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Nay 19931 137

IN Ma~

BRIEF Volume 54, Number 3

1993

........ -

... .......,..,_J",.""'_Sto-.s.,

ON THE COVER: The Birmingham Civil Rightllnstitul. h.OU~1 exhibits depicting hi$lorical .... nl>

from post-World War r racial separation to) present'&y racial prog.e!.S.

Afric .... Amerlun La.W)'en In A1a ba ... a BlAd, PIoneer Lawye ... In Abba .... _ tlYin. Bv Raym<JJ!d L. Johnson. Jr. ........................... " ............................................................ " .... 156 Mnun.American Fe .... le. Maid..... Dlffe"tlu In the AI ........ te .... PTofelllon S, Cvnth~ w. C/mt<m and Mila L. Kelltl ,.... ....................................... .. ..... 170 An Oftnolew of Jln,. Trial., Le,a ' and PYoeelll",..1 Co .... lckrallon. BIllion, Kmrotlh O. Simon ............. ,....... " ...... "...... ...... ......... " ..... " ..... 175 54th,o\BA Mld>linler Mulln, Bg I Mkhad Mcl/,7I1iomJ. _...... _... _....... ....... _" __ ... " .. . ."...... "..... ,...... 186

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Mld,ycar Reporto: AlalIa ... a Sta te Bar Com",ltt~' a nd Tuk Foru, ........... 187 LontlJll, the LaW)'tr By Mm C. PTa/Mr. Jr. ............ _........ _........... _......... ,.......... _.. ,.......•...... "...................... _...... " 19) Co.,.,ler keeN t o Co ......

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AlAI!.UIA STATE RAIl 11E:ADQUART1lRS STAff 4150..1 .. Avenue. Montgom<fy, AI. 3liIC14 I:!«I) ~1515 • f AX (2(l5J 261 ·6310 c,.......... __ ~O;""'" M<CinoWT. _.CAE

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INSIDE THIS ISSUE:

A$B.l . GI>n« .... ............... 143 PacWF.. Poll ... ,...................... ,....... ,...... ,144 110, Brit/•.......... ,.... .. ,....... , 1 ~ 6 Aboot M.mb.... AmongFim>S ... 148 Building AIaban-..·. CourthGu ................. l52 Profile: BrO(»: G. Holme. ,...... ,............. .. 183 CLE Opportuniti.. ." ......... 1801

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138 / May 1993

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Alabama 110, I ... ,ito'. fiJ< Conlin u;ng ~I EJ"" .. kon. Box 8703!H. Tuon.loooa. Abbooma J H 81.-(1J8-4

PRESIDENTIAL UPDATE

AlABAMA FIRST

orty members of the

Alabama

I'i,.1 Tuk Force md .1 the shte bar hoadquarter$

March 25. 1993 to develop a plan of action to impn:>V( " ' - - " ' II, _ ,

01<.

Ihe 'tate"s bleak economic future.

flu, task force members were ",.lcomtd

and giwn an owrview bI' s\lote bar Pres;· dent Clarence M. Small, Jr. and task force Chair Walter R. Bya" 01 Montgomery. Speakers for the program

A:+

As a part olille Alabama First effort and to keep you infonned.lisled below are the rommunity meeting dates lor ,\., the statewide education reform organization. All interute<i dti~ens are invited to

attend the .. rneetings. If you need

mOr. information about Ihe A+ mrtting loca-

lions and times for your community. plea.. "mlac! the M omce in Monlgomery at )·800·253·8865 or I (2(1SI834-4S84. MISSION • To seek input and develop broad·b...,d ownership for the reform blueprint th.oughout Alabama; • To encour~ graM' OOts support for education .eform; • To demonstrate that education r~form mmt occur in a systematic, not piecemeal. fashion: and • To ,h<;M' that. quatity education system is a necessity for a Quality life for each citizen in Alabama,

TOWN .' 1EtltNCS SCHEDULEIl TO I)ATE Town meeting Contact perwn Decatur May 18, 1993 Cindy Pain Anniston May 20. 1993 Maudine Holloway Monroeville June 8. 1993 St~.. St ....... t AuburnlOpeli ka June 10, 1993 not ",'aitabte

'""

I)hone number (205)355-1116 (2051267-6144 (205) 575·3232

OTIIEII: LOCATtDNS FOR TOWN ME ETINCS (to be Khedutedl Alexand.. City Cuttman Huntsville TaliadegalSylacauga Andalusia DemOpolis Mobile Tro;' DQthan Baldwin County Montgomer)' Birmingham

140 I May 1993

Cadsden

Scottsboro

THE AlABAMA ~WYER

indudrd Will It ill Tanktrsl~. immedi· att put chllir 01 the Montgomrry ArQ Chllmbtr 01 Comrmr«, Mobik I~. Frink 8. McRight, chili. of ~lId.rship Alabllma. and Rttil1rntnt S~teTm CEO ~d Br(Jnne •. Task fwce membe rs learned from these knowledgeable speake.s 1he need for leadership li nd dramat ic aclion to knp AllIblima from falling farther and farther bthind eduClItioRally and teOn-omiclllly. After huring the sobtring ',porlf of these ,,,ukus. tlSk foree mernbtrs dividtd into ·idea groups" to focus on sJlKi fic problems lind "'lIYS ~rs WI help l1SOIvt them. FoIkMing thrst stUions. the wIc Ioru me.". btrs reustrnbltd I nd INde reportS on their findings lind recommendations. From this ochllnge. I plan of action "'all

dtwloptd to guide AWwroo bW)'t.. in htlpinQ remedy the 'tate's problems. During the nut ~ril months. the IlIsk

foru will bt alii,." uporund energizing laW)'trs K ross tilt slIte to helpimple· men! the Alibama First p~ of lICtion . •

Letter to the Editor II of w in tilt lega,l profession get e~rated at one time or another from the onslaught of criticism ~boot 1aW).. " and tht cyniCllI rommenlo about OUr ~ti\''' rontributioo to society. We know thllt t~ rom · menlS lire for the mosl part st.. eot~'J)ed lind often totally untrue, lind cerl.l.inly diRort lhe r:xIraoordiRary contribution thllt iaw)'f" "".. made, h;'torically and today, to society. MIn lhe bliuard of '93. I heard aboot the quile heroic efforts 01 on. 01 our colleagues to help a family in distreloS. There are probably hundreds of other examples "'here 11W)"rs pitched in but I thought the effort made by Ah'a Caint. past pruident of the Alabama State Bar. was truly inspiring. Aloa Caine li"..s in a heavily forested neighborhood. As a result. the heavy snows and winds blew down thowands of trees. made the roads totally impassable. and knocked oul el«tricity, Jwt btlorr tho stonn hit. a ~ighbor in tho g.~ral vicini· ty 01 Alva ClIiM'S residence. but some mIles aWlI}'. had ~ major surgery and was sufftring from li(e-endangering pOSt. ~rat"'" medical prOblerru. AI,·, Cam. did not know the gentleman in dist ••ss. tie lumed 01 this man's plighl from a third party. Nevertheless. Alva got m his four·"ileel dri,,~ "',hiele. and. equopped "'ith, chaif\Sllw, dttennintd to rtocu. the mon from his plight and make hospital and medical attention a,-ailablt to him.

TIlE Ai.AUAMA I,AWYER

Alva's tJltraordinary .ffort enl2liltd cutting and rtlTlO\ing numerous trees. many oIwhich ...~re SO large they had 10 be cut in multiple places in onkr to be pwhtd. ""'-"'nI and car· ried. piece by pi.ct. off of the road. It enuiled cutting branches. lTIO\;ng "ires. and procttding literally a couple of Int ill a time - all in sub-fr«~ing "'uthor. After Alva finally arrn..-d at the prOplt·s house. he then had to repeat the PTI':USS. IOOYing mort tr~s and branches that had falltn. proceeding over froun roads. d,gging out his ca, sewraltimes after il had goUen sluck, and delivering the man in.....,d to the hospil2ll for mtdical .Uintion. IV. heard of AI"a', heroic dfort f,om tilt ",ife of the man who was rescued. Her praise of Aloa's bra"..ry, reassurance to h.r hwband that he would gd 10 the hospil2l1 in time for prOpl'r mtdkal att.ntion. and gentral luppOrt "",r. matt ... related with oortfelt conviction and tears of appreciation in her~_

I ~ it is trite to "'Y that we hlIve a wonderful prof..· s;on. but this is trut because 01 prOplt in our profession like Alva Cain. - people who constllnlly ",,,,fiee their self. intem! for otM ... DoMI4 B. s-mq, Jr, R;ru ~PmrIM

Blrml.rg/l(l .... ,u"bor_

AprilS, 1993

19931 14 1

EXECUTIVE DIRECTOR'S REPORT WE'LL MISS You NORMA JEAN!

It ]1

n May I, Norma Jean Rob·

bins. the admissions stcr.·

tary of the Alabama Stale Har

since 1979, ret ired. Norma completed 30 yea.s cf strvice to the ' State of Alabama. fortunately. she chose to .pend her "last lOUT of duly" with us.

She will be sorely missed. Norma brought to this position a warm and concerned penonality.

exlraordioaJ)' administrative skills, and a "'Q.k ethic which ....as bawd upon absolule integrity and fairness - both ~n· hal fOTher seIlS;!;"" p(l:!ition.

have experienced our gTutut

increase in both lawyer admissions and

law student regist rations during her tenure. She has procused over 1.500 appiic<ltioll5 and registrations each yea •. and. excluding the pending february

results, has overseen the admission of 5.613 lawyet$ - well O'o'er half of our

142 ! May 1993

total membership. Until late 1992. when she advistd me of her dtsire to retire. ~e dim:ttd our admissions area, by her5<'lf. with only Si'asonal part-time assistants during peak periods. Norma has handled the many presSUrf'S and ~n dle .. deadlin~s with calm resolve. Above tvtrything elst. she did il with an absolute, firm evenhandedness (to the consternation of a few folks). Over the years. I have received my share of calls from persc>ns who "coul dn't believe" they were not an "exception" to our rule. and regulations, and. early on. when they would begin discussing Miss Robbins' faults. I knew they "'"re way off base. Norma is a "soft touch" and ha.s g<:>ne the extra mile to ""'iist any applicant in every way j>OMible when special needs Or accomodations were permissible under our rules . She simply did not play fa\"orit... No parent. spoust or applicant cou ld hurt mC>re than she wh en bar results were adverSi'. She WilS often the first pe rson a disappOinted applican t turned to-she could quickl» dispel the feeling that the "end of the world" WilS at ","d. Our bar examiners and memb.r> of the Chuacte r and Fitness Committee have praised her efficiency and helpful· ness. She simply has made all of our responsibilities eilS;er to med with her cheerful and positive attitude. These persons honored Nc>rma with a reti re ment luncheon April 30 in Mont · gomery and pr05ented hn with a remembrance of their appreciation. Nc>rma leaves many friends in the Alabama State Bar family iIS ~e ent.r> this new pllast in her life. She wil l resid e in Mont·

S/al~ Nf siaff """"bon a/1M 1980.,..,''''''lion in MoInk (I.,) MargaNI _ . No,"", ~ (IfI(/ Diontl W~I,*",

gomery where she will pursue her coo· side",ble talenls iIS an artist. She main tains interests in the theatre and gardening. The leiters of appred.tion and floral tributes received after she administered a bar exa minat ion were constant reminders of the respect our applicanls had for her. She .. t the standard which we must seek to maintain. Norma will be succee ded by Dorothy Johnson who has been working with her since lilSt June. Elizabeth Sm.·arts will be Mrs. Johnson'~ ~istant. Norma has in dicated an interest in assisting iIS a bar tl(amination monitor for future exams each February and July. This i~ an offer we cannot refuse. We will miss Norma iIS a daily ray of sun· shine. but we will not for~t htr influence on a ~neration of lawyers. She i. very special. •

THE AU.8AMA lAWYER

"J:eeP- 1", 7~1

~ S~

j{~ seminar Iw. bKIl ~ for elL ~udil? Want a elL stmina. al ,." tl<Otic spol or on a pUticUl.I. subjed rN-Utrl ea.n Oiant 1\ 1.aoo.~-6I""

.. Sted ,." upd.alt<l eLf: Ca\r.....w1

... 8.i. diredorits lOr $25 for ASB man 1992'-93 IIOWCQIt non-lTItn1btn. 140 for

~rs ~

t'tcd to 1<_

ITIOnty order

A1~

~ lor Ci.E cudil , all Oiant al \-800.354-

IfYOUlllcndeclorwiUbtimndinia_..... eLE sem;N' lhal Iw. not bo!tn aw' .......

6154 10' application information. .. To rutrw a mHtiflll room for a deposilion, un Kim al \ .8QO.J5.o\.61501. ... Quutions thl: pu«.hast of)"lllT

rtgar~ing

c~n

~_rriday.

t·~ J"' " ~ad)jn. 10a~hR~~ ~99J .7t: ~ 31.l:~

Among Finns"

THE ALABAMA UlI-\'YER

About Members

L~~~~~~~~===~

8 1.10.10 5\1.10.

MllN.r tum apPIieanU shan hlrvt thei. compleled awlitalionililt<l no We. Ilwll'lowmber 1 pr«tdi"ll the ftb~fJ tumlnalion, .,d no \aIOT INn Marth \ prKt<li"ll the July tuminatioo for which IIwy wish 10 .I\. (Rult II . C, Rults ('n,'tmilli Admission 10 tht Alabaonu Slate & r) AllornfYS lubmiUinllaffidav1U for prosptetivt applic.aonU should be mindful 0( I~ deadlinu.

n:'

edilo "ntheMa . ,or199 a lettu ."" . A/ai><nna!.aw Y 3 iuue ofTht! Wednesday the wa.o informal i"'; for Ihe lhing stale bar. To gel EIVED at lhe July 1993 iMue in RECEIVED .' 10 I>r day. May stale boor by Mon·

.. is The le1tpl>ont nurnbt· 10 ruth .il"" \ZO$) 261-6311. offICe is \2(15) 269·15\5, MondaY through

Ai.h.

(205)269-1515.

.. Wanl 10 join the u..,.ryi:' Rdrr,.1 Strvict? Kathuil\t. 1-800.392.!.ti60. .. The stale w..'s fiU numbe' , !\'Iiin office. is (20':»2£01.6310. .. Tofu iOnItthlnll to lhe Cenl OT fo. PfolUSiona Respoouibility, II>< number l

td.~AJN:::~ H~

occu~lion HctnK or pa)'lI'Itnl of dues! ta.1I A1i« Jo al \ .800.354.6154 or

~k or

tory. P.O. Iku 4156 Bar Oil"«. 36101 • Montgomery, Torn. ngel'OUr~ . n be •addrw or IN,C. \0 Hr. i\ IN WRIT. ""ttl; PO ". __ m ,. , llIp Sf . tndnx, Me .. MOll!gQmery . r><JX 671. To II d.w'ilied 3li101. annou"'tmtnl in :..... IC •. In

lor a a.ltndU;arod in/ormation.

'It

III

La ' YOUng=~"9~1 Mttting al G Annual

the 1993.,Olrootn ulf.~14. 15. Sandestin dim:tly resm-atoons. tonIacI ~istraticn ' at 1-300-2n.{l8OO Barry Rag.d.Ue ~~Iion. all . .... The nel RIft!' } 879-Jm. State Ba. Boa 'iii of the AWI.una May21.1993 rdofCommjll~rs"·

'or

Mane }'OU . calendar Ba. Annual M . - AJahatl\i Stat 1993, 1$.17, e Iua. Mobile

Rive....:;~ni-July

May 1993 1 143

POLL FACTSIFAX POLL RESULTS: Critique of The Alabama Lawyer In the Januar)' and Man:h issues of The Alabama Lauyer, "'t: a.sked for your opinion of the Louyer. and what additions. deletions and changes you WQUld like 10 see in the magazine. Stventy-four attorneys responded to this poll, eilher b)' faxing or mailing in their f. 'ponS... Hero are the result:l:

or the ",emlte ... who " _ponded: L 86% read ..,Iected portions of the magazine; 11% rud it in ils entiret~; 3% skim it; and no one adm itted to nevt. read. ing it.

2. Regarding the different sections of Ihe magazine: PRf;SIOf:I\TS PACE 55'16 wmetimes read it; 27% always read it: IS'16 never read it. EXECUTI\'E DIRECTOR'S REPORT 48% sometimes read it; Z8'l6 ne.·er read it; 24% alwa)'5 read it.

lEC1St.A.T!Vl: WRAP·UP 61 .. sometimes read it: 34'16 .lwaj'5 read it:

5'16 nevu read it. BAR BRIEFSIABOlJT MEMBERS. AMONG FIR/>\S 61 % always read them: 2% read lhem sometimes; 7% newr read them, BUtLDlNG ALABAMA'S COURTHOUSES

53% >omelime, read it; 38% newr read it; 9% atways read it. SUBSTA>'lTtVE LEGAL ARTtCLES

65% sometimes read them; 35% always read them;

none admitted to ne""r reading the article,. CLE OPPORTUNITIES CAI.ENDAR 53'1j, sometimes read it; 28'l6 always read il; 19% never read it. DISCIPLINARY REPORT 74'16 always read it;

rfad il sometime,;

6% neWr read it .

YOUNG I.AWYERS· SECTION 54 % wmetime. read il; 35'11> newr read it; \I % .. Iways read it. Rl-:CENT DECISIONS n 'lj, always rrad Ihem; 27'l6 somelimes read them; I'll> newr read them. MEMORIALS 53'16 sometimes read them; 40'16 always read them; 7% ne""r rtad them. It appu .. from Ihis veT)' unscientific. extremely informal pOll that of those reSpOnding. the most popu lar k<:tions in the magazine art "Bar Briel$lAbout Membeu. Among Firm'", "Disciplinary Repmt" and "Recent Decisions" - in other word,. who has rece ived an honor or been promoted or lTIO\'ed. who has been disciplined. and what the courts deei&d on a ~rta i n issue. Suggestion. for fulure issues included having articlu on: the use of in-house counsel; attorneys combining the practice of law with other professions or businesses; time and dfort donated 10 diff.rent communiti.. by attorney, ; ethics opin· ions on a regular basil;; a quarterly focus on county bars, with an emphasis on demographics and lawy<'rs' typical practice •. clients and income: ao;l\.'antag .. of local grievance committees as oppOsed to centralized committe..; criminal law; appellate and trial court judges. and Alabama 's federal courthouses; wlo practitioners. and small firm practice, problems and solutions: a $1 court cost fee. per case. to fund a retirement plan lor attorneys; actual case. tri.d in Alabama with jury deci sions; more .ub.tanti"" legal articles; Alabama property law; and articles from stale law proftssors.

FACTS/FAX POLL RESULTS: Punitive Damages The Factsll'alc Poll which has appeared in recent issues of The Alabama wuyer was designed to generate reader interest and to provoke comment on issues of interest to members of the bar. By that measure. the lox poll has been a re~und ing success. Ho..-evtr. as !pecif,,:ally noted in the announcement for the first fox poll. the SU"'eY was never intended to be a scientific sampling. Unfortunately. r<Ctnt fax poll. on issues concerning

.44 I May 1993

the eleclion/selection 01 judges and puniti"" damage. h."" generated what appears to be organized efforts to skew the '05ults. Similarly, other media and interest groups have sought to portray the poll results as being an authoritative measure of the pOsilion of bar membe .. on these issu... Because of concerns about Ihe validity 01 the polling results and the polentiallor misuse of the polling data. 00 tabulation has been made ofth. fox poll on punitive damages. THE ALABAMA UlWyt:R

You now ha\'t: IhI: opportunity to take

THE AlABAMA STATE BAR ANNOUNCES A

SIMPLIFIED ISSUE LIFE INSURANCE

advantage of IhI: Simplincd Issue Yearly Renewable Term Ufe Insurance Offering

undcrw riucn by Northwestern National Ufe Insurance Company.·

All you need to do 10 qualify for Simplirtcd 1S5~ covera~ is: • be under age 60

• be actively II'work . 1101.

be currently en rolled in the Plan

• be able 10 answer NO 10 lhe tWO questions on [he appli cation.

Hcre are the CO\'erllgc amoums ava ilable; T£RMUFI:

For Members Only Offering Deadline April 3D, 1993

AGEUMIT

COYERAGE

Underage 50 Age SO-5i Age 55-59

$25,000 $10,000

$50,000

$50,000 S25,OOO

$10,000

All covuages i.tdulic a waive r of premium frmure if)'lu should /N;co1l!c disabl..d.

tlv Simplifl(:d Issue offer.)'OO and your spot1St' can seleCt benefitS from $25.000 10 $1 million (for non-tobacco ~rs) by providmg tvidcncc of your good health . [n addition

For funhcr inforltUlIion ( on~1:

INSURANCE SPECIALISTS, INC. :mo Brnywlne Aoad , Suil1t 135 Allinta , Georg i. 3G341 (4041458-88111 Toll · Flit 1·8110·241·77$3 Fax (4114) 458·m6

_.._.._

1111

...

Northy,estern National tife

Minncapolio. MN

(

T1-1E:AI.ABAt>tA LAWYER

r-------------, .boo." I

I I

For """" inform.lion ,he Offering. or "'lItr hr" utSur>nC. oF"ions. CO<IUoCI tho: lnsu,""", SpKialm:.. lnc lisl~ .. lol,

No ....

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·U"""'. . .''''.n by I'i~

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Oat. "north I I __ .. _ _ No LT<"",", ___________ ...J ~

BAR BRIEFS Birmingham attorneys FA.. Flower..

III and David C. eo"don recently coauthorw a book for the National Mwciation OJ! Manufacture .. , entitled l'rotIucts £jabilil/l ww. Loss Centro! and /I'lSUn/fla. Flowers is a partner with the r..m of Burr &. Forman, and Condon is executive vice·president and gene ral

counsel for

S~HS.

Incorporated. an

iruurance brokerage hQuse specializing in products liabilitylcompleted opera-

lions insurance. loss control and claims management for equipment manufactur.... and d.. r.....

with the computers is word processing, but things are rapidly changing . The ABA'. Technolo,," Clu rinlhoUH of· fers a free service for members. answer· ing lheir automation questiom owr tilt telephone. The Clearinghouse is a one· stOp SOurce for automation information on software, h/lrdware . ..,MC" and publiratiom. For information about the Clearing· house and packets con!.lining product descripti'lns, w:ndor contacl.\, informa· tional ntiel .. and reading list •. call

(312) 9S8·S465.

The book is designed for industrial.

agricultural and construction equipment manufacturers and dealers as a tool to help them man.ge regal expo.uro to products liability claims and suits. Th. book offus tW<l solutions. 1055 control through lou a\IQidanco and toss •• duclion measures. and iruurmce.

Editorial assistance in developing the book wu provided by Tom CoUlnt· ....m , who is also a partner with Burr &.

forman. John 111. John"n , a partner in the Birmingham firm of Lightfoot, Pranklin, Wh ite &. Lucu. contributed to a book that has just been named the best law book of 1992. After a nati(mw ide competition. the Association of American Publisher.; gave the award to the six·volume !·nuiron·

menlall.ow Pruc:lke Cuitk. Johnson wrote the chapler on pesti· tides. He is also the author of Peslititk Liligalioo Mooual. The Enuironmental Law Proctice Cuitk indud.. text. case and S!.ltutory ci!.ltions. forms. bibliographies. indeMs. and practice pointers designed to help lawyers. government officials, consul!.lnb, and regulated busine .... s. According to a recent stud~ by the American Bar Association, 67.6 percenl of attorneys in midsize firms (20-100 attorneys) u.. a computer. In a similar study of smaller law firms. 55.6 percenl surveyed u" a computer, The over",helming function performed 146 / Mayl993

Lin .... Fried. man, a partner with the Birmingham firm 'lf Br;odley, Arant, Rose 0; White. has been timed a member of the Am e rican Law Institut •. Stle is the first female practicing attorney evEr elected to the ALI from Alabama. The ALI currently has 2.500 electtd members. Friedman is a member of the Ameriean Bar Association, the Alabatn/l State Bar (ch/lirperwn of the Business T'lrtI & Antitrust Section), the Birmingh/lm Bar Associllion and the U.S. Tra demark Association. She also ~rwd for a num ber of)'tars on the Board of Bar Examin· erS of the state har. She contributed to

Siale Trademark and Unfair Compelition in Alabama and Protecling Intellectual Propert!l and Alabama Law, which are comprehensiw: manuals for I~rs. as w~1I as busi~ tn/Inagers. She graduated summa cum laude from Kenyon College and received her law degree from Vanderb il t Law School, where she was associat. editor of the Vanderbill Low Review. She d .. k~ with the Honorable Sam C. POinter, Jr .. chief judge of the U.S. Di.trict Court for the Northern District of Alabama. 1IIIIIon C. On!. of Tuskegee rt«ntly was elected the 29th Cene ral President

