Counsel for CASA By Ashley A. Moore

The Nebraska State Bar Association Leadership Academy is in its thirteenth year and is designed to develop the leadership skills of its twenty-five participants to allow them to make greater contributions to the legal profession and their community. The goals of the Academy are to: (1) Nurture effective leadership with respect to ethical, professional, and community service issues; (2) Build relationships among legal leaders from across the state and across disciplines within the profession; (3) Raise the level of awareness among lawyers regarding the broad range of issues facing the legal profession; and (4) Enhance the diversity of leaders with the legal profession and the community as a whole. Each year participants of the Academy choose a public service project and this year’s participants have chosen to campaign to assist the Court Appointed Special Advocates (“CASA”), specifically the PlainsWest CASA program whose headquarters is located in Sydney, Nebraska in order to help the facility complete its handicap accessible restroom.

Nebraska CASA Association The Nebraska CASA Association’s mission is to partner with local CASA programs “to recruit and train volunteers who speak in court for the safety and well-being of abused and neglected children.”1 CASA programs operate in compliance with the Nebraska Court Appointed Special Advocate Act,2 and those volunteers who are recruited, screened, and trained are appointed by judges to watch over and advocate for children who have been removed from their homes due to abuse or neglect. Children placed with a CASA volunteer are more likely to spend less time in foster care, perform better in school, and have a consistent and responsible adult presence.3 In Nebraska, there are twenty-one CASA programs serving forty-eight counties and, in 2018 alone, there were 2,046 children served by 824 volunteers who gave 30,699 hours of their time and traveled 216,909 miles.4 THE NEBRASKA LAWYER

PlainsWest CASA5 Background In 2013, the Cheyenne County CASA began serving child victims of crime through a Memorandum of Understanding with the Cheyenne County Court. In December 2015, the Cheyenne County CASA began operating under its own 501(c) (3) corporation and continued to recruit, screen, train, and support CASA volunteers. On April 27, 2016, the Cheyenne County CASA program expanded its services into Kimball County, Nebraska and, on February 10, 2017, it expanded its services into Deuel County, Nebraska. Until Cheyenne County CASA’s expansion, neither Kimball County nor Deuel County had CASA programs advocating for victims of child abuse. On September 27, 2017, the Cheyenne County CASA program underwent a name change and became formally known as the PlainsWest CASA to better incorporate all three counties it presently serves.

PlainsWest CASA Program and Facility The PlainsWest CASA program is the only service provider in Cheyenne, Deuel, and Kimball Counties providing advocacy for child victims of abuse and neglect involved in Juvenile Court. PlainsWest CASA consists of a full-time Executive Director, a part-time Volunteer Coordinator, a parttime Administrative Assistant, and sixteen volunteers. In April 2018, PlainsWest CASA moved offices and began a major overhaul of a building once used as a hair salon with the intention of turning it into an office space with two family visitation rooms. During the remodeling period, the primary goal of PlainsWest CASA was to complete the family visitation rooms in order to provide families with safe, private environments during court ordered supervised visits. MAY/JUNE 2019

NSBA NEWS The first visitation room, previously used for tanning beds, took four months to complete and used a good portion of the renovation budget due to the costs associated with flooring and electrical. The second visitation room took three months to complete and, now that both visitation rooms are being utilized regularly, the need for a handicap accessible restroom has become a priority.

We thank you in advance for your generous support of the PlainsWest CASA, the Nebraska CASA Association, and for making a difference in the lives of abused and neglected children. Currently, there are more than 2,500 children in the Foster Care system without a CASA volunteer. If you are interested in becoming a volunteer, please visit nebraskacasa. org for more information.

Initial steps such as framing the handicap accessible restroom were taken, but the PlainsWest CASA no longer has any available funds to complete this project. Having a single restroom presents problems for the facility, especially during those visits involving toddlers who are in the process of being potty trained. PlainsWest CASA Executive Director Krista Bruns estimates it will take approximately $7,500 dollars to complete the handicap accessible restroom.

ASHLEY A. MOORE is an attorney at the Ranniger Law Firm in Manning, Iowa and focuses primarily in the areas of Estate Planning, Probate, Taxation, Real Estate, Insurance, and Agriculture. She obtained her law degree from Creighton School of Law and is a current member of the Nebraska Leadership Academy.

C. How to Donate

Endnotes

Your gift of money, both large and small, would help the Nebraska Leadership Academy achieve its goal of providing funds for a handicap accessible restroom at the PlainsWest CASA facility. Should you choose to donate, the NSBA has provided the following avenues to do so: 1) Online at www.nebar.com/page/Leadership, click on the Counsel for CASA banner; or

1 2

See https://www.nebraskacasa.org/who_we_are/mission.html

See Court Appointed Special Advocate Act, Neb. Rev. Stats. Ann. §§ 43-3701 to 43-3720 (2019).

3 This 4

information was provided by Corrie Kielty, Executive Director of Nebraska CASA Association. Id.

5 The

following information was provided by Krista Bruns, Executive Director of the PlainsWest CASA.

2) Mail a check made payable to the “Nebraska Lawyers Foundation” to: Nebraska State Bar Association LA Fundraiser/CASA 635 South 14th Street, #200 Lincoln, Nebraska 68508

Members of the 2018-2019 Leadership Academy (not in order pictured): Lindsay R. Belmont, Jaclyn N. Daake, Sallie V. Dietrich, Whitney A. Estwick, Adam R. Feeney, Thomas J. Freeman, Maureen E. Fulton, Catrina K. Harris, Kelsey L. Helget Christa Binstock Israel, Jack W. Lafleur, Jessica D. Meyer, Michael W. Milone, Ashley A. Moore, Julia K. Palzer, Zachary D. Petersen, Sarah E. Preisinger, Thomas D. Prickett, Michael A. Ramirez, Danielle L. Rowley, Blake Simpson, Meagan K. Spomer, Anthony D. Todero, Erin E. Wetzel, J. Bub Windle. THE NEBRASKA LAWYER

MAY/JUNE 2019

NSBA NEWS

Two New Publications Join the Growing List of NSBA Manuals

The Family Law Practice Manual (2019) and the Nebraska Statutes of Limitations Reference (2019) The Family Law Practice Manual (2019) includes detailed discussions of many areas of family law, with a focus on marriage and divorce and issues related to children. Topics range from the initial client meeting, through retainers, many aspects of marriage and divorce, post-divorce tasks, protection orders, privacy issues, paternity, reproductive issues, termination of parental rights, grandparent rights, immigration, disabilities, and resources for clients and lawyers. Many chapters include forms. The electronic version includes the forms as Word documents. The electronic version of the manual is mailed on a flash drive. The print version is 1000 pages, includes pre-printed tabs, and is contained in two sturdy binders. Purchasers of the print version also receive the electronic version. The Nebraska Revised Statutes include several thousand time limits on a myriad of issues. They are collected into the Nebraska Statutes of Limitations Reference (2019), which has just been updated through December 21, 2018. Each statute is briefly summarized, followed by the time limit, and then by the event from which the time limit is calculated. The Nebraska Statutes of Limitations Reference (2019) is available both electronically and in print. Electronic use of the reference is encouraged because it allows the user to quickly search for relevant limitations. Both publications are available through the online NSBA Store. The family law manual costs: Electronic for voluntary NSBA members--$190, electronic for nonmembers--$205, print version for NSBA members--$230, print version for nonmembers--$245. Purchasers of the print version will also receive a flash drive with the electronic version. The limitations reference costs: Electronic for voluntary NSBA members--$40, electronic for nonmembers--$50, print version for NSBA members--$60, print version for nonmembers--$70. The two new publications join these other current NSBA publications: Nebraska Civil Practice and Procedure Manual (2016); Understanding Adoption Procedures in Nebraska (2016); 2016 Appellate Practice Handbook; Nebraska Evidence Handbook (2018); Closing a Practice (updated 2017); Planning for Your Unexpected Absence, Disability or Death (updated 2017); Nebraska Real Estate Practice Manual (known as The Red Book) (2017); 2018 Nebraska Probate Manual. Also available in the store are the Nebraska Criminal Offense Penalties List (current as of July 1, 2018), and the Nebraska Real Estate Title Standards (revised 2013). THE NEBRASKA LAWYER

A update to the Nebraska Real Estate Title Standards is in progress under the leadership of the NSBA Real Estate Practice Guidelines Committee, chaired by Mike Matejka. Publication is expected fall 2019. An update to the Evidence Handbook is expected late summer 2019. NSBA asks that manual users abide by its Purchaser Honor System Policy. Practice manual sales are an important source of revenue for NSBA that help keep member dues some of the lowest bar dues in the US and allows NSBA to shepherd creation of the manuals. If multiple individuals in a firm will use a resource, please purchase a copy for each user. Publication of resources is largely possible because of the generosity of Nebraska lawyers who author and review content. The family manual effort was led by Brandie Fowler, Statewide Child Support Referee for Nebraska Supreme Court, and Lorrie Benson, NSBA Publications Director. The limitations reference update was led by Payton Harris, NSBA Senior Law Clerk.

