Omaha Bar Association
Newsletter
Vol. XLV No. 1 Law Day 2020
Community Service Education Leadership | Stronger Together Since 1875
Attorneys of Nebraska Appleseed Robert M. Spire Public Service Award
League of Women Voters of Nebraska OBA Public Service Award
Page 2…President’s Message Page 3…Ellick Award Recipients Pages 4-5…Executive Director’s Column Page 6 …8th Circuit Judicial Conference Page 7…On The Move/Milestones Page 9…OBA Leadership Nominations Page 10…”Bar Talk” moves to Virtual Chats Page 11...Law Day 2020 Theme
Page 12…LRS/CLE Page 13…Public Service Awards Page 14-18…Civil Jury Verdicts Page 18…Barristers Club Update Page 19…Event Photos Page 20…5th Grade Poster Contest Page 21…8th Grade Essay Contest Page 22-26…Book Review Page 27…Bingo for Sequestered Attorneys
Poster Contest Winner Ethen Henkel Anchor Pointe Elementary
Interact with us ONLINE AT www.omahabarassociation.com Facebook: OmahaBarAssociation Twitter: OmahaBar Instragram: OmahaBar SoundCloud: OmahaBar
2
Growing the Bar Membership This year’s Law Day was a reflection of the past, in our history of voting in America and the power that each of us has when the ballot boxes open. This Law Day was also one of many firsts for all of us, a first for at-home schooling, at-home working, at-home quarantine and a new life for many at home. While many of us have been attempting to do our best to keep our families safe at home and learning, (navigating the maddening intricacies of online learning) I am reminded every day that many people are suffering in different ways. It is my sincere hope that all of you reading this continue to remain safe and healthy. But just like we can impact our society with our votes, we can each—in little ways—impact our society during this pandemic. If you do not need to be out, don’t be; but if there are things you can do to help others please do. Do not forgot your local food pantry and other places where donations of clothing and furniture would be greatly appreciated. Support whatever small businesses that you can, and hopefully your small impact will help others who are struggling.
Ways to help: Food Bank for the Heartland foodbankheartland.org United Way unitedwaymidland.org Salvation Army centralusa.salvationarmy.org Volunteer Lawyers Project nevlp.org Nebraska Community Blood Bank ncbb.org Omaha Community Foundation
Stay safe. Will Acosta-Trejo 2019-2020 OBA President 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.
3 Alfred G. Ellick Lawyer Referral Service Award Recipients Three attorneys are recipients of the 2020 Alfred G. Ellick Lawyer Referral Service Award. Established at the 2015 Law Day, the Award is presented to those attorneys who have been a part of the OBA’s Lawyer Referral Service for 10 or more years, as a recognition to their longstanding dedication to the service. The award is named after Alfred G. Ellick, who, in 1962, during the year of his presidency of the OBA, established the OBA Lawyer Referral Service. 58 years later, the LRS continues to be a cornerstone of the Omaha Bar Association’s commitment to public service by its attorneys. Please join us in congratulating the following attorneys on their accomplishment!
2019-20 OBA Pictorial Directory Available for Free (Digital) or in Print ($30) After a 20 year hiatus, the Omaha Bar Association is proud to bring back the annual Pictorial Directory of Members. We believe the Directory is another helpful tool our members can use to help connect with fellow attorneys in the community. The 72 page digital copy is available for free to all 2020 OBA Members. If you prefer a color print copy that you can have at your desk, the cost is $30. Please note: this Directory is the OBA staff ’s best efforts to include as many members as possible, and, where possible, people’s preferred first name among those who know them. A good number of current OBA members are missing from this Directory edition due to lack of a public picture being found via internet searching. If your picture is missing from this edition, we apologize and are happy to work to include you in next year’s edition. If you would prefer not to have your picture in future editions of this Directory, please let us know. To receive your free copy, either (1) Login to your OBA account at www.omahabarassociation.com and find the directory under the homepage menu item “Membership”, or (2) email dave@omahabarassociation.com. To receive the $30 print version, email dave@omahabarassociation.com.
ELLICK AWARD RECIPIENTS: Kelly Brandon - Fiedler Law Firm Keith Kosaki - Young & White Elizabeth Sevcik - Croker Huck
4
Executive Director’s Column I’m a broken record, but every year’s Law Day celebration fills me with pride to be a member of such a noble profession. Maybe it’s the celebration of so many who have dedicated themselves to public service. Maybe it’s the posters and essays from schoolchildren in the community about the legal theme for the year. Maybe it’s the national recognition of the importance of Rule of Law in our country, and the crucial role of attorneys and judges to uphold that principle. Or better yet, maybe it’s all of these reasons that I enjoy Law Day so much. Of course, this year’s Law Day is different. The Luncheon at the Marriott has been cancelled, the Mock Trial at the federal courthouse postponed, and the Lawyers in the Classroom initiative put on hold. Nevertheless, it was decided by Law Day CoChairs John Menicucci and Doug Law and OBA President Will Acosta-Trejo, to “forge ahead” and have as much of a Law Day celebration as possible. To that end, we’ve selected recipients for our public service awards and our Alfred G. Ellick Lawyer Referral Service Award, winners of OLPA’s 8th grade essay contest and NePA’s 5th grade poster contest, and we’ve posted a video of what would’ve been the Luncheon’s presentation on the Law Day theme for 2020, “Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100.” In addition to information about all of that Law Day content in this newsletter, you can also find posts about it in the OBA’s social media accounts (Facebook, Instagram, Twitter, YouTube), and on the OBA website. Feel free to “like” a Facebook post, retweet a video, or just watch the 15 minute presentation on the passage of the 19th Amendment, and the role that Nebraska had in that process. This edition of the Newsletter is thicker than usual, having not been published since October of last year. There are more Civil Jury Verdicts to report, more “On the Move” hires to showcase, and a decent amount of news to discuss. We look forward to getting back to a quarterly schedule here shortly. One reason for the delay in the Newsletter was the work in compiling the OBA Pictorial Directory. We’re excited to share this with OBA members at no charge (for the digital copy), and work with those who didn’t have a findable photo on the internet to get them in next year’s edition. We want you to recognize your fellow attorneys at the courthouse or OBA events, and we think the directory is a great resource to help towards that goal. As is mentioned later in the issue, if you’re looking for CLE credit during this work-from-home period, please check out the OBA’s On Demand offerings. It’s one of the great benefits of OBA membership – quality CLE for bargain-basement prices! It takes a small army of volunteers to put on OBA programming, and I’d be remiss if I didn’t thank all those who have stepped up since the last Newsletter. Last fall saw the Walk Through the Courts program at the Douglas
County and Federal Courthouse. Thank you to all the judges who attended the lunch with the new attorneys, imparting many great words of wisdom. Thank you to Sean Conway and Joe Bradley for handling the role of “pied piper” in leading the attorneys around the courthouses, and giving them the lay of the land. A special thank you to Matt Munro and Renee Lauver at McGrath North for the firm’s generous printing of the sizeable binder of information given to each new attorney. We were fortunate to be able to hold the reception for the new attorneys and OBA members directly after the Walk nearby in the OPPD building atrium, thanks to Fraser Stryker’s hosting. Thank you to Fraser’s Michelle Krapfl and Penny Tourtellot for helping us use that incredible space. And of course, thank you to the event sponsors Fraser Stryker, Kutak Rock, Koley Jessen, Houghton Bradford Whitted, and McGrath North. OLPA volunteers Jean Roeder, Sherry Mitchell, and Bonnie Kudron helped with check in and serving drinks. Thanks ladies! The end of 2019 saw our 6th Annual End-of-the-Year CLE put on by the OBA Lawyer Referral Service. The LRS “went big” and brought in nationally recognized law firm marketing guru Mark Homer of GNGF out of Ohio to speak on Online Law Firm Marketing and the ethics of marketing online. All the feedback in the audience was that the 2 hour CLE was incredibly informative. If you missed it live, you can still watch the CLE On Demand through the OBA website. Also in December of 2019, the OBA teamed up with the Nebraska College of Law in hosting a “Gathering Before the Game” party at Lefty O’Tooles prior to the Nebraska v. Creighton men’s basketball game at CHI Center in Omaha. A pop-a-shot was procured, and fun was had by all in attendance. Thank you to Katie Pfannenstiel at UNL for working on that event with the OBA Young Lawyers Division! January 2020 marked the 20th year of the annual Wine Tasting, which was held for the 3rd year in a row at The Barn at Ackerhurst Dairy Farm. The hundreds in attendance enjoyed a relaxed mid-winter evening of good wine, food, and great company. Thank you to Troy and Jill Podraza for having us back at The Barn, thank you to Jason Huff and The Daily Record for their longtime sponsoring of the event, and thank you to Lynda Henningsen, Jean Roder, Mary Easley, Bonnie Kudron, Sherry Mitchell, Magee Kopecky, Matt Wanning, and Margaret Sechser-Burcaw for their help during the event! In February, now Professor Emeritus Mike Fenner took the stage at the 30th Annual Lunch with Fenner at Creighton’s Harper Center Ballroom, to take us down the long and winding road of the ratification of the Equal Rights Amendment, after the recent ratification by the 38th state, Virginia. I won’t spoil the surprise for you that couldn’t attend, but I will say that this “classic” Professor
5
Director’s Column Fenner lecture has all the elements we’ve come to expect and appreciate from him. Thank you to Professor Fenner for his presentation, and thank you to Koley Jessen for sponsoring the event. Just as COVID-19 concerns started whirling in Nebraska, the OBA and Metro Omaha Medical Society met for their annual Medical Legal Dinner. Elbow bumping took the place of handshakes, and there was an unease in the air. Cutting through that unease with an entertaining yet informative talk was Dr. Matthew Garlinghouse of UNMC, discussing the medical benefits and potential problems with cannabis and CBD. (Side Note: During the event, I suddenly realized the topic chosen by me may have been poorly timed, as I sat next to my boss, President Will Acosta-Trejo, counsel for the regional DEA office, and also next to my boss-elect, Hon. Laurie Smith Camp.) Thank you to Rob Schartz and Abrahams Kaslow & Cassman for their longstanding sponsorship of the event.