of Alpha Phi Alph/l Fraternity. Inc. during its National Convention in Anaheim, California. Davis is lhe forst Alabama l"t.jident to be elected to head the nation's oldest African·Ameriean fraternity. His term began in January. Davis rece ived his undergraduate degree from Tuskegee Uniw:rsity and law degree from the University of Iowa. lie is an American Political Science Foundation Fellow. a Ford Foundation Graduate Fellow, a Herman Lehman Foundation Schola •. and a Henry I.uce Foundation !nternational Sch'llars Finalist. A f'lnne • assistant ;ott'lrney general of Alabama. Dav i, pract ices in his hometown of Tus.kegee. He has served as a memlle. 'lf the Alal:>ama State Bar Board of Bar Examiners, a member of the U.s. ) llh Circuit Court of Appeals Advisory Committ.e, and as former pre.ident of the Macon County Bar Association.

~~~~j~~~' of0 partner in Miglionico

receiued Ihe Oulstanding A/umnUJ award from the Unit..m;itll of Alabama School of Low during LAw Week in March. The au:ard ...'0.1 pre$€l1/cd blithe Bench & Bar Sociel!llltld is rwmcd for Dean [)ur,iel Ml!tldor.

u.s. CITCuit Juq;e Joel F. Dullln... a 1973 graduate of Cumberland School of Law. Samford University, was honored recently as Alumni 'lf the Year for the law "hool. J udge Dubin •. along wilh retired Mississippi Stale Supreme Court Chief Justice ROl' Nohle l.ee, was

,.rog-

THE ALABAMA

~WYER

ni~ed during Law Week activities in March. Dubina. of Montgomery, w;u appointed to the Ele-.-enth U.S. Judicial Circuit Coun in 1990. He is a former U.s. District Judge. U.S. Magistrate and practic· ingaUomey, Cumborland's Law Wtt k activities included app-earances by the Alabama Coun of Civil Appeals, altomeys F. i.ft Bailey and Bobby Lte Cook. and the Rev. Jerry Fat....,II ,

The Mobllt B.. AHoclation'. uee· utive commiuee Ius publicly objected to a te levision commercial run in the Mobilt area which the association's President. Thorn .. E. B..,anl, says maligns the ....hole legal prof•..,ioo. The ad uses actors to depict an unsa· vory looking character identified as an .Uomey with his desk..,t up on a dan· gerous crack in a sidewalk. attempting to solicit clients from among pwplewho fall On the sidew.n:. Trick photography is u..,d to distort the face of the actor who pia)" the attorney. adding to the "scurrilous attack". Bryant said. "This comme rcial does not address any i..,ue in any factual Or reSpOnsible manner but attempts to arou'" strong attitudes of contempt by the public toward an entire profession: Bryant said. The ad, part of a statewide pOlitica l campaign to pass new legislation regulating attorney'. ftts and to remove certain legal reSpOnsibilities of insurance companies for some actions of their agents, hllJl run on television stations .round the stale. "We have no objection to factual. hon· est discu..,ioru ofi..,ut5. including thOM' that are the subject of pending legislation. But ....e do object to cleverly produced commercials that hold an entire profusion up to rid icule and contempt." Bryant said. He pointed out to tile local television stations and to the public that the commercial depicts an attorney ber.aving in a manner which is clear violation of Alabama law and of American. Alabama and local bar lIJIS(ICiation codes of eth ics. He ..quested Mobile television stations refuse advertiSing that miIligns a profes. sion as outside the bounds ofwllat "are or should be ;tI:ceptable value:; and tastes of the Mobile commun ity: • THE ALABAMA L\WYER

NOTICE

TREAT AWARD FOR EXCELLENCE Each year at its annual meeting in November, the National College of Probate Judges honors the recipient of its

prest i~

gious Treat Award for Excellence. The award was created and named in ho nor of ludge William W. Treat, founder and president emeritus of NCPJ. The College annually selects an individual who has made a significant cont ri bution to the improvement of the law or judicial administration in probate or related fields. The purpose of the award is "to recognize and encourage achievements in the field of probate law and related fields consistent with the goals of the Nati onal College of Probate Judges.~

Previous recipients have been members of the

judiciary, attorneys and law school deans o r professors. Submit nominations of qualified individu als to: Treat Award for Excellence Committee Nationa l College of Probate Judges

300 Newport Avenue Williamsburg, Virginia 23187-8798 This committee includes three NCP] officers, the president of the American College of Trust and Estate Co unsel, and the chair of the American Bar Associat ion's Section on Real Property, Probate and Trust law. Nominations should include a resume of activities, letters of recommendation, awards received, achievements in probate a nd related fields of law, and any other relevant material. Nominations received by June 15, 1993 will be considered for selection of the recipient to be introd uced OIl the annual meeting November 19, 1993 in Charleston, South Carolina.

May 1993/ 147

ABOUT MEMBERS, AMONG FIRMS ABOUT MEMBERS

0.",.

Ttl'T}l C. ~nnouncu the new location of his office at 4183 Carmichael Road. Suite B. Montgomery. Alabama 36117. Themailingaddres.sisP.O.Bo~ 230907, M(mtgomery. Alab;ima 36123· 0907. Phone (205) 270·059'2. Jamu W. MIo.Y announces the reloat· lion of his of/itt to 416 East Lau rel Avenue. Foley. Alabama 36536. The mail· ing address is P.O. Box 549, Foley, Alabama 36536. Phone (205) 943·2S81. C. MacLeod Fuller announce. the re location of his nfiico to One North Royal Si reet. Mobil., Alabama 36602. Phooe (Z05) 432-ZZI L

Julia ChritUe

CI~r

announces the

new location of hi>r offi« in Ihe Van AntW<'rp Building, 103 Dauphin Strtet, Suite

201. Mobile. Alabama 36602. Phone (205) 432-3800. Olnn.J' Farnell . formerly with Jeff 1'051\•• & Associalts. announcu the Opening of his office at Jl4 &11 Building, 201 Montgomery Sireet. Montgomery , Alabama 3611)4. Phone (205) 262·7500. Ke nda ll W. Maoidoll announCe!I the opening of his office. located at 250 Farley Building. 1929 3rd Avonue. Norlh, Birmingham. Alabama 352(}3. Phone (205) 25]·7717. An n Cnrtr],ht Br]d,t",.n an · nounces the rt\oc.alion of her offia to the Clemmons·Edington House. 55] Church Street. Mobile. Alabama 366(}2. Phone (2()5) 433-4468.

J. M..K)' Relfe. Jr. announce. the

new \oc.ation of his office at 211)2·0 Caha· ba Road. Birmingham. Alabama 35223. Phone (205) 871).1138. C].rence L. Mc Dor .... n . Jr. an-

nounces the relocation of his office to Suile 3W. ZOO Office Par].; Drive. Birmingham, Alabama 35223. Phone (2(}S) 871 John W. C.nolI. formerl)' ofBirmingham. ha. reti r.d aft .. 36 years with Lawyer. Cooperative Publi.hing. He worked for ] 7 years as a sales rtpreoentatiw in Alabama and Georgia. and for 19 yt'... as regional manag .. ol50uthern states. He IWW rniides in Culf Shores. 148 1 May 1993

AMONG FIRMS Lyon •• PI, u '" Cook announc .. W1I11.m E. Shftft. Jr. and R. M.rk Kirkpatrick haw beCOITlt members of the firm. Offices are located 2 North Royal Str.d, Mobile. Alabama 36602. Phone (205) 432-4481. J ..... t. W. Webb, Mlchatl M. EI,.,.. Kendrick E. Webb. Cralll S. D1I1an!. D"T)'I L. M. .le .... E. Wray Smll h , Bart H.. rmon, MaT)' E. Pileber, Lyn Hud Durh .. m and Krl.tI All e n Do .. dy announce Ih. formation CJf Webb" Eley. Offices are IOGaled al 2000 Interstate Park , Suile \02. P.O. Box 238. Montgomery, Alabama 36101·0238. Phone (205) 271.1820. Leo" Au od .. l . . announce. the associalion of MotTl l J. Broob. Jr.. formerl)' Madison Count)i Di.lricl Attor. ney. M. Bruce Pitt . and Bren l E. Hl ero nym!. The address is 200 Randolph Avenue. Huntsville. Alabama 35801. f'l'Iom (205) 539·6000. C .. b .. nl ... Johnllon. C .. rdner. D........ '" O·N~ ..I announces R. Tay' lor Abbot, Jr. has become a member and John M. Craham and Samuel D. Payne have become a.sociates. Offices are located in Birmingham and Mooile. Alabama. Sehmltt .. H ..."er announces that John C. S mith hu become an a5S0Ciate of the firm. Offices are localed al 213 Barnett Boulevard. Tallassee. Alabama 36078. Phone (205) 2S3-685S. Dick'" Wilner announces thai S U"'n Conlon Rutller hu become an associate with the firm. Office. are local· ed at 100 Washington Stred. Suite 200. Huntsville, Alabama 35801. Phone (20S) 533· ]445. Wilmer '" Sh~, ..rd announces that Frederlek L. Fohrell, fo r mer chief as.istant dislr;ct attorney for Madison Count)i and former counsel to Ihe ~r' nor. hu joined the form. Th. mailing address is P.O. Box 2]68. Huntsville. Alabama 3.580'. Phone (2(}S) 533·0202. Kher, BenoUI '" Con ... ln announces lheir n"", member. Marco A. Cooulu . Offices aT. localed at 2]01

City federal Building, 2026 2nd A,.. nue, North, Birmingham. Alabama 352(}3 , Phone (205) 324·1582. Boyd iii Fem .. mbucli announces Ihe formalion of Boyd. Fern ..... buc q '" Nlchoil, and that R .. ndall W. Nic hol. has become a pa rln.r. Th e mailing addre .. is Suite 302. 2801 Universily Boulevard. Birmingham. Alabama 35233. Phon. (2(}S) 930-9000. Doulll ... I. Friedman announces the fonnalion of Fritd ..... n '" Pcnnbillton and Ihal John M. Pennlnllion has become a partner. Officts are located at 2000·A Soulhbridge Par""·ay. Suite 535, Birmingham. Alabama 3S2(}9 . Phone (2(}5) 879·3033. The City or Dolh.o annOunces the appointment of F. Lenton While as city allomey. Offices are located al 126 North SI. Andrews Str •• t. Dothan, Alabama 36302. Phon. (2051 793-0]]7. S. Kenl S t ..... rt. RlciQ> T. Dul. and 500lt J . Hum,hrey announce the formation of Stewar l , D._II '" Hum,h rey. Offices are localed at 3SOO Colonnade Parkway. Suilt 650. Birmingham, Alabama 35243. Phone (205) 969·

3737. Taylor <lit Roberso .. announces lhat Chri_tl .. n E. Roberson hu become an a5S0Ciate of the firm. Offices are located in Pratt".;lte and Birmingham, Alabama. Phon . (20S) 365-2221 and (205) 323-

"00. Vlnun l. Hn'y '" Ar nold an nounce. that D.. vld M.. dlMn Tldmont ha5 btrome counsel to the firm. Offices are localed al 2090 Columbiana Road. Suile 4400. Birmingham, Alabama 35216. Phone (20SI979-4490. Jennlnll_. Carter. Thomp '"n .. Veal anoounces that Tho ...... A. Jto· nhlll' has become aswciated with the firm and the name hu been changed to Veal'" AN odale.. Balch" Blnllhlm announces that W. JOH ph McCo .... lt, Jr. and Karl R. Moor haw become members of the firm. J Olt ,h MeCorkl~ pu,lieu in the Montgomery offic e. Phone (205) 834· 6S00. K.. rl R. MOOT practices in the Washinglon. D.C. office. Phone (202) 269-0387. THE ALABAMA WI.\VYER

Hel m. ln" Lyo n • • Sim. '" Ln.ch announces that Chari.. H. Dod..on, Jr., forme r drcuit judge of the Thi r· teenth Judicial Circuit. has become a member of the firm. Th. mailing address i. P.O. Sox 2767. Mobile. Alabama 36652. Phone (205) 432·5521. Maynud , Coo, .. , Frltr.on '" Cole annOunces the ret iremenl of Mtaclt Friel"lOn, m and the finn'. n ..... name i5 Mayn a rd., Cooper '" Cale, The finn al9J anflOUnces that J."th" M. Don, Jr. and Alfred F. Smith, Jr. ha.'e become memb-e .., and Dono L. Thr..her and Lutlnda p, Co le have become associate. of tho form. Capouano, Wampold, hut .. ood '" SaRlone announces lhat Lindo C. Smith, fo~r law clerk to Han. Joel F. Dubina and Hon. Kenneth F, Ingram, has b.come associated with the firm. Her mailing address i. P.O. Box 1910, ,"1ontgomery , Alabama 36102. Phone (205) 264-6401. "'.mb uc hl , Jac"'on , DeMouy, C~, Hoh., .. <Ii He,"",. announce:s that William. Sleele Holm • ." II has berome a mo>mber and J amu F. Wal· kin. and Hodney H. Ca te ha .... beC(l!llt a.sociated with the firm. The mailing addren i. 1300 AmSouth Center, P.O. Box 29(1, Mobile, Alabatn/l36601. S immon ., Brun. on '" McCain announces that Hebttu Ann Walker has joined the firm as an associat • . Offices are located at 1411 Ra inbow Drive, Cadsden, Alabama. Phone (205) 546-9205. J. Hobert Faullr, Da~ld A. McDowell and T.O. McOo_II, Jr. announce the form.l.tion of McOo_II, Fau lk '" McD o .. e ll. with T. O, McD o .. ell becoming of counsel and Cynth ia A, Talley, forme rly associated with the firm of George P. Walthall, Jr .. becoming a partner, Office. are located at 145 W. Main Str«t, Prattville, Alabama 36061 , Phone (205) 365·5924. Mar.h, 1l H. Sim. annOunces that ~,lIe S. Ennl. has joined the finn .. an asJ;ociate. Officu are located at 1II North Cllalkville Road, Truswi lle, Alaba· ma 35173. Phone (205) 655·3289. H. rrl ., Eun., 8erll, Morrl . 6 Rolin. announces that Jefhey K, Hollia, fonner I.w clerk to Ch ief Justice E. C. Hornsby , Jr. of the Alabama Suo pr~me Court, and St~,h en J . Bum,... ner have become a5.ociated with the THE AU\BAMA Ul.WYER

firm. Oifice. are located at Hi.toric 2007 Building, 2001 Third Avenue No rth, Birmingham, Alabama 35203. Phone (205) 328·2366, Puker, 8r.ntl ey '" Wlikeno n

announces that David A. Thom.. has joined the firm a. an associate. Offices are located at 207 Mon\gomo>ry St reet, Suite 1200, Bell Building, Montgomery, Alab.ama 36104. The m.l.iling address is

Alabama Law Foundation Awards $1,000,000 in Grants by Tracy A. Daniel, executive direc/ar The Alab.ama Law Foun. dation awarded $1.000,000 in grant. of IOtTA funds for it. 1993 grant cyc le. bri nging the totol awarded since 1989 to $4.130.498. This is 20 percent less than tht $1,250,000 awarded last year, but was necusi. tated becaust l~r inter· est rat .. have brought about a 19 percent de· crease in revenue O'Vtr last year, Our IOLTA program i. actually faring better than othe .. around Ihe nation. Some prog ram. have sten revenue dT\l!l a5 much as 40 percent. John Scoll, lrusl... 01 1M Alabama UJH> FournIoliot!. Ewn though income i. p.-uer>l. Q gtrml chock 10 M.linda Waler<, dirw:tflT 01 down, the foundation Was 1M AJabamd SIal. Bar VoJUII/ew /Au'!f'!fS Progrom. st ill able to awa rd more than four times a5 much .. it awarded;n 1989. The foundation r.eei.... d 59 requesl$, totaling $2.000.000. and funded 33. All grant reque.1$ Were deseJ\ling, buI th.r. simply was not enough money to fund them all. The foundation again provided funding for the Alabam.l. State Bar Volunteer Law),,,,, Program, tho Mobile Bar Association Pro Bono Program and tho Mont· gomo>ry County Bar A.I.sociation Pro Bono Program. helping to ,uppOrt 1M ""l· unteer efforts of attorneys throughout Alabam •. The .tate prog ram, admin;ste,..d by Melinda Wate .., has begun referring ca.ses in S('Veral counties and is currently rKruiting la~T$ to participate in the Birmingham Bar Associ. ation Volunteer ~T$ I'rogram. Mob ile'. program dosed 1,008 cases last year. The costs of administering the program ""'''' just O\",r $57,000, This works out to a 00$\ of $51.15 per ca.se closed, which is below tho national " "'rage 01 SI61 per ease closed for pro bollQ programs. The Alabama Capital Rep .... ntation Re9Jurce C\'nter rccei ..... funding to help continue its operation. TIlanks to the Center'. work, IlQ attorney appointed to handle a death penalty ease has to gowithout .upport in his or hor .fforts. I",gal SeM en received funding to continue its projects through which the foundation provides funds for attorneys to handle domestic cases, pritn/lrily those in"")ving abuse. The foundation also continued its suppOrt of counl)' law libraries, The Alabama Law Foundation is grateful for the support it .. coi .... s from attor· ney' participating in IOLTA. Without that support, lllOSt of the projects funded by IOLTA would not otherwise have existed , •

May 1993/ 149

P.O. 80x 4992. Montgomery. Alabama 36103-4992. Phont (205)265- 1500. Han'. ""......11, Becltole, C"a.., iii; John.lon announce, Itlat Fo"tU C. WIiMn. III. J"illh L. "eMil lin, WIIlIa ... B. CI_han, P. R_I M,ylu, BrI.n P. McCart..,.. and Wallu T. C ..... u. J~. t1aw bKomt mtrn.bfn at Iht finn. Off.us;m mtfd 113000 First NiliaN.1 &11k Building. Mobile. ~. ~ Tho maili"ll addl$ is P.O. BOll 123. Mobile. Alibama 36601. Phone (205)

432·5511. WIIiIa. J. Free .... and Ja.u L. H _ moounu Iht Optning of tlvir firm. F.ee .... iii; H.o •••• al Suite ]623.2 12] Eighth AV!1lUf. North. Birm· ingham. Alal>arruo 35203. Phone (2051

l23-3OJO. L •• b. Buddll iii; Plowen In · nouncu tlut HaM")' P . Hall , II hl.! joined 1M firm as an associate. Tho firm has remtfd to 209 West Main SIr«I. Ootlun. Alal>.!rruo 36301 and Ihe rruoiling addreloS is P.O. Box 1165. Dothan. Alaba· ma 3631J2. Phone (205) 792 ·5157. Yta~O"I, "ytn iii; Traylor In · nouncu that Mlchul W. Carroll and Howu' Ylel'lnll Do"ney have become associated with the firm, wilh offku at 2700 SOulhTTu$t Tower. 8irm. ingham. Alabama 35203. Phone (2051 326-6111. Blattke... hlp, RobhlMII iii; Rhod •• announces i diviJion of Iheir firm and Ihe formation of Blallk .... hlp iii;

llh od u. phone (205) 517· 15S0, and Charita C. Robbuon, phone (205)5] 71500. with both offices located it 229 East Squa~. Huntsville. AlWma 35801. Joel S. ROil..... m and Dale Rowe Wa.,l lIlnOWlCe Iht Mrffiition of a partnership. Offices iTe located at 407 ~ &m Road. P.O. IIoJ 1580, Clanton, Abobama 3SG'5. Ph.>nr (205) 755-7880. Calnn , Calnn iii; C.lnn announces thlt Mlrk A_ Run has bKome a mtm~r of 1M firm and Iht firm ', n.w name will be C.lnn, C.I_.. Calntl • Rueo. Offices a~ Ioulfd il 127 North Str«t, TJ.1l11kga. ~ 35160. Phonr (205) 362-2386. Stl~. Joh ... ton iii; Trl_ anoounces I ~ in Iht finn's rwnt_ It will now M knolO'n iii J a hn . lon , Tyl,pe • B......... Plrtners of the finn iTt A. Eric Joh ... lon, Allan M. Trl,... and H~, D. Brown. Tho addrns ~nd phone num· ber umain Iht same. John M. Creen, formerly with Helm· ling. Lyons. Sims .Ii Ltach in Mobile. Alabama. has relocattd. He is now with Bladrard, Pitt. iii; Mu."hy, P.O. 80x 1027. Brentwood. Tennesste 31021. Phone (61S) 370·8900. Arm.I"'IIIIl, V,ullhn iii; Siein an· nounces that J.m.. M. Sc.oU;I... has become a member. and the firm name will ~ """"1.01111, Vauthn, Siein iii; Scrollilin •• Offices or. located at The Summit, 29000 U.S. Highway 98. Suite 305, Jbphnt. Alabama 36526. Tho mail-

Daniel appointed to National Conference Board of Trustees Traq A. Dan~l. dirmor oflhe AlabimIo Law Foundalion. Inc .. was recmlly iJIIlOinlt<.! 10 Iht NlIliorW Confennet of BIT Foundalion< IIwo rd of Trustees. The appOintment W1lII: at the mid·year mttting of lhe Arner.

ian liar As5oNlion. Tho NCRF was atablishtd in 19n. It is Ml indtpen· dent. 1IOIunllory OTJImi:Llotion .ervi"ll both Cinadian law foundltionJ Ind hIlT foundltionJ in the Unit.d SlIoles. The NCDf" assilU ill memben by providing a medium for the tlchanlle of Idea, and inforrruotion nlaltd to foundation rruonagemtnt, TJ.isinll and allocating funds. dtYtiOpin8 public .erviu proQrams, and lCOOITIplishing law-relatfd service objtcti,'tIi. Oaniel rtc.iffil her urnltrgra~uate dtllrtt from HUntinllOOn College in MontII<Jmcry. Alabama and her MBA from Auburn Uniwnily. She has been director of the Foundation since 1987. •

IS0 / Mayl!l93

ing addr • ., i, P.O. 80x 2370. Daphne, Alabama 36526. Phone (205)626--2688. Dul" S. Lllhr, formtrly 01 Luker. Bre""... Shorn. Umst.ad &: Er$kine. announces the formation of Dul' S. L.um- iii; .u-I.le.. .Ioini"llthe finn as associates a~ C. C"Ptl' Wltll •• J . Wllll .... Cole, and C)r1Ilhla Foraan Wllkl ... oll. omcn will be 1000ated il 2205 Moni, Avenu • • Birmingham. ~ 35203. Ph.>nr (205) 25106666Sirote iii; Pt..-.ull inroouncn that W. McColl... Hako_b, B ....ley J. Sk l ar, Tho . . . C. Tull e n . Jr .. Anthooly C. WIUou""" and Pelff L. Low. J~. haw btcomt mtmbtrs at 1M firm. Anodit., I • • Willi •• T • •• Carl"le. B""I L C..... 'IOD. Waada S. Mdlell and Mel .... C. WIIDberley. AJ. Col•• a n and Joo R. Sedlak iIloounce the fonNtion at COIt: .... n iii Sedl.... Offices a~ Iooitfd at 115 }ohn. ston Slrttt. S.E., Suile 203, P.O. 80x 1685. ~tur, Alabama 35602. Phone (205) 353·68~. Rlch.NI C. D"ell , III ~nd Paul J. Spina. III innOUnce the formation of 0".11 iii; Spilla. £dlth J. S.hau~11 has become an aSlociate of the firm. Offices art Iout.d at One Indtptndtnce Piau. Suitt 600, 8inningham. Alabama 35209. Phont (205) 870·7900. Hoko .. b, Dullbar, Con .. ell. Chafiii; Wlllafd anllOUncn that Sle,h.u lIkDa.ld has bKomt an associate with Iht finn. The finn has rM Ioutions in Mississippi. Phont (601) 234-8ns. Sehoel. 0111 •• BeIlIOIl iii; ~lIt.no .nnouncn that Melln.a M"y,hy Dlon ... tw bKome a mtm~r of the firm. Tho mailing addrw is 600 Fi...... ti.l Center. 505 North 20th Strut , Bi.mingh"m. Al"b<orruo 35203. Phon.

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(205) 521-7000. J. MI_ announces that Joh .. L. Obu".kl . former law cluk 10 JudgH Lynn Bright. Silly CTftnNw and Craig Mille •• is now ill associate with Iht finn. Tho mailing addr"" is 458 Soulh La-...·rtncc Street. Montgomery. AlabimIo 36]04. Ph.>nr (2tl5) 265·6200. Roblll.on . A..... In lu .... u an · IlOUroctS that WIlliam S. DoUon. Jr.. fomtrly with M~ymrd, Cooper . .Ii Cale. has btcomt associaled with Iht finn. The TN.ilinll add~1oS is 2200 Woor.lc~Jt 1'1act. P.O. Box 530510, 8inningham. Alabama 35253. Phone (205) 871-4500. •

THE ALABAMA LAWYER

THE LEGA L SERVICES PROGRAMS OF ALABAMA V'l'terully acknowled,e the many Lawyen, firms and individu.als who contributed 10 the first Fund ror Equal Justice campaign. Y(OJr support has cncourJ.gcd us and will help us in (OJ' aoaJ ofmakinl: ac:ces& to ju$lice. reality ror Alabama', poor.

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THE Al.I.llAMA UWYER

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May 1993 / 151

BUILDING ALABAMA'S COURTHOUSES CHAMBERS COUNTY COURTHOUSE BII SANUEL A. HUMOR£, JR.

The (ollowing continues a history of Alabama's «Jun/I! courlhousesIhei' origins and some of the people u'ho contributed /0 Iheir grow/h. Th~ Alllbarml I.IJuyn plaru /0 run one COWl· Ill's stQry in roch issw of the magazine.

ff goo have 0"11 photographs of earlll or present cou rthouses, please foru;ord them f<): Samuel A. Rumore. JT" /lfig/ioniro & Rumon. 1231JBroom Marx

TOW<1T. Birmingham. AlalxJma 352/lJ.

hambe .. County i. another

Alabama county created from the Creek Indian lands c~ded to the $t~te by Iht Treaty of cu ... t.a. In f.cl, the vill~ of Cusseta is physically located within the bounda'ies of Chambeu County, The county ,",'as .,Iabti,hod Decemb •• 18. 1832. It was named fo. Dr. Henry Cham· bm of Madison County.

Chambe'5 Wa.!

natiw Virginian who

calM toAlabama at the age o£22 in 1812 ~fter studying at the Collegt of \\'illiO\JJl and Mary and the University of Pennsyl · v~nia Medical Department. He Krve<.! as a surgeon on Andr ...... Jackson's staff duro ing the Creek Indian War. Later. Cham· bus grew wealthy Irom his medical practi"" and attained great r"'peet in hi, community due to hi' civic endeavors. Politics soon became his passion. He ",as a membu of the 1819 Constitutional Convention and serve<.! in the 1820 Leg· islature. In 1821 and 1823 he ran for Governor. I~ing each el"tion ""rn;M'ly to the win""r. Israel Pickens. In 1824. he se rved as a Pr.. identia l elector for Andr"", Jackson. In 1825. the Alabama

152 / May 1m

Legislature elected him United States Senator. En route to Washington to MSume his offiu. he stoPPl'd by his boyhood home in Virginia. While there. he ",as struck try an illness and died suddenly on Jan · uary 24. 1826 at the age of 35 without ewr se"'ing a day in the U.S. Senate. He was buried in the old family umetery. It is ironic that Chamber. was suc· ceeded as Senator by his old political nemesis. Is rael Pickens. who likewise took ill on his way to Washington. Pick · ens never fully recowred and resigned wilhin Ihe year. In all of hi, Alabama political activi· ties. Chambers was considered a leader of the ~rful "Cro'llia faction : hav· ing followed in the professional and political foo!>te!» of William Wyatt Bibb.

the first g<wernor of Alabama who had migrated from Georgia. It wa,. thus. appropriate that a n...... oounty formed on the Georgia border should be named for the prominenl physician and early politi. cal leader. lIenry Chambers. An organizational election took place in Chambers County on I-breh 4. ]833. At this election Dr. Thomas C. Ru"",11 and the brothers Halet.. and James Tay· lor were selected as courthouse commis· sioners. Their task was 10 Klecl a place for the permanent county seat ... ar the geographical center 0/ the county and to construct a courthouse for the newly formed county. The .ommiMion took its job ,eriollsly and selected a site in the wilderness on a ridge betl<~en the Til· iapoosa and Chattahoochee rivers. Meanwhile. lhe first cirellit .ollrt was TIlE ALABAMA LAWVER

hrld April 2(1, 1833 at thr home: of. CapWn Rutu Taylor, one of. the courthouse rommif.sioncrf,. Thtre wtrt no c...e to try, bul a grand jury was ~ in and rttiud 10 thr lhade of l big OIk tUt. Thry mum«! .. Itw trot bilb and thtn ~mtd.

Tht rommiuloners orotm!

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0( the county _I location lind StIli pub-

lic Jalt 01 loti lor Oct~r 22 and 23. 1833. Tht lots sold fur good priCt., and tht commilllion ruliud $ 15.7()3 fur tho N.lt 0( the 92 lown loti. Th. county Jut town was originally call~ Cllimbmvillt and thtn Cl\amb(rs Cou rt Boun. In 1835. tho n.1m. was cllangtd to LaFI)/i'lIt in honor of tht frtnth gtntrll lind Amtriun RevolutioN.ry W/lr htro who visit.d ALlbII"", and Ilad ditd thr y&r brfort. A ttmponory courthoust "'"lIS built of split pi .... k'III on tnt lilt thot thr county IUfW)'Or hlod Kltcttd for tht Yd-to-ht built county jail. This log structure ,,-as Z1l ftd square and, whtn not llKd for public bUlintll, It~d u .. mo.ting platt (or local dtnominations until they could build Ihtir churchu. This t.mpo"''1 building was uKd until the court· houst was compltttd. and thtn it was sold for S 15 md relllCMd. Tht counly commi , lion ... mado .. contfilCt with Joshwo S. Mitd.. lland Bmjamin H. Cirnmlf1 on ~ 24. 1834 !of thr construction 0( I courthouse and jai1. Tht oontrxt _ quilt SpeCific._· ing thot tht courthouK..,... 10 11>.,,. tilt qUllity lind lppearlnce of the Troup County Courthouse II nearb» UGrangt. Cto rgii. This building had botn tht rteenl work of Camtron. Th. coUrthOUH in Chambt" County was &0 f«llong by 40 f.et wid~. It was a tWO-Itory brick struetur. constructed in tho Cr.ek Revlvllllyit. Mitchtllind

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THE ALAIlAMA LAWYER

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Cameron wert paid $9.500 for building the courthouse M'od $4.500 for building the jail. Btc.IUH mort than enough coo· struction money Ilad botn noised dut to thr Jalt Ii town lots. CII>.mbm County woos. ptrNp$. the only f;OWIty to how its courthouH and Jlil co1llll1tttly paid for witllout tho ntctU,ty of ilJUuing Iny

This Chlmlle~ County Courthouse also has a few interutinQ distinction~. First. tho buHdmltntw tl>t)o had. good duign and this courthoust was duplicat·

Hl>t",/< """"' dol.il> Ih. lHgiMing, 01 tho Chom6m CoomI, "",,,_.

td in three otho. ~ountiu of AI~ The eourtOOuHS III TalllpOOoJa. Maron and Rlndol~h count, .. foUowtd tht idtntic.at plan Ii tilt Chambt" County

C...,,,,",,. NeJt, the cOUrthollK conlDct calkd for iIJ complttion with,n 25 """,tho or by Ju .... ]836. This dad!i ... "-as not mtI Ind tht cont.act was not compltttd until July 1S37. Tht build . .. were not pt~]j~ed, howtvtr, lieu ..... they had a I~Qitimale excust. Wo.k was stOpped due to the fndian uprisings in 1836. The Indians had lost thtir truty-awudtd lands lor ridiculously low prien dtw: to the u~rupulou$ action of U rlilin white men. An insurrtcUon rtsulttd. tnding with tht rt~ Ii the Indilns ~ Ii tht Mississippi in thr fill of 1836.. fi~lly. lilt Chimbers County CourthouH ..,... located in I unique "","ition. Tho county sut site .tiU on i . idge between the TIIIII~OOil and Chitta· hooc~ riYtrs. Rain flitting on thr~· em sidr 0( the rourthouK runs off into tht TlIllapooou River. Rain falling on the easttm side finds ils way into the Chat· tahoocl\«.

Vuiow Improvtmtnu of the courthouu grounds were midt o~er the )'firs. On Stptembtr 25. 1848. tht coon· ty cootrxted with hmes E. BLInd for. fma to sulTOUlld thr court square. Tht mclo$urt rould be tntertd only I t st.", owr tho ftnoe located in front of thr foo, outside doon of tho lowe. story 0( tht courthowt. Thf cost ofthi$ contract was S2500. This awkwud , ..angem.n! was removed in Novemhtr ISS7 whtn tht ste ps were replaced by gatu and a wrought iron fenet. The fence was purchntd from tht Vall ey forgt and Foundry of K no ~vil1t, Tennus.. for $475 and it rt~lletd the prior woodon riiling. This fenet wu Iltt r movtd to tho LaFlydtt Ctmetary ....htn tht .... ~t courthowt was buill. The 1837 courthouK was of solid c0nstruction and HMI! the county wtll !of 62 1Urs. Ex«pt for routine painting M'od ITWnt.lIlr'IU. roo ~ rtpai" ""'rt _ . undtrUhn on tht building. Slill. in 1899. a dtci$ion wu made to rtplact the cou rthouse. The principal rtason was lilt need for ~aults to adequately protect the county recorlU. The Chambtrs County Commission soughl tht Hrvicu of J.W. Golutkt of tho archiltttu r..1 firm of Coluckt and Stewart in Atlanta for tht design of I nrw rourthoule. Coluckt atoo designed tht Cllhoun Counly Courthouse at iIboul thil Janlt timt. Phil Ytll/tr and Company. Buildtrf,. compltl~ the tonstruction. Tht fint IeISion 0( thr circuit court took pIact in this building on Janulll'y ]6. ]900. ThillN:Wt$t CII>.mbtrs County Courthouse ;s .. two-Itory rod brick structurt with limutOlN: lrim. It has four match. ing f~es and fOIl' identical cupolas at each comer of the roof. In thr center of tho roof is an tlaboratt domt "'hich con· lIinl tht old clock rfmovtd from tht prmow courthouse. On topofthe dome is I SlllYt of JUJllct. standing today without htr kilts and without a .-...ord, bul with I wuthrrvant ittachtd to her

""'.

This thi rd courthou ... building cost S30.ooo. Iii ilylt ;s gene rally turned ~e Ecltctic'". Difrtrtnt windoo..-s txhibit differing archittttu ril influtncn. ranging from Creek Revmllo VICtorian, and other stylts can bot Si'en in various archittctural tl.mtnts throughout tht structurt. May ]9931 153

Th e result today is that the Following World War L an oak Chambers County Courthouse and hu WM planted Qn the courtlxllI'" it. surrounding historic square js lawn. This oall came from the one of the most intact and .veil-preArgonne area of France where many serv ed of any in the stat •. The Americans fought and died. It wM majority of the buildings on the dedicated to the memory of the men square were constructed between from Chambers County who gave 1880 and 1920. and a large number their li,·es in France. The tree died of of them ret.in their original look. disu,. in 1912. but the ne.! year Th. Chambers County Courthouse local veterans planted a jIOung tr •• Squart Historic District was entered which was a dtscendant of the origi. in the National Register of Historic nal. The living memorial continues. Places on March 27. 1980. Beginning in 1959. under the As a final footnote. Hollywood leadership of probate judge 0.0. wne to LaFa)"ttte in 1988 because Alsobrook, the <:<Junty began a long· of the ..-ell·prestf\"td rustic <:<Jurt· term restoration and maintenance square . The city was ch_n hou", program for the courthou", . first. ujy """'" atWlJ ;" AJIlhamo. ~ Coimll _ origi. as a major location for filming the roof was repaired. Then the MIt, 1M ,il<'" "" m.i.." duiliulion. the movie 'MiSSissippi Burning". wiring system was ,"placed. The Thus. the cit;~ens of Chambe .. building was sandblasted and a coat County realized a tangible and econOmping wans and woodworll. repainting of silicone was applied for waterproof· ic benefit from the prestMtion of their and then replacing old noors. This work iog. lntorior reflO\lation proceeded over rich Ileritage. • procw.lW .Iowly room by room. the next ten~. which included strip-

NOTICE TO MEDIATORS With the adveot of the new Alabama Civ~ Court Mediatoo Rules. effective August 1. 1992. mediation has boon officially appo"oved for use by our state circu~ courts as an ADA approach to settlement in the litigation process. As a resuk. mediators win be rreeded to assist the courts in this new procedure. The Alaoama State Bar T8$k Force on Alternative Dispute Resolution is wO<1<ing on the structured implemen· tation of mediation . We are developing recommendations for adoption of (ll a Med iation Model wrth instructions. fQ(ms. ete., (2) standards tor state court mediators. (3) med iator training programs. and (4) a system of central coordination. management and control of the mediation effon, which includes maintaining a statewkle listing of mediators.

The task force is in nsed of an "inventor( of our state oar liooosed attorneys who are either trained mediators. through instruction andlor experience, or prospects for future mediator status. Wh ile state court mediator status will not

be restricted solely to licensed attorneys. we are focusing

in~laIly

only on this group. Other lrained profession-

als. such as family counselors. will be conSidered at a later date. If you are a present Q( prospective mediator, please send a letter with your name . address. telephone number and fax number, with a brief summary of your mediator status (e.g .. 15 years· experience in domestic re~tions. American Arbitration Association certification. or prospect for training) to :

Center lor Dispute Resolution Alabama Stale Bar P.O. Box 671 Mor>tgomery, Alabama 36101

Upon receipt of your letter. you will be mailed an applicaton fQ(m tor med iator status. Marshall Timl>erlake. cl1airperscn Task Forca on AlfematiV6 Dispute Resolution

154 / May 1993

THE AIABA.'1A LAWYER

{rican-American lawyers represent a growing percentage of the Alabama bar. Three hundred thirty-six black lawyers (3.3 percent of the bar) now practice law in this state, up (rom 250 (2.8 percent) in 1988. This issue of The Alabama Lawyer exami nes the experience and contributions of Mrican-American lawyers in Alabama from several perspectives. OUT first art icle profiles what author Raymond L. Johnson, Jr., a lawyer in the Birmingham United States Attorney's office, calls black pioneer lawyers - those Hving individuals who first broke the Alabama bar's color barrier and won major reforms for clients challenging segregation in th is state. A second article by ~lontgomery lawyers Cynthia Clinton and Anita Kelly focuses on another segment of the bar with growing innuen.ce: African-American WOffifn ..... ho are attorneys and judges in Alabama. Finally. Judge Ken Simon, a black circuit judge in Birmingham. has authored an arti cle describing an overview of jury trials. TIlE AU.BAMA LAWYER

~lm / 155

AFRICANLAWYERS BLACK PIONEER LAWYERS IN ALABAMA -

LIVING LEGENDS By RAYMOND L JOHNSON, JR. The history of living black legal piol/Mrs in Alabama is also the history of/he civil rights movement in Alabama rmd America. The strategies employed bllthese attorneys were the main (orce in shaping what Dr. Martin Luther King, Jr. later termed, "The Droom." This article explores some of/he experitmces and accomplishments oIbfack pioneer lawyers in this stale.

though he ~r coosickml becoming II Mrr complt1ing gr.lldf Khool in AWwna "nd Itis o,mdorgrllc"llIt. oI.""i.. it TJ.lladfjp CQlltge in Talladeg,ll, Alaba· ma. he ..... nt on to ob\,)in Itis law dogl'fe from H~rd Uni.... rsity Scllool of y,.", Durinll hi' ""trkut~tion ~t Howud, Justi,. Adarru was ;n~uenctd by great legal minds and architects of constitu· tion,,1 and civil rillhh law such u Charles Ibm il ton Houston, Dun Willilm Hast i•. and Judlle SpOtu ...'OOd W. Robiruon. As lIlaw studmL he would frequen tl y like" bUI 10 tho Unitod 5 111'$ Suprtme Court 10 walch orlll "'lIumtnu in CUts Mlor. th. Court. On. "'lIument tlut he vividly reulls ....as Morvan II. Vi'l1in;Q' in wlticlt the Court upheld the powu 01 Congren, pun wont 10 the Commerc. Clauu, to prohibit !'Kill discrimilUtion in the US< of interstate comlmru. The day before oral argument to the Supreme Court. the plaintiffs' il!orneys argued the case

..... tlc. OK.' Aams, Jr. JUlli« Ostu ~nu, Jr. was inspired to M I bW)'H by his blhtr. J notod publislle r ,nd OWMr of 1M Birmingham

Rtportu. Crand Chnctllo. of the Knights 01 Pythiu, and Eucutf>.ot S«~ IlIry 01 the A.M.E. liOfl Church. M I ~, Justice Adlrn$ was I'rtqumtly dlalltngN

fither 10 discUlS. il tht family dinnu I,bl., in , lawyer·lik. fashion. imporbnt civil rights issues. At the nrty ~ of 12, Justice Adams d.cidt<l to go to I,... school and become a lawyt:r. ai-

by his

156 / Mayl993

before the senior Ilw school dan It Howllni, Stl«ted senior cl_ studenu ultd Suprrm. Cou rt JlUtk .. lind asked the IIIOrMyS difficult Questions tlul they IInt ici P/lted the Court might lSk the nut diY, This uch"nge with Howard law studtnu ~nd f~culty ....ill! a toml1l(ln p!'Klice for civil rights lawyers who had cues befo .. Ihe Sup reme Cou r\. Oft.n Juslice Adams would also visit Justice lIulio BllICk, sinct JII.tic • Adams' flother wu a good friend of Jus.tice BIIIck'.. Juslkr AdoIms' IlIlher encouraged his S(lfI to rttum to AJabama to help ~ the probItms b~ks f-.l lit home. Jus· tice Adams ~ied \0 like the AIabami bit tum. bul he WlIS not lISSigntd lin OUminilion number or lIi .... n permi s· sion to sit for the tJC<tm. A wet'k befo.. Iht har tum, in dnptution, lustice Adams calltd Douglas Arant. a whitt BirminSham attorney and acquaintance, who was on tho Chincte. and Fitness

THt: AIABA."'IA lAWYER

Commime of Ihe har. Justice Adams inQuired ibout lIM: delay and uprwed his COIKtm about rumon Ihill the haT mighl not wanl anolher black Il~r, since Arthur ShoUl! WQ alrndy a black practic:ing attorney. According to Justice Adams. Arant personally called the 5tCrttary of the har and demanded that Juslice Adams immed iately be given his eum number. The nut diY. Justice AdIonul/Ol his tum number, ""Iiof' and ~ the AllI:wna bar. At thai lime. th. only othtr black \awytr Ktiwly practicing law in Abbima wH Arthur Shores. Justice Adams fre· quenl\), calltd upon Mr. Shorts for lepl advice. He al5Q recall!; that he had wry good relations with whili! members of the Alabama bar. His practicefOCUSfd on rollections. real .,!.ote. tort and problte

It WQ not until !he middle 1950s thllt Justice Adams beg"n handling civil righ ls cues. Justice Albms painfully rtmer'llbtn having to!Jy his QStI brion ,,1I·white juries. because only a token number 04 blackJ ~re on the jury wnirt and moll white pro,ecu lors and civil attorntys ~omrnonly .truck bl.\cla from the petil jury. which lessened Juslice AdIonu· chllnces to win jury trials. ConK· quenlly. he would only try ~ tUU thllt he was sure he would win. Today. the ~ 01 striking blacks elf 01 juria hu not complde\)' abaled. but wilh the rtcenl BallO" ruling.' allorMyl (In "ring a bell" and the problem un be rermdied. Justice Adams maintains that now, u a justice on the Alit'aml Supreme Court. he i, sensitivt to Btllson type complaints. Justice Adams humorously I'fQlli an incident that (lmJrn-d in tilt mld-l9S0s btfore J~ Oliwr Hall. a white iu. pruidlng over the old Birmingham police court. ~ courtroom _tiOil WQ segrepltd, with blackJ mjuired to Ilt on one si de of the court room and whit .. seated on the oppo$ite ,id•. U\lWtV!r, it wu tilt; pr;>etice of black la~rs to sil behind the rail 00 any sido they wanted. While Judge I-bll was tryiOll a QK that preceded Juslice Adams· ClOse, Justin Adams Ht on the ...... hit. sid." of the COurt room. Judge HaWs bailiff ap· proached Justice Adams lInd uktd him to lit on the "colore d side." Justice Adam, liked, " For what roason?" The bailiff ruponded by telling JU5lice

Adams about the stgl'fgition law. Justice Adams told Ihe hailiff thit he did not know lOnyIhing lObout the law, and it did not <lPJ)Iy to him ~ tinct he w.. an .tlomry. ~ bailiff .pp!'Oo1Ched the bench and whispered to Judge Hall. t.ater. when Justice Adams. acting as I special prost· cutor. got up to handl. hiJ case, Judge Hall -aid. only partly in tIomts\,"1 undtr. 5I.>nd you WQUIdn·t obey tIv bailiff whrn he oWtrd you to sit on tilt roIortd side.." Justia AdamI mpooded that he did not know the segregalion la .. "pplied 10 Iawym.. Jud$ Hall replied, "So you did diJobey tilt b.tiliff. You 20 to jail" Justice Adams wu Irruted and taken to jail. Later. he was brought biCk into the courtroom and JudQe Hall .. ked him if he want..! to PU'llt himself 0( contempt for disobeyillll !he b.tlliff. Justice Adams asked. "An YOUllOirlll to try me for em· lempt?" Judg. Itall Hid yu. Justic. Adams -'<rd Judit Halllof' llow)oer, and I halleTY of Il~n .. ho .... re ntuby stood up to reprtitnt him. ~ trial for contempt commrnced and Justice Adams found himself chalienginQ the Birming. ham ...gl"tj/ation 1.1... Justice Adams >II)"> thllt he WQ prtpartd to appeal tilt QK. if he wore convicted. to lhe United Satts Supr.me Court. Hoonver. during the trial. Judge Hall apparently paused and rdltdfd on the morrnity 01 !he iuue. H. told Justice Adams that since h~ .. as tlltre for a l.gi!imate court QK. as a spe. cial pros«utor lInd not to create a test cue. he would diimin the charges against Justin Ada!1\$. ~ral years later. aft.. ~ of the 1964 Civil Rights Act, Justice AdimS ~I!; having trooble IIOttiOil admitltd to the Binningtwn IlIr Association btco .... it rdustd to KaPI blKk ~ Again. Justice Adams called upon his ally. Dou· glas Arant . ....no intefVC1ltd and I!OI Jus· tice Adams admitted II the first black lawyer in the Birmingham b.tr. While in pr ivate prac t ic~. Justice Adarru. along with other Alahama law· yers. represent.d Dr. Mutin Lulher King. Jr. in Dr. Killi's civil disobedience usu. Justic. Adams also handled a numbrr 01 civil rights school desegre· gation uses. including Arnulrong D. Boord of EdU«/lkltr of /". Cilll of Birm· ingham. SlWI ~. Merson Cwnlll Boord of t·ducalion. and othe r such cOlIn in F:towah County, Besseme r. Lawrence

County and sew:ra1 other cities. His law finn, Manu, IlIIter &: Clemon. 101 local counsel for the NAACP fA&al Ddense Fund, toolc On major employmtnt discrimination castS ag,Jinst United Satu Sttel. American Cast Iron Pipe Compa· ny. and Pullman Standard Manufactur· ing Company (recently settled with a substantial.ttorney f« award). His firm _ al$(! imookd in Title II public ~. modation. voting rights. and housing discrimination ases.. Today. U.W. Clem· on. _ 01 Adams' formtr partners. Is " United Satts District Court Ju. for the Northern Distrkt 01 ALlhama. James B.II<er, the firm·s third partner. rKently rttired as city morney for the City of Birmingham. Justice Adarru says th~t, in his view, the number of black lawyer' today re· flects the signif..:ant progreJ.! 04 blac~ in the legal field: ,,·hen he sarted hil prxti«, tlltre ""'""' only two bIKk IlIor· ntys (Oscor Adams and Arthur Shores) prxtking law in ALlhama; today. there art _ral hundred. Bul. he is quiclc to add, the p.rcentage of black I~wyers lal'proximalely 4 percent) in the bar is stiU wry low compa.m1 to the t01.:l1 number 04 lawyers in the Sl.:lte. Other signs 04 progrtu. Jmtice Adams comments, au more black judgu and pn'lSCCuton. He further indicatu that bl.ldc "nomt)'S Irt btlt.r elf today than they used to lx, but far from where they oughllo Ix.