Family law authors are:

Chris Aupperle, Nebraska Lawyers Assistance Program, Lincoln Alissa M. Baier, Krotter Law Group PC, LLO, Oâ&#x20AC;&#x2122;Neill John W. Ballew Jr., Ballew Hazen, PC LLO, Lincoln Lorrie B. Benson, Nebraska State Bar Association, Lincoln Kimberly A. Booth, Reisinger Booth & Associates, PC LLO, Omaha Robert M. Brenner, Robert M. Brenner Law Office, Gering Timothy P. Brouillette, Brouillette, Dugan & Troshynski, PC, LLO, North Platte James M. Buchanan, James M. Buchanan, PC, LLO, Omaha Rebecca Chasek, Douglas, Kelly, Ostdiek, Snyder, Ossian, Vogl and Snyder, P.C., Chadron Kari Fisk, Buffalo County Attorneyâ&#x20AC;&#x2122;s Office, Kearney MAY/JUNE 2019

NSBA NEWS Brandie M. Fowler, Statewide Child Support Referee for Nebraska Supreme Court, Papillion Julie Fowler, Fowler & Kelly Law, LLP, Omaha

Mindy M. Rush Chipman, City of Lincoln Commission on Human Rights, Lincoln Susan K. Sapp, Cline Williams Wright Johnson & Oldfather, LLP, Lincoln

Jennifer Gaughan, Legal Aid of Nebraska, Omaha

Kent A. Schroeder, Ross, Schroeder & George, LLC, Kearney

Vanessa J. Gorden, GordenLaw, LLC, Lincoln Pamela Hogenson Govier, Govier, Katskee, Suing & Maxell, PC, LLO, Omaha Jodie L. Haferbier McGill, McGill Law P.C. L.L.O., Omaha Scott V. Hahn, Koenig|Dunne, PC, LLO, Omaha Mary Kay Hansen, Mary Kay Hansen Law & Mediation, PC LLO, Lincoln John A. Kinney, Kinney Mason, P.C., L.L.O., Omaha

Bergan Schumacher, Bruner Frank Schumacher, L.L.C., Kearney Josiah A. Shanks, Koukol & Johnson, LLC, Omaha John S. Slowiaczek, Slowiaczek Albers PC, LLO, Omaha Paul W. Snyder, Douglas, Kelly, Ostdiek, Snyder, Ossian, Vogl and Snyder, P.C., Scottsbluff Hannah C. Sommers, Slowiaczek Albers, PC, LLO, Omaha Meagan K. Spomer, Nebraska Legal Group, PC, Omaha

Susan M. Koenig, Mayer, Burns & Koenig, Grand Island

B. Gail Steen, Steen Law Office, Lincoln

Rachel Kunz, ACLU of Nebraska, Lincoln

Joy M. Suder, Suder Law, PC LLO, Omaha

Jane F. Langan Mach, Rembolt Ludtke LLP, Lincoln

David M. Thompson, Carlson & Burnett, LLP, Omaha

Angela M. Lennon, Koenig|Dunne, PC, LLO, Omaha

Cathy S. Trent-Vilim, Lamson Dugan & Murray, LLP, Omaha

Alex M. Lierz, Rembolt Ludtke LLP, Lincoln Jill M. Mason, Kinney Mason, P.C., L.L.O., Omaha

John T. Turco, John T. Turco & Associates, P.C., L.L.O., Omaha

Liam K. Meehan, Schirber & Wagner, L.L.P., Bellevue Michael W. Milone, Koukol & Johnson, LLC, Omaha Karen S. Nelson, Carlson & Burnett, LLP, Omaha Jordan D. Ninh, John T. Turco & Associates, P.C., L.L.O., Omaha Nicholas W. O’Brien, Carlson & Burnett, LLP, Omaha

Johnny J. Turco, John T. Turco & Associates, P.C., L.L.O., Omaha Amanda M. Vogl, Douglas, Kelly, Ostdiek, Snyder, Ossian, Vogl and Snyder, P.C., Crawford Jeffrey A. Wagner, Schirber & Wagner, L.L.P., Bellevue

David M. Pontier, Koenig|Dunne, PC, LLO, Omaha Sarah E. Preisinger, Sarpy County Attorney’s Office, Papillion Kathryn D. Putnam, Astley Putnam, PC, LLO, Omaha

Corey J. Wasserburger, Johnson Flodman Guenzel & Widger, Lincoln Mark A. Weber, Nebraska Counsel for Discipline, Lincoln Peter C. Wegman, Rembolt Ludtke LLP, Lincoln

Justin Quinn, Quinn Law, Omaha Katy A. Reichert, Chaloupka, Holyoke, Snyder, Chaloupka, & Longoria, PC LLO, Scottsbluff Eileen Reilly, Women’s Center for Advancement, Omaha

Kathryn E. Welsh, Women’s Center for Advancement, Omaha Dennis G. Whelan, Slowiaczek Albers, PC, LLO, Omaha

Teresa S. Richards, Anderson Creager & Wittstruck, PC LLO, Lincoln

Richard W. Whitworth, Reagan Melton & Delaney, LLP, Bellevue

Scout Richters, ACLU of Nebraska, Lincoln

Abbie J. Widger, Johnson Flodman Guenzel & Widger, Lincoln

Patrick R. Runge, Runge Law Office LLC, Omaha

THE NEBRASKA LAWYER

MAY/JUNE 2019

Dennis Collins

Kristopher Covi

Jewell & Collins, Norfolk

McGrath North Mullin & Kratz, PC LLO, Omaha

What do you do to nurture your creative side? Acting, accordion, piano

What do you do to nurture your creative side? Comedian

Who are your biggest influencers when it comes to your art/craft? My wife and others in the arts.

Who are your biggest influencers when it comes to your art/craft? Patton Oswalt, Norm Macdonald, Gary Gulman to name a few. I tend to like smart, anecdotal comedians.

When did you start doing your art/ craft? High School How do you balance practicing law, practicing your art/craft and your personal life? Not very well. I can only do it with the fabulous help of the people in my officeâ&#x20AC;&#x201D;All of whom are amazing. What advice would you give to lawyers who may want to develop their creative sides? Go for it. It's worth the effort. How has your art form changed you as lawyer? Helps preserve my sanity.

When did you start doing your art/craft? I started in college at Drake University, but gave it up to go to law school. I started back up as a form of mid-life crisis about 6 years ago and after some success in a few competitions things have just taken off. How do you balance practicing law, practicing your art/craft and your personal life? Her name is Jessica and she is amazing. My wife holds it all together and the practice of law is very flexible. Most of my shows are nights and weekends so it is just a matter of keeping everything on one schedule. What advice would you give to lawyers who may want to develop their creative sides? Go fail. Who knows, you might be good at it, but if not you will always be able to say you tried. How has your art form changed you as lawyer? I have never been overly nervous in court, but it is certainly much easier to address a jury in trial than to make a room full of strangers laugh. http://www.kriscovi.com/new-page-1

THE NEBRASKA LAWYER

MAY/JUNE 2019

Kelsey Helget

Julie M. Karavas

Adams County Public Defender, Hastings

Karavas & Kranz, P.C. (in Nebraska and Colorado)

What do you do to nurture your creative side? I act, sing, and help backstage in my area's community theatres (Grand Island Little Theatre and Hastings Community Theatre) and I perform with an improv troupe, Tri City Improv. I also go to karaoke with friends.

What do you do to nurture your creative side? I enjoy writing and recently wrote a children's book, My Brother is Like a Mystery-Flavored Candy.

