Bringing Together The Best Of Both Worlds
THE WRITTEN LAW A LEGAL RESEARCH EXPERT Little Rock. AR 72201
523 West Third (501) 375-6117
Appellant Briefs _ Trial Briefs. Computer Searches. Abstracts. State and Federal Cases
July 1987 Vol. 21. No.3 OFFICERS Richard F. Hatfield. President John F. Stroud. Jr.. President-Elect Sandra Wilson Cherry. Sec.-Treasurer
Randall W. Ishmael. Council Chair
82 The President's Report
Wm. A. Martin. Executive Director
Judith Gray. Assistant Executive Director
A Conversation with John F. Stroud. Jr.. by Ruth Williams
H. Murray Claycomb John D. Eldridge. 1II Robert S. Hargraves
Donald K. Harp Ronald D. Harrison
Jack A. McNulty W. Russell Meeks. 1II Stephen M. Reasoner
Robert G. Serio Bobby E. Shepherd James M. Simpson, Jr. Robert R. Wright. 1II EX-OFFICIO Richard F. Hatfield John F. Stroud. Jr. Don M. Schnipper Sandra Wilson Cherry I. Thomas Ray Randall W. Ishmael EDITOR Ruth M. Williams. Director of
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association, 400 West Markham.
Little Rock. Arkansas 72201. Second class postage paid at Little Rock, Ar-
kansas. In all counts. POSTMASTER:
Judge George Howard. Jr.. by Phyllis Harden Carter Guardianship Reform: Five Years of Change. by Judge Ellen Brantley
87 Point of View/Letters 90 100 106 Law. Literature & Laughter 108 Disciplinary Actions 110 In Memoriam 112 Arkansas IOLTA Program 115 Judicial Department Report 116 Executive Director's Page 117 Young Lawyers' Update 118 In-House News
send address changes to Arkansas Bar
Association. 400 West Markham. Little Rock. Arkansas 7220 I. Subscription price to non-members of the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in
annual dues. 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 in two copies to the Arkansas Bar Center. 400 West Markham. Little Rock. Arkansas 72201. All inqUiries regarding advertising should be sent to The Arkansas Lawyer at the above address.
ON THE COVER: John F. Stroud. Ir.. of Texarkana. assumed the position of Arkansas Bar Association president at the close of the Association's 89th Annual Meeting on June 13. Stroud heads an association with 3400 members and a budget of $424.000. and stands firm in a conviction for improved bench/bar relations. He is pictured on the cover " with his children. from left. Kimball. E John and Tracy. and his wife, Mariet~ to, on the front lawn of their home. In -g an interview. Stroud said. "I think ~ benchlbar relations are good in Arci kansas, but they can be better and I ] hope they will be beller at the end of Q.. this bar year." Iuly 1987/Arkansas Lawyer/8l
THE PRESIDENT'S REPORT
AYear of Meeting Challenges By Richard F. Hatfield It seems like only last week the bar year begem emd now it's almost over. In my linal report, I wemt to review the accomplishments 01 the past year emd thank those who are responsible lor the success we've experienced. The 1986-87 bar year is best described as one 01 "meeting challenges." We laced: • Insurance Crisis Legislation - No laws were passed which impacted on the tort system. This stands as our most outstanding achievement;
• Constitutional Amendment 64 -
The Arkansas Bar Association was instrumental in its passage;
• Membership Development -
Philip E. Dixon did an outstanding job as chair of the Membership Committee and recruited 233 new members to our roster;
the past year through her leadership
program, the result of efforts by the As-
and by implementing many policies and programs. The celebration of Judith's 20 years with the Association last Janumy was a fitting tribute to an extremely capable, conscientious and
sociation and by Herman L. Hamilton.
• IOlTA -
have been instrumental in assisting Susanne Roberts in implementing this
Ir., in particular: • Mandatory Continuing Legal Education - Progress has been made toward realizing this goal. A new peti. tion to the Arkansas Supreme Court is in the works;
• New Arkansas Code - This longterm effort by the Association for statute revision has been led by Wil-
liam S. Arnold. With passage of Act 267 of 1987 the Code is now a reality; • Bicentennial of the U.S. Constitution - The Arkansas celebration of the bicentennial of the U.S. Constitution,
under the leadership of John P. Gill. culminates on September 17. 1987, and • Annual Meeting - Walter R. Niblock arranged a great program in Hot Springs with something for everyone.
The preceding list is not all inclusive. In addition, I especially want to themk the following people lor helping us realize our goals: • Judith Gray. the Association's assistant executive director, for directing
the growth of the Association during 821Arkansas Lawyerl)uly 1987
• The entire bar staff. including
William A. Martin, Barbara Tarkington. Joyce Bobbitt and Virginia Hardgrave, for doing an excellent job in maintaining the organization. After visiting with the presidents and executive directors of other associations. I appreciate our staff so much more. especially in light of our nominal resources, and • Ruth Williams. for our very professional publications and vital media contacts.
Outstemding among the committee chairs which met the challenges of the bar year were: Randall W. Ishmael. chair of the Executive Council and Legislative Oversight Committee; Vincent W. Foster. Jr.. chair of the Jurisprudence and Law Reform Committee;
James M. Moody, chair of the Tort Reform Committee, and
Johnnie R. Holcomb, chair of the Corporate Code Study Committee.
In addition, I want to thank Martha M. Miller, the Association's lobbyist. the Section 01 Taxation emd !be Workers' Compensation Section lor their outstemding efforts emd each one 01 you who contributed time emd resources to the Association's activities. The Association is only as strong as its membership emd, as evidenced by the outstanding work we do on a limited budget, ours is among the stronges\. This year, the Association lor the first time hosted the Southern Conlerence 01 Bar Presidents. The Conference was presic\ed over by Don M. Schnipper and his wile, Mmy Ann. Both are to be congratulated lor being outstanding ambassadors emd lor doing a lemtastic job. President Elect John F. Stroud, Jr.. chaired the new Task Force on Commiltees during the past year to study and analyze the effectiveness 01 our commiltees emd to recommend improvements. John emd his wile, Marielta, will need your support to continue the progress he has already begun. I urge you, as I did in my initial column, to contribute some of your time emd resources to the Association. As with emy worthwhile endeavor, you will gain much more personally emd professionally them you will contribute. Finally, I wemtto thank my wile, Sue, and my children, Elizabeth emd Jeff, for their sacrifices during the past year. I thank Sue, especially, lor her support emd for being an outstanding ambassador lor the Association. It has been a pleasure and a distinct honor to represent the Association during the past 12 months emd lor that I am deeply indebted to you, the members. 0
JOHN F: STROUD, JR.
ohn F. Stroud, Jr., recalls going to the courthouse as a young boy to watch and listen to his grandfather, Judge A. P. Steel, a former circuit and chancery judge, as he sat on the bench. Those ~ early impressions of law left Stroud sure of his calling. Now, nearly 50 years later, he stands ready to head an association with 3400 members and an annual budget of $424,000, and stands firm in a conviction perhaps linked to the past for improved bench/bar relations.
What will be the thrust of your year as president of the Arkansas Bar Association? Improved benchlbar relations is one of the main things I want to see occur during the upcoming bar year. I think henchlbar relations are good in Arkansas, but they can be better and I hope they will be better at the end of this bar year.
In what ways might bench/bar relations be improved? We've lowered the dues and done other things for judges, such as offer special registration fees at our meetings. We're slowly coming to the realization that their salaries
ing a problem. It's not a case of let's meet and here are six problems we'll solve. It's simply that the exchange, both professional and social, between attorneys, judges and their spouses will be rewarding. We'll do this on a trial basis in 1988 and if it goes welL I think that it will be repeated.
- Will the Arkansas Bar Associ~ alion actively pursue the cre~ ation of a Judicial Compen-
are too low, and I want the bar association to do more to address their need for pay increases. In addition. I began working last fall on a proposal to the Arkansas Judicial Council asking them to meet simultaneously with us in Hot Springs at our 1988 annual meeting and they have agreed to do that. What do you see to be the benefits of a joint meeting? Certainly the opportunity to exchange ideas, to discuss problems and to participate socially will be some of the benefits. I just know that meeting together provides communication, and communication is the way to solve problems and the way to prevent something from becom-
By Ruth W11110ms
sation Commission? Yes, we're committed to pursuing a Judicial Compensation Commission and offering the bench any other support that we can. I want our support to be often and strong. A petition drive to place a constitutional amendment for a Judicial Compensation Commission on the 1988 ballot was discussed in Texarkana at the Judicial Council's spring meeting. It was also thoroughly discussed and approved by the Executive Council at its meeting in May. The bar is ready to assist in any way and, in fact, to take the lead with the guidance of the Judicial Council. What other goals have you set for this
bar year? I would like to see mandatory continuing legal education in place by January I, 1988. Last year the ArkanJuly 1987/Arkansas Lawyer/83
Supreme Court approved the concept of mandatory CLE but did not initiate the program. The Court's effort to obtain funding from the legislature this year for a new, fulltime employee to administer mandatory CLE, legal specialization and the other needs that exist did not succeed. We need to go forward immediately and ask the Supreme Court to approve the plan previously submitted and to fund this new position that they feel is necessary. The only way for them to do this is by raising the annual license fee. That will be our recommendation to the Court. In order to maintain its competence, it is incumbent that the legal profession be required to participate in and to pay for the program. I feel the Court, when this is properly presented to them, will implement the program. It's the trend
in this country and it's certainly
needed in Arkansas as well. Will a mandatory CLE program help improve the image of lawyers? That will not be the reason for adopting the program, but it probably will be a side benefit. If you ask a person if he likes lawyers, he'll usually say he likes his lawyer, that he has an excellent lawyer, but he can't say the same for those other lawyers. It is difficult for the typical person to understand how lawyers can go toe to toe in the courtroom and walk out best friends. There are many misconceptions about the legal profession. I think the schools are certainly one good place to start to improve those misconceptions. Many of the Law Day activities involve attorneys presenting programs about law and lawyers to high school and junior high school students. We also have a program in our schools in Texarkana that allows lawyers to tell students about the legal profession and how to go about becoming a lawyer. The media is another good place to start. Almost all of our opinions are formed by what we hear and read. If the media is uninformed or poorly informed concerning legal matters, the image of the lawyer will surely suffer. By and large, what lawyers do deserves the respect of the public. It is true that some lawyers are rightfully disciplined or disbarred, but all too often, the public reads that an attorney is accused but does not later read the smaller story if he has been vindicated. 84JArkansas Lawyerlluly 1987
How will the membership survey guide the Association's actions during the upcoming bar year? We need to know what we're doing that the lawyers like, what we're doing that they don't like, and, more importantly, what we're not doing at all that they want and need, whether it be in CLE or in other areas. We hope to get some meaningful input early enough in this bar year to appoint special committees or to do whatever is necessary to respond to the results of the survey. How would you sum up what it is lawyers do? Obviously, they represent their clients. One of the main virtues of law is that it is a way to bring a dispute to a conclusion. It may take a while to get there, but we do have the mecms to that end through our trial and appellate procedures. Thanks to law and law enforcement, we no longer have the Hatfields and the McCoys feuding from one decade to the next. Law finally puts a matter to rest and that's of vital importance, whether we individually are pleased with the results or not. We also help clients avoid problems. In fact, that to me is the most important service that attorneys render. Is service to the needy an inherent pari of the profession? Yes, it always has been and it must continue to be a part of our professional services. In many areas, it has become an organized part of the profession. Years ago, I think such assistance mainfy occurred quietly, one on one. When a person came
into a lawyer's office who could not pay, he was not charged. In recent
years, public defenders' programs. legal referral services and legal aid assistance programs have been created. I will stress this year and work toward substantially improving the bar's participation in a very important public service program - the Interest on Lawyers' Trust Accounts program. Every lawyer in private practice in Arkansas can and should participate in this program. The bulk of IOLTA funds goes to legal services programs in Arkansas to provide legal services to the poor. We're off to a wonderful start but we need a much larger participation. I think it's simply a matter of taking the word to the lawyer and letting him know how simple it is to sign up. We all are also obligated to
give of our time or money to provide pro bono services. Are there some basic CLE programs that lawyers need regularly? Certainly there are. Lawyers should probobly have some refresher program every year on legal ethics. Each session of the Arkansas legislature results in substantial changes in the law and these changes don't appear in our statutes for several months. Following each legislative session, attorneys need to learn what happened and how it will affect their practice. In addition, many lawyers limit their practice to some few areas of law. In larger firms, that's certainly true. Whether one does or not, he or she simply must keep up with the changes in the law that affect them. In addition to numerous programs presented each year by AlCLE (Arkansas Institute for Continuing Legal Education), the Arkansas Bar Association sponsors substantive programs at its annual meeting, the Natural Resources Law Institute and the Workers' Compensation Seminar. The newest recurring program is the Trial Practice Seminar presented each year by the Young Lawyers' Section of our association. Do you think mandatory CLE will have a weeding-out effect for the profession?
I don't think so. I think the main reason many lawyers don't currently attend continuing legal education programs is that they get too busy. They want to attend CLE programs, but the press of business causes them to cancel or change their plans. I would be surprised if any substantial number of attorneys quit their practice for failure to participate in mandatory CLE. When the program becomes operationaL there will undoubtedly be a substantial increase in attendance of programs offered by AICLE. All organizations offering CLE will have to work harder to present more opportunities for programs, and outof-state providers will come in greater numbers and more often than they do now. The Arkansas attorney should have a great many more programs from which to choose. What else can members look forward to in the coming bar year? We will have several new systems that will be printed during this bar year. Many of these will be the re-
STROUD "1 think bench/bar relations are good in Arkansas, but they can be better and I hope they will be better at the end of this bar year."
July 1987/Arkansas Lawyer/85
suit 01 work initiated by Dick Hatfield while he was president last year, such as updates 01 the Probate Law System and Corporation Law System and preparation 01 an Agri. cultural Law System. I have appointed an editorial board lor a new lorm book to be expanded and hopelully be ready by the 1988 annual meeting in June, I've also appointed committees to prepare a new Debtor/ Creditor Handbook. an updated Law Oflice Manual and an update 01 L0cal Court Rules. We'll undoubtedly have some programs that will start this bar year that won't be linished. Serving as president 01 the bar asso-
ciation is not like being elected to a lour-year term with a platform. Although there is the opportunity lor each president to stress those programs dear to his heart, it is more of a continuing ellort to keep the good from the previous years and eliminate the outdated. Some committees will not be reappointed this bar year as a result 01 work by the Task Force on Committees last year. We took a look and lound that several committees were not serving a current need. The Task Force will continue one more year to lurther evaluate the work of some committees. This probably needs to be done
Why hire Arthur Andersen & Co. for your appraisal and valuation needs? • • • • • •
In-depth appraisal, tax and accounting experience A team with credentials and competence Multi-industry experience Extensive resources Detailed documentation Proven quality control procedures
Our combination of experience and resources sets us apan and above others providing appraisal services. By selecting Arthur Andersen & Co., you can be assured of not only a quality product, but also a responsive, efficient team of appraisal professionals with the resources needed to provide added value.