OrQl\ .1111"9."" In March 1953. a YQUnll white Selma -..oman telephoned the polke and told them that loht had bttn raped by " black man during the night. She ""id lilt only saw his tyts. I:\n:oU$l' he .... wurirlll a nwlc.. In April 1953. the daughter oIStI· ma's mayor uid I black man assaulted h.r while she was asl.ep. Th. mayor", daughter reported that .... could not He the a!tlCker'l fact because h. h~d a towel wr~pptd around his head. She said May 1993/ 157

thlt she fought him off ~nd he r~n . Whitu in ~Im~ .... e. e in an upron. Bu..:k nIIlf:$ in SdlN _ ~rrnttd ~ quulioned II r~ndom . A couple of months ~er this incident. a blade nIIIl rwntd WilliMn Fikn .... armltd, ~ after lnteniM: in lerrogltion. tho: pOlice tlllimtd lhey hid II confession. During the Irilll of tht .~pt of lilt first .... hite woman. Mr. Fiku "'" rtprtWnttd by /I whitt Ittorney before an III·while jury. Mr. Fikn wu identified by the victim bawd on his eyts. hi s voice and his con· felolion, and Ilt was stnlenced to prison for 99 )'Un. For the stcond trial. involYing tht rT!:/I)'Or'l dllughttr. tilt NAACP sent Birmingham IItto rntys O.. tll Billingsley' and Pmr Hall to rtp~t Mr. FikH. Mr. Billingsley was llnother fiuy IIctivist Ind /I Howard Uni~rsity

u.... .nd..... te. tit mel M•• Hall.."rt tho: first blade 1I1101'l'1t)'S to try I a>oI! in DIll· Iu County. Mr. Billingslry and Mr. Hall chillengtd Fih's indictrmnt bonUM blacks ~rt ucludtd from strving on the STand jury. Thry liso chllttngtd the pUit jury, sinet no blacks had ever st~d on a Irial jury in Dallas County. The motions wert denied and Mr. Fikes WiU convicttd Ind stntenced to death. tl owevtr. bt uun 01 the argumen\J !lade by Mr. 8illingslry and Mr. H.lli. tho: U.s. SUprtnv Court O\'tTIumtd lht sec· ond conviction bec.luu tho: confession wu not vo!unllry. Mr. Billingsley ind Mr. lUll h,d INIk new Iiw rtlloting to

confwionl. Mr. Billingsley btcamt

Dr. Kina. Mr. Billingslry proudly rKJ.11I MinS lhe founder and pmidtnt 01 tho: AIlobi· IN ~mocrlltic Conference (A,OC). To· ~, this is the ~!"lIutlind oldut b~ck democratic OrJlanization in tho: stale. Mr. Billingslry. along .... ith Mr. Chesl· nut, ltd the foghtto Qet blacks in IhejUI)' S)'Item in ])alias County and oth~r Black Belt counliu. He worked hard for voter rtgistflltion and voting rights for blacks inAWwm. Onf 01 Mr. Billingsley's biggest we.ON. I<X(lrding to thox ........ knew him, was lhit "no while person could intimi· IUU him, and he could intimilUle the hell out of a ·rtdr>fd:': One promintnl blKk Abbami attorney pid, "Blacks in Al,~ma ~ Mr. Billingsley i debt of Qraliludt btauH of his tenaciow lind forceful rtp1'Utnl.ltion of bla.cks and the poor:

luding legal

a dvoxlltc for bllCk. in Alabami. He helped incorporatt rTWI)' small, pmlom· inaldy bla.ck towns in ~uch as Forkland, Roo$ewll City. Bogue Chitl.l, Whitehill, and M.mphii-Which mult· ed. Mr. Chtstnut pid, in thut lowns geUing running waler and 5On1t ~r. "Somt 01 tho: first bla.ck elected officials in AIlobaIN. wert ~rs 01 the alJ·bla.ck towns Oneil incorpOral.d: Mr. C"".I· nutSiid. When Dr. King was ~1"TUICd in BiT1flo ingham and plactd in jlil. Bull Connor aI. firs! ptrs(IrIaIly pmomttd blade at\ot"nrys from suing Dr. King; I>ownotr. Mr. Billingslry wu Ilole. ont of tho: allomrys who "'" 1I1~ to su Dr. King. Whi~ Dr. KinS wiU in jail. _nol whitt r~li_ gious I~adefllpokt OIlt ~ritiCl.IIy agai~1 Dr. King. Or. King spent his time in jail drafting a handwritten rtspOnst 10 Ihe 158 / Mayl993

white rtliQiousludtn. ...... ich he sa"" to Mr. Billingsley on his wits. Mr. Billings· ley thcn h,d the handwritt.n ih~ds typtd. Tht fUIllt of this .ffort "'" tho: funous lelte. from i Birminglwn jlil by

aruc:. Ilornton A$ Bruce Boynton, II black tloward Universily Ilw student. bO<lrd.d Ih. TflIilways bw in WiUhington. D.C .. head· ed for MontQ~ry. Alabama. he had no idu thlt his trip would sd in motion I leQil connlct thll would have 10 be rtsolvtd by lhe United Stat.. Supreme Court. and start I nightrl\llrUh stru~ with tilt ~ Slit. Bar lhil ........ ld hold up his bolT admiWon for six yorns. M•. Boynto n wlIS hudtd home to spend tinv wilh his bmily on I Christ· IN.S beTak from law KhooI. Tht )'Ur ~ 1958. At IIPPros.inlllely 10:40 p.m., I"" bw dm. announced that llItre would be II 40-minute stopovu in the Rich· mond Trailway. Bus T.. min~1. Mr . Boynton, tirtd and hunGry. Gal off tht bus, went into the termi""l, .ntt~ Iht

restaurant, sat .t the count .. Ind

orderfll a hambu~r and Ita. The waitrus Siid she would st~ him but he _lei hive to I'I'I(M to lht ·coIortd sec· tion.· When Mr. Boynton rtfused. 1It~ Irresled, tritd, convicted lind fintd by the Police J""'ice'l Court of Richmond on I chari! of unllWlullrtS\WS. Afttr Mr. Boynton losl seve,,1 lppnls in the Vi!"llinill court system, tilt Unittd Statu Supreme court granled O:'rtiofllri on I"" queslion of whether his .onviction violated the Due Proem and Equal Prolect ion Clautts of th. Fou rtetnlh Amendmtnt. Btfore the Suprtme Court, Mr. Boyn. ton wu rtprewnted by the dirtctor 01 tho: NAACP lAp) OrfeNt Fund, tho: lale Thuraood Manhall. Loter 10 be Justia: of the Unittd Stiles Sup. eme Court.. The Supreme Court decided not 10 iddress the Out Proctll and Equal ProI.edion Clause iIIuts; instud. it drcidtd tho "'""" on a mort narrow issue which it raised. wa spotl/,; whether Mr. IIo)nlon's con· viction violloltd tho: Inltrslll~ Commerce Act. The Supreme Court decided thai Stgr~Q~ttd restaurant StatinQ arranGe· menU by intt rsllte Cl.rrie ... bw or rail, did vio~le the Intersllte Commerce Act.' This decision WI.S laler ustd by James F~rmer, Natioml Dim:tor of CORE. to sbrt a new lnitilltiYt, a "Frtedom Ride: 10 chllle"", stgregated reStauranl.S in bus stations in the South. Mr. Boynlon', troubles did not end. howtver , whtn the Supreme Court dcci,u,d tht Virllinia CaK in hi, lavor. Alter his SrliduUion from Hooward. he retu rned to Alablml. lind look and Plloltd the ~r eum. Hoow ..... r. u Mr. Boynlon now tells it. lor six yea .. !hirtafter the stale bar in""sligaled the circumstances ,urroundinQ hb arrest in VirQinil;and r.lwtd to admil him, ptnding tho: conclwion of the investigalion. In 19~. Ihe Uniled Sliles Congress PII$Itd and Prt:Iident Lyndon B. Johnson si~ the Public Acoommodations Act,' which effecti .... ly ended discriminalion in 1111 public pix.,. includinS bus and train terminals. Shortly lherufter. 1'1 •• Boynton cont.acttd Judg<t John B. Scott, then stcrtl.iry of tho: Alabama Stalt Bar, Ind asked him if ht would help him obtain his Alabamalictnst. since the Public Accommodations Act wu law. JudSt Scott aGreed, got the necelolary Alabarru. Supreme Cou rt siQnaturt$ on

TIl E ALABAMA

~WYER

the license. and r,nally swore Mr. Boynton into the bar in his """ office. Later in his legal career. Mr. Boynton represented Stokley Carmichael. who was in Alabama for a voter registration drivt. While in Alabama, Carmichael was i",'OIvtd in a violent CQflfrontation with police in Prattville, Alabama. Mr. Boynton g<>t the charges against Carmichael dismissed in exchange for an agreeomnt that Carmichatl would never return to Prattville. ~lr. Boynton also reprerented SNCC Chairman Ii. Rap B"",,, on crim. inal charge. in Alabama. Later in his career. Mr. Boynton was beaten by a deputy sheriff in Wilco~ County. Al; a rnull, Mr. 8o)T1ton alwa)':l carrie. a Smith & Wesson.38 for protec· tion. Atti!l'le5. he has had to practice law with bodyguards. Mr. Boynton remembers that he reo "ived outward opposition from many members of th e white bar in Selma. where he practiced . However. he does recall thai some attorneys like liarry Gamble and Harry Gamble, Jr. did, on occasion, e~tend a hand oL... istance. Mr. Boynton proudly recalls deregre· gating the Monroe County courtroom's .. gregated ..ating arrangement in 1%6. At that time. black spectaton could only sit in the balcony. Mr. Boynton's objections to this practice by Judge Robert E. Lee Key resulted in Judge Key's rendering a decision permitting blacks to sit on the main floor of the courtroom along with whites_ Today. Mr. 8o)T1ton is the attornqo for Dallas County.

J.L. C....lnut, Jr. J-L Chestnut. Jr" or -Che!S". as he is affutionately called by friends. was born in Selma. Alabama in 1930. He grew up in Selma at a time when Ples.sey u. Fer_ gU$Ql!' was the law of the land. While at Dillard University in New Orlnns. 1.ouisiana. he was persuaded by Ben_

THE AU\BAMA LAWYER

jamin Quarles. a noted historian. and Daniel Thompson. an eminent s<>ciolo· gist. to attend Howard Uni"ersity Law School. "They suggested that I put the saxophone down. come out of the French Quarter [in New Orleans1 and make something of myself." At the time. Mr. Che,tnut considered him$tlf. very good >allophone player. yet he took their advice and attended Howard University I.aw School. Mr. Chestnut's classmates ~t Howard included Vernon Jordan and Douglal Wilder. 1'1(1\0,' GQvemor of the Sldte of Vir· ginia. Mr. Chestnut was immensely impressed with what he 50W while a student at Howard. Por example. ~ day he .at in a large law school classroom and watched noted black la~ers. such as Wiley Br~nton. Herbert Reid, Sr .. bmes Naibreth and RoI:>ert Cart.r. attorney for the NAACP Legal Defeose Fund. drill Thurgood Marshall. then director of the NAACP Ltgal Defense Fund. on questiOIU that Mr. Marshall could expect to ~ asbd during oral argument by the U.S. Supreme Court in the second c.ue of Brown v. &ord of t'ducolion of To{"RIm'. a c.ue challenging .. gO'gation in the public schools. While at Howard, Mr. Chestnut and several students sued the University /,"Ntr landlord-tenant disputes. H""'ard owned many apartments nU . campus and through real .state agents was evicting people and putting them out in the 'now. Howard. in effect, "was a silent slum lord." Mr. Chestnut .aid: "We got Howard to change its policy. And that !experienc.1. more than any coutle I took in law ,chooL demon.trated the po",-er of the law in effecting desirable social change" In 1958. Mr. Chestnut graduated from Howard. After graduation. h. Idlked with Dr. Martin Luther King. Jr. who con· "';need Mr. Chestnut that "the real action wa.< g<>ing to be in the South. and not in New York Or Chicago." ~!r. Chestnut changed his plan to go to New York and, inltead. returned hom • • lat.r saying. " I wa.< correct in that decision because the South turned out to be the battle· ground: ~lr. Chestnut first ran up against hometown oPlX'si t ion with the Dalla.< County Bar AssOCiation. which did not have any black member •. "The}' pas..d a ....,Iution and carried it to the local

banks asking the banks not to lend me any money to set up an omce to practice [law in Selma1." Mr. Chestnut maintains that it was a dimcult time for blacks in Selma. There "'ere no black law enforctment omce .. or political omce holders. "The only blacks with jobs downtown "",re barbers. janitors and mes.senge,,: He .. yo that he was never formal l y admitted to the Dal las County Bar. although several yean afler he began his practice. he received a letter inviting him to a bar m«ting, and he did attend. He had to learn how to practice law by trial and errOr since there was no one else to "teach him the TOpes." Occasion· ally. h. would s •• k legal advic. from attorneys Peter Hall' and 0... 011 Billings. ley in Birmingham. Mr. Chestnut remembers the environment in the courtroom as being -extremely hostil.: The judges referred to the whit. attor· neys by ure of a title. like "Mr: or -At torney·, but they referred to him as "For a long time. I could not sit in front of the rail. I had to si\ in the au· dience: Mr. Chestnut recalls. He said. -Judges took every opportunity they could to cut Im.1 down and embarrass [mel: In 1959. he recalls raising an ob· j.ction at trial to the admiSsion into evi· denee of a deed that had not been signed or authenticated. The op])O$ing counrel and th e judge. Judge Blanton of the County Court of Common Pleas. wne both ""hite. Judge Blanton chastis.td Mr. Chestnut for making the evidentiary objection and referred to him -in $0 man~ words. a.< a glorifIed notary public and not very bright at that." - and then looked Qver to the whit~ Stction of the courtroom "as if to receive an applause: Mr. Chestnut recalls that, du r ing a trial in 1961, the sheriff of Wilcox Coun· ty angrily called him a liar. Mr. Chest_ nut. in response. called him a "double liar: The sheriff picked up an ax hand le that was lying on the exhibit tabl. and "threatened to Idke my head off: Mr. Chestnut rKOunis that the judge just 50t on the bench, smiling_ Th rough it all, Mr. Chestnut does remember that Harry Gamble. Sr .. a white Selma attorney , did offer \0 help him at times. and once ga,-e him an outdated set of the Alabama Cod •. Mr. Chestnut handled many important ci"il right! cases in Alabama. He tried the first cas<' that put blacks in the ju!),

-J.1.:.

May 1993 / 159

bolo Mr. Chntnut, Iiong with OU(U BiUing:sI~

priyi.

of Birmingham. IlK> hi~ the

~~" th~t Il~

black doc;tors hospill.l in Mobl~. Allbima. Blick doc· tors formuly had 10 turn ovu th(ir ""ti~nt. to whiU doctors OnCr th ri r ""titnu '<Rr~ hoopiuliud. sinct th~ blick docton did not hi~ hospital pri· viltgU. Mr. Cheltnut and Mr. Billingsley ching.d thllt pOlicy. Mr. Ch..lnut al .... tritd major VOltinl rights. employmtnl discrimirnotion. and housinl discrimina· tion cast •. In ~Ima during the turbu· lent 1%Os. he ~presenlro Dr. King, Rev. Ralph Abtr .... thy , Dick Grrgory. noted author James Baldwin. and hundrtds of OIhers on civil diso«d~nce charges.. Mr. Cheltnut Si)'S thaI black lawyers hII~ madt .ilnific~nt progrns. "Thty arc malcin, mont)' now ond art recog. niud ;u skilled attorneys." Also. the fUlts haYt chlongtd til include disaMry. As Mr. Chutnut uy" "VIlU know u muc:h about his b'Our flIlIX'W\mt'sl CoUt IS he knows . When r stutrd oul. we thrtw a brick and duc:ked:

.I. llllason ~ ..I.

Without debllt. J. Mason Divis is afftdioMtely rtprd~ as tllfe historian 01 black progrfn and devrlopmfn\ in Alabama. Mr. Davis has an uncanny abil· ity to recaU dates. names and ewnts. Mr. Davis was influ(ncrd to take up law by Walter IUrris, Mr. Davi.' uncle, who, in 19 12, helped found Prlltecliw Industrial Insurance Com ""ny, one of hiJ bmily buoinessu. Mr,ln\is loolUl· ~ from St~t. Uni~rsity of Ntw Vork School of Law in 1959. Mr. Davis rttUmN to Allbima ~ hr ...."t~ to hrlp the bmily run its insunnct and fu ....ru home busInesses. DlI~npOrt and IUrri, Fu .... ral Home. the other family businen, wlS estlblished in 1899. Mr. !}avis' practice has always b«n focused on commercial law. His clients have includ~ Protedivt Industrial Insurance 1 60 / M~

1993

Co .. Allilntl Life Insurance Co., North ~rolirno Mut.ul [OIur;mu Co., Pilgrim flt.lth MId Lif., MId ~1\pOft and IUr· Tis fu ....ru Home. fl. rmolls thlot the Allbamo SI.a~ Bar ho$ always btfn on inttJrat~ tw, mean· ina thllt ewry Ilwyer. black or white, who _Iicmstd to pndiu ..... iI memo bero(the boor. l ~r,the statr barills not always had I good passing rtCOrd for blilCks who ~re required to sit for tllfe bar (umination. Mr. Davis not~s that om white bar comminioner implied in a letter )'tal"1liO thai llIfert WM a deHber. ate int~nt to prevent bliICks from passing tht bar. Mr. tnvis recounts thai the Birming· him Bar AsxIciation was nol origi .... lly intfllrat~, H~ Nid thlot it did not opm itsdoon 10~ks until 1971. when Cen· tTlI E. i'I. friend, I jewish attorney, became president 0( the Birming~m Bar. In 197', Mr. Davis w;u el«l~d 10 tilt Encutivt Committee 0( the Binn· inghllm Bar, Ind in December ]983. life WII5 (Ieeted prnident 01 the bar and served 11$ its first and only black presi· dent. Under Mr. Davil' term as president. the anoeiation rl'I(Md ill headquartel"1 from the Jefferson County Cou~ to ils preunt IOCllion in Ihe Neighbors. Morrow BuildiOJ. Mr . DIVilliiso hlndl(d his shire of ~riminll asts, including wring with O~II B ittini$I~, fred Gray and J.L Chestnut in the deftnsr of the wellknawn Rn-. Lewis Lloyd AncIrrson who wn convicted of mlOnlllUghtrr. This conviction was later overturned by the U.S. Suprtmt Court. Also, Mr. tnvis and Mr. Billingsl~ repreunted Mr. Caliph Washington 01 Bnumer and the stu· dents in the Huntsville public acroml1>Odation sit·in CoUts. Mr. tm<is SIll'S il was ~ry scary practicing during lhose days. because law enfor<;tment was Irying to prOlectl "wl.y of life: Beuu.. of mlltel Hlrelation laws, when he tm'tl1~ fir out of Birmingham to try cases. Mr. DlIvis would drivf biIdt home II niaht and itt up urly the next momi"ll to drive: biIdt to coort. He Wd thlot he newr knew if he would have i coofrontltion ..ith lhe poliu. Ora. in 1961, Mr, DlIvis MId Ptter IUn ~nt to Anninon City Court to defend two blacks Chifg~ with iOOoting two white men in I TeltilS styl( shoot·out. Several whites who were family members and friends o(

the ill.,~ victims ..... .., in the audiencr. Ih~ hIId their s.ho!iuns hidden in their ove""ls. Whm Mr. Davis Ind Mr. HIli ~re tra,~Ilin,g on I highwloy biIdt to Birmingham. those men foll_d them in their cars Ind tried 10 smcIwich Mr,Davis' car ~ their two an. Mr. Uavil. not koown Mr any high speed driving skiUs, luckily managed to out·maneu~r the lead car lOnd s]l«d i\o'IY. In 1963, Mr. Davis and two bail bon dsmen wrre a rre sted in Birmingham and unt to jail for repre· senting lhe original Freedom Riders who ~imf to Birmingham on I Trailways Bus. At the time of the arrest. Mr. Davis wn siltinl in his (:lOr on the comer of 'th A~nue, North and 19th Strttt, at tilt Tni~ Bus Terminal (the site is now I plTking lot), wliting for the arrival of tilt nnt bus Iwd 0( frttdom Ridtf'l.. In tilt Birmin,hom city courts. Mr. DlIvis rtmembtn Judges. such as I Judge BfOIO'O. who did not want black li\o')'l'rs 10 tit within tilt railing. Judge Brown required bliICk lawyers to sit OIl the row whue the defendants sat. Mr. Davis ~\so reca lls having to go out.ide the court· rooms to get waler, and seeing .igns O\'er the waler (ounlllins marked "Col· ored: Mr. !}avis Slid lit '''''IYS drank out of the "White" wltn fountain, ind no one twr told him not to. HI: also recalls that tOn'II! 0( hiJ white colleagues would dr ink out o( the ·Colored" founllin btciuse th~ "'lInl~ to know how the ·Colored" Wiler tiSted. Happily, Mr . Davit un .lalt t~t he "t ried ClH. Itt oYtr the SIlte on.d genenlly was treat~ with, Irnt dul of deference lOnd respect by the c~rks 01. the tOur! in the smatt countiu: He SlYS thai this was done becauH "I ht}' wan led )'(IU to Ul kf back to BirminQham the .tory that in the runl areas. a bliICk lawyer is accord· ~ with IOfot dignity." The major problem thllt Mr. r:w.is said he ha4 WIllI with the jury sysItm. Again, blacks; ~rt not on the petit or g ..md jury until lhe bte 1960s. The jury rolls in those dayl ~re filled with people "who hid I Mountain 8roo1c ~ and I T_mant ~kphont nchange: There· !In, it "'lIS diffICUlt to win a jury trill. "11 was common practice that if ..~ had I good CoUt,lnd hid to try it belOff iI jury, ~ would usoeiate I white la"'l"'r. And wt had to split llIfe attorney fu. ,,;th th.

and they told Mr. Davis

THE ALABAMA LAWVER

white lawyer: Mr. [}avis Ja)'5. He further Jaid. "We had to a>sod.te a white laW}"I!r. otherwi$e. your ciient probably would sue you for malpractice: Mr. [}avis does .. call white attorneys who helped him in his practice, includ· ing Chester W. Austin. Colonel Crampton Harris. Abe Berkowitz. A. Leo Oberdorther, and sweral Jewish lawyers. Today. Mr. [}a,;.., .aid the atlTlO$phe .. in the courts is totally different becali$i' it is not as raciaJl~ char~d as it was duro ing the I9&Os and early 19105. He .aid that Birmingham has made tremendous progrer.s sinet tJto.., tarly~. "I go \0 Michigan. New York. and other states. and the progrer.s that has b«n made in thi. stat. far exceeds the progrer.s that has been made in the large Northern states where you havt large pOpulatiom of blacks: he .aid. Today. Mr. Davis is a senior partner in the law firm of Sirote. !'emul!.

Fred D. Gray me list of black legal pioneer. in Alabama is not complete without Fred D. Cray. Mr. Gray. born in Montgomery. Alabama. graduated from Case Western R.5"Tvt UnivtT$ity Law School in 1954 and returned to Montgomery to begin private practice. Mr. Gray was not allowed \0 attend law school in Alab.lma. because of his race. A!. was the case with othtr black students .. eking law degrtts. the State of Alabama paid a pOr· tion of Mr. Gray·s law school ""pense. on the condition thai he attend a 1.1Iw school outside of Alabama. Mr. Gray"s contact with noted law professors at Cas.! West· .. n Ruerw helped to shape his rich legal education. Another formativt e.pe· rience for Mr. Gray occurred when. as a student. he was arre.ted in Birmingham for using a whiteoo(lnly rtstroom in the train station. Mr. Gray returned to the South to help fight discrimination and ngTtgation . One of Mr. Gray'. first THE illiI.BAMA LAWYER

clienl$ was Mrs. Rosa Parks. a Iong·tilm friend. A tired and drained Mrs. Puks was arrested December I, 19$5 when .... refused to surrender her bus seat to a white male. Mr. Gray's representation 01 Ms. Parks propelled him into the leader.hip ranks of the Montgornery bus boy. <XIIt, in which more than 60,000 blacks refused to ride Montgomery buses. Although Ms.!'arks was found guilty. and her state court appeal was l06t on local technical grounds. the bu. issue was resoh.. d in another forum. Because Mr. Gray and other black atlomel'" felt that the Alabama state court sy.tem did not provide ~Qual prote<;\ion of the 1.1Iws to blacks. t hey developed a .trategy of removing as many of their civil right> ca$eS as possible to the federal courts. Such was the case in Browder v_ Gayle! when Mr. Cray r.pre .. nted Mrs. W. A. Cayle. In Browder. the United States Supreme Court affirmed a lower court roling that declared the state·s segrega · tion statute unconstitutional. A!. a result oIlhat decision. there was no longer a legal justification for a segregated seat-

ing pOlicy on Montgomery buses and the

bUll boyrott ended, Mr, Gray remembers that when his role in the bus boycott gavt him greater vi.ibilit~, his draft statw; changed from a 4·D (a clergyman's ..emption he was entitled to since he was an assistant minister} to I·A (rtady for activt dul)'J. Mr. Gray's civil righl$ activism landed him in another Supreme Court issue. this time the landmark li~1 case 01 New l'ork Times v. Sul/!""". - Mr. Gray represented a group 01 ministers. including Dr. King, who signed a letter advtrtilot· men t in the New York Times which solicited funds for the <i,il right> 1llO'". men\. The ad mentioned the Montgomery bus boycott and the brutality that the demonstrators faced .t the hands of city official •. L.B. Sullivan, Montgomery's Police Commi"ion<r. .ued. claiming defamation. The Mont· gomery Ci"uit Court awarded Sullivan damages; hOwe\·er. the Supreme Court reversed and held. in part, that where an elected public official sues a "citizen critic" of government for defamation, the

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Fir~t Amendment applies and "guaranteelsl the right 01 the 'citizen critic' to critici .. his g(l'l... mment."" Mr. Gray also hand lt d Wlt ing right> cun . In 1960, in association with Arthur Shores. Mr. Gray argued in the case of Gomillion v. Lightfool" before the supreme court. The Alabama Legisla· ture had passed an act gerrymandering .11 but foor or five of the blacks out of the City of Trnkegee, whil. not removing • single white 1I01. r or resident. Mr. Gray represented the black residents. The supreme court held the statute was un· constitutional and enjoined its enforet· men!. ~lr. Gray also represented the Fre.dom Riders in the state of Alabama. As a

result of Mr. Gray's su<:ce..fullegal feats, Dr. King retained Mr. Gray as one of his principal attorneys. Mr. Gray is alw not<:<l for representing Charlie Pollard. o..'. r 40 ~a .. ago, the U.S. Government induced rural black malu to become involved in the Tuskeg.. Syphilis Study. They we .. nei. ther informed nor treat<:<l for syphilis by the ~rnment. The suit resulted in a final ~Itlement a",'ard in ..cess of S9.5 million . l~tween 1970· 74. Mr. Gray served in the Alabama HOWie of Rep ..sentatives. Mr. Gray continues to handle civil rights cases. Recently. h. represenl<:<l Alabama State University in a federal cas<e seeking to eliminate all remaining vesligts of

segregation and discrimi!l2ltion in state institutions of higher education in the state of Alabama.

Chari • • D. Langford

Inspired by his mother. Lucy B. langford. Charlel D. Langford left Mont gomery to attend Catholic Uniwrsity Law School in Washington. D.C . In the 19505. while studtnts who attend<:<l thi: Univenity of Alabama did not have to take the bar =m but W<'re admitted to the bar, upOn motion to tht Alabama Supreme Court. Black students. of course, W<'n- not ~dmitted to the Universily of Alabama law School. Thus. Mr. lang_ ford had to take the Alabama bu. He recalls that in 1953. there was no bar review course in Alabama to help preparation fur the exam. Desp ite this adwrsiIy. he prepared for and passed the bar

Mr. Langford set up his practice in Montgomery. There were only a few black attorneys in the . ntiro state, SO when he would walk into court "everyone would look very surprised to see me," he said. Mr. Langford states that he did get hi. shue of bitter and angry looks, and he always felt cognizant that he w"" a black man practicing law in an all·white profession. When hi: did appear in court in surrounding counties. many Urnes the court would Mk him to !how his bar card. He recalls that he once .. t and ....atched Peter Hall. a black Birmingham attornt». try a jury trial in circuit court. During closing argument to an all-white jury. the judge instruct<:<l Mr. Hall not 10 look at the jury but to address him. Mr. Langford said that the incident was humiliating to both Mr. Hall and Mr. Langford. Mr. langford r~m.mbers /Wilting in the repres.ntation of indi"iduals who were arrested during the Montgomery bWi boycott. including Dr. King and Ms. Rosa Parks. Mr. langford also fought in

162 f May 1993

TilE ALABAMA LAWYER

court lor the desegregation of the Mont · gomtr~ public schools. Mr. Langford says that he is happy for the changes that haw occurred for black attorneys. and is particularl~ pleased to see more black law firms and black laW)'ers getting a variety of difftrent cas.. that the~ did 001 get whm he starttd practieing lawfor e!lample. representing cities, counties and the State. Mr. Langford says. however. that black laW)'en ,till do not get their fai r share of government bond counsel work and othtr govunment CMts. Mr. Langford is trying to make changes in this area, sir.ct he cu"..,ntly .erves as a state Senator.

.Judgol.J. Richmond Pe_n.on Judge J. Richmond Pearson wonttd to be a lawyer all of his life. He was reared in Birmingham. and he sa id that h. never thought of any other profession. He Mid that h. is still surprised that he is a circuit court j~. bec;,u.e h. """". thought of being on the bench. After gradlJolting from Morehou.e College in Atlanta , Ceorgia. h. attended Howard Universi ty Law School. At Howard , he participattd in mall}' of the preparatory mock U.s. Supreme Coort hearings for thosI: attom, l" who had.,...... scheduled for oral argumenl on Ihe Supreme c.:.urt docket. He was greatly innuenctd by legal think .. , such as Dun James

Nabril. Jr. and Profusor Herbert O. Reid, Sr. After graduating in ]958, J~ Pearson retumtd 10 Birmingham. passed the bar exam. and starled practicing law. Judl!fc Pearson remembers that h. could not participate in the activities of the Slale bar Or Ihe Bi rmingham Bar because he neWT receiwd any notices 01 events. tommittee meetings or .clivitits. He d""s recall receiving an application from the Birmingham Chamber ofCommerce. He filltd out the application and sent it in wilh the requested member· ship fee. However. he rO(alls, ,everal day. later. IWI) white men walked intI) his downtown office. handed him his applicalil)n and fee and tl)ld him they cl)uld nl)! accept il. since blacks cl)uld ootjoin. At the commencement of his practice, Judge Pea"l)n han dled tl)rt and civil righls cases. Wh enewr he had a good tort case Ihat was going to be tried befl)re a jury. he woold associate a white lawyer. Judge Pearson $aid that he man· aged tl) find white lawyers whl) would split the fee recovered. fifty-fifty. The nl)rmal practice. accl)rding to Judge Pearson. was for black lawyers who ass0.ciated wh ite lawyeT$ to give their white counterparts I>\I().thirds I)f the total I... earned I)r awarded. Judge Pearson felt that a fifty·fifty split WM fairer becau.e blacks had tl) assodat. with a white attorney merdy because I)f the black atoomey's race. Judge Pearson recalls the humiliatioo and hostility that black attorneys. vic· tims. defendants and witnesses had to go thrl)ugh in tourt, Btacks we~ referred to b~ their lirst name I)r withl)ut their appropriate surname I)r t it I•. whi le whiles were referred tl) by their last names toupled with Mr .. Mrs .• Attl)rmy

I)r Ihe appropriate tit le. Even today. many black attorney. and judge. ar~ sensitive to such infl)rmal rele .. n<eS unless the reference is made in an awmpriatt environment and by a g~nuine friend. Judge Pearron remembers the snubs that many black atll)rneys received in the county lib rary. H•• a id. ·When blacks went I<l the law library on t<>ll of the courthl)use. we had to sil dl)wn. write I)n a piece of paper the books we wanted. and , when the librarian had time. he woold gl) get the books lor US - we could oot circul~te like the white attorneys," H. further $aid. "'Jhi, librari· an $aid he WM doing US a faV<)r. I gue$$ he thought we didn', have enough se,..., tl) knl)w hl)w tl) use the library .•""n though we finished law school." Onc e. Judge Purson and Justice Oscar Adams. then practicing attorneys. went tl) Selma II) look at rome cl)urt records that were in the basemenl of the courtoou.e. Thty w" .. ,occompanied in the basement by a white court clerk or .ecretary. "Oscar ~sponded to her ques· tions by $aying 'yes' I)r 'no'. And she tl)ld Oscar that blacks couldn't addre$$ Ittr by stating 'yes' or 'no'. that they had 10 address her as ·yes. Ma'am'. She stood there and insisted that he refer I<l Ittr M "~s. Ma·am." Judge Pearron $aid that. withl)ul much choice. Jus!ice Adam. respl)nded as she requested. - YI)U couldn't blame him for saying it , because if he did not $ay it. thue is nl) " 'a}' I)f knowing what she would have said we did to her down in the basement. So he said it, we got out of there and I/Ot oulm

Judge Pearson recalls representing Rell. Fred L. Shuttlesworth and Dr. King when they were arrested for sil-ins and other civil diso-bedienct charge. , Judge

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Pearson believes that blacks ha~ made tremendous progreH since those days , noting that blacks are now on the bench and ",rving as federal, state and county prooecutors.

ROM a&.ri.

decided that she would take the unCQTlventional roult and bocome a lawye r instead of a teacher. In 1966. she enroiled at Harvard University t..aw School. At Harvard. she met Henry ("Hank"f Sand· ers, now her husband and law partner. Her parents lived on 9th Court. West. Birmingham, (aka. "Dynamite Hil!"f, and du ring the tumultuous period when homes WtTe bombed. she decided she wanted to ",e other places besides Birm· ingham. However, Mr. Sanders was devoted to fighting for civil right. in Alabama, and in 1970. he persuaded Ms. Sanders to .. turn. Several years later. Mr. Sanders opened up his practice in &lma and persuaded Mr . Chestnul to join him. As a result. in 1972. the now well·known firm of Ch«tnut, Sanders &. Sande. s was started. I'o r Ih. lui 20 )'fars. Ms. Sanders' practice has been in

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164 / ~Ia~ ]993

the lTea 01 general law. empila.lizing in employment Taw. wt!lfare rights and consumer law. She recalls that her experiencts wilh silting judgu were the most difficult. Once. ;n a custody hu ring. a Clarke County Circui t Cou.t judge had her arrested and held in contempt. I'rio. to the custody hearin~ the judge had loaid that he would continue her client's case. She reminded the court that under Alabama law the hearing had to be held that day. The judge then threatened to keep her in court until midnight. Ms. Sanders responded. ·So be It." She was Ihen arruted and held because of her comment and her refusal to apologize. A court experience Ms. Sanders vividly r«alls occurred in the 1970. in Marengo County, During a t rial. Ms. Sanders qutstio""d the i\bKnce of blacks on the jury. The prosecutor, in respo~. called an employee from the sheriffs department who testifitd that blacks conless to crimes moTe often than whites which he said was an indication that blacks were intellectually inferior to whit .... Thus. he reasoned. blacks were less Qualified than whites to serve on a jury. Ms. Sanders says that she still notices a marked improvement in the altitude of whit. judges when she represents white clients as Opp(>sed to black clients. ~h. Sanders is ve ry proud 01 her employment discrimination cases which include suits against Ziegltr Company. Bush Hall and RUSSi'1i Corporation. Ms. Sanders also successfully assisted in .. presenting AINrt Turner and Spivt!. Gordon on lederal voting fraud cha rges stemming from elections ;n the Black Belt counties. ~1s. Sanders extensively involves hersell in community wurk, including start" ing a pre-school. organizing cultural enrichment programs and. along with her husband, founding the Alabama I..lwyers Ai5ociation [see related article ]. Ms. Sanders sa~'S that she is stililigllt" ing the Alabama Stille Ba. to eliminate the rule which limits th e numbe r of times.. i.e. five attempts. a bar examin.. can take the e.... m. Ms . Sanders arguts that since the bar examination is designed to test on ly minimum standards. then it shou ld not matter how many times an examin.e si ts lor the e.... m if he or sht eventually moets the minimum stilndards. THE AlAWIA U\WYER

Solomon S .

s..... .J ••

Solomon S. Say, Jr.d was a lrot pionett in Alabama school desegregation QSeS. M•. Say p...ated from ll(JWlnl Univenity l..1w School and de,idtd 10 rttum 10 Alabama afte. his graduation. In 1957 Still IW-"'d thr Alabama bar iU>d ott up his low practice with Fnd Cny and Chioriu L1ngford.. In 1958, 16-~r-old Mark Gil~ of Montgomery look a $hOrt cuI on his way to work Kross ~k Park. 01. segniittd pirk in Montgomery. Mr. Gilmon was arR5l.td. bulen. tried and convicled 0( , violation of a local "Jim Crow" law, and sentenced to jail for one yur. M•. Stay. in behlolf of Gilmon's n\atNe$ W oth· en. $\Jed tho City. Ft<kral Jud# Frank M. John50n. Jr. roled th~ city ordinanao was unconstitutional. To md support· ing an integrated park, thr City dosed

"" ~"'-

During M•. SUY'I 20·year·lenur•• t the firm 01 Gray. Suy & langford. Mr. Suy was .uponsiblt fo r most of the public Khool dutgrtg;otion litigation throughout lhr .UIe.

prOITIises 10 ensu.e tq1U1 opporluniliu for a1\ 0( its citizens, a modtl for thr .tst at the nation." All was not tuy for thili soft spok.n IfrlIltman. Befort Ihr public 0ICC0IlU1"IQ0 dation ~ stNCk 00...-.., segregation in hoteli and muuranU. blacks could r>OI sUy in hoteli Of motels. M•. Shom trav.I.d from one end of the ltat. to the olhe. to .epruenl poor an d n .. d~ dienU. E"tn ifhii ~ wert in a city JOO milu away and \a.lted st'Jrnl days.. udI rvcning "lIer (ourt Mr. Shorts ...-ould d';Y't bick to BirmingMm and stay al home. The next mo rning. h. would awak. early W driY't bade to court. This continued day ,1I.r court day until the tN! tndtd. M•. Shom $iY$ Ihiot Iw: was generally t.uted very well b)I al l with whom he carre in c:onlllct. However, Ihr.., weft" rtW incident5 ",heft he did narrowly esuPl' ..,. iow injury. In July 1940. he cltfended Will lull, a black union Itadtr who cMrged Ceorge Williams. I whitt Ensley pollet offar. with acwive for«. The all.,,-hite civil lmrd ntumtd a finding in f.war 01 Mr. Shom' cHent. ~ Mr. Sho res left the cou.t'oom and IItttmpttd to gfl into Ihr eJeo,oalor. Iw: was IIl1acktd from behind. Mr. Sho. ts ....1$ armttd /or "disorderly ronIIuct." later. the attacker admitted he had bun paid by polke in/ormanu. Mr. Shorts now "11 wasn't tuy to practice then. I had to carry I .41 Colt pUloi in my brief case. Not too man~ Pl'Ople mt~ with me after that, btcause they knew I had a Pl'nnil to rMT)I it." AI th e Iud 10,.1 counst! for tht NAACP. Mr. Shorts sought to dismantle $Il1e and local· Jim C. ow" laws. Mr. Shorn' f~ ...1 court billlt with BinninQlwn's segnpttd zoning ordinllnCts caused Federal Distr ict Court Judge CI.I..,nce Mullens to give Mr. Shores onf 0( his fint viclories. y,'ith the _ WIt of victory stm fTt$h. he chlollel\itd lhe segregated educational SYittm Ihat deni.d black children tqu.tl educalional opportunities. Hili most famous battle in this arta challenged the Universily 01 Alabama ,md its denial to Autherine Lucy. II bla<:~ studtnt. to auend c1asses. This 1956 federal cau brought Mr. Shorts nationalllUention. Mr. SlOrtl won Ihr aM and Federal J",* Hobart Crooms rultd thlol the University m\lit rt.;>dmlt Ms. l.uqo and IIl10w her \0 retum

..,";u

to cluJ. Bul vicious whitt mobs rioted. and the UniverJity cltfied the court order and mused to allow he. to continue lItr c\a.lsts. Mr. Shorts reaolls that the mob was 10 unruly IhIot, on. evening whilt rtlrea.ting from the eampu$. he and Ms.. Lucy we.t attadted while In his ea •. and hi: thought they would be killed. Thenafter, (',oo.otmor Wallatt tried to blodc the Khool house door. N' mull of Mr. Shoru' fiSht 10' Ms. LuCY, Ms . Vivilln Malon. lInd Mr. Jam n Hood obtained acImissKJn to attend the univer· sity. Vun Iote., Mr. Shorts naived an Honorary Doctor of liumaniti" Degne from the University 01 Alabama. In 1947 Mr. Shom rtpranlted bl.l<:k tochm in mItr.ll court 10 stCUn equal PlOY lor them whe n Ihey we .. just as qualified 1$ th.ir white counUrparts. Fedtral Dilitrict Court Judgt T.A. Mur. pI"lru dtcicltd the CUt in favor oltho bla<:k tuclwrs. Mr. Short. Olid that he .ometimu associated Crampton IIams.." ",hit_ .1· torTlty, 10 help him on IOmt at his ClIJeJ. In tholt days, black 1I!0rnfYS hIod to associate with white lIttorntys if they

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ALABAMA DO~ " ENT ASS BLY SOF ARE

"')'S.

Arthur D. ShcH9. The title O("Dun 0( B~ AUomt)'$ in 1M SUit of Alabama" belongs to only one IIWl-Arthur O. Silo«$. Mr. Shora received his ~ucation at Talladega Col · leg. and tlw: University of K.u'\Qs.llt has practiced ' - in AlWmo sirn 1937. For more Ihan a dtcade. he ....1$ Ihe only black attorney practicing in Alab/lma. Julius L. Chambers, fo rmer dirfcto rl counsel of the NAACP Ltgal Odenst FUnd. rtUntly Wd 0( Mr. Sh.>m. "In Ihr course 01 mOre than five deudu, Mr. Shorn pl.lyed a central rol. in abolishing sUte-WX\iontd aplrthrid in Alabama, in wooting for tqual fiahtt for all Alabamian •. lInd in bringing Birmingham to what il is today: a community thaI

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May 1993 / 165

wanted to win their jury trials, becau,"" the ju ries wore all white, according to Mr. Shores. tn the mid· 1960s. when Mr. Shores fought for ;and obtained an injunction to enforce th. Brown v. Boord of Educalion dteision in Birmingham, his home was twice bombed within a matter of wu kl. The bombing of Mr. Shores' home touched off riot ing in Birmingham. Mr. Shorel saY' today that during all of this he was not afraid fur hi. safe · ty."[ just did what I knew was right." He does recalilhal about" dozen blacks sat outside of his home, day and night. 10 protect his home and family from furthn bl>mbings. During this time. Mr. Shores was infiuenctd by and v.lu~ his rtt"tionship with Thurgood Mushall. then director of the NAACP Legal Defense ~un d. Mr. Marshall sta~d at Mr. Sho. es' house ;and at the house of Dr. and Mrs. A.G. Caston and worked !>Ilt of M•. Shores' law office. Together. they shared ideas and devell>ped case mategiu. Mr. Shoru alw.Y' sha. ed his knowledge with other )'(lung attorneys who ,,"'Orked with him, including fred Gray, 0 ..,11 Bill ingsley, J.L, Chutnut. Jr. and Peler Han. Mr. Shores. like Justice Adams and seve . ;al I>th . .. , repr.sented Dr. King when he was arrtsted in Bi . mingham. Mr. Shores also repre,""nt~ thousands who stood up to Bull Conner's firehoses and attack dogs. He successfully argued

before the supreme court to overturn the cOIwictions of demon.trator. who wue convicted of violating Birming· ha m's city pa rade p"rmit. Mr. Shoffs was not in the limelight. but ht was al· ways vigilant in ntgotiating with the white city officials to end segregation in Birmingham. Mr. Shores also handled many voting righ15 cases to efl5ure that blacks had equal a"cess to the political process and could elect representatives of their choiQ. In 1947, heliled the first suit in Bi.mingham tl> enfon:. the right of blacks to vote. Later, in 1968. he was appointed by an all·white city council to fill a vacancy on the Binningham City Council. The fol 1000'ing year. he was elected to the same po.o;ition and became the dty's first black elected official. He wal victoril>u, because he won wide support from both white and black voters. Soon thereafter. the council el~ct~d him president pro tem. Whenever the mayor was out of to""', Mr. Sho~s acted as Birmingham's ma)'Qr. One of Mr. Shore:;' (1,o'....*,g achiewments was when he worked with Dr. A.C. Gaston to found Citium Federal Savings flank, To this day. Mr. Shoru is an acti .... member of the Board of Dirtctors of Citizens Federal. which is .ated as one of the safest sayings and loan imtitutions in ~ State. The late David Hood, also a pioneer black la~r. served on Citizen', Board with Mr. Shores.