CLEs Available On Demand Starting in 2018, the OBA began live filming various CLEs throughout the year on our Facebook page, and making them available for On Demand watching by our membership. We are continuing that practice in 2020, with the latest online CLEs available for NE CLE credit.
As you know by now, things changed soon thereafter. The next week, as I was taking my seat on a plane to Chicago, I received a notice that the American Bar Association Bar Leadership Conference I was traveling to had been canceled. (Luckily, I was able to get off the plane before heading to Chicago for no reason.) The 14th Annual Creighton/OBA Ethics Seminar, one of the largest events of the year, was postponed after Creighton shut down its campus and gatherings of over 50 people were put into place. Going forward, we are playing things week by week, day by day. With all the things that are changing, some things stay the same. We are here for our member attorneys, for the legal community, and to help the public. If you need something, let us know. A lot of attorneys may be looking for employment work as a result of this crisis, and we will do everything in our power to help them land on their feet. We will continue to highlight the great work being done by so many in our community. The world, the country, and the Omaha legal community is being tested on a scale not seen in recent memory. People, business, and governments are and will be in need of legal help and guidance. Lots of legal help. Most attorneys I know, when asked why they got into law practice, mention wanting to help people. Now and into the coming months is a time in which we show our resolve and support for humankind. Now is when we show we are here to help. I’m proud to be a part of our legal community, and for all we do for others.
Please note: There are fees associated with obtaining CLE credit through the On Demand feature; please email dave@omahabarassociation.com to learn more or go to www.omahabarassociation.com and select “On Demand” from the CLE tab. The Omaha Bar Association’s “Bar Talk” Podcast continues to turn out fresh, informative, and entertaining episodes. Miss an event with an interesting speaker? Chances are it’s on the podcast. Want to listen to in-depth interviews with Omaha’s biggest legal names? We’ve got you covered. To listen, simply subscribe via iTunes Podcasts, asking your smart speaker to play “Omaha Bar Association Bar Talk Podcast”, or by following the OBA on Facebook. We’re up to 39 episodes, over 4,500 listens, and aren’t slowing down!
We appreciate your Membership!
6
Holding Out Hope - 8th Circuit Judicial Conference A final decision has yet to be made on the holding of the 8th Circuit Judicial Conference in Omaha later this year. The conference, scheduled for Aug. 5 through Aug. 7, looks to celebrate the centennial of the 19th Amendment, which gave women the right to vote across the U.S. The Daily Record has previously reported that U.S. Supreme Court Justice Ruth Bader Ginsburg was scheduled to be among the featured guest speakers.
the 19th Amendment. They will also provide content about Ginsburg’s landmark challenges to sex discrimination, and Ginsburg herself will conduct a fireside chat. Please pencil in the dates, and stay tuned for updates on the conference and registration from the OBA and The Daily Record.
The conference will feature national acclaimed authors tracing the history of women’s suffrage, including the ratification of
SAVE THE DATE - Annual OBA Fall Kickoff BBQ Thursday, September 10, 2020 First National Wealth Management 5:30-8PM $20 per OBA Member (No Guests)
7
On The Move & Milestones On The Move
Koley Jessen added Alexander Clauson, Francisco Gomez-Mancillas, Ashley Ritter, Christian Mirch, Jacqueline Tondl, & Nathan Patterson to the firm; Tara Ann Wrighton has joined Hightower Reff; Lamson Dugan and Murray welcomes Drew Engle, Ellen Geisler, Patrick Weir, Cameron Riecke and Andrew Huber; Andrew Almodova has been added at Kutak Rock’s Omaha headquarters; Ryan Coufal has joined Vandenack Weaver; McGrath North welcomes Matt Criswell; Isaiah Frohling has joined the U.S. District Court as clerk to Hon. Brian Buescher; Nathan Klein has joined the Douglas County Attorney’s Office Juvenile Division; Adam Kost is now a clerk at the Nebraska Court of Appeals; Gross & Welch welcomes Angela Heimes to the firm as a director and Eric Sutton to the firm as an associate; Claire Monroe, Dana Roche, Keith Graham, and Janelle Patton are now at Dvorak Law Group; Aimee Bataillon joined Fiedler Law Firm; Patrick McNamara has joined Goosmann Law Firm; Fraser Stryker welcomes Maggie Rossiter; Katie Vogel is at Koenig Dunne; Patrick Patino has started Patino Law Office; Samantha Miller joined Cordell & Cordell’s Omaha’s office; Jennifer Atwood, David Lopez, Ben Busboom, and Brandon Warrington are now at Omaha’s Husch Blackwell office; John Hewitt to the General Counsel’s Office at University of Nebraska; Carlson & Burnett welcomes TW Huntington to the firm; Don Ficenec has been appointed as the City Attorney for Ralston; Kendra Ringenberg, Jennifer Rattner, Dana Roche, and Natalie Wordekemper have opened the doors at Ringenberg & Rattner Law; Baird Holm welcomes Addison Fairchild, Adam Ripp, Natalie Williams, and Kate Wunderlich, Michael Roccaforte and Jeremy Hollembeck; Aimee Law announces the launch of Lowe Legal Group; Erickson Sederstrom welcomes Black Schneiderwind; Dan Christensen is now an attorney with the Nebraska Department of Revenue; Kate Geyer Johnson is now with Constellation / MMIC Insurance; and Kelsey Heino has joined the Woods Aitken Omaha Office.
Milestones
Hal Daub received the Albert Nelson Marquis Lifetime Achievement Award by Marquis Who’s Who; Deb Gilg was elected to national board of directors for National Association of Former United States Attorneys, and has become adjunct faculty at Arizona State University Sandra Day O’Connor College of Law; Hon. Tom Harmon the recipient of the Improvement of Community Relations Award; Amy Van Horne named Fellow of the American College of Civil Trial Mediators; Paul Blazek joins the Greater Chamber of Commerce’s 2020 YP Council; Congrats to Katie French and Nick Montague for earning the Chartered Advisor in Philanthropy designation; John Matson promoted to shareholder at Koley Jessen; Michelle Pernicek, Maggie Ebert, Erica Goven, Asher Ball, Torri Criger, Patrick Krebs, Alexis Pappas, Carol Svolos, and Ron Sylvester to partner at Kutak Rock; Kate McNamara, Jacquie DeLuca, and Kristin Crone made partner at Fraser Stryker; Sarah Dempsey and Dan Hassing have been promoted to partner at Lamson Dugan & Murray; Zachary Lutz-Priefert has been elected shareholder at Gross Welch; Kevin Savory elevated to partner at Stinson Leonard’s Omaha office; Ryann Glenn named partner at Husch Blackwell-Omaha; Patrick Borchers has been appointed to the Nebraska Equal Opportunity Commission; Nick Buda, Leigh Campbell Joyce, Arianna Goldstein, Kara Stockdale, and Kevin Tracy have been promoted to partners at Baird Holm; Creighton 2L Peter Johnson Elected Mayor of Sidney, IA; Kutak Rock and Mark Laughlin recognized by Legal Aid of Nebraska by receiving the Equal Justice Awards; Alex Wolf has been named president of Koley Jessen; Hon. Thomas Otepka is the president of the Nebraska District Judges Association; Adams & Sullivan was named 2019 Business of the Year for 1-24 Employees by the Sarpy County Chamber of Commerce; Hon. Michael Heavican was honored with the Nebraska State Bar Foundation’s Public Service Award; Creighton Law Professor Ed Birmingham received the Nebraska State Bar Foundation’s Educator Award; and Garrett Lutovsky promoted to partner at Engles Ketcham.