If you have ... • family tax planning, • corporate tax (income and property) or • litigation support needs
John Wilmoth at (214) 741-8430 in Dallas.
ARTHUR ANDERSEN &g);
Real Estate' Closely' Held Securities· Imangibles • Machinery and Equipment.
every live or six years to be sure that we don't have members anxious and ready to serve who are being appointed to committees only to find an inactive chair or dormant program. That's a grecrt disservice to the person appointed. Is there a trick to juggling the duties 01 president with the duties 01 a law practice? II there's a trick I haven't lound it. It simply mecms working more hours every day and many nights and weekends. I'm lortunate to practice in a law Iirm rather them being a sole practitioner. I have law partners who can step in and assist me without it being too much 01 a burden on them, although they may be very tired 01 that by June of 1988. 0
UNITED STATES TRUSTEE U.S. DEPARTMENT OF JUSTICE Kansas City (St. Louis'), Missouri Salary: $70,500 The De pOl tment of Justice, an Equal Oppo·tunity Employer, is seeking an individual lor a 5-year appointment by the Attomey General. to head the U.S. Trustee's 01lice lor the Region composed of the States of Arkansas, Nebraska, and Missouri. The U.S. Trustee is responsible lor monitoring the legal and financial aspects of cases filed under chapters 7, II. 12, emd 13 of the Bankruptcy Code; maintaining and supervising a pomel of private trustees; supervising the conduct of debtors in possession and other trustees; and ensuring that violations 01 civil and criminal law are detected and relerred to the U.S. Attorney's Office lor possible prosecution. The successlui candidate must possess a law degree and be admitted to the Ben; ,extensive management experi-
ence; outstanding academic credentials. Familiarity with bankruptcy law and accounting principles is prelerred. A resume and completed SF-171 must be addressed to Mr. Thomas J. Stanton, Director, Executive Ollice lor U.S. Trustees, U.S. Depcntment 01 Justice, Room 812-0, HOLC Building, Washington, D.C. 20534, and postmarked by September I. 1987. NO PHONE INQUIRIES. Interviews, at the applicant's expense, will be held in Washington, D.C. "The exact location for this office has not yet been chosen.
B6/Arkansas Lawyer/July 1987
By Sidney S. McMath and Stephen P. Jordan The French historian and American observer Alexis de Tocqueville, in his classic work Democracy in America, told his European readers, "Scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question." Considering the current proposals being put forth by the casualty insurers in this country to change the American tort system, that proposition seems to be reversed. The critics of our common law tort system say that civil justice in the United States is inefficient, erratic and excessively expensive. They complain that lawsuits are being brought to right every imaginable wrong. They decry in print "the litigation explosion" and "excessive" damage awards and have formulated a package of changes to the common law system which they are heartily fostering on state legislatures and Congress. The critics have proposed a veritable Hydra of legislative changes which they would like to see made. The many heads of that Hydra appear as: eliminating joint and several liability of defendants, regulating contingency fees, controlling class actions, fixing statutory caps on damage awards, eliminating interest on awards, requiring uniform jury instructions nationwide, exempting activities that meet federal standards from the risk of lawsuits and so forth. But actually behind the many loudly hissing heads lies the real snake - a much more insidious creature than its public heads - the desire on the part of the so-called reformers to diminish the role of American juries in tort cases. Torts is a cosmos not a chaos. As a distinct field of law, Torts has identifiable procedures, methods, purposes and goals. The difference between Torts as a field of law and criminal law, for example, is that Torts has for the most part developed as common law rather than statutory law. Those who say that tort law is more a lottery than a "rational" system of justice and who seek to make it "rational" by codifying certain parts of it according to codes of their lik-
POINT OF VIEWILETTERS
THE JURY IS OUT IN MORE WAYS THAN ONE ing are actually seeking to re-style a system forged out of experience and history. Whatever their announced means, a thoughtful analysis shows that those who are clamoring for changes ultimately want to reduce, either by limiting or by outright abrogating, the role ,and power of juries in tort cases. A careful reading of the arguments put forth by those who want legislated changes shows that almost always a disparaging reference is made to the civil jury's discretion in fixing liability and awarding damages. Casualty insurers, who are the engine and drive train of the current tort reform movement, claim that juries' natural sympathies will usually produce large damage awards "without much concern for the legal technicalities." They say fear of this fact prompts tort defendants into out-of-court settlements even in unmeritorious
cases, and these settlements lead to skyrocketing insurance rates, etc. Their articulated, for-publicconsumption argument for change is, "Legislated standards would reduce inequities." Their largely unspoken premise seems to be we've got to crack down on these juries, The origin of the jury as a fact finder in civil disputes goes back at least to Henry II (1133-1189). Henry II, it will be remembered, was the progenitor of England's common law courts. During Henry II's reign, a litigant could obtain a royal writ to have a jury
summoned in land title cases to decide a question. Men were chosen from the neighborhood (or shire) who were believed to know the facts and were bound to answer on their oaths according to their knowledge. When a party got 12 oaths in his favor, he won. This Twelfth Century civil jury, or assize as it was called, was a unique feature of the King's courts because only the King could compel a man to swear an oath. It became a very popular feature with those who had disputes to settle and played no small part in establishing the eventual dominance of the common law courts as the judicial system of England. As time passed, to prevent corruption of the assize's work. an institute known as attaint developed. Because originally jurors were men who were supposed to know the facts and were sworn by oath to divulge them to the court, when the result of a lawsuit was not right, it was assumed that the reason was because the jurors perjured their oaths. Attaint of jurors
Editor's Note: Former Governor Sidney S. McMath is the senior partner in the McMath Law Firm in Little Rock. The McMath Law Firm handles personal injury, products liability, medical malpractice and workers' compensation law issues. Stephen P. Jordan is a second year law student at Washington & Lee University School 0/ Law in Lexington, Virginia. July 1987/Arkansas Lawyer/S?
was an inquiry into a jury decision by a grand assize (a larger. separate group of jurors) whereby the original jurors themselves could be imprisoned and otherwise severely punished if their verdict was found to be false. Eventually the role of the jury passed from that of 12 fact-givers to that of 12 fact-finders. hence the maxim: Juratores sunt judices facti Gurors are the judges of fact). From its inception and acceptance. trial by jury was the only form of trial used in any courts of common law in England until the mid-19th Century. Sir Patrick Devlin. the English jurist. has said of trial by jury. "its origin is accidental and its retention deliberate." Blackstone said in his Commentaries that trial by jury. "ever has been. and 1 trust ever will be. looked upon as the glory of English Iaw. " As the early colonists came to this country not all of the features 88/Arkansas Lawyer/July 1987
of the English judicial system were replicated. but trial by jury was. In fact when the colonies broke from England in 1776. one of the grievances listed in the Declaration of Independence was that. "The history of the present King of Great Britain is a history of repeated injuries and usurpations ... depriving us in many cases of benefits of Trial by Jury." After the Revolution. when the Constitution was drawn up in 1787. the Founding Fathers included in the 7th Amendment the right to trial by jury in common law civil cases in federal courts. The states also have recognized and preserved in their constitutions the right of trial by jury in common law suits in state courts. Article II. Section 7. of the Arkansas Constitution provides that. "The right of trial by jury shall remain inviolate and shall extend to all cases at law. without regard to the amount in controversy ..."
It has been said that justice poses the problem of how to reconcile the rigidity of the law with the popular idea of what is fair and just. Traditionally. under our system. juries have played an important role in tempering the perfect ideals of the law to everyday experience. Jurors tend to be everyday people and their determinations tend to be the determinations of everyday citizens. That is not a bad thing. As the English writer G.K. Chesterton put it. "Our civilization has decided when it wants a library cataloged. or a solar system discovered. or any trifle of that kind. it uses up its specialists. But when it wishes anything done which is really serious. it collects twelve of the ordinary men standing around. The same thing was done. if 1 remember right. by the Founder of Christianity." In administering justice. courts are required to perform two difficult tasks: discovering where the
truth lies between conflicting versions of the facts and applying to the facts, so found, the relevant legal principles. Courts must administer equal justice to the rich and the poor, the good and the bad, the strong and the weak, to men and women of every shade of political belief, to those who enjoy privileged positions and to those who are otherwise despised, feared or even hated. It has always been thought in this country that juries, made up of persons drawn from these various stations in
society, play a desirable part in this process of arriving at justice for all. Plucknett in his famous A Concise History of the Common Law wrote, "... It will be seen tbat in its origin the jury is of a representative character; the basis of its composition in the early days ... was clearly the intention to make it representative of the community." Under our constitutional system of separation of powers, the voting jury - 12 people having no training in the legal system, chosen at random to listen to evidence and to decide - is the judicial branch's connection with the American idea of government of the people, by the people and for the people. They are little democracies on the law in our great big Democracy of Law. Judge Learned Hand reminded us in one of his opinions, ". . . The verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premise, but really a small bit of legislation ad hoc. like the standard of care." Of course in the common law tort system, the jury always has and still does play a subordinate role to the judge. The verdict of the jurors has no legal effect until judgment is entered on it. Despite the contrary impression those who are pushing for changes in the tort system seek to make, the verdict of a jury, on damages or any other question, cannot change the law. The reformers cry that juries are often gullible and can be manipulated by slick lawyers. On reflection, there is nothing per se objectionable even were that so. As a cab driver quoted in the Wall Street Joumal said, "But that's no problem as long as you've got the slicker lawyer." That a lawyer can have
an effect on a jury is part and parcel of the adversarial process; it is no reason to change the system. Also juries, even once judgment has been entered on their verdicts by a trial judge, do not have unlimited discretion as a matter of law to levy undue or unsupportable awards. Checks and balances on juries already exist in the form of appellate review. Lest anyone doubt this, hardly a better example of the fact could be given than a capsule review of the newsworthy case of Silkwood v. Kerr-McGee. 485 F. Supp. 566 (1979); 667 F.2d 008 (1981); 104 S. Ct. 615 (1984); 769 F.2d 1451 (1985). In 1979, after hearing evidence and arguments on both sides, a federal jury in Oklahoma awarded Karen Silkwood's surviving family $10 million in punitive damages against the Kerr-McGee corporation. In 1981. the U.S. Tenth Circuit Court of Appeals struck down the entire $10 million. In 1984, the U.S. Supreme Court by a 5-4 vote remanded the case to the Tenth Circuit with instructions that the $10 million could be upheld as a matter of law. In 1985, over a strong dissent, the Tenth Circuit again reversed the $10 million award. Earlier this year the Silkwood family, 12 years, one trial and three appeals after Karen Silkwood's death, accepted a settlement from Kerr-McGee for less than $1.4 million - hardly making it a case of Fiat justitia pereat munduB.
Unfortunately, the casualty insurers who are clamoring for changes in the common law system seem malcontent with appellate review as well. In some quarters' barely beneath the conversational level, there is grumbling that "liberal judges and greedy lawyers" are "conjuring up schemes for controls on business through the courts." (A good example of this mindset of some corporate defendants can be seen in the April 7, 1986, Forbes article, "The Hanging Judges of Business.") The question is: to satisfy casualty insurers and their current constituents, should the judicial process be reformed? Businesses cue looking at alternate methods of dispute resolution to avoid civil juries. Overhaul of the common law tort system with an aim toward legislatively restricting juries
should not be one of them. At last it is well worth remembering what Blackstone said about our jury system and the reform of it in one of the most celebrated passages from his Commentaries: "(SJecret machinations which may sap and undermine it. however convenient these may appear at first ... these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and though begun in trifles. the precedent may gradually increase and spread to the utter disuse of juries in question of the most momentous concern." 0
REFERENCES Baldwin. John. and Michael McConville. Jury Triala. New York. Ox1ord University Press. 1979. Blackstone. Sir William, Commentaries on the Law 01 England. Philadelphia, LB. Lippincott and Co.. 1832. de Tocqueville. Alexis. Democracy in America. New York. Vintage Books. 1954. Devlin. Sir Patrick. Trial by Jury. London. Stevens. 1956. Holmes. Oliver W.. The Common Law. Boston. Little Brown & Co.. 1923. Insurance Information Institute. The Lawsuit Crises. 1986. lolley. Liability Insurance and the Jury Trial. 751. Louis U.L.J. III (1962). Kalvem. The Dignity of the Civil Jury. SO Va. L. Rev. 1055 (1964). "Litigation Explosion:' The Wall Street Journal. series of articles May-June 1986, p.1. Plucknett. Theodore F.T.. A Concise History of the Common Law. Rochester. N. Y.. Lawyers Co-op Publishing Co.. (1936). Shaffer. Appellate Courts and Prejudiced Verdicts. U. Pitt. L. Rev. I (1964). "The Hanging Judges of Business:' Forbes. Vol. 137, p. 62. April 7. 1986. "The Tort Explosion," The New Republic. Vol. 193, p. 4, November 18. 1985. "Tort Wars: Inswers Push ... Begins to Slow Down." The Wall Street 10urnal. August I. 1986. p. I. 'Who is at Fault," The Memphis Commer路 cia! Appeal, July 6, 1986, p. E I.
ACCIDENT RECONSTRUCTION AND INVESTIGATION
Expert Witness J. Larry Williams, Ph.D. 2208 Shoshoni Drive Jonesboro, Arkansas 72401 Phone: (501) 972-9222 or (501) 972-0167
July 1987/Arkansas Lawyerl89
By Phyllis Harden Carter
George Howard. Jr. He's traveled a lifetime highway that has not always been level and straight. Certainly, it has had plenty of unexpected curves and sharp turns. But he has negotiated many of life's unpredictable paths and journeys exceedingly well. ••••• uring the Twentieth Century, Arkansas lawyers of African-American heritage have been relatively few in number, but their contributions to lhe slate have been significant. One man who has made a major contribution is Federal Judge George Howard, Jr. Howard has overcome many obstacles to reach the position of judge. On the way, he has earned respect within and outside of the legal profession for his integrity, legal skill and strong sense of justice. Judge Howard summed up his judicial philosophy this way: "I try diligently to show compassion, to be understanding. I try to be patient and most of all to see that the voiceless, the underprivileged, the have nots, the forsaken and the 'alleged outcasts' are afforded the same opportunities as those who have - shall we say - unlimited resources or have prestigious beginnings. I think this is part and parcel of every individual's duty. More is expected of one who has achieved more and this is what I strive to do in those cases over which I preside." George Howard has come a long way from his hometown of Pine Bluff, Arkansas. His father was a Baptist preacher. His mother was a graduate of Arkansas Normal and Mechanical College (AM&N, now the University of Arkansas at Pine Bluff) and a school teacher. His childhood included weekly Sunday school and church wor-
90IArkansas Lawyer/July 1987
Judge Howard entered law "on the heels" of the Brown decision. when "separate but equal" was the policy and practice in Arkansas.