F~.nkl. F~ld.

Smith

Franki. Field. Smith has been affectionately .eferred to as the "Jewel of Mobile: When she was admitted to the Alabama bar in 1967 she becalTl\' one of the first black female aUorneys in Alabama. In 1975, she became the fi.st black female Municipal Court Judge in Mobile County. "That year, she was appointed to the Municipal Court of Pricha.d. Alabaom. where she remained on the bench until 1985. F"'nkie. as .she is called by her friends, was enrou.aged to attend Howard University Law School by Professor Randolph T. Blockwell. a professor at Alabama A &; M and a Howard Law Alumnus. After hu acceptance to Howard, she did not show up for cla".s for fin;ancial reasons. Soon thereafter. she recei .... d a call from Dean Spottswood W. Robinson, Ill. Dean Robinson. later chit f judge of the U.S . Court of Appeals for the D.C. Circuit, had a national reputation for litigating civil rights Col.'i'S. "I was r"<llly

W.H. Welcher, M.D. J.D. M.S.P., F.C.L.M. Forensic Psychiatry Medical Malpractice· Insanity as a Defense Personal Injury · Will Competency Wrongful Death' Workers Compensation

Free Consultation HUnlsvilie Suitet04 331S Bob Wallace Huntsvil ~, AL 3580S (205) 533-2141

168 / May 1993

Birmingham 6873 5th Aye. S. Birmingham. AL (205)833-4878

THE ALABAMA LAWYER

ImpreSRd by him whtn ht ptrson~lIy a.11td and ~ me why I did not d>ow up for cw-. \\'htn Iiold him ~t my problem. Hoo..... rd gave mt ~ fullschoiar· ship: A IIIIlive Alabamim. rurtd in Sunflower, ~, Frmkit """ays IIrumed of ~mi~ to AWwna and U$illi hrr skilb to mlIke li~ btttu for \Ibc:b who conti"... utd 10 wfftr from lIiscriminition ind pcM"rty. "' n~r knew how ~ il wu unlilileft and iiW lihe prOgrQund soc· «$I 01 b1.xks in othtr pari.! 01 the coun· Iryl: AI an NAACP Ug.l.1 Ddtnse Fund Conference. she mtl Vernon Z. Crawford. who, il Ihil lime. wu Ihe only bliCk ~tomey in Mobile. CDWford's /irm hom· died eMI rights c.ua. C......ford ...... im· pressed by Fronk;' and ..ked her 10 join his firm. Frankie ollIrwI and she began 10 han\llt civil rights cues. In 1967, Fnmk. ie. in i class action ftdtrol employmenl ~iscrimi~ion lawsu,t, reprurnle<.! black In,oo;k driven who ~rt denitd by thorir t~n thor OpflDI'Iuniry to have inltr· i1ilt roules. Tht whilt driven would bring the goods 10 Mobile and lum the lrucks ~r 10 black drivert who would make lhe aclual deliveriH. IIlIock drivert could not drive ,n,oo;k$ ou\tido 01 Mobile. The UK ruchtd the cirruit court. ~nd tht trucking companiu were force<.! to elimin"'te Ihtir diKrimi~tory policy. Fnnkit abo won bKk pay for thor black truck drivers. since thty had betn donie<.! the higher salaries that Wtnt to inter· state driver...

• CIVIL • INSURANCE

--m

Frlnkit ntv ... formally joined I he Mobile II;or ~ion brtause she _ lold it W<lS segnogattd. IJowMor, she W<lS Inviled 10 attend thei r lO<ial functions and she paid her way 10 attend. On« she 11<.>1 in the door. she statH she was treate<.! well by all with whom she ame in coo· ~. She: SiI)'S thl.t sht hu not Ionmlly iP\llie<.! to thor Mobile lin Association to thil day. but pays her dUts and attends mIIn)' 01 the functiom. She: is critia.l of those black attorneyS who do not partici· pate in local and slllte I);or acti\'itie... "We mU$t gel involved and participate at all Itoitb: Frmkit ~monishu. TodiY. Fr,mkie contendl thit bLack Lntytrs in Mobile Mve progTUStd. Some ..toile low firms have inltllnt..!. and one black Ia~r is i partner in one of the prominent whitt firm,. Also, bl a ck lawyer> in Mobile ", rt getting a good share 01 the Itgil work. she ~ ~hnkie'l advice to )'GUlli iltornt)'l. "Make the system -...ork for blacl!s. Don't k wid to ctWlmge the illIlU5 quo:

The NY. _IM_d These trailblazing pioneers haw SOmt Mlvict for young black la~rt practicing tollay. Mr. Boynton uid that bl",ck ~rs must k role modtb to tht black )'OUth and irutilJ in them hope tNt thty can makt a di~rtn« in thtir live$. Ms. Slndtrs Win" to _ mo« black attor· ntyS get involved in thei r communitiH and work with community organiU'ltions and in commun ity ~rojt'ts. She said.

'"To say)'Otl don't have the time il in uBkUpUblt I:XtUst; )'OU mu9. make the time Mr. Langford fttlt young i \torneys mUll develop a commitment to work vel)' hard and oot try to always hit home runs ind mike I lot of money very quickly. Adjust )'OUr txpfClIotions to Ilt )'OUr txptritna. he $1)'5. lit abo would lik. 10 _ mort involvement by black lawyert with the varlouJ bir usocii' tionJ, and advised tl>ost lawyers not to rul. out running for p<>litiul office. Mr, Shoru ""!lIIes" tNt iawytn should not be lfraill to take on difficult casts. He nid thit if i UH ippurl beyond a ~r's ken. he or Iht hu iII1 obligation to oIoUOCiatt moIher iawytr exptritnctd in the lOrU. thtn It~m from tNt Jawy.r'J K tions and txptrientH. Mr , Chestnut thinkJ that young iawytn need to get far mort involved in the grus-root ~ffain of their communi· tiel. "IILod: Lntytrs irt in i unique polio tion 10 nu ke rully Jignificant con · tribulions to the forward thruat, not Qn/y fo r bllCks. bul for .-\meri"." H. said that black attorneys ha\lt become "mort pusive and more oppo rtun illic- ...·e don'l nted iny mo re Clarence Thonusu: Rtfe .. ing 10 Mr. Chtilnut nid. " If you work hard. tht monty wilL comt. 50 conun lrate on woridnQ hml: Regardin.a lho rtfmal of civil rights cues to other major firms. Mr. Chestnut feell that those issues "are vitll to the progress of ou r peopl. and

Bachus & Associates PROFESSIONAl. INI'£STIGArIONS 6 SERVICE 01' PROCESS

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ATTENTION ATTORNEYS: Ouo- linn poo.\cIM" ;gao;..,...-wo.. 10 IN ......- . ~. _ (:()t"",. _ _ Will _ 15 rHn 01 _ _ ... .,;g.... ____ "" S/fuctUN. I..........,. Oocu _ _ -....- a •• '1 W , s.rw(!>oJt not ....... 10) IN _ng: Fletd l""u ll".lIon. • Pa.. onet Inlury • FI .. t &. Thl,d Party Lia bility

~ ~

nail ",ad Accldenla (Inc luding F.e.L ... . ) • Tra ltlc Aceldenla • Wltneaa Loc,tlon Su",,'llance • Wo<l<a .. Companaallon • P"'party Damage • ,nau .. n. . C"'m 1",,"lIg""'''Fa< S35.OO pel' hout (pIu. expensH). you can not . _ 10 pol_ up !his aervlce lot """'i>fOOuct1va 1nvHt~ Fa< ....... 1...........1on contact' Harry W. Bachu • . Jr.

~4-HoQr

Phon.::

:10S/64,-S,84 TIlE AlAIIAMA LAWYER

P.o. 900: 1Il0066 Mobile, AI.bama 3&618-0066

FAX P&08'::

:10S/6.'-S886 M.i.y 1993 / 167

we can't completely farm that out to othu fOlks. W. muSI pool Our money and our talents so Iblacl<sl have invol'... ment, up fronl, in OUr .truggle- there is a serious problem if " .. farm Illal work oul; ~ will farm out our future." Judge Purson said that black allorne)'5 must II. advocates for constitution· al rights and eq""l opportunilies for an Americans. He said that he is nolloltis· fied Ihat this is b.ing done loday with the sa"'" d.g,...., of vigor as onct was the cas.t. He feels this may II. a result of the greater demand for more money and. while tie understan<!.5 that. he dots not like to see "so many important issues go unchallenged." He also Iolid. "Be hontst and be prep;\red." Mr. Davis agree. thai young lawyers need to be prepared. "You have 10 be so good that you have somdhing t hat everybody wants a P;\rt of---« twice as good as anybody .he: Mr. Davis also Iolid that younger lawyers mUSI be "('\.. r vigilant and make sure that nothing occurs that changes the progress Ihal has been made in the tasl40 years." Mr. Davis .treS5eS 10 always be ethical and

with an OptiOl\.ll Excun;"" 10 s-Jorw;! "' \be eor..:lusion 01 ~....,

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professional , t·inally. Mr. Davis quoled Walt Kelly by $/lying. · We have met Ih. enemy. and he is us: in reference to Ihe failure of many black.! to get involved in state and local bar associations. Mr. Davis said thai thue ue no impedi· ments Or ",cuses for blacks not getting involv.. d in bar activities. He laid that the black lawyers must begin 10 "break down tlltir mental barriers'Juslice Adams sees black attorneys. like Vernon Jordan and Ron Brown. giving direction in areas where they. heretofore. have not. He feels tllat when Pre.ident Clinton and otheT5 use the professional skills of black lawyers thai wlll "bring the nation a long way veT)' fasl: Justice Adams wants 10 s« black allorneys do more netWQrking. Thi~ can be done. he ")'5. by joining the Ameri· can Bar Associalion. Ihe National Bar Association. and state ~nd local bar asso.cialions. Justice Adams concluded On this issue by $/lying. "Don·t ever forgel your identity and your roots." As 10 cllanges in Ihe legal profession in Alabama, some of the "eleran warriors had some int.,"sting points. Mr. Boynton would like to see more blacks on lhe bench and in prosecutorial posi. tions. Mr. Chestnut wou ld likt to see Legal Si>rvices expanded to give Ihe poor real legal standing in the courts. Judge Pearson would like to ~e"a more equi· tab le distribution of judge. and court ~rsonnel in the judicial system. at all level!." M,. Davis feels Ihal progress must continue in making sure that the major r.rms hire blacks as attorne)'5 and other ~rsonn.1. With the pool of ",cel· lent black legal talenl lhat is available. he said, there is no e;lcu5e not to hire qualir.ed blacks. Justice Adams f..,1s lhat black lawyers nero to obtain more mainstream bu.ines.s. such as repre5enling insurance companies, banks. industries and other major Alabama companies. For yea ... th. doors to many of Ihese companies have been closed 10 black attorneys. but now a kw are beginning 10 open their doors for th e very firsl time--ilJld that is a good sign. he said. Justice Adams would like 10 see more ",hile firms reach oul and hire qualified blacks. He also ",ould like 10 see blacks start more law firms and ~ek out cases in areas such as commercial litigation. tort litigation. social 5ecurity litigalion and environmental law. •

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AFRICANAMERICAN LAWYERS ~LABA\!A

AFRICAN -AMERICAN FEMALES MAKING A DIFFERENCE IN THE ALABAMA LEGAL PROFESSION By CYNTHIA

~-v.

CLINTON &ANITA L KELLY

African-American women comprise a little OIH!r OTle percent of/he 9,778licenseti active at/omeys in the stale 01Alabama and one-third of al{ African-American attOrTleys in Alabama. There are /09 African-American female attorneys practicing law in the public (md pri~'Ote sectors. African·American female attonteys defy any stereotype other (han of commitment/a the profession, {amilg and communi/y_ The overwhelming majori tll of African-Amen"arn female o/lumegs U¥!1l! licrmsed afier the eorlyI970s. The women profiled in this artie/e. along u:ith others noI featured in Ihis article like Ani/a Archie. &verly Baker. Delores Bogd. Shery' Ha"~, judge 10 Celeste PeIlWQy. Lgnn Sherrod and Corolyn Steuerson, are building a strong Presc/O! in the Alabama If!90/ cammunity_

tle ' fprUtntfd then-Governor George Wallact in the COml'l f~ multi.million dollllr cue irwolving diw>titure by AT&T of the loal ope rating company, South CUlt!'ll1 Btll. Out for the ~ lkill$ 01 this public utility Iaw'll«ilolist, who prrvailN on bmlif oItllo Gowmor, th( citizens 0( A~m.1I. sh( Mli(Ws. would incviWlly hi", fxftI ~r !'lite hikt. M.s.. BlIttl( iI)'S thit lhe "Ii ku' compia litigation Ind thit public utilitiu Uw is highly chlll(nginQ.ltu first P'JlO' tu", to public ulilitiu ~w Mg;.n ""Mn Jht Jtrvtd u an attorney ~d\oiiKIr to tht Public Service Comminion. Thil IMi.

.,Ut

UV'" Morvan hUl. In On( CIS( Ilon( wVuda ~Io.g;.n Battle N.j'5 thit ~ N.'~ the ciliu!\$ 01 Alabama $150 million doll~ rs in in· Cfi'ut~ telephone rates. In 1984 145. Bat]70 I Ma~

19'93

tion led to Mr 19M appointment to GO\I. uno. Walilen Public Staff for Utility Consumer l'rotetlion. Of her carter, Ms. Battle A)'I lhit exh position has been a building blodc for the nnt. M,. 8alll(, I (orlm r administ rat ive iudle for the Eq.W EmpIoymmt Oppm-. tunity Commiuion, IliKI sp«illizu in tm~nl ind libor bw. Shor ""PRJtnti tM pUSOfInti bGird 01 Jdfuson County and privat( indU!l.ry U dtf(1lJt counKI in (mployment litig;.tion. Shor has Imn Itad coullMl for the personnel bond in the Rirm ingham fi rt f1ght u CIJt, whiCh she 111)'1 was b.utd on a Unit(d StattS Supreme Cou rt decilion in

THE ALASAMA LAWYER

]989 which ~ riIt ]0 It.. Civil Rights Act of ]991. The ]978 Univusil~ of California In....'. Law School graduate ddines success 015 a commitment to ucellence. She is not contfllt with her sucaSS alone u a law p;artnc:r in the Birmingham I,w firm of CorlUlm " Waldrep, P.C., and upires to open doors 10 make mon options available fo r the inclusion of WlJlmn and Afrian·Almrieans in diV!rst rltlds ol pooict, Mi. Battle is a workina mother and hu IIftn In advou.te for ;ssuu wIlich involw mothus and children. She is married to altomtjllynn Battle.

tduaotion. She Ihtn iltfndtd ~ school It Antioch School of Law beause of its stTOOlil clinical prognm and I""'ilion of public inler~t law. Ms. LudJiOOd gradu· at ed from Antioch in 1981 and wlS ~m;lIed to the Alabama Sute &lor in lhat Sime )'Ur. At the lime she graduated from ~ school, she planned to toll· .:mlnle in mm;n.11 ioo cMI rights law. Afte. admission to the state bar, Ms. Ludgood practicod with I small private t- finn in Mobilt, ~ Wltil 1988. In 1988 she ~ntd her own solo prK' tice in Mobil •. ~1i. ludl/OOd Siy5 tlUll this 5010 tllperienu pl"tlYidti.l her with lin entirely ntw I"'rspecl iV! on the privale practiu of law. In addition to lhe prot'u. 00ni1 legal work, she also fouoo herstlf ra.pOnSible: lor the bwinm of ~r· ali", .. !low finn. Duri", this time, Ms. ludgood carried on a gener.ll pradice in which she repreKnted Mobile County in va.ioul count~ proceedina. and p'". ticed probate, f~mily and Nnk.uptcy

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LudSood made lhe decision to become I ~r durina her fourth or rofth )'Ur in elementary school. While sh. didn' t know an~ la~rs, she wOl5 convinced that this was Ihe caWlr choice for her. Now txmIlM dirtdor of the Legal Str""n Corporation of AWwnl. Ms. Ludeood ..... unply reiliud her urli .... 1JOiI1. Ms. l udgood aueOOed conege It the Uniyer.ily of Alabama where she receiwd II b.xhtlor of science deglft in

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TilE AlABAMA LAWYER

her to giV! bad< to the community, One of the highlights of MI, lud· good's ca . ft. involwd a state capilal murder case in which MI. Ludgood .ep· resenttd the defendant. On the d.!.y she recei"ed htr Nr results, Ihe tr~1 jury came back with II guilty Vf,dicl, Ms. I.udgood appu,1ed the cast, handling thr appdlatf britfing and orallTgumfnt. Ewntu.lly, Ihe tiM' w.s reyuled and remanded and MI. ludgood's dient was Iott fret. Mi.ludgood hu betn fUCUliYe dirft· lor of the LtgII St.vices Corporation of AW>ama sinct Dtu~. 1991. lin of· fie. is loclt.d at 20 7 Montgomery Strett. 500 Ikll Iluilding, MonljJOlnery, Alabama. Ms, Ludgood tnjoys IItr cur, rent position with ug,tl Strvict$. H0wever, shr is laced ...ilh deilina with what she called Ihe restrictive regulillions that came out of the Reagan ytars on how Legal SlirYicts KrY... Clifnt •. Because .... II still winding down her pri· vate pudice in Mobil., AIIINma, Ms . I.udgood is nquired to do a signmant amount of trawlling ~twetn Mobil. and Montgomery.

.Judge Vanz.tt. p, McPh. , . on The Honorable Vanzetta Penn Me· Pherson pncIi«d law lor 18)'flfS bolon her April 1992l1p!lOintmeni as a United States MoIIIiilTllle Judge. following her gr;>duation from Columbia Law School, $he wo.ked with the w an Street law firm of Hughes. H~rd " Rted. After I brief ilint u ~ Assistant Altormy Ctner.ll for tilt Slate of Alwma. silo btgIn .. solo prxticr SpeCWilina in corutitutionallit· igation and domestic relalions. Judge McPhfrson is a self·defining WOrt\lln. She SiI'S that sh. did not pal. tern he~lf after out)' p;articulir ~., but WiS guided by htr dui,. 10 be instrumental in r.lI"IOYing ~rrifl"l thai prtvent ptople from becoming their "Whote KIV!s," Judge McPherson holds

Moty 1993/ 171

sttadfw 10 Ihr btlitf Ihlot I'Wple $hOuld hlo~ Ihr dw1a 10 go as high or >ink as low as thrir abilities ~rmil. Her com· mitmtnl to others. lhr Nys. siems from ""lItchina hrr ~rs being denird <)pIlOT' lunitiu Ihu ~rt ~Vlillblt to htr. - . was foriuRltt 10 hlo~ rectived a good ~lKclOtion and to hlo~ ~ accQ$ to cui· lunl tnhloroctmtnl. books. folkliles and a full and bloJloming family." Tht Judge's aspi ralion i. to .....h ~ diff~r· tnee in life by leaving a legacy of con· tribuling lomelhing that il good ~nd laking away IIOmtthing that il bad. Judse McPhtrllOn', most ..... arding profelJional u~.ienct ... as her Irgll nprn.enution of Ihe Scon pllintiff inle~nOTi in Sims 11. Monigomull Coull/II OJmmWion, 766 f. StIpp. 1052 (M.O.AlL 1990), I nu discrimination 1l"'Suit. -f irst, I embrx~ tht lim of Ihr ~ whoIthrlT\~1y as I penon and is I Ilwytr." sht said. ·Slcond. Ihe rnults lehitvtd hlvt hid an impact btyond Ihr tlitnu whom J ~pruenltd. Third. a jurisprudential foundalion wa.o; laid 10 enlun thillhr wrongs haw bten eliminated. And finally, I was adequately comptn.,ltd." Judge McPherwn ... YI lhat sht would like to $tt lawyer> hiv·

ing mort fun. "~rs do not $l'l'm to bt as t11thusiastic about their work and purpose. ~n should be entrgtlic. ph)'$ic.ally and mtnlilly." Jud# McPhrrson is IfIlrr~d to Thomas McPlluson, Jr. and is tilt mothrrfARHQan Our.mt..

Ms. L..Itedlh Muhammad is a sole prxtitiontr In Macon County. ~ Htr offict il lonlod u 204·A S. Elm Strtd. Tusbgtt Institull. ~ Her MUs of prxti« irw:ludt t11torUinment. rell ntate, "'rongful duth, perwnll injury, pr~t. and 110m. inlomati .......1 Ilw. As an enlertainmenl lawye r. Ms. Muhammad locusts on the business up.c t of the entertainment industry. Shr is aculely aWl •• of the many ways

BAR DIRECTORIES 1992-93 EDITION Alabama State Bar Members: $25 each Non-members: $40 each Send check or money order to:

Alabama State Bar Directory P.O. Box 4156 Montgomery, Alabama 36101 172 1 May 1993

)'OUng, new enUrUinors are sometimes liken idvlnllgt O)f by othtrs in tht indUJtry. Ms.. Mu/WnrNd nuiwd hrr b.ld!elor of Kitnct degne in ..... rktting from thtn TUsktllft IMiluu. She \twn ~M on 10 'irn her law dtgr« from Thur· tiood Mm~1I School fA Law. Whilt in Li... school. H ... MuhlImmatl ""lIS seltcUd 1$ ~itor·in"","hitf 01 the Il". n:vitw. SIN: was alllO selected to:lt....., IS gavemor fA Ihe 131h Circuit of the American Bar Association L..I... School Divi$ion. Thi. experience allo... ed Ms. Muhammed 10 trawl and meet people from .. wide SpeCtrum. Ms. Muhammtd gridualtd f.om liw school in 1>\ilI1991 luld ""as Mimi!It<.! to pn.ctiC4' in Alabima in April 1!I91; .he i, alllO a<!milted to practiC4' Mfort lhot Un;t~ Statu District Court for the Middlt District aI Alabirm.. MI. Mut.lmmad hll worked with EmtStine SaA:>. also fA M;ocon County. Alw ...... MillOO Belcht. ind COUTlnt"Y Tarver. Ms. Muhim ..... d hold. thr di5tinction 01 being thr first law clerk for Magistrale Judgt Vanulta Plnn McPhtr· $On. She delCribes the uperienct as a very positi .... one and hM l high rtgard for Judge ~lcPhrnon. Ms. Muhimmad was born and grew up in Armltrong, Allblml, sitUlled in MI<:(In county btt...ttn Union Spri ngs Ind TU$ktget. Mt. Muhammad'. g..at. grul_grindflthe. h"d a hand in the namina fA tho city. Ms. M~ says lhitlihr ..... kes I point fA IfOing home ngullTly btaiUH lh. belie\"n it hetps keep her ground~. SIN: futs il i. this return 10 thr communily thit give $0 much to htr that kHPS Ihings in focus. M•. Muhammed l.I.ys Ihal she credi t. AILih for all thil sht is and alilhal she will become. Ms. Muhammi d fttll very strongly thol II~n provide a rtal ..,,,,ice for thei r elienll. On. of the rewards sht gaiN from prKticing law is tilt .,Iisbclion fA knowi", lhal shr iJ doing .."hat silo .... 10 hl:lp othtT1. This is. m.."Md, shl: is quic. 10 upl.l.in. thai annot bt bought WIth money. TIlt SU«esstS lhal hIw ..., fu COmt to Ms. Muhammad hIw IIftn Il>«H.ItS silt not only want~ lor hen.elf. bul for hr. ptOJIle. She is a strong adwcalt ol persistt11Ct ind dedi. c.alion which an refTtd~ in the man"",' in which tlw ...as tott«t~ to participate in thr CI,~:O I'TOi/ram the lummer btfore

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TIlE: AlABAMA U<WITR

she "'tutd IJw KhooI. lob. M~ ""ill that alIu she _ informed tho! she !\lid bHn plactd on the p.lrticifWlt wait· ins list. she lind a menlor ClOlled Ihe CLEO office twice a day for lour days. Aft.r lour days. the CL~:O Pl'OI!ram knew it had to find .I pillce for hu, she s;oid. The CL EO pro,ram provided M,. Muhamm.od wilh .. Sood introdlKtory tqlO$U~ to 1Jw. Ms. Muhantmod hid found the private tmCIice of law 10 be rewardina. She kelt that her pa$S;ng oJ the bar .....as ~ lulfill · ment of a d~~m lind goin, into private practice has betn I continuation of that drum .... Iso shuin, Ms. Muhamlllild's drum is her hustw!d, 11 "",,idan wilh the 1JOuII. The s.wnth Wond«. UId Iltr lOll. K.ir"Rm Mutwnmid.

E.....tl ... S ........ Emestim s. ~, .. p.lrtner " .. th the IlIw finn eTa)'. Llng/on!. Mce;.;".,.an &i Cray. has betn ..... ith lhat finn for 15 years. Ms. Sapp is a graduate 01 Wiley College and w3$ tilt fil1t African-ArIItri· ... n lerru.le gTJoduate from Jones School of L..Iw. Ms. Sapp was admitted to the IJabamlo SUit Bar in 19n. After graduating from l.i.w KhooI UId pusing the bar, Ms. Sapp worMd as lin lIttomty wilh tilt I]ni"mity of ...laNrru. ugal Services System. She also worked lIS lin Affirmative Ac t ion Ollie .. lor Tuoktt/te University. Durine her tenure with the University of Allbltna legit SeMcn System, Ms. Saw rKei,... d an Inyitlltion from f.ed CrlY to join hil firm. MI. Sapp accepted the invitation and has been with the form ever since. She ducribu htr e~ptri .nc. of working wi t h eray u Yuy rewardin,. Sapp·. ueas 01 pr>dice lin ,eotral civil pra.c. tke. domulic reliliolls, binkruptcy, p.ob.otf, ruI atilte. po.,.,.....1 injury. rdu· Cll t iOlllOl in .li\u t ion la w. IlIb-or Ilw. municipal. corponle, and ciyil righls Ilw.

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Some of Ms. Sopp's professioNl affilia· tions include the Amerlun. r edent. NlIlional . Alabarlll and Micon County Bar Associations. She is I me-mber oJ the Executiy. Committee of the Al abamll Trilll Lawyers AMociation. the AlaNrru. Standing CommiUtt on JlMnile Pn.>c~. dUff. W the AIaIwTlll Supreme Court Advisory CommiUtt 00 EYiden.c:e. SIlt is llimittrd \0 practice belort the S~ Court 0( the United StaltS. the United Statn Court of Apptllit for the Eleventh Ci"uil. the Unitrd Statu Di$lrict Court lor the Middle and Northern Districts of AlWma aoo the Supr.me Court of Ala1wTIlI. Ms. Soipp is the first In>"Ytr from ~ to be tl«trd vict·praidtnt of the N~lional flu Association. M,. Soipp Iw alwa)'S betn tlItremely <acti,... ly in'"(llved in community ~ff~i". E\ltn belo.. beginning her legal studi ... she was generally dtscribed as a "com· munity iJdivist" woo was commillrd to improving the IoClII Khool S)'$I:tm. She UId Ivr child",n ....... '" ",,,,l.Jor yoluntttfl with tilt local Red Cross. Ms. Sapp Iw continued thllt lIC t ivi,m with her Involvement on the National Bylaws Committet of American Auociation of UniveTlity Women. the Tuskegee Board of Oinctors 01 the Coalition of 100 Bl.Jock Women and Links. Inc. Ms. Sapp i, I mtmb.. of tht Alabama Otmocratic Conftrence and lOn dected membe. of the Alabama Democratk t:xecutive Committee : sh~ was a 1978 del.gate to tht National Democratic Con~ntion. M•. Sapp Iw tR\o'Oltd tlIttNlo.'Oty with ~g,ll twns 10 China and the Soviet Union. Whtn Ms. Sipp initially began her pDClict of civil . i,hll law. ohe points OUI thai those ca.sa ,,"'re not cases one would today think of as i civil rights cuu. lier clients mighl ha\il' com. to her 011 a traffic ticket matter. but tht underlying rUson for Iht issuance 01 tilt tkket she s;o)'S, was the client was an IJriCilll-AmeriClln. SIlt deocribes the siluation durinQ the 1970$ as one where Ittmingly on!iNlry things would h ~ppt n 10 blac k peoplt. but only beClOuu they .....,.. black. Ms. Sapp IttS her role as II la~r as an opportunity to rilht wrongs. One 0( t ht grutul rew.ITds ,he hlls gotltn from the pnctice of I.Jow. she Ja)">. h.IS betn the chance to W~ and Itt people be happy about the ruolution of thei r problems.

I""

c.ro.. C.-.I1" Smlt ........" When William Jdl.rson Clinton was .Itcted the 42nd President 0( the United Stitts. Cnole Citlin Smi t htrman's name won lI~ut6 on I short list 01 potentu.llIppointtU for United Statt. Attorney for the Northern Oilt . ict Of AllI~rru.. The B;rmin~m·bom allOl"lit)' has al ready 5frved in the capadtiu of circuit ju~ for JefftrIOn County and municipal jud,gt for the City of BirminQham. She has ilso xted IS deputy district aUOITIq' for JtflefKIII. County. Ms. Smithenrwo, who graduated from Miles Uw School. dtso:nbts htl""Sotlf as a public se",anl. "All liW)'ers are public s.",ants with a ruponslbility to thtir communitiu: Ihe s;oys. Ms. SmitherrIIIn', philOJOPhy of public "'MCt hall Its Itnesis in II IR,Iic txpfntnce tN.t left a childhood fritnd dew, I cuualty 01 OppOSition to the civil rilhls TTIOYtmtnt. Denise MeNlO ir. her but childhood friend, was one of fOUT child~n kill.d in the 1%3 bombing 01 Birminghllm's Si~ ttenlh St.. e! Raptist Church. "I ~mem' ber not understandin, why in arrest was not made and Ittling l"'t injustice UId "'t.ed " ... Tt wron,. I ftll thai 1 could m.okt • diff.... nce by bec.oming II pubtic Sotrvant. an attomry: Ms. Smilherm.n·, eady menton included Birmingham civi l rights attor· nty Arthur Shores and Ihe d.cu.ed Supr.me Court Justice ThurSOOd Mirshll.tl. "Art hur ShoTn and Thurgood M.l.rshall ...... ~ ...iblt and making .. dil· fe~nce. 15ft out to emulate lhese mtn: me s;oid. Although her ta rly role models ..... r. men. Ms. Smithtrrn.l.n believe. that it is ext remely impOrtant thl! w<lmen an iCliYt and visible in the legal community as. in her view. -...on.n brinI a dilf.....t pe~ that is ott", lost ,,-hen thti. concerns a~ not I'Oiced by women. M,. Smi thtrmlln prllctiCf$ IIW with her husband. attorney Roger Smit herMay

1993 I 173

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174 I M~yl993

min. in 8irminghlom. Alabami. Sht is ~ womng mothtr oIthrH childrffl.

tJ.nt district attorney for TUiCJloou. County sin~ AuQuil 1990. for I ""Y 10nQ time h •• bun intHtsttd in the crimin.ll prwecution . ru oIle~1 prac· tice. Ms. Wildlinglon wanltd quick trial exptmnu ~d her erimlNI practia has gene",lIy been what ihe txptcttd . Wadlington is. 1985 g",duate of the University of Alabami. md a 191)8 graduate 01 the Uniwrsity of Alabama School 01 ~w. \Ii"hile in law school, in ~ition to woricing. MI- Wildl ington was Ktiw in IIAI.SA and elerktd with Judge PluJ Conter. 1I ci rcuit court dommic .. la· tionsjUligt. M$. W3dlington aim clerktd with the citia of TUKliocW and Bi.· minghlm befo.. compldina law school. Ms. \\"Nlington's mother worked in tht Shelby County District Attorney's offic. during Mi. II'adlington's tI.ly ~us. Wldl ington credits her moth.r with encouraging her to fl!>lo .. ~ legal COIreer. One of Ms. Wadlington', more inter· esting. if not biu.n. cuu involved a defendant on I.ill for rape. Ms. Wadlington p.oncut.d the CaSt and .rt .. the Inoouneement of the guilty wrdiet. the ddend.lnt ingested I poi. sonous tubS!lnce. Whit would ha. .... bea1 I simple ase of scheduling. sen· tencing huring.. took on tho wry compltll i~ of dttenninina wht1htr or not the ddendlnl was sufficiently com.,.lent 10 buentenctd. MI- Wa.dlinlllon ~ that sht f..ls it is w!)' important to giw back to the com· munity. She and ~ group from her chur<:h ,ilit a ju"!ni\, .utention facility in order 10 suppOrl and encouragt 11K young dttaintu. Ms. Wldtinglon ,njoys doing ~t rob;cli wilh hfT husband. ZKilary. and .-tadin, •

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Please complete one of the Change of Add.ess

P.o. Box 1200, Oneonta, AL35 L2L Phone: 2051625-4777 Fax: 2051274-0178

forms on ~ 181 or 185 and return to the Alabama State Bar office. TilE ALABAMA LA\\'YER

AFRlCAN-

LAWYERS \1 \

AN OVERVIEW OF JURY TRIALS: LEGAL AND PROCEDURAL CONSIDERATIONS By HON. KENNETH O. SIMON This oul/ine discusses various aspects of ajl/TV/rial, including opening statements. jury selection, presentation of et'idence, and closing arguments. By becoming familiar with the legal principles underlying the procedural aspects of Q trial. cQunS<!/ can

more effectively (annulate and execute a trial SITU/egg. 0f06e.r of pnx:Hd.... Unlw tilt rilh! is W>oiYrd, the plaintiff iI; ~ntill,d to ()ptn UId conclude ..... ry UK. Clrom~rla;" •. Gaillaro, 26 All, 504 (1855)."",", ~ 1>0\.. brm ton· soIidIottd lor trill. the trW court Iw discrelion \0 dete rmine which lIuly procuds firs! in conducting wir di~. striking the jury. giving opening stattmen!s , uamining wit" •••.,.. and pr._ sen t ing cloling arQumenu. Smith v. BI'OIl7lr",ld. 533 So, 2d 573 (Ala. (989). 'The or~r in which prool is pr .... nttd is in lilt trial court's discrdion. AlforrJ v. Stote Farm Fin & Cos.. Co.. 496 So. 2d 19 IAla. 1986): Drs. /,an~. Brllanl, £u/xmJt$ /I Duitmtll v. Otis. 412 So. 2d 254 11011. 1982). Thus. Ihe Irill judge mly permit tilt introduction of Mdtnct lido« 0100 IIfOOi which is n«essa.ry to IIIlke it competenl and reln-lnt. Finl Slal~ &mJt (J/ AlbmlJi/k D. Duvall. 345 So. 2d 1371IAll.CivApp. 19m. or lTIl)' permit the eQmi""lion of wi~s out 01 order. Pullman CtI. v. Meger. 195 Ala. 397.70 So. 763IAla. \916).

The p;irties lTIlIyoffer rtbult.1ol testirooIt lilt clolinjJ of thtir Qse5 in chid. AcupQnct. or rtjtdion oltntimony not

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strictly in rtbutUl is within th. trill court's IOlUnd discrttion. C4habtJ VoI/"lI OtMfoplII.m1 eo.".. Inc. v. Nuding. 512 So, 2d 46 (A4. 1987): Whilt v. &wI, 455 So. 2d 820 (Ala. 19841. Similarly. lilt d«ision of whether 10 allow a party to reoptn hlJ or her cue to submit addi· tiOn.t1 (Vidence is alS(> within the court's discretion. Grwn Trw N=plance. Inc. v. Slnmdri~. 565 So. 2d 38lAla. 1990). A ClSt should ~ reopened when the Idministrltion justice"" requiros.

Hancock ~ C/III of MooI{lOnlltr/l. 428 So. 2d 29 (Ala. 1983). ....,. -...eUon .... VOir DI..

I . Ce nt ..t Putiu hlove a right to tlW1line ju...... on voi r di re. as to thtir Qualifications. internt or bias that would affect the trial or tht verdict. Alabama Pow<!r UJ.

D. 1Janno. 459 So. 2d 827 tAb.. t984): C/Qr/r D, Sialt. :t94 All. 493. 3]8 So. 2d 822 (1975). Stt ~ntrall6, McLeod. "Voir Dirt Eumination of Jurors: ATU Journal. vol. ]. no. 2. p. 21 (Ma~ 1982).

Although th-t p1IrtiH hlove the righl to conduct a "libull " inquiry on voir dirt. Clark v. Siait. supra. 294 Ala. at 495. Ih. I rial judge has broad discretion in controlling the scOpt and conduct of the e»mi~tion. Id.: McUrod v. Siale. 581 So. 2d 1144 IAla.Cr.Ajlll. 1990); Corbin 11.51111,.551 So, 2d 429 (Ala.Cr.App. 1990). The trill court'$ di>c .. tion may M abuud. however. if the ~rti .. are

unduly rtltricted from determining juror bias. Nodd II. Slale. S49 So. 2d 139 (Ala.Cr.App. t989). Voir dirt OJ intendtd to pnwidt pjlrtits informalion in ordtr thai peremptory chal1engts may b• inlelligently mide. Alabama Pow<!r UJ. u. Bool1er. supra, 459 So. 2d It 832;

VidnIn v. H()Wtlrd, 28t All. 691. 208 So. 2d 72 (]96IIl: RMJeS II. Slait. 470 So. 2d 1374 (AII ,Cr.App. 1985). Accordingly, voi r dirt t»min.ation! are penn illed in May 1993 / 175

number of areu. inciudin,: (I) whether jurors have formed opinions lbout the cut. Andtrwn v. Sial" 362 So. 2d 1296 (Ala.e r.App. 1978); (2) whelher juro .. Ue employees of an inltrtsltd PllTty, Shtlbg Coun/II u. Bobr, 269 Ala. III. 110 So. 2d 896 (I959): (3) whether jurors Irt litnts. empioyfts or stockhokltrs of Uly imur· ance company thllt may be liabl •• in wholt or in pari, for any judgment lhat mi,ht M enlered; kma I). C,otEford. 361 So. 2d S]8 (AI ... ]978); CiliuJU' light, IImt" I'I1f«r Co. II. i.ft. 182 AlL 561.62 So. 199 (19!3): (4) whether any mtmber of the venire il In ;murllna ~USltr.

Burlirlgtoo ""'them R. Co.

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"7Iill. 575 So. 2d 10]] (AJ.a. 1990). over· ruling ~ II. Bishop Frwman Co" H5 So. 2d 5S9 (AlII. 1986); (5) in tht cut of a mut.w wrnpany. whether ltIy juror is II policyhol du . Welbo rn I). Snider. 43] So. 2d 1198 (ALI. 1983); or (6) whethtr art)' ven;re membt. workJ in the claims IkPirtmenl of IIny compa· ny or governmtntalag.nty. ShdbV COI",IV Comm. I). Baile,. 545 So. 2d 7U (Ala. 1989). In inQuiring llbout insur. ance. counKI mUlt bt cueful to IV(lid !<lying or doing anything which would load lhe jury to btli~ thllt the oppO' nenl ha5 insuranc. coverage. Armnican Pamcar. IrK:. I). Evans. 288 All. 416. 261 So. 2d 139 (1972). ror tumplt. an uninsu.ed/underinsu.anCt carri ..·1 . ight to ol«t not to participate in II t.ial against the tortfulo, lu p,ovided in w- II. NatioouoUk ITll. Co.. 52] So. 2d 1309 (AlL 1988)] makes it improptr to Quution venire momben concernin, thir auoxiaiion with Ihe CllT r ier. McLllin I). RouIZOO(J. 27 ABR 336. 338 (Nov. 20. 1992). On the other hand. in McLllin. tm lup~me court ~fuKd to ow:rturn Ihe Irilll cou.n rdujll.] to aJlaw pLaintiffs to ask the veni~ whether

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1 76 1 Ma~

]993

they or ~n~ famil~ membtrs had ever evaluated cLaims in their jobs.ld. ReverIII waa unwlI •• ~nted becau$o no evi_ dence sugguted that the uciuded Question was fNterial to the plaintiffs' right to utfcise thoi. poremptory strikes o r thai the plainhfrs right to Hlect lin Imp.llrtial jury .015 impaired. ldo it 339-40.

2. Mode or ua.mwUon The trial <;OIlrt fNy pennit COUf\OtI to conduct Ihe voir dirt eUminalion Or may conduct the eumim,tion itHIL ARCP .t7(a). In the t\'!nI tho toUrt conduelS tho tnminotion. tho pi!.rlioes may supplemtnt the eumination as IIPPropriate. Id. CounHl's right to Quution prtIIIltctiYt jurorJ is limiled by proprioty and ptrtillf11ct: questiOO5 must bt mo· IOIIlbIt under the circumslancts of the cut. MclAod~. Sla/~. 58] So. 2d 1144 W,.CrApp. 19901. Tho c""rt ""'y conIralthe clarity of Quutions. MoTTis II. Zoe Smilh Sialioot'll OJ" 274 Ala. 467. ]49 So. 2d 8]0 1I96J); allow or itself 15k leading QuuliOn5. F/armigin v. Slal~. 289 Ala. In, Z66 So. 2d 643 (1972); dis· allow argumentati\lt ~uestion5, Peoples u. Sia/e, 375 So. 2d 561 (Ala.Cr .App. 1979): and disallow Questions in the natu.e of jury Inst.uctions 15 to legal principlu applicable to the cau. 8ra,eu:~11 u. Slat~. 447 So. 2d 815 (Ala.Cr.App. 1983). 3. Colletti ...... 10111"'....1 It is within the lrial court's discrdion whether to Qutstion jUfOrJ collectively lin u<h o\ho:rJ' pre~o} or irKli",du;olIy. &aU 11. Slal~. 282 AlII. S86. 213 So. 2d 645 (1968); Smith I). Slalt. 588 So. 2d 561 (A\.I.Cr.App. 1991); Pur"" u. Stat~. 587 So. 2d Ion (AlLCrApp. 1991). The primary~. . in individ.w!y QutS· tionlllll uch ju ror is to l\'Oid IIfISI,'erJ and rtfIIlrlIJ by jurors that may have a prejudicial dffd on o\ho:r juron. /kath I). StaU. ~80 So. 2d 26 jAIII.er.App. 1985). Set Bollllt I). Stal~. 574 So. 2d 943 (AII.Cr.App. 1990) (entire veni.e could have bttn tainted if prospectiw: juror. who btlitvtd she kntw too much lbool the taH. had rewaled del.1ils of what she knew). Some re"",rks by jurors may bt so inhe.ent/)' prejudicial as to bt ineradicable. 1I01Ilmd.,. Slo/ •. 588 So. 2d 543 IAla.er.App. 1991). If the damag· ing effect of the .ema.ks can bt eradicat-

ed. the trill cou . t should p.omptly invutigate to determine whet he. t ht ~"",rks had I prejudicial effect on those who hurd them. lind whtther venire rncmbm can disreg,.rd the ~markJ. and provide any necessary curative Instructions. (d.

• • ChIlli. . . . . I~ c ...... 1. StatatOf}'...-..... Section 12- 16-]50 of the Cod, of Alalxlma (1975) KlS forth the genera] groundI for dwlt"ll~ juron for auH. T'htK grounds include: (oa) He Or she has not Men .. resident householder o r freeholde r 01 the (oun ty for the lit! preceding Iii

~""

(b) lie Of sht is not I citiun of ALlbioma: (() He 0. she has bten indicted within the IMt 12 months for, felony: (d) He 0. she hi15 bten convicted of I felony: fe) It. or she has a fixtd opinion as to the guill or innocence of the defend· ant which would biu his verdict: (ij H. 0. she is u~. ]9 yellrs ofllle: (81 He 0. sho il of unsound mind; (h) H. or she is plaintilf ar Ikfendant in a cast which stands for trial during the Wttk he o. she is chlllengtd 0' is .eLated by tOf\Singuinity within tht ninth degree or by affinity within the fofth dtQIft. computed attarding to Ih, ruin of the dvi1l~w. to any ~nomry in the cut to bt tried 0. is I p.lIrtner in businua with any p.lIrty to wth~:ar.d

Ii) lie or sht is 1II offICer. eflll>loree. or stockholder of or. in cut ol a mutual DJIllI)aII)'. is the hoIde. of I pOliqo of insu~ with an insurano;t compa· ny indemnifyin, Iny party to the cut "",inst lilllility in whole 0. in part or hoidilllli subroption cLaim to any portion of the pnX«d$ of the claim lufd on or Min, othfrwiH financial/)' int,ruted in the result of

""~. 2. C.... _ t.w .roa..... The staluto<» grounds for cause chal· lengo In not exclusive. Pooff v. S/I;1I~. 496 So. 2d 537 (Atll. 1986): MOS~$ v. Slat •• 356 So. 2d 712 (AILer.App. 1978). A common law challenge must Involve some matter which imports IIblolute THE ALABAMA I.AWYI;:II

bias or favor and lea'Jes nothing for the discretion of the court Or a situat ion which presents a mixed question of law and fact to be determined by the trial court in its 5Ol!nd discretion. WallaG!~. Alabama '>o."lIr Co.. 497 So. 2d 450 (Ala. 19861; Mullu v. Siale, 258 Ala. 309. 62 So. 2d 451 (19521. Probable prejudi'" f(}r any reaSOn disquali fies a prospective juror. Alabama Power Co. u. Her/dersc",. 342 So. 2d 323 (Ala. 19761: A'abama Fuel & Iran Co. v. POI<)(l5Id. 232 Ala. 66, 166 So. 7&2 (1936).

3. Dele .... lnallon of .. hethn ellllile ul. t . ..h e" Jllror hu fhtd opln_ 10.... hi ..... or Imo .. ltdft of r..,b Tht fact that a juror h;u bias or a ftR<! op inion is not a sufficient basi. to requ ire removal for cause: the juror's opinion must be so fixed that it would bias hi' or her verdict. Siring fellow v. Slole. 485 So. 2d ln8 (Ala.C r. App. ]986). The test to be applied in determinin8 wheth er a juror sh(}uld be re~d for cause is whether the juror can follow the instructions of law given by the court. eliminate the influer.c:e of hi. or her pr.... ious feelings, and render a verdict acoording to the evidence. Knop u. McCain. 561 So. 2d 229 (Ala. 19891: Rou,'I1/l v. Siale. 570 So . 2d 848 (Ala.CrApp. 1m); Bori>« v. Siale. 395 So.2d 1128 (Ala.CrApp. 198 1). Ju rors need not be totally ignorant of the faets of the case. but only impartial in render· inga verdict ."dusi,-:Iy on the ...idenc•. Ex parle Fowler. 574 So. 2d 745 (Ala. 1m); Ex parle Gra/lsoo. 479 So. 2d i6 (Ala. 1%5). If a juror indicates that he or Wt is biased (}r prejudiced or has dup. seated impressions indicating that he Or she cannot be impartial. a challenge for cause must be susta ined. Knop v. McCain. supra. 561 So. 2d at 234. A chall enge for cause is properly over· ruled if the prospective juror persuades the court that ht or she can render. fair and impa rtial ....,rdict. Jorrell v. Siole. 355 So. 2d i47 (A1a.CrApp. 1978). Haw· ever. if potential jurors exhibit probable prejudice, they should be struck for callSil <wn if they ltate they can be fair and impartial. K,rop u. McCain. supra , 561 s.:.. 2d at n2 (two jurors should have been struck where one said people "... too quick to sue- and that the "evi· dtnce would ha"f to be O\.·erwhelming for [plaintiff] before I would be willing to THE ALABAMA LAWYER

give her money"; other juror said she 'probably" could be rair and impartial although there was -some" doubt). 11 a juror makes an initial statement that is vague. ambiguous. equivocal. uncertain. unclear. or ..fleets confusion. the trial court should inquire further to determine whethe r the juro r can be impartial. KnOP v. McCain, supra, 561 s.:.. 2d at 234. The trial court has the right to reject jurors for cause ex mero malu. Williams v. Siale, 24 1 Ala. 348. 2 s.:.. 423(]!Ml). The trial j~ h;u broad discretion in sustaining or denying challenges for cause. Ex parle Dinkins. 567 So. 2d 1313 (Ala. 1990); Kum(1r v. Lewis. 561 So, 2d 1082 (Ala. ]990). 4. Sufficlenc.!' of ,ronn"': ....rtlclll .... c.....

Sufficient cause existed in the following cases to requirt removal of jurors for cause: (a) Family membership within prohibit· ed degrees of comangu ini!), or affinity. Duke v. SIOle. 257 Ala. 339. 58 So. 2d 764 (1952): lillie v. Siale. 339 So. 2d 107l (Ala.Cr.App. 1976). (b) Bias in fa,-or of or against a party's attorney. Ex parl~ Rulledg.i. 523 So. 2d 1118 (Ala. 1988); Coco-Colo Bot· tling Co. v. Hammac. 48 AlaAw. 60. 261 So. 2d 893 (Ala. CivApp. ]9n). (t) Fami ly member of a material wit_ ne,s. Ex parle Tucker. 454 So . 2d 552 (Ala. 1984). (d) Service as juror in related Or com· panion case or during prior trial of the sam< case. Comin v. Robntsoo. 289 Ala . 90. 265 s.:.. 2d 602 (l9n): Davis v. Siole. 24 Ala. App. ]90, 132 So. 458 (1931). (e) Bu.in.,!. pmfe"iona l or employ ment relationship with a party. Grall v. Sherwood. 436 So. 2d 836 (Ala. 1983); Welch v. Cilll of Birmingham. 389 So. 2d 52] (Ala. CrApp. ]980); Kmdrick v. Birmingham So. R. Co .. 254 Ala. 313. 48 So. 2d 320 (1950). (f) Stockholder of interested party. Wallore v. Alabama ~r Ca., 497 So. 2d 450 (Ala. 19S6); Milchell v. Vom,. 278 Ala. I. 174 So. 2d 50111965). Sufficient cause did not exist to rt· quire m noval of jurors for cau"" in the following case.:

(a) Mere fact that prospective ju ror is personally acqua inted with party or member of party's family. To coruti tute sufficient lI;,.,i5 for cause chal lenge. the personal association must result in partiality or probable preju· dice. Vaughn v. Griffilh, 565 So. 2d 75 (Ala. 1990); Ex parle Dinkins, 567 So.2d ]3lJ (Ala. 1990); Bramille u. Slale. 545 So . 2d 151 (Ala.C rApp. 1988).