8 Thank you to our Event Sponsors!
The OBA is fortunate to have sponsors and business partners that help cover some costs at each OBA event, keeping our prices low and accessible to all members. Especially during this current time, we thank you for your support.
Forensic Accounting Investigations Cody F. Carse, CPA Certified Fraud Examiner Certified in Financial Forensics 37 Years of Public & Private Accounting Experience
www.CodyFCarseCPA.com 1304 N 56th STREET OMAHA, NEBRASKA 68132
• • • • • • •
402-201-6427 ccarse@CodyFCarseCPA.com
Asset discovery / recovery Contract disputes Criminal defense Professional malpractice and negligence Purchase or sale of a business Suspected theft by employees or others Expert witness and consultant
There is never a charge for initial consultations.
9
Leadership Nominations Every interested OBA member should fill out the application and forward it to the Omaha Bar Association office electronically (dave@omahabarassociation.com) before close of business on May 15, 2020. The applications will be kept strictly confidential and will be seen only by the President, the Executive Director and the Nominating Committee, which is composed of three past presidents. Self-nominations are allowed. TO: OMAHA BAR ASSOCIATION NOMINATING COMMITTEE Confidential Application for OBA Officer/Executive Council Position and/or Young Lawyer Division Position (Must be under the age of 35 and/or less than 5 years in practice for YLD positions) _____ OBA President-Elect (3 year commitment) _____ OBA Secretary (1 year commitment) _____ OBA Treasurer Elect (3 year commitment) _____ OBA Executive Council Member (3 year term) _____ Young Lawyers Division Chair (2 year term) _____ Young Lawyers Division Vice-Chair (2 year term) _____Young Lawyers Division Board (2 year term) Nominee’s Name: ________________________________________________________ Employer and Email: ______________________________________________________ Phone: ________________________________________________________________ Date of Graduation from Law School: __________________________________________ Dates of Membership in OBA: _______________________________________________ Present Activity in OBA: ___________________________________________________ Past Activity in OBA: _____________________________________________________ Areas for Improvement by OBA: _____________________________________________ SIGNATURE OF NOMINATOR (Self Nominations Allowed): ________________________
14th Annual Creighton School of Law │ Omaha Bar Association Seminar on Ethics and Professionalism Postponed to Date TBD The annual Spring Creighton/OBA Ethics CLE seminar has been postponed to a date to be determined later in 2020. The Seminar is a tremendous member benefit, and one of our best attended events. The OBA is grateful of the support of Creighton School of Law, and the ability to hold the event on campus. We regret this change in plans, but look forward to rescheduling the event for later this year. Don’t worry, theses 2 hours of free ethics CLE credit aren’t going away...just delayed for a few months!
10
Bar Talk goes from Podcast to Virtual Chats You aren’t alone. We are in this together. And together, we’ll get through these tough times. The Omaha Bar Association’s core mission is to be a touchpoint for the local legal community. For more than two years, we have been doing that by reaching out to members of the legal community and recording conversations about any and all subjects. Some are informative, some are educational, and some are meant as entertainment. If there’s a conversation to be had, we like to think that we are there with our microphone, ready to record it and pass it along to the rest of the community—as long as we have permission to do so. Then came COVID-19, with the ability to meet in person for conversations more difficult, and the ability to record videos on Zoom becoming easy and second nature. The discussions and conversations with community members are more important than ever, and we’ve now tried to make those conversations as easy as possible, utilizing social media and the power of the internet. That’s the idea behind the OBA’s pivot from our regular “Bar Talk” podcast recordings to Facebook, Instagram, and Twitter videos. For those not on social media, we’ve archived our videos on the OBA website, www.omahabarassociation.com.
Here’s just a sampling of the “Virtual Chats” we’ve had thus far: Hon. Horacio Wheelock, Douglas County District Court, on what it’s like to be a judge working remotely via videoconference; Creighton Law School Dean Joshua Fershée on the effect closure of the school is having on law students; attorney Brent Bloom on tips and tricks for managing stress and anxiety when working from home; Hon. Laurie Smith Camp, U.S. District Court, on the functioning of the federal courts during this crisis; 2020 Robert M. Spire Public Service Award recipients, the attorneys of Nebraska Appleseed, on the work they are doing to expand critical medical care for at risk Nebraskans during the pandemic; leading firm management methods with Joel Carney, Larry Roland, and Patrick McNamara of Goosmann Law Firm; and use of CliftonStrengths Finder in school and in the workplace with UNL College of Law’s Tasha Everman. We’re working to upload approximately 2 videos a week, and we are keeping them available to all members of the legal community, not just OBA members. We’re in this together; let’s keep the conversation going as the situation continues to evolve. Want to chat about something in particular? If so, just email dave@omahabarassociation.com and we’ll work to set it up.
11
Law Day Celebrates 19th Amendment at 100 Law Day, held annually on May 1, is a national day set aside to celebrate the rule of law. Law Day provides an opportunity to understand how law and the legal process protect our liberty, strive to achieve justice, and contribute to the freedoms that all Americans share. In 1958, President Dwight D. Eisenhower established Law Day as a day of national dedication to the principles of government under law, and in 1961, Congress designated May 1 as the official date for celebrating Law Day. Each year since 1969, the American Bar Association has chosen a theme for each Law Day. The Law Day 2020 theme is “Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100.” In 2019-2020, the United States is commemorating the centennial of the constitutional amendment that guaranteed the right of citizens to vote would not be denied or abridged by the United States or any state on account of sex. American women fought for, and won, the vote through their voice and action. The women’s suffrage movement forever changed America,
expanding representative democracy and inspiring other popular movements for constitutional change and reform. In August 1920, the 19th Amendment to the United States Constitution was ratified by the 36th state legislature (Tennessee), and establishing in the Constitution that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” Now, 100 years later, we look back at the history of the work to pass that Amendment, and where things stand today. Dr. Dianne Bystrom, Professor Emeritus at Iowa State University, was scheduled to be our Law Day Luncheon speaker on this topic. With the cancellation of the lunch, Dr. Bystrom agreed to record her speech and let us post it for viewing by members of the legal community and the public. The video is approximately 15 minutes long, and can be viewed on www.omahabarassociation.com, or on our social media feeds (Facebook,
Instagram, YouTube, Twitter). If you can, please watch. Also, The Daily Record continues the longstanding tradition of doing its own Law Day Edition of the newspaper. Please look at your paper copy, or, if not a subscriber, you can still read the edition at omahadailyrecord.com.
FROM THE ARCHIVES In December 2019, Dave Sommers was chatting excitedly with OBA Past President and NSBA Past President Amy Longo about finding a May 8, 1899 newspaper article that definitively gave the formation date of the Omaha Bar Association (formerly called the Douglas County Bar Association) as August 21, 1875. Talk then shifted to the history of the Nebraska State Bar Association, and Amy said, with a twinkle in her eye, “I think I have something on that. I’ll send it to you.” Sure enough, a few weeks later, a large booklet entitled “100 Years of Justice: A commemoratice centennial issue” arrived. It was the 100th anniversary edition of The Nebraska Lawyer, the NSBA’s magazine. Inside, the magazine opens with a comprehensive history of the NSBA, including its founding on January 22, 1900. Also included in the mailing from Ms. Longo, however, was smaller pamphlet, entitled, “The First 100 Women Lawyers in Nebraska.” Given the Law Day theme of the 19th Amendment, this editor went through the source material and pulled the following trivia: The first women sworn into the practice of law in Nebraska was Ada Matilda Cole Bittenbender. Ada was admitted in 1883, and practiced law with her husband in Lincoln until 1888. She was admitted to the Supreme Court of the United States in 1888, and active in the Christian Temperence Movement. At the 1888 state convention of the Nebraska Prohibition Party, Ada was chosen as the party’s nominee for the position of Judge of the 2nd Judicial District. The 100th woman to be sworn into law practice in Nebraska was Grace Florence Grosvenor, in January 1936. Thanks for the great find, Amy!
12 OBA Lawyer Referral Service: Diversify your sources of business Applications for attorneys to join the OBA’s Lawyer Referral Service were sent out to current LRS members at the beginning of April. If you are interested in joining the LRS but did not receive the application, please contact Donna Birkby at dbirkby@creighton.edu. OBA members joining the service for the first time pay $100 for the year, and returning LRS attorneys pay $200 to be a part of the service through March of 2021. While LRS attorneys do agree to do consultations for up to 30 minutes for $40, representation after that initial consultation is done at regular hourly rates by the attorneys. The Service receives over 7,000 calls and emails a year, over 1,200 referrals were made in the previous year, and over $400,000 in attorneys’ fees from referrals were reported by LRS attorneys in the 2019-2020 member year. Join LRS to do your part of the public service of reduced fee consultations; stay a member because of the solid regular rate business LRS can bring your practice!