July 1987/Arkansas Lawyer/91
In 1940, when he was a sophomore at the all-black Merrill High School, Howard decided to drop out and work for the National Youth Administration, a federal agency established by Congress at the suggestion of President Franklin D. Roosevelt. A young congressman from Texas - Lyndon Baines lohnson - was in charge of the program, designed to develop manpower for defense industries during World War II. Howard went to work in a
"Under our system, one's social standing or birth are not the determining factors in how much he can achieve." ••••• ball bearing factory in Plainville, Connecticut. In 1943, he was drafted and assigned to the Seabees - the Navy's construction crew - in the South Pacific, where he served two years and nine months. While Howard was in the military, the "separate but equal" doctrine was the law of the land. Whites were in executive ollicer positions and blacks were, by and large, relegated to menial jobs. Howard recently recalled an incident on the U.S.S. Hornet. a converted troop carrier, that led to his important decision that he should and would go to law school. An order came down that Howard and other black sailors would not be allowed to use the ship's washroom. Howard spent that same day trying to get to the captain to inquire about the order. He was upset that alter fighting in the war, he and other blacks were being denied an opportunity to use the washroom. The captain was obviously impressed with Howard's tenacity and as a result removed the restriction. In his bunk that night. Howard realized that the only way he was going to have an impact on the status of blacks was to enter the judicial system. "I had no idea it would be so motivative," he said of the incident in an interview with the Arkansas Gazette's George Wells when he became a federal judge. Howard was eventually discharged from the Navy at Memphis with the rank of coxswain (petty ollicer 3rd class) and returned to his native Pine Blull at age 21. Back home, he asked the principal at Merrill High School about the possibility of re-entering. "Since my principal had been the one to encourage my friends and me to get into the jobs program, he realized he should readmit me even though I was 21 years old," he said. While completing high school. his chemistry professor, the late E.E. Bankston, discovered the future judge's interest in the law and encouraged his young student to enroll in the pre-law program at Lincoln University in lellerson City, Missouri. Howard followed his teacher's advice and, alter high schooL entered Lincoln University to major in political science. While at Lincoln, the University of Arkansas admitted its first black student. Silas Hunt. In addition, the prohibition against blacks attending the University of Arkansas law school was rescinded by Governor Ben Laney. Inspired by these events, Howard applied to the law school in 1950 and was accepted. His application for housing on campus was accepted as well. 921Arkansas Lawyerlluly 1987
Judge Howard began his term on the Arkansas Supreme Court by remembering he "came from humble
July 1987/Arkcmsas Lawyerl93
Howard recalls the day he arrived at Fayetteville and presented himself to the dormitory officials. "Everybody was surprised," said Howard. Apparently, the University officials did not realize that Lincoln University was an historically black college and had assumed Howard was white. Since this was obviously not the case, arrangements were made to
SEAL CORPORATION offers it wide range of IeChl"lCal and engmeenng
eJq:JertJse In the demandng fJdd offailureanalysls. AI ~ IS camed out byecpenerced proIesslClJ\aI engtneerS pn;Mdlng pHrnpt results to dterts nab~. au- seMCeS ncll.de ltlf" follovMg: .~~lJOfl
• ldlXnkJry teillI'Ig lOrd
Call for Descr1>oon of Servke.s
Texas 1·800443·0127 Oftkes in Tyter. Amarillo
Lubbock. Austin. San Antonio. Dallas. t-iouston and Beaumont (214) 56&1900
house Howard with a prominent black Fayetteville family, the Hoovers. But in the spring of 1952, he was permitted to move on campus and live in Lloyd Hall. The following October, Howard was elected over two white contenders as president of Lloyd Hall. becoming the first black named to a student elective office at the University of Arkansas. oward said that while he was at the University, black law students were not permitted to attend the annual law banquet until their second year. Also, blacks were not permitted to join legal fraternities or organizations. In 1954, Howard became the fourth black to graduate from the
We do more than print the lawwe put it into perspective... ... both in our law books and our computer data service Whether it's with ALR, Am Jur, USCS, LEd-or VERALEX'", our new computer assisted information retrieval system-your research will go faster and more efficiently with Lawyers Co-op in your library. Our law books and our computer research service are made to mesh with each other and your needs. Let your LCP representative show you what's possible and affordable in legal research. Here's what the LCP Total Client-Service Library® offers the Arkansas attorney. Am Jur 2d uses Am Jur Legal Forms 2d Federal Procedural Forms, L Ed Am Jur Pleading & Practice Forms Federal Procedure Rules Service Am Jur Proof of Facts Federal Procedure, L Ed Am Jur Trials Bankruptcy Service, LEd ALR System Immigration Law Service U.S. Supreme Court Reports, L Ed Contact your LCP representative: North Arkansas Lorraine Hall (501)378-7038
Northeast Arkansas Kent McClain (502) 554-8651
Donald Nasser (318) 635-1310
THE LAWVEAS CQ·QPEAATIVE PUBLISHING CO. Aqueduct BUilding Rochester. New York 14694
lCP 941Arkansas Lawyerlluly 1987
Southeast Arkansas Ed Arnult (513)741-0811
University of Arkansas. The first was Jackie Shropshire in 1951. George Haley, brother of author Alex Haley, graduated in 1952, followed by Wiley A. Branton, former dean of the Howard University Law School in Washington, D.C., in 1953. Howard graduated, as he puts it. "on the heels" of the United States Supreme Court's landmark decision in Brown v. Board of Education of Topeka and during a time when "separate but equal" had been the policy and practice of Arkansas for decades. Howard returned to Pine Bluff to start his private law practice, one that lasted 25 years and earned him the distinction of being one of the three most active Arkansas lawyers in the school desegregation drive of the 1950s and 1960s. The other two were John W. Walker of Little Rock and Wiley Branton. Howard's most famous case was the desegregation of Dollarway School near Pine Bluff in 1962. His daughter, Sarah Howard, then a 10th grader, was one of the black students admitted to the school as a result of a lawsuit filed by her father in U. S. District Court. She was the only student to apply to transfer from the all-black Townsend Park School to the white Dollarway School. Howard said he wanted his daughter to graduate from an accredited high school. The black school wasn't accredited. He also represented plaintiffs in cases challenging the constitutionality of state and municipal legislation designed to hinder the activities of the National Association for the Advancement of Colored People (NAACP) and the practice of denying blacks service at restaurants and accommodations
at motels. Howard frequently worked for the NAACP Legal Defense Fund. Howard served as president of the Pine Bluff chapter of the NAACP in 1962 and president of the Arkansas State Conferences of Branches for the NAACP in 1967. In 1980, Howard was presented a special award by the Little Rock chapter of the NAACP for his work in civil rights. He was elected president of the Jefferson County Bar Association in 1974.
Five of the filst blacks to graduate from the University of Arkansas, Fayetteville, School of Law, celebrate at a banquet of the Arkansas Black Lawyers Association in 1978. They are, from left, Christopher C. Mercer, Jackie L. Shropshire, George Haley, Judge George Howard, Jr., and Wiley A. Branton. In 1965, Howard was appointed to the Arkansas Advisory Committee to the United States Civil Rights Commission. He served for a period of four years, two as chair of the Committee. In April 1969, Arkansas Governor Winthrop Rockefeller appointed him to a six-year term on the Arkansas State Claims Commission. He served as chair of the Commission for four years during the administration of Governor Dale Bumpers. Howard subsequently was reappointed to the Claims Commission by Governor David Pryor, on December 10, 1976, for an additional six years. Howard's first experience on the bench came one day later, on December ll, 1976, and after Governor Pryor also appointed him to serve as special associate justice
on the Arkansas Supreme Court when Associate Justice Frank Holt disqualified himself from participating in an appeals case. He became the first black appointed by a governor to serve as a special associate justice. A few weeks later, on January I. 1977, Howard was named to the Supreme Court's Committee on Professional Conduct. By the end of the year, on December 5, 1977, Howard achieved another first when he returned to the Supreme Court, this time through on appointment to fill the unexpired term of Associate Justice Elsijane Trimble Roy, who had been appointed to the U.S. District Court for the Eastern and Western Districts of Arkansas. Howard began his term on the Court by remembering he "came
from humble circumstances," he told the Gazette, "I have a bicycle, and that night 1 rode about 20 blocks to the neighborhood where 1 was reared. 1 just wanted to recall the days 1 played sandlot ball, the Depression and what were really tough days for the country as a whole. At that time 1 couldn't visualize that 1 would be designated by the governor to occupy the highest office ever held by a black in modem times. Then 1 Editor's Note: Phyllis Harden Carter is an assistant city attorney for the city of Little Rock. She received a law degree flOm Marshall-Wythe School of Law, College of William and Mary, in Williamsburg, Virginia, in 1975. She is admitted to the Arkansas and Virginia bars. luly 1987/Arkansas Lawyerl95
VALUATIONS • ESOPs
• Litigations Suppon • Charitable Gifts
• Divorce Proceedings
• Estate and Gift Taxes
• Fairness Opinions
• Dissenting Minority Shareholders
• Private Companies
• Lost Earnings Analyscl'l • Intangible AS~l Appraisals
• Tax Planning • Buy-Sell Agreements • Mergers!Acquisitions • Lost Business Earnings • Leveraged Buyouts
• Closely-Held Securities. Common Stocks. Preferred Stocks and Debentures/Bonds • Pannership Interests
• Reverse Stock. Splits • Business Owner Life-
Call THE BUSINESS EVALUATION RESOURCE
• Detailed Documentation. In-Depth Experience In
• Quality Control
Hundreds of Valuation
MERCER CAPITAL MANAGEMENT, INC. 1503 Union Avenue Suite 20 I Memphis. Tennessee 38104 (90 I) 725-0352 Wntc or
ad<k,.'tl to the mailing 11101 fUI 01.11 pCIlOl.!K vollulillon commentaries.
realized that under our system, one's social standing or his birth are not really the determining factors in how much he can achieve or how far he can go in this country." Howard ended his 13-month Court term by performing a marriage ceremony for his son, George Howard III, and Veter Thomas of Little Rock in his chambers at the state Iustice Building. n July IS, 1979, Governor Bill Clinton appointed Howard to the newly created Arkansas Court of Appeals. It was in October 1980, during his tenure on the Court of Appeals, that Howard was nominated by President Jimmy Carter to fill a vacancy on the U.S. District Court for the Eastern and Western Districts of Arkansas, the position he presently holds. At age 56, Howard became the first black federal judge in Arkansas lor the eastern and western districts. Judge Howard has repeatedly proven during his legal career that, for him, there is no substitute for hard work, knowledge and a strong and uncompromising sense ollairness. At his swearing-in ceremony upon being named to the federal bench, Howard said, "This ceremony represents not only a personal accomplishment for me, my family and the black people of the state • , , but also a social milestone in race relations in the state of Arkan-
sas." His nomination. he said, was
Consulting Engineer Expert Testimony Natural Gas - PetroleumChemicals - Aviation The FRANTZ Co. Joseph F. Frantz. Ph.D .. P.E. 7171 Harwin Drive. Suite 202 Houston. Texas 77036 Fires Explosions Evaluations
Product Contamination Operating Losses Personal Injury Capital Losses Contract Disputes Environmental
Registered Professional Engineer State of Arkansas 3501. Also registered in States of Georgia, Louisiana, Mississippi. New Mexico, Oklahoma, and Texas. Court Qualified and Experienced.
(713) 781-8493 961Arkansas Lawyerl)uly 1987
"indicative 01 what can be accomplished when mankind rises above hate and lear." He displays his compassion for the "voiceless, the underprivileged, the have nots and the forsaken" by allowing these litigants to have access to the judiciary in a very real sense. For example, Judge Howard receives many petitions lor writ 01 habeas corpus from inmates of the Arkansas Department of Correction. These prisoners contend they have not been afforded a lair and decent trial or were deprived equal protection or due process. In reviewing these petitions, regardless of whether he considers a claim to be casual or believes it has some merit. Judge Howard appoints counsel. even if the petition does not ask for it. He knows that many of these inmates are illiter-
ate and without funds. An inmate on a pro se petition in federal court is no match for the resources at the disposal of the attorney general of the state of Arkansas. "We are deceiving ourselves if we permit an inmate to come in on a pro se petition when there is some merit to the claims," Judge Howard said. To those critics who complain about trial delays, his response is that ". . . a litigant is not made for the docket. Rather the docket was designed to implement and to assist litigants in the prosecution of cases." Judge Howard said he wants to give a litigant ample lime to present his case. His reasoning is that a litigant has spent money engaging a lawyer to prepare his case and the lawyer has spent time in case preparation. When a litigant comes into the courtroom, "if I'm impatient and hurrying him along," said Judge Howard, '" have not in my judgment afforded that litigant his day in court." It is this philosophy and practice which moved the Arkansas Trial Lawyers Association in 1985 to present him the Outstanding Judge Award for 1984-85. Judge Howard admits that a judge brings to the bench his experiences and the circumstances that he encountered while growing up. His own background has given him a knowledge of the harsh realities that accompany racism and prejudice. This physically small man who is typically described as speaking in a quiet. measured voice. was arrested in 1969 by two Pine Bluff policemen who charged he was disorderly and profane - charges that were later dismissed. Howard had gone to municipal court for the trial of a man accused of carrying a large knife. The knife was used in the defendant's work as a handyman and mover. The arresting officer told the judge he hadn't prepared his case for the trial due to his workload and the trial was postponed. During the second hearing, the officer said he was prepared, but leveled a new charge that the accused also had been gambling. Howard asked that the trial be delayed and his request was granted. Afterward, Howard left the building with the officers. He asked the arresting of-
licer if his client really had been gambling. The second officer interrupted and told Howard not to ask about the case. An argument ensued and Howard was arrested. Howard was brought to the jail, where he was told to remove his tie, shoestrings and contents from his pockets. He was booked for disorderly conduct and was photographed and lingerprinted for police files. He was released on a $100 bond and a preliminary hearing was set. Two weeks later, the charges were dismissed when the city attorney presented an affidavit from a white aHorney who had witnessed the encounter between Howard and the policemen. The attorney said Howard never said anything profane. Howard told the Gazette, "This was really an eye-opener for me." He said that he had represented many people who contended they
were abused by the police, mostly persons "in the underprivileged category." He said he never fully understood their situation until his own "first-hand experience." s a judge, Howard said he is determined that both sides get fair treatment in his court
SMITH-ALSOBROOK & ASSOC. EXPERT WITNESS SERVICES • nre consulting • Rimltire explosions • Traffic accident reconstruction
BOBBY O. SMITH, B.S., J.D. President
P.O. Box 3064
Opelika, AL 36803
Weckerllng Scientific LaboratOries. Inc
SCIENTIFIC INVESTIGATION OF ACCIDENTS AND FAILURES Appliance fires, computer chip failure, construction accidents, asbestos contamination, and vehicle accidents are examples of cases solved. State of the art scientific equipment and techniques including microscopic analysis. Expert witness and consultant.