(b) Family relationship or acquaintance with a witness.. Johnson v. Siale, 502 So. 2d 877 (Ala.Cr App. 1987); Moore v. Siole . 488 s.:.. 2d 27 (Ala.CrApp. 1986); Scotl v. Siale, 413 So. 2d 1167 IAla.CrApp.1985). (c) Family member of one of the attor· neys' law partners. Henderson /I. Siole. 584 S(}. 2d 841 (Ala.CrApp. 1988) (d) In an action involving a city. citizens of the city. Ikoird v. Siale, 215 Ala. 27. 109 So. 161 (1926). (e) Membership in same Or r~lated charitable. religious. Or OIher usociation as a party. absent positivf .... idence of bias or inter~.t in the outcome. Birmingham Boptisl Hospilol u. ~,284 Ala. 160.223 s.:.. 2d 279 (l969j(membership in Bapt ist Church);Aiobama Fuel & Iron Co. v. Pouioski. 232 Ala. 66. 166 So. 782 (I936)(membership in labor union); Tucker u. Houstoo. 216 Ala. 43. 112 So . 360 119 27) (mtmbersh ip in Methodi,t Church). (fl Engagement in same busin •• s Or occupation as party. Finley /I. Sl<Ile. 36Ala. App. 56. S2 So. 2d ]67 (1951).

C. Pe ... mplcwy .trik •• Per~mptory.tri ke. allow the parties to .trike at will !host juro.. not ,ubject to challenge for cause . Each side has s" peremptory stri kes in a venire of 24 jurors. and one .tri ke for ewry two addi· tiona] >'!:nire members. Tht most signifi· cant limitation on a party's discretion in nercising pe remptory strikes is the unconstitutionality of stri king jurors soldyon Ih<: lI;,.,is of r~. s.,., Bolson v. Kenluclr,;. 476 U.S. 79 (1986). D. Procedu.... lOt" . .I_lion 01 j"~

The process ror selecting jurors and alternate. is established in ARCP 47(b). May 19931 177

which supersedes §]2·16·140 of the

Code ofAlabama (1975). Rule 38(b) provides that a jury demand is deemed to be a Mmand for a struck jury. Rule 47(b) provides that jurors shall be selected from ~ li5t of at least 24 competent jurors. with the parties alternately strik· ing one from the list unti l 12 remain. The puty dem.nding the jury may strike first. Not IT\(}re than six additional jurors may be impaneled to sit as alter· nate jurors. For Ihe purpo5t of striking the jut)' when multiple claims or actions are tried together. Rule 47(c} provide, that Iw<.> or IT\(}re partits having Telative· Iy similar interest, may be aligned as a single party. Alternative ly. the cou rt may add additional names to the jury venire and Il"'rmilstrikos to be exercised separately or jOintly. Tht plaintiff is gen. erally entitled to half of the total num· ber of strik.. allocated to all parties. Rule 47(b) alS() states that alternates must have the saITI< qu.lifications. and be subject to the same e""mination. as regular jurors. Alternates are struck from a li,t containing the names of at least three competent jurors for each

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alternate position . The first alternate juror is the last name .tricken before the regular number of jurors was ruched; the second alternate is the next to last name stricken and IQ on untH the num· ber of alternates determined by the court is reached. Alternales who are not used are discharged before the jut)' retires to consider its wrdict. Regular jurors who are unable or disqualified to perform their duties before Ihe jury Tetire shall 01'0 be discharged, See also n 12· ]6· 230 through 233 Ala. Code (1975). Th~ parties may stipulate to a jury of ftwer than 12 or to a non·unanimous ""rdict.

ARCP48. E. Opening .tale .... nl. In opening ,tatement,. counsel may state their tMories of the case .nd what, in good faith. the;' upect the evidence to .how. Nationwide Mu/uallns. eo. v. Smith. 280 AI~. 343. 194 So. 2d 505 (Ala . 1966); Cook v. wlimer. 274 Ala . 283.1 47 So. 2d 83] (Ala. ]%2);Ali<mla Lif~ I>u. Co. v. Ash. 228 Ala. 184 , 153 So. 261 (1934). The opening statement is not evidence. and dots not technic~lIy constitute "admissions." Wilkey v . Slate. 238 Ala. 595, 192 So. S&I (1940). The lime. manner and character of. parly's opening statement regarding what h. or she upects to prove are within the trial court', discretion. Siale v. liargrow. 282 Ala. 13, 208 So. 2d 444 (1968). Although opening .tatemonts are not evidence. counsel may not introdu"", immaterial. incomll"'tent or preju· dicial matter in the opening statement. lIorton v. eo"lirumlal Volk1;wagen. Inc.. 382 So. 2d 551 (Ala. 1990); Brown v. Leek. 221 Ala. 319. 128 So. 608 (1930). Thus. it is inappropriate for counsel to reler to matters which would improper· Iy influence the jut)'. Allania Lift 1"5. Co. v. Ash. supra. 153 So. at ISS. Some statements may be :\0 prejudicial as to cons t itute reversible errOr when a motion for new trial is den itd. Cups Cool Co.. I"c. v. Tfflrn's.ret River Pulp & Paper Co .. 519 So. 2d 932 (Ala. 19S5) (reference to inadmiSSible prior convic· tion); Horlon v. Dmlinenlal Volksu'{1· gtl1, /nc .. supra. 382 So. 2d at 552 (ref~renc. to size or wealth of automo· bile dealership and owner thereof. a non·party); Cook tJ. LAtimer. wpra . 147 So. 2d at 285·86 (appeal to the sympath» 01 the jury).

F. ~.entatlon of Evidence 1. Witne.. lu timoll,)l As a general rule. the testimony ofwit· ne"", is to bo W.en orally and in open court. ARCP 43(a); Harrison v. W;."vies. 466 So. 2d 125 (Ala. ]9&5). A P/lr\y has a right on direcl and cros.s-camif\/ltion to conduct a thorough . ""min.tion of a witness. Camble. /'fcElrogs Alabamo Evidence. § 121.o!. 3d ed .. p. 249. Lead· ing questions may be asked on cross examination .nd in th. examination of adverse witne,,"s. ARCP 43(a) and (b). However. a witness has a right to be protect.d from certain conduct. including mistreatment Or being asked to give "yes' or "no' answers when he or she cannot do 10 or without an e~planation. MeElrog·s. supra. at U 121.91 and IZL02. Cenerally. only one counsel on each side maj' e""mine a witness. ld. at § Inro. H""'f''er. all counsel ha,'e the right to make objections on bohalf of a party. Id. 'f"he trial court may ask qu.,· tions. even Itading questions. as neces, sary.ld. at § 121.04. Such questions may not Ie..... tho impression that the court favors a P/lrticular party. Ill. 2. Docu",,"'a.-y and de"'OlUtraU", ,~Id,nct The use of documents. graphs. charts. diagrams , etc. has been encouraged by the supreme court as an aid to the trier of lact. Crocker v. Lee. 26] Ala. 439. 74 So. 2d 429 (1954). Documentary evi · dence should be admitted inlo evidence before it is read or .rgued to the jury. Poole v. Life & Cas. Co. ofT""" .. 47 Ala. App. 453. 256 So. 2d 193 (19711. Hm.-evfr. if a diagram, blackboard drawing Or other item is used by either or both par· Ii.. whilt interrog.ting a witn~ss and exhibited to the jury. it becomes evi· dence even if not lormally introduced. Hfflt~g v. Wilar. 35 Ala. ApI'. 182.44 So. 2d 791 (950) (attorney's drawing of intersection ..... her. accident occurredl; Arrick v. Fanlling. 35 AI .... ApI'. 409, 47 So. 2d 708 (1950) (diagram of accident scene); Southem Ng. Co. v. Slvlleu'Ql! Ins. Co., 177 Ala. 327. 58 So. 3]3 (1912) (writt.n instrument): Reed v. Sears , RoeI;uck & Ca .. 214 So. Zd 857. 44 Ala. App. 506 (1968) (microfilm Soo..11 to the jut)'). 3. DepollUolU The use of depOSitions .t trial i, gov. erned by ARCP 32. Rule 32 allcrws (I) any TI--lE ALABAMA LAWYER

party tQ u~ the depOnenrs "'position tQ contr"dict Qr impeach (h., wit""~' trial testimony; (2) an adve"", party to use a party's depositiQn fQr any purpose; and (3) any depon.nt's d.pOsitioo to be used if the witness; lal is dead; Ib) is nut nf sl.3t. nr;' more than 100 miles frnm the localion nf the trial; (e) i. ~ licons.d physician nr dentist; (d) fails In attend pun""nt tn sub~na; nr (eI as justic. may r~uire. The prnctdure fQr introducing the d'POSition is as fol lows; Th..... mining attnrney should obtain the ~rvices nf an irKIi.,.jdual who acts as the deponent. and as Ihe e... mining attnrnO!)' reads questinns from the depOsition. the individual acting as the deponent reads the depo""nt's a"",.. rs; the owosing party then mo~ nbject tn an~ problemotic evidence , Cer/lury Plala COl. II. lIibbell SporliT!fl Goods, Inc., 382 So. 2d 7 (Ala. 1980). A gen.ral obj<'CIion tn the form of a qu" tinn >s insuff.cient tn prese,,'i! an objectinn that eQuid be cured at the depositinn by id.ntifyin8 the ,pocific problem; thus, the failur. to raise a specific nbjectinn may serve as a wai... r at trial of a curable def«!. Mc Kel<'lI v. Dar_ ,,,,11.587 So. 2d 980 (Ala. 1991); Sl!e generell/II, ~lcAnnally, "Is an Object inn tn the Form Ennugh?", The Alabama LOWlier. vel. 53, ne. 5. p. 377 (Sept. 1992). If nn ly part ef a depesitinn is offored by a part~. an adverse party may require him tn introduce all of it which, in fairl".f$S. ought tn be ronsidered with the part introduced. ARCP 32(a)l4), An}' party IT\a}' introduce any nther parts. Id. Unl ..s the parti.. agree ntherwi •• , the actual <il>pOsitioo should not be adm itted intn evidence as an exhibit. Ce"tury Piaul COl. v. }/ibbett SporU"g Goods, supra. 382 So. 2d at I L

4. In-cnurt demon.tntlon. a nel Experiments. tests or demonstrations in open court are llSually within the trial cnurt 's discretion; t he cnurt should require similarit~ of conditions and that the test relate to .ub5tantial i~ues in the ca..,. Shows v. BrUlISt)t1 , 229 Ala. 682. 159 SOl. 248 (1935). See Birmi",}hom Nil .. Ughl & Potwr Co. v_ Rutledge. 142 Ala. 195 (1904) (plaintiff permitted to wal k befnre jury tn demonstrat e injuries); Birrni"gham RII .. Light & Potwr co. v. Saxon. 179 Ala. 136. 59 So.

'.11.

THE AlABAMA lAWYER

584 (1912) (mntorman allnwed to demonstrate with his hands the method of stopping the carl: Enso, u_ Wilsn", 519 So. 2d 12-14 (Ala. 1987) (in rmdical malpractic. action .n.ging brain dam age and retardatinn of child. d.monstra· tion permitted between child and special educalion ther.pist to shO\'>' child 's cog· nili". ability); Willisllm u. Artf. 27 ABR 298.305·307 (Nov. 20. 1992) (in·court demonstration proper of brain·damaged child's physical di!/lbilities and cogni\i,-e abilities in malpractice c:ast).

5. Vl.win, a nd InlpHtlon The trial court moy permit the jury tn view the preperty or accident scene in question. Macon Countll Cornmiss;o" v. 5m>ders. 555 So. 2d 1054 (Ala. 1990).; Rulled~ v. BriiNanl Coal Co.. 247 Ala. 40.22 So. 2d 428(1945). In determining whether to grant nr refuse a motion to view. the court may consid.. ,uch factors as the issues involved. the stalllS of the evidence and its infer.:ncn. whelher the view will . id the jury in understanding the issues and evaluating the evi· dence, the expense and delay in"(llved. th. distanc e to b. travelled, and the .vailabilily nf maps, diagrarru and photngraphs of the scene. Parker v. Ron· dolph CcunIV. 475 So. 2d 1193 (Ala ,Cw. App. 1985); U.s, Cast Irnn Pipe & Foumfry co. v. CrQt>ger, In Ala. 546. 55 SOl. 244 (Ala. 1911). See "Iso While u. Thori"gllm. 219 Ala. 101. 120 SOl. 914 (1929) (vi",,' permitted of sce ..... of automobil e accident); JOO""OI' v. !.ouist't·lIe & N.R. Co .. 240 Ala. 219. 198 So . 350 (1 940) (view perm itted of railroad cross· ing whe re cnllision occumd); KOOn v. Jnhnslm. 565 SOl. 2d 165 (Ala. 1990) (view refused of homeowner's house where numerous photographs .vailable depic t ing cnnditinn of ,t ructur. ). Although the knowledge a jury acquires during an inspectinn is unreported. it is nondheless proper evidence. Wes/em Ny. of Alabama v. Slill. 352 So. 2d 1092 (Ala. 19771. The trial cnurt must take care to assure that no unsworn testimony is gi ... n at the scene. Macon Qwrrly eommisJ;iort v. Sattders. 555 So. 2d 1054 (Ala. 1990); M(}TTis v. COTO"" Cool Co.. 215 Ala. 47. 109 So. 278 (1926).

G. Offer of proof When the trial court sustains an obj« lion to a qu ..tinn that does not. on its

fac~. show the expected answer. counsel must make an offer of proof to preserve an~ eHnr on appeal. Ensor u. Wilson. 519 So. 2d lUI (Ala_ 1987). During the offer of proof. counsel mllSt establish the relevancy, mater iality and competency of the .. peet ed an.wer. !d. at 1262; Mcrstmlu II. W/ti/esburg Cenler, I"e.. 47 Ala. ApI'. 146. 251 So. 2d 765 (Ala.Civ. App. 1971). Counsel must lay any necou· sary predicates and otherwi.l.e off~ r test imony in an admissible form. Gulf Am. Fir'e & (As. Co_v. Co.I-'01. 283 Ala. 480. 218 So. 2d 688 (1969). Under ARCP 43(c) the court may "Quir~ the nffe r to b. made out of the jury's presence. The court moy add any additional statemenl to show the char.cter of the evidence. Ihe form in which it was offered. the objection mad.. and the ruling thereon. See generally. Hoffman and Schroeder. "Offering and Objecting to Evidence in Alabama: The Alaooma /..o1J//I'IIT. vol. 47. no. 6. p. 304 (Nov. 19S1:i).

H. Wit....s Sequestr.tlon,

''The

Rule~

The rule nf seQuestratinn reQuiru non·party witnesses to remain outside the courtroom during the trial. See gen. eral/II' Hubbard. "The Rule on Exclusinn of Witnesses: Beyond the Cnurt room: The Alaooma /..oll.'/Ier. vol. 53. nn. 2. p. 126 (March 1992): NcLtod. "Invoking the Rule : ATM Joumnl. vol. I, no. 3 (Fall 1982). The rule may be invokrd by any party or by the trial court. Excluding or excusing witnesses frnm "the rule" is left largely tn the Irial judge', discretion. Natinnu.'ide Mu/uall"". COl. u. Smilh , 280 Ala. 343. 194 So. 2d 50S (Ala. 1966): Erbe" u. Erbett. 462 So. 2d 3n (Ala.Civ, App. 1984). Judges sometimes excuse expert witnt$Sts from the rule. especially where tht expert's presence will a55ist counsel. Camp u. Getteral Molors Cmp.. 454 So. 2d 958 (Ala. 1984). If a w;tne~ remains in the court room in vinlation of the ru le. the trial court has discretion to refuse nr .1I0w the witne .. to te.lify. Nalio"u.·ide Mulua! Cas. Co. u. Smilh, supra. 280 Ala. at 350; Wilsnn Bros. v. Mobile. a.N. Co.. 207 Ala. 171. 92 So. 246 (1922). The w;mes. may also be held in contempt. Chapman u. Siale. 380 So. 2d 351 (Ala. 1980). There has be.n some question as tn whether the rule prohibits rourrul from informing wilnesses of courtroom testiNa~

1993/ 179

mony. The supreme court apparwtly believes that such communication.< are oot prohibited by the rule. Set Ch risliaruen v. Hall, 567 So. 2d 1338 (Ala. 1990).

.ubstantial di5crdion to control I.gal arguments to the jury. McCullough v. L&N R.Co.. 396 So. 2d 683 (Ala. 1981): Cilg 01 Anniston v. Oliver. 28 Ala. App. 390. 185 So. 18711939).

I. Closing Artument

1. Ceneral Counsel have a constitutional right in closing ugument to pursue their OWn lints of argument and methods of deal· ing with t.stimony. J9()1 Ccrulilulion 01 Alal>ama. Art. I. § 10: l..ouisL'ille & N.R. Co. v. Tucker. 262 Ala. 570. 80 So. 2d 288 (1955); Birmingham News Co. v. Pallne. 230 Ala. 524 (Ala. 1935). Trial courts must give counsel substantiallatitud. in the rontent and scope of their closing argumenl.$:. Citll of Birmingham u. Bou"en. 254 Ala. 41. 47 So. 2d 174 (1950). "Every f.Gt the testimony tends to show. every inference counsel may think arises from the (\Iidence, the credi· bility of the witn....,•. as revuled by their manne r. the re.sonablentss of their story. and many other considera· tions."", legitimate .ubjtcl.$: of criticism and argument." R.C. Botlling Co. v. Sorrells, 290 Alii. 187. 190. 275 So. 2d 131 (1973). 2. The condud or do, hl, ."';umettt "Th<t ronduct and cont.nt 01 counsel's closing argument are matte" within the trial court's sound discretion. /'<>p5i Cola BolI/ing Co. of Lut-eme. Inc. u. Allen. 572 So. 2d 434 (Ala. 1990). Thus. the trial court may permit counsel to use blackboards and chart> in dosing argument to clarify.• xplain. draw inferences. or make calculations. Ma=II·Ferguson. Inc. u. Laird, 432 So. 2d 1259 (Ala. 1983): ""III'" u. Jones. 284 Ala. 196. 224 So. 2d 230 (1969): Southem Cemenl Co. v. Patterson, 271 Ala. 128, In So. 2d 386 (Ala. 196(}): McLmwIl u. Tum.".. 267 Ala. 588. 104 So. 2d 315 (Ala. 1958). Moreover, counsel may argue or read law to the jury. Barber Pure Milir Co. v. Holme•. 264 Ala. 45. 84 So. 2d 345 (1956): Cilll 01 Tuscaloosa u. Hill, 14 Ala. App. 541, 69 So. 486 (19]5). Counsel may also rtad documents introduced into .... idence. TerTiI v. Williams. 148Ala. 468.41 So. 804 (1906), and refer to dia· gr3ms used by a witne~ but not f(}rmally introduced into evidence. £051 T~n 1Ul5S<1I? V. & C.R. Co. v. llatson. 90 Ala. 41. 7 So. 813 (1890). The trial court has

180 / May 1993

ImP1'O~r clo, ln, '''';umt nl Many tYl"" of do.ing argumenl.$: are improper and objectionable. Among them are the following; (a) Matters irreltvant to the issues and 1acl5 in the we. Joh1lSf)f1 v. Howard, 279 Ala . 16. 181 So. 2d 85 (1965); MOOT(! u. Crow. 267 Ala. 325. 101 So. 2d 321 (1958): l.ouiu·ille <I' N.R. Co. u. Atlrinson. 20 Ala. App. 620. 104 So. 835 (1925). (b) Matters which are not sustained by the evidence and facl.$: .... hich.re not in evidence. Osbom v. Brown. 361 So. 2d 82 (A la. 1978): Cook v. Latimer. 274 Ala. 283, 147 So. 2d 831 (1 9621; Ala. Power Co. v. Good· win. 210 Ala. 657. 99 So. ISS (1924). (e) Evidence which was refused (}r reject_ ed by the trial court. Travis u. Hubbard, 264 Ala. 670, 104 So. 2d 7]2 (1958): Porter Coal Co. v. Davis. 231 Ala. 359. 165 So. 93 (1936). (d) Comments on failure to produce evidenet or to c~1I witnesses that are acceuibl. to bot h parHes or art cumulative in nature. O/limpia Spa v.JoIm."ilN!. 547 So. 2d 80 (Ala. 1989). Wong v. Bolivia Lumber Co .. 516 So. 2d 521 (Ala. 1987): Donaldson u. Buck, 333 So. 2d 786 (Ala. 1976). H"","""r. it may not be improper to refer to the failure of a party to testi· fy. Trohon v_Cook. 288 Ala. 704. 265 So. 2d 125 (Alii. 1972). "Th<t fact that certain facts are peculiarl}' "ithin the party's knowledge may not be a suffi· dent basis to bar the ad\.~rsa!)' from commenting upon a party's failure or refusal to testify. Hinton & Son. v. Simhan, 266 Ala. 307. 96 So. 2d 426 (1957). The court should .Iso eonsid· n whether the party h.. pers(}nal knowl edge of the facts in iS5ue: whether the party's testimony is unnecessary or cumulati",,: .... hether the party is unavoidably absent from trial; and ....h.ther the party is com· petent as ~ witne$$.ld. (e) Al'l'I'als to the jury's sympathy and prejudice in gener3l. She/by Iron Co. u. Cremlea. 184 Ala. 496. 6J So. 470

(1913), and which encourage the ju!)' to ignore the evidence. Smith u. BlankrnsMp, 440 So. 2d 1063 (Ala. 1983). (f) Appeals to the jury's sympathy by in"';ting jurors to stand in the shoes of the litigant or to put themselves in the litiganrs place. Black Belt lYood Co .. Inc. v. Sessions. 514 So. 2d 1249 (Ata. 19S6): Allen u. MoMe Interstote Piledrivers, 475 So. 2d 530 (Ala. 19851; Osborne Truck U,IeS. Inc. v. Langston. 454 So. 2d 1317 (Ala. 1984). II"","""r. the courts haw not b.en ovuly rtst rictive in applying this rule. Fountain v. Phillips. 439 So. 2d 59 (Ala. 1983). (S) Appeals to race Or 10C31 prejudice. Donald v. MalhetlJ/. 276 Ala. 52. 158 So. 2d 909 (1963): Davif v. Common Cl)IJI1Cil of Alexonder Citll. 137 Ala. 206.33 So. 863 (1903): Lcx!b v. sl.".. 213 Ala. 99. 104 So. 25 (1925). (h) Appeals to p'ejudi~ toward eO'l'Or3· tions. Southem LJle and Hi!OlIh 1m;. Co. v. Smith. 518 So. 2d 77 (Ala. 1987): Cordon v. Noll, 379 So. 2d 585 (Ala. 19801: Chrlls/er Corp. v. H=II. 291 Ala. 267. 280 So. 2d )02 (1973). (i) Reference. to the wealth or poverty of eithe r party. how the defendant would satisfy a judgment. or the eco· nomic .ffect of a judgment upon the defendant. Ashbee v. Brock. 510 So. 2d 21 4 (Ala. 1987): Holt v. State Farm Mul. Alita Inc. Co .. 507 So. 2d 388 (Ala. 1986): Olis t:let'l/Ior Co .. Inc. v. Staf/uwlh. 474 So. 2d 82 (Ala.

11-*

1985): Southem Electric Generating Co. v. Uiibach.".. 269 Ala. 9. So. 2d 308 (1959): Cur Bro• .. I"c. v. Walker. 416 So. 2d 1045 (Ala.Civ.

API'. 1982). (j) References to the existence of insur· anct cowrag •. Preferred Risk Mvtual 1m;. Co. v. R)pm. 589 So. 2d 165 (Ala. 199]): Harvell v. Milchell. 522 So. 2d 771 (Ala. 19M): Well>am u. S>lid."., 431 So. 2d 1198 (Ala. 1983); as w~1I as to the non·exist.nc. 01 insurance CQ'IIOrage. Mobile Cob & Baggage Co. v. Busbll. 277 Ala. 292. 169 So. 2d 314 (1964). (k) Injection of attomej"s personal opin_ ion as to any mat.rial fact or as to the guilt or inTlO(ence of the defen_ dant. S<'abwnt Coasl/in(! R.R. Co. p.

THE AU\6AMA LAWYER

Moore, 479 So. 2d 1131 (Ala. 1985);

Moseley v, Siale, 448 So. 2d 450 (AI ~.CrApp. 1981); Broom v. Siale. 393 So. 2d 513 (Ah.Cr .App. 19B1). (I) Personal altack~ on the honesty, ethics Or credibility of opposing counsel. IVMlow v. Slate. 509 So. 2d 252 (Ala.CrApp. 1987); I/I1Ft u. Siale, 362 So. 2d 1163 (Ala.Cr. API'. 1978).

See generally, Rowe .nd Pryor. "A Survey of Alabama Law Pertaining to Closing Arguments: The Alabama lAwyer. "01. SO. no. 1. p. 9 (Janua . y 1989): ret' also Hammond. "Reversible Er.or in A.gument to the Jury: ATiA Jaumat. vol. 8 , no. 4, p. 27 (1980).

4 . Retalia tory I ia lemen t. a nd artumtn ll Partiu who have ~en victimized b}' improper argument have the right to "reply in kind ," i.•.. respond in a manner that w<luld otherwise ~ <lbjecti<lnable. Smilh v. Blankomship. 440 5<>. 2d 1063 (Ala. 1983). However. C<lunsers reply in kind will be du .... d improper if it 8<Ji's

beyond the b<>unds of the adversary's improper ugument. Wiggins v. Perlman. 583 So. 2d 269 (Ala. 1991); SlaltW()1'lh v. Holt. 534 So. 2d 1063 (Ala. 19M).

5 . N..,e..ll1 far obJ..,tlan The appellate C<lurts generally will not hold the trial court in e.ror for <lW:rru l· ing motions for new trial or mistrial unless there is a ti .... ly objection to the improper argument or a reque.t for a curative instruction. Pinckard v. [)!;n. nallen/, 28 1 Ala. 533. 206 So. 2d 340 (1968); CoNtier Ins. COtp. v. Gann. 57 Ala. App. 519. 329 So. 2d 573 (1976). HO\'o'e\l\'r. if the remark or argument of cou,...1 is so gros.ly improper and highf)' prejudicial that neither retraction nor rebuke b}' the trial court would .radicate its effect, no obj~ction need be made. Co/quell o. Williams. 264 Ala. 214. 86

So. 2d 381 (1956). oJ . Trl8' Motion . 1. Motion In Il mln . A motion in limine allO\'o" tounul to

raise evidentiary issues prior to t.ialto prevent the introduction of improper mailers belo •• the jury. See Acklin v. Bramm. 374 So . 2d 1348 (Ala. 1979); Oliver v.l/ages International OJ,..".• 456 So. 2d 802 (Ala.CivApp. 1984). It "offers a meanS of escape for t he attorney whose historic remedy has be . n to object and request that the jury be instruct. d to disr.gard the evidence. which has the attendant disadvantage of appearing to hide matters ... The motion in limine has the advantage <If raising widentiary issues prior to tTialthat the judge might othe""'ise be called upon 10 d~ide during the heat and huT1)' of liti· gation: Camble. '1'he Motion in limin", A Pretrial Procedure That Has Com. of Age: 33 Ala,LRev. 1.8 Wall 1981). As specifically as possible, a moti<ln in limine must apprise th. trial court of its obj«!. &l'fmer Welders. Inc. u. Knighlr;m, 425 So. 2d 441 (Ala. 1982). In .Ome cases an orMr gran t ing a motion in limine is not abS<llute. but only preliminary, and the proponent of

r-----------------------------------------------, ADDRESS CHANGES Complete the form below ONI.V if there are changes to your listing in the cu.rent Alabama Bur Directory. Du. to change. in the statute g<.>wming election of bar commissioners ...."( now are required to use members' ofr.c. addresses. unless none is available Or a member is prohibited from r.""ivins state bar mail at the office. Additionally, the Alaoorrw Bar Direct<lry is compiled from our mailing list and it is important to use business addres.s.es for that reason. NOTE; If we do not know of an addr«S change , we cannot makt the necessary changes on our records. 50 please notify US .... h.n your address changes. Mail fOml to: Alice Jo H.ndrix. P.O. Box 67 1. Montgomery. AL 36101. _____ Member Ide ntiHcotion (Soc;,1 Security) Number

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May 1993 / 181

the evidence may offer the disputed e-li · dence at tri ~1 for ~ final ruling. Ex parle 1I000lor! COWl/Y. 435 So. Zd 1268 (Ala. 1983); Bax/u u. Surgical Cli"ic of An"islon. P.A .. 495 So. 2d 652 (AI~. 1986). In the absence of prejudice. the trial court can permit the introduction of evidence that was previously excluded

i" /imi"e. Co ne Buildi"g. /"c. v. /(ule$us. 585 So. 2d 1284 (Ala. 1991J. The trial court may choou to def.. its ruling on a motion ill limi"e until the

matter ~rises at tri~1 and evidence is presented by the parties. Nash v. Crubl/. 574 So. 2d 700 (Ala. 1990).

2. Molion for m!Jlrial A mistrial is made during a trial and operatn to discharge the jul'}' prior to verdict. A mistrial may ~ in order WMn fundamental errors OCCur during a trial that prejudice the rights of a part» to ~ fair trial, A motion for new trial implina miscarriage of jusU"" may result if the trial continues. Thomas v. W"",. 44 Ala. App. 157, 2M So. 2d 502 (1967). The trial judge hou wide discretion in deter. mining whdher incidents occurring during trial affect the r ight of either party to a fair trial. so ~s to require mis· trial. General Fi"a"ce Corp. u. SmUh, 505 So. 2d 1045 (Ala. 1987); 'Tfwmp,wn. lI"inman & Co. v. Robinson. 386 So. 2d 409 (Ala. 1980), It is the trial court's duty to attempt to 'lalvage the trial by curing the error. and the trial court's dettrmination that it has successfully . radicated the prejudice is entit led to great weight. lIoffman and Schroeder. supra. 47 Alabama Lawyer at 3\0. How· ever. ineradicable errOr cannot be cured and justifiu a mistrial. Id, 3. ,",OUOIl

for dl"cted

~ trdlct

Motions for directed verdict ~re authorized by ARCP SO. Such a motion may b< made at the conclusion of the oppo· nent's case. and at the conclusion of all the evidence. ARCP 5O(a), The purpos« of the motion is to t.. t the sufficiency of the evidence and thereb\' determine whether any issues should b< submitted to the jury. Brilltmt v. /iog<I1. S82 So. Zd 512 (Ala . 199\!. A directed vHditt is proper only if there is • complete absence of proof on an ;"ue moterial to a claim Or where there are r\O disputed quntions of fact on which reasonable ~Ie could differ_Alabama Power Co. v, lVifli<mlS , 570 So. 2d 589 (Ala. \990); 182 I May 1!f93

Farlel/ v. CNA 1m. Co.. 516 So. 2d 158 (Ala. 1991). The "substanti.1 evidenc." rule applies to all cases filed after June II. 1987. Ala. Code § 12·2 1·12 (1975). Tht "~inti1l. rule" applies to all cases filed prior to that date. Under the sub· stantial evidence rule. a directed verdict is proper if a part» claimant fails to pre· sent subslanti~1 evidence as to on. or more elements of his cause of action or def.n!". Danford v. Arnold, 582 So. 2d 545 (AI •. 1991). A directed verdict is proper under the scint illa rule if Ihe proof does not support ~ 9,:inlilla of evi· dence in favor of the opposing part». Otis lilevalor of Cadsden. Inc. v. Sooll. 586 So. 2d 200 (Ala. 1!f91).

K. Suits.stlons and food for thought ~ quality of ado;oc:acy s~ilIs in Alaro· ma courtroorru is high. The nIO$t effec· tive advocates are those who are the best prepared and who have developed their own slyles _ Civilily is allo importan\. Scro~ming and name.c~lIing in t he courtroom are not only unprofusional. but are inelfectivt ado;oc:acy. Judges and jurors Jre ps\'chologically inclined to f.vor advocates who are well · prepared. courteous and candid. Judges have few qualms in ruling against lawyers who are unp .. pared, discourteous or disingenu· ous. There are a few other thing. you should think about as you prepa re for trial;

I . Eddblu Resol,.. M many problem. of ~uthen· tication, reasonablen ..s of .nd n" ..s ity for medical charg.,s. elc .. prior to trial. Far too much time can be wasted at trial on such matters_ Some judges' pre·trial orders establish a procedure by which exhibit. are. d.emed authen t ic and! or admissible if exchanged within the proper time and no objections are mode. 2. Wlttttn P"paralio" It is shocking how frequently lrial wit· neMes are confronted wilh incomistent deposition t.stimony. Thi' can only mean that attorneys are not taking suffi· dent time to prepare their witnelSes for trial.

3. Ob.l«lIo". Carefully gauge the number. frequen· q and timing of objections. Obviously, unnecessary or pett~ objections irritate

everyOne. On the other hand , well·timed (even if not well·taken) objections can disrupt an opponent's otherwise highly effective examination. 4. EKen lft cumlnaliono Some inexperienced attorneys simp ly cannot resist temptation. Either the~ cannot resi.t the proverbial "one QUes· tion too the ans",er to which may result in unexpected and devaslaling blCM'S to their case. or they are unabl. to accept the good testimony they alre~dy have and give hostile witnesses an OppOr· tunily to explain or back away from it. Similarly, some ....miners an txcoeding· Iy long·winded and sit down ",.11 after the jul'}' hou gone to slup. Have a gamt plan before trial thai ~lIows you to assess what you need to establi sh. Resist the temptation to do more.

many:

S. Jury charJlco Judge, are very leery of giving charges that are otherwise covered by tM AM)(I' ma Pattern Jurl/lnslructions. Judg.s also d~lesl giving charges purport.dly from APJ!, but with unannounced deviations. In difficult areM 0( tM law where APJ! is silent. judgel ..... ant lawyers to play ~ productiv. rolo and help figure out what the law is or ought to be.

6. PTucntaUolU A major weakness in SOme trials is the disorgani~ed nature of counsels' presen· tation. Frequently. th ... is a lack of sequential developmtnt 0( the iMuOi. in highlighting 0( important points. unnec· essary detail. and unexplained technical jarl/Oll. 7. SuUutlO". rO"l' further "adlll, Magazines and publications publish.d by the litigation bar contain useful ·how·to" articles in virtually eveT}' issue. Sam. helpful articles touching upon some of the topics discussed in this out· lin. include; Wood. "Effectivt Voir Dire; A Most Important Part of the Trial." f)efr:nu Counul.kJurnal. vol. 58. no_2. p. 170 (April 19911; Mo rgan. "Trial Preparation·The Whole Pictur. : ATIA Journal. vol. II. no. 3 (fall 1!l9l); Sam· pies. "Some Thoughts on Cross E... mi· nation: AT/..A .kJumal, vol. 12, no. 2. p. 12 (spring 1992); Heninger, "Room with a View; Opening Statement: A1LI.kJur· 1101, vol. 12, no. 1, p. 4 (winte r 1992); Pate.1he Strike for Cause: ATLA .kJur· nal. vol. 9. no. I. p. 40 (1981). •

THE ALABAMA lAWYER

PROFILE

Broox Garrett Holmes Pursu<lrIl /0 lhe Alabaml1 Siale Bars rules {l(Wl!m;nglhe eleelion of lhe pre5i. dent-eltel. the fotiou'in9 biographical

sketch is provided of Broox Carrell Holmes. Holmes is the S()/e qualifying call/liduie (Iff the position of presidenteleet of the Alabama Siole &If for the J993·94 lem>.. Broox Holmes

was horn in Mobile. Alabama NOVi:mber IS. 1932. He recoived his undegrad· \late degree in

1954 (rom the University of Hoimes

Alabama and

his law Mg,ee in 1%0 from til<: Uni,-ersity's &1100101 Law. where h. w., a member of the Alabama Law Review. National Moot Court Team, Bench &. Bar Honor Society and Phi Delta Phi. Since 1960. he has been in practice with the firm III Arm· brocht, Jachan, DeMouy, Crow •. Holmes &. R......,. in Mobile. Between

lie is certified as a civil trial advocate by the National Board of Trial Advocacy. Holmes has contributed to continuing legal education aJI • lecturer and faculty member at various programs and semi· na" and served on the MCLE Commission. tie has .150 served on the Eueuti"" Committee of the Mobile Bar Association, as chairperson of the Civil Practice Committu and "«iera l Courts Committe. of that bar, and current ly serves on the Advisory Committee of the U.s. District Court for the Southern District of AlabaI1lll and is a member of the Mobile Chapter of the Anwrican Inn5 01 Court. Holmes i. a member and PaJlt president of the Alabama Defen.e Lawyers Association, a member of the National Association of Railroad Tr ial Counsel. the [nternallonal Association 01 n.fense

Counsel, a Fellow o( the American Bar Foundation. and a Fenow 01 the American Cotlege 01 Trial Lawy£r5 (.tate chair_ perwn. 1991·92). He is li!t«i in Who's Who in AmeriC(n1 /..ow and Best iAu!yen inAmerica.

He is a member of the Mobile Aru Chamber of Commerce, Mobil. Touch. OOv.T1 Club and other civic organizations in Mobile. For """"ral year$. he served as a member and chairperson of the board of trustees of St. Paul's Episcopa.l School in Mob ile and on the ""-'tl'}' of SI. Paul's Episcopal Church. Broox Holmes has been I1lIIrriN .ince 1955 to the (onner laura Claire Hays 01 Mob ile and they ha,"" three sons, Broox, Jr.. a practicing lawyer in Mobile; Hays, a graduate of the UniveT$ity of Alabama School of laW', and Will, a third-year stu· d~nt at Cumberland Law School. •

FAMILY LAW SECTION Alabama State Bar

college and law school. Holm.... "",d three )'tars on act;,-e duly in the United

Slates Marine Corps, including serviu in Japan and Okinawa 3l; • platoon leader and company tx<cu tive officer in the Third Marine Regiment. Holmes has been a member of the board of bar commi~ioners since 1987 and was On u.. E""cuti,.. Committ~ in 1990·91. He served On the AlabaI1lll State Bar Cri"""",. Committ~ from 1974-78 and as its chairperson in 1978. for which he receioed the bar's Award of Merit. He also served aJI a member of the ludicial Inquiry Commi..ion (1982-sti). aJI chair· person 01 the state bar's Litigation Section (1990·91) and on other committu. and task (orces. He is a member 01 the Alabal1lll Supreme Court Committee on RuIn of Evidence, the American Law Institute and the Alabal1lll Law Institute. THE AtABAMA LAWYER

JUNE 11 & 12, 1993 Gulf State Park Resort · Glilf Shores, Alabama (Please reserve accommodations before May 11, 1993.) May 19931 Hl3

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mailed to you.

JUNE 7 Friday

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THE ALABA."lA Ul.WYER

A Brief Look at Continuing Legal Education In 1992

•

ADVANCED WORKERS'

COMPENSATION IN ALABAMA

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In 1992. the MeLE Commission received a total of 3.236 programs seeking eLE accreditation, This was nearl~ a 10 percent incrtaSl' from the ;'I'ar befo~ . Of the total number of programs rJ:'o'il'l'>'I'd in 1992.3.192 wert accred it~d. rive hundred and forty·three of the accredited programs were offered in·state. while the ~maining 2.649 ",ere held outside the .tate. Eight in·state sponsors. how· ever. accounted for more than SO percent of the total CLE hours attended by state bar members in 1992. Bar members attended a total of 96.265 hours of CLE for the year.

Top Ten Subject Areas Based on Number of COUl$U Offered

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Emptoymonl

a a

7.6% · S,I% · 4.7% · 3.8%·

•

3.2% · Con'l"u.1i""

m El

a a

3,1% 2.7% 2.7% 2.7%

•

U%· R..t Proporly

· · · ·

Covnnmt nt En.;""' .... ntat To:.

Crimi",,1 Rt","t D<wlopm.nto lIill. & E.l>t.. Civil R;':ht.

Top Ten Subjed Anas Based on Lawyer Attendance CIl 10.4% . RKeDt D<wIopmoDt.

a a

9.9%· Criml ... t 4.3% · Etkl",

' .2"4 . Utlgatlon 4.2"4 · F, mil)' Law CII 3.6% . Judldal •

INJURIES [N THE WORKPLACE IN AlABAMA

III

a a

3.4% · Advo<acy 3.3%· lIi ll, & E.l>t.. 3.1%· Womn ' Comp

•

U %· 8onm.ptcy

Mobile

Geogl'llphiul Distribution of Courses (percent by city)

National Business Institute. Inc.

o"..r 50 percent of all CLE programs accredited in 1992 were held in the ten cities listed below.

Credits: 6.0 Cost: $128 (715) 835--8525

,., INJURIES [N THE WORKPt.l.CE

IN ALABAMA Montgomery

Nalionaillusiness Institute. Inc. Credits: 6.0 Cost SI28 (715) 835-8525

ANNUAL.MEETING

Alabama State Bar Mobile. Riverview Piau (205) 269·1515 THE AI.'.BAMA U\\IYER

III 11.6% . l'i.. hJ~"". DC 8.5%· Now ~ork 6.1% · Rirmlntham

III

a a

5.2"4 · Atlo"ta • 5.0% · S.n Fnn<l.." III 3.1% · Chk.ato

III

2.8%· N..hvill< 2.4% - Now Orl....

•

2.3% · 2,0% · San DitgG

•

M..,I'''....".

Finally. 7.367 Or 99.9 percent of the laW}'frs subject to the CLE rules com · plied within a timely fashion or filed a ~ficiency plan as permitted under Rule 6 of the MCLE Rul.s and Regulations. Only 34 laW}'frs' names were certified in 1992 to the Disciplinary Commi.. ion for noncompliance. •

~Iay

1993 1 18.5

54TH

ABAbyMIDWINTER MEETING Michael McWilliams 1.

muican Bar Association President J. Michael Mc Williams rrom/ly add.essed joint meeting of the Nolionol Qp,fmmce of &r Prn;itkrlls 0",1 Nalional Association of Bar executives during the 54th Alt4 Midu'i"ler M~ling Q

in 8wton. Mll$SlUhu$I!II$. He reported

on 11 reaml/II comp/eled ABA membership survey in which the resptJndenl Ill/arnell' nOled Ihal the continuing effort/a pronwle "jw;tire for (11/" was lhil

lop priority. 'This finding

I&dS

consistent

u'it" lhe association's emphasis fOr lAw

Dau /993 of -}uslia! lOr IIIIIAII for Jus-

tice ", and ils Coolilirm for luslice Ihol

waS creo/ea in San Francisco. '" his

remarks he noted the coalition hod selected problenv; within the jUlJfflile jU5lice system W ilS first urea 01 empha. sis oloog with problems oflhe elder/v_ Excerpts 01 his odJres.f follow: • ... Today has been dubbed the ABA's '[}ay for Child ..,,: Today, the problems

that Ame.ica's children face are a sad commentary on our society. The prob · lems are maoy-the)' are tragic and they art a bane on the futu",. What they art not is insoluble, and we must help soh'!:

<h<m. Novelist Craham Cl'ffnl' once ... id that "Thore is always one moment in child · hood when the door opens and lets the future in." Well that may be, but in the li,'el; Ii hundreds Ii thousands of Ameri· can child rtn, the door i. nailed shut! The door tw not opened fOT these children. The future isnot coming in And rocenl newo reporls and g(M'rn· ment research lead us to seriously question what kind of future many of the children in this countl)' haw, if 07lP! I wonder, how many adult Americans over the yea ... haw ... id to a concerned child: 'Ooo't worry, it'll be alright?' Wen today, how can we say 'Don't worl)" when about 41 5 American chil· d",n will run "'""'y from homt before you conclude this morning'. mttting? How can we ...y 'It'll be alright' when 76 American children are abused or ntglected""'-"ll hour Ii every day? How can we lay 'Ix.m't W(lrry' when 186 / May\993

Ihree American children will die in pOVerty this morning, and ewl)' morn · ing? How can we ...y '[t'li be alright' when \35,000 students in this countr)' go to school ever)' day carrying guns? How can we say 'Don't worry' when a child drops out ri .chool..wry eight soc· How can we say 'It'll be alright' when 91)1) teachers are threatened, and nearly 40 actuallyawult · ed evel)' hour of every school day? J, Micl!iH1 McWillwms How can we lay 'Ooo't worry' when during the COUT'$e of a typical day, 41) children are eithu killed or injured by guru;hot wounds? We still might say to a concerned child: 'Don't ,,"'<)(1)', it'll be alright,' but we better be worri ed because it is no/ going to be alright unless we work for a saler, healthier, and mOre productive world lor our children, School violence is at an all· time high, and the legal need. of America'. children and families are simp ly not being met. CBS News once broodcat the top w;en problems in public sclx>ols as identified by the u,acher~ in 1940 as oompared to

1981), In 1941), the top seven problems in public sclx>ols ",ere: b iking out ri turn, ch ..... ing gum, making noise, running in the halls, CUlling in line, dress·code infractiOn>, and littering, In 1981), the top seven problems in public schools were: suicide, ...ault, robbery, rape, drug abuse, alcohol abuif, and pregnan· ~.

This is what America's children facedaily! Socr.tes urged thai we 'pay allen· tion to the young, and maM them just as good a. possible.' We are not paying enough attention to the youth in this COUnl1)', and what we art (\oing is simply not enough .... Concurrent with your meeting thi'

morning is an ABA Summit Conf.renc~ on Children al which a Working Croup will develop an agenda to address the unmet legal need. 01 America's children and lamilin. W. are mO$t fortunate 10 havt Judge ~on Higginbotham lending hi. lim. and blent to chair the Working Croup, The Conference agenda includ.". child welfare , family support and youth •• r· vices, paternity and child support, the juvenile justice system and juvenile cor· rections, healthca.re, housing, and court services lor children and thei r families, While Ou r agenda i. cr ucial to the futun: of America's children. it is only as good a5 its ultimale implementation, The ABA will push this agenda at the national level. and I implore all of you, as leaders of your ""pectiw .tat. and local bar a ..oeiation., to pave the way for implementation ri lhe Working Croup's reoommendations and solutions at the >tate and locallevtls, Much of the work that mu.t be (\one to change our legal system, and the quality of justice lor America's children and families, has to happen at the state and local levels, And it i. hard work- it is time, and thought. and energy: it is organization and commitment. Teddy Roosevelt summed it up when he said that 'far and away the !:>est prize that life offers is the chance to work hard at work worth (\Oing.' I can think of no work that we, a. lawyers, can (\0 that is worth mort! than improving Our lega' .y.tem, and the quality of justice in America. for the ben. efit and protection Ii our mosl valuabl. re5QUrce-America's children, Organized bars around the country havt a wealth of resource. to help effect change-lobby, to educate, and indeed, to inspire . It ha. been ,aid Ihat the great.. t achievement ri the human spiro it is to make the most ri one's resources. Let us take up the challenge t~ther, make the most of Ou r re.ou rees, and make a differenco in the future of this country-because America's future--is America'S children." • THE ALABAMA LAWYER

MIDYEAR REPORTS

ALABAMA STATE BAR

COMMITTEES

& TASK FORCES

The Alabama State Bar's Committees and Task Forces for the 1992-1993 bar year have been busy and productive as excerpts from the following midyear reports indicate: CommiH_ on Ace ••• to lepl Servt.c •• F. Wh~. Jr~ dNl~ The rommitttt had thrtr ,...1. !hi. YO'. which wtrr. (1) 10 dr~lop In ongoing pro bono progrml in Binningtwn; (2) 10 makt COI1IXt with and pmpost ~ pro bono program to eve!')' local bar associltion in Iht sllolt; and (3) to take the idea of pro bono wvice into Miry iIIw school. and to tVI'!')' ~

sh.,dtnt. in Alabama.

Through tht usi.U1nee of the Birm· inaNm &. Asioc:i;otion PYo Bono Com· miU.. and its chli •. laBella Alvis. m..:h

progrw has been made on the first goal. ~r r«ruitment is \akl1lJ! p~u and mtmb lIrt being madt in 8inningham. COntfminC the $Kond ,<),II. only 0"" local bar his rrlused to be " part 01 ~ pro bono program lind four Ioal blors havr not r~ to any communk'l' lion. thus flr. AI for the third riOOl. visilS to dasses at the Uni\'ersil~ of Alabama

