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Lawyer The Arkansas

A publication of the Arkansas Bar Association

Vol. 54, No. 4, Fall 2019

online at www.arkbar.com

Inside: Tribute to Members Who Have Served in the Military Mediation and Arbitration Scipio Africanus Jones


The Arkansas Bar Association has partnered with Fastcase to revamp our publications programs. Deskbooks are now available in new print editions, as PDFs, and within the Fastcase legal research system member benefit.

The following books are now available: • • • • • • • •

Arkansas Business Associations Handbook Arkansas Construction Law Manual Arkansas Elder Law Desk Manual Arkansas Probate System Arkansas Workers Compensation Desk Book Guide to Arkansas Statutes of Limitations Handling Appeals in Arkansas Revocable Trusts Handbook for Arkansas Practitioners • Standards for Examination of Real Estate Titles in Arkansas


PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com

The Arkansas

Lawyer

EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Dr. Frankie Martin Griffin Haley M. Heath Judge Brandon J. Harrison Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. Trent David Thomas David H. Williams OFFICERS President Brian M. Rosenthal Board of Governors Chair Brandon K. Moffitt President-Elect Paul W. Keith Immediate Past President Suzanne Clark Secretary Glen Hoggard Treasurer Joseph F. Kolb Parliamentarian Aaron L. Squyres Young Lawyers Section Chair Stefan McBride BOARD OF GOVERNORS Aubrey L. Barr Kandice A. Bell Margaret Hobbs Benson Douglas Brimhall Chase Carmichael Sterling Taylor Chaney Brian M. Clary Representative Carol C. Dalby Bob Estes Brent J. Eubanks Robert (Skip) L. Henry III Jamie Huffman Jones Jessica Virden Mallett Patrick W. McAlpine Joshua D. McFadden J. Cliff McKinney II James E. McMenis Anthony L. McMullen John Rainwater Albert J. Thomas III Harold Wayne Young LIAISON MEMBERS Karen K. Hutchins Judge Hamilton Singleton Harry Truman Moore Aaron L. Squyres Richard L. Ramsay Judge John C. Throesch Jay Robbins Danyelle J. Walker The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2019, Arkansas Bar Association. All rights reserved.

Vol. 54, No. 4

features

12 Scipio Africanus Jones— Appreciation for a Journeyman Lawyer By William A. Waddell, Jr. 16 A Report on Behalf of the Strategic Governance Review Task Force Regarding the Proposed Constitution By Eddie H. Walker, Jr. 18 Mediation and Arbitration, A Perspective from the Mediator By G. Alan Wooten

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Alternative Dispute Resolution Processes—Jewish Courts By Philip E. Kaplan

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Alternative Dispute Resolution Processes—Christian Conciliation By Anton L. Janik, Jr. 24 The Disappearing Joint Session— A Trojan Horse? By Frank S. Hamlin

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Divorce Mediation: War of the Roses or Kramer v. Kramer? By Debby Ferguson

32

Not Quite What it Seems: Trends in Compelling Arbitration in Arkansas By Johnathan D. Horton 36 Members Who Have Served in the Military 44 Operation Iraqi Freedom II—Operation Etcha-Sketch By Wayne Williams, Attorney at Law

48 Bowen School of Law Creates Veterans Legal Services Clinic By Dean Theresa M. Beiner

Contents Continued on Page 2


Lawyer The Arkansas Vol. 54, No. 4

in this issue ArkBar News

4

Law School Updates

50

Disciplinary Actions

53

Arkansas Bar Foundation

56

In Memoriam

57

ArkBar Legislative Timetable

59

Classified Advertising

60

columns

President’s Report

7

Brian Rosenthal

Young Lawyers Section Report

9

Chris Hussein

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Vol. 51, No. 1, Winter 2016 online at www.arkbar.com

Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors

Advertise in the next issue of The Arkansas Lawyer. Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising

Arkansas Bar Association

2224 Cottondale Lane, Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District A-1: Geoffrey Denzil Hamby, SaVannah Justine Reading, George M. Rozzell, Ryan Scott, Seth A. White Delegate District A-2: Payton C. Bentley, Leslie Copeland, M. Scott Hall, Luke Mitchell Haller, Jason M. Hatfield, Brian C. Hogue, David R. Hogue, Sarah Coppola Jewell, Jarid Markus Kinder, Alan Lee Lane, John Pesek Delegate District A-3: James A. Arnold II, Sarah E. Capp, Craig L. Cook, Keith M. Kannett, Stephen Napurano Delegate District A-4: Justice Paul Danielson Delegate District A-5: Johnny L. Nichols Delegate District A-6: Allen Laws Delegate District A-7: Frederick S. Spencer Delegate District B: Darryl E. Baker, David Biscoe Bingham, Anthony Bryce Brewer, Tim J. Cullen, Thomas J. Diaz, Paige Edgin, Bob Edwards, Joseph Dean Gates, Jesse J. Gibson, Jordan Broyles Hallenbeck, D. Michael Huckabay, Jr., Ashley Welch Hudson, Kyle D. Kennedy, Joseph F. Kolb, Victoria Leigh, Jessica Virden Mallett, B. Chase Mangiapane, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, David S. Mitchell, Jr., Meredith S. Moore, Ruthanne Nash Murphy, Andrew Payne Norwood, John Ogles, Jordan Rogers, Scott Michael Strauss, Heather Goodson Zachary Delegate District C-1: Robert F. Thompson III Delegate District C-2: Barrett Moore Delegate District C-3: Robert J. Gibson, Warren Curt Hawkins, Ryan M. Wilson Delegate District C-4: Kara Lynn Byars Delegate District C-5: Christopher Michael Bryant, Keith L. Grayson, Kathie A. Hess Delegate District C-6: Joe Aaron Denton, Pamela Osment Delegate District C-7: Ginger M. Stuart Delegate District C-8: Margaret Dobson, George Lea, Carla M. Martin Delegate District C-9: Benjamin Patrick Barton, LeAnne P. Burch, Lee Douglas Curry Delegate District C-10: Amy Freedman, Joshua L. Potter Delegate District C-11: Sterling Taylor Chaney, Taylor Andrew King Delegate District C-12: Kathy A. Cruz, Kurt J. Meredith Delegate District C-13: John Andrew Ellis, Lori D. Howard Law Student Representatives: Hannah Butler, University of Arkansas School of Law; Bradey Camille Chambers, UA Little Rock William H. Bowen School of Law

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The Program is structured to provide affordable pricing whether you are a Solo Practitioner or a large corporation. The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2019) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Arkansas Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN700696_0121-2019


ArkBar News

Inaugural Class of the Public Service Academy The Arkansas Bar Association and the University of Arkansas Clinton School of Public Service are proud to announce the inaugural class of the Public Service Academy. The selected individuals will participate in two sessions: one in Little Rock November 15-16, 2019, and one in Fayetteville January 17-18, 2020. Westley Ashley, Little Rock Kelsey Bardwell, Harrison Caleb Baumgardner, El Dorado Kandice Bell, White Hall Kelly Brown, Dumas S. Taylor Chaney, Arkadelphia Cara Boyd Connors, Little Rock Tyler R. Farrar, Springdale Amy Freedman, Texarkana Pam Percefull Hathaway, Little Rock Martha McKenzie Hill, Little Rock Jera Houghtaling, Fayetteville Alexander Jones, Little Rock Tabitha Lee, Little Rock Lauren Manatt, Sheridan Skye Martin, North Little Rock Joey H. McCutchen, II, Fort Smith Mary “Molly” McGowan McNulty, Little Rock Jeffrey H. Moore, Little Rock Meredith Moore, Little Rock Dequeshia Prude, Fayetteville Brenda Simpson, Hot Springs Dusti Standridge, Fort Smith Judge Sam Terry, Fort Smith Wendy Scholtens Wood, Little Rock Students from the University of Arkansas School of Law, University of Arkansas at Little Rock William H. Bowen School of Law and the University of Arkansas Clinton School of Public Service: Nate Arrington Jennifer Browne Kara Butler Caleb Conrad Derick Dillard Justin Gunderman Elizabeth Hall Wesley Manus Dana McGee Trent Minner Madhav Shroff Connor Thompson ArkBar.com/events/public-service-academy

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2020 Mock Trial Competition Call for Volunteers It’s that time of year again! The Arkansas Bar Association Mock Trial Subcommittee has just released the case materials for the 2020 High School Mock Trial Tournament, and high school students across the state are beginning to prepare for trial this spring. In State of Arkansas v. Landry Brighton, students will have to figure out who killed Lou Gianna, who was in federal witness protection. We will need volunteers from across the state to make this event a success. The Regional Competitions are scheduled for Saturday, March 7, 2020, in Fayetteville, Jonesboro, and Pine Bluff. The top teams will compete for the State Championship in Little Rock on Saturday, March 21, 2020. There is no prior Mock Trial experience necessary to judge one of our rounds! The Mock Trial Committee provides a volunteer orientation prior to each round of competition. To volunteer, please visit https://www.arkbar.com/armocktrial/ home.