Litigation brochure available. 2602 Electronic Lane, Suite 606 • Dallas, Texas 75220. Call 214/353-9494
G.A. Tomlinson P.E. 80m 2:'12·24. Amanllo. TC\3S; U.S. 3\'). 1').$)·1946: OUahoma Stale Unl\'crsJly. 1~19-I9. B S Mech. Engmeermg: Unll Rig & Equlpmenl Co. Tulsa. 19-19·1982; Responsible' for all engulttnng function!> 1957-1975: FormedConlpany for Unll Rig in Br.wl 1976. GencrJI Manager. Canadian Oper. alions. 1977; In charge of Unll Rig ProdUCI Lillgallon 1977-1982.
EXPERT WITNESS GRADUATE MECHANICAl ENGINEER 32 years e~ In desqI. leslng. manufaetunng. superYrSIOfI and opetallOn Of eqtJlpmerIl Also eXl9l'\SlYe executrvfl expenence. 0uaIthed as an expet11n many
• For1dIft & Holsl:s
• Malena! Hardng Eqpt. • ConstNCIIOfl Equ.pmenc
• Truc:tts Of at typeS • Heavy Vehdes • Alr1lne Ground Handling Eqpt. • EIectnc Vehicles • Dllchlng Machines • Manulactunng Mad'IIr'l8ry 9 YEARS COURTROOM EXPERIENCE
July 1987/Arkansas Wwyerl97
and that freedom and liberty become more than just words or legal doctrines espoused by judicial scholars. "It means something to me," he said. "I took the oath when I was sworn in that the law would be applied equally and with an even hand irrespective of the liti-
MISSING HEIRS? **
WE FIND HEIRS WORLDWIDE AT OUR OWN EXPENSE Twenty years of prudent service to the legal, judicial and financial communities
TRY US FIRST! Phone collect or write
FIDUCIARY RESEARCH, INC. (Forensic Genealogy) 424-A FIDELITY UNION LIFE BLDG. DALLAS, TX 7520' (214) 748-6"0
98/Arkansas Lawyer/July 1987
p.o. BOX 1874路A BOCA RATON. Fl 33429 (305) 388-0055
gant's condition, white or black, rich or poor. It means something to me and I appreciate it." In 1982, the Arkansas Bar Association, which denied membership to blacks until the 1960s. came to the defense of Judge Howard following comments by Pulaski County Sheriff Tommy Robinson that Howard was a "token" judge. Robinson had been held in contempt of court by Howard for failing to obey court orders and ended up in federal custody in a Memphis, Tennessee, jail. He was released from federal custody by Howard who said he was satisfied that Robinson had purged himself of contempt of court, but warned, "Don't be deceived by my patience. forebearance and tolerance. Don't interpret those characteristics as signs of weakness." The Association's House of Delegates adopted a resolution filed by Little Rock attorney John 1. Lavey calling for the Association to "condemn" Robinson for violating a federal court order and for using racial epithets in statements critical of Howard. Although Judge Howard is concerned about terminating cases on
the docket, it is not his main goal. His supreme objective is to ensure that when a litigant leaves the courtroom. whether he wins or loses, he has a feeling that as an American citizen he has been afforded his rights under the U.S. Constitution. And Howard feels that judges as well as lawyers have a unique opportunity to make democracy - defined in terms of fair housing, political and economic equality, fair employment and educational opportunities - a living reality for all persons. irrespective of their race,
color or social or political standing. "I suppose the bottom line is service," said Howard. "When we give service. the return is invaluable. We can't evaluate it in terms of dollars and cents. Let us not put getting ahead ahead of giving service." D
it's ravena more:' call or write today for more information or to arrange for a free WESTLAW demonstration in your office. ROD P. DURKEE 9 Johnnycake Lane Little Rock, AA 72211 Phone: (res) 501/225-3652 lillie Rock 501/378-4676
1 An:::'C'T"l A1 A1'" V V .L..:.t..:) 1 .L.C\.V V 1路800-328-0109 (MN, AK 612/228-2450) P.O. Box 64526 St. Paul, MN 55164-0526 漏 1986 \\t:St Publishing Co. 9338路8/9路86
July 1987/Arkansas Lawyer/99
that the existing guardianship law contained serious constitutional flaws, particularly in regard to the definition 01 "incompetent." the lack 01 adequate notice to the alleged incompetent. the lack 01 right to counsel and other due process protections.' In the summer 01 1982, the task lorce completed a draft 01 a proposed new guardianship law which basically adopted the conclusions 01 Sheryl Dicker, an attorney with Legal Services 01 Arkansas and a task force member.' Dicker had recently addressed a symposium on developmental disabilities and the law in Little Rock held under the auspices 01 the Arkansas Bar Association's Committee on the Mentally Disabled, Her presentation on guardianship was later published in the UALR Law Journal,
"If you don't like the weather, just
wait." So goes the old saw about Arkansas' climate. A similar statement could be made about Arkansas' guardianship statutes.
1000Arkansas Lawyerlluly 1987
he task lorce's proposed law was endorsed by the Committee on the Mentally Disabled but. due to a lack 01 time, was never submitted to the Association's Jurisprudence and Law Relorm Committee to be included in the Association's legislative pockage. The draft was introduced and passed in the 1983 legislative session as House BUi 427 and was signed by the Governor, becoming Act 345, Apparently there was very little opposition to the bill in the legislature.' However, after the passage 01 Act 345, widespread opposition in the legal community surfaced concerning the requirement 01 a prolessional evaluation 01 the alleged incompetent (now incapacitated), uncertainties over whether a corporate fiduciary could serve as a guardian and confusion over which portions 01 the prior law remained valid, since Act 345 repealed only those laws which were inconsistent with it. Much 01 the disagreement between the supporters and the opponents 01 Act 345 was caused by the dillerent perspectives they each brought to guardianship. The overwhelming experience 01 those who had draft路 ed the act was in working with the mentally retarded; on the other hand, virtually all 01 the attorneys, judges and bank ollicers who opposed it had dealt primarily with elderly people for whom guardianship had been sought either with their agreement or at least with their acquiescence. Many 01 the opponents saw no reason lor any change in the guardianship law, believing that the prior system had worked very well. Even those who might not have opposed some 01 the substantive changes which Act 345 contained were very conlused about what guardianship law in Arkansas was after it became law. A number 01 discussions with judges and lawyers in 1983 and 1984 lound a great variation in the procedures used in guardianship proceedings. Some judges allowed proceedings under prior law, reasoning that Act 345 merely created a new procedure which was optional. While it's doubtful that the legislature intended this result or that the Arkansas Supreme Court would have upheld it. few guardianships are appealed. Therelore, in some jurisdictions, prior law continued to be used.
ther courts did not believe that Act 345 merely created an optional procedure, but they were Irequently uncertain about how to apply it. Issues were often raised about the evaluation that was required who was competent to make one, what should its terms be, etc. One issue that initially caused concern
- whether a bank could serve as a guardian - was removed rather quickly. An attorney general's opinion held that Act 345 did not repeal prior law which allowed a bank to serve as the guardian of the estate (but not the person) of an incapacitated person.' Act 940 of 1985 Almost immediately after the passage of Act 345, a special committee of the Association's Probate Law Section began discussing changing the law. There were a variety of ideas discussed by the lawyers, judges and bank officers who participated in the committee's work. Many favored the outright repeal of Act 345 and the reinstatement of prior law. Others felt that some of the criticisms which had been made of the prior law were proper and that some of the changes made by Act 345 should be retained. The group also realized that an effort to seek the outright repeal of the act might be strongly resisted by those who had been instrumental in its passage. There was no sentiment expressed to retain Act 345 in its entirety. . Ultimately the Section's committee and the Junsprudence and Law Reform Committee decided on a compromise approach. A draft hill was prepared which preserved most of the significant reforms in Act 345, incorporated some features of the Uniform Guardianship Act and specifically reenacted prior law. This bill was presented to the Association's House of Delegates and was approved, becoming part of the Association's legislative package for presentation to the 1985 General Assembly. While there was some fear that groups advocating the rights of the mentally disabled might oppose the legislation, no significant opposition materialized. The bill was passed by the legislature and was signed by the Governor, becoming Act 940 of 1985.
he significant features of the 1985 legislation, which, with the exception of the temporary guardianship law to be discussed later in this article, remain law today are: (I) A new definition of "incapacitated:' taken from the Uniform Guardianship Act. was contained in the 1985 act. The advocates for change in the guardianship law had criticized the definition of incompetent in the 1949 Probate Code. but the definition of incapacitated con-
tained in Act 345 had been criticized by the legal community;
(2) The concept of limited guardianship, which was one of the basic goals of the propanents of Act 345, remained in the new law; (3) A professional evaluation of the person for whom
guardianship is sought was retained. This requirement, one of the most significant changes Act 34S made in existing law and one of the most criticized.
was accepted by lawyers and judges because of the detailed specifications which the act set forth. One of the mos1 important specifications is that the professional who completes the evaluation does not have to
be present in court, although he or she may be subpoenaed.. Moreover. the details of what the evaluation
should contain are spelled out with more particularity; (4) Current law retained the requirement that an "annual report" on the conditions of the ward be made. but removed. Act 345's requirement that the clerk automati-
cally set a hearing if the guardian fails to do so. The requirement of a review hearing every three years as provided. for in Act 345 also was removed.;
(5) The notice provisions of Act 345 have been retained. in
large part - the allegedly incapacitated person must receive notice and the notice must set forth his or her rights to be represented.. to present evidence, to crossexamine witnesses, to be present. to remain silent and to compel the presence 01 witnesses.' However. 20 days' notice is required. under current law. Under Act 345. the minimum period was 30 days.
Of course, there are other areas in which Act 345's provisions were retained or deleted, but the above list includes the most significant features of our current guardianship law. One feature of Act 940 of 1985 was that it specifically repealed all prior law and fully set forth all provisions. Therefore, one need not attempt to determine whether a pre-existing provision is retained. If it is law, it is set forth in the guardianship statutes (Ark. Stat, Ann, secs, 57-821 to 57-870 (1985 Cum. Supp.)). Act S35 of 1987 ust as our guardianship law seemed about to enter a period of relatIve stability - the only guardianship legislation expected in the 1987 General Assembly was for technical corrections to Act 940 - the Arkansas Supreme Court decided the case of In the Matter of Loren Evatt.' Evatt involved a challenge to the temporary guardianship procedure set forth in Ark. Stat. Ann. sec. 57-840 (1985 Cum. Supp.). In the Evatt case, the probate judge had signed an ex parte order granting one of Mr. Evatt's relatives a temporary guardianship of his person for 90 days, the maximum period permitted by statute for a temporary guardianship. After the guardian's appointment. he authorized the sheriff to pickup the ward. The shenff did so, and Mr. Evatt was conlined in jail for two days. He was then involuntarily committed to the Arkansas State Hospital. Mr. Evatt did not contest his civil commitment, but he did appeal the order of temporary guardianship. He alleged that the granting of guardianship over his person without notice before or immediately thereafter violated his right to due process of law. The Supreme Court agreed. While recognizing that there are emergency situations in which imminent danger to the life or property of the allegedly incapacitated person could make notice prior to the guardianship hearing impossible, the Court held that the ward's interest in retaining control of his person and property are such that a review hearing must be held promptly after the guardianship is established, if prior notice is not given. In addition, the Court held that the notice given in a temporary guardianship must be different both in form and in substance from that required under section 57-840. (The only specifica-
Editor's Note: Judge Ellen Bran t1ey, a chancellor and probate judge in the Sixth Judicial District, Fourth Division, is co-author of Probate: The Law in Arkansas. She served as a faculty member at the University of Arkansas at Little Rock School of Law from 1978-86 and is a graduate of Wellesley College and the University of
Virginia, July 1987/Arkansas Lawyerll03
tion the statute contained was that the temporary guardian should "forthwith give te;, the incapacitated person notice of the appomtment. ) The Court noted that the statutory provisions goverrung nollce for permanent guardianships required nollce of the nght to be represented by counsel. to present evidence, to cross-examine adverse witnesses. to remam sllent, to be present and to compel the attendance of the professionals who prepared the evaluation required lor the guardianship hearing. In addition to the defects m the content of the notice requrred m a temporary guardianship, the Court criticized the fact that the guardian, whose interests could be adverse to those of the ward, was to give the notice and that the only time limitation specified, "forthwith:' was not further defmed.