Online CLE Cap Lifted in Nebraska – Use OBA’s CLE on Demand Library to Get Your CLE! Due to COVID-19 and restrictions on in person events, Chief Justice Heavican has lifted the 5 hour maximum for Remote and On Demand CLE, allowing attorneys to get their full 10 hours of required CLE credit for 2020 online. The CLE requirements for Nebraska still require two of those hours be approved for ethics/ professionalism credit, and up to 5 hours of “excess” in person CLE hours reported in 2019 can be carried over to 2020 for reporting purposes. It should be noted, however, that the restriction is still in place that does not allow carryover of excess Remote or On Demand CLE reported. Looking for CLE hours? The OBA has you covered. We’ve been recording our CLE for a few years, and requesting On Demand credit for those recordings. If you are a current OBA member, you’ll enjoy many hours of free and reduced cost CLE credit. If you’re not currently a member, you’ll have to pay more, but the prices still won’t break the bank, in comparison to other CLE providers. To search CLEs provided by the OBA, go to https://www.omahabarassociation.com/page/CLEOnDemand.
Daily RecoRD Expertise Second to None
Over 100 years in the industry. 402-345-1303 • legals@omahadailyrecord.com • www.OmahaDailyRecord.com
13 OBA Recognizes Nebraska Appleseed & League of Women Voters with Public Service Awards Every year since 1983, the Omaha Bar Association has recognized people and organizations who have committed themselves to public service in our community. Two awards, the OBA Robert M. Spire Public Service Award, and the OBA Public Service Award are traditionally awarded at the annual Law Day Lunch. Even without the lunch, the OBA wants to recognize the attorneys at Nebraska Appleseed for their hard work, and the League of Women Voters of Nebraska for their longtime education of the public. The Robert M. Spire Award, named after the founder of Legal Aid of Nebraska and a past OBA and NSBA President, goes to an attorney or attorney organization. The OBA Public Service Award is presented to a non-attorney person or organization. The criteria under consideration for the award includes: (1) The public’s knowledge of the law or the legal system has been enhanced in some significant way by the recipient’s efforts; (2) The recipient has focused on providing service to the community for purposes other than pecuniary profits; and (3) The recipient has demonstrated long term commitment to the enhancement of the public’s knowledge of the law. The attorneys of Nebraska Appleseed are the recipients of the 2020 Robert M. Spire Public Service Award and the League of Women Voters of Nebraska is the recipient of the 2020 Omaha Bar Association Public Service Award. Nebraska Appleseed – Robert M. Spire Public Service Award Established in 1996, Nebraska Appleseed’s mission is to remove barriers to justice and opportunity in Nebraska, through a multi-pronged approach of community organizing and engagement, close work with state agencies and offices, public policy advocacy, and—when necessary—legal action in class action lawsuits and lawsuits against state entities. As stated on their website, “We take a systemic approach to complex issues – such as child welfare, immigration policy, affordable health care and poverty – and we take our work wherever we believe we can do the most good, whether that’s in the courthouse, at the Capitol, or in the community.” The OBA recognizes that Nebraska Appleseed’s efforts have changed the lives for hundreds of thousands (and counting) of Nebraskans through their tireless advocacy and community organizing. The principle of using the law in ways to assist those
without the means to afford an attorney otherwise is one that Nebraska Appleseed shares with the award namesake, Bob Spire. The OBA chat virtually via Zoom recently, in the lead up to Law Day, with Becky Gould - Executive Director of Nebraska Appleseed, Robbie McEwen – Legal Director, James Goddard - Programs Senior Director, and Sarah Helvey - Director of the Child Welfare Program. The video can be watched on the OBA’s social media accounts, or at the Law Day 2020 webpage on the OBA website, www.omahabarassociation.com/LawDay2020. League of Women Voters of Nebraska – OBA Public Service Award In 1920, 19th Amendment to the U.S. Constitution, was ratified by the necessary 36th state legislature, Tennessee, by one vote, enfranchising 26 million women that had previously not been allowed to vote. The League of Women Voters, a nonpartisan political organization, was founded in 1920 as a direct result of the ratification of the 19th Amendment. Education of the new large group of voters was the mission from the start; League members worked to help all voters become educated about current issues so they would be informed and active participants in democracy. Today, there are over 900 state and local Leagues in all 50 states, in Puerto Rico, the Virgin Islands, and the District of Columbia. League of Women Voters membership is open to any person who subscribes to the purposes and policies of the League. Over the League’s 100 year history, the organization—in addition to its role of educator of voters, has continued the push for greater access to voting rights, and fighting against voter suppression, gerrymandering of legislative districts, and the influence of money in politics. The League’s Nebraska chapter works to register voters, coordinate debates among candidates for public office, and release a non-partisan guide to candidates’ positions on key issues. To obtain the guide for your voting district, go to www.vote411.org. In a video interview that will be posted during the week of April 27th on the OBA’s social media accounts, the current leaders of the League of Women Voters of Nebraska made it clear that work is still left to be done, and the League is up to the challenge. The OBA is grateful to Dr. Dianne Bystrom, Linda Duckworth, and MaryLee Moulton for chatting about the work of the League here in Nebraska.
14
Civil Jury Verdicts DOUGLAS COUNTY DISTRICT COURT Civil Jury Verdicts
August — December 2019 Compiled by Dave Sommers
August 2019 CI 15-7990:
Amy Miller v. Jacob Gottberg Judge: Hon. James Masteller / Hon. Mark Ashford Plaintiff’s Attorney: Richard Schicker Defendant’s Attorney: Jordan Adam Case Type: Negligence - Vehicular Special Damages: $20,532.01 in medical expenses; past, present, and future pain and suffering and mental anguish Verdict: For Defendant Remarks: 4 day trial. Vehicle collision near intersection of HWY 6 and HWY 370 in Gretna. Plaintiff traveling north on HWY 6, and Defendant turned east onto HWY 370 in front of Plaintiff, allegedly causing Plaintiff’s vehicle to collide with Defendant’s vehicle. Settlement offer of $44,066.01 in May 2018 offered by Defendant was rejected by Plaintiff. Defendant admitted negligence caused collision, but denied nature and extent of Defendant’s alleged injuries. Jury deliberated for 75 minutes, and returned verdict for Defendant.
CI 17-777/16-10112: In the Matter of the Estate of Marcia G. Abbott-Ochsner / Mark Abbott v. Russell Abbott and Cynthia Sellon Judge: Hon. Russell Bowie PR (Mark Abbott) Attys: Elizabeth Culhane, Dan Guinan, Mike Coyle Defendants’ Attorneys: John Lingelbach, James Tews, Minja Herian Special Administrator: Mark Malousek (Probate) Case Type: Probate Special Damages: N/A Verdict: (1) Marcia Abbott-Oschner had testamentary capacity to execute her last will and first amendment to her trust dated 9/17/2015, but (2) Marcia Abbott-Oschner was unduly influenced in executing the last will and testament and first amendment to her trust dated 9/17/2015. Remarks: 5 day trial. Decedent Marcia Abbott-Ochsner was 85 years old at time of death in October 2016. In September 2015, Decedent executed a will and trust, in which everything was left to Mark Abbott, one of her three children. Previously, Decedent had executed a will and trust in 1995 leaving everything in equal parts to her 3 children. A codicil was made to the will in 2001. Plaintiffs (two adult children of Decedent) allege that 2015 will is not valid because Decedent didn’t have capacity in 2015, and in the alternative, that undue influence was exerted to make the change to the will. Jury deliberated for approximately 4 hours, and returned verdict for (1) Plaintiffs that Marcia Abbott-Oschner had testamentary capacity to execute her last will and first amendment to her trust dated 9/17/2015, and (2) for Defendants on counterclaim that Marcia Abbott-Oschner was unduly influenced in executing the last will and testament and first amendment to her trust dated 9/17/2015. CI 16-5485:
Barbara and Alan Timm v. Amy Kaup Judge: Hon. Horacio Wheelock Plaintiff Attorney: Maureen Fulton, John Lingelbach Defendant Attorney: Mike Coyle, Tim Thalken Case Type: Negligence - Vehicular Special Damages: $48,318.82 in medical expenses to date of complaint; severe mental and physical pain and suffering (past, present, and future); partial disability; future medical expenses; diminished earning capacity; loss of consortium Verdict: $69,610 for Plaintiff (reduced to $69,185 with offsetting costs awards of $111 for P and $536 for D)
Editor’s Note: Every effort is made to ensure accuracy. However, if you note an error in your case, please notify the OBA office.
15
Remarks: Plaintiff Alan Timm was driving GMC Envoy north on 180th Street at Orchard Street. Defendant was driving Jeep Grand Cherokee southbound on 180th Street, and allegedly swerved to avoid stopped SB vehicles, swerving into NB lanes, colliding head on with Plaintiffs. Defendant offer of $100,000 in 9/2017 was rejected. Jury deliberated for approximately 4 hours, and returned verdict for Plaintiff for $69,610. Post trial hearing looked at request for costs from both sides, in part related to the rejected offer from Defendant to settle for $100,000. Judge awarded each side certain costs, $111 for Plaintiff, $536 for Defendant, and adjusted jury award accordingly.