When did you start doing your art/ craft? I have been involved in theater since I was little. Performing in my community, then at my high school, and then at college. I knew I wanted to go to law school, but majored in Theater because it was a passion of mine. How do you balance practicing law, practicing your art/craft and your personal life? I found that I could balance work, home, and hobbies once I started working at the Public Defender's Office and was no longer stressed about billable hours. I could not do it without an amazing husband, who does the majority of the cooking and cleaning when I am involved in a show. How has your art form changed you as lawyer? Since starting improv classes, and graduating to performing in the troupe, I have found I am more confident in coming up with legal arguments at a moments notice. https://www.facebook.com/TriCityImprov/

Who are your biggest influencers when it comes to your art/craft? My paternal grandmother. When did you start doing your art/craft? I have always enjoyed writing, however, I started to write with the intent of publishing about 5 years ago. How do you balance practicing law, practicing your art/craft and your personal life? Actually, it is partially due to working with families with special kids that inspired me to write the book. It has been very meaningful to share the positive perspective of a child who has a special sibling. It is very rewarding to use my professional experience and knowledge in a more creative way to help kids understand and appreciate special kids in their family or community. What advice would you give to lawyers who may want to develop their creative sides? I know I never want to say, what if I had written that book... How has your art form changed you as lawyer? Being creative helps to open my mind and consider different perspectives. https://outskirtspress.com/mybrotherislikeamysteryflavoredcandy

THE NEBRASKA LAWYER

MAY/JUNE 2019

Timothy Matas

Christina Thornton

Platte County Public Defender's Office, Columbus

Independent contractor with the NSBA, Lincoln

What do you do to nurture your creative side? I have several artistic outlets, but by far most of my creative involvement comes from music. I am a trombonist and vocalist, playing lead trombone and singing vocals with the Columbus (NE) Jazz Orchestra. I also direct the adult choir at Peace Lutheran Church (Columbus, NE), and play in the PLC Brass Choir, sometimes playing trombone, sometimes trumpet. Who are your biggest influencers when it comes to your art/ craft? My favorite music to play is big band jazz. My influences are Glenn Miller, Count Basie and, on the newer side, Gordon Goodwin's Big Phat Band. When did you start doing your art/craft? I began with music as a child with piano lessons in the 2nd grade, and gradually added trumpet, trombone and voice lessons as I got older. I also played trombone in the Cornhusker Marching Band from 1997-2001. How do you balance practicing law, practicing your art/craft and your personal life? My family and career are certainly more important to me than playing, but I find that including my wife and children by bringing them to performances gets them all involved. It also helps that my rehearsal schedule largely coincides with time that my kids are at home asleep. What advice would you give to lawyers who may want to develop their creative sides? Find something that brings you joy, and make sure you regularly devote time to it. Even if you have to schedule time, even a couple hours a week can do wonders for your stress and happiness. How has your art form changed you as lawyer? I don't know that it's changed me as a lawyer, since I was a musician long before I went to law school, but being a lawyer has definitely changed me as a musician. Applying skills that I have learned as a lawyer, such as focusing on a specific issue without losing sight of the whole, has certainly enhanced my rehearsing of a difficult piece or passage within a piece. https://www.facebook.com/ColumbusJazzOrchestra/ THE NEBRASKA LAWYER

What do you do to nurture your creative side? I act, sing and play the flute. Since 2015, I have appeared in several community theatre productions including "The Laramie Project" in Glenwood, Iowa; "Witness for the Prosecution" at the Chanticleer in Council Bluffs, Iowa; "Priscilla, Queen of the Desert" at the Blue Barn Theatre in Omaha, Nebraska; M*A*S*H* at Bellevue Little Theatre; and "Elegies" at SNAP! Productions in Omaha, Nebraska. I performed at the Panhandle Gay Pride Festival in August 2018. I am a former member of the River City Mixed Chorus and currently sing with the First Unitarian Church Choir in Omaha, Nebraska. Who are your biggest influencers when it comes to your art/ craft? Fellow singers and actors who are better than me. They inspire me to refine/retool my skills. When did you start doing your art/craft? I have been performing since I was a child but took a long hiatus when I became a single parent in 1984. I resumed performing in 2015 and have been actively pursuing my craft ever since. How do you balance practicing law, practicing your art/craft and your personal life? One day at a time; one deadline at a time; one family obligation at a time. What advice would you give to lawyers who may want to develop their creative sides? I strongly encourage lawyers not to repress their creative sides. I suppressed my performing instincts for far too long and always felt like something was missing from my life. I never felt completely fulfilled as a human being until I resumed performing. How has your art form changed you as lawyer? Performing reaffirms my humanity which, I think, enables me to be a more compassionate and empathetic advocate for my clients. I am also happier and less stressed out when I am engaging my creative side which translates to me being a more effective attorney. Balance in life is very important. Everyone needs an outlet, particularly lawyers whose work is, by its very nature, demanding and all consuming.

MAY/JUNE 2019

Volunteer Lawyers Project Volunteer Spotlight: Volunteer Lawyers for the Arts Nebraska

by Laurie Heer Dale and Carol Cleaver, Volunteer Lawyers Project

Volunteer Lawyers for the Arts-Nebraska (VLA-NE) is a program that connects artists and the creative community with lawyers dedicated to providing pro bono legal services. VLANE is just one of the support services Amplify Arts provides to fulfill its mission to support local artists and build capacity for the arts and cultures sector. The program pairs qualifying applicants with a volunteer lawyer to assist with resolution of a legal issue and provides access to legal resources, publications, and public programs that address arts-related legal issues. Andrew “Andy” Saladino is the Executive Director of Amplify Arts, a nonprofit organization that supports artists with resources needed to thrive in their careers. The organization formed under the name Omaha Creative Institute in 2008. It changed its name to Amplify Arts in November 2018. In his position, Andy recognized the various legal issues faced by artists, many lacking the financial resources to hire a lawyer. He started researching national pro bono programs for the arts and discovered programs in metropolitan cities like Denver, Kansas City, Minneapolis and New York. Andy was determined to bring a similar program to Nebraska. He mentioned his idea to a friend, who connected Andy with Omaha attorney Jason R. Thomas. Jason’s practice focuses on art and entertainment law, contract review, drafting, negotiations, small business and startup law, and nonprofit organizations. Together, they developed VLA-NE, formally organized in May 2018.

The Program VLA-NE provides free services to qualifying artists who reside in Nebraska. The program is limited to assisting individuals, not organizations. Among its goals, VLA-NE seeks to educate artists about the support and knowledge a lawyer can provide for legal issues. Educational outreach includes services to help emerging artists and college students starting a career.

Assistance is available only for matters that relate to the arts or an active arts practice. Common legal issues include preparation and review of contracts, copyright issues, including fair use concerns, real estate disputes over studio space, etc. Representation is available in several practice areas, including bankruptcy, collections, contract, copyright, corporate, entertainment, First Amendment, insurance, labor and employment.

Eligibility for Services Services are available to Nebraska residents only. The applicant’s income must be no greater than 250% of the Federal Poverty Income Guidelines, with income adjustments for dependents. VLA-NE wants to ensure services are streamlined to people who need the services, and it evaluates need on a case-by-case basis. Income eligibility requirements assure lawyers and law firms that the program has established procedures to provide pro bono legal services only to those who lack the financial means to pay for legal counsel.

Volunteers in the Network The program is new and still recruiting volunteers. Presently, there are eight volunteers in the pro bono network. Since the program’s launch, volunteers have assisted with five cases. The range of program services provide lawyers interested in engaging in pro bono services for the arts several opportunities to do pro bono work.

Interested in Volunteering To learn more about volunteering for VLA-NE, contact Andy Saladino at andy@amplifyarts.org or (402) 982-4397.

Services focus on three main areas: Connecting volunteer lawyers with individuals having an arts-related legal issue, workshops and programs on different arts-related legal issues, and free legal resources. Currently, services are available in Omaha. The program seeks to expand services to Lincoln within the next 1-2 years and eventually to all Nebraska residents. THE NEBRASKA LAWYER

MAY/JUNE 2019

Volunteer Lawyers Project VLP Welcomes New Staff

Melissa Robinson, Legal Administrative Specialist The NSBA is pleased to announce the hiring of Melissa Robinson as the VLP Legal Administrative Specialist. Melissa joined VLP in February 2019. A Nebraska native, Melissa has always resided in Lincoln. She received a B.A. in Criminal Justice from Kaplan University and has worked as an administrative assistant at the Nebraska State Patrol where she utilized her process improvement skills to create efficiencies in application processes. Melissa is passionate about making access to the legal system a reality for all Nebraskans, regardless of income or other factors. In her role as legal administrative specialist, Melissa is responsible for performing a broad range of project management and administrative duties in support of the VLP programs. Specifically, she assists with administering Nebraska Free Legal Answers, VLP Self-Help Centers, the VLP website and volunteer database and scheduling, tracking and recognizing volunteers. Melissa also responds to requests for general information from attorneys, the public and individuals seeking legal assistance. Outside of work, Melissa enjoys spending time with her husband and two sons. Attorneys interested in volunteering for VLP programs may contact Melissa at volunteerlawyersproject@nevlp.org or (402) 475-7091.