he Evatt decision was handed down on February 2, 1987, during the regular session of the General Assembly. In order to prepare legislation for submission to the legislature, a committee of the Probate Law Section met to discuss the Court's decision and the changes it required. Debby Nye, general counsel for the Department of Human Services, had already prepared draft legislation which the committee used as a working document. The general outline for the needed changes had been clearly set out by the Supreme Court in its decision. The Court had even gone so far as to give samples of legislation in other areas - civil commitment, permanent guardianship and protective custody - which did not contain the !laws of the temporary guardianship statute. First, of course, was the requirement that notice must be gIven. The drall, whIch ultimately became Act 535 of 1987, required that notice of the entry of an order of temporary guardianship be given within 72 hours, with provisions for a hearing to be held within three working days of the entry of the order. (Although it's uncertain why the two time periods were set forth differently, perhaps it was to give additional time for a court proceeding to be scheduled if the order 01 guardianship was entered on a Friday.) Notice is required to be made on the ward by personal service unless the probate court determines that such notice carmot be made, in which case notice must be made to such person as the court directs. The act further requires that the notice contain all the matters set forth by the Supreme Court. (This was done by simply specifying that the content of temporary guardianship notices be the same as in permanent guardianship proceedings.) Act 535 of 1987 does not apply to proceedings for the temporary guardianship of a person who is age 14 or younger. This provision was included since the rights needed by an adult over whom guardianship is sought because of alleged incapacity are not needed by minors. Temporary guardianships of minors occur most ollen in infant adoptions and the requirement 01 notice with the right to a hearing at which the ward an infant - could appear and cross-examine witnesses would be useless. Fourteen was selected as the cutoll age because this is the age at which notice must be made on a minor for whom permanent guardianship is sought, and it seemed wise to be consistent. Act 535 was signed on April L 1987, and contoined an emergency clause, making it immediately ellective. 1000Arkansas Lawyer/july 1987
hile Evatt's legal significance was primarily in regard to temporary guardianship, it also was instructive in regard to permanent guardianshIp. In finding the notice provisions of the temporary guardianship law inadequate, the Supreme Court compared them with the notice provisions of the permanent guardianship law. Those proVISIons were not there before passage of Act 345 of 1983. Until its passage, the same notice which the Court found conshtutionally inadequate in temporary proceedmgs applied in permanent proceedings as well. It IS qwte clear that if the bar members who opposed Act 345 had decided simply to seek its repeal and the reinstatement of the prior law, and had succeeded in doing so, that law would have been struck down by the Court at the earliest opportunity. The wisdom of the course selected - preserving the major reforms of Act 345 while making its operation easier - looks even better with the hindsight provided by Evatt. Future Outlook Alter the major changes to the guardianship law over the last five years, what can we expect for the future? First, there is no sentiment, at least in the legal community, for any major changes. Only technical corrections have been proposed to the commIttee of the Probate Law Section which is currently reviewing the law. Of course, as the lawyers and judges of Arkansas work with the current statute, new problems in its operation may arise. Second, to a large extent, the whole upheaval in our guardianship law merely rellected a national trend. The "limited guardianship" approach had been adopted in 19 states before Act 345 was enacted.' While some of the changes which Act 345 made were abandoned by Act 940, most of the significant ones remained and Arkansas' guardianship law is now rather typical. Third, although there is no current impetus for a major reform, some of the lawyers and judges who participated in the past ellorts to revise the guardianship procedures have become mterested m the Uniform Guardianship and Protective Proceedings Act. While there are many advantages in this comprehensive and well-dralled legislation, it is doubtful we'll see any great ellort for its enactment any time soon since the substance and procedure of our current law seems adequate to most of the people involved in the procedure. In addition, the ellorts those of us who use the guardianship law have made in learning, unlearning, drafting and lobbying have left us exhausted for the time being. Therefore, our current law is likely to be with us in form, more or less, for the next several years. 0 FOOTNOTES IDicker. "Guardianship: Overcoming the Last Hurdle to Civil
Rights lor the Mentally Disabled:' 4 U.A.L.R. L.f. 485, 489. "Letter from Sheryl Dicker to Jack McNulty, chair of the Arkansas Bat Association's Jurisprudence and Law Reform Committee,
dated luly 27, 1983. 3Id. 4Id. SOpinion of the Attorney General of Arkansas. No. 83-210. 'Ark. Stat. Ann. sec. 57-835 (1985 cum. supp.), '291 Ark. 1S3 (987). -Letter from Sheryl Dicker. cited in note 2.
LAW. LITERATURE & LAUGHTER
Mercutio's line in Romeo and Juliet shortly before his death: "Ask for me tomorrow and you shall find me a grave man." Or Lady Macbeth's post-murder statement: "If he do bleed. I'll gild the faces of the grooms withal; for it must seem their guilt." Puns run rampant in the world of law and politics. A proposed "antiabortion" amendment to the Arkansas Constitution failed in 1986. It
A lawyer's world is fraught with picturesque "slanguage." We have books to be thrown at people; money left on tables; fruit from poisonous trees; cows that eat forbidden cabbage; wells that can't be gone to too often; bullets to bite, and an ample amount of bootlicking, brown-nosing and certain other descriptive terms.
Oxymorons. An oxymoron is a conspiracy between words to make sense with contradictions of terms. Classic examples are slow speed,
must have been a misconception.
The criminal judge with an ac-
sweet sorrow. deafening silence and
cused prostitute before him is asked
terribly happy. Comics over the years have identified jumbo shrimp. military intelligence and student discipline. to add spice to the concept. There are also one-word oxymorons, such as freeway. Safeway. freewill. ovenproof and brief. Occasionally one encounters a multiword phrase that boggles the mind with internal incongruities. In our nation's Capital in 1983. I checked in for a return flight to Little Rock. I was told it had been canceled. Not to worry, the airline agent said. My flight would reoriginate in St. Louis, to which I would be flown free of added charge. I was not about to ask how something could be reoriginated. I was sure I had found the Platonic Ideal of one-word oxymoronia. Since the flight had been canceled before its scheduled takeoff. I also was dealing with preorigination cancellation. And. since notice had not been given to the passengers and the new flight was taking off later in a distant city, I was clearly experiencing a unilateral multiphasic inter-city time-delay post-
to adjudicate miss behavior. In so doing he observes the miss' demeanor. Her lawyer argues. "My client's activity did not warrant arrest." In landlord-tenant negotiations, one party capitulates to the other's demands. It's the lease he can do. In the Supreme Court, one is sure to find appealing attorneys. Miscellaneous. The pun and the oxymoron are not alone in the legal world. Many metaphors are firmly entrenched. Litigants have a burden of proof. Lawyers lead their witnesses. Sometimes verdicts are shocking to the conscience of the court. Cases survive motions to dismiss.
By Vic Fleming
Redundancy abounds. Lawyers seldom just say things. They allege and state. Testators don't leave things to their heirs, they give. devise and bequeath. Grantors grant. bargain. sell and convey property;
preorigination cancellation reori-
that jury instructions must have been oxymoronic. Plea bargain has a contradictory ring to it. Privilege tax. labor negotiations. Uniform Commercial Code. law license ... Puns. A pun is a "play on words." A famous example of a pun is Jesus' statement, "Thou art Peter (Petros). and upon this rock (petra) I will build my church." Matthew 16: 18. It loses
something in the translation from
summation, had used every con-
Greek to English. People who say a pun is the lowest form of humor are off base, One scholar has noted, "Puns are good, bad. and indifferent. and only those who lack the wit to make them are unaware of the fact." Shakespeare used puns. Note
ceivable "epithet of abuse" to describe his party adversary. Stopping for an instant to think, he added, "This naufrageous ruffian." When friends later asked the meaning of the word, "he confessed he did not know, but said he thought it sounded well." 0
The legal world has oxymorons: divorce proposal. trial separation,
friendly dispute. test case and grand jury. In certain courts, your Honor
seems contradictory, as does administrative procedure in certain
governmental agencies. The losing attorney might think 1000Arkansas Lawyer/July 1987
time periods run from and after a
date and judgments are had and recovered from and against folks. Then, of course. there is the occasional ingenious use of a word that baffles all the listeners. The story is told of an attorney who. in his
ECONOMIC AND STATISTICAL ANALYSIS Litigation support including research. report writing and expert testimony addressing economic. financial and statistical issues. Data review Business valuations Managerial prudence Structured settlements Analysis of damage estimates arising from tort and contract disputes
JOHN PICKETT & ASSOCIATES. INC. Economic Consultants P. O. BOX 1296· CONWAY. AR 72032 Ring: (501) 371-2992. After-hours (501) 329-5862
PRIVATE INVESTIGATION aker
~Se~urities ooe oeo ooe ace
State Police Investigator • Proven Integrity • General Investigation
• Video Depositions
• Insurance Defense
• State and Worldwide Travel
• Theft & Fraud Investigations
• Plaintiff Investigations
• Missing Persons
• Background Checks
1523 S. Broadway Little Rock, AR 72202
Tommy L. Baker Owner July 1987/Arkansas Lawyer/l07
DISCIPLINARY ACTIONS February to April The Arkansas Supreme Court Committee on Professional Conduct from February to April 1987, issued one letter of reprimand, three letters of caution and seven letters of warning. It also reinstated the law license of Barry Watkins of Springdale. Watkins' license was suspended for one year in February 1986. The Committee took no action on 78 informal complaints and voted "no action warranted" on 23 formal complaints.
Letter of Reprimand Gamer Taylor, Jr., of Little Rock, was issued a letter of reprimand in April for violation of Rule 8.4 of the Model Rules of Professional Conduct involving the reporting of professional misconduct. According to information obtained from the Sebastian County Prosecuting Attorney's Office, Taylor was charged in November 1984, with aggravated assault following an incident in which he fired shots at a taxicab. The charge was reduced and Taylor pleaded guilty to first degree assault. In his response, Taylor admitted that he was charged with the offense and said that he was subsequently placed on probation for one year on the reduced charge. He said that the incident occurred after his wallet and keys were stolen and that he had no intention of causing harm to the thief or to any other person.
Letter of Caution Marshall Carlisle, of Fayetteville, was issued a letter of caution in February for violations of Rules 1.3, involving diligence, and 3.2, involving expediting litigation, of the Model Rules of Professional Conduct. Carlisle was hired in 1980 to represent a client and other family members in a wrongful death case. In 1982, when contacted by the client about the status of the case, Carlisle said he had allowed the statute IlJ8IArkansas Lawyer/July 1987
Complaints Against Attorneys On the Rise A
six·year study of disciplinary actions by the Arkansas Supreme Court's Committee on Professional Conduct shows that the number of complaints filed against attorneys is on the rise. Data collected since 1981 indicate that: • Since 1981. complaints filed against attorneys bave increased 42 percent; • Twenty-one percent of all complaints filed witb tbe Committee in 1981 required affidavits, compared to 26 percent in 1986; • Nineteen percent of complaints filed lor action resulted in disciplinary action in 1982 and 40 percent resulted in disciplinary action io 1986 - a record higb for the period; • The top fow reasons given for fiI· ing complaints against attorneys are: - lailwe to perform; - neglect; - lailwe to communicate, and Editor's Note; The data presented in Tables I and 11 were collected by Walter R. Nibloc1<, 01 fayetteville, during his seven yems as a member 01 the Arkansas Supreme Court's Committee on Prolessional Conduct. Our thanls to Ann R. Henry, chair of the Arkansas Bar Association's Prolessional Ethics and Grievances Committee. lor her assistance in
presenting this data. of limitations to run. In his response to the complaint, Carlisle said he had had very little contact with the client. He said that he did contact the insurance company and had conveyed a settlement offer to the other attorney involved in the case, but the settlement was not accepted. Instead, the family wished to lile a lawsuit, he said. Carlisle said he
- misrepresentation. Table I repreRllts the tota1 number of complaints received by the Committee's executive secretary since 1981 and the lolal number of disciplinary actions administered. Please note that from 1981 to 1982. reprimands and cautions were combined. In addition, warnings were DOl approved for use by the Committee until March 1985. Initially, inquiries or complaints against lawyers are received by the Commillee's executive secretary. eitber in person or by telephone. then investigated. The investigation includes written c0rrespondence, telephooe calls to the allorneys, complainants and witnesses involved. checking of court records, personal conferences and interviews. Affidavits are prepared on those complaints requiring review by the entire Commillee. Disciplinary action against an attorney is detenn1Ded following informal and formal hearings by !be Commi~. Table n lists !be complaints received from 1981 to 1986 by classification. Sometimes a complainant lists multiple reasons for Beelring disciplinary action. It is interesting to DOle that failure to perfect an appeal and problems with the statute of limitations - each a nightmare for attomeys - appear in the middle of !be list. As !be evidence suggests, good communications and organizational habits might help keep your name out of Ibis column. Review th_ 8lalislics and do a legal checklist to see how your practice ratesl felt no obligation to file the lawsuit because no arrangements were
made in advance for his lee or lor the payment of out-of-the-pocket expenses.
CHARLES E. DAVIS
Letter of Caution Charles E. Davis, of Springdale, was issued a letter of caution in
DESCRIPTION Total Complaints (infonnal and fonnal) Total Fonnal Complaints (requiring affidavits) Complaints Filed for Action Total Disciplinary Actions Reprimands Cautions Warnings Sunenders of Ucense Suspension Disbannent Suits Disbannents Cites for Contempt
TABLE! Complaints Received/Dlsclpllnary Actions Administered 1984 1985 1981 1982 1983 1318 1171 1287 1154 1138
145 33 13 18
20S 49 16 13 12 6 I (6 mo.) 1
144 58 31 3 16 5 2 (J yr.)
232 118 63 28
IS 3 2 2 I
Table D Complaints by ClaullicaliOll Failure to perform Neglect Failwe to communicate with client Deceit. fraud. misrepresentation Undue delay Fee dispute Failure to tum over file Conflict of interest Incompetence Misappropriation of funds Engaged in illegal conduct Failure to perfect an appeal Harassment Failure to pay debts Allowed statute of limitations to run Refusing to withdraw Improper withdrawal Acquiring interest in litigation Advertising Communicating with one of adverse interest Solicitation Commingling of funds Limiting practice Ineffective counsel Revealing confidential iruormation Dividing fees with non-lawyer Pending
February for violation of Rule 1.7 of the Model Rules of Professional Conduct involving conflict of interest. Davis had represented a client in a 1982 divorce case. The client and his wife reconciled and the case was dismissed. Davis later represented the client's wife in a 1984
divorce case. In his response. Davis
1982 41 96 SO 29 12 39 19 19 10
13 8 10
89 64 52 20
16 19 7 13 8 9 5
1984 139 137 SO 74 31 42 34 22 22 14 14 12 11 5
24 37 19 36 16 11 12 18
1985 230 167 ISO 171 lSI 112
124 78 69 47 33 19 12 7 9 2 9 10
4 4 7
5 4 5 4 2 I
admitted to representing opposing parties.
Letter of Caution Gary Person, of Fort Smith, was issued a letter of caution in April for violation of Rule 1.3 of the Model Rules of Professional Conduct in-
TOTALS 551 517 438 404 283 277 146 100 100 60 59 51 49
36 3S 14 13 12 12 10
8 7 5 4 2 I 289
volving diligence. Person was hired to handle a bankruptcy for a client in January 1986. He told her the bankruptcy had been filed, but the client learned in March 1986, after her car had been repossessed, that Person had not filed the bankruptcy. Person said the bankruptcy petition was filed on April 11. 1986. 0 July 1987/Arkansas Lawyer/l09
Joe Edward Purcell Joe Edward Purcell. aged 63, of Benton, a political veteran who served as attorney general. chair of the state Democratic Party, lieutenant governor and - for seven days -
governor of Arkansas. died
Thursday, March 5, 1987. Purcell twice ran unsuccessfully for governor, in 1970 and 1982, but never let defeat stop him. "The truth is, I've been running (or governor all my life:' he said in 1982, the Arkansas Gazette reported. While serving as lieutenant governor in 1979, Purcell was inaugurated governor when David Pryor resigned one week before his term as governor expired. to take a seat in
the United States Senate. At the end o( that week, Bill Clinton was inaugurated as governor and Purcell was sworn in again as lieutenant governor.