September 2019
CI 18-4626:
Frank Sleder v. Elizabeth Raphael Judge: Hon. Leigh Ann Retelsdorf Plaintiff’s Attorney: David Cripe Defendant’s Attorney: Luke Klinker Case Type: Negligence - Vehicular Special Damages: $46,034.84 in medical expenses; lost income of $30,150 and loss of future income; damage to vehicle; permanent injuries to neck, back, and left foot; loss of quality of life in past, present, and future; loss of future earning capacity Verdict: $65,000 for Plaintiff Remarks: Plaintiff traveling EB on West Center Road around 129th Avenue. Defendant rear-ended Plaintiff’s car, causing alleged damages and injuries to Plaintiff, and received a citation by the police. Negligence on the part of Defendant was stipulated to before trial. Defendant made settlement offer of $115,800, which was rejected by Plaintiff. 2 day trial. Jury returned verdict for Plaintiff for $65,000.
CI 17-6604:
Karen and John Heil v. David Clapper Judge: Hon. Marlon Polk Plaintiff Attorney: Adam Johnson Defendant Attorney: Jacob Harberg, Brian Nolan Case Type: Negligence - Vehicular Special Damages: $24,000 in medical expenses to date; future medical expenses; past and future physical and mental pain and suffering; loss of consortium for husband John Heil Verdict: $35,000 for Plaintiff Karen Heil; $0 for Plaintiff John Heil Remarks: 3 day trial. Plaintiff traveling east on Arbor Plaza at 132nd Street intersection. As Plaintiff Karen Heil entered intersection legally, Defendant, traveling south on 132nd street, T-boned Plaintiff’s car on the passenger side, flipping Plaintiff’s car on its side and spinning it 180 degrees. Defendant admitted liability for accident. Defendant offered $42,000 in 8/2018 to settle the matter. That offer was rejected. Second offer of $48,500 was made in 4/2019 and was rejected. Jury awarded Plaintiff Karen Heil $35,000, but awarded Plaintiff John Heil nothing for loss of consortium.
October 2019 CI 16-5540:
Consuelo Chavez v. Susan Milsap Judge: Hon. Horacio Wheelock Plaintiff Attorneys: Justin High; Ross Pesek Defendant Attorney: Jordan Adam Case Type: Negligence - Vehicular Special Damages: $19,889.65 for past medical expenses; past and future pain and suffering; future medical expenses Verdict: $37,500 for Plaintiff Remarks: 3 day trial. Defendant traveling SB in Chevy S10 pickup truck on 60th Street, near the intersection with F Street, and rearended Plaintiff in Jeep Liberty, pushing Plaintiff’s vehicle into car in front of Plaintiff’s Jeep. Defendant admitted negligence and liability in causing the accident, but disputed injury claims. Jury returned verdict of $37,500 for Plaintiff.
16 Civil Jury Verdicts Continued from October 2019 CI 17-1732:
State of Nebraska v. Cordova Apartments Judge: Hon. Gregory Schatz Plaintiff Attorneys: Ben Goins, Melissa Johnson-Wles Defendant Attorney: Emily Motto Case Type: Negligence – Discriminatory Housing Practice Special Damages: N/A Verdict: For Defendant; Court ordered court costs of $1,581.40 for Defendant Remarks: NE AG brought action on behalf of Kennetta Wainwright. Wainwright filed NEOC complaint alleging Defendants (Cordova Apartments, management company NBD Property Management, and Lesa Schreiner). Plaintiff was a resident at Defendant Cordova Apartments starting in 2014. Plaintiff had a disability known to Defendants. From 2014 and through early 2016, Plaintiff requested certain reasonable accommodations related to her disability. In December 2015, Fair Housing Center of Nebraska-Iowa sent a letter to Defendants regarding the requests. Defendants allegedly retaliated against Plaintiff, failing to make the requested accommodations, and depriving Plaintiff of use and enjoyment of premises. 4 day trial. Defendant’s request for payment of court costs was approved by the Court in the amount of $1,581.40. Defendant’s request for attorney’s fee was denied by the Court on determination that the State’s bringing of the action was not brought in bad faith and had sufficient reasonable basis to be brought.
CI 18-7441:
Jacquelyn and Patrick Wier v. Erin Watson Judge: Hon. Leigh Ann Retelsdorf Plaintiffs’ Attorney: Terry Dougherty Defendant Attorney: David Mullin Case Type: Negligence – Vehicular Special Damages: $17,302.04 in medical expenses to date; future medical expenses, including an estimated cost of at least $194,622 for lumbar fusion surgery; Husband Plaintiff requesting loss of consortium Verdict: For Defendant Remarks: Plaintiff Jacquelyn Wier was driving Chevy Tahoe SB on 156th Street at the intersection with Pepperwood Drive. Defendant was traveling NB on 156th Street, with the intent to turn left on to Pepperwood Drive. Plaintiff entered intersection on or around the time the light turned yellow, and Defendant turned left in front of Defendant, causing a collision. Plaintiff alleges specific injuries of a pars fracture in lumbar spine, bulging disc, and other exacerbation of other injuries. In the weeks before the jury trial, Defendant offered settlement for $36,300.38, which was not accepted. Offer was raised two weeks later to $42,706.33, but not accepted. 4 day jury trial, 3.5 hours of jury deliberations, verdict for Defendant, with Court ordering Plaintiff to pay court costs.
November 2019 CI 18-9927:
Cassidy Jorgensen v. Sheryl Schultz Judge: Hon. James Gleason Plaintiff’s Attorneys: Matt Lathrop, Rex Moats Defendant Attorneys: Mike Gibbons, Chris Jerram Case Type: Negligence – Vehicular Special Damages: Over $500 in medical care; other past and future medical expenses; mental and physical pain and suffering (past and future); humiliations; inconvenience; loss of enjoyment of life; $9,000 for loss of use and tax reimbursement for vehicle Verdict: For Defendant Remarks: Plaintiff, a minor at the time, was driving NB on 168th Street near Bennington Middle School. Defendant was attempting to turn left from Bennington Middle School on to NB 168th Street. First filed in County Court, removed to District Court. Jury returned verdict for Defendant.
CI 18-7461:
Harlow v. State Farm Mutual Judge: Hon. Timothy Burns Plaintiffs’ Attorneys: James Knowles, Jr., Matthew Knowles Defendant Attorney: Luke Klinker Case Type: Contracts Disputes Special Damages: N/A Verdict: $165,000 for Plaintiff (And Court Awarded Plaintiff $51,475 in Attorney’s Fees) Remarks: Plaintiff was in accident in car driven by husband, and caused by an underinsured motorist. Plaintiff suffered permanent knee damage and medical expenses to date of complaint of $73,120.36. Plaintiff’s car was insured by State Farm Insurance, with $250,000 per person, $500,000 per accident coverage for underinsured motorist coverage. Underinsured motorist had $25,000 per person, $50,000 per accident insurance coverage. Defendant gave
17 Plaintiff permission to settle claims with underinsured motorist for $25,000. Defendant then sent Plaintiff $51,000, as what was described as an “initial offer.” Plaintiff thereafter had knee surgery, and requested Defendant pay out the policy limit of $250,000 minus the $51,000 already paid. Plaintiff offered Defendant pay $199,000 for settlement in August 2019, and the offer was not accepted. Offer by Defendant in October 2019 for $35,302.39 was not accepted. 2 day jury trial.
