A publication of the
Arkansas Bar Association
2010-2011 Arkansas Bar Association President Jim L. Julian with his wife, Patti
Vol. 45, No. 3, Summer 2010 online at www.arkbar.com
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Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail: email@example.com editor Anna K. Hubbard executive director Karen K. Hutchins Editorial Board Gordon S. Rather, Jr., Chair Judge Wiley A. Branton, Jr. O. Milton Fine, II Judge Victor A. Fleming Brandon J. Harrison William D. Haught Philip E. Kaplan Mary Beth Matthews Drake Mann David H. Williams Teresa M. Wineland OFFICERS President Jim L. Julian Board of Governors Chair Sean T. Keith President-Elect Tom D. Womack Immediate Past President Donna C. Pettus Secretary F. Thomas Curry Treasurer William A. Martin Parliamentarian Charles D. Roscopf Young Lawyers Section Chair Brandon Moffitt BOARD OF GOVERNORS Thomas M. Carpenter Amy Click Richard C. Downing Jeffrey E. McKinley Robert R. Estes, Jr. Amy Freedman David M. Fuqua Gwendolyn L. Rucker L. Kyle Heffley Anthony A. Hilliard Don Hollingsworth Paul W. Keith Harry A. Light Laura E. Partlow Jerry D. Patterson Brian H. Ratcliff John C. Riedel Brian M. Rosenthal Brock Showalter John T. Vines Danyelle J. Walker Dennis Zolper
LIAISON MEMBERS Zane A. Chrisman Frank B. Sewall Jack A. McNulty Harry Truman Moore Judge Kim Bridgforth Carolyn B. Witherspoon Judge Joyce Williams Warren Karen K. Hutchins The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, firstname.lastname@example.org. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2010, Arkansas Bar Association. All rights reserved.
Lawyer Vol. 45, No. 3
10 Fifteen Things You Must Know About Appeals Brandon J. Harrison 16 Through the Spectacles of Arkansas Judges 10 Tips for Improving Legal Writing from an Arkansas Judicial Survey Rodney P. Moore 18 Fastcase -the next generation of legal research Cathy Underwood Jim L. Julian 2010-2011 Arkansas Bar Association President Anna Hubbard
Cover photo by Ocken Photography 26 Book Review: Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench Phillip H. McMath
28 Part II: Taking Judicial Cognizance of Soap: Justice Basil Bakerâ€™s Wit and Widsom Michael B. Dougan 36 Arkansas Bar Association Leadership Academy Donna C. Pettus
Contents Continued on Page 2
Lawyer The Arkansas Vol. 45, No. 3
in this issue Association News
Arkansas Bar Foundation New President
columns President’s Report
2010-2011 Association Officers
Jim L. Julian
Young Lawyers Section Report
Brandon K. Moffitt
Arkansas Bar Association Annual Meeting Photo Recap
2009-2010 Association/Foundation Awards
Arkansas Bar Association Awards
House of Delegates Meeting
Congratulations to 50 Year Members
Lawyer Disciplinary Actions
Arkansas Bar Foundation Memorials and Honoraria
Your Name in Print For information on submitting articles for publication, go to www.arkbar.com and click on The Arkansas Lawyer or email email@example.com.
Arkansas Bar Association
2224 Cottondale Lane Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District A-1: Anthony W. Juneau, Anthony W. Noblin, Kristin Pawlik, William J. Trentham, and Hollie Greenway Delegate District A-2: Brock Showalter, Tim Tarvin, Debby Thetford Nye, Paul D. Reynolds, W. Marshall Prettyman, Jr., Charles M. Duell, Troy L. Whitlow, Suzanne Clark, Stan B. Baker, Matthew L. Fryar, and Tina M. Hodne Delegate District A-3: Farrah L. Fielder, C. Michael Daily, Jeffrey D. Rickard, Joel D. Johnson, Stephanie Harper Easterling Delegate District A-4: John C. Riedel Delegate District A-5: Brent Capehart Delegate District A-6: Emily Sprott McIllwain Delegate District A-7: Michael E. Kelly Delegate District B: Gwendolyn L. Rucker, M. Stephen Bingham, Joel M. DiPippa, Khayyam Eddings, Christian Harris, Gill A. Rogers, Alan G. Bryan, Tim J. Cullen, JaNan A. Davis, Jennifer W. Flinn, Anne Hughes White, Tasha Sossamon Taylor, Patrick L. Spivey, Shaneen Kelleybrew Sloan, Jason Earley, Jerald “Cliff” McKinney, II, John P. Perkins, III, Victor D. “Trey” Wright, Mark W. Hodge, Cathy Underwood, Jodie Lynn Hill, Grant M. Cox, James Paul Beachboard, Phillip M. Brick, Jr., Whitney L. Foster, Stephen R. Giles, Aaron L. Squyres, Adam Wells, Dan C. Young Delegate District C-1: Jay Scurlock Delegate District C-2: Jerrie Grady Delegate District C-3: Keith Chrestman, Brant Perkins, Teresa M. Franklin Delegate District C-4: Curtis Walker Delegate District C-5: Albert J. Thomas, III, A. Jan Thomas, Jr. and Winston B. Collier Delegate District C-6: Charles E. Clawson, III, Shane A. Henry Delegate District C-7: William N. Reed Delegate District C-8: Brandon C. Robinson, Paul T. Bennett, Charles D. Roscopf Delegate District C-9: Timothy R. Leonard, C.C. Gibson III, Phillip A. Pesek Delegate District C-10: Shivali Sharma and George M. Matteson Delegate District C-11: John C. Finley, III, J. Philip McCorkle Delegate District C-12: Jonathan D. Jones and Wade T. Naramore Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson Law Student Representatives: Malcolm Means, University of Arkansas School of Law; Kimberly Eden, UALR William H. Bowen School of Law
The Arkansas Lawyer
WHO’S WATCHING YOUR FIRM’S 401(k)?
• Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? • Does it include professional investment fiduciary services? • Is your firm’s 401(k) subject to 23 contracted service standards? • Does it have an investment menu with passive and active investment strategies? • Is your firm’s 401(k) sponsor a not-for-profit whose purpose is to deliver a member benefit? • Does it feature no out-of-pocket fees to your firm? • Is your firm’s 401(k) part of the member benefit package of 36 state and national bar associations? If you answered no to any of these questions, contact the ABA Retirement Funds to learn how to keep a close watch over your 401(k).
Unique 401(k) Plans for Law Firms Phone: (877) 947-2272 • Web: www.abaretirement.com • email: firstname.lastname@example.org The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C09-1005-035 (07/10)
The Arkansas Lawyer
by Jim L. Julian
A New Bar Year – A New Beginning Every June, we meet in Hot Springs to recognize the accomplishments of the outgoing bar association president and to usher in the beginning of a new bar year. This year, with the Board of Governors’ approval of a fiscal year which runs from July 1 to June 30, our financial affairs will more closely match our bar year. This should make life a little easier for our staff. The annual meeting was a rousing success. Annual Meeting Chair, Gwen Rucker, and immediate past president, Donna Pettus, did an outstanding job and set a standard we will strive to meet in June 2011. The past two annual meetings have attracted over 1,450 registrants and have required that we expand our meeting space. Cliff McKinney will serve as the chair of the 2011 Annual Meeting. He has already been working on the initial planning stages and would appreciate input from you regarding your impressions from the 2010 meeting. The use of meeting rooms at the Convention Center seemed to be well liked as they were spacious and comfortable. The shuttle system worked very well and opened up a larger number of parking spaces to our members at the Convention Center. Each attendee will be asked to complete a survey regarding the 2010 Annual Meeting. Please take the time to respond to this survey. The Annual Meeting Task Force will use this information to make additional recommendations to the Bar Association regarding future annual meetings. We hope to build upon the recent changes so that we can continue to enjoy increased attendance at our annual meetings. The Arkansas Legislature will meet in a regular legislative session beginning in January. Our legislation team has already been working to prepare for this session. The Jurisprudence and Law Reform Committee
vetted many potential pieces of legislation to arrive at our Bar package of six bills. Chairman Dennis Zolper and this committee worked diligently to select those bills that best serve the Bar Association, its members, and the public. The Legislation Committee, chaired by Roy Beth Kelley, will now be responsible for shepherding the passage of these bills while also protecting us from the passage of ill-advised legislation. With our lobbyist, Jack McNulty, working daily at the State Capitol, we are in good hands and should have a successful year with the legislature. However, we will need your help. All of our members with a working relationship or friendship with state legislators are urged to join our legislative action network. The network is invaluable when issues of importance to the Bar Association are nearing critical votes. We are in the middle of an election year. The Bar Association has been fortunate that so many of our members have been willing to step up and seek office in the Arkansas Legislature. When the elections are concluded in November, we hope to have as many as seven or eight association members in the Senate and a similar number in the House. We owe a debt of gratitude to those association members who have sought a legislative seat. Their participation in the election process allows the Bar Association to be heard on issues of importance to lawyers in this state. With budget pressures sure to continue, it will be important to have a voice when legislation regarding the efficient operation of our court system and the independence of our judiciary is considered. Our Ark Bar PAC helps elect association members to the State Legislature, and we can all assist in this endeavor by joining the PAC for as little as $30. Please consider joining today.
The Arkansas Bar Association has so many hard working committees that do outstanding work year after year. Our IT Infrastructure Committee has done a wonderful job in getting our new association website up and running. Chairs Sam and Pam Gibson continue to serve that committee as we work through the remaining issues in getting the website fine tuned. Our Law Related Education Committee and Chair Mark Hodge will be busy this year working with the Supreme Court’s office of communications and providing more information to our public schools about our legal system. Cathy Underwood and the Online Research Committee have helped the association to move to a new online legal research service called Fastcase that we believe will be very popular with our members. We look forward to your feedback on this new member benefit. The Association’s Long Range Planning Committee will be chaired by Brian Rosenthal this year. Brian has already done a great job in assessing the prior work of the committee and in setting a course for the future work of the committee. We have many other committee chairs whose work will be highlighted in future messages. When they ask for your help, please assist in any way you can. As we go through this year, remember your obligations as lawyers to provide pro bono service to your fellow citizens in need of your services. We have a need in this state to provide access to justice. Help the Arkansas Access to Justice Commission when they call on you. Above all, volunteer your time to those causes that are near and dear to your heart. Make a difference in your communities. Let’s all do our part to make this a year to remember in the Arkansas Bar Association. n
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Association News 2010-2011 Committee and Section Chairs and Co-Chairs The following Association Committee and Section Chairs and Co-Chairs have been appointed or re-appointed
Arkansas Bar Center
Committees J. Cliff McKinney, II, Annual Meeting Committee; Jeffrey E. McKinley & Harry A. Light, Annual Meeting Task Force; Danyelle J. Walker & Tessica Cherie Dooley, Arkansas Bar Commission on Diversity; Dennis Zolper and Jim L. Julian, Arkansas Bar PAC; Patrick D. Wilson, Arkansas Law Review, Inc.; Robert R. Estes, Attorney/Client Privilege Committee; Anthony A. Hilliard, Audit Committee; Mary S. McGowan & R. Gary Nutter, Committee for a Modern Judiciary; Harry Truman Moore, Committee for Responding to Unfair Criticism of Judges and the Courts; Zane A. Chrisman, Continuing Legal Education Committee; Gordon S. Rather, Jr., Editorial Advisory Board - The Arkansas Lawyer; Lynn Foster, Editorial Board for Handbooks; William A. Martin, Finance Committee; Laura E. Partlow, Find a Lawyer Committee; E. Lamar Pettus, Governance Committee; Brian H. Ratcliff, House Committee; Jackson Farrow Jr., Investment Committee; Pamela B. Gibson and Sam E. Gibson, IT Infrastructure Committee; John F. Stroud, Jr., Judicial Council Liaison Committee; Robert F. Thompson, III, Judicial Nominations Committee; Dennis Zolper, Jurisprudence and Law Reform Committee; Mark W. Hodge, Law Related Education Committee; F. Thomas Curry, Law School Committee; Sam E. Gibson, Lawyers Assisting Military Personnel; Ragen Gruber Moffitt, Lawyers for Literacy Committee; Alice F. Lightle, Lawyers Helping Lawyers Committee; Donna C. Pettus & Rachel (Katie) Anderson, Leadership Academy Committee; William A. Waddell, Jr., Legal Services Committee (Civil); Roy Beth Kelley, Legislation Committee; William Zac White, Legislative Task Force; Brian M. Rosenthal, Zane A. Chrisman & Vicki S. Vasser, Long Range Planning Committee; David P. Glover, Member Benefits Committee; Win A. Trafford, Member Insurance Committee; Gwendolyn L. Rucker, Membership Development Committee; Matthew D. Wells & Johnathan D. Horton, Mock 6 The Arkansas Lawyer www.arkbar.com
Trial Committee; Cathy Underwood, Online Legal Research Committee; Fred S. Ursery, Past Presidents; Spencer F. Robinson, Personnel Committee (Arkansas Bar Association); Brad L. Hendricks, Professional Ethics Committee; Andrew B. Faulkner, Public Information Committee; David W. Sterling, Resolutions Committee; Charles L. Harwell, Sustaining Member Committee; Jack T. Lassiter, Task Force on Criminal Sentencing Statutes; J. Mark Davis, Jr., Task Force on Unauthorized Practice of Law; David M. Fuqua, Technology Committee; J. Mark Davis, Unauthorized Practice of Law Committee; Rosalind M. Mouser, Underwriting Committee; Brant Perkins & Elisa M. White Uniform Laws Committee; Denise R. Hoggard, Women in the Profession Committee.
Sections James F. Goodhart, Administrative Law; Matthew Vandiver, Agricultural Law; John Dewey Watson, ADR; Patrick Burrow, Business Law; Jack East III, Construction Law; Carl Circo, Corporate & In-House Counsel; William O. James, Jr., Criminal Law; Lyndsey D. Dilks, Debtor/Creditor Law; Alan J. Nussbaum, Disability Law; Rebecca H. Winburn, Elder Law; Chris H. Kinslow, Environmental Law; Vicki S. Vasser, Family Law; W. Lance Owens, Financial Institutions; Zane Chrisman, Government Practice; Amy Marr Wilbourn, Health Law; Kevin M. Lemley, Intellectual Property; Joi L. Leonard, International & Immigration Law; Melody Peacock Barnett, Juvenile Justice; Leigh Anne Yeargan, Labor & Employment Law; John F. Peiserich, Natural Resources; Jennifer R. Pierce, Probate & Trust Law; Stephen R. Giles, Real Estate Law; Frances S. Fendler, Securities; William P. Allison, Solo, Small Firm & Practice Management; Christopher Brocket, Taxation; Nathan P. Chaney, Tort Law; Neal L. Hart, Workersâ€™ Compensation Law Section; Brandon K. Moffitt, Young Lawyers Section.
Space available for: n Meetings n Receptions n Mediations n Arbitrations n Depositions n Visiting attorneys n Video Conferencing n Free for members
To reserve call 501-375-4606 or 800-609-5668
Oyez! Oyez! ACCOLADES Legal Aid of Arkansas and Arkansas Volunteers for the Elderly awarded the following Outstanding Volunteer Attorney of the Year Awards: Andrew Bailey, Jon Comstock, Brent Capehart, Jeff Puryear, J. Michael Stephenson, Larry Kissee, Jay Scurlock, Fuller Bumpers, Tim Watson, Robert Coleman, Ray Abramson, Jeff Malm, Charles D. Roscopf, Jennifer Collins, Whitman Fowlkes, Donna Price, James E. Crouch, and Ralph Myers; and Joanne McCracken received the Outstanding Service Award for over 250 hours of pro bono services. The United States Senate confirmed the nomination of Arkansas Supreme Court Chief Justice Jim Hannah to serve on the State Justice Institute’s Board of Directors. Steven W. Quattlebaum of Quattlebaum, Grooms, Tull & Burrow PLLC in Little Rock was recently selected as a member of the Lawdragon 500 Leading Lawyers in America for the third year in a row. The following members have been selected for inclusion in the 2010 “Forty Under 40” class by Arkansas Business: Kristine G. Baker, Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock; Jean C. Block, Assistant Attorney General, Office of the Arkansas Attorney General, Health Care Bureau; Michele Allgood, Williams & Anderson PLC, Little Rock; Kevin Keech, Keech Law Firm, Little Rock; Brian Vandiver, Mitchhell Williams Selig Gates & Woodyard PLLC, Little Rock; Dan C. Young, Rose Law Firm, Little Rock. The Arkansas Department of Human Services presented the law firm Cross, Gunter, Witherspoon & Galchus, P.C. of Little Rock with the Gold Work-Life Award for a small employer. Rosalind M. Mouser of Ramsay, Bridgforth, Robinson and Raley LLP recently served a second year on the faculty at the SMU Southwest Graduate School of Banking and was recently appointed to the Advisory Board of Kaplan University’s Small Business Practice LLM. APPOINTMENTS AND ELECTIONS The Arkansas District Judges Council elected the following judges as officers and Board members for 2010-2011: Hon. Miles “Butch” Hale of Sherwood as President; Hon. Kim Bridgforth of Pine Bluff as Vice President; Hon. Wayne Gruber of Pulaski County as Secretary-Treasurer; Hon. Dan Stidham of Paragould as First District Representative; Hon. Alice Lightle of Little Rock as Second District Representative; Hon. Don Bourne of Russellville as Third District Representative; Hon. Randy Hill of Arkadelphia as Fourth District Representative; Hon. Mike Irwin of Heber Springs is Immediate Past President. Lloyd W. “Tre” Kitchens was named president of the Arkansas Trial Lawyers Association for the 2010-2011 fiscal year. Gov. Mike Beebe appointed Raymond Abramson of Clarendon to the Arkansas Court of Appeals to replace Judge Price Marshall, who has been confirmed to the federal bench. WORD ABOUT TOWN The Barber Law Firm in Little Rock announced that Gail Ponder Gaines has become a shareholder of the firm and that Michael L. Alexander has been named head of the firm’s Construction Law Practice Group and that James D. Robertson has been named head of the Labor and Employment Practice Group. The Asa Hutchinson Law Group, PLC in Rogers announced that Duane A. Kees joined the firm as an associate. Dyke, Henry, Goldsholl & Winzerling, PLC in Little Rock announced that Andy Echnoz has joined the firm as an associate. Harry Truman Moore has completed the renovations of the historic National Bank of Commerce building in downtown Paragould and has relocated his practice to the building. He and Ray A. Goodwin, who serves of counsel to the firm, will occupy the main level and west mezzanine level of the building, which has been listed on the National Register of Historic Places. Womack, Landis, Phelps & McNeill in Jonesboro announced the opening of a second location in the Regions Center, Suite 1737, in Little Rock. Ramsay, Bridgforth, Harrelson and Starling LLP in Pine Bluff announces the retirement of F. Daniel Harrelson and the firm name changed to Ramsay, Bridgforth, Robinson and Raley LLP.