Purcell came to the state's attention in 1966 when he defeated the incumbent attorney general. Bruce Bennett. A Democrat, Purcell took office the same year as Governor Winthrop Rockefeller, a Republican, and although they were olten at odds, both contributed much to 1l00Arkansas Lawyer/July 1987
the cleanup of Arkansas politics. One of his first acts as attorney general in January 1967 was to file a lawsuit against Arkansas Loan and Thrift Corporation, a hybrid savings institution that defrauded thousands of investors of their savings, the Gazette reported. The company, which had operated with the tolerance o( Governor Orval E. Faubus' administration, was closed and three officials were sent to prison, As attorney general. Purcell wrote the state's first comprehensive consumer protection law and a recodification of the state's election laws aimed at stemming election (raud. He remained in that office until 1970, when he ran unsuccessfully for governor in the Democratic primary against Dale Bumpers and (ormer Governor Orval Faubus, among others, and narrowly missed a runoff. Purcell endorsed Bumpers in the runoff. The next year, with Bumpers' support, Purcell was elected chair of the Arkansas Democratic Party, He served two terms, resigning in 1974 to run for lieutenant governor.
One of his more notable campaigns reportedly was for governor in 1982, when he and Clinton de(eated three other candidates in the primary. He was defeated by Clinton in the runoll by a margin o( about 36,000 votes. After his defeat, Purcell went on to head Paul Riviere's unsuccessful campaign for Congress in 1984 and worked in the successful petition drive that year to extend the terms of constitutional offices to four years. Although he stayed out o( the political spotlight (or the most part alter 1982, he continued to practice law in Saline County, where he began his political career. (He was Benton's city attorney from 1955 to 1959 and its municipal judge from 1959 to 1966,) Purcell was born at Warren and had lived at Benton since 1952. He was an Army veteran of World War II and a 1952 graduate of the University of Arkansas School of Law, Fayetteville. He was admitted to the Arkansas bar in 1952. He was a 34-year member of the Arkansas Bar Association and was
a member of the American Bar Association, the Arkansas Trial Lawyers Association, the American Legion and the Benton Lions Club. In 1967 he served as vice-chair of Law Day USA in Arkansas and in 1976 he served as chairof the state's commission on the bicentennial of the United States. Purcell served on the board o( directors of the Ouachita Area Girl Scout Council from 1963-67, was the district chancellor of Delta Theta Phi Law Fraternity (or central and southern Arkansas from 1971-80 and was the state chair for the March of Dimes in 1975-76. He was also the director of the Alumni Association of the University of Arkansas at Little Rock. Purcell was a member of the First Methodist Church of Benton and served as chair of its Commission on Missions, chair and vice chair of its official board, church trustee, lay delegate to the Methodist Annual Conference and <;hurch lay leader. Survivors are his wife, Helen Hale Purcell; two daughters, Ede Hogue o( Fayetteville and Lynelle Lehman of Little Rock; his mother, Lynelle Purcell of Little Rock; a brother, Fred Purcell o( Ogden, Utah; a sister, Ede Sharkey of Little Rock, and three grandchildren.
Thomas Lee Cashion Thomas Lee Cashion, aged 75, of Eudora, died Tuesday, March 31. 1987. Cashion was the former mayor of Eudora, the (ormer Eudora fire chief and the former president of the Arkansas Municipal League. He was a SO-year member of the Arkansas Bar Association, a Navy veteran of World War II and a former American Legion commander. Cashion was a Presbyterian. Survivors are his wife, Juanita Norrell Cashion; a daughter, Susan Cashion of Monticello; two sons, Ward Cashion o( Mandeville, La., and Mark N. Cashion of Eudora, and three grandchildren.
Jobe Ennund Hoggard, Sr. jabe Ermund Hoggard. Sr.. aged 71. of EI Dorado. died Saturday, March 21. 1987. Hoggard served as EI Dorado city attorney from 1952-1961. He was born April 23, 1915, at HoIland, the son of the Rev. j.H. and Annie Mae Flemming Hoggard. He was a graduate of Hendrix College at Conway and received his law degree from the University of Arkansas School of Law, Fayetteville. Hoggard began his law practice in El Dorado in 1948. He was a 39-year member of the Arkansas Bar Association and a member of the American Bar Association and the Union County Bar Association. Hoggard was a retired first lieutenant in the Marine Corps and a veteran of World War II, receiving the Distinguished Service Medal and the Purple Heart. He was a member of the EI Dorado First United Methodist Church. Survivors are his wife, Robbye Noble Hoggard; a daughter, Martha Anne Cripe of EI Dorado; a son. jabe E. Hoggard, !roo of EI Dorado; a brother. Kendall Hoggard of Conway; two sisters. Maxine jones of Fort Smith and Mary Hendrixson of Conway. and four grandchildren.
Holman served as deputy prosecuting attorney for johnson County from I!l)() to 1963. In 1969 he was elected municipal judge and served until 1972. He was elected city attorney in 1982. but resigned after being appoin ted municipal judge by former Governor Frank White in january 1983. Holman lost a March 1983 special election to fill the position permanently. Holman was a 27-year member of the Arkansas Bar Association and served on its Local Court Rules Committee. He was also a member of the American Bar Association, the Arkansas Trial Lawyers Association and the Conway Rotary Club. He was a member of the Clarksville Board of Education in 1965 and a veteran of the Korean War. Holman was a member of the First United Methodist Church. Survivors are his wife. Carol Holman; two daughters, Kimberly Kay Holman and Andrea Lynn Pearson. both of Clarksville; a son, james Michael Holman of Clarksville; a brother, Dr. W. T. Holman of Victoria, Texas; a sister, Donna Moore of Little Rock, and two grandchildren.
Jerry J. Screeton jerry j. Screeton. aged 88, of Hazen. died Thursday. March 12. 1987.
J. Marvin Holman J. Marvin Holman. aged 58, of Clarksville, died Wednesday, February 25, 1987. Holman was a former Clarksville city attorney and johnson County municipal judge. He graduated from Arkansas Tech University in 1955 and the University of Arkansas School of Law. Fayetteville in 1959.
Screeton was a former state sena-
tor and mayor of Hazen and the town's first municipal judge. He was a retired lawyer. landowner. builder and bonker. A former naval officer, Screeton was elected at age 27 as county treasurer in 1926. He was the youngest person ever to hold a Prairie County office. Scree ton wen t to Washington. D.C .. in 1930 to serve as administrative assistant to former United
LEGAL BRIEF PRINTING PARAGON Printing & Stationery Company has been printing briefs for over 35 years. Can we be of service to you? 311 East Capitol Little Rock 375-1281
States Representative john E. Miller. He studied law by taking correspondence courses there and
passed the bar in 1933. He served on Miller's staff until 1936. Screeton was thought to be a likely candidate for Congress from the Second District seat when Miller was elected to the U.S. Senate in 1937 after the death of joe T. Robinson. But Screeton chose not to run and Wilbur D. Mills was elected. Screeton then went to Washington as Mills' administrative assistant in 1939-40. During World War II, Screeton entered the construction business and was a partner in the Crowley. Screeton and Robinson firm and the BucTon Construction Company. He began a career in bcmking during the war. In 1945. he organized the Prairie County Bcrnk and served as its president until 1983. Screeton was elected mayor of Hazen in 1942 and served until 1978 except for an eight-year stint in the state legislature. Screeton was elected to the state Senate in 1944. He was appointed to the state Commerce Commission by former Governor Orval E. Faubus. He was a member of the Central Arkansas Planning Commission and was the organizer and a former Board member at Producer's Rice Mill at Stuttgart. Screeton was a former member of the Hazen Board of Education, a Mason, a World War I Navy veteran and a member of the American Legion and the Veterans of Foreign Wars. Screeton was a member of the First United Methodist Church. Survivors are his wife, Hazel Screeton; a daughter, Sally Sparks of Hazen, and two grandchildren and two great-grandchildren. 0
TECHNICAL路EXPERT ENGl路 NEER, BSMEIPE - Accident reconstruction, automotive, machinery, aerospace, small structures. street lighting, roadside hazards. James Yule. 6600 NW Sweetbriar Lane. Kansas City, MO 64151. (816-741-9441) July 1987/Arkansas Lawyer/lll
Arkansas IOLTA Program
First Quarter an Exciting Time By Susanne Roberts
IOLTA program. Scholarship recipients will be selected on the basis of The first quarter of 1987 proved to need, merit and geographical disbe an exciting time for the Interest tribution. on Lawyers' Trust Accounts proAs mentioned earlier, the Argram. Lawyers and financial r - - - - - - - - - - - - - - - - - - - - - , kansas bar favorably respondinstitutions continued to join ed to recruitment efforts during IOLTA and interest earnings the first quarter of the year. grew to more than $30,000. The Our special thanks goes to total amount collected in 10 Jerry Post of Batesville. Post short months reached nearly was named recruiter of the $50,000. quarter for swamping the The Arkansas IOLTA FounFoundation's office with endation, Inc., board of directors rollment forms, signing up almet in March and named its most all the lawyers in Batesfirst grantees. ville in a two-week period. The board granted $30,000 to Washington and Benton Counthe six Legal Services proty lawyers were also overgrams in Arkansas based on whelmingly supportive of the the percentage of poor people IOLTA program. A visit to Fayresiding in each program's serelteville, Springdale, Bentonvice area. The breakdown for ville and Rogers saw the eneach program is: rollment in one week of 40 • Central Arkansas Legal more firms and solo pracServices (24.2 percent), titioners in the IOLTA program. $8,228; Our congratulations to Herman 1. Hamilton, Jr., of Ham• Legal Services of Arkanburg, for receiving the C. E. sas (22.4 percent), $7,616; Ransick Award of Excellence. • East Arkansas Legal (17.5 percent), $5,950;
and the other the"Arkansas League of Savings Institutions IOLTA Scholarship" in recognition of the substantial contribution of Arkansas financial institutions to the
• Ozark Legal Services (13.9 percent), $4,726; • Legal Services of Northeast Arkansas (12.1 percent), $4,114, and • Western Arkansas Legal Services (9.9 percent), $3,366. The board also granted $3,000 to each law school in the state for scholarships. It designated one scholarship the "Arkansas Bankers Association IOLTA Scholarship" lt2lArkansas LawyerlJuly 1987
HANDWRITING EXPERT Scientific examination of Handwritten, Typewritten, Printed, Altered. Obliterated, Charred and Office Copier Documents; Ink and Paper Analysis, Dating and other document related problems. Diplomate of the American Board of ForenSIc Document Examiners, Inc. Member of the American Society of Ouestioned Document Examiners and the American Academy of Forensic Sciences.
ROBERT G. FOLEY FORENSIC DOCUMENT EXAMINER 1109 North 4th Street Monroe. LA 71201 318-322-0661
Qua/died and Experienced Expert Witness in Federal, Scate. Municipal and Military Courts.
NOTICE TO FINANCIAL INSTITUTIONS DATE: FROM:
TO: Financial Institution Name
Lawyer or Law Firm Name
The undersigned elect(sl to participate in the Arkansas Interest on Lawyers' Trust Accounts Program (lOLTA) as authorized by the Arkansas Supreme Court, Under this program, interest on the trust account described below will be paid directly to the Arkansas 10LTA Foundation, Inc" rather than being credited to the undersigned:
The funds currently deposited to this account. and all future deposits, should be placed in an interest-bearing account subject to negotiable orders of withdrawal. Interest on the average monthly balance in the account. or as otherwise computed in accordance with your standard accounting practice, should be remitted to the ARKANSAS IOLTA FOUNDATION, INC" 209 W. CAPITOL AVENUE, SUITE 337, UTTLE ROCK, ARKANSAS 72201. The Foundation's tax identification number is 710611874, You are not required to report the interest income (IRS Form 1099), but if you elect to do so, show the Arkansas 10LTA Foundation, Inc, as recipient. Each remittance must be paid by check at least quarterly. If your institution has trust accounts for more than one lawyer or law firm participating in this program, you may make a single remittance for all at the same time. Each remittance must be accompanied by a document which shows the exact allocation of a lump sum payment among the participating lawyers and firms who have accounts at your institution. This document requirement may be fulfilled by choosing one of two methods: I) Enclose a copy of each participating lawyer's or law firm's account statement that is routinely prepared by your institution with each remittance or 2) Enclose an "Interest on Lawyers' Trust Accounts Interest Remittance Report" with each remittance. We hope that you will waive any charges in order to benefit Arkansas citizens, but reasonable service and activity charges may be deducted from each remittance and should be listed on the "Interest on Lawyers' Trust Accounts Interest Remittance Report."
Authorized Signatory or Signatories:
Return this form to: Arkansas 10LTA Foundation, Inc. 209 W. Capitol Avenue, Suite 337 Little Rock. AR 72201 luly 1987/Arkansas Lawyer/1l3
ATTORNEY HONOR ROLL (February \, 1987 to April 16, 1987)
ARKADELPHIA McMillan, Turner & McCorkle
EL DORADO Legal Services of Arkansas
LINCOLN Boyce R. Davis
ASHDOWN Hawkins & Metzger
FAYETTEVILLE Larry R. Froelich William Russell Gibson Hanks, Gunn & Borgognoni Curtis E. Hogue Jill R. Jacoway Jones & Reynolds Mashburn & Taylor McAllister & Wade Ronald M. McCann Richard L. Miller Walter R. Niblock Law Offices Richard P. Osborne Ozark Legal Services Joe B. Reed Jim Rose III Lanny K. Solloway Raymond C. Smith Jay N. Talley
LITTLE ROCK Anderson & Kilpatrick Barron & Coleman Eichenbaum Law Firm Gruber Law Office Mike Hulen Collins Kilgore Legal Services of Arkansas Mays & Crutcher PerronL Rauls & Looney Mary J. Pruniski Whetstone & Whetstone
FORT SMITH Josef V. Hobson Shaw, Ledbetter, Hornberger & Arnold
MORRILTON Dale Lipsmeyer
BATESVILLE Steve Bell David M. Clark Harkey, Walmsley, Belew & Blankenship Highsmith, Gregg, Hart, Farris & Rutledge Hively & Ketz Murphy, Post, Thompson & Arnold Gary Vinson BENTONVILLE Clark & Clark Gocio & Dossey Lawrence & Huffman Little, McCollum, & George Skaggs & Chase BLYTHEVILLE John H. Bradley CAVE CITY Keith Watkins
HOT SPRINGS Lane, Muse, Arman & Pullen
CONWAY Hartje, DuPriest & Collier DERMOTT Gibson & Gibson Don E. Glover
JASPER Karen B. Walker JONESBORO Paul E. Hopper
FINANCIAL INSTITUTION HONOR ROLL (February 1, 1987 to April 16, 1987)
ARKADELPHIA 'Merchants & Planters Bank
CAVE CITY Bonk of Cave City
MENA Legal Services of Arkansas MONTICELLO Legal Services of Arkansas
PINE BLUFF Betty C. Dickey Eugene Hunt Maxie G. Kizer POCAHONTAS Riffel, King & Smith ROGERS Stephen A. Geigle Jim Johnson James G. Lingley Marian J. Wagner Williams, Brinton, Jackson & Pace
ASHDOWN First National Bank
fAYETTEVILLE McIlroy Bank & Trust
BATESVILLE Citizens Bank of Batesville 'First National Bank Independence Federal Bank 'Institutions denoted by a single asterisk have to date remitted interest to the foundation without deducting a fee.