December 2019 CI 17-9424: Reshea Bristol v. Omaha Foot and Ankle and Michael Cullen Judge: Hon. Peter Bataillon Plaintiff’s Attorney: Jason Ausman Defendant’s Attorneys: J. Scott Paul, Bill Birkel Case Type: Negligence - Malpractice Special Damages: Past medical expenses; Future medical expenses; Wage loss; Past, present, and future physical pain, mental suffering, inconvenience, loss of enjoyment of life; permanent injury Verdict: $2,000,000 for Plaintiff Remarks: 39 year old Plaintiff went to Defendant Omaha Foot and Ankle in 2016 with symptoms of pain in right toe joint. Defendant Dr. Cullen diagnosed Plaintiff with bunion of the right foot, and Plaintiff elected to proceed with the surgery recommended by Dr. Cullen. After the surgery of Plaintiff’s toe by Defendant Cullen, Plaintiff experienced consistent and severe pain, stiffness, weakness, and instability, which failed to dissipate over time. Plaintiff saw another specialist, who diagnosed the source of pain as being related to the surgery, specifically that drill hole and metallic implant surgically placed by Dr. Cullen was improperly placed. 4 day trial. Jury returned verdict for Plaintiff against Defendants for $2,000,000 CI 17-5002: Kenneth Tealer v. Florence Home & Midwest Geriatrics Judge: Hon. Russell Derr Plaintiff Attorney: Michael Mullen Defendant Attorney: David Welch Case Type: Negligence - Other Special Damages: No less than $33,174.33 in medical bills to date Verdict: For Defendant Remarks: Plaintiff suffered from paraplegia and was confined to a wheelchair since 1980. In June 2015, Plaintiff was admitted to Florence Home to receive respite care for approximately one month so that his wife would receive a break from her caretaking duties. Defendants changed Plaintiff’s catheter, allegedly improperly, causing Plaintiff to sustain injuries (UTI, sepsis, hematuria to urethral injection) that required transportation to and hospitalization at CHI. 2 day jury trial. CI 18-9026:
In the Matter of Janus Thomsen, Deceased Judge: Hon. James Masteller Plaintiff/Contestant Attorneys: B onnie Boryca, Michelle Elkin, Cory Wilson PR Attorney: Jay Ferguson Case Type: Probate Special Damages: N/A Verdict: For Respondent/PR; $2,378 in court costs Remarks: Decedent was 75 when she passed. In her 2017 will, signed in the year of her passing, Decedent left $100 to her son, her house to her friend, and directed her PR to give any other assets remaining after expenses to a charity of PR’s choosing. Decedent had previously executed a will in 2008 which left 30% of estate to son, and 25% to granddaughter. Plaintiff (Son) brought contest of informal testate proceedings in Probate Court, and the case was removed to District Court. Plaintiff alleges that Decedent was in poor health and subject to undue influence in the execution of 2017 will. Jury returned verdict that Plaintiff/Contestant had not proven 2017 will was executed under undue influence, and therefore that will was valid.
CI 13-7957:
Robert Thomas v. Kiewit Building Group, Architectural Wall Systems & Zurich Ins. Judge: Hon. Thomas Otepka Plaintiff’s Attorneys: James Harris, Britany Shotkoski Defendants’ Attorneys: Dan Ketcham, Jason Bring, Jeff Wright Case Type: Negligence-Premises Liability Special Damages: $60,300 in lost wages; future loss of earnings and earning capacity; $52,994.57 in medical costs to date and future medical costs Verdict: For Defendants Remarks: 53 year old Plaintiff was injured while working as a construction worker on the site of the TD Ameritrade headquarters as it was being built in 2012. Defendant Kiewit was general contractor on project.
18
Civil Jury Verdicts Continued from December 2019
Robert Thomas v. Kiewit Building Group, Architectural Wall Systems & Zurich Ins. (Continued) Plaintiff was employee of Defendant Architectural Wall Systems. The 12th floor of the building was smooth concrete, and was exposed to snow, ice, and water as the roof was not completed. Kiewit employees put down sand on the floor on top of snow and ice to help traction. On the day in question, no snow, ice, or water was on the concrete floor, but the sand was still on the floor, and hadn’t been cleaned up. Because of the composition of the floor, the sand created a slippery condition, under which Plaintiff slipped and fell, and injured his back which ultimately required surgery. 2016 directed verdict for Defendant Kiewit and was appealed to the Nebraska Court of Appeals. Directed verdict was overturned and remanded. 4 day jury trial. Approximately 90 minutes of jury deliberations, and verdict for Defendants.
NePA, ALA, and OBA Join Forces for Online CLE on Best Practices for Working from Home and Utilizing Support Staff On Thursday, April 9th, the OBA held a Zoom video CLE on Facebook Live with leaders from the Nebraska Paralegal Association and Association of Legal Administrators, Nebraska Chapter. The CLE, approved for 1.25 hours of general CLE in Nebraska, presented a wide variety of tips and tricks that attorneys and their support staff can utilize to effectively work from home/remotely. Utilizing the “on the ground” knowledge and experience of the presenters, we discussed effective communication methods with staff, online document organization programs, electronic notarization, and other helpful information. As we continue through these difficult times, it’s important to make sure support staff is being utilized in the best way possible. It may take some work to put new standards into place, but the benefit will be seen by the attorneys and clients. The video is free to watch for anyone interested in tips for working from home, and $10 for any attorney seeking Nebraska CLE credit. The video can be watched either on the OBA Facebook page at www.facebook.com/
Omaha Barristers Club Summer Shenanigans Put on Hold Per Doug Amen, current President of the Omaha Barristers Club, traditional summer activities associated with the Club are postponed until further notice. This includes the Steak Fry at the Elmwood Pavilion, and the Softball Game against the Evil Empire/Douglas County Attorney’s Office. If conditions change and the activities can be done, all will be notified. Other traditional Barristers Club activities, such as cracking jokes and enjoying an adult beverage in the presence of others has gone online. Entry into the group’s “members only” Facebook page will only be given to those who can come up with a joke at the expense of Sean Conway or Judge [Insert Judge’s Name Here}.
19
OBA Event Photos
20th Annual OBA Wine Tasting at The Barn at Ackerhurst Dairy (Courtesy Scott Stewart/Daily Record)
Josh Woolf hooping it up at the Nebraska College of Law/OBA “Gathering Before the Game”
Our New Attorneys at the Walk Through the Courts Program and Reception. Welcome to the Jungle!
Thanks to Matt Wanning & Magee Kopecky for volunteering to pour wine at the Tasting, and congrats on getting married!
Legal Marketing Expert Mark Homer giving two hours of CLE on Online Marketing (now available to watch online)
The “Sit Down and Listen to the Judges’ Words of Wisdom” portion of Walk Through the Courts
30th Lunch with Fenner on the possible recent ratification of the Equal Rights Amendment
Mark Hanna & Joe Bradley doing the news at the Barristers Xmas Show (It’s not an OBA event, but a hat tip to those Barristers)
Dr. Matthew Garlinghouse, the Medical Legal Dinner Speaker, left, with OBA and MOMS leadership (Less than a week before social distancing)
20
School Being Out Doesn’t Stop Poster & Essay Contests on Law Day Theme With school being cancelled this spring, a wrench was thrown into the Law Day Poster and Essay Contests. But as the saying goes, “The show must go on.” And so it did…and now 6 area students are the winners of the contests, and have some prize money to go with their recognition. Sandi Armstrong and Tom Tilden from Nebraska Paralegal Association coordinated the Poster Contest for 5th grade students. The first place poster, drawn by Ethen Henkel of Anchor Pointe Elementary (Teacher: Mrs. Cannon), is on display for the month on a billboard on the south side of Dodge Street near 77th Street. Second place went to Trina Schroeder, and third place was won by Aisha Mar Macossay. Trina and Aisha are classmates of Ethen’s in Mrs. Cannon’s class at Anchor Pointe.
2nd Place Poster - Trina Schroeder
1st Place Poster - Ethen Henkel
3rd Place Poster - Aisha Mar Macossay
Ethen’s Poster on a Dodge St Billboard!
21
Essays Capture 19th Amendment at 100 The Essay Contest was open to 8th graders, and was coordinated by Donna Olson and Jean Roeder of the Omaha Legal Professionals Association. First Place went to Kenadie Rudloff of St. Pius / St. Leo. We asked for a little background on our essay contest winners, and found out that Kenadie’s dad is an Omaha police officer, and she is interested in pursuing a S.T.E.M. major (environmental engineering, computer programming) in college and for a career. The 2nd place essay was written by Scarlett Wharton, also of St. Pius / St. Leo. Scarlett’s mother is Martha Wharton, an assistant public defender, her uncle is attorney Pat Dunn, late grandfather was attorney Bill Dunn—so you could say the interest in the law runs deep in her family. Scarlett mentioned interest in either pursuing architecture or law as a career. Kenadie and Scarlett’s teacher is Greg Gorski, an attorney who practiced law 26 years before returning to teaching history to 8th graders. Mr. Gorski’s name may be familiar—he’s had success previously with the Law Day essay contest, with many students attending past Law Day Lunches to accept their awards. Makes sense, an attorney teacher coaching his students to write well about Law Day! The third place essay was written by Bella Meyer of Boone Central Middle School. Bella lives in Albion, Nebraska, and when asked what she wants to do as a career, she stated that she wants to be a civil rights attorney. Said Bella, “I aspire to be more. I want to be the change I see in the world.” “The 19th Amendment and The Fight it Took” by Kenadie Rudloff “No man is good enough to govern any woman without her consent.” This is a quote from Susan B. Anthony, a women’s rights activist during the late nineteenth and early twentieth centuries. She, like many other women at the time, was fighting for equality in voting. They found it was time to modernize the Constitution. Suffrage was not handed to women; they were forced to earn it while living in a country dominated by men. Their strength through hardships allows me to have a voice in our present-day government. While fighting for their suffrage, women had to work to even be noticed. There were marches, political statements, and fires that were burned in front of the White House. Protests like these lasted for over six months, with most ending in violence. Women protestors were arrested, beaten, and thrown into cells, with some shackled to doors, then being force fed. Even through all of this, these women persisted. Ultimately, Congress realized that they needed to amend the Constitution. On August 18, 1920, the 19th amendment was ratified, finally giving women the right to vote. Without these brave women, I would not have the freedom and the rights that I have today. Because of their effort, I get to vote. I get to participate in politics. I have a voice. Their struggles are my success, and I am eternally grateful. (The 2nd and 3rd Place essays can be read at www.omahabarassociation.com by clicking on the Law Day banner at the top of the page.) A special thanks to Sandi, Tom, Donna, and Jean for all their hard work in coordinating the contests and working with their judges to select the winners. The OBA loves our extended family at OLPA and NePA!