Filing Petitions Due October 31 For 2012 President of the Association Next President-Elect will come from Bar District A The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position is rotated each year among the three state Bar Districts, which have been reorganized this year. The next PresidentElect will come from Bar District A (formerly Northwest). Nomination petitions must be filed with the Secretary at the Association’s office no later than October 31, 2010. The petitions must be signed by at least 75 Association members, with at least 25 signatures residing in each of the three state Bar districts of the Association. The member elected this fall will assume the office of President-Elect at the June 2011 Annual Meeting in Hot Springs and will become the Association President in June of 2012.
It Pays to Renew Online
Congratulations to Priscilla Gibbs for winning the drawing for a free laptop by renewing online by May 31, 2010. Special thanks to the The Computer Hut for donating the laptop.
We encourage you to submit information for publication in OYEZ! OYEZ! To do so, please send information to: email@example.com.
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Association News Complete your Library with Arkansas Bar Association Practice Handbooks
Association Staff Anniversaries
Standards for Examination of Real Estate Titles in Arkansas Arkansas Bankruptcy NEW Handbook Arkansas Domestic Relations Handbook Handling Appeals in Arkansas Revocable Trusts for the Arkansas Practitioner Arkansas Form Book Arkansas Probate Handbook Available as a Book or a CD Order online www.arkbar.com or call 501-375-4606
ave over $50 per book!
New or Re-elected Members of Arkansas Bar Association Governing Bodies Board of Governors: Dennis Zolper, Brock Showalter, Amy Click, Don Hollingsworth, Richard C. Downing, Danyelle J. Walker House of Delegates: William J. Trentham, Hollie Greenway, Stan B. Baker, Matthew L. Fryar, Tina M. Hodne, W. Marshall Prettyman, Farrah L. Fielder, Michael E. Kelly, James Paul Beachboard, M. Stephen Bingham, Phillip M. Brick, Jr., Khayyam Eddings, Whitney L. Foster, Stephen R. Giles, Christian Harris, Aaron L. Squyres, Adam Wells, Dan C. Young, Brant Perkins, A. Jan Thomas, Albert J. Thomas, III, Charles Clawson, III, Brandon C. Robinson, Timothy R. Leonard, George M. Matteson, Wade T. Naramore, Sam E. Gibson Law School Representatives: Malcolm Means and Kimberly Eden
Available each week for members
l to r: Anna Hubbard, Rando Hicks, Michele Glasgow Three Arkansas Bar Association staff members celebrate milestone anniversaries this summer. Executive Administrative Assistant Michele Glasgow celebrated her 10-year anniversary with the Association. IT Coordinator Rando Hicks also celebrates his 10-year anniversary this summer. Publications Director Anna Hubbard celebrates her five-year anniversary this summer. “Michele, Rando and Anna are very dedicated and talented members of our staff,” said Executive Director Karen K. Hutchins. “Michele’s organization, efficiency, and eye for detail help the Association’s leaders, members and staff be prepared to accomplish all areas of Association work. “Rando’s ‘people personality’ and technical know how helps to keep members and staff performing their jobs whether they are at their computer or presenting a CLE. “Anna’s creativity has driven The Arkansas Lawyer magazine to be a top-notch professional legal publication. “The Association is very fortunate to have such talented individuals on staff to provide a wide variety of abilities,” she added.
Weekly Case Summaries 8
The Arkansas Lawyer
ADVERTISE in the next issue of The Arkansas Lawyer Go to www.arkbar.com
Young Lawyers Section Report
by Brandon K. Moffitt
Abundance of Opportunities to Serve in YLS
As I embark on my year as Chair of the Arkansas Bar Young Lawyers Section (YLS), I am both grateful and honored that my colleagues chose me to lead this extraordinary organization for the upcoming year. I do not take this position lightly and I look forward to working towards my goal of providing young lawyers from all regions of our state an abundance of opportunities to become actively involved in the YLS. One of the initial items I would like to achieve as Chair is to establish two standing social events for the YLS. My hope is that we can have a statewide event each fall and spring that would allow young lawyers to come together to network, socialize, and most of all have some fun. Some initial ideas are to host a camping/hiking trip this fall and then a float trip next spring. Stay tuned for an announcement for the event this fall. Secondly, I urge you to become involved in this year’s YLS public service projects. One of the most significant achievements of the YLS over the last few years is the development and publication of 18 & Life to Go: A Legal Handbook for Young Arkansans. The publication aims to provide young Arkansans with a basic understanding of our legal system, as well as the answers to common legal questions. Our goal is to provide every Arkansas high-school senior with a copy of the publication. Currently the publication is available on our website (www.arkbar.com) and we are in the process of raising funds to print the publication for the upcoming school year. I would encourage you to download and review the publication. We would welcome your comments and any suggestions of new topics to include in the next edition. If you are interested in
volunteering to work on the publication or writing additional content, please contact me via email. A new project this year of the YLS will be reaching out to our local schools in an effort to educate students about our legal system. I want to encourage you to join the YLS in taking A Level Playing Field to the classroom. A Level Playing Field is a DVD program developed by the Arkansas Bar Association Law Related Education Committee that discusses the constitutional basis of the American judicial system and the four fundamental principles of the judicial system — the Rule of Law; Equal Justice under the Law; Fair, Impartial and Independent Judiciary; and the Jury System. The program contains excerpts from interviews with prominent Arkansas elected officials, judges, and attorneys including Governor Mike Beebe, Senator Dale Bumpers, Chief Justice Jim Hannah, Honorable Lavenski Smith, and Bobby McDaniel, among others. As lawyers, I feel we have a duty to educate the public about the legal system and A Level Playing Field is a great opportunity to reach out to our local communities. I hope that you would join the YLS on Constitution Day this fall in taking A Level Playing Field to classrooms across the state. There will be several additional public service opportunities announced later this year by the YLS. Please watch the YLS’s quarterly publication InBrief for details. Additionally, I would welcome suggestions of other public service projects by the membership. Next, I plan to host YLS Executive Council meetings across the State. My goal is to reach out to young lawyers in all areas of the State and provide an opportunity
for the membership to learn more about leadership opportunities within the Section, as well as the Bar Association. I want to encourage each member to consider running for a position on the Executive Council or volunteering to serve on one or more of our standing committees. Finally, I would like to significantly expand professional development programming geared towards young lawyers over the coming year. Today’s job market and other economic factors have placed many young lawyers in a different position than we were in five years ago. My hope is to offer some tailored programming that addresses issues such as opening a new law office, financial management, and advertising/business development for young lawyers. I would like to offer some topics that may be outside the scope of traditional CLE, but can be of significant use to you as a professional. Ultimately, I want to offer programming that interests you, as well as help you move forward in your legal career. In closing, I want you to know that the YLS has a place for you. If you are interested in becoming involved within the Section, I will find a place for you to contribute. I look forward to serving with you this year. P.S. I would be remiss if I did not mention my wonderful wife, Regan, in this article. Her unwavering support has allowed me to seek my professional goals, including serving in a leadership role within the Arkansas Bar Association. I am grateful for all she does and in the words of Winston Churchill, which are applicable here, “My most brilliant achievement was my ability to be able to persuade my wife to marry me.” For me, that was good lawyering. n
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Fifteen Things You Must Know About Appeals By Brandon J. Harrison
ot enough is written about handling appeals in Arkansas, at least not in places where many lawyers are likely to look. Because The Arkansas Lawyer reaches thousands of bar members, it is a good place to discuss some basic points on appellate advocacy. What can you expect from this article? First, I hope to serve a shot of espresso, not a large cappuccino to be long savored. My goal here is simply to revive your appreciation for appellate advocacy in general and give some practice tips along the way. Regardless of your appellate experience, if your interest is piqued or renewed at the end of our 15-point journey, great. If you are a lawyer who has handled few appeals and learn that there are appeal-related skills to develop and apply, then this article will have done its job. At every turn, however, know that there are important zigs and zags I cannot cover in this article. As a final introductory point, I call your attention to an Arkansas Bar Association publication that concentrates on appellate law and practice. Handling Appeals in Arkansas is the product of the thoughts and advice of many Arkansas judges, justices, and appellate lawyers. Law professors contributed too. I encourage you to read deeply in it from time to time — preferably before you handle many more appeals. Handling Appeals in Arkansas will teach you new things and reinforce that which you already know. Here are 15 things you must know about appeals.1 10
The Arkansas Lawyer
1. Be sure the court has jurisdiction. In the beginning . . . there was jurisdiction. How could a lawyer fail to ensure that the appellate court has jurisdiction over an appeal? A “no brainer” you say? In theory, but not in fact. Almost weekly you can read about the Arkansas Supreme Court or Arkansas Court of Appeals dismissing appeals because the court lacks jurisdiction. Our courts raise this issue even when the parties do not. The bulk of these dismissals involve the untimely filing of a notice of appeal or an appeal from an order that is not yet appealable. A friendly reminder is due here: the latter category often includes a party who does not properly follow Arkansas Rule of Civil Procedure 54. Fortunately, absent atypical circumstances, dismissals for lack of a final, appealable order are without prejudice. Failing to file a timely notice of appeal is, however, a more dire oversight. Do not do it. There are other reasons why our state appellate courts may lack jurisdiction to decide the merits of an appeal. But if you timely file a proper notice of appeal in the circuit court (and the record with the appellate court) then you will avoid most jurisdictional problems. Again, part of the “proper notice” requirement I just mentioned is that you appeal from a final order. What you think is “final” may not square with the particular appellate court’s jurisprudence on final, appealable orders. Many times it is just that the record was not made to speak officially what everyone knows occurred. (For example, after the cir-
cuit court orally granted your nonsuit motion did you get an order entered?) Trial lawyers are often swept up in the strong currents and time demands of litigation and do not ensure that finality, from an appellate court’s perspective, is created before a notice of appeal is filed. Finality has multiple strands. Those strands cannot be covered here in detail; just know for now that they do exist and that you must learn them. This segues to an important task. Appellate lawyers start small. By this I mean you should review the record (which is sometimes simply the pleadings and court papers the trial lawyer has in the working file) and ensure that the circuit court has entered an appealable order. Taking the time to review what occurred before an appeal is pursued saves time and money later. To learn more about jurisdiction as it relates to appellate advocacy in the civil context, you should read Chapters 5 and 7 in Handling Appeals in Arkansas. I close this point with a suggestion concerning federal appellate-court practice. The jurisdiction requirement applies equally to the United States Court of Appeals for the Eighth Circuit. But there are differences between state and federal appellate-court practice. Do not assume that one court system’s practice is the same as another. Always ask yourself, “Does the appellate court have jurisdiction over my issue?” If yes, go forward. If no, do what you can to resolve the problem. Finally, be courageous enough to forgo an appeal if you are reasonably sure that
moving forward would be a wasteful or futile endeavor because of a jurisdictional bar. To be clear, I am not talking about a federal (or state) trial court’s subject-matter jurisdiction. Though it makes sense that a trial court’s decision which lacked a proper jurisdictional base initially cannot stand on appeal, the concepts of trial-court jurisdiction and appellatecourt jurisdiction are different. You must become versed in both concepts to effectively handle appeals. For example, know, that federal appellate jurisdiction is often statutory in nature. Arkansas appellate jurisdiction is primarily rule based. On a more fundamental level, be prepared to explain to the appellate court why a trial court has subject-matter jurisdiction, or why it does not. An appellate court will sometimes be interested in this issue even if the parties and trial court did not address it. If the appellate court cares, you must care. Indeed, you must always be prepared to answer questions at oral argument about any foreseeable jurisdictional issue. If you get surprised by a court’s concern about jurisdiction, ask for leave to file a supplemental brief or letter on the issue; otherwise the appeal’s merits may be buried. 2. Pay careful attention to the applicable standard of review. I have written more on this topic in Chapter 9 of Handling Appeals in Arkansas and its annual supplement. My current point is that a standard-of-review analysis is a necessary part of the appeal process. All advocates must consider it. A rule of appellate procedure expressly requires parties to address the standard of review on appeal for each issue raised.2 Always think about whether to appeal, and how to present your argument if you do so, given the applicable standard of review. As a practical matter, if you enter into appellate mediation then the applicable standard of review for the hot issues will influence the mediation. By the way, the Eighth Circuit and our state-court system have appellate-mediation options. That subject is beyond this article’s scope, but helpful introductory information exists.3 It is useful to see the standard-of-review concept as being a sliding scale of deference: on appeal, the appellate court will give the circuit court’s decision great deference, moderate to mild deference, or essentially none at all. As you raise issues in the circuit court, you should deliberately “build” a record with the standard of review in mind. This is not as
onerous as it might sound. True, appeals are not taken in the vast majority of cases that are filed in circuit courts, or the district courts if we are talking about the federal system. But you never know when you may need to appeal for a client. And because fate favors the prepared, you should be prepared. The best trial lawyers are also part appellate lawyer. Trial lawyers must appreciate that on appeal all any lawyer has to work with — all the reviewing court will consider in 9.8 cases out of 10 — is what actually gets placed in the trialcourt record. There are exceptions to nearly every statement I have made and will make in these pages, but you get the idea. 3. Take pains to select your best arguments. Concentrate your fire there. A sibling to my standard-of-review point is that an appellate advocate must “shoot the wounded,” as the dark but memorable saying goes. Every writer I have read who has said something on the subject equates a counsel’s competence in part with the ability to advance on appeal the fewest points possible. For civil appeals, one to three points is a good general rule.4 We all know that trial courts are where parties raise and advance many theories, both offensively and defensively. The law neither gets advanced nor clarified without effort, and often that effort is novel in nature. Having appellate courts decide appeals based on new theories, for example, has long been part of the American legal process. So has the notion that lawyers should sometimes revisit a “settled” doctrine, for settled points of law should be reexamined from time to time so that they can be reaffirmed, or altered to reflect the changing times. Be thoughtful, however, about what you can reasonably expect to accomplish. Raise all the truly meritorious issues you can, but concentrate your efforts and the appellate court’s attention on only what really affects your case. Naturally, the more appeals you handle and the more appellate opinions you read, the
more honed your judgment will become. Appellate judges understand that lawyers cannot know what will always persuade a majority to reverse, affirm, or modify a circuit court’s decision. But it is important to remember, and for inexperienced advocates to accept and not forget, that appellate courts are composed of busy human beings. Our judges and justices can only devote so much attention to so many topics. On a related point, what sounds good to your legal ear in outline or draft form will not necessarily pan out when developed fully in a brief. Do not be betrayed by the pride of authorship. Think before you write; yet accept that the duty to concentrate your fire never ends. Consequently, if on the whole you think a written argument will not serve the ultimate end of persuading the court to rule in your client’s favor, then drop the baggage. The act of jettisoning weak points is good no matter how far along you are in the brief-writing process. It is easier said than done, but try to put yourself in an appellate judge’s place as you decide what issue(s) to appeal, write your brief, and orally argue the case. 4. Never overstate your case. Be scrupulously accurate. You must never try to sell to an appellate court what you do not possess. Attempting to do so understandably erodes your credibility. We are all taught early that a lawyer’s credibility is as important as any “forensic” legal skill he or she may possess. It bears repeating. Thus, when handling an appeal, or deciding whether to appeal in the first place, critically examine what you can fairly advance on appeal — without having to resort to hyperbole and its ill-behaved relatives. You will likely never expressly know when loose arguments hurt your clients’ chances to win during court conferences, but they will do so sooner or later. 5. Describe authorities with scrupulous accuracy.
Brandon J. Harrison is a law clerk for Judge Price Marshall, U.S. District Court for the Eastern District of Arkansas. Mr. Harrison has briefed many civil appeals and has orally argued before the Arkansas Court of Appeals, the Arkansas Supreme Court, and the United States Court of Appeals for the Eighth Circuit. He is a contributing author to the Association’s Handling Appeals in Arkansas Handbook. Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
15 Things You Must Know About Appeals 1. Be sure the court has jurisdiction. 2. Pay careful attention to the applicable standard of review. 3. Take pains to select your best arguments. Concentrate your fire there. 4. Never overstate your case. Be scrupulously accurate. 5. Describe authorities with scrupulous accuracy. 6. Value clarity above all else in writing and oral argument. 7. Appeal not to just rules but to justice and common sense. 8. Assume a posture of respectful intellectual equality with the bench. 9. Close powerfully — and say explicitly what you think the court should do. 10. Appreciate the objective of oral argument and know your objectives. 11. But avoid detailed discussion of precedents during oral argument. 12. Yield Indefensible Terrain — ostentatiously. 13. Follow the appellate rules governing abstract and addendum preparation. 14. Start applying Administrative Order No. 19. 15. Write and speak in plain English.