JASPER Newton County Bank
SPRINGDALE Cypert, Crouch, Clark & Harwell Jeff C. Harper E. Kent Hirsch Rodney P. Owens Penix & Taylor James O. Strother
MORRILTON First National Bank
STUTTGART William M. Moorhead
114/Arkansas Lawyerl)uly 1987
PINE BLUFf 'Savers Federal Savings & Loan
YELLVILLE Bearden & Carter
JUDICIAL DEPARTMENT REPORT
Judicial Reform The Pace Quickens The recent enactment of Amendment 64. which increases the jurisdiction of municipal courts in civil cases. goes in that direction. Of im-
By R. Christopher Thomas
"Reform of the administration of justice is not sport for the shortwinded." Arthur T. Vanderbilt
mediate interest are more recent de-
Arthur T. Vanderbilt served as chief justice of the New Jersey Supreme Court and president of the American Bar Association. In both capacities. he had an intense interest in the administration of judicial systems. both state and federal. A review of judicial reform in Arkansas confirms Justice Vanderbilt's estimate of the pace of judicial reform. However. change in our ju路
dicial system has occurred. incrementally. during the last half century or so.
The following list relates those instances where our venerable 1874 Constitution has been "reformed." presumably to good purpose. (There have been other instances of administrative change in the judicial branch not founded upon constitutional reform. However. because of the nature of our Constitution. substantive change within the judicial branch typically requires a constitutional amendment.) 1924 -
Amendmen t 9 -
Increased size of
Supreme Court. 1936 - Amendment 21 - Allowed prosecution by information.
1938 - Amendment 24 - Concerned probate courts.
1938 - Amendment 28 - Supreme Court to regulate practice of law.
1956 - Amendment 43 - Legislature to set judges' salaries.
1978 - Amendment 56 - Created Court of Appeals. 1986 - Amendment 64 - Increased municipal court jurisdiction.
This record of incremental change suggests that. on occasion. a particular "defect" of our Constitution becomes so onerous, a remedy is
fashioned. Most of the time. these constitutional amendments have
been referred to the voting public by the General Assembly. In recent years. there have been two efforts to achieve a comprehensive change in the judicial article of our Constitution. In both instances. those revised judicial articles have been part of efforts to enact new constitutions. in 1970 and 1980. It is remembered that both proposals faired poorly at the polls. Although many of the reforms which were contemplated by those new articles are yet to be accomplished. some specific improvements have been. or are in a position to be. realized. For example. the creation of an intermediate Court of Appeals. which was accomplished in 1978. was an item suggested by the proposed judicial article of 1970. Additionally. both proposed judicial articles contemplated a trial court. on the county level. with expanded jurisdiction.
velopments. First. the Arkansas Supreme Court has held the juvenile court system to be unconstitutional. Walker vs. State of Arkansas. 291 Ark. 43. January 20. 1987. The legislature has responded by enacting temporary legislation. Act 14 of 1987. and. more importantly. has referred a proposed constitutional amendment to the voters. That proposed amendment will be considered in November of 1988. and. if enacted. will allow the General Assembly to set jurisdiction in malters concerning juvenile and bastardy proceedings. Second. the legislature. in cooperation with the Supreme Court. has referred to the voters a proposed constitutional amendment on judicial discipline. disability and removal. This too will be voted on in November of 1988. and. if enacted. will authorize the creation of a commission to review such matters.
Looking back over all this. changes seem to be occurring at an increasing rate. Indeed. it is clear there has been more jurisdictional change in the last two years than during the preceding 110 years of the life of our Constitution. Perhaps these recent developments are merely an exception to Justice Vanderbilt's rule. and. in the coming years. we will return to the more sedate pace evidenced earlier. On the other hand. perhaps this burst of energy will continue. leading to adoption of a new judicial article which will deal with many of the unfinished initiatives from the past. D luly 1987/Arkansas Lawyer/liS
EXECUTIVE DIRECTOR'S PAGE
Changes at Your Law Center By William A. Martin • Alter 13 years, the original carpet in your Arkansas Law Center has been replaced. The biggest challenge was picking the color. A committee of Arkansas Bar Foundation and Arkansas Bar Association officers and staff came up with as many color choices as there are combined members. The more we looked at what blended with the marble and the wood, the more we were convinced that the original interior decorator, Charles Mounts, had made a good color choice. For help, we turned to Victor Zanovich Interiors. He recommended dusty rose, a color similar to the one we had. The overall effect of the carpet, marble and wood blended together is pleasing beyond all our expectations. Almost everyone who has visited us seems to enjoy it also. • We increased the rows of photos of Foundation fellows from three to four to allow the addition of at least 100 more portraits of those who make a $1,500 contribution. • A new telephone system with more lines was installed in your Association's offices. We hope you will not hit as many busy signals when you call our local number, 3754605. The new phones offer many more features than did the previous push-button black phones we rented from AT&T. And, in four years, we should save enough in rent to own the new system. • Vour Association's staff is in the frustrating process of learning to use computers. We have two desktop IBM computers and a Laser Jet printer. Even our limited mastery of word processing makes our work
more efficient. We hope to convert our membership records from boxes of cards to a computer's memory in 1161Arkensos Lawyerljuly 1987
The Foundation's lease with the Pulaski County Law Library Board runs through November 2003 and produces just enough money to poy the mortgage on the Arkansas Law Center. When the law school eventually moves, the Law Library Board may seek to have their lease adjusted. Although the Foundation might be able to gain more income by becoming an active landlord, it may not wish to embark on that role. New Attorney's Oath The Arkansas Supreme Court has adopted a shortened version of the Attorney's Oath. lt is less detailed, incorporates ethical rules by reference and calls on lawyers to be faithful to their calling and guided by a spirit of professionalism. "I DO SOLEMNLY SWEAR AND AFFIRM: "I will support the Constitution of the
the near future. Planning and a cautious approach should enable us to be able to recover information in a usable form. • With the legislature putting money for the renovation of the Graduate Institute of Technology Building into Category B of the Revenue Stabilization Act. the move of the University of Arkansas at Little Rock Law School from the Arkansas Law Center will probably be delayed. Someday we must face the issue of how to appropriately use the Center without the law school. Housing legally-related, non-profit organizations such as the Arkansas IOLTA Foundation, Inc., the Arkansas Institute for Continuing Legal Education, the Arkansas Supreme Court's Committee on Professional Conduct and specialty bar associations may be more acceptable to member lawyers throughout the state than would be making the space available to law firms.
United States and the Constitution of the State ot Arkansas. and that I will foi th-
fully perform the duties of attorney at law. "I will exhibit. and I will seek to main· tain in others. the respect due to courts
end judges. "I will. to the best of my ability, abide by the Code of Professional Responsibility and any other ethics standards pro·
claimed by the courts, and in doubtful cases I will attempt to abide by the spirit
of those ethical rules and precepts of honor and fair play. "} will not reject, from any considera· tion personal to myself. the cause of the impoverished. the defenseless. or the
oppressed. "I will endeavor always to advance
the cause of justice and to defend and keep inviolate the rights of all persons whose trust is conferred upon me as an attorney at law."
Such oaths and codes of professional courtesy should cause us to think about our behavior and maybe even shock us into curing habits acquired unintentionally. 0
YOUNG LAWYERS' UPDATE
Too Few Volunteers Active in YLS the YLS have suffered burnout from the workload. Second. because of the small pool of active volunteers. the YLS has not been able to undertake a number of extremely worthwhile projects which have been successfully implemented by young lawyers' sec-
By J. Thomas Ray As the outgoing chair of the Young Lawyers' Section. it seems appropriate to use my last Young Lawyers' Update to reflect on where the Section has been and the direction it needs to go in the future. I became involved in the YLS in 1980 at its annual meeting in Hot Springs when I was elected to the YLS Executive Council as one of the two representatives from the Central District. Approximately IS young lawyers were in attendance at this meeting and. as memory recalls, I was elected by acclamation and without opposition simply because the only other young lawyer present from the Central District nominated me before I could nomi-
tions in surrounding states. Unless
our Section can devise a way to tap
a substantially larger pool of volunteers. it will be difficult for us to expand beyond our current ongoing projects. Agree to Become Actively Involved
Although I became involved with the YLS almost by accident. I continued to remain active in it over the next seven years for two reasons:
The YLS is responsible for carrying out many extremely worthwhile projects which I found interesting and rewarding to work on and (2) My involvement in the YLS allowed me to get to know and work with a small but extremely dedicated group of young lawyers from across the state. individuals like H.T. Moore from Paragould; Frank C. Elean. II from Harrison; Carl A. Crow, Jr.. and Michael H. Crawford from Hot Springs; Richard L. Ramsay from Pine Bluff; Edward Boyce from Newport, and Martha M. Miller from Little Rock. In working in the YLS. I quickly discovered that. while all lawyers under the age of 36 who are members of the Arkansas Bar Asso(l)
ciation are automatically members,
in any given year. only IS to 20 YLS members are responsible for carrying out all its projects. This situ-
ation has created two major problems. First. it has forced the relatively few young lawyers who are active in the YLS to shoulder an extremely heavy workload. For example. since 1980. the YLS has drafted. published and periodically updated the Senior Citizens' Handbook, The Guide to Arkansas Statutes of Limitations and the Criminal Law Handbook: organized and sponsored the fall and spring swearing-in ceremonies for new bar admittees; organ-
ized and sponsored the annual Practice Skills Seminar for new lawyers. statewide Law Week activities and Trial Practice Seminar. and carried out numerous special projects. such as recruiting volun-
teers for Arkansas Volunteer Lawyers for the Elderly (AVLE), handling disaster relief programs and cosponsoring the Statewide Mock Trial Competition. As a result. over a period of time. active members of
In May, the YLS Executive Council met to discuss ways to involve more young lawyers in YLS-sponsored programs and projects. Mike Crawford. the incoming chair. is enthusiastic and will place great emphasis on getting more young lawyers to participate in the YLS. In the coming months. all young lawyers in the Association will be asked to participate in one or more of the 1987-88 projects or programs that we will sponsor. In view of the worthwhile nature of these programs and projects and the opportunity to meet and work with other young lawyers, I hope that when you are contacted. you will agree to become actively involved. Finally. on a personal note. I have greatly appreciated the opportunity which you gave me to serve as chair of the Young Lawyers' Section. I also want to give special thanks to Judith Gray, Ruth Williams. Virginia Hardgrave and William A. Martin for all their hard work. support and assistance. Without them, it would be impossible for the Young Lawyers' Sec0 tion to function effectively. July t987/Arkansas Lawyerlll7
IN-HOUSE NEWS LAW SCHOOLS, A.I.C.L.E. AND HOUSE OF DELEGATES
UNIVERSITY OF ARKANSAS SCHOOL OF LAW, FAYEITEVIllE By J.
Law Week Activities The traditional activities of Law Week took on special meaning this year with the celebration of the naming of the law school complex as the "Robert A. Leflar Law Center." A full range of activities in-
volving students, faculty and alumni made Law Week a special time in the life of the law school. • The activities com-
menced with the law school serving as regional host for the American Bar Association Client Counseling Competition. Teams from Oklahoma, Kansas, Wyoming, New Mexico and Arkansas competed for the regional championship. The University of Wyoming team won the competition. The University of Arkansas team, consisting of
LaJeana Jones and Carol Williams, was one of the teams in the final round of the competition. Phi Alpha Delta held its initiation and co-hosted a reception for the teams with the US/Arkansas LawyerlJuly 1987
Washington County Bar Association. • Federal Judge Morris S. (Buzz) Arnold conducted a faculty seminar on curriculum planning. • Delta Theta Phi conducted a "Constitutional Bowl" competition for student teams. The team of Norton Rosenthal. Mike Stubblefield and Nancy Rahmeyer won the competition. • Arkansas Supreme Court Chief Justice Jack Holt, Jr., and Associate Justice David Newbern and Judge lim Cooper of the Arkansas Court of Appeals served as judges in the final rounds of the intraschool moot court competition. The team of Eileen Kradel. Ken McCulloch and Brent Sterling, and alternate Michael Barnes. was
selected to represent the law school as the national team. • U.S. Solicitor General Charles Fried gave the Hartman Hotz Lecture in Law and the liberal Arts. His topic was "Respecting the Law." • A special luncheon was held in honor of Dr. Robert A. Leflar's 60 years as a faculty member at the University of Arkansas and to celebrate the naming of the law school complex in his honor. Presenta-
tions were made by Mark Pryor, Student Bar Association president. University of Arkansas Chancellor Dan Ferritor, U of A System
president Ray Thornton and U of A Board of Trustees Chairman Kaneaster Hodges, Jr. Former Supreme Court Justice George Rose Smith was the featured speaker. • The week's activities concluded with LEFLARFEST. sponsored by Phi Delta Phi - a night of skits and entertainment by law students followed by a dance. Faculty Publications Bob Laurence's coau thored book, A Student's Guide to Sales. Letters of Credit and Documents of Title. has been released by Matthew Bender. Janet Flaccus article, "Handicap Discrimination Legislation: With Such Inadequate Coverage at the Federal Level, Can State legislation Be of Any Help?," appeared in the Arkansas Law Review.