Elaine Massacre Memorial Dedication

On Sunday, September 29, 2019, the Elaine Massacre Memorial was dedicated to those, known and unknown, who lost their lives in the 1919 Elaine Massacre, according to the press release. The Elaine Massacre Memorial is located at 350 Perry Street in Helena, AR. More information can be found at elainemassacrememorial. org. Pictured left (l to r): Paul Keith, Brian Rosenthal and John Gill. Pictured right (l to r): Paul Keith, Judge Price Marshall, Amy Boyd and Kathie Hess. Past American Bar Association President Philip Anderson Retires Williams & Anderson PLC announced the retirement of a founding partner of the firm, Philip S. Anderson. Mr. Anderson served as President of the American Bar Association in 1998-91. Anderson is one of three American Bar Association presidents who are from Arkansas (Uriah Rose, 1901-02 and Edward Wright, 197071). He was featured in the Fall 1998 issue of The Arkansas Lawyer which can be found at https://issuu.com/ arkansas_bar_association/docs/vol.33_no.4_fall-1998.


Oyez! Oyez! ACCOLADES Chad W. Pekron, a member of the Quattlebaum Grooms & Tull law firm in Little Rock, has been named a Fellow of the Litigation Counsel of America. J. Cliff McKinney II of Quattlebaum Grooms & Tull PLLC has been elected a Fellow of the American College of Real Estate Lawyers. Arkansas Business selected the following members for inclusion in the 2019 “20 In Their 20s� Class: Katie Waldrip Branscum, Mitchell Williams Selig Gates & Woodyard; Jacob Lively, Pediatrics Plus; Dalton Person, Jones Jackson Moll McGinnis & Stocks PLC; and Taylor Stockemer, Friday Eldredge & Clark LLP. The Northwest Arkansas Business Journal selected the following members for inclusion in 2019 Forty Under 40 Class: Brian Hogue, Hogue Law Firm PLLC and Bourgon Reynolds, Rose Law Firm. The Arkansas State University Alumni Association and Student Philanthropy Council have selected Cale Block as one of the inaugural recipients of the Emerging Young Alumni award. Friday, Eldredge & Clark, LLP is proud to announce that William A. Waddell, Jr., has been named a Fellow of the American Bar Foundation.

APPOINTMENTS AND ELECTIONS Joseph W. Price II of Quattlebaum Grooms & Tull PLLC has been appointed to the Board of Directors of Metropolitan Emergency Services for a five-year term. Price has also been reappointed as the Arkansas State Membership Chair for DRI-The Voice of the Defense Bar. Mitchell Williams Attorney Lyn P. Pruitt was one of three newly elected members to the American College of Trial Lawyers Board of Regents.

WORD ABOUT TOWN PPGMR Law welcomed the following attorneys to its Little Rock team: M. Christine Dillard, Jessica Fontenot, and Hunter Mullins. Paul Gregory has joined Rainwater Holt & Sexton in Little Rock as an associate attorney. Caitlin A. Campbell is the newest attorney to join the Little Rock office of Cross, Gunter, Witherspoon & Galchus, P.C. as an associate. Quattlebaum Grooms & Tull PLLC announced that the following attorneys have joined the firm: S. Katie Calvert, Ann Carol Farmer and Meredith A. Powell. Mitchell Williams Selig Gates & Woodyard announced that David Biscoe Bingham, Nathan Coulter and Stuart Spencer have joined the firm. Blair & Stroud of Batesville announced that Alexandra T. Chunn joined the firm. We encourage you to submit information for publication in Oyez! Oyez! Please send Oyez announcements to ahubbard@arkbar.com.

LOCAL BAR ASSOCIATION OFFICERS Name of Bar Association

President

President-Elect

Benton County

Jenna Fogleman

Geoff Hamby

Boone Newton County

Johnny Nichols

Patricia Virnig

Cleburne County

Evelyn E. (Jeannie) Winston

Craighead County

Bryant Marshall

Greene County

Brad Broadaway

Independence County

Barrett S. Moore

Benjamin K. Pollitze

Pulaski County

James W. Wyatt

Marjorie Rogers

Saline County

Lori D. Howard

Sebastian County

Dusti Standridge

J. Dalton Person

Texarkana Bar

Darby Doan

Brandon Cogburn

Union County

Caleb Baumgardner

Washington County

Leslie Copeland

White County

Leila Seigrist

Red Mass

Lee Richardson

Steven McClelland

On Friday, October 4, 2019, the St. Thomas More Society hosted the annual Red Mass at the Cathedral of St. Andrew in Little Rock. Arkansas Bar President Elect Paul Keith, right, served as lector. The Mass was followed by a luncheon honoring Judge Charles Baker, with remarks by U.S. District Judge Leon Holmes. The St. Thomas More Society is named for St. Thomas More, a lawyer and Chancellor in 16th Century England.