This point directly relates to the prior one. Many lawyers do not connect the case law to their case sufficiently before (or as) they cite cases to appellate courts. I am not talking about drawing perfect circles here. And I am not saying that existing precedent can be read to end every reasonable debate on a particular legal issue. Case law, statutes, regulations, and treatises are often just starting points for thorough and vigorous legal discussions. This is right and good. It is paramount, however, that you spend signif12
The Arkansas Lawyer
icant time with the applicable information like case law, statutes, and regulations — if not in the trial court then certainly while writing your appellate brief. Repeat that task again before making an oral argument. 6. Value clarity above all else in writing and oral argument. The legal argument that the appellate court cannot fully understand, it cannot in good conscience accept. But clear does not equal inevitable. We all know from experi-
ence that the better written brief, or a more informative and forthright oral argument, will not always carry the day. As author Steven Pressfield has written, “the playing field is level only in Heaven.”5 An appellate court’s ne plus ultra duty is to the fair and faithful administration of the law, regardless how an advocate performs in a given case. But take heart in knowing that the clearer you can state your position in a case the more powerful and persuasive it will be. Control what you can; let the rest go. How can you help ensure that your brief is clear and content driven rather than a bound set of vacuous string citations and ill-applied general legal propositions? Here is one reliable suggestion. Complete your near-final brief before the deadline and ask others to read it and suggest changes. Some writers are better self editors than others. But even lawyers who write and self-critique drafts frequently — and are thus practiced at the task — should not avoid asking at least one other person to read the written work product while there is time to change the brief. The same is true for an oral argument outline or related preparation materials, like drafting answers to anticipated questions the court might ask you during oral argument. The comparison is not perfect, but a good editor (reader) is like a capable math teacher. The common denominator is this: each ensures that an intended concept has been communicated well. Like the math teacher who can take you from the initial problem to the correct solution so that you can see it for yourself, an effective editor (reader) of your brief will help ensure that you do not skip critical links when moving from your major premise to the conclusion you intend to establish with the court. If an intelligent reader has concerns with the clarity or structure of your argument — including its implication for future cases — then assume the reviewing court will too. Your main task is to guard against a busy court missing the decisive links that will mean success for your client on appeal. Do what is necessary to reach that goal. The “necessary” should, at minimum, include asking a critical reader to review your near-final written work. Visit Chapters 11 and 13 in Handling Appeals in Arkansas for more on brief writing and oral argument. The Bibliography included in Appendix J may also help you.
7. Appeal not to just rules but to justice and common sense. Here in one phrase is the essence of what the verb advocate means for an appellate lawyer, all lawyers really. The more effective advocate will have more than a few words to write on why it is prudent, fair, and pragmatic for an appellate court to accept his or her argument. Common-law rules, statutes, and regulations are vital starting points for any legal conversation. No question. But a court often looks to more when deciding a case, especially if the case before it is likely to affect future ones. Having been immersed in rules while in law school, it takes some time for younger lawyers to place the rules within an appropriate “real world” context. But do this you must. So think about how your case will directly affect or indirectly influence future ones as you argue an appeal. And sprinkle in an appropriate amount of the human, rather than strictly legalistic factors that we all use to make nonlegal decisions on important matters. 8. Assume a posture of respectful intellectual equality with the bench. All lawyers should respect all courts. Re-
specting our judicial institutions does not, however, demand abdication of your voice as an advocate. We, attorneys are, after all, sworn defenders of the Arkansas and United States Constitutions. The following statement is simple, and perhaps best directed towards less experienced lawyers: tell the court in a confident but respectful manner what you think it should do. If you think it has wrongly decided a prior case that cuts against your pending appeal, explain why the precedent should be overruled — or more prudently, limited in some way. Stare decisis is deeply entrenched, but courts do often move away from prior positions. Concurrences and dissents can signal potential, if not plainly forthcoming shifts in the law. Mine them for plausible points to make in your principal arguments on appeal. Regardless of your appellate experience level, if you present your (oral or written) argument with an informed confidence, then you have helped the appellate process. The best of any product requires top-shelf ingredients. When counsel ably handles the appellate process then the end product, the just administration of the law, is more likely assured. Presenting your arguments with an informed and measured
confidence is good for the system. Do your part; the court will do its part. 9. Close powerfully — and say explicitly what you think the court should do. This advice holds true for brief writing and oral argument. Why do lawyers need to be reminded to specifically tell an appellate court how it should decide an appeal? First, we all sometimes pass over the obvious, for whatever reason. Second, lawyers who spend most of their practice in trial courts may not appreciate fully that an appellate court too is a crafter of remedies. “This court should affirm the circuit court’s summary judgment” is often all that needs to be said. In many appeals the remedy is not so patent, logically necessary, or incontrovertible. A variety of options may be available to the reviewing court. If your request for relief is unusual, but within the court’s power to issue once concerns it may have are cleared away, then make the request known and explain why anticipated concerns do not prevent the requested relief. In any event, it is good advocacy to think through your remedy request as Appeals continued on page 49
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Frank B. Sewall 2010-2011 Arkansas Bar Foundation President Frank B. Sewall of Little Rock began his term as President of the Arkansas Bar Foundation Board of Directors on July 1, 2010. Sewall serves as Senior Counsel, Regulatory for Arkansas Blue Cross and Blue Shield. After receiving his A.B. from Dartmouth College and his M.B.A. from The Amos Tuck School of Business Administration, Dartmouth College, Sewall earned his J.D. from Emory University School of Law. He has been a Fellow of the Arkansas Bar Foundation since 1983, is a Sustaining Fellow, and has served the Foundation on the Board of Directors as Secretary-Treasurer and Vice President. He is an active member of the Arkansas Bar Association and has served in numerous leadership capacities including as Chair of the Board of Governors, Secretary-Treasurer, and is
a tenured member of the House of Delegates. He served the Association and Foundation as Co-Chair of the Joint Planning Group for the Future of the Bar Center and Chair of the Arkansas Bar Center Design Committee. His leadership roles have been recognized with two Golden Gavel Awards, a Presidential Award and the Charles C. Carpenter Award. Sewall has served as President of the Pulaski County Bar Association, President of the Saint Thomas More Society of Arkansas, Chair of the Board of Directors for Volunteers’ Organization, Center for Arkansas Legal Services and is an active member of the Rotary Club of Little Rock. He was recognized as Jaycee of the Year for his work with the Greater Little Rock Jaycees. He was a commissioned officer in the U.S. Navy Supply Corps. n
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Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Through the Spectacles of Arkansas Judges 10 tips for improving legal writing from an Arkansas Judicial Survey
By Rodney P. Moore
cross the country, legal writing is garnering increased attention from lawyers and judges. Legalese is under siege. Plain language is the rage. Flowery prose laced with five syllable words is out, in favor of — believe it or not — short, understandable sentences. Brace yourself, there even appears to be a movement afoot to make legal writing interesting.
But, how do Arkansas judges view legal writing? What do they think is important? What do they find helpful? What distracts them? What infuriates them? On behalf of the Arkansas Bar Association, I asked these questions and more.1 Here are 10 tips from the survey:
1. MORE is less. Our knack for swinging at every pitch with an overweight slab of rambling verbiage has caught the eye of judges – and not to their liking. The most pervasive – and perhaps the most verbose – comments from the judges: our writing is too long. The old adage that the heaviest paper wins appears to hold no weight with the Arkansas judges of today. Indeed, 38% of the judges surveyed rated excessive wordiness as infuriating – for the rest, it is annoying. And they offered suggestions for trimming the fat: omit boilerplate and routine issues (i.e. summary judgment standard) unless in dispute; avoid lengthy block quotations; cleanse your writing of legalese; and don’t repeat yourself — did I mention they want legal writing to be shorter?
Why not move that information to the front of the brief in an introduction and highlight the issues through substantive headings? 92% of circuit judges and 64% of appellate judges respond that an introduction concisely summarizing the issues would be helpful. And, 80% of all judges surveyed responded favorably to substantive headings capturing the essence of the issue being discussed.
4. Remove the barbs from your writing. All of us have done it — and most of us know it is wrong. But, alas, it sneaks into our writing through words and phrases like: “specious;” “disingenuous;” “intellectually bankrupt;” “with all due respect, _______ and _______...;” “learned counsel…;” and – my personal favorite, though not as sneaky — “the goober on the other side.” The temptation to get a barb in at the other side – or more satisfying, opposing counsel — is great. But, the cost to your writing and our profession is greater still. Those derogatory comments infuriate 87% of the judges and really annoy the others. Attack the issues, not the people.
2. Get to the point and stay there.
5. Circuit judges like bullet points.
Apparently, our pens run amok. Judges lamented about the lack of focus in legal writing brandishing words like “shot-gun” and “kitchen sink.” To summarize their point: write about the issue and nothing else.
Though no question in the survey inquired about them, several circuit judges wrote favorably about the use of bullet points. I wonder why?
3. Introductions and substantive headings are helpful. Ever wondered what part of a motion or brief a trial judge reviews first? According to the survey, they review the end first – the prayer. Why? They believe that is the fastest way to find out what the motion or brief is about. 16
The Arkansas Lawyer
• • • • •
Short Very simple No legalese or boilerplate Easy to read Highlight the important issues
6. Don’t just cite — explain. Judges reported that too often attorneys cite authority without explaining its importance to the case being decided. Generally, the judges wanted fewer citations and more analysis. And, while we are on the subject of citing authority, several judges let us know that they notice when we don’t cite contrary authority. Bonus Tip: For the really important authority, 74% of circuit judges report they would be more likely to read it if the attorney provides a copy — some even suggest a highlighted copy.
7. Follow the rules. No surprise, judges — especially appellate judges — want attorneys to follow the rules when submitting motions and briefs. Mistakes in abstracting and assembling the addendum continue to be a problem — making several appellate judges’ list of “most common mistakes” or “top two pet-peeves.” The most common concern listed: abstracts and addendums tend to be too fat — too much unimportant stuff included. While preparing the survey questions, a couple of circuit judges mentioned their dislike of sur-replies and other filings not specified in the rules. The issue was included in the survey with the judges being asked to rank such filings as either “mildly annoying,” “really annoying,” or “infuriating.” The result: 26% of judges responded that such filings are mildly annoying; 38% rated them as really annoying; and 32% decried them as infuriating. So, perhaps getting the last word on some issue is not the best word in trying to persuade the judge.
8. Clearly, the egregious, horrific, and magnificently ornate writing should cease on or about now. Judges are not fans of words like “obviously” and “clearly” — nearly half report such words to be either “really annoying” or “infuriating.” And over-the-top adjectives fared worse prompting over 20% of judges to rate them as “infuriating.” Flowery prose, boilerplate, and legalese drew fire from the judges too. So what type of words do the judges want? In the words of one appellate judge: “concise, ordinary English.”
9. Proofread you’re rioting so it makes since. Spelling and grammar mistakes detract
from the substance of writing. And, sometimes, the words just don’t make sense. Several judges issued pleas for “proofreading” and “for the attorney actually signing the brief to read it.” As the heading of this section demonstrates, spell-check alone is not enough.
10. Organize your writing. Less than half of the responding judges believe that briefs are well organized. Some of the comments urged more consideration of the architecture and for the writing to be organized in a logical fashion. Upshot: spend time thinking about how you are organizing the writing and consider whether a different sequence of issues or sentences might tell the story better. Remember, in organizing — as well as writing — keep the important stuff in focus and let the rest go. Endnote: 1. All Arkansas circuit and appellate judges received a survey. The survey was five pages in length and covered a range of issues from how judges use legal writing to what they view as effective and ineffective writing practices. The questions varied some between the appellate and circuit judges but were similar. We owe gratitude to the judges who took the time to respond to the survey as the responses tended to be thoughtful and enlightening. Out of 120 circuit judges, 50 responded. Out of 19 appellate judges, 11 responded. Additionally, a special thank you is extended to Chad Baruch, J.D., Assistant Principal Yavneh Academy Dallas, for providing inspiration for this project and graciously allowing the use of his survey questions from a similar project in Texas. n
Rodney P. Moore is a partner with Wright, Berry & Moore P.A. where his practice focuses on appellate advocacy and civil litigation. He serves on the Arkansas Supreme Court’s Committee on Civil Practice and is one of the authors of the Handling Appeals in Arkansas manual published by the Arkansas Bar Association.
10 Tips for Improving Legal Writing 1. MORE is less. 2. Get to the point and stay there. 3. Introductions and substantive headings are helpful. 4. Remove the barbs from your writing. 5. Circuit judges like bullet points. 6. Don’t just cite — explain. 7. Follow the rules. 8. Clearly, the egregious, horrific, and magnificently ornate writing should cease on or about now. 9. Proofread you’re rioting so it makes since. 10. Organize your writing.
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Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Fastcase — the next generation of online legal research; it’s free, it’s easy, and there’s an app for that! The Arkansas Bar Association launched Fastcase for its members on July 1. Fastcase is a powerful legal research tool, and is really easy to use. If you can Google, you can use Fastcase! Here are some of the features that I was most impressed with. Outstanding user support: The user support that Fastcase offers is one of the best I’ve seen. They have three options that put you in touch with a live person: their toll-free support number (1-866-773-2782), their email support address (email@example.com), and their live chat (available by clicking Help while you’re in Fastcase). In addition, they have Webinars (beginning and advanced, scheduled at convenient times), online tutorials that you can view whenever you like, and a dozen different how-to’s that you can download.
Live Chat I was really impressed with the fact that there was a live chat feature built right in the program, so I decided to see what it could do. I clicked on the live chat button, and in less than a minute someone responded with “How can I help you?” I asked for help developing a query for my issue: Can the fact that a person was not wearing a 18
The Arkansas Lawyer
seat belt be admitted into evidence in a civil case? Realizing I didn’t even tell them what state law I was interested in, I sent another message that just said “Arkansas law.” In just a couple of minutes, the instructions started coming. First, they told me exactly what to click on to get to Arkansas cases. Then, they sent me the query to use. I was really impressed. THEN, they sent another message that said: “Click this link to view the interactive timeline for the search I just ran for you.” I clicked on the link, and it took me right to the search results for my issue. Wow. Authority Check: Authority Check is Fastcase’s integrated citation analysis tool. You can use Authority Check to generate a list of cases that cite your case. You can also use it to prioritize your research by identifying the most frequently cited cases on your list of results. For each case in your results list, it tells you how many cases in the entire database cited that case, and how many cases in your results list cited that case. (What’s the difference? If it was cited in the entire database, it may or may not have been cited for the issue you care about. However, if it was cited in your results list, these are cases that are talking about your issue; you will want to read those cases.) [Caveat: Authority Check is not a citator; it does not include editorial information telling you whether a case is still good law and it does not check for subsequent cases overruling your case. If you need to use a citator, Fastcase has hyperlinks to both Shepard’s (via Lexis-Nexis) and KeyCite (via Westlaw) which are available for a fee paid to the vendor.] Forecite: Today when I logged on and ran a test search (my search was a very simple “no knock”), I found this brand new tool. Right now it’s still in Beta testing, but here’s
By Cathy Underwood
“Take advantage of the free training from Fastcase, training seminars offered by the Arkansas Bar (check www.arkbar.com for dates)”
what it said: “Fastcase has identified 2 additional decisions that may be relevant to your research topic, but do not contain one or more of your search terms.” Hmm, I said; this thing is smarter than I am. I clicked on the button that said “View Results.” Two United States Supreme Court cases were displayed: Wilson v. Arkansas and Richards v. Wisconsin, both seminal cases on the issue, and neither contained the term “no knock.” Fascinated, I click on the link that said “What’s Forecite?” “The following decisions do not contain one or more of the search terms you entered. However, they are frequently cited by the other decisions in your search results and therefore, may be highly relevant to the topic you are researching.” Definitely smarter than I am! Cathy Underwood is a legal editor and a full-time paralegal instructor at Pulaski Technical College. She is Chair of the Online Legal Research Committee and she trains Association members on how to use Fastcase. Fastcase continued on page 53
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Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
2010-2011 President Jim L. Julian Photo by Ocken Photography
Jim L. Julian 2010-2011 Arkansas Bar Association President By Anna Hubbard
orn, raised and educated in Arkansas, newly elected President of the Arkansas Bar Association Jim Julian has devoted his life to improving his community and his profession. His goal this year is to encourage other lawyers to join his efforts in making a difference in the community. “As highly educated and trained people, we have many talents we can contribute to the betterment of our communities,” Jim said during his investiture on June 11, 2010, at the Association’s Annual Meeting in Hot Springs, Arkansas. Jim believes that lawyers are obligated to serve the community by participating in public service, serving on non-profit and civic boards, and donating hours to pro bono work. “As lawyers, we have the opportunity to make a significant impact on the lives of others and to our communities at large. As professionals, we owe an obligation to those who are in need of our services but whose situation in life deprives them of the ability to seek out our assistance.” The youngest of three siblings, Jim was raised in Osceola where his father, John Julian, still lives. In 1976, Jim earned a political science degree from Arkansas State University in Jonesboro. He minored in history, a subject he continues to study informally by reading as much nonfiction as he can get his hands on. “History books are much more interesting than any fiction that can be conjured up by a novelist,” Jim said. “One of my favorite books is Rising Tide, an account of the great flood of 1927 and the devastation it wrought in the lower Mississippi River delta. Having grown up in those areas, the book made all of the old stories my dad had told me about the flood come to life.” Jim graduated from the University of Arkansas School of Law in 1979 where he met his wife of 30 years, Patti, who was a year behind him in law school. Patti and Jim are fortunate to live on one of the beautiful lakes in the Lakewood neighborhood of North Little Rock. Patti works as a campaign political consultant, an interest she comes by honestly. Her father Dave Roberts served as a state representative for over 20 years. Like Jim, Patti is actively involved in the commu-
nity. She serves on the North Little Rock Sewer Commission and on the Board of Potluck, Arkansas’s only food rescue organization. Their daughter Katy graduated from the University of Arkansas in Fayetteville this May. Jim’s first job out of law school was with a small law firm in West Memphis, where he practiced civil litigation and a “healthy dose” of criminal defense work. In 1983, he moved to Central Arkansas to work for Arkansas Power & Light Company (AP&L) doing condemnation work for the legal department. With AP&L’s blessing, he joined House, Holmes & Jewell, the firm that was providing outside legal counsel for AP&L in 1984. He and his current partners Larry Chisenhall and Chuck Nestrud formed their current firm in January of 1989, where Jim is head of litigation. “I enjoy trial work,” Jim said. “To be honest, I don’t like the prep work as much as trial work. I couldn’t imagine doing other areas of law work.” Longtime partners Larry Chisenhall and Chuck Nestrud know Jim better than most people other than Patti. “Jim and I both grew up in Osceola, although we did not know each other at the time,” Larry said. “Jim was a number of years younger than me, but you really wouldn’t know that by looking at us together.” “It really seems like Jim has been around for most of my life,” Larry added. “While he and I rarely try cases together, his analytical abiliVol. 45 No. 3/Summer 2010 The Arkansas Lawyer
“As individuals and collectively, we can make a difference in the lives of so many people who are in need. Donate your time and your talents. Make a difference.”