VLP Collaborates with Legal Aid of Nebraska to Provide Legal Services to Disaster Victims Nebraska families and communities have suffered mass destruction and devastation by the recent flooding. Thousands of Nebraskans have been affected. Many have lost their homes, property and livelihood. Access to legal services and resources is critical to recovery. Victims need your help now. Disaster survivors who do not qualify for Legal Aid of Nebraskaâ&#x20AC;&#x2122;s services are being referred to VLP to have their cases placed with attorneys who have agreed to provide free legal assistance. Assistance may include telephone and in-person consultations, limited scope and extended representation. Survivors are also being referred to Nebraska Free Legal Answers. Volunteer attorneys will receive online training and written resources on the issues they are likely to encounter and are covered by the VLP malpractice insurance policy. Please consider volunteering to take a case or respond to questions posted on Nebraska Free Legal Answers today. THE NEBRASKA LAWYER

Pro Bono Cases Case lists are available on the VLP website at www.nevlp. org/pro-bono-cases. Cases are listed by county and practice area and updated regularly. A new Disaster Relief category has been added to aid in identifying victims who need your help. Simply click the case number to email your interest to VLP and to receive information to check for conflicts.

Nebraska Free Legal Answers Nebraska Free Legal Answers is a virtual limited advice clinic that allows volunteers to do pro bono onlineâ&#x20AC;&#x201D;anytime and anywhere there is Internet access. Attorneys select the questions to answer. Qualified Nebraska residents can post up to three different civil legal questions each year. This program provides a convenient and rewarding way to do pro bono and greatly benefits all users, especially victims of the recent flooding. Additional legal categories have been added to identify users needing assistance with flood related issues; and, the income and asset ceilings have been increased to accommodate flood victims who, as a result of the mass devastation, are likely experiencing a temporary or permanent loss of financial means to pay for legal services. Visit www.NE.freelegalanswers.org to register and start doing online pro bono now.

Self-Help Centers A Self-Help Center is a free, walk-in legal information and resource center for low-income persons representing themselves in Nebraska courts. Volunteers answer general questions about the civil court process and court procedures, provide information and instructions for completing self-help court forms, and provide information about legal services for low-income persons. Self-Help Centers are in courthouses in Buffalo, Douglas, Hall, Kimball, Madison and Scotts Bluff counties. Visit the VLP website at www.nevlp.org/self-help-center for more information and to register to volunteer.

Upcoming Fundraising Event

Annual Golf Fundraiser, Friday, June 14, Gothenburg Every June, the Nebraska Lawyers Foundation hosts a golf tournament to raise money for VLP. It starts with lunch, driving range and four-person scramble followed by a reception and dinner. The next event is Friday, June 14, 2019, at Wild Horse Golf Club in Gothenburg. Visit the VLP website at www.nevlp.org to register or contact Sam Clinch at (402) 475-7091 or sclinch@ nebar.com to register or for more information. Lawyers may conveniently donate to VLP anytime by visiting the website at www.nevlp.org. MAY/JUNE 2019

Volunteer Lawyers Project Pro Bono Pledge 2019

Lawyers

Join the Call to Action for all members of the Nebraska State Bar to renew a commitment to access to justice through pro bono service. The American Bar Association urges all lawyers to provide a minimum of 50 hours of pro bono service annually. The NSBA proudly recognizes the following lawyers and law firms that have signed the pledge for 2019. Visit the VLP website at www.nevlp.org/pro-bono-pledge to show your commitment to pro bono in 2019.

Quinn R. Eaton, Omaha Patrick M. Heng, North Platte Christopher M. Johnson, York Kevin P. Stanoshek, Texas

Law Firms Husch Blackwell LLP

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

THE NEBRASKA LAWYER

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

MAY/JUNE 2019

Volunteer Lawyers Project Pro Bono Partners The success of the Volunteer Lawyers Project depends on its network of volunteers across the state. VLP extends it appreciation to the following pro bono partners who have provided pro bono services in VLP programs in 2019.

Nebraska Free Legal Answers Audrey A. Bellew, North Platte Lindsay R. Belmont, Omaha Larry W. Beucke, Kearney Kristin M. Blankley, Lincoln Angela L. Burmeister, Omaha Joshua L. Christolear, Syracuse Kelly R. Davis, Omaha Carla J. DeVelder, Omaha Quinn R. Eaton, Omaha Timothy R. Engler, Lincoln Kelsey L. Helget, Hastings Christa B. Israel, Lincoln

Pro Bono Cases

Jill M. Abrahamson, Omaha Matthew D. Baack, Hastings Frederick T. Bartell, Norfolk Sara J. Bockstadt, Hastings D. C. “Woody” Bradford, Omaha* Mona “Molly” L. Burton, Lincoln Brian J. Davis, Cozad Jeffrey W. Davis, Beatrice Jason S. Doele, Norfolk Timothy R. Engler, Lincoln David H. Fisher, Hastings Julie Fowler, Omaha Ronald E. Frank, Omaha Jodie Hafferbier McGill, Omaha Emilee Higgins, Columbus Kenneth F. Jacobs, Omaha

THE NEBRASKA LAWYER

Catherine M. Mahern, Omaha Julia K. Palzer, Omaha Zachary D. Petersen, Omaha Sarah E. Preisinger, Papillion Thomas D. Prickett, Plattsmouth Kevin L. Ruser, Lincoln Megan K. Spomer, Omaha Rachael A. Smith, Omaha Ryan P. Sullivan, Lincoln Richard W. Tast Jr., Lincoln James H. Truell, Kearney Katherine E. Welsh, Omaha Erin E. Wetzel, Omaha Luke J. Klinker, Omaha Jane F. Langan Mach, Lincoln Daniel C. Pape, Omaha Peng Li, Omaha Joseph Lopez-Wilson, Omaha Amie C. Martinez, Lincoln Gretchen L. McGill, Omaha Deziree N. Medina, Lincoln Jeffrey T. Palzer, Omaha James E. Reisinger, Omaha Katherine E. Sharp, Columbus Thomas J. Shomaker, Omaha Catherine N. Swiniarski, Omaha David R. Webb, Lincoln Elise M. White, Lincoln Megan M. Zobel, Lincoln *assisting disaster victims

Bar Associations/Organizations Buffalo County Bar Association Creighton University School of Law Hall County Bar Association Immigrant Legal Center Legal Aid of Nebraska Madison County Bar Association Midlands Bar Association

Metropolitan Community College Student Paralegal Association Milton Abrahams Legal Clinic Omaha Bar Association Scotts Bluff County Bar Association University of Nebraska College of Law Women’s Center for Advancement

Self-Help Centers Buffalo Melodie T. Bellamy, Coordinator Michael W. Baldwin Larry W. Beucke Brandon J. Dugan Marsha E. Fangmeyer Mitchell C. Stehlik Douglas Christina Thornton, Coordinator James F. Busse Joseph Dreesen Richard A. Drews Michael J. Haller, Jr Karisa D. Johnson Kendall K. Krajicek Stephen J. Lefler Craig F. Martin Tyler A. Masterson Michael P. Moran Melany S. O’Brien Ralph E. Peppard Arturo Perez Kathryn D. Putnam Justin A. Quinn Danielle L. Rowley Alan C. Schroeder Judith A. Schweikart David Sommers J.G. “Gerry” Sullivan Kenneth M. Wentz III

Douglas/Creighton Martha J. Lemar Catherine “Kate” Mahern Christopher A. Mihalo Jennifer N. Rowling Hall Shawn J. Farritor, Coordinator Kevin A. Brostrom Brandon J. Dugan Grady C. Erickson Stacie A. Goding Andrew D. Hanquist Karisa D. Johnson Susan M. Koenig Charles R. Maser Kane M. Ramsey Audrey A. Rowley Erin M. Urbom Kevin P. Walsh Kimball Stacy C. Bach, Coordinator Madison Ryan J. Stover, Coordinator Jason S. Doele Jack W. LaFleur Scotts Bluff Stacy C. Bach, Coordinator

MAY/JUNE 2019

nsba section connection

Each year members of NSBA Sections volunteer to talk about their practice specialties with law students at Creighton and NU Law. Volunteering for this year’s events were (clockwise starting at top left): Kara Brostrom representing the Real Estate, Probate and Trust Section at NU Law; Preston Peterson representing the Elder Law and Juvenile Law Sections at NU Law; Sarah Marfisi representing the Appellate Practice Section at Creighton Law; Ken Smith, who is chair of the Public Interest Law Section, at Creighton Law.