School of taw and th e Cumberland School of l.aw have alrt~dy be~n made. !:fforb)11 un;k",,~~ to lint up ways for studtnts to gain legal experience through pro bono programs, Contacts Ire abo beine ~ with the other [;ow ochooIs in thl: mte.

T.... Force on Adult Uterac, B. Ki/chnu. rn.;, On 1M swe level. the AL1bamlo lite ....· cy CoiIlition s.poruor(ij I conferenu in ~oo 1m to bring to\ltther dtci· Jion-m)kers in the littney communit~ and sup port groups to formulate I statewide plan for literacy for ~ 1990s, A statewille spri ng liI..~ conference is

"',,/V

THE ALABAMA LAWYER

Kheduled for April 6, 1993 in Mont· gomery_ Both 1M fall and sprine confor· .rota art beinQ ~rtiilly funded by the Alabarn) U ... Foundation through an IOLTA g~ _rdN to 1M TWt Fora on Adult Liltracy. Th. theme fo r tho spring conference I. "literacy and tho

.....".

Mother project beine pursued on the stat. lew] b)' the 1)ivision of Adult Education of the State Oepartmtnt of Education Is t he organization of a courtl literacy relerral prog",m mtewille. &ve....1mtn'lbtrs of 1M TWc Foret on Adult Wer.lCy -.vere awoint(ij to this alternative .enltnc ing committee ..... hich indudU rtprfuntaliv .. from the A.dmini:$tralivt OIfoa: of Cou.u. IkpartINnl of Corrections and ~rd of Plor-

dons m;I Paroles.

oping" mediition model "nd rompre· tltnsiw: handbook lor .... b)' judgft and lawyerl; crutinl I sllltrwilk Centtr lor Dispule Resolution; pianninl tilt state court judlfl' mid· ... int. r conference; onc:ouraling 1(1(.1,1 ~r ao.wci"lio... to crtllt ADR committets; encouraging L1w firms to acIo!lt the Center for Public Resourcu' policy 'lIItelm'nis supporting ADR principlfl: """,ging for mediation training throughout tilt state; tducating the profession about ADR through presentitions at local bir lIssociations; mo.inLlining an "'tive l.. i5OO .ffort with other mte bilr ADR groups; wistinQ the ftdml Court for the Northern District in impkmentinQ corlloin forms of ADR 101 Ioal prowlurts and worki", with ttlt .... te bilr'1 Corporat. Counsel Stctio.ln to include a Iud article on ADR in its first newsJelttr,

-n.. A"'HnNt uloII)'e, . ., DireetD'Y Terr" R. )II(O/}I, cluJi,. The committe. complettd ils objec· ti~ for the 1992-93 bar ~ar with the publication of the eighth .d ition of the directory. RfJponsu received from members of the I),r conurning this f<.!i. tion have been overwhelmingly pOsitivt. Several suggestiofll haYt been made for improvements. some of ... hich can bf pOsSibly incorporatf<.! in futurt (ijitions if economically fusible.

Te.k Force on Altem.etlve DI~u1e

Re.olutlon

/IItm/NU TimIwrWlte,

th~i,

This tuk fo rce hu be.n .xtremely "'live for the palIt nint months and hu accomplished or is in the process of acoomplishing the following work: devel-

T•• k Force on Bench

.mt B • • Re l.tlon. 1I(}It()fYJ/lk .IfH Pltelp" rn.lr The cOmmll1ee planned a joint bar, judicial collegt and Clf: function. The progrim was held bnUllry 21. 1993 in Binningham. The progr;un w..,; very-.vell ruoived with appr01imo.ttly 70 iawyeFi UId over lOll judges in ittel"ldaoot. This joint bilr, j...ticial col... and Cl.E func· tion _ the first program !hit has been planned and arried out on such " COOperatM Imis. The conf.... nce consistf<.! 01 a one~ instn.octiorW COIlIlt and WIto on alttrruotive dilpute resolution. Th~ 50Ciil following the diy', program was "'~11 attended, and tmbled I..,.yers and judges to meet and talk together in I relaxed atmosphtre. The task fo rce is presently wOf klng wit h the Alabama

May 1993/ 187

Judicial ColI~g~ to'.,,,d planning a simi. lar function for the Mobile me.ting of the ~,.

Indlg.nt Def.n .. Commltt. . E. Hampton Brown, Jr., (!wir At the request of the Administrative Director of Court>. this committe. rec· ommended additions. deletions and other chang.s to prOl"W'd legislation to permit legal counsel to contract with the judicial ci rcuit where indigent ddense services are to be provided. In addition. the committee is continuing the study on the ade~uiC)' and fairnus of appointment, use and compensation of coun •• 1 throughout the state of Alabama. The committee continue. to beliew that the defense of indigents is continuing to decline because of the compensation of counsd and because the apparent inadequacy and unfairness of appointment of counsel throughout the state. Without more money for the administration of indigent defense. the crisis will worsen to the point where we may have pro bono appointments in criminal c;,ses.

Judici.i Building T •• k Forc. MaufJI D. Smith, chili. On NOIItmber 18. 1992. the task force met with Chief Justice Sonny Hornsby, the committee of the courts and the project architect for a progress report and review of the building plan and des ign. The formative .tages of the monumental dome has been completed, and a grnt percentage of the limestone cladding of the building had been accomplished. The windows are current1y being installed. Prue ntly. the judicial building is mOrt than 75 percent complete. The exterior of the building is mostly cOmpleted. with the exception of some work still to be done on the grand stairs lead· ing from the str~d, which will be clad with stone. Landsc.aping the grounds is also underway. Constroction of the interior of the building continues and irwolves putting up sheetrock walls and imtalling built-ins and cabinets, and completion of electrical and plumbing work . Some interior detail work needs to be finished in the courtrooms involv. ing cu.tom ca •• work on the judgu' benches and the pews. Due to the interi· Or 5c.1Iffoiding, debris and p<.l'o<'er equip.

188 / Mayl993

ment, the contractor is discouraging visits to' the inside of the building for salety reasons. It is e~pected the build· ing will be oper~tional and rudy for occupan~ the first put of September 1993. T •• k Force on

Judlcl.1 Selection RoHri P. Denniston, Jr., ( hllir Th~ task fora hal! monitored Alabama voting rights litigati<ln nrYW on appeal to the Eleventh Circuit, developments nation~lIy concerning merit selection and dewlopments concerning nonparti· san elections. There has been little activo ity of significance on these three topics. The main emptwis of the 1a$k foree duro ing the current yeu has been On the subject of c;,mpaign contributions and expenses. The topic has also received exposure in the media. A draft of the report on this subject was circulated among all members 01 the task lorce beginning with the current year. The throst of the draft recommendations in the report is for voluntar)' action and not for legislative action. Finally, the task forcetw monitor~d bilt. curn:nUy pend. ing in the Ltgislature on the subject of c;,mpaign contributions (S .B. 288, 472. 477 and 478 and H.B. 352.)

uw D.y Commltt. . RoiJnt E. Lusle, Jr., chair The committe. was divided into four subcommittees. including the Alabama Public Television program sponsorship subcommittee. mini'spots .ubcommil· tee. media subcommittee and statewide e~y contest subcommittee. The chain of these subcommittees are Judy Holt, Chris Christ. Jim Main and Steven Sears, ""pectively. An 10LTA grant was applied for to sponsor a law-related education series on APT to coincide ...itl> Law Day 1993. Unlike last year. an rOLTA grant was not received to produce mini·spotS. The media subcommittee is working on having the Governor proclaim May 1 as Law Day in Alab<lma. Finally, the usa)' contest subcommittee is sponsoring ~ stat .....ide usay contest lor high school and junior high school students. Th. statewide contest is comprehensiw ~nd will require the assistance of local bar usociations. Winnm of the contest will be announced in The Alabama lAwyer and will r«eive savings bonds.

L..... y.r Adv.rtl.lng . net Solicit.tlon Commltt. . US4f Hugg;"', cha/, Three subcommittees .... er. appointed by the chair to work on three priorit~ areaS. The first subcommittee. headed b~ Steve Cootee, will study and make recommendations regarding the need to make or chang. rules .. lating to direct mail advertisements. This com· mittee will also compare e~isting rules to those of Texas and Florida and poui. bl~ other states. The seoond subcommit· tee, headed by Keith Veigas. will study and m:lke recommendations relating to Alabama's advertisinQ rules. The third subcommilte. will study unethic;,lsolic· itation and polential solutions to this problem, Le .... , • •• He lping Lewy... Commftt. . C. Ten-ell W,nn, Jr" c!w;r

This committee met at Still Waten in October 1992. Charley Shults. a rehabilitalion alcohol counselor. along with John Pittman Mullins. a substance abuse coordinator. and Ernie Machen, who is very active in the North C;orolina Bar....'ere a part of the program. Anoth· er meeting of the committe. ....as sched· uled for March 12. 1993 to discuss the implementation of the ALA-PALS Committee . The committee is receiving more referrals of lawyers with problems. Btc~use the griev,nt e process is not coordinated with the ALA-PALS Committee at this pOint. the committee will continue to strive to make this a coordi· nated prou ...

u .... y.r R.f,",rel Servlc. Bo.reI of TRI.t. . . Jimmll Pool, chllir The committ.. made several rteom· mendatiOn5 concerning the Lawyer Rtferral Se",ice to th e Board of Ba r Commi.sioners. which werc appro""d. Elfettive Februar)' I. 1993: referral ser· vice members may charge $25 for the first 30 minutes of consultation: ref.. ral service members will be allowed to choose 15 areas 01 practice preference from the referral applic;,tion inst~ad of ten, and the referral service application was revised regarding arcas of practice preference.

THE ALABAMA LAWYER

Loe.1 . . . Ac:tivit,-, .nd Servk•• COh."m.. ThtJ""., E. B'W'N. Jr., tlMl. The committ~ has COOtactw .oll Ioul bar pmidenu to mcOUrJge thtm to uti . lize T~ AiolJamo Lou.'~ a.. meaJl$ 01 kH'pinQ tht bar informtd about tho Iu..,. ptni ...s in th~ir loulartas. It is also hoptd that by tncouragina: Ioul bars to pravidt informalion about t~i r loal Ktiviliu, this will INkt ~ AIQ/JamQ ~ IDOfI' ptrsonalized for Alabama lawytrs to rwl.

info rmation on two other prognnu, ~hny-WiK. an otrltt products c.alalOil company. and TramNatio!WI1 Fi!WInc~l !ifrvices, an affinity c.ard company. A samplt brochu re has b«n prepared listing the various servicts which the bar oIfers members. The If.Ik force is in the proctn of obtaining a prict on printing the needed copies. ]( a brochu re descriptive of bu serv;cts i. approved. the mailinQ COils can be a\l(lidtd by including it in The AIQoomQ

LoWlier.

T., k Fore:. on

Milit.ry Lew C_itt. . hmu F. W./sh , dIIIi,

The "' ililllry I...Jw Committu i. well on iu way in preparation 01 iu mnwol miiilllry law symposium to be held at the University of Alabama August 20·21. 1993. Mtmb<: rs of the commi tl •• have met on .. venl occasions to Kltct the course subjects for CLE and 10 lint up speakers. At Itut one mort mottling is pWInt-d to maItt final I~ for this proarun.

..... a. I rship ...."k•• H. B. IINdtnN, tlMi. The tuk forct reanlly rmI to coruid· er products ~nd itTVicu oIIefl'd to the bar ~mbtrship by four different com· paniu. The Ia.Ik force did not feel that two of t he products. LlStTTtch (n · builder of laKr printer c.artrilign) ~nd InteQra (billing softwart ). wuranttd further coruidtmion. The wlc foret is in the prouss of oblllining additional

PnlI••sion.sllEc:onomk: •• nd Tec:hnologr Committ . . Ro_iM S. &ott. /If, tlMi. Tht committee has rmI twice and Ius also communicat( d on numerous OCca· l ions regardinQ committu mem~fJ' specific assignments. M(I$\ of the committe~'1 energy Iw ~en di .. ctr d at the comple tion of a _Ittttr and prtparing an articlt for ~ AlabDrrw ~, U 1«11 as cStler· mining the best way to tJ~blish a profe nional economic S section . The (ommittu has also been inV'tstigating the ponibili l~ of u tab lishing l slal~ elKlronic bulletin ~rd simi· lar \0 the one e5bb1ishtd by the W;osh. il\Q!on SllItt B.ar A$SOtilotion. The committH Ius cStttrmined that is dtJlrabtt to publish a ~l tUe r for tht benefit of tht gtn(rat bar membership or for a SKtion membership On l Qwor_ terly buis. Also, the committee believes it is cStsirable to tslllblish an tltctronic bulletin ~rd by which all mtrnbtrs of th( AI~baffili Slal( B.a r could iKCUS I

r-----------------------------------------------, ADDRESS CHANGES CompIett the form below OSlV if the~ an dI;mgr:s. to )'OUr I;"tina: in tho currmt Ala6.>ma 8m DirKtOlJl. Out to clu.ngn in the stalute IlO"!mina: dertion 01 bar l;(NfUtIi.uioners.. ...-e ~ an required to use members' otfia addruses. unless none is W<lilablt or a member is prohibited from reaiviRg Sllltt bar mail at the offict. Additionally. the AJdJarrw Bar o.·roclOlJl is compiled from our mIIiling list and it is important to ust busine" addfl'losts for that ruson. NOTE: If wt do not know 01 an add ress chanQt. we cannot mIIke t~ nt«Ssa1')' change.! on our rtrord.!, so please notify WI whon your ilddrtss (hanQts. ,"lall rorm to: Alia: Jo Hendrix. P.O. Bo.w: 67 1. Mon!lOmtry. AL 361 01.

o-one: O Hr.

Hrs.

0 lion.

H i..

M1.

Othor _ __

PuIlN ...... _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Bw.i ..... Phonot N........ r· _ _ _ __ _ _ __

_ ____

_ _ Birthcl.olt._ _ _ _ _ _ __

y~~~,----------------------------------~nn

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

_ __ __ __

Offkc M.ilingAddrtU _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

CilY _ _ _ _ _ _ _ _ _ Stalt _

ZIPCo6o _ _ _ __

CounlY _ _ _ _ _ _ _ _ _ _ __

0I'f"", Strm Iodotrtsf til difftl'ftll. fn>m maili ... lIddrtso) _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ __ _ _ _ _

0.." __________

Cil)l _ _ _ _ _ _ __ _ _ Stato _ ZIPCode _ _ _ _ __ L _______________________________________________

THE ALABAMA LAWVER

May 1993 / 189

dat.I !we of AlaN"'" cnt I~w. briefs. mtWlu to and from eath othtr, arti· tltJ from Tht Ma~ma IAl£lIer and othtr 'IOUn:u, _ Wtl1 _ OIhu informll' tiM ~rtir.mt Ind hrlpli.al to bIr members. Tht tOmmittH will tonti ....., i~ study 01 this I.'OI'lUpt UKI prtpan a ftC·

will be tilken within Ihe nu t few months, .nd il is hoped Ihis task fora will bf: able to recommend individ",,'s to K~ as memben oIlhot board of sptci.JJiution 10 bf:gin ltc:tpti"ll applica. tioN for Ctrtifyil'lll organiu.tioru by Iht tnd of the yur.

omme~tion.

Commltt_ on "'b.~nce Abu •• In Socl. ty

T•• k Force on 5p<K:1.lIution William W, uu"""nt, chair The board of bar commissioners ap· prov.d .. pl~ .. of legal sp(tialiuti on at its meeting In May 1992. The plan ClOlis for the uablishment of a board oIlepl spetiliHution which will evaluate and 'pprovt pTivllle org"niulions to artily~" _1oP«i.Jlists i .. -'ous fields. Pruently. the Nr's Prr ..... nt .. t Code Commisaion is coruldrring I modi· (lClI\lon 01 Rule 1.1 to atCOmmodalt Iht spt<:i,liu\ion plan. As soon lJ this is done UKI 'P\'I1'O'I'td by 1M board 01 bar commiuiontrs. it is anticipated the tnt ire pac~ will bf: prn.ented 10 the Alaba"", Supreme Court and the steps toward imp lementation of the board of specilolization will com men«. It is anlicipated that all thele steps

PI/uki. e. Shlftm", chili. The committee i. currently working toward the implementation of I.~r! doctor eduClOtion turns consistent with the guid.,i .. es of Ihe par\nef$hipcil and prevention prqil'llm 01 the American Bar Associlltion with the American Medical Associlltion. A subcommittH, chaiud by John Ott, "'loll formed 10 plhtr informll' tion from the VlIriouI5tl.tt bar UKI medi. 1:11 woxilotions which "'.... implemrnttd thtK prognnu.. A rtpOrt hal bftn madt contemin8 these pfOirllms.. Additional informll\ion is bti"ll plhered. and the subcommiuH plans to prn.ent a ten!.l· t;"" progrllm proposal It the nut meet· ing. The CONfnsW 01 the committ« is there is a need for ~ lolid prop<>sal to prnent to the Medical Association of the State 01 Alabama.

PROBATE BONOS

In addi t ion, the committee wa. rnpomible for StcUri"ll a ~rfdoctor twn for I prnm!.ltion on drug p~n· tion in KhooIs lit Iht COWmor'. Youth o.ug Conlnence on Oct~r 2li, ]992. The commiUH cl\loir Itrved I I rn<.Xk",tor for th_ sasions. which .... ~ heard by Ipprolimlltely 600 youths from Khoob throollhoot the sbtt. Also, com· miUH member !:d George wn:>k an artide for T1ttl Alabama ~ diKus>ing the commltlU'. participation coocern' ing the confeunet and thot com mitt ..'. project for the year. CommiltH INmbtr Arl SWeenty attended a "Drug. in School," $o!mif\ilr in NOYtmber in Califomill. Thi. was clone It the request 01 the aKuI;"" dirtttor of the Center for Law UKI Civic F.dtlClltiM. Finoll)', the commiUH cmtinues in iU of/Orb 10 provide aUOmt)'lll rnoura ~non' for drug educllion programs in coopention with the Center for Law .nd Civic Education, The committee provided rnOIl"e lttorney. fo r four ugiONlI meetings of the Alwma Coun· cil on Social Studies wheu ro .... sets of "Drugs in Schools" and Irainin 8 work. shop, were made ava il.blt to midd le Khoolleachers. •

CHAP7..13

COURT BONDS

Sondl

St ..y of

When yov need a bond Just Call

Jack Mc Carn Mickie Mc Carn Edwards For Plofusional Senlce 251-4062

~ •

190 f Mayl993

FAX: 328·0247

ReCllly lnsuronoEl Agency Inc

PO IOX ~115

a. ... ogl..,,,,

AlI:!b<:lma J5~ rAX. l2HI:/-41

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By JOHN C. PRATHER, JR. This article, by the president-elect of the Kentucky Bar Association, originally appeared in the winter 1993 edition of/he Kentucky Bench & Bar. hn tries to justify the existence of lawyers as ~ mean· ingful and important part of a fr~. society. The lawyer. who defends the rights of others as a part nl his iller professional lile. becomes tongue·lied and int.lIed ..... lly steril~ in trying to explain that the professi()!l i. not • leech on th. derrien of society. but rather is the custodian and trust« of th. ability of that soci.ty to continue to operate and live in an nrderly manner. fulfilled is the lawyer who justifies the eoistenc. 01 the prolession by examplu of service. fidelity. and professionalism. ho achieves much but shares little: who hilS the time to r.,;ei"" ac<.X)lad.s but not the time to help younger nr less upe rienced I~wyeu lu rn how thost accolades ~r. deseoved. and who. while basking in the light of ability. fails to share that ability with those ",flo could not otherwise obtain such service. fulfilled is the professional who recognizes a duty to increase the competence nf the profession by.haring the capabilities of the best practitioner with the newest practitioner and who thereby irn:rea.ses the competence 01 ali for the benefit of the populace served.

ho cannot achi ...·e beQuse he cannot commit loyalty to the law or to the clients $Uking his loyalty. Fulfilled is the lawyer who ",.Iius that commitment to the law ""d loyalty to all to whom loyalty is <:>wed provides a basis upon which the trust betwttn allnmey and client is built. ho must question what he/she did yesterday be. cause he/'he did nnt do hisJhe r best reuareh. best reading. and give his/her best honest effort. Lonelier yet is the lawyer who thinks more of keeping ~ few dollars than insuring the public against hisJh ..

errors. Fulfilled is the lawyer. who without regard to the economic """ards to be achieW<! from an ilSsignment, after accepting the assignment appli .. fully all of the talents. abilities. and reS<>uTl:es available to himlher in complet· ing the task. Each lawyer. of whalever lalent 1...'Il1. hilS "" obligation to the public, to hi~r colleague •. ""d to the profession to imurt that ,.,.hen urvices are rendered w uranct is provided 10 the recipient of those services that an error or an omission by that law~r will not unduly prtjudice the innocent client ,.,.ho s<>ught 5uch ..,rvice•. May 1993 / 19 1

ho carries th~ heaviest load of .11-.1 grudge. fulfilled is lhe lawyer woo. having given full me.sure 01 talent and loyalty to a ciient. reali.e. that each project und .. tak~n is a project on behalf of another. No la".,..,... owes to a cli~nl an obligation to carry hard f~l ings or to fmle. ill will I"""ard moIher per50n and particularly toward another professional. It is a sign of weakness to act as an objectionable advocate, whil~ it is a sign of strength to act as an advocate objectively. ho isolates himself/her· stlf_ who withdraws from Ihe society that he had chosen to "",t- who counts Ih~ hours, fi ll s out the time sheet. and becomes a pri50ner 10 the billable hour. Lonely is that lawy.. who leaves the office merely to sit alone in his world of televi,ion. or 10 selfishly indulge only in per· sonal recreational activ ilies. only to exist for Ihe next dais repetition. Fulfolled is the la".,..,..r who understands that economic realities are a means to supporting a profession. but are not the purpose for the existence of the profusion. Soci· ety requim; that we participate in the world around uS if .oddy is to progre55 and if we are to contribute to that pr<>gre55ion. ho can see starving chil· dren or homeless people, and not .hare the fruits of hislher succtS5 with the Red Cross, United Way. a church fund, or some charitable organization. With the visions of the .tarving children of Somalia. the homele55 in our citiu. and the devastation of tht natural disastm; olsoulh Florida and wui.iana fruh in Our minds. we cannot conceive of the lawyer. who has great resource. of kno.dedge and finance. ignoring the needs of olhers. Fulfilled are th. lawyers who. on a dayto·day basis. share time through pro bono programs and individual pro bono efforts. W. are no more ffi;luired to contribute Our t ime to pTQl.'iding legal strvices for the undeserved than we are ..quired to send money to the Red Cross for aid to victims of disasl~r. Yet, how can we claim to b. respons ible citiuns or responsib le profe55ionals ifw. do not do both? ho stands only on the fenee. taking no positions in fear of sustaining personal or eco· nomic risk. and thereby standing for nothing. Fulfilled is the la".,..,..r woo r~cognius that the great· est advancements of civilization wer. crtated through people taking often unpopular pos itions (whether it was 192 / May 1993

Molts. Jesus. Candhi. Jefferson. Lincoln. Anthony. or King). and that laW}'ers have Il«n afforded unique posi· tions and training to be able to mold public opinion. to debate tht advisability of change. and to overcome th~ paSSivity of i.,.,rtia. 00. having becom~ a judge. finds sudden infallibility in an i1."O!), tower. Fulfilled is Ihe lawyer who. IIaving become a judge. finds that h"'she was, and is. first a ia".,..,..r; who finds that the prob· lems once experi~nced while practicing law continue to be experienced by those C(lntinuing to practice; and woo tnjoys misting rather than obstructing the legal process by aiding rather than deprecating the participants.

110. h,wing become a 5I'nior counselor. has neither th~ time nor the inclination to listtn to. and actually hear. a junior associate. Fu lfill~d is tm lawyer woo, while having the ability to share hi.ther experi~ncu and wisdom. first takes the time to listen \0 the problems or ponderings of a young I.".,..,..r and hears the underlying unc~r!ainlj~~ and n«<is btfor. espousing suggestions and advice. Imagine the frustration of th~ bright associate woo takes a position with a law firm hoping to learn the law and the practice of lawaI the foot and side of a respected icon and who i. relegated to the cubicles and libraries wilhout guidance or mentoring. :knior couruelors have th. unique opportunity to return to the profe55ion • sense of corporate memo!)' and to instill a continued feeling of professional pride and responsibility. ho critidzts the organized bar. yet has never activ~ly participated in a bar activity. Fulfilled is the iaW}"r who par· ticipated in (and not just by join· ingl a section or committee of the bar. woo meets and learru; to know and enjoy other members of the profes· sion. and who thereby contributes to the welfare of those responsible as custodians of the Rul~ of Law. ho UstS hislher office as a refuge. allOiding home and family. and gradually loses the abil ity to enjoy tither. Fulfilled is the lawyer who realizes that the practice of law is a part of li fe and is not life itself. fu lfilled is the lawyer who learns that the whole person is not made up of just a mass of chemicals nor is the whole personality made up just of fealty to a profession. but that living is participating in the busi.,.,55 of life. THE Al.ABAMA LAWYER

YOUNG LAWYERS' SECTION By SIDNEY w: JACKSOIl~ III, president

REPORT ON POINT CLEAR MEETING

Ii il

he mid·winter meeting of the Extcuti\'. Committee of the YLS Wall held in Febru . ry at the Grand HMel in Point Clear. The agenda included discussion of

and torts and contracts. The YLS Executive CommiU •• is working with Jan Loomi •. director of the Alabama Center for Law and Civic Ic:ducation.

amernlments to the by-laWs, the SandesI;n Seminar, the Youth Judicial Compe. t ition and oth.. matters. W. ""'.. wry honored to have as Our guest al the meeting Daniel Gu rash of Cleveland,

.e.

Ohio who is tho ineominJI president of the American Ba. Association. Young

Division, along with Jack BfQ'>I.'Il. who is. division delegate to the Hou ... of Delegate •. Afte. introduction of the "Yanktts" by Mark Orew 01 Birming· ham , the oommiU« engaged in. spirit· ed and heated debate 011 the amendment Law~ers'

to the bylaws. It was fillillly voted that the bylaw, should bot amended. and the

amendment will be presented to the board of bar commissioners in lhe late spring. The change. inV<)lve having a «'presontati .... from each congressional distriet on the eommittee, limiting the length of .ervice on the committee, PO>viding for a statewide balloting of offieers and automatic appointment to the rommittrt lor the p«,sident of local bar aff,Iiat ... The entire bylaws will be print· ed in this publication once they are approved by the bar com missioners. Other accomplishments at the meeting included an undertaking to publish a manual .ntitled "Law lor Youth" which will be coordinatw. by Candice McGowin of Birmingham. The booklet has helped parents and teach .... wn .... y to t.enag.,rs the law as it applies to them. The theme of the manual is "ignorance of the law i. no e><cU$t." The tn3nuaJ " i ll rover """t"")'thing from how long a juveni le can e'll'!ct to be d.tained at juvenile court to the proper U$i' of motoriud skate boards. There will at.o be advi« relative to alcohol. drugs and tobacco. guru and other w.apons. recreation, ...!>Onsibility of parents. students and teache ... at school.

THE ALABAMA LAWYER

court and domestic relations. The Section plans to offer this .eminar again this month to be available for spring bar admitt •• s. Several Montgomery young lawy.rs we .. involved as "coaches" for the local t ..llm that participated in the Youth jud ieia1 Mock Trial Prog r am. Additionally, Montgomery YLS performe<! a mock trial during th<o o rientation session for statewide participants in the Youth Judicial Program. Law Day 1993 will the Montgomery County Young Lawyers assisting the Montgomel)' Count~ Bar Association witn the most visible public relat ion. and service project during Law Week activit ies-Lawline '93. Lawline is offered in conjunction with a local televi· sion station whkn publici~es the twn\' Young lawyers will ha ndle telephone <:all. from vi.".,..rs about the law and the court sl"tem. A toll·free number will be available. Hundreds of calls are handled each year during the two-night Lawlin. Program. On the fun side. Montgomery County Young Law~ers will be sponsori n g a chartered bus trip to see the Atlanta Braves take on the Pittsburg h Pirates on jul~ 17, 1993. M on t gomer~ Young Lawyers also are planning regular "after hours' get-togethers during the spring and summer. •

Sid ..., W..... ckson, III

Mont90 .... ry Youn9 l.Iowyera' Section very .cllve This past November. ~lontgomer~ Young Lawyus sponso r.d I "Bridge-tht-Cap" .eminar for recent bar admittees. The seminar was w~lI·attend· ed and feature d spukers, including three judge •. on basic ar.... 01 pr.2Ctice in the fede ral courts. circuit court. probate Count~

1992-93 BAR DIRECTORIES Alabama State Bar Members: $25 each Non-members: $40 each &:nd check or money order to: Alabama State Bar Directory P.O. Box 4156, Montgomery, Alabama 36101 May 1993/ 193

OPINIONS OF THE GENERAL COUNSEL By ROBERT ~v. NORRIS, general counsel UIESTION: "I ...,ad SOI1lI'thing not too loog ago which I can-

now put my hands on. II had 10 do with attorneys ilCCtpting lo 'OOI\-rdul'Mlable ..mint. ftt' in. for ewnpie, I dMxu ase. 1 bditYt I nantly rud SOI!OC .. htl~ lhit I no....t~Ie.minor In: _ not allowed wdrr tho Aloba· mlI Rules d f'foIeuior\iI Rtsponslbility. I would appr«ilote JOUr rriming 1m dir«lly to any opinioo or ITIfflIO issued by)'OUr offICe to lhol tfl"<ct. I trim to finr,l \hi, pn:wi.5ioo in thr ru\Q. bul I Wl.I not able 10 put my hands on il immediately. If these loTe strictly oull~d by the bar association, I would appreciate yoor getting me lo «>!'Y 01' what""". it is thlot ootia"" such. practice. · Secondly. I would like 10 a,k you about an event which nant!y happer.td to US in the <XIUl'K of stnling. fraud QH. Our firm was rtprut'ntiOil i )'OlIn; ~ .... inst lo promiroml ~ ~cwidr bank. n.., aM _ bl:ing otItlallor • cnUin sum. The Odmdint rtqUiml th» ITI)I dim! mit. into" confidentiality "IIlftmm! ",hith wmt~1y proyided lhal she would not diKloM tilt i1JnOI.Inl Of any 01 the ttrTTl$ d the settle",",! i\$tlf;~. she "';)$ not prohibilW from diKuliling tho fxts of the c.lK with anyom. Hoo..'elltr. Ih. DrieOOanI.5'1aw)'l:TS \'Hnl a step furtiler and reQuired our law finn separately from the client to ~grtt not to disctost ~nythi"ll hi.ving to do with tilt alt. in(lu<iillll but not limitO<! to the f-=~ terms of the Stukmmt. ounount of settlemmt. ttc. We wue also requirtd to igrH not to diKlost:any of the infonnation in this ClOSt to:any publiao· 001

tion, ~r, p..mol. de. "1 1vYt iravt an:m\S M>out the ~ility of" ddtndant and" dtfenst la'" firm imposing on " ~llIjntiffJ law firm ctrt.'lin

rtStrictiOnJ "'" condition of sttttemtntJ. I CiOn eMily 5« how this t)llt 01 ,,'tapon can be U$td b)' tilt dd'tnst bar to cr."te I patentia l confl ict of int..est betWi:en the plaintiffs exi,ting coullKl and tilt p!aintiffhtrstlf due to tilt fact that it is not nee· twrity in our beK inttrest to stUle tilt CiSt accon!ing to tilt turN im~d upon the I,W firm .. Lone by dderl$t counstl. .....ne.u. it may be in the dim!'. bHt interut. It stnnumozing tNt. in this QK. the PWntiff is not prohibited from discussing tilt facts of this~. ytt the P!.iintitrs bwyrrs a... prohibittd from iUCh disawion or communicMions.. "In ilIleffort to itt this CiSt ruoIYtd and to p~t any poui . bk conllict with tilt client. oor firm '.Ofnt ahead lind agrHd 10 tilt Until which ""'"' being imp<md on US by tilt DefendantJ. Ilowevtr. \lefo ... this situation aristS again. I would """... clate YOU' Wvisil'lll US 00 the following points: I. Don II confidentiality igr"mtnt impos.cd on the Pbintill's attO<nr)'l, which iln' more rutnct"", thilIl the tonfidentilol . ity prO¥isiorIs i~ on the Plaintiff him.wtl. constitute a Wobtioo of the Rules of ProfUJiorW IWponsibiity in tNt thry prestnt " poIentiiol conflict of interw betwftn 1m Plaintiff and his attorneys? Z. Can I Defendant imp<m I confidentilolity requi... ment on plaintiffs counstl in that the Plaintiffs counstl is not a 194 / Mayl993

pany to the ,uit and is not r.""wing any consideration

from lhe lXfendanl for lilY <;()fIfidentiality agrHmtnt? 3. Jut any bonds 01 limitations placed on such confodtntlality ~mtntJ 50, whit

by 1m Rules of ProkuioNI Rtsponsibility111

om they?

" I would iPPn'riIote )'OUr giving US the brnrfit 01 your wisdom and ins.ight into thrSt ITW'I)I and complex issues rlIised by lilt confldtnti.llity ~ to which Pbintiffs and thrir ~')'!rs are being 'bound lind &logged' and tilt effect of Proft$Sional Responsiblity Rulu on thtm."

NSWER, QUESTION ONE:

The l)isci~ linaf)' Commission has. on" number of occasiorul. coruidertd tm qUl!Slion of non-refund· Ibk "'!.Iinm and his consisttntity held thlot tho ... mIlK be somt cmn«tion be"',"" tilt attomry's f« and the IflIIol strvict:s rm:Imd. NSWER, QUESTION TWO:

The AllIbllml Ruin of Profusionl1 Condutt require that ~ ~r mrnt abide b)' a client's decl· .ion to accept an offer of stltlernent in a maller and to dder to the client '.&lo.ding third parties who might bf ildverstly afftcttd. Constqutntly. a Lawyer may participate in I cmfidenti.lL stttltmmt rvtn thoueh thtft may bf" possibility of Idwne CXII'lSotqutOCtS on third pat1its or the public. The 0iKi· plinuy Ccmmission ruoenila. howtYo:r, that theft may bf circumsW>ta "nere confl<kntill scttll:mmtJ conc:n1 information tNt might prtYent !wIth and safety information from mchil'lll tilt public. Such circumst.'lrocu ciurlydemonstrllte tilt nttd for • revised approach to confidentlat settlements eithrr b)' sbtute. coort rule. or by a rule of ~rofusional conduct. ISCUSSION, QUESTION ONE:

With re&lo.d to non · rtfundable le&lol fets. the btgilVling principle is tNt the dimt his the ab$Q. lute right to t.rminate tilt servius of his 0. her ~ •• with or without CiOust. and to main iIlOlhtr ~')'!r of tllti r choke. This right 'oo'O\Ild bf sulnbntillty limiled if tIM: client ..... requirtd to pay tilt full amount 01 lilt agreed-on f" without the services being performed. In Cairres. Cain6 and Caines v. Hare, I~g,m. 554 So.2d 445 {Ala. Civ. App. 1989). the Alibama Court of Civil Appe;oot.s stated: "The ruk in AIaba".,. is tNt ilIl attorney disc ...... rged wi\h.otJt QlUst Or otho:TWist pnwnttd from full perforrrunce. is entitLed to be rusonabIy comptnS.lttd only lor stMcu rtndtftd btfoft such diKhiorge. Hall D. Gunln. 157 All. 375. 47 So.Zd 144 (1908)." t1>( Court Ibo points out 1......1 wlltn II client diKhi.rgn. 1l",),!r.!hI: diKha~ on!il\lrily doH not constitute I breach 01 contract twn with ~ <;()fItrllct 01 empioymtnt which prOVitlu for tilt pa)mI' nt of a contingent f" and t ..... t part performance of a

THt: ALABAMA LAWYt: R

oontrad. prior 10 being discharitd, tntitlf<.! orw 10 rttO'>'U on qUllntum IMruit lor thoM JeM(es rfndtrtd. Additionally, Rule l.t6 (d) d 1M Rul" d ProfessiONl Con· duct p!'O'JideJ.: "Rule 1.16 Ottlini", 0<' Ttnnil\ilti", RfPrtsmtation (d) UpOtIltnnil\illiol'l d rtprtJentalion, ~ ~T shill !.)kt lIt1l' 10 11M: uttnl TUSOOibIy pt'Ktiablt to protrct • clifflt'S inlertllJ. such as ",,,ng ~ noti~ to tIM: tlient, ~Iow '''' tilM lot e~nt d othtr «I\IfIH1, lUmodrril'lll paptn ~ Ploptrty 10 ...'hich tht difflt iJ ffltit~ ~ rdunding "'W ~ ~ 01 fH tlrot has rIOI iI«n ft1mftI. n.. iI~r may rtl.. ;" IQIItn rdalil'lllto tht ditnt to tht aUnt pnmittf<.!

byothtr bw.- (trnp.uiJ~) Based on tht .obcM. tht view d tht Oisciplil\illY CommiWon is that no re!.)intr lhould bt non·rdun<Wlle to tht uten! that it uc«dJ I rusonablt ftt. That iJ 10 Ay, that Ihtrf Jhoukl bt somo ntXUII bmo.'ttfIllM: IH cha~ MId tht JeMw ~rformN by lilt iawytr. For fldors for dtkrmini", tilt rasoniblmw 01 tht IH. s« fWbks ... Milq, 439 So. 2d 137 (Ali. 1983) mel Rule 1.5 (a) 01' tht A1Wma Rules of ProfwioNl ConducL Tht Dikiplil\ilf)' Commi$lion ~pplif<.!11M: KKM: rul<: to c0ntingent ftt contrxts in RO·9 1· 05 i"oOIdinlllhal. client, 'fter entering into. contintltnl conll'lCl, may dilehartlt tho la~r thtn btifli .ntitled to romptnsation only on • qUllntum mo:ruit basi.!. It mU$\ be S.lid. however, that. oontingent Itt client can· not wait until favorable settlement olftr has bun recei~ to dischartlt the lawyer. In that sllUIIlion, the lawyer can rfwvtr on the contracl if the dilella'lle WilS without cause. St. Kuushi· /IU v. Huller, 454 A. 2nd 1373 (D.C, App, 1983), cert. denied 4&1 U.S. 820, 104 S.C\. 83 (1983).

I&C USSION , QUESTI ON TWO: While the Abb.lma Ruin of I'rofessional Conduct do not $pt(iflQlly addrus tho dhiQl Pf1lIlriety 01 , Iiw)oer participating in tht fonnation 01'. oonfiden· tial Jettlemo:nt they, nM'rthelea, may bt inttTJIreted in. maJlntr rnalUng such c:ondutt ptrmiJsiblt. Rule 1.2 of the Ruin of ProfUlional Conduct Jpt<;ifiCllly 5\lte$ in sub-~ (.I) that "alaY.yer shall Klick by . clionl's deeWon whrthtr 10 acapI iUI offer 01 KUltmtn! 011 malin lnd in tht Convntnt 10 that Nit, that 1 ta...')'tr lhould ddeT to tht dient reguding ' concern for third p,&rl ieJ who millht be """"'ty lffrcted', ThUl, I wr readinc olthiJ rult mjuiTa tho iIwytr to ~ido by .. clie1lt's dn:ilion to ffltn into 1 oonfMltntill Sdtlemtnt aaamlTlfnt IMn it' u.-t aammmt his poiffltill 10 hann third parties or lilt public. Thif thtlTlf iJ carried fO .....Olrd in tht Cornmtnt to Rult •. 4. "Rnp0n5ibility to cliont mjuirn 1 Ii~r to subordil\ilte tht ;nlemt 01 othtr11O those d his clitnt", but with tho QVUI thai, "thai ra.ponsiblity dots not imply thai , lawrtr may disrtl/olrd the rights of third ~1lOIll.. Wilil<: Rule 4,4 dots recogniu the rights ol third ptf1QlU, it dou not make the I~r morally autonomous to tIM: utent that he or she could disrtgard u.. dt.oires 01 tlv client to enttT into I oonfidential Jeuiemo:nt """" though ttut Jeu lelTlfnt might 5hield the public from w'frst health and safety Information. Although Rule 2.1 prOVidt.o that 1 lawyer in rendering adllice may refer to other conside ratiom such as moral and JQcial <:OI'ISideTlltioru, nothing in the rules Ttquires thfc client to follow this advice. Tho,u, the ~yer i.! Ifft

with the obligalion to ~ide II)' I client'l deciJion to Kcept an off.. 01 Sdtlement as clelTly pn:wided in Rule 1.2, (SH MMTh..... Btchamps. !kald OuI;;J/·Courl !ktlltmtnls: Wh", does lIN! Public Have a Righl/o KnowJ 66 Not .. Dame L Rev. 117 (l990H. WIth rrgard to the specifIC quution listfd in your rtq\If$I. it is the commissioner's view that it is not • violation of the Rulu of ProftssionaJ Conduct lOr , tonfMlentill Sdtlemtnt ~mo:nI to i" - mort rrstrictions on pla.inliffl iIW)'t1J than tht pbinliff. Sioot the \awytr mull abide by tht clion"l deciJion in this matter. in;ocaxdancr with Rult 1.2(1), thore would bt no conflict btlwmlillt ~r MId his clitnt in JUth I Jettltmtnt. Mo«O"tr, it thmc is , conHict in such IlituWion. it is no mort thin tho oonRieI inherent in iUIY ilw)'tr/dion\ rrl.U.ioruhip where: • fn iJ ntJll,lt"lrdlcmrgW. With rtI/lIrd to the Jecond sptCif;~ question. it is the Ww of the Disciplil\ilf)' Commission that I defendanl or deltndanr. COltIIJeI may require oonflClmtwi!y u 1 condition 01 Jeuiement. own though counsel il tfChnically not iI party to tho 50iL With rellllrd to question thne, the !;\Ir· rtnt Ruin oIl'rofeu.ional Conduct p\iI« no limitations on tht formation 01 confidential JeulelTlfnts by ~I'l. In rtKhillJl tho i1IxM conclusion, the Disciplinary Commission is not unmindful of tho ~nll tIfortl in state iegistatum, Congress and the courts to fa.hion a solution that would falrly balance the privacy and property rights oIlhe litillllnts ilM the .afely and public health concerns of the publi,. (Sfe ' .11" And"""mum, Prolecliw:Orr/er Bailie Ccnlinues, Nat') LJ .. Jan _ Ulry 1 J, 1993 al I and Bob Cibbhu. 5ecrtCv ~'fI'SUS Sufe/V, Restoring the Balance. A.IlA J" December 1991 ~t 74), • RO-92-17

REAL ESTATE ATTORNEYS LASER SOFIWARE A complete line or Real Estate Closing Programs including • HUD's, Buyer & Seller Statements, Disbursement Register, Chet kwrltlng II Deeds, Mortgages, Notes, & Affidavits II! Title Policies, Co mmitments and EndorsemenlS Ii!l FNMA and More One tim e data entry, all calculations performed, high qu ality printing or ,omplele document, with dala. gentlllted on plain paper. CALL FREE (8 13) 76J·SSSS

May 1993 / 195

RECENT DECISIONS By £t4.V1D B. BYRNE, JR., WIUJUR C. SILBERMAN ond TERRY A SIDES

SUPREME COURT OF THE UNITED STATES -

CRIMINAL Dntg forfeiture -

Innocent owner "fense IJrIitN $la/a II. A Pflred of Land, ~ No. 91-181. 61 USLW 4189 (Ftbn.lary:4. ]993). Maya homeown(T who did not know tht home wu bought with the profitt of iIIt~1 drug t.loflicking resin gowmmmt K~" by nisi"ll the "inroo. ant ownrr" defense? 1ht $up ... mt Court answertd yes by a si~·t(>oth.ee margin.

The governmtn! mtd an in IVm action $ins! the p.orttl 0( WId on which the Respondtnfs I'Iorne __ \ocated. al1tgil\ll

that she had purchUt d the properly with funds given her by Joseph Brenna that wert Iht "proceeds tr~cublt· to illtgal dIU. traffi cking, and Ihllt Iht property was Illerda« subjtd to "izurt and forfeiture under the Comprehtruive Drug AbUM ~nlion and Control Act 0( ]970, i .•.. 21 U.S.C. I S81(l}(6). The dimkt court rult<l in/itT alia IN.! the Respondent. who claimed she had no

knowledge of tht origin of tht funds ustd to buy her houK, could not i~ Ihe "illll(l(elli owner dtftnse" in !SSI (a)(6), whkll proYidH IIIaI "no property shall be fo. ftiled ... lo Ille e. lonl of III. inlernl of an O'I'Iner by rtaSOn 01 any ad •.. t..ublishw by liIlIl ~r to have been commiUed ... wilhoul Iht knowl · wge or comtnl olillal O'I'In.r." The court of appull rojtclod Ille d~ trid COlll1", rusoning and the Suprtmt Court lffirmed. Jwlic. Slevens. joined by Justices Blackmun, O'Connor and Sout." concluded lilat an 011.11.,'1 !<Ick of knowl~ of the Ik\ that her homt IIad bHn pu~ with the protffils of ill.gal drug lransactions constitules I defense to I fori.iluft proc«ding under the suM •. Pe.son.$ or busi nu~' who beco me 0WI"ItI"I of PiOputy - WId. CV1 or anything else - financw by drug proc.eds may kup il il they did not know iIbout 196 / Ml1y 1993

the drug COIWItdion. The Suprtmt Court rejected the Ju$tice l)epartmtllt"s brwd inlerpretation of tht ltizur. and foriti · ture provisions of Iho Comprehtnsive Drug Abuse t>rr.otntion and Control Act of 1970. Governmtnt ~n ha4 COlI ' lendtd lhit fedt",1 ownership <J all procuds vesl insunttr wh.n the c.imilll.l IransKlion oo;curt and IloItt:I prtadtn« IlYff all ~I cWms <J ~rthip. The pluralily opinion pOinled out that the stllute's UN of the uoqualified term "owroer" in thTH pbcH was sufficiently ullambiguous 10 fondon iny con · tention thallhe prot«liOll aff,;mlod 10 innoc.nt 011.11 ..' is limited to bona fide purdwtn. That the fur.d$ RespoN.lent 0Hd to "".chaw IItr homt "~n a giA ok>u not. therdorf. disqu;,lify lit. from claiming that ,he is such an innoc.nt

-,. It if impOrtint