Jim and Patti Julian with Chief Justice Jim Hannah at Jim’s investiture
Chief Justice Jim Hannah administers the oath of office to Jim
Jim with partners Chuck Nestrud (left) and Larry Chisenhall (right) 22
The Arkansas Lawyer
ties have helped me many times in looking at legal issues from different perspectives. When I have a litigation matter that I refer to Jim, I never have to second-guess or question what he is doing for the client. I can totally trust his ability and judgment and that, for me, is a very comforting feeling.” Chuck Nestrud also speaks highly of Jim. “I have had the privilege of being Jim’s friend and partner for over 30 years,” Chuck said. “We shared the struggles of being new lawyers, started and built a law firm, tried cases together, raised our families, vacationed, played golf — for my entire adult life Jim has had the office next door. I can thank Jim for making it a great ride.” “Jim can sell ice cream to Eskimos in a courtroom,” Chuck added. “Once I asked him to help a client, a sweet elderly woman, with pollution insurance coverage — convince a jury that gasoline is not a pollutant. The jury returned in his favor in 20 minutes.” Other than reading, Jim’s hobbies include playing golf, fishing, and cooking. Jim’s mother, Lucille Julian, taught him to cook before he left for college. “Thank goodness, or I would have starved,” he said. “She was known for her baked goods. I learned how to make her custard pies and apple pies. I can make a good crust but the frozen pie crusts are about as good and are much less work!” Jim said he enjoys cooking but rarely makes time for it unless it is too cold for golfing and fishing. He does entertain requests for pies from friends who have tasted his desserts and know of his hidden talent. As a sports fan, he loves all sports. Although he has the height for basketball, he did not play the game competitively after high school. He said he used to play for fun with a group of lawyers when he was younger, but they decided to quit when someone started getting injured during each game as they got older. Jim’s involvement with the Bar Association began in the early 1990s when he was asked to work on and chair the Association’s Legislation Committee. “In those days, we were extremely fortunate to have many members of our Association serving in both the House and Senate,” Jim said during his investiture. “In fact, the entire Senate Judiciary Committee was made up of members of this Association. They made our job easy. We knew that they would stop illadvised legislation from getting too far. “With the passage of our term-limits laws,
the landscape changed dramatically. In the recent past we went through one session with only one lawyer serving in the Senate and only a handful in the House. This caused us to rethink and revamp our approach to the legislative process. I believe we have a strong legislative program now with Jack McNulty as our lobbyist, Dennis Zolper as our Jurisprudence and Law Reform Committee chair and Roy Beth Kelly as our Legislation Committee chair. “The Bar Association formed a Political Action Committee several years ago to encourage lawyers to run for the state legislature. Every election year the PAC gives all it can to each lawyer willing to make a run at a legislative seat. We must increase our support for the PAC as an association. There is so much more we could do if we had the resources. “The benefits we get as an association in having our members elected to the legislature cannot be overstated. Therefore, as an Association, we must show our appreciation for those who are willing to run by helping them in any way that we can.” Jim said another reason for maintaining a presence in the legislature is for the Association to have a voice for the independent judiciary. “In meetings with bar leaders from across the country, I have been stunned by the impact of the economic downturn on the operation of the court system in other states,” Jim said. “Many have had hiring freezes in the judicial system, salaries have been frozen or there have been across the board salary reductions. And in some states, the legislature is shutting down the courts with mandatory furloughs to save money. Think of the impact this could have on the efficient operation of our justice system if these same economic impacts begin appearing in Arkansas. “We must do whatever is necessary to ensure that our judges are free from outside interference and that they are paid a reasonable salary. As a Bar Association, we must be vigilant to repel any and all attacks on the independence of our judiciary.” In addition to helping members get elected in the state legislature, Jim wants to encourage members to also consider running for their local city council, school board, civic clubs, neighborhood associations, and any other public position that allow them to make an impact on their community. Jim leads by example. He has served on the Board of Directors of the Boys and Girls Clubs of Central Arkansas for over 10 years
and is a former chairman of that Board. He has served as counsel for Lakewood United Methodist Church for over 10 years and serves on the church’s finance committee. He is the chair of the Board of Directors for Recovery Centers of Arkansas, a community-based provider of services for substance abuse and related disorders. He also serves on the North Little Rock Airport Commission. Jim has chaired numerous committees and task forces for the Association, including the successful effort to amend the Judicial Article of the Arkansas Constitution in November 2000. He worked tirelessly on the Association’s and Supreme Court’s Task Forces on the passage and implementation of the New Judicial Article. Jim’s efforts and talent have been recognized by his community. For his leadership roles in the Association, he has been awarded the Charles C. Carpenter Award, the Outstanding Lawyer-Citizen Award, two Golden Gavel awards, and one Presidential Award. He is past chair of the Long Range Planning Committee, Ark Bar PAC, Legislative Task Force, Annual Meeting Committee and Legislation Committee. He is a former member of the Association’s Board of Governors and House of Delegates. Jim was inducted as a Fellow in the American College of Trial Lawyers in 2010. He is a member of the International and Arkansas Associations of Defense Counsel. Jim’s advice to lawyers beginning his or her involvement in community matters is to start slowly. “Whether becoming involved in a public position or non-profit board or church, start slowly and take small bites to be able to accommodate work obligations,” he said. “Don’t obligate yourself for more than you can handle with your practice. Choose a charity that you care about. It will only help you as you become more involved because people will see how talented you are.” Jim feels strongly about lawyers’ professional obligations to provide pro bono services to the over half million people in Arkansas who qualify for legal aid. “Each and every one of us can help. Our Rules of Professional Conduct state that each of us should provide, at a minimum, 50 hours of pro bono service per year. If we all made this commitment, access
Photo by Ocken Photography to justice would not be the concern that it presently is. As individuals and collectively, we can make a difference in the lives of so many people who are in need. Donate your time and your talents. Make a difference. We, as an association, must take the lead in addressing this challenge. We must assure that those in need can have access to justice in Arkansas. We can do that by supporting the work of the Arkansas Access to Justice Commission. They are doing excellent work in educating the public on the need in this area. They need lawyers to donate their time, talents and money to assist in making legal services available to those who need them.” Jim has learned that the more organized you are, the more you can do. He has mastered the art of organization by adding the duties of being a bar association president to his busy law practice and community service work. He said he began thinking of running for president several years ago but decided to wait a few years so he could better prepare his schedule. “I want to thank my partners and colleagues at Chisenhall, Nestrud and Julian for allowing me the opportunity to serve as President for the coming year,” Jim said during his investiture. “Most importantly, I want to thank my wife Patti for putting up with me for the past 30 years and for all she has done for me. I couldn’t get by without her.” n
Jim and Patti with their daughter Katy Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
2010-2011 Arkansas Bar Association Officers
Jim L. Julian President Jim L. Julian of North Little Rock was sworn in as president of the Arkansas Bar Association at the Association’s Annual Meeting on June 11. Mr. Julian is a partner with Chisenhall, Nestrud & Julian, P.A. in Little Rock. He has chaired numerous committees and task forces for the Association, including the successful effort to amend the Judicial Article of the Arkansas Constitution in November 2000. He is a recipient of the Charles C. Carpenter Award, the Outstanding LawyerCitizen Award and has received two Golden Gavel awards and one presidential award for his leadership roles in the Association. He is past chair of the Long Range Planning Committee, Ark Bar PAC, Legislative Task Force, Annual Meeting Committee and Legislation Committee. He is a former member of the Association’s Board of Governors and House of Delegates. Mr. Julian is a Fellow of the American College of Trial Lawyers. He is a member of the International and Arkansas Associations of Defense Counsel. Mr. Julian serves on the Board of Directors of the Boys and Girls Clubs of Central Arkansas and is a former chairman of that Board. He is the chair of the Board of Directors for Recovery Centers of Arkansas. He serves on the North Little Rock Airport Commission and the finance committee and as counsel for Lakewood United Methodist Church. He received his bachelor’s degree from Arkansas State University of Arkansas and his Juris Doctorate from the University of Arkansas School of Law in Fayetteville.
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Tom D. Womack President-Elect Tom D. Womack assumed the office of President-Elect at the Annual Meeting. He will become President of the Association at the June 2011 Annual Meeting. He is the president of Womack, Landis, Phelps & McNeill, P.A. in Jonesboro. He practices in the areas of business law, corporations, taxation, wills, estates and trusts. Mr. Womack is currently a member of the Association’s Board of Governors and has served as chair of the Probate and Trust Law and Taxation Law Section. He is currently the chair of the Audit Committee. He recently received the Charles L. Carpenter Award for his exemplary service to the Association and is a two-time Golden Gavel Award recipient for outstanding service to the Association. He is a longtime Sustaining Member of the Association. He is a Sustaining Fellow of the Arkansas Bar Foundation. He is also a fellow of the American College of Trust and Estate Counsel where he serves on the Professional Responsibility Committee and is the Arkansas State Chair. He is a past president of the Craighead County Bar Association. He obtained his undergraduate degree in accounting from Arkansas State University with distinction and his Juris Doctor from the University of Memphis School of Law.
Sean T. Keith Board of Governors Chair Sean T. Keith of Rogers was appointed chair of the Association’s Board of Governors. Keith is a native of Rogers and a second generation attorney. He completed his undergraduate degree at Westminster College in Fulton, Missouri, and received his law degree from the University of Arkansas at Fayetteville. He began his career as a prosecuting attorney in Logan County, Arkansas. He started his own firm, Keith and Miller, P.A. with Drew Miller in March of 1995. Since that time, he has handled civil cases exclusively and has handled all areas of litigation. As the firm grew to what is now eleven attorneys, Sean’s focus grew more specialized and he currently focuses on the areas of personal injury, class action, and business litigation. Sean is an active member in the legal profession and the community. He is a past president of the Benton County Bar Association and has served for eight years on the Arkansas Bar Association Board of Governors and on the Legislative Committee. He was a long time member of Rotary, past member of its Board of Directors, Commissioner on the Rogers Public Library and has been a Trustee for his church, Central United Methodist in Rogers. He was recognized by Northwest Arkansas Business Matters on their annual 40 Under 40 list of prominent professionals. He resides in Rogers with his wife Amy and two children, Patrick and Mallory. He takes particular joy in coaching youth baseball and attending dance competitions.
2010-2011 Arkansas Bar Association Officers
Brandon K. Moffitt Young Lawyers Section Chair
Charles D. Roscopf Parliamentarian
F. Thomas Curry Secretary
William A. Martin Treasurer
Brandon Moffitt has been named chair of the Young Lawyers Section. Since graduating from the Bowen School of Law in 2006, Brandon cofounded the law firm Moffitt & Phillips, PLLC based in Little Rock. Moffitt & Phillips, PLLC is a litigation firm providing representation statewide in the areas of plaintiff’s personal injury, business law, real estate and eminent domain, as well as criminal defense. Brandon was elected to the Executive Counsel for the Young Lawyers Section in 2008, and has served on the Annual Meeting Committee, Technology Committee, Law School Committee, Long Term Planning Committee, and the Member Benefits Committee for the Association. Brandon was named Co-Outstanding Young Trial Lawyer for 2009 by the Arkansas Trial Lawyers Association, is actively involved in the Pulaski County Bar Association, and was recently named to the Board of the Pulaski County Bar Foundation. Brandon is licensed to practice before the courts of Arkansas and Tennessee.
Charles D. Roscopf was elected Parliamentarian of the Association. Mr. Roscopf is a partner at Roscopf & Roscopf in Helena. Mr. Roscopf is a longtime active member of the Association. He is a former Governor of the Board of Governors and member of the House of Delegates. He is a Fellow of the Arkansas Bar Foundation and has served on its Trust Committee and the Board of Directors. He is a member of the Arkansas Alumni Association Board. He is the managing partner of East Arkansas Title Co., LLC in Helena. He is a member of the Phillips County Bar Association and Arkansas Supreme Court Continuing Legal Education Committee, where he served as chairman. He is a member of Arkansas Volunteer Lawyers for the Elderly. Mr. Roscopf is a graduate of the Phillips County Chamber of Commerce Leadership Development Institute. He received his bachelor’s degree from the University of Arkansas and his Juris Doctorate from the University of Arkansas School of Law in Fayetteville.
F. Thomas Curry of McMillan, McCorkle, Curry & Bennington, LLP in Arkadelphia has again been elected to serve as Secretary. Mr. Curry also received a Presidential Award at the meeting for his extensive service to the Association and for his work as Secretary this past year. He is a former Governor of the Board of Governors and tenured member of the House of Delegates. He received a Golden Gavel Award in 2006 for his work as chair of the Unauthorized Practice of Law Committee. Mr. Curry is a Fellow of the Arkansas Bar Foundation and recently served as its Secretary/Treasurer. He is a member of the International and Arkansas Association of Defense Counsel. He received his bachelor’s degree from Henderson State University and his Juris Doctorate from the University of Arkansas at Little Rock Law School. Upon graduation from law school, Mr. Curry served five years on active duty with the U.S. Army, Judge Advocate General’s Corps. Since leaving active duty, he has continued to serve in the U.S. Army Reserve. He currently holds the rank of Colonel and is assigned to the Individual Ready Reserve.
William A. Martin has again been elected to serve as Treasurer. Col. Martin served as executive director of the Association for 13 years and has served as its Secretary/Treasurer for the past nine years. Martin has been a member of the Association’s House of Delegates for a number of years and has served as chair of the Finance Committee since 2000. He is a Sustaining Member of the Association and the Arkansas Bar Foundation, a member of the Board of Directors of the Pulaski County Bar Association, treasurer and past secretary of the Pulaski County Bar Foundation, and served seven years as a Board of Trustees member of the National Conference of Bar Foundations including four as its treasurer. Martin received a Juris Doctorate from the University of Arkansas before entering the United States Air Force where he moved through the ranks from second lieutenant to colonel. During that time he also earned an MBA from Arizona State University.
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench by Polly J. Price (Amherst, New York.: Prometheus Books, 2009), 466 pages.