Vol. 54 No. 4/Fall 2019 The Arkansas Lawyer

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- Call to Captions! -

Arkansas Supreme Court Adopts Administrative Order No. 15.3 Allows inactive and retired lawyers to retain their license without charge to practice solely in conjunction with one of our legal aid services. Cite as 2019 Ark. 263 SUPREME COURT OF ARKANSAS IN RE ADOPTION OF ADMINISTRATIVE ORDER NO. 15.3; Opinion Delivered: October 3, 2019; PER CURIAM We adopt, effective immediately, Administrative Order Number 15.3 as set out below. Administrative Order NUMBER 15.3 — Pro Bono Legal Services by Retired or Inactive Attorneys

Captions? Thanks to the very talented John Deering of Little Rock who has created cartoons for our use. Please help us come up with captions for the above cartoons. Send your captions to Anna Hubbard by January 31, 2020, at ahubbard@arkbar.com. The winners’ captions will be shown in our next magazine. On the clown cartoon, we are challenging the West Virginia Bar Association to a contest. The best overall caption as chosen by our cartoonist will be announced and if from Arkansas, the West Virginia Bar will award the winner with pepperoni rolls and if West Virginia wins, the winner will receive a case of McClard’s barbeque sauce (thanks McClard’s)!

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(a) Authorization to Provide Pro Bono Services. Notwithstanding the limitations on practice for attorneys who are retired or inactive, attorneys with a license status of retired or voluntary inactive are authorized to provide pro bono legal services as set out in this order. (1) The attorney must not have been publicly disciplined for professional misconduct by a bar, court, or government agency of any jurisdiction within the last five (5) years. (2) The attorney shall provide his or her services without fee or an expectation of fee to persons of limited means who have been referred to the attorney by an authorized sponsoring entity as set out in subsection (b) and only through such referrals. (3) The volunteering attorney shall complete any appropriate training required by the sponsoring entity. (b) Sponsoring Entity. When providing pro bono services pursuant to this order, the attorney’s representation shall be under the auspices of a sponsoring entity. The sponsoring entity shall be a legal aid services provider that represents Arkansas clients, namely Legal Aid of Arkansas, Inc., Center for Arkansas Legal Services, Inc., Lone Star Legal Aid, Inc., or such other entity as may be approved by the Arkansas Supreme Court, and shall (1) make the volunteer attorney aware of the sponsoring entity’s resources that may be of assistance to the attorney; (2) maintain a log on an annual basis of all volunteer attorneys providing legal services through that sponsoring entity; and (3) provide professional malpractice insurance covering the volunteer attorney’s services if the volunteer attorney is not otherwise covered by professional malpractice insurance. (c) Continuing Legal Education. A retired or voluntary inactive member of the Bar of Arkansas who practices law only to the extent authorized by this order shall be exempt from Rule 3 of the Rules for Minimum Continuing Legal Education. (d) License Fees. A retired or voluntary inactive member of the Bar of Arkansas who practices law only to the extent authorized by this order shall pay only the attorney license fees otherwise required to maintain retired or voluntary inactive status, as applicable. Hart, J., not participating.


PRESIDENT’S REPORT

THE BAR IS FOR SERVICE, FOR GOOD AND FOR By Brian Rosenthal Brian Rosenthal is the President of the Arkansas Bar Association. He is a member of Rose Law Firm in Little Rock. What should go in this blank? I hope you will let me know what you think about this question or anything else on your mind by emailing me at brosenthal@ roselawfirm.com. I am keenly interested in your thoughts. I remain grateful for the opportunity and challenge of service as your 122nd President. Our bar staff led by Karen Hutchins is making a difference in our profession every day. Our staff is dedicated to your service. An introductory focus on our staff is included below. Here are some highlights in our efforts for you: Our historic governance vote is slated for NovemberDecember, 2019; see a summary of all the issues at arkbar.com/ for-attorneys/new-governancestructure-proposal. Chair Eddie Walker’s article on page 16 describes the considerations. Our Public Service Academy will be featured in our next magazine. Led by Maggie Benson and Nate Looney, co-presented by the Clinton School of Public Service and co-sponsored by our public service minded law schools (thanks Deans McCabe and Beiner), this academy is dedicated to lawyers with a desire to serve at any level or on any service board. From a sitting judge to participants with military service, our inaugural