10 poinl out that the Suprm"ll: Court did not moIvt the par· tifl' disputt as to Ih. point It which guilty kl"lOWledse of the tainted cha.acter of p'OPerty will dtpriv. a Pllty of an illnoc.nt OWller ddtnit btuus. Ihe Respondent lUumtd. in this case. th. bu , den of convincing Ihe trier of fld that Ihr ha4 00 kr>e:M'I~ of tilt alleged s ouree of 8rtnna'5 gifl when she KUivtd it.

"ntenclng guldellne.enhanc_t per)ury United SIll/a rI. DunnigQn. Cast No. 91 · 1300,61 USLW 4181 (f.bruary 23.

'ot"

1993). IXxs the Con~titutlon 1l".mit a court to mhin« a dtftndant'l .. ntonee und.r the Ullited Suus Sentencing Commission Guidelines if 1M roort fir.d$ Ihe dtf~ndanl committed p.rju ry at Iml: The Supnmt Court. in an opinion JUthortd by Jwtice Kenooiy, ~red in lhe affinNtM. Dunnig~n wlS charged in a singl. roont indictment with conspiracy to di,. ITibu~ cocaine in violation 01 21 U.s.C . • 846. The go:Mmmmt"s ast·in-chitf C(IrI. sisled <J 1M witnustS who tool< part in. or ~rved. Dunnigan's COCline traffick·

ing. As the sole witness in hu own ddellSO'. she denied the witMlS', ineul· patory stat~ments and claimed she had MVt. pONused or distributed cocaint. In rebuttal. th. govemmtnt called lin additioNl wiln< .. and rtealltd one of its ... rlier wilntsstS. both 01 whom I"tifled that 1M dd.ndant sold coo cocaine to

"..'"

Ounnigln ,,'U convided and itll· ttnced punuant 10 the Unit.d Slat.. S.nlencing Guidelinu. The diltricl court Ioond lhat Ihr ha4 committed per· jury and enhintl'l her .. nttn« un<ltr 13C1.1 01 the Guideline.. which permits an mharn:.mtnt when a "defendant will· fully imptdtd or oI:$ructed. or attempt· ed to irnpeoX or instruct administ",tion 0( justice during investilPtion or proooeotion of the instant offense." In rtIItrt· ing the .. ntenee. the court of appeals Iound that" !JeI.1 tnl\an« ..... nt based 011 " defend;rnfs ane~d perjury would be ul\COll$titutional. Justic. Kennedy', opinion addrused two principal points. First. tht court noted that tho oommtnWy to ilCl.l if uplicit that the phrase "impede 0. obstruct tht ~dmini$trllion of ju"ict" ineludu perjury. Pe.jury is committed when I witna.s testifying uncIer oatil or affirmat iOll ,i'~s fillst te.timony COllceming a malerial matter with the "ill· ful inl.nt to provide false tutimon~. Ilec.l.ust a ddwdanl c.I.fI tutify lit trial and be convicted. yel not ha-.~ committed perjury - for example. tho lICCUstd may give inaccu",te testimony 1$ a result of. confusion, mUbke Of bouliy mtmot)', Or give truthful t"1imony that II jury fir.d$ il\S\lff"imt 10 ocust criminal lia· bility or prove lack of intent - not t\ltry tntifying defendant who is convlcl.d qualified lor a §3CI.1 mhan<:nnml If a dtf.mbnt obj«ts to such In .nllaneement .nulting from trill testimony, • district couri musl "ff!IJiew the ft!ilktoce and maJrt i~t findings ,/«U-

sqr, to estllblish thlll the defendant committed perjuYJ/.

Second. an enhancemtnt sentenet for mE ALABAMA U\W'fER

the willful pll'!Ie1ltation of falK testirllOll)l dots not undennine the defendant's right to testify in his own WtnK. 11M conctrn IhIot ~ coort will ",iw1« ~ Knten« as ~ mattor of courv whentWr the accused Wles the itand UId is found guilty is di&pelled by the requill'mtnt thill d~rict court INdt findings to IUPport in the dtmtnts of i perjury vioIilion in I 'Pt. cific casf. Any risIt /rom i d~rict coort', illUN Itct pnjury finding is inhtrmt in I systtm which insists on the value of ttsli· mony under CNoth. A 13C I.] tnllaroce· ment is abo lTIOf't INn i rrom IUfl'08lotf for a Sf~r~tf ~nd iU~Ufnt perjury proserution. 1\ furthen legitimate Rn· tencinQ 'OII]S relatin. to the princl~1 crime. irocludina; rttribution UId ~. itation. FiJll!!)" the cnhlnctmtnt under tilt 13C1.I is fir from automatic. When contested, lhe tifments of perjury must be found by tilt dWrict coort with ~. f"i!y. UId the fact thot the tntw\eemtnt .tfm. from. Cong. usiona] mandile rather lhan from I court's discmional'l' judgment cannot bt grounds for iti invalidation.

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THE AUI.BAMA LAWYER

"vlrlne.-

.ntagonl.Uc def_ _ • l4Iiro II, United StQles, CaR No. 91f>82.t. 61 USLW 4 147 Uanw.ry 25, 1993). Wro and th_ other dtf.ndanls W'''f indic ttd on federil drug cllargu ind tried t'*tMr pursuant to Ftdtral Rules of Crimi.w ProctdUIl' 8(b). ",toich pro",cia -thit dtfendints may be ch;orged tOilfthtr it thty "e ~I~d 10 IwJ! ~r· tici""led ... in thf Nomt SfrifS of acts or tnruat1iOl'lS constituting...offtnsu." At Vlrioos pOints durifli the proceedin" nch defendint irgued thit their ddtfIR wu mUlu.alty antagOnistic lfld movfd for 'e"nanCf undn Rule 14. which SptCififS tNt - _jf il appean thot a defmdint or the go.>mIment iI prtju· dic,d by ~ joindfT oL.ddendants .. .for IriaLtht Cou rt may order an election or sep.irate tOiIi 0( counls. gnnt a Sf\>eRI"ICf of deftndants. or provide whatr.'tr Il' lid jUllitt rl'quill'J. " 11M di.ltrkl court denied the rnotiO/ll to ~r. Each ddendant was convicted of vari()U$ offenses. The court of appeals found thai Iht ddendants had not suf· fered prejudict and affinntd Iht denial 0( stvtrance. The Supreme Court, through Juslice O'Connor, htld Ihat Rult 14 dou not require •• ve rance as a mal t .. of law when co·defendants present "mutually tl.dUl~ dtfensts," "'hile tM Rule rec· ogni~u llIat joindfT, own .... hen pn.>pf r until Rult 8(b~, may prejudice either the dtfendant or Ihe g~rnmtnt, it dou nol make mutually udUliVf ddtfIR5 prtjudic:ill "" H or rl'iluill' KYfraroce whtntVfr prtjudict i. ihown. lUther, leverlnCt should be gTinted on111 if Ilrert is II ~ risk 1001 II joint lrio! IfOUld comp'OmM II speciIic IrioI righl 01 a propn/y joinftJ tkkndtml, or __ _11M jur/! from mating II rtlillblt

judgment tIbout guilt or irInocena. 11M rUle: of pll'ju<iice ""ill Vlry "'ith tht facts in tiCh cut UId the Rult leaves dtttr· mination of tilt risk, UId the tailoring of any n«:nsary remtd)'. 10 tht 5OUIl<I di&crttion of the district court.

RICO dol. not ....ch to

ICcounUonll .nd

"wy.rs

unl •••••• RI!WI v. 1.:msl & Young, CiK No. 91 886 (March I, 1993~, May the fede ral anli. racketfTing law (RICO) "" u..,d to sue accountants or. by tKten5ion, out·

5idt lawyers and consultants who com· mit fraud for I bUlineu if lhey did not help manllle or operatt Iht bu,inut? Tht Supremo Court, in I KYfn·to-twodecision, said no. At issU( wu I RICO provision IlIowina; lawwits ~rut lhoM who -rondud or ~rtici""lt. dirKt!)' or indil"fCtly. in the conduct of an iIIe81] tnttrprist'. attain thnlllgh , pattern of ndlttttrifli ~Mty. In rejectina; the Justitt ~~rt· mtnr. ~ rtiding of RICO, Jus· tice HilTY A. Blidmun WJOtt: -on. is not lilbk undt! the provision unlfS$ one IwoI ~rtici""led in the Optra· lion or rnomgoment of the tnterprise ilKlf:

SUPREME COURT OF

ALABAMA - CRIMINAL Pro_utor'. c.omn1lnl. on Ih. def.n. .'. f.!lure 10 p ..... nt ... Idene. AI.N"" SU,,","" Court E..... nlh CIr<:uH'1 position

.cIop'.

McWilliams u. Slalt. 27 A6R ]475 (JlnUlry 29, 1993). McWilli lms .... u convicted of th rtt counts of capilli murder Ind .. nttnetd to duth. The cou.1 of crimif'lOl.ppeiis am rlTlf~ the conviction lnd sentence. One of the issues raised by McWilliiffiS on appeil aTOH from tht prOHcutor'. commtnt thai "neithfr of lilt deftfIR I Uorntys h~ve t~lked about- viriout pieu. of physicil aridmct found in McWilliinu· powssion. The Fifth and Fourtun th Amend· ments to the Unittd Stf.la CoNlitution In viola ltd when i prosecutor com· ITIfnts on tht lttUHd's .'knee. Grilrm p, C4/ifomia, 380 U.S, 609. 85 S.CI, 1229, 14 LEd.2d 106 (1976). Lik .... ist, Alabinu. Ilw clurly ooids tllat where thfll' is tht possibility that 10 pros«u· tor'. comrnonts could "" undtntood by the Jury as i Il'fertnct to the "'ilu.t of the deftndant to teslify. Article I, Sfc· tion 6 01 the COrutitulion of AloIb.trna is violated. However. the Un ited Slitu Court of Appeal, for tilt Elownth Ci r· cuit has htld thit I pTOHculor'. com· m~nts"on tht f.ilull' of the IItffnK. as opposed to that of Iht defen dant 10 counttr·uplaln tht tutilTKHll' prtKnltd

May 1993/ 197

Or evidence introduced is not an in· fringeme nt of the defondanr. Fifth Amendm ent privilege." Duncan ll. Slynchcomi!e. 7()4 F.2d 1213. 1215-16 {IUhCir.1983). Justice Ingram. writing for the supreme court, found that the pros«u to}r', comments did not constitut e ~ di rect comment on McWilliams' failur. to t.... tify and that the commenu did not identify McWilliams as the onl)' ~ibl" person who could uplain the matters in question. The supreme court concludtd. th • ...,for•• thallhe content of the pro~ cutor's closing argument did not co ... ti tute "error which. when examined in the contenl of the entire~. is so obvious that failure to notice it would ~ri O}usly affect the !aimus. integrity. and public reputation of Ih . judicial pro· ceedings." See United States ll. Buller. 729 F.2d 1528, 1535 (lIth Cir. 1986). AHI ..... tlv. w . iv • •

ntquiremflnt 01 Mi.. . . . Johr!S{)n ll. Stote. 27 ABR 1215 (JanUiI>y 15. 1993). Johnson was convicted of capital murder; on cert iorari to the Supreme Court of AlaI:>ama. h. contended that an audiotaped .tatement gi""" to the police following his arrest violated the principles of Miranda ll. Ari.wna. 384 U.S. 436 (1966). The law is cl.ar that an in·custody statement II)' an accu~d i. prima focie involuntary and inadmis.sible; to O""rcome this pruumption, the State must fir.;t establish that before the def.ndant gaw his statement. the !X>lict informed him of his rights as required II)' Miranda. SWiagood ll. Siale. SO AlaApp. lOS. 277 So.2d 380 (1913). To this end. the State must spell out with clarity and precision the specific Miranda warnings the !X>lice gave to the def.ndant. At trial . a !X>lice officer t •• tified that Johnson volunteered to give a statement foll""'ing his arrest and afier being given a Miranda warning. The offi«r testifitd, Q: All right. Prior to having thi, conversation with Ricky Johnson. did you read him what is com monly known as his Miranda rights? k !did. This was the uteot of the Slate's inquiry as to ffi\Ctly what the !X>lict said to Johnson concerning his Miranda righu before they took his statement. 198 / Mayl993

In reversing. the Supreme Court held that under the principle. OJ! SuJiagood. this exchange was not sufficient to establish the necessary Miranda predicate bec.au~ the general question of whether the Miranda warning. were given does not adequately establish whethe r the warnings ~re proptrly given and understood by the defendant. Soo also Arlhur v. Siale, 575 So.2d 1165 (Ala.Crim.App. 1990). cerl. denied, 575 So.2d 1191 (Ala. 1991). wto.n d_ . . .v . .... llrI. .r doubl. Jeope",," cl . ... .? Cranlhom ll. Siale. 27 ABR 1645 (February 12. 1993). The court of criminal appeals affirmed Grantham's conviction on retrial for pOlleuion of ma rijuana. [n her ap peal, .he had attacked that judgment on the basis that the trial court had erred in denying her "petition of former jeopardy." The supreme court granttd certiorari review to decide whether the judgment of the court of criminal aPPl'als conflicts ..... ith prior opinions Or violat •• the prohibitions against double jeopardy. In her first appeal, the court of criminal appeals ~Il':'d the c""vietion and remanded for a new trial. Th. aPPl'lIate court held that the trial court errOneously admitted the toxicologist', re!X>rt over Grantham's objedion. The cO}urt held that th e ad minion of the re!X>rt to prO\le an es.sential .Iement of the State's case without showing that the witn ..s was unavailable violated Grantham·s constituti(Klal righl to confront the witnesses against her. Following the reversal and remand by the court OJ! criminal appeals, Grantham filed a "petition of former jeopardy" with the trial court. The supreme court, speaking through Justice Almon, affirmed the conviction. The supreme court reasoned that: The Double JeOpardy Clause does not preclude the retrial of a defendant after a reversal based on some error in the procee<lings. Reversal for trial error. as distinguished from evidentiary insuffi· ciency, does not constitute a decision to the .ffect that the government has failed to prove its case. As .uch, it implies nothing with respect to the guilt or innocence of the defendant. Rather. it is a determination that a defendant has been convicted through a judicial process

which is defective in some fundamental respect. e.g. incorrect receipt or rejection of eviGence. incorrect instructio .... or pros«utorial misconduct. When this occur.;. the aCCUSfd has a strong interut in obtaining a fair readjudication of his guilt. free from error. just as society maintain, a valid concern (O}r insuring that the guilty are punished. Under the rationale of Lockhart v. Nel50'1, 488 U.S. 33, 109 S.Ct. 285, 102 L.. Ed.2d 265 (l9S8). the admis.sion of the re!X>rt herein presented a problem only becault the t rial court committed an error in ruling On the Sixth Amendment objechon; the Siale is not ba rred by Burke v. United Siotes. 437 U.S. 1(1978) from the opportunity to corred that error.

BANKRUPTCY E"_ ulion of ~d of 1.... 1 (mortg.ge) c ..at • • .nl ___ nt dot . v_ thoup dot I. that of third p.rt, In re Perma Pacific Properties. 23

B.C.D. 1375,983 F.2d 964 !10th Cir .. December 22. 1992). Under a Section 547 preferenc~ action, the qu.stion to be determined was whether a debt owed to mortg~gee qualified as a debt of the bankruptcy debtor. The Court had determined that the mortgagee was an insider and. therefore. the one-year limitation period applied to the transaction. The Tenth Circuit Court of Appuls stated that it was follOWing the U.S. Supreme Court case of johnson v. Home Stale Bank, III S.Ct. 2150 (l9'9l) in which the Supreme Court ,tated that a se<;urity interut in rea] property secured a credi· tor's right to repa)'ment even though. in such a cast. the debtor's personal liability had been discharged in ~ Chapter 7 cast. In the instant c.ast, the Court held thai the debtor. by .xecuting and delivering the mortgage. incurred a separate and independent obligation to be respon· sible for a loan made to the pa...,nt of the debtor. and that to the extent of the "alu e of the ~curity. there WaS a debt even thO}ugh t here was no recourse against the bankruptcy debtor other than for the prOperty. Commonl: I am unable to under.;tand why this case wenl off on the question of

a Section 547 p.. fe~",~. It appears that t here was no consideration fo r the debtor which "'"lIS a .ubsidiary of the pri· ma ry obligor and th e one which .. ce;~d the consideration nf approxi · mately S400.ooo. Apparently. the Court decided that th~ consideration going to the parent wa.o; a valuable consideration to the sub.idiary debtor. There is word· ing in the opinion that the partiu did not dispute the fact that the intent 01 the loan was to pay credito.. of the par· ent in order to keep them from att.mpt · ing to pierce the corporate veil and th ..aten a5S<'ts of the debtor.

Filing 01 contingency cl.lm cau . .. 10•• 01 Jury Irl.1 right In re rrallfiler.t InlemaliQnal v.Robin$on. 23 H.C.D. ]3S1. 982 f.2d 96. (3rd Cir .. 1992). T...... k .. recovered a judgment of OWr $12.000.000 against lWA on Octobe. 22. ]991. T\\lA paid the clerk 01 the U.S. Disl.ict Court $13.693.42 in ca.o;h to obtain a stay pending the appeal. and 88 days later fiI~d a Chapter II petition. n \'A th.n filed a preference complaint in Bankruptcy Court on a contention thai the paym.nt to the clerk was coidable under Sectioru 547 and 550. The Court s<'l a bar date of May 15. 1992 together with admonition that any creditor .equired to file a claim which lailed to do 50 would be bar.ed from participating in the di.tribution of the bankruptc» estate. On May 14. 1992 Trave le rs filed a contingent p.oof of claim. in which it .lated thai it did not wai,,, its jury demand. Th. Third Circuit held Ihat by filing the proof 01 claim. Travelers had submitt.d its.1f to the Bankruptc» Court·s equitable p.oof and had lost its rights to ajury trial. Di.qu.allflc. tion cau ••• 10•• ot co ...... n. . I/on In lhe molln of Grobill Qlrporolion. 933 f.2d 173. 23 B.C.D. 1393.983 f.2d 773. (7th Cir .. 1993). Debtor's o.iginal law firm. Katten Muchin &: Zavis ("Kat· ten"}. first represent.d both the debtor corporation and it5 tOO pe.cent slockholMr. Two days Ixfore an involuntary petition was filed agaimt the stockhold· er. the law firm diocontinued " pr""nt· ing the stockholder. Afler the involuntary wa.o; filed. it rep..sented the cOrpO .. tion in con .... rting into a Chap. te. II. Because 0( Katten·s prior repre· THE AlABAMA u\WYER

sen tat ion of the .tockholder. Ih. Bankruptcy Court denied representation. but. n. ""rthe!.... servlee. contino ued for se~ral weeks in the tram ilion period of turning over representation to successor attorneys. Kallen lat. r filed a petition for approximately 580.000 for comp.n,a tion lor itrvicts rendered bet.."en February 3 and Septembe. 28. 1989. The Se~nth Circuit denitd the entire claim fo. compensat ion saying that it Wi15 not allowabl. in any re.pect .s the original application had b.e n rdused. It did mention that und •• the ci rcumstane.s. possibly the approved .Uornt}/s could ha~ employed the Kat· ten attorneys to assist them . and then filed lor expen.se. ofpayment to the Kal· ttn law firm. Commu t, t am of the opinion that had th e at torney. r. presenting the e.tat. employed Katten without court authoriution. the •• would not have boen approval of the fees paid to that firm. If this were so. it would be .. the, simple for a law firm to employ another law firm specially. without Sttking per· mission of th. COu rt as i. required under Section 327(e).

Attorney'. f • •• In re Drexel Bumam Lamberl Group. 23 B.C.D. 1313. 146 B.R. 84. Bankr.S.D. N.Y. Where bankruptcy intervened b<1fore judgment could be obtained. and attorney·s lees were . 1l0V0·able only upon judgment. the court refu.ed to allow post-petition cl aim for attorney"s fees a.ising Out of pr.·p.t ition litigation. However. the court did state that if the contract sued upon ga,,, an immediate right to attorney f•••• there might be a different •• sult. FIAREA pr •• mpt. e . nkruptcy Code In .. WJ.P. /'roper/its. 23 B.CD. 1317. 149 B.R. 604. Banlrr. QlI.. D«ember 10. 1992. The cou rt he ld that in an RTC bankruptc» case FI RR£A (f ed...1 Imti· tution. Reform Recovery and Enforce· ment Act) pr..,mpts bankruptc» law. lhat the failu .. 0( the Mbtor to follow the procedure .. garding claims as provid.d in f lRRF.A plWtnted the Ban~ruptc» Court from . x.rci.ing jurisdiction _ the legislation supemeded tlto: Bankruptcy Cod • • it wa.o; clear and unequivocal. not allowing room lor deviation.

Llmit.tio n o t .ct ion for bringing yo idebl. tr. n.f.r

c ••• In re Mar Siores. Inc.. 23 B.C.D. 1635. 1993 WL 43860 (Bankr.D.Mass .• 1993) . Bankruptcy Judge Goodman rejects Zilkha Energy QI. v. /A,ph/on. 920 f.2d 520 (10th Cir .. ]990) which held debtor· in·possession subject to Section 546(.) two·year limitation from appointment 0( a trustee . thus causing the period to upire two years from date of order fo. relief. To the contrary. Judge Goodman held that there was no limitation of time for the debtor_in·pOssession to institute litigation arising under Section 546(a); il may be b.ought any time btfore the close 01 the case. Comment, A!; there a.. no rulings by the ~:Iewnth Circuit Court 01 Appeal! . I suggest. in an abundance of caution. that One not take the chance if representing a debtor-in·pOS5ession or a later appointed trustee. but file within tho two_y•• r period from the filing of the pdition. •

OOPS! We goofed in tr.e March issue. Tr.e title of Michael E. DeBow's article. appearing on page 128. SHOULD have been "Oppression of Minority Shareholders: Contract or Tort". (ll was listed cOffe<;tly in tr.e table 01 contents.) On page 97. in the notice of the local Bar Awards of Achievement. the 20th Judicial Circuit was left off the list. And. in!he 1992·93 Bar Dire<;tOf)l ediHon of the Lawyer. under lr.e firm roster. the tel. · phone number on page 110 lor Rushton. Stakely. Johnston & Garrell SHOULD have been list· ed as "834·8480". The ed itors apologize for any problems these mistakes may have caused.

May 1993 / 199

DISCIPLINARY REPORT Relnsblt.menta • John Dou.l... T.n~r, ~ Huol5\'ille lawyer. was ."instal· .d to the practice of law .({ecti,.. rebruary 17, 1993 subjeot.

however. to a two-year period of probation. [Pet. Nn. 90·07) • Ceoo1_ Nleholu B.balrilb. a Birmingham lawyer, was reinstated to th.practice of I.w, .flocli"" February 4, 1993 subject. Ilov.-ever. In a two-year period of probation. [Pet No. 92·()8]

Di sbarment • Cuntersville attornry Cecil MaJone Matthe ... was di$. barred from the practice of law by orMr of the Supreme Court

of Alabama, effective June 10, 1992. A total of five charges ~re brought against Malthews by the Office of ~neral Counse l of th. Alabama State Bar. The eviMnc. preunted all eged that Mallhews failed to file an appellant brief wilh Ihe court of criminal appeals in nine separate cases, with the result that the casu ....... di.mi~d or other counsel had to bt aPf"}inted, and lhat he filed untimely briefs with the court 01 criminal appeal. in 21 additional cases. Matthews was also charged ",ith failing to comply with a previous order of the Disciplinary Board Matthews failed to appear at the disciplinary hearing scheduled to consider the allegations aga inst him . He was found guilty on all charges and disbarred from the practice of law. (ASS Nos. 91441. 91442. 92-151. 92·035, 90·701)

Public ReprirNInd. • Fort Payne "ttorne}' Chari •• III. SeO!! was publicly reprimanded by the bar on February 12, 1993 for violating Disciplinary Rulos 1-102(.\)(4) and (6) of the Code of Professional RespOnsibilit!l. Scott was rdained to initiate a divorce action on behalf of a client. The client subsequently informed Scott that she and her husband had tentativt=ly agreed to a settlement of the <Iom .. tic relations matter and inquired of ScoU as to what his fee would be for services rendered. Scott initially Quoted a fee of 590 .000. one-half of which he lo3id would be due him, with the .. maining one-half to be for an out-of-state altomey whom Scott represented to the client had to be.....,. ciated in the case. In a subsequent wriuen statement to the cHent. Scolt reduced his fee to an amount of $37,500. However, Scott was abl e to document only 48.9 hours legitimately attributable to hi. effooU on behalf of the client. The client subsequently te rmin"ted Scott. Formal charges Were filed against Scott with a hear ing ensuing thereon. The Disciplinary Board of the Alabama State Jl.ar found ScOIl guilty of violating the two a~-refere",ed rules for having engaged in conduct involving dishonesty. fraud, deceit, misrepresentation. and/or willful misconduct, and for engaging in conduct that adversely renected on his fitness to practice law. [ASa No. 88-646) • Opelika attorney John Snow Thrower. Jr_ recei~ed a public reprimand without general publica.tion on February 12, 1993. Thrower settled a worker's compensation case in which a prior allome}' held a rerogniud claim for $6,301 in attorne}"s fees. Throwtr failed or refused to make paymenl to this altor200 1 May 1993

ne~ for almost ~ month and ~ half. On some occasions, he made promises of payment but did not fulfill them . A check he ultimately provided was not honored by his bank. Only afler he was contacted by the allorney who settled the case for Ihe worker's compenlo3!lon carrier was payment made. Thrower violated Rule 1.15(bl. which requires a lawyer 10 promptly deliver funds to a third person entitled to receivt= them. (ASH No. 9],(1651 • Talladega lawyer WUllam N_ Fannin received a public reprimand with general publica.lion on february 12. 1993. fannin had represented the "ife in a divorce proceeding. Aller entry 0( " decree. the husband appealed, pro se. While the appeal was pending. the husband """'" to see Pannin to ask why he had jillt been denied visitation by the then ex-wife. Ouring that OOnverlo3lion, Fannin advised him that during lhe appeal. neither side had to comply with the provisions of the decrt<'. Fannin spedfo_ ca.lly stated that neither visitation nor child support payments were required. In reliance on this, the husband stopped making child support payments and Fannin later filed a petition for rule nisi once the appeal was final. At a hearing On the rule nisi. Fannin denied lo3ying that an appeal automatica.lly stayed the court's decree. A tape recording made by thfc husband during the oonversalion showed otherwise. The Disciplinary Commission found Fannin's conduct violative of Disciplinary Rules 7102(Aj(5) and 7-104IA)(2). IASB No. go.6281 • On februuy 12, 1993 Millbrook lawye r Charlet R.y Gaddy was publicly repr imanded for willfully neglect ing a legal matt .. entrusted to him. a violation of DR 6-IOI(A). Caddy was retained by a client to seek increased visitation r igllts of hi. minor child. Caddy filed a petition to modify and the ex-wife counterclaimed fo r arrearage in child support payments. The circuit court struck much of the petition. ca.lling il • ... perhaps the wor.t example of a pleading filed by an attorney in this Court in many yean." A hearing was he ld May 17. 1990. Gaddy was generally unprepared at the hearing. He ronceded $1.500 in arrearage when the client wanted to present evidence to the contrary. The client fired Gaddy at the courthouse on the day of the hearing. He ultimately had to reilJin another attorney and incurred $3.700 in additional I.... plus an eight-month ,",'ait to finally resol"" the situation. When the client sought a refund of the $400 originally paid Caddy. he was given back $32.IASB No.9 1-7191 • J a m •• A. Tu..ker, Jr. 01 Jackson was publicly reprimand· ed February 12. 1993 for willfully neglecling a legal matter entrusted to him and lailing to seek the lawful objectivt=5 of hil client. Tucker was appOinted to handle a criminal appeal in 1987. Alter the court of criminal appeals amrmed, Tucker took no lurther action band upon his claimed non-re<:eipt of the court's opinion. When he discovered that the as< had been affinned some lix month:llater. Tucker still took no ilction. At a hearing to determine disicpline, Tucker adm itted that he did not "handle the file properly." {ASH No. 88-0871

'fliE AUBAMA LAWYER

• Camden attorney Donald M. M. w ool has bt~n gi''tn a public reprimand without general publication for violaHon of Rule 1.7 of th~ Rules of Profenional Conduct. In December 1991. while serving as Pi'rHime assistant district attorney for the Fourth Judiciat Ci rcui t , Md.eod was approached by an individual who mod been charged with resisting arrest and attempt ing to elude a law enf01U'ment official. This individual ""'" a ptrsonal friend of MdkOd's and, at her request. McLtod moved that the casts against her M nol pro..,d. The court refused to nol pros the cases and another as.istant district attom~ was assigned to prosecute the individual who .ubsc· qu~ntly pled guilty to failure to heed the warning of a law enforcement ofncial. [ASS No. 92.1501 • Keith AUH om , a Montgomery la,.~r , was publicly repri. manded without general publication for sending letters to a local Montgomery businensrnan and a MontgomelY business. indkating on the letters that copies were sent to various offi· cials and offices but no «lpi.. _ r•• ctually sent. The Disciplinary Commission detennined the abo"" «lnduc! violated Rule 3.1. taking action merely to harass Or maliciously injure another party. and Rule 4.4. regarding respect for the rights of third Pi'rties. The Commission also ddennined that Ausborn's conduct was prejudicial to the administration of jus· tice and adve""ly renected on his ntness to practic. law. in violation of Rules 8.4(d) and (g). [ASS No. 92-3881 • Binningham a\lorney Dnld Bame. was publi cly reprimanded without general publication b}' order of the Disciplinary Commission for willfully neglecting a legal matter entrusted to him. in violation of DR 6-101 (A), In Stptembtr 1986. Bam~.· chent re«iwd an EEOC detumination that she had been discriminated against btcause of mce and had I:>«n fired in retaliation ror making the discrimination complaint. Barne" in February 1988 , undertook r.pr.sentation of the elient and med a Title VI! action. In June 1989. the defendant fi led a summary judgment motion and brief. The court ordered 0 .. 1 argument on June 26 , 1989 with the motion to be Submitted on Jun. 30. 1989. At th~ June 26 hear. ing. the cour!. upon lu rning of the EEOC determination. commented that this determination should automatically def.at th~ summary judgment motion. that EEOC determinations are admi .. ible and been held to be highly probative. On Jun. 30. 1989. the submission date. Barnes fail .d to file any opposition to the motion but did submit. at 4:20 p.m .. a request to extend the time. The court denied the request because of the "tot.allack of effort of couflS<l to respond to the motion and no showing of justinable ucuse: [ASS No. 921741 • Dadeville attormy Ttmot~ D. C.mer w'" publicly re~ rimanded without general publication by order of the Disciplinary Commission for failing to provide competent representation to a elknt in violation of Rule 1.1. for failing to knp hi' client infonned. in viOlation of Rule 1.4, and for willfully neglecting a legal malter entrusted to him. in violation of Rule U. Car.,.,r w", retained b}' a hlUband and wife to a Chapter 13 bankruptcy and paid the f1Iing fee On s.ptember 30. 1991. At that time, th~ informed Carner that they were behind on their mortgage payments and the bank was threatening foreelooure. Gamer failed to procud with the bankruptcy and on

h,,,,.

friday. NO''tmb.. 22. 1991 he informed his clients that the bank wa, inde.d for.do,ing on th~i r home and il would be sold at auction the following Monday. N",'ember 25. Carner also told hi, clients that h. was turning over the case to another la~r who would attempt to fiI. the bankruptcy and stop foreclosu re. Afte r considerable hardship on the part of the clients. thi: new lawyer and his staff, the bankruptcy was filed just prior to 5 p.m. on thai friday. [ASB No. 92-2321 • Hayneville aUorn~ Harold L. Wlboll was publicly repri· mand.d without gen .ral publication b}' order of the Disciplinary Commission. Wilson was retained March 20, 1992 in a child custody malter and recei""d from hi' cllent a fu of $500 and an addit ional $97 for the f1Iing fee. Wilson, thereafter, failed or refused to file any pleadings in the matter. On July 11, 1992 the client ",ked Wilson for. refund SO that she coul d employ other roumel. He ..fused, and the cli.n! asked him to continue he r case. He refused to do so. Wilson was found guilty of violating Rules U. 1.4 and 1.I6{d). [ASS No.92-366[ • Huntsville attormy B. rba .... C. Mmer was publicly reprimanded without general publication by order of the Disciplinary Board. Panel II. for representing multiple clients with differing interests and failing to decHne proffered employment where that employment was Hkely to r.. ult in representing P<lrties with differing intere,ts. in violation of Disciplinary Rules 5. 105Ia) ""d 5-105(8). [AS8 No. 91-4111 •

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LEGISLATIVE

WRAP-Up

Bg ROBERT L. McCURLEY, JR.

R..,I'- .......... CorponoUon Act

lM prtKnl AlabaJTlll lIusinus Corpo!'lIlion Act, erw:led in 1980,;s based on the Mo~e l Rusineu Corporation Act drafted by the Commitl« on Corporate Laws of the Corporation, Banking and

Husious

$tetion (now 'o!no;o..." sim-

the Businus Llaw Stclion) of tM Amtriun Boor Auoc:ialion. It incorponltd signirlWl! ~ in 1m ModeL Busil'UIL Corpoulion Act which hood bcm promulgated in 1969. The presmt XI wH I projKt 01 1M Alabam.ll Law Institule,lIld sU«ftd«l., tar1~r rn;. lion of tlK ~ Bus.ints. Corpewalion Act ,""hich had, in tum. bcm based in part on lilt original 1950 \l!'rsion of the Model Bwint" Corporation Act. In 19&4. the AlIA Committee on CorpOrale Law, promu lgated the Revind Model Busintu Co.!>Oration Act. the ply ill

aslced to submit lOlternatiw pr"",sions (somttimts ;",orJIQutinQ .ubstantivt prqvisions of the prtlent ICII for the committu's review. In addition to drafting this act. the committee all-O drafted proPQstd amendments to the AlabalN Constitution. the dfect of which would be to IClOve to le,istati~ discrtlion MVtnl a~ 01 rorponte law tNt are prtstnll}' controlled by ceruin provisions of tht AlaNIN Ccns\ilulion tNt ......., adopted belDll' ~ had .. ~nenl COfpOrlI-

first <»mplete revision oltht model act

since ;15 original appearance in 1950. Tht nvistd Kt hu now bHnWopt~ in 15 stilu. In ilpprOlim.attly ten othtr sllotu, the r~i~ oac\ .ith.. iI under study. or provisions oitlle rtvistd Kt ha~ inlluen«d Il'IIIn limited rMs;ons of the prtHnt ft,tut(. The original ~rsion 01 tht ITIOIkIIet was Idopted in appro..imlltely 35 statu. and it stems likely that the total number of fliles lOdopting or d",winQ on the r.vi •• d ~ct will ultilNtely reach a similar num· ~,

This Ict Is butd on the 1984 RMsW Model lIusiness CorPQntion Act but i",ludo clwoQes r~nded by the ABA Commillee fi"'t 1984. The committee dtwIed four ~ars to the study of the revistillOcl: it rntl for its first tirnf in Dmmber 1988 IDd concluded ill won wilh a finallTlftlint in lMlUary .993_ Each provision of this act was subjected to intenK Krut;ny by tilt memben of the committe •. who included AI,bama SIIte BlT membtrs from rwry pan oIthe state. E.Kh pTl1l'ision was rMe·.... d at leut twice by the committu. Often. the rtPQrters were

202 1 tolay 1993

lion liW. Whil. it if hoped that .uch amcn<.lmtnll will rwntw.11}' be adopted. Ihillct has betn drafted on the assumption that the presml Constitutional provisions ne unchana;.d. AI a result. a number of sections of this act contain phrases such as -Jubject to the AlabalN Constitution." The purPQse of such phrastS is to alut the uscr to the p:)S.\ibility thai .. pfOYision of the Constitu· tion may lIR\ly. The !win themn embodied in IhilKt lTe change and continui ty: whil. a number ol chanau f..,... p....,nl AIaNmlIlaw ol both I $UbsUnti~;meI stylistic character Irt .. ntcted in this K1.. in I number of oth.r UKf the Alaba~ committee has prde ..ed the p .. ..,nl Al.tl»1N provision 10 tho rule proposed in the Revi..,d Model Business Corporation Act.

1. Cha n,u In fly le , ror .. al and or,anlullon l \""orlanl ,enen' ,..-oft,lo... some (hanges ~rt mt.. ly a INUer 0( .Iyle. organiution or rormat. but are. ntverthelus, impOrtant . ."arlicularly Jince people in neighboring jurisdic tions will be using a statute with the SlIme style. Ofjponi:u.tion ~n<.I formal Alabaml le,isl,tors and lawyen should note that this act. 10Uowing the tumple 01 olher ITIOIkrn commer(;,.t Il.Itutts. sud! as the Unilonn Commercial Code IIId the I«\-ised Uniform limited P~rtner,.tllp Act. goes further than the prutnt let in breaking the \... rious provilionf into npuale "chapt ... " "ranged by topic. The prestnt KI. is al50 divid.td into llparale "ankles", many 0( which 1ft continu.d as stparate "chapt..-s" in the new act. Thus. Chapter 2 of the new ad. dtcating with incoJ"pOJalion. ."arallels Article 3 of the prtstnt act. ...ilile Article 8 01 the pontnt act. dealing with forti", COrpOnlions, is panlltled by Chapt..- 15 of the new act.. The prtstnl lct. howtvtr. conllins one Large "Article 2" called simpty "Sobstanliw I'rwisions" ...ilich rontaim 62 i«tions that encompW all manner 01 subjects. including CDfJlQratt powtTS. corporale Ilamn. rtQist.rtd office ;mel agenl rrqui .. ments. Iss .... nce of shar•• ,nd dividend$. wrtholdeTS. officers;mel directors. and inspection of boo~s and records. tKh of which is the subj«t of a stpara!. ·chapt..-" under the flf:W act. Within itClions, pTl1l'isioru art mort frequenlly broken into subsections. so that thert Irt frwcr long subi«tioru in which it INY be difficult 10 lou.!. tht appli"bl. rule . ..u with It..: Uniform CommerCi,1 Code. It..: numbering of sections lignals the chapter in ..ilich a provision is IoQted iII>d, thus. the subject matter to ...ilich it ..,Latu. Anothtr chan~ has betn 10 upand the range 01 the definitional pr'O'.'isions in ..,"ion 1.40 of Ihis Kt, lOnd to ~ recurring provisions on ....cution .nd mingo( docu~nllto Chapter I. Tm: Al.ABA.'\A LAWYER

2. fo~m a tl o n of th e corp ora t io n; fllln' of a"rtlclu an4 ot her documenll The new act continues the filing sys· tern under the present Alabama act under which the princip.ol filing office for rorporate documents i, the office 01 tltt probate judge of tltt county in which tltt initial registered oIfice of the roT]lOration i5 located. This differs from the ABA wrsion of tilt Revised Model Busi · ne .. Corporation Act. under which the secrnal}' 0( state's office is the principal filing oIfice. Section 1.25 is tilt provision o(the act that details in which office var· iou' documents are to be filed. The rtQuirelflfnts for the articl., 01 inrorpo. ration have been somewhat ,treamlined but. unlike the ABA vusion of the ~ised act . continue to require that a corporate purpo.se be .tated and that the initial directors be de,ignated , Section 2.02. One change from the present Alabama act is to permil the initial bylaw. to b. adopted by the di rectors. Section 2.06Ia). The present Alabama act rdains the common law rule that Ih. initial bylaws be adopted by the sha"'" holders. The proposed chanj/e confonns the Alabama practice to that of virtually """ry other slate.

3. Corporate pu ..po, ... and )lO'oHrI As under the present Alabama act. Section 3.02 conlairu an extensive list 01 corporate POW"" that """ry corporation is deemed to possess. The Alabama Drafting Committe. added certain clarifying provi$ioru to eruure that accomodation guarantees in "up-stre.-.m" tr"",",ctions Iwlme a subsidiary guarantees the obli· gation of a parent} and "cross· stream" tra",",ctioru lone subsidiary guaranteeing the obligations of another subsidiary of the same parent) are within the cata· log of corporate P<JWl'rs. Note that th e power of a corporation to ente r into a partnership. which in the present act is

._L ..... _ ... ...... .... e ....,-, Jr. _

L- M¢Co.<IOy, :;

..... <lWoetor "' ...

-~ .-...,'"

... ...-gt_ ..... .... ilOg<.o """ ...

THE ALABA/>\A w\\VYER

declared in a separate section. Section 1O·2A· Z3. will now be found in Section 3.02(9).

Corpora l~

name

It i. recommended that the "decep· tiwly similar" lesl for the availability of a corporate name of the present Alabama act be rontinued. S«-!ion 4.01. Tho ABA "e"ion of the revised act proposed a change to the test of whether the proposed name was "di$tinguishab le on the records of the secretary of state" from names already IaMn.

5. SILa..... and db trlbu UolU The ABA version of the Revised Model Busi ..... Corporation Act makes anum· ber of changes in this area. which is found in Chapter 6. In some cases. this act rontinues the pl"Ul'nt Alabama rule. sometim es with clarification. and. in some cases. the new Wlised act rule has been adopted. a. Under th e p r~ .. nt Alabama act. which tracks the 1969 Nodel Act. sharts can be i.. ued on l~ for money, other prop_rty. tangible or intangible. or labor or ..",iets actually ptrformed. Promiswry notes and future services are e.pre.. ly excluded as a form of consideration for shares. Alabama Ctx/R, Section 10·2,\·36, The ABA ver,ion of the revised act would coruiderably liberalize this rule. pennitling the iSSl.lilnce of shares for any "property or benefit to the corporation: including promissory notes or future ser· vices. While lhere is considerable pOlicy justification for the more liberal rule. the CQmmitt.., felt that it could not recom · mend that rule in view of S«-!ion 234 of the Alabama Constitution. which pro · hibits the issuance of share. oxcept for "money. labor done. Or property actually received: Rather than cont inuing to employ the language of the pre,.,.nl act. which was derived fro.m the prior Wl"1;ion of the model act. the committe. recommends that the language of Section 234 of the Comtitution be codified in section 6.2I(b) oIthis act. Note that if there is an amendment to the Comtitution. Se<tion 6.2I(b) then coold be amended. b. The ABA version of the revised model act eliminat.. the concept oItreasury shares. S«-!ion 6,31 of this act con· tinues that concept. The rnsoo for the continuation of the treasury .hares concept is related to the restrictions on

issuance of shores in the Alabama Con. stitution. just discu"..d. since the Alabama Supreme Court has held that a corporation'.... Ie of treasury sharts is not an -issuance" subject to the Corutitutional restrictioru. Brumfield v. Hom, 547 So. 2d 415 (Ala. 1989). c. Under lhe present Alabama act. the legality of distributions is a maUer. first ol.n. 01. the corporation's solvenC)'. and. second. on wlttther it JIO"St5Sts "eamed surplus" out 0( which "distributions" can be "",de. Whether the corporat ion hilS .urplu•• and of the appropriate kind. requires a determination of it. "stated capital " which typically is defined in terms of the aggregate "par value" of its i.. ued sharu, a concept thot also defines th minimum is<uance price for the shares, This act. follO<\'l'ing the reviled act (actually these changes to the legal capi· tal rules were adopted in 1979 by the ABA committ. e and have been adopted in some Slates thot have not yet adopted the revised acl) eliminates the "earned surplu," and "capital .urplus" tesls for the validity of distribu tions. and retaining an insol'>enC)' test as the sole test for determining the validity of a corporate distribution. It ,hould be noted that the insolvency tut has both an "equitable insoh>ency" and a "balance sheet insol · vency" aspect. S«-!ion 6.40. "Stated capi · tal" and "p.or value" are also eliminated as a statutory concept. though a corporation "",y. if it wishes. elect the use of these concepts.

6. SlLan holderi This act ruolves th ret important issues as to .hareholder meding> not addres.sed in the present act. While the present act r«ognizes that a shareholder can expre.. ly waiw nolice of a shoreholder's m~ting. Alabama Dxk. Section 10-2A-49. it does not address the question of whether a shareholder's attendance at tho meeting corutilules a Waiver. Section 7.05(b) of this act provides that unless a shareholder makes an appropriate objection. his attendance at the meeting waive, objection to lack of notice. This parallels the rule as to directors under present law. Afabama Code. Seclion 10·2,\-65. A second issue left unresolved under pl"UI'nt law i$ whether a shareholder can withdraw from a "",eting and. thereby. "brealc the quorum". 1he commentary to May 1993 1 203