Book Review by Phillip H. McMath Richard Sheppard Arnold was a genius. If he wasn’t, then the word has no meaning. And Ms. Polly J. Price, his former clerk, now law professor, has become his biographer in her Judge Richard S. Arnold, a Legacy of Justice on the Federal Bench. It’s a fascinating tale, indeed, and Ms. Price’s effort is a first-rate and well-written analysis of Richard’s life in the law. Born a scion of one of Arkansas’s most distinguished and accomplished families, Richard, along with his brilliant brother, Judge Morris “Buzz” Arnold, inherited an amazing bloodline of ability and aptitude. Their grandfather, William Hendrick Arnold, and their father, Richard Lewis Arnold, were great lawyers who founded and maintained the leading firm of Arnold & Arnold in Texarkana. W. H., who arose from what one writer has called the “frontier aristocracy,” was born in 1861 amongst the ruins of war and Reconstruction and could only “read the law.” A dedicated autodidact, W.H. vowed that son Richard Lewis would get an immaculate, formal education; in other words, he would go to Phillips Exeter, Yale and Harvard Law. Returning home, Richard Lewis married Janet Sheppard, the daughter of a prominent U.S. Senator from Texas. Soon there were two boys and they were to be educated in the same way. So, Richard Sheppard, born in 1936, the thin, reserved lad from Texarkana, Arkansas, armed with a phenomenal brain supercharged with a photographic memory, stormed the ramparts of American Eastern Establishment academia in a way that still resonates. He took a classics diploma at Phillips Exeter, a first at Yale (1957) and a first at Harvard Law (1960). (He became fluent in Greek, Latin, Hebrew, French and Italian.) A law school classmate 26
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and dear friend, now Supreme Court Justice Antonin Scalia, was known to quip that Richard was “the only one in our class smarter than me.” One professor, Abram Chayes, told a class not to bother with attempting a “perfect paper” because it had already been written by Richard Arnold and would never be done again. (Richard had the gift of not only remembering every apposite case but also of citing the volume, page and year, in nice, legible, print-like hand.) Tops at Harvard Law was, and remains, an entrée to a Supreme Court clerkship, and young Richard soon found himself sitting at the feet of Justice William Brennan, Jr. from 1960-61. He was on America’s legal Mt. Olympus, and it must have been a tad intoxicating to drink the judicial ambrosia among juristic demigods like Earl Warren, Felix Frankfurter, Hugo Black, William O. Douglas, Potter Stewart and John Marshal Harlan II, as they unleashed the thunderbolts of Cooper v. Aaron, Mapp v. Ohio and Baker v. Carr. Perhaps it was easier to adjust to those altitudes than it was to come down, so when his clerkship ended, Richard found a plateau in the D.C. law firm of Covington & Burling. Perched near the White House, with a partner named Dean Acheson, it was not a bad place to depressurize. In the summer of 1958 Richard had married Gale Palmer Hussman, of Camden, the daughter of Walter Hussman of Palmer Media, and they now quickly became a stellar part of the Georgetown haut monde scene. But, despite his peregrinations and prizes, Richard, like most Arkansawyers, never quite left home, and in 1964 he felt the call and returned. Back at Arnold & Arnold, he, of course,
wrote the top Arkansas Bar exam. Then he did environmental work, defended a notorious murderer pro bono, and slogged through other legal chores; in other words, paid his dues. However, it was soon clear what he had on his wonderful mind – politics. In 1966 he ran for Congress against David Pryor. But if there was ever a born politician, it was David. Richard got trounced. He ran again against Ray Thornton in 1972, and got nailed again. Richard was lots of marvelous things, but a politician he was not. These defeats, as they sometimes are, were good, not bad, and they sent him on to where he belonged - the Federal judiciary. He went to work for Senator Dale Bumpers till 1978, when Dale made him a U.S. District Judge. Richard punched his ticket there for about a year, then was nudged upwards by his mentor to the 8th Circuit Court of Appeals. He was not quite back on Olympus, not yet, but he could see it from there. Then along came a politician from Hope, another South Arkansas boy that had also stormed the walls of exclusivity. Bill Clinton, Richard’s friend, was president. A Supreme Court seat opened in 1993, but went to Ruth Ginsburg, but then another opened in 1994. Not surprisingly, Richard had discreetly spread “forth the tender leaves of hopes.” After all, there was nobody better qualified, no one more deserving, no one more respected than Richard S. Arnold, veteran of the Eighth Circuit Court of Appeals; and, heck, he was from Arkansas, a diamond from the land of diamonds. It was a natural choice for the Natural State and our country. But, “O, how wretched is that poor man that hangs on princes’s favors.” Or in plainer words, these things are rarely “a done deal.” Others wanted it, too; one was Stephen
Breyer, of the First Circuit, sponsored by his close friend, Senator Ted Kennedy. Breyer had been chief counsel on his Judiciary Committee, and Kennedy was leaning hard on the White House for Breyer’s elevation. Then there was the matter of Richard’s health – he was in remission from nonHodgkin’s lymphoma. Since such appointments are, indeed, presidential diamonds, President Clinton announced that he had to have a certificate of longevity. So the White House located one Dr. Lee Nadler of DFCI (Dana Farber Cancer Institute) of Boston, Mass., to review Richard’s medical records. Dr. Nadler was what Ms. Price calls “a leading expert on Arnold’s disease.” Richard agreed, and the chart was sent only to have Dr. Nadler write back a report with black borders. Clinton called and told Richard, “I certainly want to consider you next time.” Time?! Mr. President, time?! Justice Breyer got the prize, and Richard never hoped again. Yet Ms. Price does not explain how DFCI and Dr. Nadler were selected, nor does she mention that when Dr. Nadler was deciding Richard’s fate, Stephen Breyer was (and remains) a trustee of DFCI and that Breyer’s wife, Joanna Freda Hare, a Harvard-trained psychologist, was (and remains) on staff at DFCI as a long-standing colleague of Dr. Nadler. Also, the Kennedy family has a long and extremely close relationship with DFCI, where Dr. Nadler remains as a Senior Vice President and Chief of Experimental Medicine. Wasn’t there a conflict of interest, or at the very least an appearance of impropriety? Couldn’t the White House have easily found an oncologist not subject to these
pressures? Ms. Price avoids confronting these questions by simply not asking them. In the event, Richard proved the good Dr. Nadler wrong and lived another 10 years. Well, maybe that’s not long enough for presidents, but Justice Cordozo only had six. Those were 10 fruitful years that our country and Richard well deserved. However, Ms. Price does note that Dr. Nadler’s medical opinion “was inconsistent with what other doctors had previously stated,” and that Dr. Nadler later admitted, “he regretted the severity of the wording in the letter, that it had been ‘too harshly phrased.”’ It’s beyond doubt that Richard S. Arnold was one of the greatest jurists never to sit on our Supreme Court, but it’s still not clear why he was denied that honor. Additionally, Ms. Price seems a little uncomfortable with Richard’s religious faith. But the fact remains that he was a devout, orthodox, committed Christian. In his Yale senior thesis, “The Emperor Constantine and the Christian Church,” he offers as his answer to why Constantine “recognized and favored the Christian Church,” that “Constantine did what he did, in my opinion, because the Holy Ghost told him to.” It’s a testament to Richard’s academic excellence that his first at Yale survived such an unfashionable assertion. Indeed, one senses that his biggest disappointment was not in failing to scale Mt. Olympus but in not making it to Rome. Richard became a Roman Catholic in all but name. Divorced and remarried by then, he was never granted Papal dispensation, so he was reduced to daily Mass sans sacra-
ments – he was a Sunday Episcopalian and a Monday-Saturday Catholic. Richard had a great life and an absolutely magnificent career, but it’s disconcerting that an extraordinary man with such astonishing gifts was denied these two things that mattered so much. Yet, from actually knowing him, it is also consoling to realize that Richard S. Arnold, in this tired world of “vain pomp and glory,” at journey’s end possessed that which really counts: “A peace above all earthly dignities, A still and quiet conscience.” Phillip H. McMath is a partner with the McMath Law Firm in Little Rock and an oft-published author of articles, plays and books.
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Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Arkansas Supreme Court Historical Society
Part II: Taking Judicial Cognizance of Soap: Justice Basil Baker’s Wit and Wisdom By Michael B. Dougan Associate Justice Basil Baker, whose life was profiled previously, sat on the Arkansas State Supreme Court from 1934 to 1941. This continuation argues that even though old cases may not be relevant precedent they nevertheless offer gems of judicial wisdom which since the time of Sir Edmund Coke (1552-1634) often are more a valuable addition to a brief than redundant lists of precedents. Baker authored lucid opinions, most often writing for the majority. His dissents were generally based on careful study, and this self-taught lawyer frequently lectured his fellow lawyers and judges. In an accident case, Missouri Pac. Transp. Co. v. George, 198 Ark. 1110, 133 S.W.2d 37 (1939), Baker referred to the recently deceased Mr. Justice Turner Butler “whose scholarly attainments and industry might well be emulated,” as having already thoroughly covered the matter in two cases: “I have decided not to copy any thing from either of these opinions, lest some one interested in the subject might deem my selected part as the vital portion and for that reason fail to read these opinions in their entirety. It is remarkable with what frequency learned counsel, zealous in their advocacy, present this matter in some new phase, although there has been practical uniformity in all decisions.” However, unlike Butler, Baker went deeper into history, citing Hynson v. Terry, 1 Ark. 83 (1838), the Magness slave girl case that prompted Judge Thomas J. Lacy’s classic exposition on the duties of the jury: “The law, as matter of right, belongs to the court, and the facts to the jury….To make the jurors judges of the law, and the courts judges of matters of fact, is to confound the clearest dictions of right and wrong, and to put to hazard the life, liberty, and property of every man in the community,”1 Ark. 83 at 87. One Baker hallmark was judicial restraint. In Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940), Smith sought the writ of error coram nobis, for although convicted of burglary, the witness had recanted and others had even confessed to the crime. Baker observed: “It is somewhat gently hinted 28
The Arkansas Lawyer
that we should, by judicial fiat, bridge this chasm of deficiency in the law of criminal procedure. The answer must be such rights are statutory, purely, and if there is a legal hiatus in such procedure, the remedy is legislative.” And, in Walls v. State Board of Education, 195 Ark. 955, 116 S.W.2d 354 (1938): “Generous impulses, however commendable, may not serve to palliate erroneous action.” Yet Legal Realism was much in the air in the 1930s, and Baker manifested it in Prather v. State, 191 Ark. 903, 88 S.W. 2d 851 (1935). A 1915 act (Crawford & Moses, Section 2438) made the mere possession of a long list of tools a felony. Ike Prather and three associates, some using false names, were arrested and convicted in separate trials. Prather appealed, his attorney arguing that many of these tools were common to working men. Baker admitted that at least one (and it was not the four pistols and extra cartridge clips) was “a household necessity, the possession of which is perhaps highly commendable and as civilization rises to its highest pinnacle, perhaps more in use than any other article described or found in possession of appellant and his associates, and that article is soap.” But even soap, Baker noted, could be used criminally: “[S]uch instrumentalities were gathered together and kept in possession, handled by those whose business is such they are unwilling to be known by their own names in strange communities, justify juries in awarding convictions upon proper trials.” “The evidence,” he concluded, “excites more than mere suspicion.” Another example of Arkansas realism came in Gribble v. State, 189 Ark. 805, 75 S.W.2d 660 (1934), where he observed knowingly: “It frequently happens, and trial judges soon learn, that it is sometimes more expedient to permit attorneys, in the heat of trials, to wander somewhat far afield.” In his next to the last opinion in Aycock v. Bottoms, 201 Ark. 104, 144 S.W.2d 43 (1940), he reasoned that the attempt after fourteen years to overturn a will was “argued somewhat seriously, but we can not think, very confidently.” “Laches,” he explained, “not
only follows and is controlled by the law but will restrain affirmatively any conduct that would impair” the widow’s standing. The great high ground of judicial tonguelashing figured in the last opinion he authored, Wimberly v. State, 201 Ark. 85, 143 S.W.2d 571 (1941). The misprision of a clerk in entering the wrong sentence spurred Baker’s wrath at both the Attorney General and circuit court: “There must be some virtue in Section 8246, Pope’s Digest. Dozens of cases have been filed and the provisions of this statute have been invoked successfully by litigants.” Good gold can be found in old cases. Michael B. Dougan is a Distinguished Professor Emeritus in History at Arkansas State University and is widely renowned as one of the foremost authorities on Arkansas history. His publications include numerous books and articles on Arkansas history. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201; Email: firstname.lastname@example.org; Phone: 501682-6879. Baker’s daughter, Marion Thielman, pictured holding the above photo will celebrate her 101st birthday on September 19, 2010.
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Bridging the Gap October 7-8, 2010 UALR Bowen School of Law Little Rock Fall Legal Seminar October 21-22, 2010 Embassy Suites Rogers Government Practice Seminar November 5, 2010 UALR Bowen School of Law Little Rock
Professional Practicum offered by the Arkansas Supreme Court Professional Practicum Committee
November 12, 2010 Embassy Suites Little Rock Legislative Advocacy November 18, 2010 UALR Bowen School of Law Little Rock Federal Practice Seminar November 19, 2010 UALR Bowen School of Law Little Rock Federal Tax Institute December 2-3, 2010 Little Rock 2010 Mid Year Meeting January 27-28, 2011 Peabody Hotel Memphis, TN For more information contact Lynne Brown or Kristen Scherm 800-609-5668 or 501-375-4606 email@example.com or firstname.lastname@example.org OR go to www.arkbar.com
November 18, 2010
UALR Bowen School of Law
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
112th Annual Meeting The Presidentâ€™s Reception honoring Donna C. Pettus, David B. Vandergriff and Hon. Harry A. Foltz
The The Arkansas Arkansas Lawyer Lawyer
June 9-12, 2010, Hot Springs, Arkansas Afternoon Receptions, Pool Parties, 50-Year Luncheon
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Exhibit Hall, Ladies Royal Treatment, Gentlemen’s Scotch & Cigars, Children’s Program, and over 83 hours of CLE Seminars
See more photos provided online by Innovative Systems Inc. at www.isi.cc/ABA2010
The President’s Gala
Thank You 2010 Annual Meeting Sponsors Pillar AY Magazine Friday, Eldredge & Clark Lexis Nexis Regions Insurance Group, Inc. Regions Morgan Keegan Trust Patron Albemarle Corporation Anonymous in Memory of Judith Gray Arkansas Bar Association Sustaining Members Ashley Group - Rick and J.D. Ashley Baim, Gunti, Mouser, Havner & Worsham, PLC Bank of Arkansas Barber, McCaskill, Jones & Hale, P.A. Bell & Boyd, P.A. Centennial Bank Chisenhall, Nestrud & Julian, P.A. Davis, Clark, Butt, Carithers & Taylor, PLC Dodds, Kidd & Ryan Dover Dixon Horne PLLC Duty & Duty, Attorneys at Law Elliot L. Clegg Garland County Bar Association Gary Holt & Associates, P.A. George Williams Law Offices of Kenny Jones, P.L.L.C. Laws & Murdoch, P.A. Lester A. and Jeffery Ellis McKinley Matthews, Sanders & Sayes
Patron (cont.) Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C Nichols & Campbell, P.A. Quattlebaum, Grooms, Tull & Burrow PLLC Ramsay, Bridgforth, Robinson and Raley LLP Sebastian County Bar Association Smith, Cohen & Horan, PLC Steve Morley TaMolly’s UALR William H. Bowen School of Law University of Arkansas School of Law Washington County Bar Association William C. Ayres, Jr. Williams & Anderson PLC Wright, Lindsey & Jennings LLP Diamond Arkansas Bar Foundation Arvest Asset Management Delta Trust & Bank Probate & Trust Law Section Section of Taxation Platinum Arlington Resort Hotel & Spa Family Law Section Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd. Legal Directories Publishing Company, Inc. Wagoner Law Firm, P.A.
Gold Civil Litigation Section Criminal Law Section Financial Institutions Law Section McMath Woods, P.A.
Silver ADR Section Business Law Section Cross, Gunter, Witherspoon & Galchus, P. C. End 2 End Business Solutions Frazer Frost, LLP Gibson Law Firm, PLLC Hamilton, Colbert & Scurlock, LLP Health Law Section Images James, Fink & House, P.A. Kirby and Rosalind M. Mouser Labor and Employment Law Section Law Offices of Darren O’Quinn Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A. Simmons First Trust Company, N.A. Summit Bank TCPrint Solutions Wayne M. Ball Auction & Realty Wilcox Parker Hurst Lancaster & Lacy PLC William A. Martin
Arkansas Bar Association/Arkansas Bar Foundation Kevin A. Crass Outstanding Lawyer-Citizen Award The Outstanding LawyerCitizen Award is given in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct. Kevin has been serving his profession and the community since he became a member of the bar in 1984. He is a partner and head of the Class Action and Business Litigation Practice Group with the firm of Friday, Eldredge & Clark in Little Rock. Kevin has served his profession, his city, his state and the nation in exemplary ways. Locally, Kevin is a member of the Board of Directors of the Boys and Girls Club of Central Arkansas; an Elder at Second Presbyterian Church; and a former board member and President of Presbyterian Village. On a statewide level, Kevin currently serves as a member of the War Memorial Stadium Commission, a member of the University of Arkansas for Medical Services Development Board and the University of Arkansas Little Rock Athletic Foundation. He has served as a board member and president of Arkansans for Drug Free Youth. Nationally, Kevin was a member of the President’s Advisory Committee on the Arts to the John F. Kennedy Center for the Performing Arts. “When Kevin joins an organization he never does it in name only,” said one of his nominators. “Kevin always approaches his involvement as an opportunity to help the organization achieve its goals. Kevin is truly an outstanding lawyer-citizen who brings credit to the legal professional in all of his services outside the courtroom.”
Robert L. Jones, III Outstanding Lawyer Award The Outstanding Lawyer Award is given in recognition of excellence in the practice of law and outstanding contributions to the profession. Robert L. Jones, III, a partner with the firm of Conner & Winters in Fayetteville, has practiced in the area of general, civil litigation for approximately 40 years and remains a trial lawyer par excellence, having tried over 300 jury trials in Arkansas and around the country. In addition, he is an internationally known author and speaker. His leadership in the organized bar is phenomenal. He has served as president of the Sebastian County Bar Association, Arkansas Bar Foundation, Arkansas Bar Association and Arkansas Association of Defense Counsel. He has been elected by his peers as a Fellow of the American College of Trial Lawyers, the International Academy of Trial Lawyers, and Litigation Counsel of America. He has been designated as a Best Lawyer of America in three categories – personal injury, commercial and Bet the Company, as well being named a Mid South Super Lawyer since 2004. He has also been active in his community including the United Way, the Episcopal Church and is currently a member of the Northwest Arkansas Business Council and the Nature Conservancy. “In every respect he has brought honor, dignity and integrity to the Arkansas Bar and more importantly to the legal profession,” said one of his nominators. “He is a beacon and an example to all of us who aspire to be outstanding advocates and lawyers. He is a true champion of the rule of law and I know that he has gained the high respect of all lawyers who have had the honor of working with him.”