Extensive Resources

Fun, Casual Networking

The NSBA Military and Veterans Law Section provides an extensive list of resources useful for lawyers representing veterans, active military, and their families. The list includes links and phone numbers for a myriad of resources and issues, including health, housing, compensation, benefits, education and more. The resources are available to lawyers and their clients through the NSBA website (www.nebar.com). Look under “For the Public” or go to the section page.

NetWORKS!, NSBA’s professional networking group, offers Lincoln and Omaha-area lawyers a fun, casual and easy way to meet other lawyers and build their professional connections. It’s simple: Members are matched every other month with a different lawyer and just find a time in the two-month period to meet for coffee or lunch. Members may sign up for either the Omaha or Lincoln groups or both. Details and signup are on the NSBA website under “Members.”

Nebraska needs more lawyers to serve the legal needs of veterans and active military. To help meet that need, the Section is working on several CLE opportunities to help lawyers better understand the overlay of military law on practice areas including estate planning, finance, housing, etc. The Section is collaborating with the General Practice Section to offer a session on the Service Members Civil Relief Act for NSBA Annual Meeting. THE NEBRASKA LAWYER

If you’re interested in any of the NSBA Sections or have questions, please contact NSBA Section Facilitator Lorrie Benson at 402-475-7091 or lbenson@nebar.com.

MAY/JUNE 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 Family Law Practice Manual (2019), “The Initial Consultation,” by Vanessa Gorden: Practice Points: Initial Consultations Following initial consultation, outline your notes for creating the retainer/representation agreement and to assist in case management later. Make note of any areas where more information is needed. Make note of any facts needing clarification or issues that may arise with either the facts or the client. If you will need to educate yourself on certain issues in order to effectively represent this potential client, make note of that too. (42)

NSBA Publications

Family Law Practice Manual (2019)

The new manual covers a wide range of topics, including extensive content on divorce.

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

Voluntary Dues-Paying Member Discounted Price: $190 (electronic) $230 (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, and special appeals topics.

Nebraska Criminal Offense Penalties List

This list is created by University of Nebraska Law Professor Steven J. Schmidt and includes: felony penalties, sentencing enhancement, and more misdemeanor and infraction penalties.

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

Voluntary Dues-Paying Member Discounted Price: FREE (electronic) $12 (laminated copy)

2016 Nebraska Civil Practice & Procedure Manual

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

Nebraska Evidence Handbook

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

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

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

2017 Nebraska Real Estate Practice Manual

The Nebraska Real Estate Practice Manual, commonly called the Red Book, includes detailed discussions on buying, financing, leasing, and selling real estate and primers on many special topics.

Nebraska Statutes of Limitations Reference (2019)

This reference collects the thousands of limitations in the Nebraska Revised Statutes.

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

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

2018 Nebraska Probate Manual

Planning for Your Unexpected Absence, Disability or Death

This manual covers the probate process from the initial engagement through the final distribution and estate closing.

This manual outlines how to protect clients, practice and a lawyer’s family in the event of a lawyer’s unexpected absence, disability or death. Included is a detailed discussion of file closing, retention and destruction.

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

Closing A Practice

$25 (electronic)

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

$25 (electronic)

$35 (print copy)

Understanding Adoption Procedures in Nebraska

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

$35 (print copy)

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

THE NEBRASKA LAWYER

MAY/JUNE 2019

Upcoming CLE Programs May 7 Cyber Security - Prevent, Detect and Respond to a Cyber Attack Webinar 1 CLE hour May 9 2019 Bankruptcy Section Seminar: Bankruptcy Fundamentals Embassy Suites, La Vista 5.25 CLE hours/1 ethics hour May 10 2019 Bankruptcy Section Seminar: Advanced Bankruptcy Institute Embassy Suites, La Vista 5.5 CLE hours May 17 2019 Young Lawyers Section Best Practices Seminar Creighton University School of Law, Omaha 6 CLE hours/1 ethics hour May 30 2 Ethical Legal Issues in 2 Hours Creighton University School of Law, Omaha 2 CLE hours/2 ethics hours

May 30 Helping Elderly and Disabled Clients: A Life-Cycle Approach Creighton University School of Law, Omaha 2.5 CLE hours

August 1 Real Estate, Probate & Trust Law Section Webinar

June 14 2019 Labor Relations & Employment Seminar Kutak Rock, Omaha 3.5 CLE hours

August 27 Appellate Practice Section Seminar: Opening of the Term Lincoln

June 21 2019 Government & Administrative Practice Seminar University of Nebraska College of Law, Lincoln July 11-13 2019 Advanced Estate Planning Institute Estes Park, CO NE, IA and WY - 10 CLE hours/2 ethics hours KS - 12 CLE hours/2 ethics hours CO - 12 CLE hours/2.4 ethics hours July 18 Health Law Seminar Omaha

August 23 2019 Business Law Seminar Gallup, Omaha

September 6 2019 Nebraska Diversity Summit Creighton University â&#x20AC;&#x201C; Harper Center, Omaha September 13 2019 Annual Real Estate Institute Embassy Suites, La Vista September 26 Government & Administrative Practice Webinar October 8-11 2019 NSBA Annual Meeting Embassy Suites, La Vista November 8 2019 Workers' Compensation Seminar 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.

CLE Faculty March - April 2019

Chris Aupperle Nebraska Lawyers Assistance Program

Hon. Todd J. Hutton County Court, 2nd Judicial District

Sheila A. Bentzen Rembolt Ludtke LLP

Daniel E. Klaus Rembolt Ludtke LLP

Anna E. Casey LexisNexis

Hon. Patrick R. McDermott (Ret.)

Hon. Linda S. Caster Senff County Court, 5th Judicial District

!r time U O Y K u THAN volunteering yo ams.

for rogr eciation NSBA's CLE p r p p a r Ou ertise to and exp

Mark A. Christensen Cline Williams Wright Johnson & Oldfather LLP Dennis W. Collins Jewell & Collins Hon. James. E. Doyle IV District Court, 11th Judicial District

Hon. Frankie Moore Nebraska Court of Appeals LeRoy D. Peterson Law Office of LeRoy Peterson, PC LLO Jeanette Stull Atwood, Holsten, Brown, Deaver & Spier, PC LLO

THE NSBA BANKRUPTCY SECTION PRESENTS:

BANKRUPTCY FUNDAMENTALS AND ADVANCED BANKRUPTCY INSTITUTE 9:00 AM - 4:00 PM MAY 9 & 10, 2019 THURSDAY & FRIDAY

THURSDAY May 9 Fundamentals

9:00 AM - 4:00 PM EMBASSY SUITES CONFERENCE CENTER MAY 9 & 10, 2019 12520 WESTPORT PKWY THURSDAY & FRIDAY LA VISTA, NEBRASKA

This two-day seminar is designed for lawyers new to the practice of bankruptcy [Day 1] and for intermediate and more advanced bankruptcy practitioners [Day 2].

1:30 pm

9:00 am WELCOME and Introduction T. Randall Wright, Esq., Baird Holm LLP

Chapter 12 and Chapter 13 Bankruptcy Plans Kathleen A. Laughlin,

Chapter 13 Bankruptcy Trustee

9:15 am The Basics Concepts of Bankruptcy

James A. Overcash, Esq., Woods & Aitken LLP

Chapters 12 [for farmers] and 13 [for “wage-earners”] are similar in some ways, but Chapter 13 is far more common. This session will discuss the key parts of a plan for each chapter and show where the most common problems and objections occur, and how they can be overcome. The session will also talk about what creditors can do if the debtor does not perform under the plan.

Laura E. Troshynski, Esq., Pederson & Troshynski

Michael J. Whaley, Esq., Cline Williams Wright Johnson & Oldfather, LLP

This session will start at the beginning with a discussion of the purpose of bankruptcy laws and then proceed to the critical concepts that any practitioner must understand—including bankruptcy court jurisdiction, pre-emption, what constitutes a “claim” in bankruptcy, what makes up the bankruptcy estate, the automatic stay, exemptions, how security interests are treated in bankruptcy, and the purposes of the different chapters.