22
The Origins of Common Law Review of Origins of the Common Law by Arthur Hogue - Reviewed by H. Daniel Smith Our lives as lawyers and as citizens are informed and shaped every day by the Common Law. We use the term every day and we think we know what it means. But what is it exactly? Where did it come from? Consider - these are judge-made rules that bind us. What is their source? Why are we bound? How is it that judges had the power to do this in the first place? What are the limits to this power? What constitutes “good law?” How quickly can and should our judges change the law? The Origins of the Common Law by Arthur Hogue is an excellent starting place in considering these questions. I wish I could describe it as a delightful romp through the Norman Conquest, the struggle between the Angevin kings and their obstreperous barons, the Thomas Becket affair, the Magna Carta, and evolving church-state relations, but alas. I can describe it as highly readable and recommended. It is necessarily something of a history of the high Middle Ages in England (call it 1154 (Henry II) – 1307 (death of Edward I)) and the evolving feudal world. There is surprisingly little scholarship focused on the origins of the Common Law as such, and a great deal on its history. Even if you have waded through the magisterial The History of English Law Before the Time of Edward I by Pollack and Maitland, this little book is a useful addition to your knowledge. To get right to the point, the common law arises from the customs and usages of the people. Although it takes him a while to get to it, that is what Mr. Hogue tells us, and he backs this claim with a reference to Pollack, who assures us that for six centuries all who considered the matter agreed that the Common Law is customary. Now seven centuries, as the old boy has been gone for some time now. Well, now you know. But that answer seems both obvious and unsatisfying without more. Let us explore Hogue’s analysis. First, what, in Hogue’s view, is the Common Law? He defines it by what it is and what it is not. It is: (i) a body of general rules prescribing social conduct that apply generally, (ii) that are enforced in the royal courts (read: courts of general jurisdiction), (iii) derived from actual cases and controversies, (iv) marked by extensive use of juries, and (v) marked by the doctrine of the supremacy of law. It is not: (i) a written code, (ii) the law of special groups or interests, (iii) local law, or (iv) equity (body of rules enforced by Chancery). An American lawyer might observe that the modern Common Law includes equity as the jurisdiction of law and equity are combined in one court. The Common Law serves two conflicting goals: 1) stability and certainty, and 2) flexibility and adaptability as social necessities change. Land being at the heart of so much of the growth of the law, the example given is the 99-year lease, which needs consistent law through time so men can plan their affairs. And yet, as early Common Law dealt with feudal hierarchies marked by free men and unfree men and society grew over time into something quite different, orderly change was essential. There certainly have been many 99-year periods during which the realities of real property ownership, fiefdom and tenancy changed significantly and new customs arose. The tension between the two goals is always present. Where did the Common law come from? Hogue’s historical outline and my synopsis: I.
The political scene.
a. Centralization. There can be no law that is common to the realm unless there is some centrality of organization and enforcement. Power and “law” were diffused throughout the kingdom prior to the Norman conquest in 1066. Kings simply did not have the organization or force to impose a central authority of the law. The Normans loved organization, and imposed central authority that then concentrated throughout the period of the Angevin Kings (Henry II, Richard I and John). Instead of innumerable fiefdoms with a loose allegiance up to the king, this began to impose a commonality to the whole realm. b. Royal Prerogative. This period was marked by a long struggle, fought out in the early times between the king and the barons and that continued for centuries after, between the absolute power of the monarch and the notion of the supremacy of law that stood above the king (i.e., the state). The Magna Carta of 1215 (and again and again through time) is sometimes called the “First Statute of the Realm,” (p. 49) and in this sense a law common to all of England. This was a powerful step in recognizing that there could be law that applied to all.
23
II.
The social order.
Feudalism; Free and unfree tenures. This period was a period of great change as feudalism gradually faded as the organizing principal of the society. The notion of free and unfree tenures in land and personal service obligations with all of their complexities gave way to more modern tenures and contracts that we would recognize to this day, such as land leases. Since parliaments were new and rarely convened some way of adapting to these changes was needed, and the common law filled that need. III.
Legal Institutions.
The Courts. From 1154 forward new courts proliferated, and the king’s judges had more and more influence in local matters previously left to the barons and their vassals. The king’s courts came to be preferred because they used juries instead of combat or compurgation (a person takes an oath to the facts and gets others, usually 12, to back the oath) to determine facts, the judges were better, the records were better and the decisions were backed by the king. By 1300 there were more than 30 royal courts - some of them follow: •
Curia Regis tried important cases involving tenants in chief to the king
•
Exchequer - royal financial matters
•
Common Pleas - seated at Westminster tried disputes between subject and subject
•
Justices in Eyre - a kind of circuit court with general jurisdiction
•
King’s Bench - grew into a separate court with civil and criminal jurisdiction, and heard appeals
•
Assize - specialized in property rights with the use of juries
•
Nisi Prius - a court that travelled to the counties and convened local juries
•
Gaol Delivery - aimed at speeding criminal trials
•
Oyer and Terminez - appointed for a single important case
The courts that went to local venues relied upon juries to inform them of the facts of the case, but also of the customs observed locally. Thus, the king’s courts had a reliable source for custom that deserved the imprimatur of law. Over time, records were made of court proceedings. The Year Books (the earliest law reports of England, dating from 1268 to 1535) reported fragments of cases, and Bracton (Henry of Bracton, De Legibus et Consuetudinibus Angliae or The Laws and Customs of England, composed mostly before 1235) cited five hundred cases. We begin to see something like the use of precedent and the early notion of stare decisis. Procedural law first grew up at this time, vital to the orderly preservation of the rights of the law: 1) the aggrieved person takes the initiative through formal complaint, 2) a court with jurisdiction must act through appropriate officers to bring the defendant before the court, 3) through oral or written argument or pleadings, the court encourages the litigants to formulate precisely the issue between them, which allows 4) a trial of the points formulated, and then 5) execution or enforcement by a sheriff or other officer. Juries began to be used to determine facts and replaced trial by combat or ordeal. IV.
The Chancery, secretariat and writ shop.
The Writ System. In the 12th Century the King began issuing writs, which were orders under the Great Seal of the king ordering a defendant to appear and answer some complaint based upon a principle of law. They were created and issued by the Chancellor’s office. The Chancellor at that time had broad executive and judicial duties and powers. The writs were very analogous to causes of action. The ancient maxim was, “no writ, no remedy.” In 1189 there were 39 of them, but by the time of the reign of Edward I (1272 to 1307), there were 400. Beginning in the 12th century writs were recorded in books called “Registers” which became a kind of embodiment of the common law long before judges issued written opinions. Families of writs grew up, reflecting the key interests of the time, for example, “Entry” contesting title, or “Trespass” against land, person or goods, sometimes called “the fertile mother of all writs.” The growth of writs and courts to enforce them was a significant advance in civilized life; for example, before the writ of trespass was created in
24
Origins (Continued) 1252, self-help was usually the only remedy available to an aggrieved claimant against a person encroaching on his right of possession. While writs were abolished in the 19th century in England and in the US by statute, recall that the statutes of Nebraska provide that, “So much of the common law of England as is applicable and not inconsistent with the Constitution of the United States, with the organic law of this state, or with any law passed or to be passed by the Legislature of this state, is adopted and declared to be law within the State of Nebraska.” Neb. R.R.S. 49-101. Indeed, our court has recognized uncodified writs, such as the Writ of Prohibition (order from a superior tribunal to an inferior one to desist from pursuing some claim over which it has no jurisdiction, and your humble correspondent has gotten one of these), one of the four extraordinary, prerogative writs (along with mandamus, quo warranto and ne exeat) as valid under this section. Nebraska. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937). The ancient writs are with us every day when we issue praecipes, file forcible entry and detainer, seek ejectment, sue for trespass to chattels or lands, sue on a debt, cite case law on assumpsit, ask for an accounting, and on and on. Maitland has said that the writs may be buried, but they rule us from their graves. Hogue instructs us that the Common Law is derived from the customs and usages of the people. But which customs and usages? How are such customs ascertained? And, what custom deserves to be considered as law? Not every custom should rise to the level of law, such as removing one’s hat in church (not sure this is still a custom). Blackstone gives examples of customs that became law: •
acquiring and transferring property
•
solemnities and obligations of contract
•
rules for interpretation of wills
•
remedies for civil injuries
•
criminal offenses and punishments
And these customs led to rules such as: • primogeniture •
writing needed to transfer property
•
deed must be delivered
•
wills construed more favorably than deeds
•
money lent recoverable by action
•
breaking the peace as punishable
What distinguishes the hat in church kind of custom from the transferring of property customs? Blackstone in his Commentaries on the Laws of England proposed this, and Hogue recites it: Good custom is 1) ancient, no man can remember the beginning of it, 2) continuous, the rights claimed under it have never been abandoned or interrupted, 3) peaceably supported by the common consent of those using the custom, 4) reasonable in the light of “legal” reason, 5) certain, in the sense of being ascertainable, 6) compulsory, it is not left to the whim of every man if he will obey it or not, and 7) consistent, for one custom cannot contradict another without producing an absurdity. This is a paraphrase, see Blackstone, Commentaries on the Laws of England, St. George Tucker edition, at 76, et seq. V.