Arkansas Bar Foundation Writing Awards Arkansas Bar Foundation Legal Writing Award: Thomas A. Daily, Daily & Woods, P.L.L.C., Fort Smith for “Lawyering the Fayetteville Shale Play-Welcome to My World” published in the Spring 2009 issue of The Arkansas Lawyer magazine Arkansas Bar Foundation General Writing Award: Walter G. Wright, Jr. and Harry W. Hamlin both of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock for “A Place to Call Home: Siting Manufactured Housing in Arkansas” published in the Fall 2009 issue of The Arkansas Lawyer magazine
The Arkansas Lawyer
2009-2010 Annual Joint Award Recipients Justice Annabelle C. Imber Tuck Equal Justice Distinguished Service Award The Equal Justice Distinguished Service Award is given to recognize commitment to and participation in equal justice programs for the poor, including pro bono efforts through legal services programs. In addition to leading an illustrious career as a lawyer, judge, and ultimately Justice of the Arkansas Supreme Court, Justice Annabelle C. Imber Tuck has been a tireless advocate for access to justice efforts in Arkansas. Since 1977, she has dedicated her professional career to fostering equal access to justice for those without the resources to afford legal representation. Justice Tuck is a member of the Arkansas Access to Justice Commission, serving in this capacity since October of 2005. She regularly speaks to attorneys and judges throughout the state about the importance of pro bono work. She currently chairs the Commission’s Education Committee and led the planning of the Commission’s first statewide “Promise of Justice Conference.” Justice Tuck played an integral role in the completion of the Commission’s DVD entitled “Forging the Road to Civil Justice.” In addition, she presented the Commission’s proposal to the Supreme Court to allow members of the Commission to establish the Arkansas Access to Justice Foundation, Inc. “She has worked diligently to raise the awareness among attorneys and judges about the need for legal aid and about each attorney’s ethical obligation to perform pro bono services,” said one of her nominators. “These accomplishments demonstrate Justice Tuck’s ongoing commitment to improving access to our state’s legal system for low-income Arkansans.”
Outstanding Local Bar Association Awards Craighead County Bar Association Pulaski County Bar Association Sebastian County Bar Association
Charles “Skip” Mooney, Jr. C.E. Ransick Award of Excellence The C. E. Ransick Award of Excellence was created to recognize outstanding contributions to the profession. Skip has served his profession in many ways, and his professional life is one of devoted and effective service to the legal profession and the example he sets in the community. He is a partner with the Mooney Law Firm. Skip is the founder of Out of the Dark, Inc., a grass roots volunteer organization that he started in Craighead County in the fall of 2008 in response to the local drug addiction problems in his community. This organization provides education and resources to its community and to those who have a family member or friend with a substance abuse addiction. The organization can be contacted by visiting its website at www.outofthedark.org. Today, Out of the Dark has several hundred volunteers, a number of Out of the Dark school chapters and holds monthly support and education meetings. Skip speaks regularly to civic groups and other local organizations to raise the awareness of the impact of drugs on a community. He is a member of the Arkansas Bar Association, a past president of the Craighead County Bar Association and was the recipient of the national “Elks Distinguished Service Award.” “Too often I think we fail to recognize those in our community who take it upon themselves to solve problems in our communities and help those in need,” said one of his nominators. “They are our unsung heroes. Skip Mooney, Jr. is one of those persons.”
Arkansas Bar Foundation Special Awards to recognize outstanding service to the Foundation during the 2009-10 year presented to the members of the Arkansas Bar Foundation 2009-10 Investment Committee: Richard D. O’Brien, Chair Jackson Farrow, Jr. John L. Rush Vol. 45 No. 2/Summer 2010 The Arkansas Lawyer
2009-2010 President Donna C. Pettus presented the following awards Golden Gavel Awards
Zane A. Chrisman of USable Life in Little Rock for her work as chair of the CLE Committee.
Brad L. Hendricks of The Brad Hendricks Law Firm in Little Rock for his work as chair of the Professional Ethics Committee.
Harry A. Light of Friday, Eldredge & Clark in Little Rock for his work as co-chair of the Annual Meeting Task Force.
Taura McDaniel Attorney Ad Litem in Jonesboro, for her work as chair of the Mock Trial Committee.
Jeffrey E. McKinley of Little Rock for her work as co-chair of the Annual Meeting Task Force.
Rosalind M. Mouser of Ramsay, Bridgforth, Robinson and Raley LLP in Pine Bluff for her work as chair of the Underwriting Committee.
Lamar Pettus of the Pettus Law Firm in Fayetteville for his work as chair of the Governance Committee.
Gwendolyn L. Rucker Law Clerk to United States Magistrate Judge Jerome Kearney, for her work as chair of the Annual Meeting.
Cathy Underwood of Pulaski Technical College in Little Rock for her work as chair of the Online Legal Research Committee.
Matthew D. Wells of the Davidson Law Firm in Little Rock for his work as co-chair of the Mock Trial Committee.
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Tom D. Womack of Womack, Landis, Phelps & McNeill in Jonesboro for his work as chair of the Audit Committee.
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Other Awards Presented at the 112th Annual Meeting
Teresa M. Wineland Maurice Cathey Award Wineland, of Williams & Anderson, PLC in Little Rock received the award for her valued contributions to The Arkansas Lawyer magazine.
Charles L. Harwell Charles L. Carpenter Award Harwell of Cypert, Crouch, Clark & Harwell, PLLC in Springdale received the award for his exemplary service to the Arkansas Bar Association.
J. Cliff McKinney II Judith Ryan Gray Outstanding Young Lawyer Award McKinney of Quattlebaum, Grooms, Tull & Burrow PLLC, in Little Rock received the award for his service towards improving the administration of justice.
Gwendolyn L. Rucker, Frank Elcan Award Rucker, Law Clerk to United States Magistrate Judge Jerome Kearney, received the award for her outstanding contributions to the Young Lawyers Section.
Lynn Foster Continuing Legal Education Award Foster, Arkansas Bar Foundation Professor of Law at UALR School of Law in Little Rock, received the award for her outstanding contributions to providing quality Continuing Legal Education for the attorneys of Arkansas.
F. Thomas Curry of McMillan, McCorkle, Curry & Bennington, LLP in Arkadelphia received the award for his extensive service to the Association and as the new Association Secretary.
Matthew R. House of James, Fink, & House, P.A. in Little Rock received the award for his work on the â€œ18 and Life to Goâ€? handbook.
Rodney P. Moore of Wright, Berry & Moore in Arkadelphia received the award for his work on the Judicial Survey and Appellate Practice Education.
Karen K. Hutchins Executive Director of the Arkansas Bar Association received the award for her hard work, grace in the face of occasional adversity, determination and loving care of the Association.
Lorrie Payne Associate Director received the award for shepherding through the biggest annual meeting ever by successfully innovating and balancing facilities, programs and themes with great skill.
Save the Date for the 2011 Annual Meeeting June 8-11, 2011 Hot Springs, Arkansas Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Take it to the Next Level in Leadership Introducing the Arkansas Bar Association Leadership Academy
By Donna C. Pettus, Immediate Past President, Arkansas Bar Association Ideas are like children; there are none so wonderful as your own. What if I told you the Arkansas Bar Association is stepping out with a wonderful idea, perhaps not entirely its own, but which could enhance your life as a lawyer, a leader, a citizen, and a member of the association? What if I told you the Association is creating for the very first time a program beyond the standard Continuing Legal Education, whose mission is to create a diverse network of lawyers with the knowledge, skills, and values to provide dynamic leadership to the profession, their communities, and the state? What if I said you could be one of those lawyers, one of those in the inaugural class, to learn firsthand from current and former bar leaders, deans, judges, professors, outstanding lawyers, lawyer-legislators and politicians? What if I told you, the new Arkansas Bar Association Leadership Academy is dedicated to lawyers like you and has the following goals:
• To build a statewide network of lawyer/leaders
• To provide advanced training to • • • •
proven community and bar leaders To foster integrity and public service among lawyers To encourage lawyers to more effectively discharge their responsibilities in the public interest To enhance the diversity of lawyer/ leaders To advance the administration of justice by involving more lawyers in bar and community leadership positions.
The Arkansas Lawyer
• To make you a superstar...well maybe. That last one’s up to you.
If this all sounds interesting to you, then read on and I’ll tell you what the Leadership Academy is, and how you can be a part of it. The Academy is an intensive five month program, beginning in January 2011. It is currently being developed by a hard working committee of the Association. Bar leadership programs have been among the national landscape of bar associations for years. Some seek to identify and train potential leadership candidates from within association membership. Some seek to achieve diversity among their leadership. Some strive for a better standing in the community. All recognize the benefits of identifying and training leadership-minded volunteers to lead their organizations. I would be so bold as to say our Leadership Academy will not only accomplish these goals but help you recognize your own leadership potential or make you an even more outstanding leader than you already are. It will help you in your community standing, in your practice, and in your volunteer work with the Association. Those who have experience with these leadership programs say it raises the level of practice of members of the bar in the community. It also gets lawyers involved who might not otherwise be involved. The Academy kicks off with a two and a half day leadership weekend, during which, among other activities, participants learn about their personalities by taking a Myers Briggs test, meet and learn about each other, learn from outstanding leaders, and have some fun as well as serious learning experiences. Additional topics covered during the program include the Legislature and the
Judiciary, Community and Bar Leadership, and a Pro Bono clinic. Many participants of other state programs go on to hold some kind of leadership position in the bar, in local politics, as judges, and as community and state leaders. Identifying and training young lawyers to be leaders infuses new blood, fresh ideas, and new cultural perspectives, which serves to build a stronger legal community. Applications are available now, and are due by October 1, 2010. Twenty participants will be chosen by October 31, 2010. Tuition will cover room, board, and materials. The Association will be reaching out to as diverse a group of participants as possible from all areas of the state. The Leadership Academy is an opportunity for attorneys to learn what it means to be a leader – a citizen lawyer – and to improve your leadership skills. As participants, you become more effective in communication and motivation, leading to greater success in your professional and personal lives, and have the chance to meet and interact with prominent legal and community leaders. You will gain insight into the political process, learn more about professionalism, and be presented opportunities for community and state leadership. You will be reeducated on our cherished values, including: loyalty and commitment to clients, courtesy to opposing counsel, candor with the court, and a devotion to the public good. The importance of pro bono and community service will also be emphasized. My hope is that you will become the kind of leader who influences others with the highest values of the legal profession. Now that’s how to become a superstar. n
The Next Level of Leadership
Who should apply? The Leadership Academy is looking for a diverse class of attorneys who have a proven record of leadership and are interested in taking their leadership to the next level Applications are available now, and are due by October 1, 2010. Twenty participants will be chosen by October 31, 2010. Tuition will cover room, board, and materials. The Association will be reaching out to as diverse a group of participants as possible from all areas of the state.
Tentative Schedule • Opening Retreat: January 13-15, 2011 at Degray State Park • Legislature and the Judiciary: March 8, 2011 in Little Rock • Community and Bar Leadership Retreat: April 8-9, 2011 at Mt. Magazine • Pro Bono and Graduation: June 9, 2011 at the Arkansas Bar Association Annual Meeting in Hot Springs
Inspirational Speakers Leadership Building Compelling Opportunities
Define your Leadership Style Identify Strengths & Overcome Weaknesses
Take it to the
l e v e L t x Ne in Leadership
For more information go to www.arkbar.com/pages/leadership academy.aspx or email email@example.com Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Association Governance Report House of Delegates Wraps Up the 112th Annual Meeting Record Annual Meeting Attendance and Record Membership Numbers The Association’s House of Delegates met June 12, 2010, in Hot Springs with 2009-10 President Donna C. Pettus presiding. This was the final event of the 2010 Annual Meeting which had record attendance of 1,500 attorneys. President Pettus thanked Gwendolyn Rucker for her outstanding work as Chair of the Annual Meeting and Rosalind Mouser as Chair of the Underwriting Committee. Vicki Vasser, on behalf of Membership Development Committee Chair Brian Rosenthal, reported that membership exceeded 5,300 for the first time in Association history. Pam and Sam Gibson, Co-Chairs of the IT Infrastructure Committee, presented an update on the Association’s new website that became available for member use on June 5, 2010. President Pettus reported on another great experience at ABA Day sponsored by the American Bar Association in Washington, D.C. Jim Julian, Rosalind Mouser, and Pettus attended the event that allowed them to visit with Arkansas representatives in Washington. Lobbyist Jack McNulty updated the delegates on the outlook for the 2011 legislative session. Cliff McKinney, on behalf of Jurisprudence and Law Reform Committee Chair Dennis Zolper, presented the Association’s proposed 2011 Legislative Package. The House approved the five bills in the package which were: Uniform Principal and Income, Uniform Adult Guardianship, Revised Uniform Unincorporated Nonprofit Association Act, Revised Uniform Arbitration Act, and Revised Scire Facias (bill form) 03. The Package is available for viewing and comments at www.arkbar.com/pages/ ProposedLeg.aspx. Jim Julian provided a report on the Ark Bar PAC, which is working diligently to be more visible and to let members know how important PAC contributions are to the legislative process. President Pettus reported 38
The Arkansas Lawyer
on the success of the 2010 Mock Trial Competition and encouraged members to participate in the coming years. Parkview High School competed in the national competition in Philadelphia, Pennsylvania, May 5-9, 2010. President Pettus announced that the Leadership Academy is on track to begin accepting applications this fall. The Academy’s mission is to create a diverse network of lawyers with the knowledge, skills and values to provide dynamic leadership to the profession, their communities and the state. The intensive five-month program kicks off in January 2011 with a leadership weekend and culminates with graduation at the 2011 Annual Meeting. More information on the Academy can be found on page 36 of this magazine and at www.arkbar. com/pages/leadershipacademy.aspx. The Delegates re-elected Tom Curry of Arkadelphia as the Association’s Secretary and William Martin as the Treasurer for 2010-2011. Charles D. Roscopf of Helena will again assume the office of Parliamentarian in 2010-2011. 2009-2010 Board of Governors Chair Frank Sewall presented the Charles Carpenter Award to Charles Harwell for his work as a member of the Finance Committee and as Chair of the Sustaining Member Committee. Delegates heard reports from 2009-2010 YLS Chair Anthony Juneau, ABA Delegates Carolyn Witherspoon and H.T. Moore, and Frank Sewall on behalf of Arkansas Bar Foundation President David Vandergriff. The following members were elected to serve on the Legislation Committee: Jay Scurlock, Aaron Squires and Kristen Pawlik. The following members were elected to serve on the House Advisory Committee: James McMennis, Keith Chrestman, Jay Shue, Elizabeth Smith, Marshall Prettyman, and Debby Thetford Nye. The following departing delegates were recognized for their service to the House of Delegates: Mitch Berry, Michelle Cauley,
“membership exceeded 5,300 for the first time in Association history” “the 2010 Annual Meeting had record attendance of 1,500 attorneys”
Earl Buddy Chadick, Robert Estes, Jr., David Glover, Jacob Hargraves, KaTina Hodge, Patrick McDaniel, Jerry Patterson, Matthew Shepherd, Jay Shue, Stephen Smith, Elizabeth Thomas Smith, Vicki Vasser, Jeff Wood and Marshall Wright. The following departing Governors were recognized for their service to the Board of Governors: Chair Frank Sewall, Immediate Past President Rosalind Mouser, YLS Chair Anthony Juneau, Arkansas Bar Foundation President David Vandergiff, Governors Causley Edwards, Charles Harwell, Roy Beth Kelley, and Tom Womack. Gwendolyn Rucker was appointed to fill Sean Keith’s at large position on the Board of Governors for one year as he takes the helm as Board of Governor’s Chair. President Pettus presented 2010-2011 President Jim Julian with the President’s pin and gavel and said the Association will be in good hands under the leadership of President Julian. Mr. Julian introduced Sean Keith as Chair of the Board of Governors and Tom Womack as President-Elect. The next meeting of the House of Delegates will be held at the Mid Year Meeting at the Peabody Hotel in Memphis, Tennessee, on Saturday, January 29, 2011. n
CONNER & WINTERS, LLP CONGRATULATES OUR PARTNER,
BOBBY JONES, ON BEING NAMED OUTSTANDING LAWYER IN ARKANSAS FOR 2010 BY THE ARKANSAS BAR ASSOCIATION & ARKANSAS BAR FOUNDATION.
Robert L. “Bobby” Jones, III has been an advocate for his clients in court for more than 40 years. He has tried over 300 jury trials and represented companies and individuals in administrative hearings. He has represented many Fortune 500 companies in complex litigation in the areas of: transportation, catastrophic injuries, wrongful death, breach of contract, insurance, malpractice, aircraft and employment. He has handled cases in Arkansas, Oklahoma, Texas, Louisiana, Mississippi, Florida and Arizona. Bobby Jones has been named as one of the Best Lawyers in America in three different categories – Bet the Company Litigation, Commercial Litigation and Personal Injury Litigation. He has been named a Mid-South Super Lawyer every year since 2004. Bobby Jones is Past President of the Sebastian County Bar Association, the Arkansas Bar Foundation, the Arkansas Bar Association and the Arkansas Association of Defense Counsel. He is a Fellow in the American College of Trial Lawyers. He is a Fellow and was recently named to the Board of Directors of the International Academy of Trial Lawyers. He has also been active in his community including the United Way, the Episcopal Church and is currently a member of the Northwest Arkansas Business Council and the Nature Conservancy.
Conner & Winters, LLP | 211 East Dickson Street | Fayetteville, Arkansas | 479.582.5711 | cwlaw.com Dallas | Houston | NW Arkansas | Oklahoma City | Santa Fe | Tulsa | Washington, D.C.
Celebrating 50 Years Philip S. Anderson
Ike Allen Laws, Jr.
Sidney P. Davis, Jr.
Charles E. Plunkett
Gary L. Eubanks
Elton A. Rieves, III Donald S. Ryan
William D. Glover
Don Allen Smith
Allan W. Horne 50 Golden Years
Lohnes T. Tiner
Congratulations to members of the Arkansas Bar Association celebrating their 50th year of practice. The members were honored with a luncheon at the Association’s Annual Meeting on June 11, 2010.