2:45 pm

Break

3:00 pm

Red Flags: Ethics and Conflicts for the Bankruptcy Lawyer

[ethics]

Jerry L. Jensen,

Acting Assistant United States Trustee, United State Bankruptcy Court

10:30 am Break

This session will review ethical issues commonly encountered in bankruptcy cases and will discuss Rules of Professional Conduct, Bankruptcy Code and Rules, and recent decisions dealing with such issues as engagement agreements, employment of professionals, compensation and fee applications, required disclosures, conflicts of interest, and “disinterestedness” of a professional under the bankruptcy code.

10:45 am Filing of Motions, Court Procedures and Tips for an Effective Presentation Hon. Shon Hastings, U.S. Bankruptcy Court, District of North Dakota

Hon. Thomas L. Saladino, Chief Judge, United States Bankruptcy Court

Knowing the fundamental legal concepts is the start, but lawyers need to know courtroom procedures and how to advocate effectively for their clients. They need to know when to file a motion, and when to file an adversary proceeding, the critical importance of serving notices, and frequenly used [and abused] bankruptcy rules.

4:00 pm

Bankruptcy Section Networking Reception

5.25 CLE Hours [1 Ethics] for NEBRASKA & IOWA

11:45 am Lunch 12:45 pm Chapter 7 Bankruptcy Patrick M. Patino, Esq., Koenig|Dunne, PC LLO

LIVE / REGULAR NE MCLE #172933 IA MCLE #317478 DISTANCE LEARNING NE MCLE #172932 IA MCLE #317479

T. Randall Wright, Esq., Baird Holm LLP

In order to counsel your client on which Chapter to file, you need to know how each of them works. In this session, lawyers will learn what makes a Chapter 7 different than an 11 or 12, and its advantages and disadvantages for the debtor and the creditor. THE NEBRASKA LAWYER

MAY/JUNE 2019

BANKRUPTCY FUNDAMENTALS AND ADVANCED BANKRUPTCY INSTITUTE FRIDAY May 10 Advanced 12:45 pm Advanced Concepts in Bankruptcy

9:00 am Tools That the Bankruptcy Code Gives Debtors

Gregory S. Frayser, Esq.,

Cline Williams Wright Johnson & Oldfather, LLP

Brian J. Koenig, Esq. & Donald Swanson, Esq.,

Jerry L. Jensen,

Koley Jessen, PC LLO

Acting Assistant United States Trustee, United States Bankruptcy Court

The Bankruptcy Code gives debtors a number of useful “tools” for restructuring their debts. These include exemptions, avoidance actions, the ability to have the bankruptcy court decide tax issues, the automatic stay, reaffirmations, rejection of executory contracts, dividing of claims of a creditor into secured and unsecured claims, surcharges, using a creditor’s cash collateral, and borrowing money based on administrative expense claims or senior liens. This session will discuss each of these and how they can assist the debtor in the restructure of the debtor’s finances.

Hon. Charles L. Nail, Jr.,

U.S. Bankruptcy Court, District of South Dakota

Hon. Thomas L. Saladino,

Chief Judge, United States Bankruptcy Court

Brandon R. Tomjack, Esq., Baird Holm LLP

Patrick R. Turner, Esq., Dvorak Law Group

This session will go deeper into the legal concepts that are involved in more complicated bankruptcies, especially (but not exclusively) in Chapter 11. Topics will include: Valuing Collateral in various bankruptcy scenarios; More about stay relief litigation; Cash Collateral and Replacement Liens; Section 363 Sales Free and Clear of Liens and Claims; Chapter 11 Plans and Objections; Role of Chapter 11 Trustee, Creditors Committees and other committees; The Absolute Priority Rule; Effect of Confirmation of a plan; More about Executory Contracts; and Appeals from a bankruptcy court order or judgment.

10:15 am Break 10:30 am Tools That the Bankruptcy Code Gives Debtors Richard P. Garden, Jr., Esq.,

Cline Williams Wright Johnson & Oldfather, LLP

T. Randall Wright, Esq., Baird Holm LLP

Just as the debtor has tools to assist him or her in restructuring finances, the bankruptcy code gives the creditor some useful tools as well. This session will discuss grounds for relief from the automatic stay, obtaining adequate protection, appointment of a trustee or examiner, objections to plans, objections to discharge, 1111(b) elections, motions to dismiss the case, objecting to use of cash collateral, proceedings to determine validity, and extent and priority of liens.

2:15 pm Break 2:30 pm Advanced Concepts in Bankruptcy [continued]

4:00 pm Adjourn

11:45 am Lunch

5.5 CLE Hours [0 Ethics] for NEBRASKA & IOWA

LIVE / REGULAR NE MCLE #172940 IA MCLE #317481 DISTANCE LEARNING NE MCLE #172939 IA MCLE #317480

THE NEBRASKA LAWYER

MAY/JUNE 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 LEGACY DESIGN STRATEGIES LAW FIRM, a part of ANDREW C. SIGERSON, P.C., L.L.O. is pleased to announce the addition of three attorneys to its team. COLIN KASTRICK is a native of Papillion. He graduated from the University of Nebraska Omaha in 2014 where he received his Bachelors of Science in Business Administration with an Investment Science and Land Use Economics specialization. He earned his J.D. from the University of Nebraska College of Law in 2017. Colin Colin Kastrick works with new clients in counseling and designing comprehensive estate plans. CHARLES GARMAN joined Legacy Design Strategies in January of 2019. He works in the Omaha office and focuses primarily on administering wills and trusts. Charles was born in Sioux Falls, SD, but spent most of his childhood in Wilhelmshaven, Germany. He is bilingual. Charles attended Creighton University School of Law where he served as President of the Federalist Society, and graduated with his J.D. in 2005. He subsequently Charles Garman practiced in the area of debtor creditor law and taught courses in Real estate and Business law at Metropolitan Community College. Prior to Legacy Design Strategies, Charles worked for the Nebraska Legislature as Committee Legal Counsel. SCOTT BERRYMAN has worked in private practice, government practice, and done significant pro bono work in the nonprofit world. He has been a solo practitioner, worked in a Midwest mega-firm, and has found the right size in a boutique firm. In addition to legal work, Scott has founded a nonprofit, a public affairs firm, a real estate holding and management company, as well as a health and wellness service company. He has extensive experience in nonprofit board development Scott Berryman and issue advocacy at the state and local level. Scott’s community engagement has centered around public safety, literacy & libraries, healthcare initiatives, and nonprofit grant application evaluation & awards. A lifelong Nebraskan, Scott has lived over a decade in each of Nebraska’s congressional districts. He is a graduate of Leadership Omaha, and the FBI Citizens Academy. Scott has served as “Of Counsel” to the firm for several years, but has now joined full-time in the Trust Administration and Probate Department. THE NEBRASKA LAWYER

CORDELL & CORDELL recently hired Litigation Attorney MEGAN E. MCDOWELL in its Lincoln office. Ms. McDowell earned her Juris Doctor with distinction from the University of Nebraska-Lincoln College of Law. Prior to joining Cordell & Cordell, Ms. McDowell practiced family law. She is a member of the Nebraska State Bar Association. Ms. McDowell emphasizes the importance of clear communication when guiding her clients through the divorce process. The Banking and Finance Practice at KOLEY JESSEN has grown with the addition of BENJAMIN J. HERBERS. Ben works with financial institutions, owners, and investors on complex financing transactions including, construction financing, commercial real estate loans, revolving credit facilities, term Benjamin J. loan facilities, and tax exempt financings. Herbers Ben received his B.A., MBA, and J.D. (with Distinction) from the University of Nebraska. He clerked for Chief Justice Heavican on the Nebraska Supreme Court. HUSCH BLACKWELL has appointed MARNIE JENSEN as managing partner of its Omaha office, effective April 1, 2019. Jensen succeeds partner Todd Richardson, who had served as office managing partner since 2011. Jensen is a member of Husch Blackwell’s Food & Agribusiness industry Marnie Jensen group and routinely represents clients in and out of the courtroom in connection with a variety of disputes, including trade secrets litigation, breach of contract claims, and environmental litigation. She is also a noted speaker and writer on organic certification. She and her husband own a small farm outside of Nebraska City. Jensen received her J.D. from William and Mary Law School and her B.A. summa cum laude from Dana College. Before joining Husch Blackwell, Marnie was supervising pro se law clerk for the U.S. District Court for the District of Nebraska, where the bulk of her work related to assisting with complex labor and employment matters. Jensen will continue to represent her clients while serving as office managing partner. BOYUM LAW FIRM recently moved to a new address. The new office is located at 11902 Pierce Plaza in Omaha. Attorney BRADLEY BOYUM said the firm is excited to work in the new space and to continue protecting clients and their loved ones. MAY/JUNE 2019

AWARDS AND RECOGNITION JACKSON LEWIS P.C. is pleased to announce Principal KELVIN C. BERENS has been named winner of the 2019 Client Choice Awards. The Client Choice Awards, in conjunction with International Law Office and Lexology, recognizes law firms and partners around the world that stand apart for the excellent cliKelvin C. Berens ent care they provide and the quality of their service. The criteria for this recognition focuses on the ability to add real value to clients’ business above and beyond the other players in the market. Uniquely, law firms and partners can only be nominated by corporate counsel.