Alabama Ccxk. Section Hl-2A-$2 of tm, prestnt act. notes that the prestnt act i. • ilent on thai qoeotion. The ABA version of the Revised Modo! Ro.in ...li Corpo ... tion Act. Section 7.25. dou address thi. i.. ue, and provide> that a quorum cannot be hroken by a ohareholMr's wi\hd ...wal. '!'he Alabama committ~ ~reed thai tIw i.. ue should be resolved. bul conduded that a .hareholder 5hould have the power to break a quorum by withdrawal. and redrafted stction 7.25 ilCcordin,giy. A third issue unresolved under the presenl act i. whether a ,hareholder \'01 . ing agr«ment is specifically enforceable. Section 7.31 1.) d.clares that it i•. The act ust •• in Chapter 6 and .Is.· wher• . the term '"vOting group". Thi. il a new term. defined in Section 1.40(29), often used to provide for .ituations where what il rderred to under the pre · sent act as "cia.. voting" may be man · dated. However. the term i. al,o ustd when th.re is only One "cia,. " and hence. only one "voting group". Section 7.25 i, an example of this. In Section 7.32. thi. act provide, an expanded scope for shareholder agree · ments. Unlike the pre5tnt special elective provisions .. to dose corpo...tions. there is no numerical threshold for the adop. lion 01 a shareholder', ~""'mI'nt: h<:Mw· .r. the ag ree ment wou ld cea,e to be effective if the become traded on a recQllniud eJCc~. As a pTllCticai matter, shareholder agreements are of value unly in clo..ly held corpurations. The committn recommend> the repeal of the .Iective special provisions for cloot corp<>rations in A/alxmuJ Ccxk. Sections 10·ZA· 300 through 10-ZA-313. ~ PTQ'IIi5iorus have been little u.ed. Thu •. Section 7.32 wil l become the primary pm"ision by

,hare,

Richard Wilson & Associates Registered Professiona l Cou rt Reporters 17 Mild red Street Montgomery, Alabama 36107

264-6433 204 1 May 1993

which <lu:sely hekl corpo ... lions (.il1l wry the COrporlllt oorm.o;. lOr eJ!.lmple. by limiting the powers of the board .

7. Dlrec:lon and offkcn Chapter 8 of this act deals wilh mat· ters concerning directors and offic.rs. In a couple of <ases, imporUint pr<.Wi,ioTll which. under the pr~ltnt act, are <um pressed into a s ingle section have become entire subchapters and ther.by made considerably more compr.heTlli",. These are the provisions on indemnifica· tion. with Subchapter E of Chapte r 8. Section, 8.50 through 8.58 lucceeding Section 10·2A-21 <"lf the present act. and those on director confl ict of interest tran5ltctions, with Subchapt.r F, Sec· tioru 8.60 through 8.63 succeeding Section 10-2A·6,3 of the present act. While Subchapter E i, a considerably more comprehen.ive Slat.ment of Ihe law of indemnification. it parallels clus\:· ly the provisions <"lf Section 1O_2A_21 <"lf the presenl act, which w" dtrived fmm 5tCtion 5 <"lf the prior model act. Prior tu underUiking the drafting of tht rt:'-'istd mod. 1 act. the ABA comm ittee had. in 1980. redrafted section 5, bot Ihat redrafting came too lale for considera· tion in adopting Ou r pres. nt act. Sub· chapter E of th. r.vised act essentially carrie, forward the 1980 redraft of old .ection 5. One change in the ABA Ver_ sion i. ""cius;'''; ho>o... ver. the Alabama committ .. opted 10 cont inue the prestnt Alabama rule under which Ihe slatulory rights are oonudusive. Subchapter F of Chapter 8 i. a com· prehensive restatement of Ih e law of conflict of interest ' ... nsactions. Since a tran5ltction in which a director ha. a conflict of interest may sometimes be worthwhile to the co rporat ion. Suhchapt.r F. li kt the earli.r model act provi.ion •. recogn i ... three different mech anism. by which a cunflict of interest tran5ltction can be validaled: approval by dis int.r.st.d directors. ,hareholder approval and the fairness of the Iransaclion . The present Alabama ,talute. Ihough ba,ed on t h e prior mudel act provision. varied from t he mode l act in requiring fairnes, a. an """"iding test. ... thu using faime .. as a third alternali ..... The Alabama committ .. recommend. a change from the prestnt act under whiCh fairness would he a third alternative mechani.m for

validating a transaction .... ther than an O\.. rriding te.!.

8. Mc-rfcn, ohare c>:ehanl'" ..... ..I,.. of .....1. nol III the retiular

Sectiun 11.03 of thi. act continu .. the rule under the present AJab,ama act under which a two·third. vote is required to apprOrt a merger ur share exchang •. Unlik. Ihe prestnt ac!. Section 11.03 permits this \'OIing level 10 be reduced b}' a provision in the articles. but not below a majority of the \'Qt e. entilltd 10 be =1. which i, the .tandard under lhe ABA version <"lf Section 11.03. A .imilar ru le applies tu Ih. vote required to apprQVe a sale of aw;,ts n<.>t in the regular CQUrse under Sechon 12.02 and for dissolution under Seclion 14.02. 9. Diuolutlon DiSSOlution is d.all with in Chapter 14 of tilt act. The pr.stnt act". dissolu· tion provision. aoopl a "t""O-document" procedure. under which Ihe di.solving corporlltion firsl f,les an "Intent to Dissolve" thaI COmmenCeS the dissolulion proc ..., lator. theoretically. a .tcund document known as "Articles <"lf Dissolution " fiT\/lli.es the proc .... As a matter of practice. Ih~ two documents are Iypically med at the same lime. with the Artides <"lf Dissolulion being filed moments .fter the Intent tu Dissolve i. filed. As a re.ull , thi. act. li ke the revil~d act, adopt. a "one.dQCumenl" procedure in which a singl. documenl . denominated a. Ihe "Articles of DiSSOlution" hut mOre funtionally ~kin to the present "Intent to Dissolve", will be foIed. A Itcond change concerning di...,lution il the inlroduct;on 0( a mechanism for administrative dinolution . This mechanism. provided fo r in Section. 14.20 Ihmugh 14.23. ",nnits the secre· tary of .!ate to initiale administrative proceoding> to dissolve a corpo ... tion for various ground, that parallel thost fur which judicial dissolulion has t ... ditionall y ll«n available but stldom (if ever) used. Th e inlroduction of this mecha· nism is accompanied by ~pP!"Ol'.iate safe· guar d, permitting the ground. f(IT dissolution 10 be corrected after n<.>tice. and also penn itling them to be currmed and corpurale stalus 10 he reinstated aft.r administrati'" diSSOlution. Th.re is a right uf judicial appeal from ~ denial of reinstatement. THEALABAMA u\WYER

10. hfti,.. cewporalionl This act makes twQ important chang.. with rtspect tOl fOlreign rorpor~tioru. The fi~t is the introduction of a tatalag nf acti~ities that dOl not cnnstitute dOling business in this state. SOl as tOl require a foreign cOrPQration to obtain a certificate of authoril>'. Section 15.01 (b). n,. second is the su~tituti01l in stc' tion 15.02 of a "door clo.ing" rule for the present acf, "death knell " rule in AJalxmw Cede. Section 10·21\·247 (and in two prOl~i'iOlns Olf the revenu e laws which would also ha"" to be amended). Under the proposed "door closing" rule tl\( courts 01 Alabama cannot be used by a fDreign cOlrpDratiOln t hat has dDne business in this state withOlut comply· ing. unless it first complies and pays all taus. penallies and interest. Thus. the "door closing" rule permils noncompli. ance to be cured. The mDre drastic "death knell" rule. which is virtually unique to Alabama. dedares all con· tracts entered into by a fOlreign corpora· tiOln that dOles bus;ne.. in this state . without complying. 10 be void . and the in~alidity Olf such contracts cannOlt be cured by substquently complying. II. RcconU a nd ...,port. Section 16.02 of the revistd act introduces a two-tiered approach to the mat" ter of shareholder iTl$pection rights, As to certain core documents. the revised act provides virtually autOlmatic inspectiOln with no restrictiOlns. Beyond those COlre docu .... nts. howewr, the revistd act lim· its the rtCOlrds subject to iTl$pection, and rtquires the shareholcler tOl particularize the rttOrds he wishes to inspect. which must bo dirtctly connected tOl the prop<>r purpOlse he has stated. HOlwever. the revistd act does not impose aO}' requirtment as to the tength of ti .... thi: shareholder has held his shares Dr any percentage of shart ownership, such as Alabama's present si . months Or 5 percent rule. As to corporate records beyond the core doxu .... nts as to ",hkh there i.I an automatic right of inspectiDn, the Alabama cnmmittee cnncluded that Alabama's present rules under which a shareholder has a right, for a proper pur· pose, tOl irupect all corporate recor~, if he has been a shareholder for six month.! Dr if he I)WOS 5 percent Olf any dass of stock. The Alabama comm iUet also continued the present rule imposing a pe .... l·

THE AlARi\MA lAWYER

ty on an officer or agent of the corpora· tion who wrOlngiul1y denies the right of i~ion.

We were fnrtunate to ha .... PrDfessor HCM-m\ Walthall, Cumberland School of Law. and PrOl/essOlr Richard Thigpen, Univmit~ of Alabama School 0( Law. as the draftsman and reporter. respectively, for this project. The a\:>oIIt review 0( thi.l act is taken as an excerpt from the Pref. ace tOl the commiU.., droit by Profe!.SOr Walthall. The commiUee was chaiud by GeDrge Mayn.trd Df Birmingham. Other membors of the commiU.., au Richard Cohn; James R. Cliftnn; James F. Hughey. }r,; Harold II. Kushner; Greg t.ea t herbury, Jr,; Tommy Mancuso; TDmmy Nettles, IV; Vernon Patrick, Jr.; E,6. Peebles, III; Ernest L. POlUer; Jim Pruett; Watsnn Smith; and Rnbert Walthall. This act "'as introduced in the Alabama Stnat. by S<natOlr Ryan deGraffenreid. Jr. and in thi: HOlUSI: of Repre..,ntatiws by Representat"-'e Jim Campbell.

Pending Instltut. legislation p ....nt. d to the 1993 Regular Ses.ion I. Probate PrMedu.... _ introduced in the HOluse of Rep ..sentatiws (It 1931 by

Representatives Marc el Black ,lOd Jim Campbell , and in thi: Senate (5. 286) by Senators Don Hale, Michael Figures and Doug Gh ... 2, Amendment. to the Admlnl. t .. _ t l~t Proccdun. Act - introduced in the House of Represtntatiws (H. 93) by Representative Jim Campbell and in the Senate (5. 197) by Sen.ttOlrs Butch Ellis, Ryan deGraffenreid. Jr.. John Amari and Walt.rOwens. 3. Limited L1.hlllty Comp. nlu _ introduced in the House nf Representatives (H. 769) by Representative Hugh HDlladay and in the Senate (5. 549) by Sen.ttDr Stn.. Windom. The Alabama Rul•• Olf Evidence (..,. March 1993 Alabama Lallyer) ha"" been presented to the Alabama Supreme Court and it is expected that th..., p!"(>pnsed rules will be published in the Alabama Repnrter system as information and comment prior tn their adoption. FOlr further information. contact Bob McCurlt}'. director. Alabama Law [nstitute. at P.O. Bo. 1425. TuscalOlosa. Alabama 35486, or phOlne 120S} 348· 7411. •

Between

January 28,1993

"d r.lay II, 1993, the following attorneys made pledges to the Alabama State Bar Building Fund. Their names will be included on a wall in the portion of the building listing all contributors. Their pledges are acknowledged with grateful appreciation, For a list of those making pledges prior to January 28,1993, please see previous issues of The Alabama Lawyer.

ROBERT L. GONCE PHILLIP J, SARRIS GEORGE D. SCHRADER ~l!CI-lAEL

S. SHEIER

May 1993/ 205

'-'0.7

L( L L:.-lJ, 'Lt..: L;.: L'-. . . 'L- J c.:: I L;.:'L-'--/ By LaVeeda Morgan Battle

Editor', Not,,: Thil; article;s reprinter! fr om Ih~ March 21, 1993 edition of

LA WDA TA, (he news/ell"" of the Professional £ct)llQmia & Technology Committe<! of the Alabama SIIl/e Bar.

o IOllger must the 5(11. procH. lioner shut dO\<ll a practice for a stroll to th. courth<luse to check Qut a file on a pending cue or 011

to find out whether a defendant has been served. Toda~. bask infoTm<ltion about activity on a case can M accesse<l ea$ily Ihrougll the typiCIII office compuler wilh a modem. In the federal and st..l.te courts, ""rtl in b.uic c:.ue information can be retri~d as foUows: The PACE R System - offered free of charge by federal COUTU. The RemoteA«eu SY$lem _ offered through .uI&ription by

the St..l.le court system.

The PACER Sr.tem PACER is the new public information acce.s service provided without eMrg. by the federal oourt> as a quick and eas~

way for a lawyer to retriO!\le information about a specific CU\'. With the system, c.lSe$ can be searched by party nill"" or au number. In ..... rching b)' name it is h~lpful to enter the name ellactly as it appeaf$ in the court r<cord because of the many variatioru; of h"", a particular name might be entered into the court record. It might be necessary to make several surches before locating the party. Nevertheleu. with PACER. it is possible to locat. a case u>ing the name of a!l}' part~ to the litigation. Names repr.senting '''''Y acti ... litiganl3, howewr, should not be used b«ause the system will spend time ..arching and will O!\Ien· tually complain that too many cases wer...locted. To pre ... nt such a result. you should use the most unique name among the partiu to the litigation.

BAR DIRECTORIES 1992-93 EDITION Alabama State Bar Members: $25 each Non-members: $40 each Send check or money order to:

Alabama state Bar Oi rectory P.O. Box 4156 Montgomery, Alabama 36101 206 1 May 1993

Cases may not be ..arched by the names of attorn~'S or judges. In trackins the progress of ~ case. the system allows a lawyer to check quickly for any recent activity, and you can obtain a dock.t repOrt when >omething happeru. If several cases with a common participant are be ing tracked and an electron ic docket has been obtained in an earlier .ession. the 1"")"<,r can reviow the last update to detenni .... wh.ther a new docket report is needed. PACER allows you to print any dorket repOrt as pnwided b}' your communications software. The only requi rement for accessing PACER is that you haw a computer. a 1200 Or 2400 baud modem and commu· nication software. The service is offered 24 hours a day and on weekends with th. n coption of one or two hours each day to update the database information.

The Re mote Ace ••• Sy.t.m The Remote Access System was de· signed b}' the stat. court system to pro,,;de ·off·site" or third·party users such as attorneys with acces. to basic cau information. Users may dial up the State Judicial Information System "(5)IS"1 and retrie ... information about criminal, civil and traffic cases. Typical inquiries will allow you to access service dates. docket dates, judgmenl3 and othu ca.\(. related information. The system is a.... il· able during business hours (8:00 a.m. - 5:00 p.m.) Monday through friday. Th e SJJS system may not be accessed during mainte .... TlC. periods or on state holidays. To participate in the SJIS system. you must have a personal computer (l 8 M compatible), 24()(l baud telecommunications modem and a telecommunications software such a~ "Cr05l1alk", which is r<'C<;lmmended. Th... is a fee for the .. r· vice and the Administrative Office of Courts will provide training and documentation in the base fee. • THE Al.AIIAMA LAWYF.R

ORDER SUPREME COURT OF ALABAMA 1\ is ordered that Rule VII(C), Ru les Governing Admission to the Alabama State Bar, be amended to read as follows:

路C. Association of Local Counsel. No foreign attorney may appear pro hac vice belare any court or administrative agency of this state unless the anorney has

associated in thai cause an anorney who is a member in good standing of the Alabama Slate Bar (herein called local counsel). The name of local counsel shall appear on all notices, orders, pleadings, and other documents fi led in the cause. Local counsel shall personally appear and participate in all pretrial conferences, hearings. trials, and other proceedings conducted in open court, unless specifical-

ly excused from such appearance by the court or administrative agency. local

counsel associating with a foreign attorney in a particular case shall thereby accept joint and several responsib ility with the foreign attorney to the client, to opposing parties and counsel, and to the court or administrative agency in all mat路 ters arising from that particular cause.'

It is further ordered that this amendment be effective Immediately.

TIlE ALA8AMA lAWYER

May 1993 1207

• M·E·M·O·R·I·A·L·S • William Guy Hardwick HEREAS William Cuy Hard-

wic~.

a respected and distin-

guished member of the Houswn County Bar Association. died Janwry 15. 1993, and;

WHEREAS, this association desires to ,Ko.d this memorial of our colleague and to publicly rowgni ••

some of the achievement. of his professional ClllU',

NOW, therefor •. be it resolved that William C. Hardwick was oorn in 1910. in Hartford. Alabam., attended the Uniwrsity 01 Alabama and , ecei,.. d his law degr.. from I~

University in 1933. Returning to D<>than, he opened his law practice that same year and married the fo r.

mer Dorothy Creel. Always a man of public service. Mr. Hardwick se~d two lerms in the Alabama House of Representa·

tives beginning in 1937. Elected for a third tum. he resigned in order to enter the Air Force during World War II. He roceived an honorable discharge as a major after the war, returned 1<1 Dolhan and was elected 10 the Alabama State Senate. In 1955 h. was elected Lieutenant Governor of Alabama. His law practice flourished and he serwd with distinction as a mem~r of the Alabama State Bar for over 59 years. He was a memb .. of the Houston County Bar Association and selVl'd as its presidenl in 1939. He e>tablished the finn of llar<lwick. Haus. & Segrest. While seIVing in the slate Legisl.·

lure and Senate and as Lt. Go,-ernor, Mr. Hardwi(k worked tirelessly in the creation of the Houston County lio.pital Board and to e>tab· lish the Southeast Alabama General Ho.pilal. nOW known as Ihe liouston County Health Care Authority and Southeast Alabama Medical Cenler in Oolhan. He serwd as ils legal counsel from inception in 1957 to his .. tirement in January 1992. The Medical Center recognized his enonnous contributions in March 1991 by naming the boardroom at the hospital in hi. honor. ~Ir. Hardwick also served as legal counsel for the Dothan Housing Authority and was On the board of directors for the First National Bank of Hartford. He was an integral part in the building of Ihe Dothan Farm Cent.. and the creation of the Ross Clark Circle. He was instrumental in obtaining Georg. C. Wallace State Community College lor Ihis area and for bringing such busine..es as Hayes Internalional Corporation to Dothan. He participated in the construction and naming of Ihe Ibll National Guard Armory. An actiVl! atumni for tht Uni""rsiIy of Alabama. he was a member of th. Presiden!"s Cabinet for a num_ ber of years. H. was also a member of the University of Alabama Law Planning committee. and the regional dirHtor of the Alabama Law School Completion Campaign. Mr. Hardwick was instrumental in obtaining the Alabama Law Review

PLEASE HELP

Room in honor of Judge Keener Ba~ley. For many ;'tars he waS a mem~r of the Farrah Law Society at the University. In 1991 he received the Distinguished Alumni Award , Ite contributed to several scholarship funds for outstanding arto youth. establi.hing .cholar· ships at Dothan High School. in honor of his wife. Ooroth;'. and Ceneva County High School. ~lr. Hardwick was a member of the Masons. Shriners. Dothan Rotary Club. Dothan Country Club, Dothan Elks Lodge, 1887. and the First Unit· ed Metllod ist Church of Dothan. Our colleague was a tireles. champion for his clients and a worthy adversary. He demonstrated a constant devotion to the principle. of fairness and justice. His character and integrity were shining examples to all who krww him. His lile's work acknowledges his compassion. fairness and lo\'. lor his fellow man, Hi. many contributions to his profession , country and community Qualify him as most deserving of our grateful recollections. Be it further resolved by the members of the Houston County Bar Association in meeting duly assembled thai "'-e moum the passing from our midst of this faithful public servan!. Will iam G. Hardwick. and that we herewith extend ou r sympathy and condolences to his family. MichtNil B. Broom, presirk"l Hous/rm Coon/gOar Associalirm

The Alabama State Bar and The Alabama Lawyer have no way of knowing when one of our members is deceased unless we are notified. Do not wait for someone else to do it - if you know of the death of one of our membe rs, please let us know. Send the information to: Alice Jo Hendrix, P.O. Box 671. Montgomery, Alabama 3610]

2081 May 1993

THEALABA.'iA u\WYER

• M·E·M·O·R·I·A·L·S • Hulon J. Marlin Hooorutle Hulon Wm:RF.AS 1Mallomt}'. "1St

j, Mlnin, a "~II.~,, and ftsPi'cl.d [)olhan at 51

dtparted this life on the 22nd day of December 1992: and WIlERlc:ilS the Houston CQunty Ila. Association du;, •• to remember hi. name and to officially recognize hi. ullnlnth contributions to t he legal proft"ion. OUr community and 10 thiJ g~al nation; and NOW. therefor•• be il rt$Ot.-ro llIat Hulon J. MUlm, who "'015 oorn in

Ilou.ton County, Alabama, '''Itted the

Unil~

StJt.. Army .1 Ihe urly

age of 17 and Idi,-ely and hononbly sel\'l:d hIS country for 23 years.. During hI! tenure in the United SuM. Army, .... hich included usignment.

ou t.ide of the continental United Siale', he earned numerGuS com· rmnd.ilions. honors and awards. ~lar· tin retired from mili!ar;' selVice aft.r

being comm;.,ioned in the rank of ~ptilm.

~'artin contmued his formal educalion throughout his liletime_ While in the militaJ)' .wrvice. Iv ~ttendrd """.ral univusiliu lind culminated his fOlTl"liI e<I\lClltion in 1983 by .~ming ~ juri, OOdor deSrff from Jones School of [.;ow. "'here he wlS selected for membership ,n tlv Sigma Delta Kappa I.....", Fraternity. Martin returned to Dothan and ent~red into the practice of law. ",here h. maintained an acti". practice until hi. d~alh. He adeptly defended a Iw~' load of "iminal cau •.• lways adhering to th. hightSt legal. intellectual and .thiul standards. He "'as an ~rmM. dmrm,~d advocate of the rights of hi. client •. Martin ",as a mtmbtr of the AIabamlo SUt. Bar ~ the American Ror Association. Martin', enlhusiasm for the practict of la,,· ",as equaled only by his 10\'e of flSlung and hunling. Marlin "'ill; inSlrumental in estab· IiJhing Ih. Southeast Transplant Organiulion and se'-"'ed ill il. first

THE ALABAMA I.o\WYEIl

president In ]989. He Ikvoted a ,"as! of time to the organization in supporting ~nd couru.eling Its memo bers and the" families and in sptaking mgogements throughout several count,es. He WOlS selness and tireless in his demonstration of compassion , a dttp concern. and love for hi. fellow man. He placed the w.:lfare of others abovt hi. own. Martin was deVllted to hi. family. his church. his ..ide circle of friends. and his fellow man. Hulon will be remembered lor hi. ,te.d!ill;t fritndshill' among his fellow ~ He is su ....Wed by a daughler. Helem M>.r· lin HIli: .. son. ~th M>.rtin: his mother. Louise Martin: six sisters; and four brothers. Hulon J. Martm ""<U highly respected and he i. truly miwd by all who .!If:'<.' him. Be it further ruolwd by the memo bers oflh~ Houston County !\;I. Ass0ciation in meeting duly •• sembled that "" mourn lhe pUling of Honorable Hulon J . Mutin and that we «tend our sympalhy and condolencts 10 his family, Mkhtw/ B. Brotm. prnidmt HousIoo Countl/Bar AI$oOalioo ~mount

Julius S. Swann, Jr. uliUJ S. Swann. Jr. receiw:d his ea rly educalion III loc~1 5Chools and recei''ed hi$ collfge prepar.toJ)' education at Christ School in Ardtn. North C3Tolina. He receiwd hi. college education al University of the South. Sev,'anee. TenneMee. lie grad· uated from Vanderbilt Unive"ily School ofLllw in 1%7. He bo-gan his legal caMr as a dtrlc for Abb.lrnII Supreme Court A5soI;iate JUJlice lhornas Suy [.;owson. Subse· quently. he relurned to G~dsden to practia ~ ",th his fathrr in thr finn of Lw.k. s.."MI!l. Bums Ii< Stiwnder. Jay S...ann se ...."" the La ... in pm... ,e praclice in Gadsden. Alabama from 1968 to 1976. lie served as Assistant United States Magistrate from 1970 to

1974. The peopl, of the Silteenth Judicill Circuit in Eto"'ah County electw hIm CIrcuIt judge ,n 1976. He so lilly fulfilled the duties of hi' offict thai h. ",35 rttltcttd in 1982 and again in 1988. Judge Julius S...ann. Jr. meted jus· tice wilh intel lect and a high degree of judicial skill. Hi. decisions evi· denee his genuine concern for human luffering. truth and justice. He ]')05' Sl:sud both commitment and com· passion for all the people of hi. ju· dicw circu,L Under hi.lle~rship as pruiding judge, ~:to,"ah County bfame ~ TJI(:IO;kllor lhe state in com· puter Incki"ll of Q$ts. Thost ....-ho knew Judge Swann ,,'ere i><o.. re that he ""as a unique and spe. cill ptrson, He hId an unparalleled "'it. He was an artist. often drawing <:arkatu.es of Ihe la\o!)'ers appearin~ before him.lle ...as a poet , a C",il War buff and a sportsman. lie touched the Ii,~. of Ih. peO!'le in hi. circuit and ,tate in many way •. He .0Ned a. a member of the tJleculiw: committee of the Alabama Associalion of Circuit Judges: ill; prtsldin(l j~ of lhe Si>:· t.onlh Judicial Circuit from ]981 through 1991: as immediate P<l51 president ~ndlxNord member of the Rtgion;ol Alcohol Council: as a member of the Alabama Judicial College PilCulty association: ill; the 1986 law· yer of the Year: and in many Olher capadlies, Judge Swann "'015 rrorried 10 l.inda Posey Swann. He had two children . Seth Fennell S...ann and Juliet Nicole Swann. lnd \w(ll\tpchildren. Marci. Lynne Wa ..en and Eugene Let War· ren. He is also IUrvilltd by his moth. er. brothers and uister. Judge Julius S. Sw.Inn. Jr. is sorely missed ill; an eminent judge, ""lfIdtr. ful f.lI.er. dedicated husband ~nd oommitltd fritnd 015 a rtsull of his un· timely duth on the 4th day of September 1992.

G'WO'JI S. Cw;imano Gad$den. AlaiJ<J",u

Mayl993/ 2Q9

• M·E·M·O·R·I·A·L·S • Frank Jackson Martin rank Jackson Martin died on 1M 30th 01 April 1m. He I\ad!:fln a mem~r of Iht bar of this stat. fOT .Imo,s! 65 yun and ..'as the fourth generation of his family 10 have \:>em a

lawyer in Alabama- Ht died respected by all who kntw him and hl! death i. mourned hi' a family who loved him Ikwlwly and b)o friends who trea5uu hi.! nlfmory. H. hid btm a soldie. for his coun try and had participated Kti,'tly in the lik 01 hi.! community. lit livtd III 01 hlS Ii~. uctpI ...i>en he was ,,"'IY in school ()T tt.. Army, in

<1m High Scl-oxll in lilt C\uo of 1921. Afltr tligtl sct.ool. tI~ all.ndtd Itlt University 0I~ . ....h.n: he was a IllI'mbtr of Sigma Nu. gradualing in 1925. AIItr gradualion from coll.g•. tit .Iudi.d al the Uni'''l'5ily'~ School 01 I~. His claM walIlhal of 1927 and h. ,,-as it! p,uident. .igniflcant recog. nilion in Ihe company of such nota· bles as Frand. lIare and Carin

.......

lin. a judge of the circuit cnurt in I':I""'-Ih County. hi. gnndfather and grut-grandfather weu la>.yers in Cal· houn County. He attended the public KhooIs in Gadsden ;mel finished Gads·

Aflt. finiltling la,,' school. Funk . tlumtd 10 C.d~tn and "~nl into pradiu with CIo .. ~ lnu •. 1ht firm OOfIlinues 10 Ihis day.1hou:gIl i15 name tlu ctllingtd stW ••1 limos Ih'ough the ~,rs. as In .... Sliwndtr. I-Wlqo & Johnson. On April 27. 1933. Frank marri.d Clua Jackson of Alh •• lyiHe. wiltl whom he Ii""d ruppily. as tilt old stories promil •. for Ihe re.1 of hi. life. They had two ctlildren . Ann and Frank. Jr. Frank Martin. Jr. is a lawy", likt hil fallltr and 1i1lU in Virginia and practIces in Wa.hington. D.C. Ann marrWd W. T. Goodloe Rutland .• lso a IllI'mbtr 01 the ~ ba•• and in Birmingluom. Of his ~.. n grand. children. on •. Frank. )r.'1 dought ...

Jack Glenn Davis

Gilbert Dewayne r.lobley, Sr.

Gadsden, and his home for the 57 )'UJ'J bdon his death "'as willi,,, 300 yards 01 his father', ho.:rust. ",tie,.., Iv was rurW. lie was in pOMe. .ion of hi. facullin and able \0 bt himself ri~1 10 lilt ,'tTY end: toUrte0u.5. con· siderate 01 and $i'lf-.,ffacing. I don'l kr.ow how a man could wish for a NUt. life , Franle's failltr was Woodson J. Mar·

oth.".

Ii,,,,

Him,1ngham

Hirmingiwm

Admitted: 1976 Died". January26.1993

Admil/ed: 1955 Died: January 3L 1993

John Wi lliam Gillon, Jr.

Charles Robert Richards

Birmingham

1?u=1I"ille

Admit/ed: 1925 DiM: Otcel'llbr. 14. 1992

Admitted: 1969 iMrJ: Octobtr 12. 1992

Edward David Haigler

Roy Walter Scholl, Jr.

Binningham

Birmirlghom

Admitted: t936 Di«J: febru.l.ry 18. 1993

Admjl/ed: 1955 iMrJ: Dt«mbtr 22. 1992

Paul Johnston

Elias Calvin Watson. Jr.

Birmingham

Admitted,1933 Died: Otc.mber8. 1992

Admilled: 1936 Died: ~lar.::h 9. 1993

210 1M3l' 1993

Jm;ca. ilio is I iawytr.1ht siIth ~n molion ~\artin iawytr in dirrd. line 01 dt!«nl. AI Ih. ou!!et of World Wit II. although hi.,.g. and family .ituation would haW kept him safe from the draft. Frank vo]unleutd almost at once and was commissioned inlo the Judgt Advocate Gtneral's Department of tho Army. Aft .. an inilial tou r of duty al Headquarters. ~'ourth Service Command al fort Mel'htrson. Ceor· g~ Fnnk Wall po$ttd (l'.'f1'$W; to the Philippines for urvirt in G~n ... 1 DougW MacArthur's headQuarters. Aft•• he "<IS musI.m! oul 01 acti-... .t",iet. Frank r~turn.d hom •. .esumtd his !i.... prattice in Gadsden and maIntained il until his retiromenl on Jun. 3(). 197(). whtn ht was 65 yt.:Irs old. !Ie IW prllctictd acti,..ly for 43 years. After tlil relirement. he lived Quietly and contenledl~. drawing his pleasul't$ chieHy from the company of hi. I~mily .nd f.iends. pleasures con· side rably augmtnted by hi~ sati,lac· lion al Ih. p.rformanc~ of th e Unl""rsily', foocbal1 ttam. ~O,I'rwIl.

Birmingham. Alubuma

NOTICE Richard C. Alexander. of the firm of Alexander .Ii Associates in Mobile. reo Quests that anyone having information regarding the will of J.rnu Edw..-d Htdrldc: contact him at Suite 2500. First National Bank Building, t<lobile. Alabama 36602. Phone (205) 438·3666.

TilE ALABAMA lAWYER

Eleventh Circuit Court of Appeals

APPELLATE CONFERENCE PROGRAM The United Stales Court of Appeals for the Eleventh Circuit has established an Appellate Conference Program, Guidelines and procedures for this program are set forth in Rule 33-1, which took etfec1 October 1, 1992.

Appellate con ferences are scheduled by the Court with lead counsel for all parties in selected civil appeals. Conferences are scheduled well in advance of briefing and two to three weeks in advance of the conference date. They are coooucted by the Court's conference anomeys, who have had extensive trial and appellate experience and significant training and experience in mediation. Most conferences are initiated by telephone.

The purposes of appellate conferences are to oHer participants a conlidential, riskfree opportunity to evaluate their case with an informed, neutral mediator and to explore all possibilities for the voluntary disposition-of the appeal. Conferences are designed to address any matter that may aid in the disposition of a civif appeal and to reduce the attendant time and expense of the appeal. Conferences generally begin with an inquiry as to any procedural questions or problems counsel might have that could be resolved by agreement. The discussion then moves to an explanation by the parties 01 the issues on appeal. The purpose of this discussion is not to decide the case or reaCh conclusions about the issues but understand the issues and to evaluate the respective risks on appeal. In many cases, a candid examination of the probabilities lor various possible outcomes 01 the appeal is helpful in reaching consensus on the settlement value of the case. This examination may be done in a ;oint session or with the conference attorney talking privately to one

party. Every effort is made to generate oHers and counteroffers until the parties either settle or know the case cannot be settled and the measure of the difference between or among the parties. However, no actions affecting the interests of any party or the case on its merits are taken without the consent of all parties. The Court, by rule and by verbal agreement 01 the parties at each conference, ensures that nothing said by the participants, induding the conference attorney, is disclosed to anyone on the Eleventh Circuit Court of Appeals Of any other court thai might address the merits of the case. The Court strictly enforces this confidentiality rule. Furlner inlonn.t1on on thl. new progrsm i, .v.ltable through the Appellat, Conference 0ttIce, United Statn Court of Appeals, Eleventh Judlci.! Circuit, 56 Forsyth Street, NW, Atlant., Georgi. 30303. PtIo .... (404) 130-2820.

THE Ai.AlIAMA U\.\l/VEII

May 199J / 2il

CLASSIFIED NOTICES RATES: Member.: 2 free listings of 50 words or less per bar member p(!' calendar year EXCEPT for ·position wanted" or "position offered" listings _ $35 per insertion Of 50 WOfds {J( less, $.50 per additiona l word: Nonmember.: $35 per insertIon 01 50 WOfclS or leS$, $.50 per additional word. Classified copy and payment must be received according to the following publishing s<:hedule: Mey '93 I •• u e-deadline March 31, 1993; .Jul,. '93 I•• ..,e - deadline May 31, 1993; no dead line extensIOnS will be made. Send classified copy lind payment. payable to The Alabama La....yer. to: Alabama La..ye, Classifieds, C/o Margaret Murphy, P.O. Box 4156, Montgomery. Alabama 36101,

WANTED LAWBOOKS, Wants to purchase the IcIIowing booI<S: Complele Soothem Repon ... , 1SI and 2nd Series: Complete Alabama Digest Complete Appleman (Ill Insurance: Complete Cotpus Juris Secundum; and Comple1e Am&rican Juris Pruderoce. Anyone wanting to sell any oflhese books please contact Jackson W. Stokes a! P.O. 60x 356, Elba. Alat>ama 363Z3 or phorI& (2051

qualiIy. Satisfaction 9"",an1OO<l. Call us

to sell YOU' unneeded booI<s. Nead sheMng? We ~f new, brand name. steel and".oocf $heM.-.g 81 dis<;oonl

prices. FreeQl.>O!9$. H300-279-]799. Nalional Law Resooroe.

LAWBOOKS: Wif'lam S. Hoin & Co" I""" se<Ving lhe Ieg<li community for over 60 y98t$. We I)uy, sell, apprai... all law booI<s. Send want IislS to: FAX (7 16) 883-8HlO or phone l -fIOO. 828-7571.

897·2f!9.t.

FOR RENT BEACH HOUSE : Gull Shores. Alaba· maoHouses on beach. 2. 3. 4 bed· rooms. sI&ep 8-12. My furnished. Phone (205) 836·0922 0' (205) 833-

"" FOR SALE - LAWBOOKS: The U!wbook E.mange. lid. buys and sellsa! majollaw books, state and fede<a1. na\iorIWide. For aI your law book needs, phone 1_8Q0.422_ 6686. MasterCard, VISA and American hpress accepted. RULES: Model Ru19s 01 ProIes$ionaI ConOOcI, P9fSOIIaI copies available for $5 (includes postage). Mai c!Ied< to P.O. Bo. 67 1. MontgOmery, Alabama 36101. Pre-payme", f8qI.1ifed. LAWBOC»<S: Save 50 percent on your law books. Call National Law Resoorc., America's largesflaw book cI8aIer. Huge inventories. Lcwos1 p:ic8s. Excoaom

212 fM.lyl993

LAWBOOKS: Complete set of United States Code Mnoted . CaU James Marks. (205) 383-2435. LAWBOOKS: Shiny new, completely Updalad ..., 01 Cotpys Juris Secundum a.ailable at deep d iscoom with Iree delivery to Alabama. Georgia. Florida and Soulh Carolina. Can Deana al (800) 394-2767. extension 2O!i . LAWBOOKS : AFTR I -52: AFTR 2d 1· 53: Tao Cour1 (P-H Ioo ... leaf) 35·83: 8T A & Tao Ct. Memo I-52; JTa. 1970· 85. Leave meS$!109 81 (2O!i) 6 77-4889 (day) or (2O!i) 983-4972 (nlgh1). Michael Crespi, Houston County COUrthou .... Dothan, Alabama 36303.

SERVICES EXPERT WITNESS: Traffic~. witness. Graduale. registered, professional engi,,",. Forty years' expenenoe. Highway and city roadway zoning. Write or call for resume, tees. Jad< W. Chambliss, 421 Belletturst Drive. Montgo<oory, Alabama 36109. Ptlone (205) 272·2353.

con&u~antlexpe<1

LEGAL RESEARCH : S30 hour. hperi-enced brief writer. member oj Alabama Stale Bar. Aa:ess 10 good la w library. Sl8rIi.-.g DeRamus. 317 N. 20th Street, Birmi.-.gham, Alabama 35203. Phone (205) 328-7208. No represenraliofl " mad6 ,Ite qtJ8~ty of 1h6!8gaJ Uf· """'" 10 be perlom>«1 is greater th8II If>e quaJity of ,Ite !8gaJ ...rvices per. kxmed br olfler IaIOjlttfS.

'ha,

LEGAL RESEARCH: E. ~ aoor""Y, member of Alallarna State Bar sinc8 19n. Access Ie Slate law library. WESTLAW available. Prompt deadline seard1es Sarah Kathryn Farnell, 112 Moofe Building, Mont""",eI)', Alallama 36104. Phone (205) 277-7937. Nor8presetllalion is mad8 liIallh6 quality 0/

Ih6lo9gal seMces ra be pt1rlormed is greater t/laIIlh6 quality of 1egal-Sllf\liOOS

P8f1armed br aIher lawyets EXP1:RT WtTNESS : E<amillation 01 questioned dooJ"""'ts. Handwming, typewriting and related exaninatiorts Internationally <XlU rt-quallfied expe<1 w~_ """". Diplomate. American Board 01 Forensic Docurnem Examiners. Mem· ber: American Society of Questioned Document Examiners. the Intematiooal As$ociation for 1Oomification, the British Forensic Science Society. and the NaIionaI As$ociation 01 Criminal Oef9llse Lawyer.;. Rerimd CMlf DoaJ· """'t Examiner, USA Ct Laboratories. Hans Mayer Gidion. 2 18 Merrymont OrNe. Augusta, Georgia 30907. Phone (706) 860-4267. EXPERT WITNESS: Ce<tiIied F<)I9Ilsic Documen1 Examirl9r. CMlf document e ...miner. Alallama Depanm9llt of For9llsic Sciences, retirad. 8.5 .. M.S. Graduate. u niV8fS~y'based rosident

THE AI.ABAMA LAWYER

ec:hoQI in dDcunent exanwwiDrl. f'\b.

Almt Cr\nWIIIII~ I..aboralo-

III/IecI ""~ am~. Eighleen y.,.,..' trial expeoieloc. sta1e11edera1 oouns 01 AIabiI .....

" " Utotenl PMI &.nono..-. s;dney C. Yarbrough. 10~~ '423. Cul man. Alaba .... 35055. ~ (205) "739-0 ' 92.

FOO"QefY. ,"arat""', and do:xt.lment 'utnenliclty examinations.

Crimin8I and non-aiminal mal~. "'-Can Academy 01 Forentk Sc:I. 1M1CH. Americ8n Bowd 01 ForanM:

Ooo::ument

PARALEGALS, Atlef1t"", anG<lleraod personnel dit9CtO/"$. Nabona! Ac8dI<ny lot Patalegal Studies qJIIIiIied ~ in your k:QI at .. INdy 1oI .. 1.....,"""~ in a.w ~

n..

'*'

aodooopotlllioo ... Ot.or pat~ gradua1" .........., in at_ 01 a.w

lUChasllfMy ....... _ t e . _. CIiminaI. probate. and eo<pOI.te law. SIuden1 .. tetns are a/sQ available. Thotra all rIO fe.es for theM ""MOIl. FOO" addibonal information. tall the P\acemenI Office a t 1-800-2~3oI25. 0'1. 30011 . EXPERT WlTNESS :~. SMtr !ntutanot Matoag&ll&. ConM.*ams

(""'" (1170). Avaiable lID COf"ISlIII IfId/ot fum"" upon t85IImOn)' in ..... 01 propoonylca5ualty-.......-. employ" ben<.tf~s arid busineu if' Insurance. StaH incIudo J Os with in,",,· aroc:. industry el<pltli&r<>l. Due to !'<m'1 _ I t i n ; practioII witt> coqX:Ifate and !IO"......... ~ ~ _ . . l1li_' latty ~ in maOOi"S in, .... _ og UNII• • In&erpretauon . ........anoo ~ ......- & praaices. prO/eI. Iion-'~. bail taith. Pf*N........ QCif"IIrOW<lIod propeny deiml. poIluUon. claims-made ~. and

raaes'

Insura. insoIw""l'. IniUal discussion and /mjl<8PIOfl' offered without chafoe. c.JI Edward W. Siv.... CFCU. ClU or Jim Marshal. JD. CPCU. ARM .. (113) $n·218O.

AlaDamI. PHse seod resumel0

Gel. P.O. Bo. 2251<. Royat oak.

POSITIONS OFFERED

e - s. ~ Sod-

01 a. ...uoned Doc:uI...c &a/OWl. MS. .......... Miler. 3325 lorna~. n-318. P.O . Bo_ 360999. 8rn'wIgh8m , AIabafI\a 35236.(1999. ~ (lOS) 988·.158. ~

em.. .......

ouminnons. F_at and stall court quali'led oxp&n witOOS5. Rotm U.S.

Tm ;ALAJW>\A LAWYE R

Mic:Ngen 48068. ME~A~ARBITRATJON

ATTORNEY JOeS: Na/ion;II and Fed8raI Employment Report. H9>IY .8gaIOed ~ ~ listing 01 anomey and 1aw·....,1d Icoto. with the

OPPORruNITY: AIlornoy ""'" owmo the~1 lUlIargGsI...-.l..ttl , _ O'OW"'II ADR (AIWnIIIivI DrspuII AesoIu!icln) company ("",rca:

U.S. <>0>81, " ... ~. OIhIIl"JbIicIprivalo

Faulkllll & G.ays '992 ADR DirectOrY)

employe.... Washington. D.C .. Ihroughoutlhe U.S. and .t>o-oad. 500600 now jobs Nth issue. U4 !or three ~; $58 lor aix manthI. Federal Reports. '010V_A......... NW. _AB. WasIWIglIDn. D.C. 20005. Phone {202} 393-33' 1. VISA...-d

IMIeka Ittorney(") 10 a ....' in buHding simltafly "oawsofui .......,;a, In roo, _ . Him..... ted pjease COi'>Iact

Ma$lIifC;wd.. '1. .t TAXATJON LAWYER: Major Alabama I<tw firm is SHkIng an ItlG<lleY wi1tl an Ll.M. andIorl'~ In w law in !he employH btneIi" ..... position is in the !'<m', Binnong~ Alabama offlco. E>peoilooc. in the .._ 01 ERISA. quaMiId pro/iIlIhIonng and pension plans. WIll.., beneIiI pIIros. caIetoria pIa"II. lie. hI/pIYl Confidonbal reply 10 P.O . IIoI '986. Birmoogham. AIabiI .... 35201 · 1986.

n..

-........ """""'"

MIdia_Arbuation SeMot.

1668 E. 6111 SIf8I1. Sui!l335. T. . .. ClkIIhomI7.133. Ptoor.I$I1&) '59-0'00.

POSITION WANTED • BENEFITS ATTORNEY : e.ro..ty '~I*"oood I>oJnaIiIs a!IOi"II8)' ...... 0'. .111 ~ and OfIPDIIuflil)' in BomwIg ............ F"oIto..-l ........ ."PIf\Iroc. - . m.,< ""'I'Q"1Iion ...-.I

-""'lImn inc:Ldes drBItlng . . .

An....,' .... : Hiring Anomer.

IIaUng ~ ... donak <II eornpiance • o;IOo;:t.tmentalian. filinlJs. Ia. .......taIa·

ENVIRONMENTAL LAWYER : Major

lion. and l""'inat ..... c.ed&ntiala ~ J .D. am 8.ter.sive c:ontInuIng

~law ~m~Ia~.wi1tl

_lO ..........

O.lensM1 experilnolln IINitomIentaI

firm.. ~1aw

dIipanment. PntIIf

,.18nINe .......

in 0Df1'I\lIiItICt aond obIaifWog petmiIs...- RCRA IfId C£RCl.A and assisbng cIienb w'i!h ..woo .......... aSpOcIS 01 bo.IIiMu transac!ions. SlfOtlg I xpeoienoe. acadomoc qua~ IIOr1S and dienl development skills required. Contid&n1ia1.epIy 10 P.O. Bo~ 370201. Bim"itIghIfn. AIabam<to 35237-

apedalizid educal ..... EJ<o&pIiooaI wriIong aond cornmt.ri:::aIJ skill. Reply lID P.O . Box '300122. BimungIwn. Allbaml35213.

IInOI

0201. Attentoon : Hi"o'tCI Anomoy. • SMALL OFACE PflACTTTlONER: TCI

LATENT PRINT EXAMINER : F....• prrU, pal"'piilS. ~ imprIKlions. and _ oeIaIMI

COLLECTJON ATTORNEY : A poe>go III' .. ...,., M!Ince company Is ---.g 1ItOmey{1) with o"llOOieloc. in ~"'" and Darivuplcy law 10 handle It, c;aseIDId on a .etaioe-r DaM in

....._ auI-o!-lIalllinance company with IIDrMsllCliillOtl 01 ~,,,,,, and e. 1IWIion 01 debtcrs· a&SOts. Reply Managong Part ...... Ik»: 252'. BaIa Cynwyd. Poons)'ivania ,9OO<l.

MISCELLANEOUS DOtIATlON: Tho Alatlama HistO<lcaI CornmlPion iii tryiog to locate 19th QIIl1\Iry or ..fly 20th O&Mury law booka 10 be dor\aIIId 10 disptay '" _ ~ '" !hi CaPIoI. lnIeresI8CI ~ "'Wf 0Df1Iad Terry ChiIOn, do AIItbIfnI HiIIoricaI Cool. , I~ion. Room 21 . ............. SIaut~_ Moo oIgOmIOy. Alabama 36' 30. ~

(205) 242·3750.

Ma.yI9931 2 13

INTRODUCING THE BREAKTHROUGH THAT MAKES WESTLAW· THE ONLY RESEARCH SERVICE THAT UNDERSTANDS PLAIN ENGLISH.

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