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Attorney Disciplinary Actions Final actions from April 1, 2010, through June 30, 2010, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [The “Model” Rules of Professional Conduct are prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] DISBARRED: TIMOTHY MARK HALL, Bar No. 96043, of Huntsville, was disbarred in the State of Arkansas by Supreme Court Per Curiam issued May 27, 2010, in Case No. 09-261, based on his conduct in Committee cases CPC No. 2008-070 (Pianalto case) and CPC No. 2008-071 (Judge Crow-Holder case). Mr. Hall failed to respond to the Petition for Disbarment, failed to appear at his hearing, and failed to file a brief or appeal from the findings and recommendation of disbarment by the special master for the Court. The summary of the cases and conduct before the Committee and later the Court is contained in Volume 44, No. 2. F. SCOTT STRAUB, Bar No. 98019, of Jonesboro, was disbarred in the State of Arkansas by Supreme Court Per Curiam issued June 17, 2010, in Case No. 09-404. In early 2009, Mr. Straub was permanently disbarred in the State of Louisiana. Pursuant to Section 14.A. of the Arkansas Procedures,
in April 2009, in CPC No. 2009-039, Panel B of the Committee voted to request the Arkansas Supreme Court enter an Order reciprocally disbarring Mr. Straub in Arkansas. After the Arkansas Petition to Reciprocally Disbar was filed, Mr. Straub filed a motion for stay pending his appeal of his Louisiana disbarment, stating he was making all possible efforts to pursue an appeal in Louisiana. After a year, when Mr. Straub filed nothing further in Louisiana, the Arkansas Committee filed a Motion to Lift the Stay. On June 21, 2010, after Mr. Straub did not respond to the Motion, the Arkansas Supreme Court granted the Motion, lifted the stay, and disbarred Mr. Straub in Arkansas. SUSPENSION: ANN C. DONOVAN, Bar No. 78043, of Fayetteville, had her Arkansas law license suspended on June 23, 2010, for six (6) months by Consent Findings and Order filed in CPC 2008-083, for violations of
Rules 1.3, 1.4(a)(3), 1.15(a)(2), and 1.15(a) (3), on a complaint by Marilyn Pearson, who hired Ms. Donovan to represent her in a civil matter involving her home mortgage. Ms. Donovan was able to stop the sale of Ms. Pearson’s home. However, her conduct after the Agreed Order was entered in the civil matter was not diligent or prompt. Ms. Donovan failed to properly communicate with Ms. Pearson even though the representation continued until all aspects of the Agreed Order were complied with by Ms. Pearson and Donovan. Ms. Donovan did not diligently represent Ms. Pearson in the conclusion of the matter involving her home; when she did not comply with the Order of April 24, 2008, in a timely manner; when she did not advise Ms. Pearson in a timely manner that Donovan had lost the money orders which Ms. Pearson had entrusted to Ms. Donovan as payments on the home, so that Ms. Pearson could take steps to secure replacement checks in time for compliance with the Order of April 2008; when she did not provide Ms. Pearson
Schedule the Time to Relax and Play... It Could Make You a Better Lawyer Lawyers tell us they struggle to maintain balance between their personal and professional lives. Demanding schedules, deadlines, preparation for trial, and the relentless interruption of phones and e-mail can become overwhelming, leaving little time and energy for friends, family, and the leisure parts of life. Since 2001, Arkansas Judges and Lawyers Assistance Program has been helping legal professionals with confidential support guaranteed by Supreme Court Rules. Whether you need assistance in scheduling your life or whether you face more serious mental health or chemical dependency issues, we can help you take the first step in turning a problem into an opportunity for positive change. Create the time for relaxation and play. The improvement in your work life may surprise you.
Personal Solutions for Positive Change Arkansas JLAP 501-907-2529 firstname.lastname@example.org www.arjlap.org 40
The Arkansas Lawyer
Attorney Disciplinary Actions with a copy of the Order of April 24, 2008, until during June 2008; and when she failed to timely deliver to HomEq Service’s counsel the funds delivered to her by the Clerk of the Court on April 24, 2008. Ms. Donovan failed to provide Ms. Pearson with a copy of the filed Consent Order immediately upon entry of the same and she failed to inform Ms. Pearson that she had lost money orders entrusted to her by Ms. Pearson, until Ms. Pearson learned that the Order of April 24, 2008, had not been timely complied with by Ms. Donovan. The Order was entered in April 2008 and Ms. Donovan did not deliver the funds until July 2008, long after the deadline for doing so. FRANK DAVID REES, Bar No. 79238, of Jonesboro, on June 28, 2010, had his law license suspended for one year, with credit for one month already served, by the Supreme Court of Arkansas, in an Opinion issued May 13, 2010, in No. 09-556, on an appeal by the Executive Director from the Committee’s action in February 2009 in CPC No. 2007-021 (Teahna MooneyEmerson George case), where he was assessed a one month suspension. The summary of the case and conduct before the Committee and later the Court is contained in Volume 44, No. 2. MALCOLM A. SIMMONS, Bar No. 91243, of Little Rock, had his law license suspended on March 2, 2008, for six (6) months by Committee Consent Findings & Order filed April 26, 2010, in CPC No. 2008-096, on a complaint by District Court Judge Randall Morley of North Little Rock, for violations of Rules 3.4(c), 5.5(a), and 8.4(c), for Simmons’ failure to pay his 2008 attorney license fee and for failure to comply with CLE requirements, which led to his law license being administratively suspended. Mr. Simmons had not cured these two deficiencies as of May 28, 2008, when he appeared in North Little Rock District Court as attorney for Donnie McCuien. Judge Morley inquired of Mr. Simmons whether his license to practice law was suspended. Mr. Simmons stated that his license had been suspended but was reinstated, which was not true.
Committee, had his law licensed reinstated to good standing effective May 12, 2010, after his three month suspension in CPC 2008-049, affirmed February 5, 2010, in No. 09-710 (2010 Ark. 24). See Volume 45, No. 2 for a summary of the Committee case and conduct that led to the suspension.
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CINDY M. BAKER, Bar No. 2000022, of Berryville, was reprimanded and fined $1,000 in CPC No. 2009-110 by Committee Findings & Order filed April 27, 2010, in a complaint involving her appeal in No. CR 09-249, Donald Thompson v. State, for violations of Rules 1.3, 1.4(a)(4), 3.3(a) (1), 3.4(c), and 8.4(d). Baker filed the notice of appeal fourteen days late, stating her client was in lock-down at the county jail and was not allowed to contact anyone, including his attorney. Upon release from lock-down, Mr. Thompson notified Ms. Baker of his wish to appeal. The Supreme Court remanded the matter to the trial court for an evidentiary hearing. The trial court found that statements in Ms. Baker’s were untrue and that Mr. Thompson had directed his mother to inform Ms. Baker of his desire to appeal. The Supreme Court granted the Motion for Belated Appeal and referred the matter to the Office of Professional Conduct. CINDY M. BAKER, Bar No. 2000022, of Berryville, was reprimanded in CPC No. 2010-001 by Committee Findings & Order filed June 15, 2010, in a referral from the Supreme Court involving her appeal in No. CR 09-249, Donald Thompson v. State, for violations of Rules 1.3, 3.4(c), and 8.4(d). On June 4, 2009, a briefing schedule was issued requiring a brief to be filed on her client’s behalf by July 14, 2009. Ms. Baker obtained an extension to September 9, 2009. No brief was filed. The State filed a Motion to Dismiss; no response was filed by Ms. Baker; and Supreme Court granted the Motion to Dismiss. Ms. Baker responded to the Complaint that her client asked her not to proceed as he had been released from prison by the time the brief was due and he ran the risk of serving more time in prison if successful on appeal. No affidavit from the client was provided.
REINSTATED: N. DONALD JENKINS, JR., Bar No. 94231 of Van Buren, upon petition to the
CLARENCE W. CASH, Bar No. 73017, of North Little Rock, was reprimanded by Consent Findings and Order filed in June 22,
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2010, in CPC No. 2009-144, for violation of Rules 1.3 and 8.4(d), on a complaint filed by his client Allen Sealy. Sealy hired Cash to file a bankruptcy proceeding to avoid a scheduled foreclosure sale on Sealy’s home. Mr. Sealy completed credit counseling, provided Mr. Cash proof, and completed all the paperwork for the bankruptcy to be filed. Mr. Cash did not file the bankruptcy and Mr. Sealy’s home was sold at foreclosure sale. Mr. Cash admitted fault in not timely filing the bankruptcy to stop the sale. Mr. Cash attempted to have the loan reinstated but the bank refused his application to do so. DONALD COLSON, Bar No. 2005166, of Benton, was Reprimanded, ordered to pay $1,050 restitution, and fined $300 by Committee Consent Findings and Order filed May 27, 2010, in CPC No. 2010025, on a complaint by Lauri Williams, for violations of Rules 1.3, 1.4(a)(3), 1.4(a) (4), 1.5(c), 1.16(d), 8.1(b), and 8.4(c). Williams hired Mr. Colson in June 2009 to pursue a federal lawsuit on her behalf in an EEOC matter, and she paid him funds that included costs expected in the matter.
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
Attorney Disciplinary Actions Mr. Colson quit communicating with Ms. Williams, failed to respond to messages, did not provide status reports to her, and failed to file her lawsuit. Colson failed to return Ms. Williams’ file to her and then failed to provide a refund of unearned costs and fees to her upon request after she terminated his representation. Mr. Colson was written by the Office of Professional Conduct on two separate occasions but failed to respond. JANIE M. EVINS, Bar No. 92068, of Hot Springs, was reprimanded, ordered to pay $140 restitution, and fined $500 by Committee Findings & Order filed June 24, 2010, in CPC No. 2010-023, on a complaint by Tina Fisher, for violation of Rules 1.15(a)(1), 1.15(a)(2), 8.1(a) and 8.4(c). For failing to file a timely response to the disciplinary complaint, Ms. Evins had a separate reprimand sanction imposed. Ms. Fisher hired Evins in a divorce action, paid Ms. Evins, and then decided to not pursue the matter, so the costs advanced were never expended. Ms. Evins explained all the contact with and services performed even though Ms. Fisher never actually pursued the divorce. During the course of the investigation, issues were raised concerning Ms. Evins’ trust account. Ms. Evins provided false information about the trust account and about her failure to maintain the costs in the trust account after receipt from the client. The funds were never placed in the trust account nor did the account balance stay above what was required if the funds had been so deposited. GREGORY FERGUSON, Bar No. 80043, of Little Rock, was reprimanded by Committee Findings & Order filed June 24, 2010, in CPC No. 2009-129, for violations of Rules 1.1, 1.2(a). 1.3, 1.5(c). 1.16(d), and 8.4(d), on a complaint by Don and Elizabeth Dickey, who were injured in an automobile accident. Ferguson, a neighbor of the Dickeys, offered to represent them on a 25% contingency fee. Ferguson failed to properly and timely serve the defendant in the lawsuit he filed, and the Dickeys lost their opportunity to seek damages. Ferguson failed to return the Dickeys’ file to them upon request after his representation was concluded. RICKEY H. HICKS, Bar No. 89235, of Little Rock, was reprimanded and fined $500 in CPC No. 2009-137, by Committee 42
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Findings & order filed March 31, 2010, on a referral form the Supreme Court in No. CR 09-1182, Clemons v. State, for violation of Rule 1.3 of the Arkansas Rules of Professional Conduct. Mr. Hicks filed the record on appeal one day past the date set in the Order Extending Time to File the Record on Appeal. He filed a Motion for Rule on the Clerk, and admitted fault; the Supreme Court granted the Motion letting the appeal continue, and referred Hicks to the Committee. JEFFREY KEARNEY, No. 91249, of Pine Bluff, was reprimanded and fined $1,000 by Committee Findings & Order filed April 30, 2010, in CPC No. 2010-006, on a complaint by Michael Myhand and Mary Ann Keller for violations of Rules 1.1, 1.4(a) (3), 3.4(c), 3.4(d), and 8.4(d). For failing to respond to the Complaint, Kearney was sanctioned with a separate reprimand. The Kearney Firm was employed in December 2006 and filed a Motion to Set Aside Order Admitting Will to Probate and Appointment of Personal Representative. The motion to contest the will was not verified as required by Ark. Code Ann. §28-1-109. The attorney for the executor of the Will filed an Answer and a Motion for Rule 11 Sanctions. At a hearing in April 2007, Kearney, citing the
need for more time for discovery, requested a continuance, to which opposing counsel objected, arguing the personal representative was ready to proceed with the hearing and that Kearney had ample time for discovery starting in January when Kearney first filed his Motion. The court denied the continuance and required Kearney to go forward with the hearing. Kearney then dismissed the Motion, requesting that it be without prejudice, telling the Court that they planned to refile their motion for hearing. The Court granted the motion to dismiss the matter, but did not make a ruling as to whether it was dismissed with or without prejudice. On May 1, 2007, Kearney filed an Amended Verified Motion to Set Aside Order Admitting Will to Probate and Appointment of Personal Representative. On July 31, 2007, opposing counsel submitted Interrogatories and Requests for Production of Documents to Kearney’s client by mailing them to Kearney. The clients were never told of the discovery requests and did not respond. Opposing counsel filed a Motion to Compel, which the Court granted. Kearney never notified his clients of the discovery request, motion, or order compelling response to the discovery request. In September 2007, the Court ruled, agreeing with opposing counsel
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No. 2009-139, on a complaint by Myron Anderson, Jr. for violation of Rules 1.1, 3.4(c) and 8.4(d). Mr. Barton filed a criminal appeal for Anderson, No. CACR 08-458. His brief contained a three page argument, CAUTION: cited no authority for his arguments, and his arguments were determined by the MARK E. BARTON, Bar No. 96248, of Court of Appeals to be frivolous. He was not 10608 ADR Winter Ad:Layout 1 6/24/10 10:34 AM Page 1 El Dorado, was cautioned by Committee thorough enough in his representation of Mr. Findings & Order filed May 6, 2010, in CPC Anderson to include more than one sentence
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in his argument concerning the sufficiency of the evidence. Mr. Barton failed to cite authority or advance any argument for his untenable assertion that mere inconsistency in the testimony of different witnesses is in and of itself so destructive of the jury’s ability to discern the truth that it somehow renders otherwise-sufficient evidence insufficient to support a criminal conviction. Barton failed to set out in his brief what testimony he was referring to or which elements of the offenses were lacking sufficient proof to support Anderson’s conviction. Mr. Barton failed to preserve for appeal the issues relating to a specific deficiency such as insufficient proof on the elements of the offense. Barton failed to comply with Arkansas Rule of Criminal Procedure 33.1(c) when he failed to make an adequate directed verdict motion by failing to present a specific deficiency such as insufficient proof on the elements of the offense. JAMES P. CLOUETTE, Bar No. 74025, of Little Rock,was cautioned after a public hearing before Panel B on June 18, 2010, by Findings & Order filed June 24, 2010, in CPC No. 2010-002, for violation of Rule 8.4(b) (committing a criminal act), on a complaint generated from information in the state newspaper about his criminal case in Pulaski County Circuit Court. Clouette is a veteran Arkansas criminal defense attorney. In March 2009, he was charged by Information with the Class C Felony offense of possession of a controlled substance, methamphetamine, that occurred on or about August 1, 2008, in a public bank lobby in Little Rock during business hours. At a bench trial on November 23, 2009, Mr. Clouette was found guilty of the felony charge, judgment was deferred under Ark. Code Ann. § 5-64-413, and he was placed on probation for two years, as shown by the Order of Probation filed January 5, 2010. Any felony is defined as a “serious crime” by the Court’s Procedures, Section 2.J. Mr. Clouette responded that he maintained his innocence throughout his criminal case; that no judgment of conviction has been entered against him; that if he successfully completes his two year probation period no judgment of conviction will be entered against him; that a finding of guilt against him should not be used by the Committee; that his alleged criminal act was not an offense involving violence, dishonesty, breach of trust, or serious interference with the
Attorney Disciplinary Actions administration of justice; that the Arkansas Supreme Court has recognized the problem in the legal community by establishing its Arkansas Lawyer Assistance Program (now JLAP) to assist lawyers with certain problems by their referral to that program, instead of the Committee taking action against them; and that possession of drugs is not alone prejudicial to the administration of justice. At the hearing Mr. Clouette testified that he had an alcohol problem for many years and had used controlled substances for recreational purposes for several years before the incident in August 2008. He testified that he had no specific recollection of having possessed the methamphetamine found in the bank lobby on August 1, 2008. He stated after he became aware of the arrest warrant being issued for him in October 2008, he had enrolled in ARLAP (now JLAP), was meeting his contract requirements there, had been subjected to periodic random drug testing since May 2009 in circuit court, and had been “clean” or negative at every test. Little Rock attorney Bill Luppen testified for Mr. Clouette that he had known Clouette for many years, saw Clouette several times a
week in criminal court, and that he had never seen Clouette impaired or in a condition where Luppen thought Clouette’s ability or performance as a lawyer was an issue. Pulaski Circuit Court, Fourth Division, Bailiff Clyde Steelman testified for Mr. Clouette that he had administered the drug tests to Clouette at the Pulaski County Courthouse on an almost weekly basis since May 2009, that all tests had been negative for controlled
substances, and that the testing continued. [The Executive Director has filed notice of appeal to the Supreme Court in this case.] JEAN M. MADDEN, Bar No. 84096, of Little Rock, was cautioned by Committee Consent Findings & Order filed April 16, 2010, in CPC No. 2009-114, on a referral from U.S. Bankruptcy Chief Judge Audrey Evans, for violations of Rules 1.4(a)
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
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Attorney Disciplinary Actions (2) and 1.4(a)(3) in No. 02-bk-23841, a Chapter 13 case for Ethel West. Ms. West had two main creditors, a car loan and a home mortgage. The mortgage was to remain outside the bankruptcy plan. During the life of the bankruptcy case, payment plans were modified or amended on several occasions. Eventually, the mortgage was brought into the plan. During discussions of the modification or amendment of the payment plans, the mortgage company provided information that there was an arrearage. Ms. West continued to make payment into the plans according to the Orders. In 2007, Ms. West’s bankruptcy case was coming to a close and the Trustee sent a notice to creditors requesting status information. The mortgage company provided information showing that Ms. West was in arrears in the amount of $4,925.51, with pre-petition arrearage of $1,183.31, attorney’s fees from a plan modification, and post-petition arrearage of $3,894.26. The mortgage company filed a notice of amended claim raising its claim from $1,683.31 to $5,577.57. No objection was received from Ms. West’s attorney. Ms. West filed a letter with the court raising objections and complaints about her lawyer. The court conducted a hearing, at which Ms. West appeared and an attorney from Ms. Madden’s firm, who Ms. West had never met, appeared. The court allowed the parties to discuss the matter and a settlement was then reached. The court inquired about the allegations Ms. West raised in her letter to the court. Ms. West then testified about her experience with the Madden Law Firm. Ms. West stated that she had not missed a bankruptcy payment yet she was somehow in arrears. She stated that she called Madden Law Firm but could not speak to an attorney to explain the matter to her. Only during the break in the hearing was it explained to her how she owed the $5,577.57. Ms. West stated that she paid Madden Law Firm $2,500 for a service she believed she did not receive. The court then directed Ms. Madden to appear at a “show cause” hearing in January 2008. At the hearing, Ms. Madden testified about what occurred in Ms. West’s bankruptcy case and that she was not aware of any complaints by Ms. West. Ms. Madden explained that she did not appear at the previous hearing because she believed the matter had been settled. The court entered an Order Disgorging Fees on November 10, 2008, and referred the matter to the Committee. In the Order, the court found that Ms. Madden had failed to do several things,