Kelvin “Kelly” C. Berens is a Principal in the Omaha office of Jackson Lewis, where he focuses his practice on complex labor relations issues, such as alternative dispute resolutions, class actions and workplace safety. His extensive work with clients on such issues as purchases, relocations, sales and shutdowns helps businesses avert problems and develop long-term labor-related strategies and goals. Mr. Berens spends a significant portion of every year negotiating collective bargaining agreements with unions across the country, and addressing the complex issues of pension plans, unfunded liability, and the options available to employers that are parties to these plans. He has represented employers in a wide range of industries from health care and telecommunications to traditional blue-collar industries, such as trucking and meatpacking. Mr. Berens has a 95 percent success rate advising employers in union election cases. Mr. Berens earned his B.A. from the University of Nebraska–Lincoln and his J.D. from Duke University.

Thank You to our Greater Nebraska Golf Scramble Sponsors (as of press time)

Co-Sponsors

• Johnson Flodman Guenzel & Widger • Lane & Williams, PC • Latimer Reporting • Lindemeier Law Office • McCarthy & Moore, LLP •M cQuillan & Wendell, PC, LLO • Mike Kinney - Mediator • Mueller Robak LLC • NAI FMA Realty •N ebraska Court Reporters Association •R ehm Bennett Moore Rehm & Ockander PC, LLO •P arker Grossart Bahensky Beucke Bowman & Symington, LLP • Printco Graphics • Sodoro Daly Shomaker, PC LLO • Tabs3 Software • Tye & Rowling, PC LLO • West Gate Bank

• ABA Retirements Funds Program • Inspro Insurance • Lamson, Dugan & Murray, LLP • McGrath North Mullin & Kratz, PC LLO • Mercer Consumer • Smart Start, Inc • Welsh & Welsh, PC LLO

Hole Sponsors • Bacon & Vinton LLC • Berreckman & Davis, PC • Brouillette, Dugan & Troshynski, PC, LLO • Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, LLC • Dunmire Fisher Hastings & Pauley • Endacott Peetz & Timmer, PC LLO • Fangmeyer, Aschwege & Besse, PC • Fitzgerald Vetter Temple & Bartell • George G. Vinton, Attorney at Law • Goosman Law Firm, PLC THE NEBRASKA LAWYER

MAY/JUNE 2019

in memoriam

HON. DONALD R. GRANT passed away January 25, 2019, at the age 94, after a long life filled with a mixture of joy, accomplishments, some sorrow and sadness. He was a man of many interests and accomplishments; an intelligent and inquisitive man with a good sense of humor and unending curiosity about Hon. Donald R. the world around him; he had boundless Grant energy and a love of life which he lived to the fullest. Born on August 8, 1924 to parents, Margarete Eleanor Sophia Rottmann and Andrew Grant. Raised by his single parent mother after his father abandoned the young family, Don grew up in Lincoln and developed into an inquisitive child who loved to explore his surroundings and learned to make friends readily. He attended Bancroft and Elliot Grade Schools, Irving Jr. High and graduated from Lincoln High School in 1942. He started college at UNL in the fall, was drafted into the US Army, completed OCS, commissioned a Second Lieutenant, fought in and survived the Battle of Okinawa, receiving the Purple Heart. Following his discharge in 1946, Don resumed his college career. He graduated with a B.A. degree in 1948, married for the first time in 1949, completed two years at Michigan Law School and graduated in 1952 with his LLB from UNL's School of Law; by 1953 he was a father of two sons, had passed the Nebraska State Bar and worked as a claims adjuster before starting his law practice in 1954. He divorced in 1957, remarried in 1964 and continued his law practice until being appointed a Municipal Court Judge in 1971 and retiring as a County Court Judge in 1995. From “Don Grant the Homerun King” in American Legion baseball to the “Flying Judge” in aerobatics, Don maintained an active interest in sports throughout his life: golf, baseball, softball, bowling, tennis, volleyball, sailing and flying. In between, he found time to serve on boards in various community organizations, was a past chairman of the Lancaster County Democratic Party (before it abandoned common sense and rational thought); was active in his Lutheran Church (Missouri Synod) and also found time to travel extensively throughout the United States, Canada and abroad: The United Kingdom, Germany, Austria, Switzerland, Spain, Morocco and the then, Soviet Union.

THE NEBRASKA LAWYER

LARRY T. REIDA, 82, passed away August 10, 2018, two weeks after quadruple bypass surgery. Larry’s life was active and vibrant right to the end, having just completed a trip to Iowa for his 65th high school reunion. He was born in Brooklyn, Iowa, the only son of Truman and Bernice Reida. Larry graduated Larry T. Reida from high school in Lake View, Iowa and attended Iowa State and Iowa Law School. A lawyer by trade, a storyteller by habit, his thought processes and ideas were often handed to friends and family for agreement or debate. His years on Capitol Hill in the 60s and 70s working for Congressional Committees saw Larry climbing the ladder of ambition a bit too strenuously. Then, the love of his life, Mary Reida, pushed him in directions no one thought possible. The couple left Maryland and re-situated in Western North Carolina, drawn by the mountains and a slower pace of life. Larry did return to practicing law in Waynesville, perhaps a bit more than he envisioned, due to an inability to say "no" to prospective clients. Mary and Larry settled in their dream home on a hill above Bethel with a living room view of Cold Mountain. Not one to readily accept new technology, Larry travelled with a novel, a flip phone and an appointment book full of phone numbers. Larry and Mary lived through unexpected extra years while she fought terminal cancer. They showed exceptional courage while continuing to smell the roses and explore new places. Acquiring greater peace and spirituality was their common goal and Larry never ceased those efforts after Mary’s passing four years ago. Going to the office, debating politics, attending poetry, book or investment club meetings, Larry’s Midwestern "up early in the morning" approach never waned. Still, those who knew him well also recognized his later years were more compassion filled and contemplative. Larry is survived by his sister, Linda; his son, Steve and wife, Jodi; business partner Jeff; right hand office partners Staci and Claudia; dear friends Linda and Pat and far too many other cherished friends to mention. 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.

MAY/JUNE 2019

classified ads WANTED: Attorney to practice in Falls City, Nebraska and Hiawatha, Kansas. Our experienced three attorney firm has an opening for an energetic associate with a positive work ethic. The firm focuses its practice predominately on Estate, Business, Real Estate and Native American Law matters. We are also City Attorneys for the City of Falls City. Unlike many rural law firms, we do not handle criminal defense, bankruptcy, divorce or child custody cases. The firm members are active in Bar Associations in both states and committed to CLE. Applicants must be admitted to practice law in either Kansas or Nebraska and be qualified to seek admission to the other state. The firm has highest Martindale-Hubbell Rating possible and great Legal Assistants. We are located between Omaha and Kansas City. We are in the “Cloud” but still close at noon for lunch. Send your confidential resume to: Richard L. Halbert Halbert, Dunn & Halbert, L.L.C. 111 E. 17th Street P.O. Box 447 Falls City, NE 68355 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. ASSOCIATE ATTORNEY: AV firm in west-central Nebraska with Statewide practice seeking an additional attorney. Preference given to applicants with experience and demonstrable writing skills. All replies kept confidential to Terry Waite at twaite@northplattelaw.com or PO Box 38, North Platte, Nebraska 69103. ATTORNEY: Lincoln personal injury law office seeks to add an attorney to practice, as former partner has recently retired. Workers’ Compensation experience highly desirable but not required. Please send resume/inquiries to Holly Morris at hmorris@shasteenandmorris.com FOR SALE: Am-Jur Legal Forms 2d. (48 volume set, 2 general indexes) and Black's Law Dictionary. Call (402) 353-2034.