class is representative of the statewide service mission of our profession. The inaugural class is listed on page 4 and includes 12 students from our law schools and the Clinton School, with some jointly enrolled. Special thanks to our academy’s steering committee: Judge Earnest Brown, Professor Howard Brill and Speaker Matthew Shepherd. Also thanks to all our PSA fall speakers and other sponsors listed at arkbar.com/events/publicservice-academy. We are delighted to announce our Supreme Court has adopted Administrative Order 15.3 allowing inactive and retired lawyers to retain their license without charge to practice solely in conjunction with one of our legal aid services. A copy of the rule may be found on page 6. To seek more information contact Jordan Rogers at jrogers@ arkansasjustice.org. Thanks to Julie Greathouse and her all-star task force for assisting in this effort (Jordan Rogers, Justice Paul Danielson, Justice Annabelle Tuck, Sherry Bartley, Laurie Bridewell, Grant Fortson, Rebecca Hurst and Phil Kaplan). We are working on a new signature bar program—the Arkansas Legal Hall of Fame. Chaired by Cliff McKinney, the following members are working hard for a recognition event

and process in which we all will want to celebrate and participate (Deans Chuck Goldner and Cindy Nance, Judge Beth Deere, Glenn Vasser, Carolyn Witherspoon, Sarah Jewell, Phil Kaplan, Paul Keith, Gwen Rucker). The HOF sponsorship committee is co-chaired by Ed Lowther and Jim and Patti Julian (Ron Harrison, Heide Harrell, Heather Haywood, Misty Borkowski, Kelsey Bardwell, Joe Kolb, Paul Keith, Derrick SMith, and Cliff McKinney). The Elaine Massacre Memorial has been dedicated and commemorated on its 100th anniversary. The life of our late revered member David Solomon served to inspire a beautiful and impactful memorial and dedication—thanks to all who worked on this project and choose for their service to speak for itself. Judge Brian Miller’s words at the ceremony capped a respectfully commemorative day. As I write this column it is Access to Justice Month (October) and you can help in a big way at any time by answering unbundled legal questions without an ongoing client relationship under the Access To Justice Free Legal Answers program; see ar.freelegalanswers. org for more information. To have some fun, John Deering has created some

legal cartoons for a caption competition; we will compete against the West Virginia Bar; see page 6 to enter. Meet the staff! Jay Robbins is our Director of Government Relations; he is assisting with Young Lawyers, Sections, Public Service Academy, and our Jurisprudence and Law Reform and Legislative Committees. Jay is from Hot Springs and his hobbies are golf, politics and the Razorbacks. Kristen Frye is from White Hall and is a long-term employee (10 years) who heads our education efforts and has helped launch our on-demand CLE. She is also one of the staff liaisons for the Sections. Kristen lives in Benton with her husband and three children, Talan (13), Ryker (2.5) and Scarlett (1). Jennifer Jones brings her convention service experience to manage our meetings and membership drive. She is working on procuring additional sponsorships, our Annual and Mid-year Meetings, Hall of Fame and member benefits. Jennifer is from Little Rock and in her spare time she enjoys traveling, dancing and working out at her local Crossfit gym. Watch for more staff introductions. Thank you for the privilege of serving the association. 

Vol. 54 No. 4/Fall 2019 The Arkansas Lawyer

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Congratulations to the New ArkBar Members Admitted to the Practice of Law Fall 2019 John Michael Adkins Kale D. Anderson Edwin J. Anglin Zachary Anders Atwood Kyla Nicole Bishop Ty R. Bordenkircher Luke Anthony Brasuell Cameron Brewer Cara Diane Butler Sarah Katherine Calvert Erin Elizabeth Campbell D. Nicholas Carroll Aaron Cole Cochran Nathan David Coulter Robert Cannedy Dalby Joshua S. Davis William N. Dawson Andrew S. Dixon Cary Dale Dooley Mary Katherine Edwards

Nicholas Scott Ezell Camille Aryn Fleming Bobby Larry Forrest Caitlin Elizabeth Garner Karen Elizabeth Gillespie Nicole McKenzie Gore Kaylyn Presley Hager Kenneth Lee Nathaniel Hamilton William Thomas Harris Connor Mark Herrold Zachary Richmond Hill Adam B. Holman Shelby Nicole Howlett Anna Grace Hurst Mackenzie Ivy William Owens James Victoria Gabrielle JordanPercifield William David Keese

Nicholas Simon Kelly Amanda Dawn Kennedy Brandon Kulwicki Jared Michael Lax Elizabeth Grace Lee Robert Brooks Lewis London Katherine Lundstrum Joseph Brint Marks Samuel Waid Mason W. Cagney McCormick Michael Davis McGill Alex Hayden Melton Lee D. Miller Hunter Downs Mullins James Philip Murphy Sandi M. O’Brien Amanda Gale Orcutt Derek Lee Peterson Madison Margaret Pitts Meredith Autumn Powell