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pursuing the matter. Ms. Skarda failed to place the funds in her IOLTA trust account. Skarda did not diligently represent Rogers. She failed to keep Rogers informed of the status of any actions she took on her behalf. Ms. Skarda’s own billing statement demonstrates that no services were provided for weeks at a time. Skarda admitted she told her client that she would bill at an hourly rate, but that she considered the retainer as having been earned immediately. Skarda did make a $630 refund, for which she will receive credit against the restitution ordered. n
CECILY P. SKARDA, Bar No. 98114, of North Little Rock, was cautioned and ordered to pay $2,500 restitution, by Committee Findings & Order filed June 24, 2010, in CPC No. 2010-007, on a complaint by Dena Rogers, for violations of Rules 1.3, 1.4(a)(3), 1.15(a)(1), 1.15(b)(2) and 8.4(d). Ms. Rogers hired Ms. Skarda to represent her in a postdecree matter involving her ex-husband. Ms. Rogers paid Ms. Skarda $2,500 as a retainer for fees to be earned and costs associated with
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Vol. 42 No. 3/Summer 2007 The Arkansas Lawyer
Appeals continued from page 13
you craft your brief and present it very specifically to the appellate court. If oral argument is granted, tell the court early and clearly what you want it to do, and why it can do it. End there too. Think broadly. If more than one issue is raised on appeal, you may win on one and lose another. If this happens, are the available remedies different? Have you thought how to tell the court in a meaningful way what it should do if it rejects Proposition A but accepts B? It is almost always a straight forward course. And that is my entire point; simply think about the remedy you want and ask expressly for it — in your brief without exception. Why the categorical rule? Because oral argument is discretionary with the appellate courts in Arkansas. It is not frequently granted relative to the number of cases our appellate courts decide each term. Many Arkansas lawyers think that oral argument is being granted in fewer appeals (as a general rule) than in the past. True or not, do not count on explaining or clarifying your remedy request during an oral argument because you may never get the chance to do so. 10. Appreciate the objective of oral argument and know your objectives. Different lawyers have various opinions on what an oral argument should seek to accomplish. The same is true for sitting judges and justices. The debate exists because the objectives to be accomplished during oral argument vary from case to case. I do not think, for example, that the main goal of an oral argument is always to “make yourself available to answer the court’s questions,” though it is of course always a very good reason and ranks at or near the top of most lawyers’ and judges’ lists. The point here is to remind you that the best trial lawyers have goals in mind when they depose or examine witnesses, for example. Likewise, the best appellate advocates have goals about what they want to accomplish during oral argument. So set communication goals, whatever they may be in a particular appeal, then work to communicate what you must to the court in a way calculated to achieve the goal. 11. But avoid detailed discussion of precedents during oral argument. In my experience with oral arguments, one thing has yet to happen. I have yet to
hear an academically nuanced discussion of precedents. Let me be clear: I have discussed case law and statutes during oral arguments, and so have other appellate attorneys I have watched. Inevitably, however, the main interest was the essence of a precedent, competing policies, whether a common thread that permeated a line of precedent should be continued or cut off. I am not saying that you
should not be prepared to discuss authority in detail. You should. But oral argument is rarely concentrated on a detailed discussion of cases, statutes, or regulations. There is a reason for this. Oral arguments are typically short. Twenty minutes total per side is the typical time period in Arkansas’s appellate courts. In the Eighth Circuit, a twenty-minute allotment to each side is
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fairly generous. Less is common. We also know from our daily experiences in the office that discussing even one or two cases in detail can eat up twenty minutes or more. Appellate judges (and their law clerks) will analyze the legal minutiae as they think prudent. It should not be your main objective at oral argument. Again, I do not want to mislead you. Discussing precedent is vital many times, but concentrate on distilling and presenting it in a form that the human ear and brain can receive and process quickly. The moment you start giving many details, you will likely lose the court’s attention. On the other hand, if you state the essence of the law and why it favors your argument — or why it should be limited or abandoned in simple, succinct terms — then you will engage the court in a way that invites a fruitful backand-forth. This is good. The rest will happen behind closed doors. And it is behind the closed doors that your brief will carry on after the microphones are turned off. 12. Yield Indefensible Terrain — Ostentatiously. I cannot make this point clearer or more memorable. Here is Justice Scalia and Mr. Garner’s admonition on how to handle weak arguments, which appears in their book Making Your Case: The Art of Persuading Judges, Bear in mind that a weak argument does more than merely dilute your brief. It speaks poorly of your judgment and thus reduces confidence in your other points. As the saying goes, it is like the 13th stroke of a clock: not only wrong in itself, but casting doubt on all that preceded it.6 You should never make an indefensible point in the first place — it is an act that can usually be avoided by thinking before you begin to earnestly write an appellate brief, draft a motion to a court, or make an oral argument. Yet it is true that you cannot always anticipate what may arise in the appeal process. But you should jettison all bad points without hesitation if they creep into a brief, motion, or oral argument. 13. Follow the appellate rules governing abstract and addendum preparation. Our courts almost weekly order one or more parties to rebrief an appeal because they did not follow the rules of appellate procedure. The Arkansas Court of Appeals and
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the Arkansas Supreme Court frequently order parties to rebrief appeals because a party did not correctly abstract deposition testimony, or testimony recorded during a hearing or trial. Rebriefing will also sometimes be ordered if an appellant does not compile an addendum to the appellate court’s satisfaction. The main offender here is usually an omission, though a plainly over-inclusive addendum will draw an occasional comment. I cannot say exactly how you will know when you have done enough on these points. Judgment and prior experience are key. Do not forget, however, that Rules 4-2(a)(5)(A-B) and 4-2(a)(8)(A) of the Arkansas Supreme Court and Court of Appeals directly address such issues.7 If you still have a doubt about how to abstract or prepare an addendum after reading the rules and an example or two of how a prior party went awry, then call a lawyer whom you know has handled many appeals and ask for an example. What you must avoid — I repeat must avoid — is preparing the abstract in a way that leaves you open to an observation that the Arkansas Court of Appeals made recently: “the selectivity shown in abstracting the few bits of favorable material from that testimony strongly suggests that the omission was not accidental.” Never give the court a
one-sided abstract. As an officer of the courts you are duty bound to present the facts evenhandedly. Always. You have the opportunity to argue their effect elsewhere. In addition to calling on a colleague of the bar when applying those requirements, you can consult Handling Appeals in Arkansas, Chapter 10. The Arkansas Supreme Court also has a “model brief ” posted on its official website; the brief is available at http://courts. arkansas.gov. And it was recently revised to reflect rule changes. The model brief cannot answer every question about appeal briefs and rule implementation that you might have, but it will help you. 14. Start Applying Administrative Order No. 19. Now is not the time to discuss in detail the changes that Administrative Order No. 19 spawned in the rules of civil and appellate procedure in Arkansas. Simply put, however, attorneys are now responsible for handling certain confidential information in specific ways in the trial and appellate courts. Here, I ask you to (re)read, for starters, two per curiam opinions that the Arkansas Supreme Court has issued — one is dated October 23, 2008, the other December 11, 2008. You can print them from the Arkansas judiciary’s of-
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
ficial website. The changes to Administrative Order No. 19 were effective January 1, 2009. 15. Write and speak in plain English. I have just kicked a bee hive. Call me careless or brave but it needed to be done. The reasons for dissolving the tether to the “old way” of writing legal papers are many. Some highly skilled writers can tell you how and why you should accomplish this task. I invite you to call me, or read the Bibliography to Handling Appeals in Arkansas, for more information on what materials you can read to become a better writer and thus a more effective advocate. We all can and should improve how well we communicate facts and legal arguments to the courts. Some parting thoughts, and a homework assignment! Never stop learning how to become a better appellate advocate. This State’s laws and policies are often wrought and changed through the appeal process. Our laws are made clearer and more consistent when prepared advocates handle appeals. This 15-point discussion is a good start to ensuring that we improve appellate advocacy in Arkansas. But it is only a start. You may press on immediately
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by applying the good advice and warnings that many trial and appellate judges and justices have provided to the Arkansas Bar through recent survey results that Mr. Rodney Moore has gathered. A synopsis of those results appears in this issue of The Arkansas Lawyer. Now, the assignment: check out Mr. Moore’s 10 vital tips and pass them on. Endnotes: 1. The first twelve headings are taken verbatim from Antonin Scalia & Bryan Garner’s Making Your Case: The Art of Persuading Judges (Thompson/West 2008), a great book because it succinctly presents 115 points on brief writing and oral argument. 2. See Ark. Sup. Ct. R. 4-2(7) (2010). 3. Robert B. Moberly & Laura E. Levine, The New Arkansas Appellate-Mediation Program, 61 Ark. L. Rev. 429 (2009). The United States Court of Appeals for the Eighth Circuit’s official website maintains an Internal Operating Procedures manual. There you can find information about settlementrelated procedures for the Eighth Circuit. The manual can be found at http://www.ca8. uscourts.gov/newrules/coa/IOP.pdf. 4. The Eighth Circuit’s Internal Operating Procedures manual, at pages 16-17, states the
following about the number of issues a party should raise on appeal: “The writer should identify the key issues and concentrate on them. Except in unusually complicated cases, a brief addressing more than four or five issues is often diffuse and gives the reader the impression that no single issue is very important.” 5. Steven Pressfield, The War of Art 81 (Warner Books ed. 2002). 6. Scalia & Garner, Making Your Case, at 21-22. 7. Ark. Sup. Ct. R. 4-2(a)(5)(A-B) and 4-2(a)(8)(A) (2010). For a brief overview of some common appellate-advocacy problems that occur in our courts from a former law clerk’s view, see Stella J. Phillips, Putting it all Together: Law Schools’ Role in Improving Appellate Practice, 31 U. Ark. Little Rock L. Rev. 135 (Fall 2008). n
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Fastcase continued from page 18
There’s an app for that: Fastcase already offered a free iPhone app, and just recently announced that the new iPad edition is available as a free download. Like the iPhone app, Fastcase’s iPad app is the first of its kind for legal research on the go. The app will be available to the general public in the iTunes App Store. The iPad app has more features than the iPhone app, because the screen is larger. Among other new features, the iPad includes new results lists on a side panel in the document screen, as well as a new navigation environment for browsing statutes. What else can you do with Fastcase? Basic searching — You can search state and federal cases and statutes using keywords (Boolean searching), natural language, or citation lookup. Statutes are available in outline view as well (like book browse). Search tips are displayed right on the screen, with examples. You can mix and match jurisdictions and use date restrictions.
Printing/downloading — You can print cases as you view them, or click to add them to a print queue for later printing. You can print in 1 or 2 column format, with your search terms highlighted or not. You can save the documents to your computer in Word, PDF, or RTF format (which is useful if you use a word processor other than Microsoft Word, or need to send the documents to someone who doesn’t use Word). You can email them to yourself — or to someone else. You can save them to “my favorites.” Research trail — Fastcase automatically saves your last 10 queries, and displays them front and center on the beginning screen. Clicking on one of them does not take you to your results from that search; it re-runs the search so that you pick up any new cases that have been decided. A feature called “My Library” contains recent documents and favorite documents. Recent documents has links to the last 10 documents you viewed, automatically saved by Fastcase. Favorite documents is a place you can save cases that you visit often for easy retrieval. Viewing results — Fastcase puts you in the driver’s seat when it comes to viewing and analyzing your search results. You can look at just the list of citations, or you can tell it to show the first paragraph of the case, or the most relevant paragraph (this is the default). You can tell Fastcase to sort the results by relevance, court hierarchy, case name, or decision date. You can also tell it to sort the results by using the Authority Check column, sorting it either by the number of times the case was cited in the entire database or the number of times it was cited in these results (and the more likely that case is relevant to your research). Another way to view the results is an Interactive Timeline that makes it easy to visually pick out the best cases. The cases are represented by circles on a graph. The size of the circle corresponds to the number of times the case is cited in the entire case law database; the
Interactive Timeline bigger the circle, the more times it is cited. Cases that have a smaller yellow dot within them are cited within the current set of search results. The larger that yellow dot is, the more times the case is cited in the current search results. Navigation tools — Fastcase makes it easy to navigate through your search results. There are buttons to jump to the next case, previous case, most relevant paragraph, next term, and previous term (there are options here for all terms, or you can choose to highlight just one of the search terms and it will jump to just that term). Cases and statutes cited within cases are hyperlinked, so you can click to go directly to that case or statute. There’s more, of course, and probably things I haven’t even discovered yet. Go try it; see what you think. Take advantage of the free training from Fastcase, training seminars offered by the Arkansas Bar (check www.arkbar.com for dates), and watch for Fastcase tips. It’s your legal research tool — free to you as a member of the Arkansas Bar Association. n Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
In Memoriam James E. Burnett Jr. James E. Burnett Jr. of Clinton, Arkansas, died May 15, 2010, at the age of 62. Mr. Burnett, a lawyer for over 35 years, was a graduate of the University of Arkansas School of Law, and was admitted to the Bar in 1973. He received his undergraduate degree from the University of Arkansas in 1970. He is an alumnus of the Kennedy School of Government at Harvard University. His law practice in Clinton was interrupted by periods of public service, most notably, service as a member and chairman of the National Transportation Safety Board from 1981-1991, according to an obituary in The Arkansas Democrat-Gazette. He was awarded the National Commission Against Drunk Driving Award in 1986 and in 1994, the IREI Air Safety Foundation of Japan dedicated a monument in Mr. Burnettâ€™s honor to recognize his worldwide leadership in aviation safety and accident prevention. In 1996, NASA and the U.S. Space Foundation chose Mr. Burnett for induction into the Space Technology Hall of Fame for his promotion of the fire resistant aircraft seat. Mr. Burnett was elected municipal judge for the city of Clinton and Van Buren County in 1974. He was, at the time, the youngest judge in the state of Arkansas. He also served as juvenile judge for Van Buren County and city judge for Damascus. He was appointed on several occasions to serve as special circuit judge and Special Justice of the Arkansas Supreme Court. He served as city prosecutor for Clinton and as a commissioner and foreman of the grand jury for the Eastern District of Arkansas. After leaving federal government service in 1991, he returned to practice law in his hometown and continued his practice until his recent retirement. Mr. Burnett was a Sustaining Member of the Arkansas Bar Association and served on the Board of Governors. He also served on the Uniform Laws and Attorney/Client Privilege Committees. He was a member of the American Bar Association and an Associate member of the Lawyer Pilotâ€™s Bar Association. He is survived by his mother, Hazel Baker Burnett, and his sister, Jo-Beth Shaw. n
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Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period April 1, 2010 through June 30, 2010: In Memory of Jacqueline Johnston Cravens Designated to the Sebastian County Bar Association Scholarship Ben Barry In Memory of Louise Cremeen Designated to the Ernest G. Lawrence, Jr. Scholarship Fund Judge James G. Mixon In Memory of Mrs. Annis Adell Appleby Fogleman Judge William R. Wilson, Jr. and Cathi Compton
In Memory of Gene Raff Judge William R. Wilson, Jr. and Cathi Compton In Memory of Walter Garrett Riddick, Jr. Designated to the Ernest G. Lawrence, Jr. Scholarship Fund Judge James G. Mixon In Memory of Kent Rubens Patrick D. Wilson In Memory of Russell L. “Jack” Roberts B. Jeffery Pence
In Memory of Jo Carol Gill W. Christopher Barrier Lax, Vaughan, Fortson, Jones & Rowe, P.A. In Memory of Judith Ryan Gray Designated to the Judith Ryan Gray Annual Meeting Endowment Patrick D. Wilson
Wright, Lindsey & Jennings LLP Scholarship Fund
In Memory of Joseph K. “Jodie” Mahony II Senator Tim and Randi Hutchinson
The Arkansas Bar Foundation is grateful to the firm of Wright, Lindsey & Jennings LLP for the recent establishment of a newly endowed scholarship fund with the Foundation.
Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s work in making scholarship funds available for law students, aiding in education of the public about legal matters, supporting projects that assist in improving and facilitating the administration of justice and funding other law-related charitable efforts. Contributions may be sent directly to the Arkansas Bar Foundation at 2224 Cottondale Lane, Little Rock, Arkansas 72202. The staff appreciates having the name of the family member to whom acknowledgments should be sent. Please feel free to call the Arkansas Bar Foundation at 501.375.4606 or 800.609.5668 for further information.
Vol. 45 No. 3/Summer 2010 The Arkansas Lawyer
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