THE NEBRASKA LAWYER

NORTHERN PLAINS WEATHER SERVICES: Dr. Matthew Bunkers of Northern Plains Weather Services is a certified consulting meteorologist (CCM) and forensic meteorologist with over 25 years of weather analysis and forecasting experience. He can provide reports, depositions, and testimony in the areas of weather and forecasting, severe summer and winter storms, flooding, applied climatology and meteorology, agriculture meteorology, and statistics. More information is provided at http://npweather.com, and you can contact Matt at nrnplnsweather@gmail.com or 605.390.7243. DEPUTY PUBLIC DEFENDER: The Buffalo County Public Defender's Office in Kearney, has an opening for a deputy public defender. A Nebraska law license is required. Criminal law and appellate experience preferred, but not mandatory. The position is available beginning May 1, 2019. Salary is dependent on experience. Send a cover letter and resume to Jeff Wirth at jwirth@buffalocounty.ne.gov. DIVORCE LAWYERS – INCREDIBLE CAREER OPPORTUNITY: Nebraska Legal Group, a divorce and family law firm is looking for another experienced attorney to join our team. This is a unique opportunity to be involved in creating the very culture and financial rewards that you have always wanted in a law firm. We practice at the highest levels in our field, with independence and cutting edge practice and marketing strategies. The firm offers excellent pay (100k+), health insurance, an automatic 3% contribution to 401(k) and future profit sharing. This is also a great opportunity for lawyers in a solo practice who would like to merge their practice. Qualified candidates should send a resume and cover letter to David@NebraskaLegalGroup.com. In addition to your professional experience, your letter should talk about who you are as a person and what makes you perfect for this position (this is the most important document you will submit). We look forward to meeting you! ASSOCIATE ATTORNEY: Scudder Law Firm seeks an attorney for its growing business law practice. Experience in business transactions is beneficial, but is not required if you have excellent academic credentials and are willing to learn. Our firm offers proactive, results-driven client service for a nationwide base of publicly traded and large privately held clients. Specific work includes: mergers and acquisitions; stock offerings; credit facilities; real estate; board/SOX consultation; and corporate and commercial matters. Competitive compensation at all levels of experience (starting 2019 graduates at $100,000, with additional compensation and benefits that can bring annualized compensation to $120,000). Please send cover letter and resumé to hscherr@scudderlaw.com.

MAY/JUNE 2019

THE NSBA REAL ESTATE, PROBATE & TRUST LAW SECTION PRESENTS

2019

ADVANCED ESTATE PLANNING INSTITUTE

JULY 11 - 13, 2019 ESTES PARK, COLORADO

Register at www.nebar.com REGISTRATION FEES If you’re a NE licensed attorney and haven’t paid your 2019 voluntary NSBA dues, call the NSBA at {402} 475-7091 to join and

SAVE 25% on your registration.

THE NEBRASKA LAWYER

EARLY BIRD {BEFORE MAY 31st}

AFTER MAY 31st

$500 NSBA dues-paying member $650 Regular Registration $45 Printed materials

$600 NSBA dues-paying member $750 Regular Registration $45 Printed materials {cost is in addition to registration fee}

MAY/JUNE 2019

THANK YOU SPONSORS!

WELCOME RECEPTION SPONSOR

10 hours of CLE, including 2 hours ethics

SPEAKER SPONSORS

Networking with colleagues from across the Midwest!

Exciting outdoor activities available for the whole family Historic day and night tours of the hotel

Welcome reception

Nearby golf courses

GOLD SPONSOR

HOTEL INFORMATION RESERVATIONS }

Contact the Stanley Hotel Reservations Department at {970} 577-4040 Block of rooms under Advanced Estate Planning Institute {block released June 26, 2019}

KEYNOTE SPEAKERS

Room rate: $269 per room per night Group rate is available 3 days pre- and post- CLE, based on availability

Professor Edward A. Morse, Esq.

Creighton University School of Law

Complimentary parking and wireless Internet included in your room reservation

Professor Morse holds the McGrath, North, Mullin & Kratz Endowed Chair in Business Law at Creighton University School of Law. He is a frequent speaker at CLE programs, including the Great Plains Tax Institute and meetings of the American Bar Association.

Paul Neiffer, CPA, Partner

TOURS & ACTIVITIES }

CliftonLarsonAllen

Paul Neiffer is a certified public accountant and business advisor specializing in income taxation, accounting services, and succession planning for farmers and agribusiness processors. Paul is a partner with CliftonLarsonAllen (CLA) in Yakima, Washington, as well as a regular speaker at national conferences and contributor at agweb.com. Paul regularly publishes timely content on CLAâ&#x20AC;&#x2122;s agribusiness blog, Farm CPA Today. He covers topics, including taxation, accounting, succession planning, new laws, major agribusiness events, and other issues that are unique to farmers and agribusiness processors. THE NEBRASKA LAWYER

Contact the Stanley Hotel Tour Office at {970} 577-4111 to schedule a tour of the Stanley Hotel or for assistance in planning other activities

WORK&PLAY?

BRING YOUR WHOLE FAMILY!!

The Stanley Hotel is located just minutes away from Rocky Mountain National Park and other Colorado treasures. MAY/JUNE 2019

THURSDAY JULY 11

6:00 pm - 8:30 pm

WELCOME RECEPTION

SATURDAY JULY 13

with Opening Remarks

Susan J. Spahn, Esq.

Fitzgerald, Schorr, Barmettler & Brennan, PC

7:00 am

Continental Breakfast

7:30 am

Important Developments in Federal Income Tax

Matthew D. Baack, Esq. Skalka & Baack Law Firm LLC

Professor Edward A. Morse, Esq.

Mark A. Kisker, Esq.

Creighton University School of Law

Senior Vice President & Trust Officer, Pinnacle Bank

8:30 am

William J. Lindsay, Jr., Esq.

When You Canâ&#x20AC;&#x2122;t Trust a Fiduciary Mark A. Kisker, Esq.

Gross & Welch, PC LLO

Senior Vice President & Trust Officer, Pinnacle Bank

Lisa M. Line, Esq.

Marietta E. Luellen, Esq.

Brodkey Cuddigan Peebles Belmont & Line, LLP

Vice President, Wealth Management, First National Bank

FRIDAY JULY 12

Bradley A. Philson, Esq. First Vice President & Senior Trust Officer, Union Bank & Trust

7:00 am

Continental Breakfast

7:30 am

Coordinating Retirement Accounts with Estate Planning

MODERATOR: Matthew D. Baack, Esq. Skalka & Baack Law Firm LLC

Jesse D. Sitz, Esq.

8:30 am {ethics}

Baird Holm LLP

Protecting Attorney-Client Privilege in Estate Planning

9:30 am

Break

9:45 am {ethics}

Perils and Pitfalls of Multi-Party Representation Walter N. Houghtaling, Esq.

Ramzi J. Hynek, Esq.

McConnell Fleischner Houghtaling, LLC

Rembolt Ludtke LLP

9:30 am

Break

10:45 am

9:45 am One Hour Charity: The nuts and bolts of charitable planning for farmers

Review of Relevant Legislation From the Past Several Years Brett E. Ebert, Esq. Baylor Evnen, LLP

Paul Neiffer, CPA CliftonLarsonAllen

10:45 am What changes are needed for farmers due to tax reform

11:45 am

Pick-up boxed lunch

12:00 pm

Update on Guardianships and Conservatorships William J. Lindsay, Jr., Esq.

Paul Neiffer, CPA

Gross & Welch, PC LLO

CliftonLarsonAllen

Lisa M. Line, Esq.

11:45 am

Pick-up boxed lunch

12:00 pm

Charitable Giving: Finding the Right Option for Your Farm/Ranch Clients

Brodkey Cuddigan Peebles Belmont & Line, LLP

Susan J. Spahn, Esq. Fitzgerald, Schorr, Barmettler & Brennan, PC

1:00 pm

Damon T. Bahensky, Esq.

ACCREDITATION }

Parker Grossart Bahensky Beucke Bowman & Symington, LLP

Colorado CLE

Brandon D. Hamm, Esq.

Accreditation Approved

Koley Jessen, PC, LLO

12 CLE hours, including 2.4 hours ethics

MODERATOR: Jim Gustafson Director of Advancement and Gift Planning, Nebraska Community Foundation

1:00 pm

Nebraska MCLE #172313

10 CLE hours, including 2 hours ethics

Adjourn

THE NEBRASKA LAWYER

Adjourn

Iowa MCLE #316627

10 CLE hours, including 2 hours ethics

Kansas MCLE #154118

12 CLE hours, including 2 hours ethics

Wyoming CLE

Accreditation Approved

10 CLE hours, including 2 hours ethics MAY/JUNE 2019

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