So, what is the Common Law? It is two main things.
First, it is fair to define it in part as law that is common to all of the nation and all of its people. It is, in a sense, the law of the land. That is not the sense that first occurs to lawyers, but in England where it evolved in the feudal period following the Norman Conquest in 1066 there was no secular, national, universal law of any consequence. In part this was due to poor communication and transportation and there simply was no central authority with the power and practical ability to push out national rules and enforce them. English rulers did not have the organization, power and reach that even Roman rulers had 1000 years earlier. There was no Corpus Juris Civilis. But as Hogue shows us, the king’s courts became pervasive and began to create a law common to all, and the Magna Carta of 1215 was a leap toward the creation of a “law of the land,” a “common law.”
25
Second, the Common Law is a case based system of precedents that influence or bind other courts. This is probably the definition that first occurs to American lawyers. In the modern world it is more and more interstitial (the space occupied being that between statutes and constitutions), but it has a life of its own. We intuit that there is something essentially fair about a system that holds as its two principles that like cases should be judged in like fashion, and new cases should be judged with great care. VI.
Some thoughts from your humble correspondent.
Why is the Common Law in both senses so important? Four things. First it is common to all of us, not the tool of a few. Over time the king, the chancery, the barons, the courts and later the state have democratized the rights, privileges and immunities of the common law to every class of person. In 1100 only the rich, powerful and connected could petition the king or a king’s council for redress of a private wrong, land dispute or inheritance. Early courts addressed the concerns of the landed gentry. The Curia Regis heard only land disputes involving the king’s Tenants in Chief. Over time however, the courts of the king pushed out into the hinterlands and began addressing the claims of more and more classes of society until courts and writs were devised to address the cognizable claims of every person. We see even in the early courts expansion to more classes of society. In the modern world it has spread to every kind of claim for every class. Access may be imperfect but the democratization of the courts and the recognition of the rights the courts enforce is undeniable. Second, the common law moves deliberately. While it is a system that adapts to change in customs through time, it is not a whimsical system. Thus the common law stands as a barrier, in moments of high political passion, against sudden and radical changes. In discussing the famous fight between Henry II and Thomas Becket, the result of which was the assassination of Becket, Hogue delivers this dry and wonderful line, “In all accounts of the contest which developed, events are clouded by partisan emotions.” At 37. That could be said of our own time. But the Common Law compels us to accord due process, patiently honor the evidence and burdens of proof, observe the presumption of innocence, grant access to juries, and to acknowledge the supremacy of the law, even to our political enemies. We do not abandon these things at times when one political or interest group dearly wants a particular outcome and has a momentary upper hand. Recall - Blackstone instructs us that the Common Law is not law of special or local interests. The requirement of evidence and due process and burdens of proof grew up slowly and painfully as customs acknowledged to be law. We do not innovate lightly; we honor those rules followed since the memory of man runneth not to the contrary. See generally Edward Coke, Lord Chief Justice of England. Institutes of the Lawes of England. When courts dole out political justice, as they too often do, that is not the Common Law at work, that is a betrayal of the Common Law. Of interest is Government, Law and Courts in the Soviet Union and Eastern Europe, edited by Vladimir Gsovski and Kazimierz Grzybowski on political justice in the Soviet Union. The Soviets mouthed the same pieties that we do, but the courts were thoroughly corrupted by political, ends-oriented judges owing their first allegiance to the state and its dominant political party. Third, the Common law is normative. It has content, not just process. As I was reading this history it began to grow on me that the common law is grounded in private property, individual liberty, freedom and self-determination. The norms embedded in the early Common Law are that the individual owns himself and his property, free from the interference of others and the officious interference of the government. “The aim of the Common Law, acting in consonance with the principles of natural law, is to make free men living in the fellowship of a free community. Bracton will announce the great constitutional principle which will sound through all the centuries and encircle the world : ‘The King is under God and the law.’” Richard O’Sullivan, K.C., Master of the Bench of the Middle Temple, London, England, Natural Law And The Common Law, given at the 1949 session of the Natural Law Institute, College of Law of the University of Notre Dame. To this end. the common law enshrines private property. It anticipated and no doubt informed John Locke, who said, “Men being by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent.” Locke, Second Treatise of Civil Government (1690), Ch. 8, Sec, 95.
26
Origins (Continued) We see in our Declaration and Constitution the idea traceable at least to the Magna Carta that this rule extends even to the sovereign. The sovereign (the state) cannot interfere with the individual except in accordance with law and due process. And, since the individual owns himself, there are limits even to what the sovereign can do under color of law. While the early Norman would have thought of the relationship of tenants in chief to the king in this regard, this notion grew to encompass the relationship of the meanest citizen to his government. This runs throughout the Common Law. Fourth, and last, the Common Law necessarily implicates the notion of Natural Law. This is a vast subject which I can only touch upon here. If custom and usage be law, or can be law, where do custom and usage come from? Do proper rights, good law, and “right reason” exist in some way before the judges declare them? Jefferson wrote of “unalienable rights” without enumerating them, and before the federal Constitution was written, let alone the Bill of Rights. Many founders thought enumerating rights was unnecessary or dangerous or both, and thus gave us the 10th Amendment. But if rights not named in the Bill of Rights and not delegated to the federal government are reserved to the states or the people, what are those rights exactly? And, if common law judges create a new rights schema, as they did with negligence in the 19th century, where did such a thing come from? Can they now declare the common law of negligence void? If not, why not? What if a legislature outlawed private property or abrogated the action of trespass or ejectment? What if we had no written constitution, but rather of Acts of Parliament, court judgments and conventions as in England? What rights would the Common Law courts discover then? The operation of our courts is opaque to the average non-lawyer and to too many lawyers. But in many ways the Common law and the courts who are the custodians of the Common law stand as a bulwark against tyranny and oppression. And, this is quite apart from and independent of statutes and constitutions. The Common Law should be celebrated as among the greatest inventions of the western world.
27
Bingo for OBA Members in 2020
Ordered Take Out From Barrett’s Barleycorn
Yelled at Your Computer
Gotten Online CLE Credit
Worked an Entire Day in Your Pajamas
Woken Up After 9AM On a Weekday
Forgotten What Day of the Week It Was
Dropped a call due to bad cell service in your house
Completed Your Kid’s Homework For Them
Cut Your Own Hair
Commented About Life in Isolation on Social Media
Paid Your 2020 OBA Dues
Watched an Entire POTUS/ GOV/Mayor News Conference
Participated in a Zoom Hearing or Settlement Conference
Ordered Drinks “To Go”
Worked Past 7PM at Night Without Realizing It
Emailed Something You’ve Always Sent in the Mail
Been on a Zoom call without pants on
Read/Own Any of the Books that Dan Smith Mentioned
Watched Tiger King on Netflix
Taken on Pro Bono work
Extended Courtesy to Opposing Counsel Instead of Lighting Them Up
Are an OBA Lawyer Referral Service Member :)
Announced your intention to read more books... and failed to read more books
Been misunderstood while trying to talk with a mask on
Worn a Mask When Out In Public
Omaha Bar Association
PRSRT STD U.S. POSTAGE PAID OMAHA, NE PERMIT NO. 1025
NEWSLETTER
Omaha Bar Association 2133 California Street Omaha, Nebraska 68178
Omaha Bar Association Newsletter
Managing Editors:
July
Stephen M. Bruckner Dave Sommers
20
Contributing Reporters: Will Acosta-Trejo H. Dan Smith Amy Longo Dave Sommers
Photographers: Donna Birkby and Dave Sommers Some photos courtesy of The Daily Record
Design by:
CALENDAR
Monday
Field Day (Tentative) Champions Run
August 5-7
8th Circuit Judicial Conference Omaha
September 10
Thursday
Fall OBA Kickoff BBQ First National Bank
October 14-16
NSBA Annual Meeting LaVista
Dave Sommers
Printed by: Elman & Co.
Copyright © 2020 by Omaha Bar Association
Please check the calendar on the OBA’s Website for more details on upcoming scheduled events.