Adams Edward Pryor Sydney Lynn Rasch Jonathan Conner Ray Laura Holzhauer Reynolds Kate E. Rieber William Duke Roberts Margaret Ellen Rushing Jonathan Daniel Scott Parker Lee Spaulding Jordan Patrick Sumler Jalen Richland Toms Megan Leigh Tweedy Hudson L. Vanderhoff Wesley Bryan Watts Juan T. Williams Jessica LeAnne Witherspoon Maegan Elizabeth Wren Destiny Lanea Young David Zhai

New Attorney Fair Fastcase training

All Newly Admitted Attorneys (Admitted between July 1, 2018-present) Are invited to join us for a

Free Professional Headshot

New Attorney Fair Friday, December 6 11:30a-1:30p Arkansas Bar Center 2224 Cottondale Lane Little Rock, AR 72202

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The Arkansas Lawyer

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Free lunch! Chop Chop Grill Food truck & More


YLS REPORT

OFF TO A GREAT START!

By Chris Hussein Chris Hussein is the Interim Chair of the Young Lawyers Section. He is a staff attorney with Legal Aid of Arkansas, Inc. The Young Lawyers Section is already off to a great start this bar year! Going into this year we had a plan of not only getting more young lawyers involved in YLS and the Arkansas Bar Association, but also providing more opportunities for YLS members to get involved in their communities. Things really started picking up for YLS this month as we cosponsored a record sealing clinic with Legal Aid of Arkansas, Inc., the Washington County Bar Association, and Genesis Church. Legal Aid of Arkansas, Inc., usually holds these clinics every year, so it was a no brainer for YLS to get involved. Through these record sealing clinics YLS is able to give people the tools they need to seal their records, and put them in a better position to acquire much-needed housing and jobs. Later this month YLS is planning its first happy hour of the year. This happy hour will take place in NWA and is tentatively planned to take place at Pinpoint in Fayetteville. This happy hour is going to be cosponsored by the Washington County Bar Association and will be a great way for YLS members to network with each other, but also with the great members of the Washington County Bar Association. The month of February will be the next big month for YLS.

We will be in attendance at the Mid-Year Meeting and we are working on not only a reception, but a service project as well. The reception will be held on February 6 from 7:30-10:30 at Flying Saucer in Little Rock. We are looking forward to a great night of conversation, food and drinks. If you’re in Little Rock for the Mid-Year Meeting this year YLS would love to see you there! More information about the reception and potential service project will be released closer to February so keep your eyes on the YLS Facebook page and YLS Digest for more information as it becomes available. Another exciting opportunity coming up for YLS is that we are co-sponsoring a 19th Amendment Traveling Exhibit through the American Bar Association. The American Bar Association Standing Committee on the Law Library of Congress has launched a new 19th Amendment traveling exhibit, “100 Years After the 19th Amendment: Their Legacy, and Our Future.” The sixbanner free-standing exhibit features historic photos and artifacts and details the story of the battle for ratification and outlines the challenges that remain. The exhibit can be sent to organizations across the country for their 19th Amendment programs. The

centennial anniversary of the Nineteenth Amendment gives state and local bar associations, lawyers, judges and other legal professionals, educators and civic organizations the opportunity to celebrate 100 years of women’s constitutional right to vote, to educate the public about the Nineteenth Amendment and the battle for women’s suffrage, and to promote law that ensures women’s full and equal exercise of their right to vote and to participate in our democracy. Our goal is to have the exhibit placed in each of the state’s law schools for one week. More information can be found at this website: https://www. americanbar.org/groups/public_ e d u c a t i o n / Pro g r a m s / 1 9 t h amendment-centennial/. Moving into the Spring YLS again plans to host our annual Wills for Heroes Event. This event always has great turnout from YLS members and our heroes in the community. We plan to again hold events in Little Rock and Northwest Arkansas. This was one of my favorite events last year and I am looking forward to seeing it continue to grow. While all of this is going on YLS also has its hands in several different projects. We are currently wrapping up our Local Practice Guidebook project. Once completed this guidebook

will contain information for every circuit clerk’s office. This will be a great resource for basic court information such as hours, location and the clerk’s name; for any filing specifics the clerk’s office may have; and any other information that would make the clerk’s job easier. YLS is also going to be working on updating the YLS Statewide disaster manual with the Arkansas Bar Association’s Disaster Task Force. This manual is and will continue to be a great resource for not only attorneys but also Arkansans in general. You can turn to this manual for information on common legal issues during disasters, resources available to disaster victims, and also information pertaining to community organizations and state agencies that help during times of disaster. I am very excited to see where YLS goes this year, and even more excited to find new ways for YLS to grow and impact our communities. It has already been a great year so far, and it’s only going to get better from here. As the future of the Bar and the profession, YLS is excited to get out and do everything we can to make an impact. We’re looking forward to the MidYear Meeting and hope to see everyone there! 