Rod Smolla's reviews of Miller, "The First liberty: Religion and the American Republic," and Reichly, "Religion in American Public Life," appeared in Constitutional Commentary. A commentary, "How Should We Celebrate the Constitution?," and a review, "The Burger Years," both appeared in The New York Times. John Watkins served as editor of the Arkansas Media Law Handbook. a publication of the Arkansas Bar Association. His article, "The Arkansas Long Arm Statute:
Just How Long Is It?," appeared in the Arkansas Law Review. Charles Carnes' and Gene Banks article, "Share Valuation - A Chance for Financial Literacy," has been accepted by the California Western Law Review. Linda Malone has signed a contract with Clark Broadman for a book entitled Environmental Regulation of Land Use. Jake Looney's article, "What Happens To An Ag Co-op When A Member Goes Bankrupt?," appeared in Farmer Cooperatives, Other FaCulty Activities Dr. Robert A. Leflar was a speaker at the annual U of A Journalism Department banquet and received a special Distinguished Achievements Award. Robert B. Leflar spoke at the Clinical Ligand Assay Society's annual conference in St. Louis on "Consumer Protec-
tion and In Vitro Medical Products: A Critical Perspective on Regulatory Policy." He also presented testimony during the legislative session on proposed chemical "right to know" legislation. Joan Chapman presented testimony during the legislative session on "right to die" legislation. Charles Carnes participated in a workshop in arbitration training
and in AICLE's annual Labor Law Institute.
Ray Guzman presented a seminar for the Washington County Bar
dents Association on Agricultural Policy; served. on a site eva.lua-
Association on search
tion team for the Ameri-
and seizure and conducted bar examination lectures in Baltimore, Denver, Little Rock, Los Angeles, Philadelphia and San Francisco. Wylie Davis attended the semi-annual meeting of the National Conference of Bar Ex-
can Bar Association of
aminers Contracts Com-
mittee in Charleston, South Carolina. David Malone spoke to the Political Animals Club in Little Rock. Rod Smolla delivered testimony before the United States Senate Committee on Judiciary, Subcommittee on the Constitution. on a new
fair housing bill. He spoke at the American Culture Association meeting in Montreal on "Libel and the Changing American Character;" at the ABA Conference in Washington, D.C .. on "Libel in the Workplace," and before the International Communication Association Conference in Montreal on the first amendment and pol-propaganda. He also filmed a program for television on the Bicentennial of the U.S. Constitution. John Watkins was named chair of a Cable Television Task Force for Fayetteville. Howard Brill was named "Professor of the Year" by the Student Bar Association. He attended the Central States Law School Association meeting in Branson, Missouri. Jake Looney spoke to the Franklin County Cattlemen's Association and to Gamma Sigma Delta's annual banquet on the new tax bill; to the Agronomy Club/Graduate Stu-
Lewis and Clark College in Portland, Oregon, and attended the Central States Law Schools Association meeting in Branson.
Missouri. Don Pedersen, Janet Flaccus, Lonnie Beard, Jake Looney, Mary Beth Matthews and Linda Malone conducted a workshop on "Issues in Agricultural Law" for the Arkansas Extension Service LEADER class.
ARKANSAS AT UTIlE ROCK SCHOOL OF
LAW By Paula Casey West Publishing Company published Uniform Probate Code in a NutshelL Second Edition, by Dean Lawrence H. AverilL Jr.. on April 3, 1987. Professor Susan Webber Wright spoke at the Arkansas Bar Association's Natural Resources Law Institute in Hot Springs on February 26 to 28. The title of her speech was "Multiple Interests in Oil and Gas Ownership." Professor Fred Peel spoke to the Institute on the "1986 Tax Reform Act and the Energy Industry." Professor Peel and Professor Philip Oliver were both speakers at the AICLE Mid-Year Meeting in January. Professor Peel's speech,
"Tax Considerations in
Choice of Business Form - Partnership, Corporation, or S Corporation," and Professor Oliver's speech, "Deduction of Interest Expense and Other ltemized Deductions." were part of a
program on "How the Tax Reform Act of 1986 Affects You and Your Client." Professor Dent Gitchel organized the program. Professor Philip Oliver's article, "Systematic Justice: A Proposed Constitutional Amendment to Establish Fixed, Staggered Terms for Members of the United States Supreme Court," will be published in the next edition of the Ohio State Law Journal. Professor Oliver recently offered a continuing legal education course in basic income tax for the general practitioner. The course will be offered again in the fall. Distinguished Professor Thomas Morgan of Emory University School of Law delivered the Spring 1987 Altheimer lecture. His speech, "Screening the Disqualified Lawyer: The Wrong Solution to the Wrong Problem," will be published in the UALR Law JournaL Professor Roger Dworkin of the Indiana University at Bloomington School of Law spoke on April 9 as part of the Altheimer Science, Law and Technology Lecture Series. Professor Dent Gitchel organized the American Bar Association's Southeast Regional Mock Trial Competition. The competition was hosted by the UALR Law School on February 12 to 14. More than 70 Arkansas lawyers donated their time to judge the mock trials and the circuit and
chancery judges of Pulaski County allowed the trials to take place in the county courthouse. The law school honored the donors of scholarships with a reception on April 1 at the Arkansas Bar Center. Elizabeth Young Huckaby hosted a party in honor of the Arkansas Law School Alumni at her home on May 2. The Annual Meeting of the UALR Law School Association was held on June 12 at the Arlington Hotel in Hot Springs during the Annual Meeting of the Arkansas Bar Association. Professor Tim Kennedy resigned from the faculty to accept a position as the in-house litigation coordinator with The Marley Company, Inc., in Kansas City, Missouri.
Student Notes Student Bar Association President Patricia Lueken was elected governor of the American Bar Association, Law Student Division's 10th Circuit at a meeting in Hot Springs in March. Kyle Jennings and Rod McDonald participated in the William and Mary Invitational Moot Court Tournament in Williamsburg, Virginia, in March. The Student Bar Association's Annual Awards Banquet was held on March 14. Following the banquet and the presentation of academic awards and student organization awards, the students presen ted the 1987 Spring Follies. The following students have been selected for the 1987-88 Editorial Board of the UALR Law Journal: Mark Halter, editor-in-chief; Mary Wiseman, executive ed-
itor; Frank Arey, articles July 1987/Arkansas Lawyer/ll9
editor; Kim Golden, research editor; Paul Harrison, survey editor; Jon Taylor, notes editor. and Price Gardner. managing editor.
A.I.e.L.E. NEWS By Rae Jean McCall
the 1987-88 fiscal year. The following goals and objectives were identified: (I) To establish a comprehensive planning approach to continuing legal education curriculum by initiating program advisory committees in six practice
quality of CLE programs by:
Presentation." and d) Utilizing evaluation information from previous programs in the planning process;
(2) To develop a framework for needs
The executive committee of the AfCLE board of directors. comprised of President Dennis L. Shackleford of El Dorado. Vice President Wayne Boyce of Newport. H. Murray Claycomb of Warren.
specific practice areas; (3) To initiate contact with local bar associations and other legal
treasurer, and James M.
entities in Arkansas for
McKenzie of Prescott. secretary, met on March 12, 1987. Also in attendance were William A.
the purpose of soliciting input and involvement of members in CLE program planning; (4) To conduct a minimum of 90 contact hours of CLE programming in Ii ve-presen ta t ion for-
Martin, executive direc-
tor, and John F. Stroud. Jr., president elect. of the Arkansas Bar Association. The committee reviewed the progress of the corporation for the current fiscal year and recommended to the entire AICLE board, for consideration a1 its annual meeting in June,
goals and objectives for
assessment which includes a minimum of
eight focus-group meetings to solicit information from attorneys in
(5) To provide a minimum of 40 contact hours of satellite TV programming; (6) To explore alternative delivery systems for CLE programming; (7) To improve the
0) Encouraging program committees to initiate the planning process early; b) Developing a consistent process for the form and structure of course materials; c) Disseminating information to faculty on "How
to Make an Elleclive CLE
(8) To implement a system for administering CLE credits for participants in all AICLEsponsored programs; (9) To initiate the marketing of services and products in the following areas: client education, law office staff education and in-house training services, and
(10) To develop a program of awards and recognition for outstanding contributions to CLE efforts. Recognition for Previous Programs
A great deal of indebtedness is extended to the many. many Arkansas attorneys who have volunteered their time and talents to de-
TOM M. FERSTL, MAl, SREA Suite 400, Continental Building 100 Main St., Little Rock, Ark. 1-501-375-1439 Court Testimony ... Real Estate Counseling ... Feasibility Studies Commercial and Residential Real Estate Appraisals
Arkansas Bar Association Arkansas Realtors Assn. Society of Real Estate Appraisers Amer. Institute of Real Estate Appraisers
1201Arkansas Lawyerljuly 1987
velop and present programs for the benefit of their professional colleagues. Special recognition is due to:
• Randall G. Wright of Little Rock for chairing the Labor Law and Labor Relations Seminar on April 9-11 at DeGray State Lodge and Convention Center;
• Joseph M. Erwin and John C. Lesse!. both of Little Rock. for cochairing the 1987 Tax Awareness Institute: A Primer on Farm Taxation
Issues on May I at the Excelsior Hotel in Little Rock; • Stanley R. Langley of Jonesboro for chairing the Financial Institutions Law for Lawyers and Lenders Seminar on May 15 at the Riverfront Hilton fnn in North Little Rock, and • Michele A. (Mikki) Harrington of Springdale for chairing the Local and State Government Law Seminar on
June 24 at the Arlington Resort Hotel in Hot Springs. Preview of Upcoming Programs The 1987 Practice Skills Course will be conducted on September 2-4 at the Holiday Inn City Center in Little Rock. Two sessions of a one-
day program entitled Basics of Bankruptcy have been scheduled for September 18 at the Fayetteville Hilton Inn and for September 25 at the Riverfront Hilton Inn in North Little Rock. The Fall Legal Institute on October 22-24 at the Sheraton Inn in Fort Smith will concentrate on Legal Aspects of Business Organizations. 0
FEDERAL PRISONS Facts and Fiction by R. Wayne Lee, B.A.,
A 1987 Comprehensive Guide describing the Federal Prisons in the U.S. Helpful Hints for Attorneys, Clients, and others in the criminal justice system.
Many Sample Forms including Pardons, Parole, and Freedom of Information requests. A Complete Listing of the Federal Prisons, Federal Courts, and more. Informotion About Daily Life in Federal Prisons, "Halfway Houses," and on Parole.
"This book is must reading for all persons involved in the federal justice system." SE D CHECK OR MONEY ORDER TO: Legal Publications of Arkansas P.O. Box 6619 No. Little Rock, AR 72116
Address Send _ _ copies at $34.95: Add $2.00 per copy postage: Allow 6-8 weeks delivery TOTAL ENCLOSED:
ATTORNEY'S ECONOMIC CONSULTANTS "A Division of Education and Research Associates. Inc." SERVING THE LEGAL PROFESSION WITH EXPERTISE IN THE FOLLOWiNG AREAS; Workmen's Compensation (Lump-Sum Settlement Calculations) Evaluation of Lost Earnings Capacity from Partial or Tolal Permanenl Disability or Wrongful Death Economic Valuation of Pecuniary Damages in Business Tort. Con-
Zip _ _
MISSING AND UNKNOWN HEIRS LOCATED NO EXPENSE TO THE ESTATE
tract and Anti-Trust Cases Valuation of Minority Stock Holdings in Estate Settlements
Economic Analysis lor Charters or Branch Applications lor finan-
WORLD路WIDE SERVICE fOR
Structured Settlement Pricing and Design QUAUfIED AS EXPERT WITNESS IN ARKANSAS AND OTHER JURISDICTIONS
P.O. Box Drawer 34117 Little Rock. Arkansas 72203
(501) 661-0161 Out-ol-state call: 1-800-221-2717
COURTS - LA WYERS - TRUST OFFICERS ADMINISTRATORS - EXECUTORS
AMERICAN ARCHIVES ASSOCIATION INTERNATIONAL PROBATE RESEARCH
1350 N. Y. Ave.. N_ W. Suite 605 Washington, D.C. 20005
acorporate kit by its cover
The cOI'er or the corporate kil you select is one or the ways your clients judge your work. Do your corporate kits make a positive slatement about the quality or the documenlation Ihey conlain' They do ir you select the Ex libris" kit rrom Excelsior-Legal". The Ex libris' elegant brown padded vinyl cover simulates the texture or fine grained leather. And your client's name is delicately embossed on Ex libris' spine in genuine 24K gold, providing the look or a fine colleclor's edition on your shelr. Ex Libris' functional single piece binder design protects your dent's docunlt:nts IOU, by shielding them against stray dust,
rolding and mangling. And the lOP cover fits smoolhly over the kit's base which is secured wilh a reliable Velcro" rastener. Each Ex Libris kit also includes a corporate seal and matching ponch, 20 lithogrJphed share certificates customized for your client's corporation and SO blank rag content sheets or printed minutes and by-laws, OUf exclusive corporate record tickler, mylar reinforced tab indexes with five posilions and transrer ledger, 8 pages, bound in a separate seclion. Can t:x Libris' cover help you make a positive slatement abont yonr work? Sec ror yourseJr. Receive a fully customized Ex Libris corporale kit or virtually any olher prodncI ror the legal proression within 48 hours. Or sooner. Cali your nearest Excelsior-Legal facility, toll rree, now. Or mail
We will your Ex Libris Corporate kit to you in hours allow surface rates. r-----------------------------, RUSII
TO: EXCElSIOR-LEGAL, INC., P.O. Box 5683, Arlington, TX 76011 Call us toll free (800) 433-1700, Texas (817) 461-5993. Please ship: 0 No. to tl3sic Dumt Si950 0 No. 20 with Prinled Minutes and By-Laws $53.00 Slale"--
(Print rorpora1C name e:uctIy:as on certificate of irlCOfJKlr.ltion. add $8.00 for 2- die se:lI.)
0 NPV or 0 PV$
,.-__ ,eapitali7.ation $
Ccrtificates Signed by President and
-;::_ _;:-_ _-,----:_-,--,-::-;,--
(Soo'eUty-TtnSllref, unless Olhe'Wlse specined)
o Overnight Air Courier shipment, add S6.00 D FederaJ or state non-registration muse, ;c, $12.00 extra o I[ prepaying, add $1.50 [orsurface o tRe Â§ t244 complete set-rcsol., shipping and handling.
dir. min., treatise, law, etc., $4.95 extra
0 MasterCard 0 Visa D Diners Club 0 American Express C:lrd Number
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ZipCode
o Please send me your FREE 48 page catalog. ~~
Published on Jan 1, 2000
A LEGAL RESEARCH EXPERT Little Rock. AR 72201 523 West Third (501) 375-6117 Appellant Briefs _ Trial Briefs. Computer Searches. Abstracts. S...