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6-7 Feb.

2020 LIVE SPRING CLE CALENDAR

26-28 Feb.

2020 Mid-year meeting

6 march

59th Annual Natural Resources Institute

Civil Rights Law Conference

12-13 march

43rd Annual Labor & Employment Law

24th Annual Debtor/Creditor Law

2-3 april

Construction Law Conference 24th Annual Environmental Law

24 april

ON-DEMAND CLE

Have you seen the new On-Demand CLE lineup? Keeping in mind your busy schedules, we currently have over 50 programs to choose from that will meet your CLE needs at your convenience. More programs will be added each week, so check back and see what’s new. Go to www.arkbar.com/cle/on-demand. If you would like to present an On-Demand CLE that will be recorded, please contact Kristen Frye at kfrye@arkbar.com. For every hour you present solo, you receive 4 hours of CLE credit.

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The Arkansas Lawyer

WATCH FOR BROCHURES, REGISTRATION, FULL AGENDAS & MORE EVENTS @ WWW.ARKBAR.COM www.arkbar.com


TWO MEMBERS ANNOUNCE THEIR CANDIDACY FOR ASSOCIATION PRESIDENT Earl Buddy Chadick and Bob Estes have announced their candidacies for President-Elect of the Arkansas Bar Association. The deadline for filing was October 31, 2019. Association members will receive ballots either electronically or by mail no later than November 15, 2019. The candidate receiving the highest number of votes cast in the election becomes the President-Elect Designee, and succeeds to the office of President-Elect at the conclusion of the 2020 Annual Meeting. As approved and recommended by the Board of Governors and House of Delegates, the governance restructure proposal, which includes incorporation as a non-profit, will be included on the ballot. The proposal includes the adoption of a revised, clear mission and merges the existing Board of Governors and House of Delegates into a single governing body made up of 60 trustees. The body will consist of 15 districts. District boundaries will be established every six years and the body will meet four times per year, including at the Annual Meeting. Members are encouraged to vote and submit their ballots by December 15, 2019. I am running for president of the Arkansas Bar Association because I want lawyers today and in the future to experience the support and feeling of comradery that have so positively contributed to my experience. At its best, the Bar Association helps to promote the work of our profession, to educate the public about our societal contributions, Earl Buddy and to advance the careers of our members. Chadick Those are missions I am committed to furthering. I am grateful for your consideration of my candidacy for president of the Association, and for your support for our profession and the Arkansas Bar Association.

I have served our Association in numerous capacities and offices. My governance service includes YLS Executive Council, House of Delegates, Executive Council and Board of Governors. I have served on Committees, Standing Committees and Task Forces. I chair the Re-Districting Task Force and the Practice Closure Task Force. I hold the Golden Gavel Award. A Bob Estes mission of our Association is to advance the administration of justice and to improve the legal process. I have been preparing 40 years to be your President-Elect. You will receive a ballot. I ask for your vote to become President-Elect of your Arkansas Bar Association.

Congratulations to Members Celebrating Their 25th Year of Practice Tonya Michelle Alexander William Phillips Allison Ron W. Banks Scott E. Bellm Kimberly Bennett Morgan A. Berry Clifford P. Block M. Christina Boyd Judge Earnest E. Brown Jr. Rufus Thomas Buie III William Burroughs Terri Dill Chadick Lile S. Choate Mark W. Dossett Hon. Barbara G. Elmore Shannon Foster John K. Griffin

Professor Lindsey Gustafson Daniel Lee Herrington Kellie J. Hohenshelt Christine Horwart Alexandra A. Ifrah Michael F. Jones Ed M. Koon Paul A. Lipsmeyer Leslie Mann Archer Scott McDaniel Kelly M. McQueen Jeff Mitchell Judge Christopher W. Morledge James M. “Mike� Munnerlyn Susan Elizabeth Nichols Thomas J. Olmstead Lynn McKnight Parker

Kathryn E. Platt Terry W. Pool Lisa Ann Reeves Karen Lynn Roberts Michelle Sourie Robinson James A. Simpson Jr. Thomas E. Smith Steven K. Strickland Mary Ellen Ternes Benita Jo Thomason Judge Cindy Thyer Danyelle J. Walker Lorie Lee Whitby Rick Woods Robert H. Wyatt

Class of 1995 Vol. 54 No. 4/Fall 2019 The Arkansas Lawyer

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SCIPIO AFRICANUS JONES— APPRECIATION FOR A JOURNEYMAN LAWYER

By William A. Waddell, Jr.

William A. Waddell, Jr., is a partner at Friday, Eldredge & Clark LLP in Little Rock. He is a member of the firm’s litigation practice group.

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awyers have a unique appreciation for other lawyers. That appreciation transcends the number of “wins.” It is borne of understanding the lawyer’s professional life: evaluation of facts and their application to law; belief in and commitment to preserving the rule of law; the art of persuasion; conflict management; perseverance and determination; thick skin; understanding; credibility; integrity; and dedication to ultimate justice. Lawyers may admire other lawyers for how they handle single cases but also for the legacy left by the highs and lows of an entire professional life. Oftentimes, what seemed like a “loss” in a case was one step in the development of a new doctrine that the law was not yet ready to acknowledge. Yet we appreciate the lawyer who helped us all to turn our minds toward a new understanding of justice or a new way of thinking. And we appreciate even more the legacy of a lawyer who labored successfully in the trenches of daily law practice for many years. What may have seemed mundane in isolation often was of great magnitude not only on the body of law affected by that lawyer’s work but on other lawyers as well. Within this context of lawyer appreciation, Scipio Africanus Jones deserves our admiration. Although Lawyer Jones is known mostly for his role in the criminal cases arising from the Elaine Massacre of 1919 in Phillips County, Arkansas, it is his body of work that merits a lawyer’s praise. His professional life is illustrated by a wide spectrum of reported cases. These cases are not only impressive for lawyers today. They help us to appreciate the significance of the Elaine Massacre Centennial and the vital role of Jones in saving lives. Much is being written about that anniversary, and this article does not attempt to provide the details of other scholarly works.1 It merely highlights and appreciates the life of a lawyer whose traits we can emulate. At his death, the Arkansas State Press gave this characterization of Jones: By reason of his legal training, his sober judgment and conciliatory disposition, his counsel was accepted by the people of his race, and highly accepted by the people of other races.2


Like us, judges and juries did not always rule in his clients’ favor, but his legacy endures and his journey is a class in effective lawyering. Jones’s birth around 1863 was not auspicious, particularly for someone who would become a prominent attorney.3 His mother, Jemima, was a slave of Dr. Sanford Reamey, who reportedly was Jones’ father. Reamey and Jemima, pregnant with Jones, fled to Texas in advance of Union troops and when they returned, Jemima had her baby named Scipio Africanus.4 As an emancipated woman, Jemima married another emancipated slave named Jones and her son took his last name, becoming Scipio Africanus Jones.5 After completing a four-year preparatory course at Bethel University (now Philander Smith College), Jones studied at Shorter College in North Little Rock, receiving a bachelor’s degree around 1885.6 He taught school for a time and eventually read the law under the tutelage of Judges Robert J. Lea, John Martin, and Henry C. Caldwell. He was licensed to practice law on June 15, 1889, after an examination by T. B. Martin, F. T. Vaughn and F. P. Dunn.7 Jones was admitted to practice before the Arkansas Supreme Court on November 26, 1900.8 Remarkably, the opinion in his first case before the Supreme Court was issued less than seven months later on June 1, 1901.9 In that case, the court reversed the conviction of an African American because the grand jury that indicted him was empaneled before the offense allegedly occurred and because African Americans were excluded from the grand jury on account of their race. The issue of racial prejudice in criminal cases was the subject of a number of Jones’ cases, including the series of cases following the events in Elaine. Sadly, the exclusion of African Americans from grand and petit juries was still being litigated by Jones as late as 1939, just a few years before his death.10 Grif Stockley has written about Jones’ careful cultivation of relationships with the white community as he practiced law.11 His community involvement, such as raising money for Liberty Bonds to support the WWI effort and his involvement in Bethel A.M.E. Church, including service on the board of trustees and as superintendent of the Sunday school,12 contributed to his positive reputation. Yet, while extraordinary in its focus on Jones, a newspaper reference to

Photo credit: Scipio A. Jones, G5123, Arkansas State Archives, Little Rock, AR

his divorce practice in 1908 did not appear to be edifying.13 Criminal cases continued to be a source of Jones’ reported cases. The cases were varied and addressed issues such as the corroboration of the testimony of the prosecutrix in a seduction case,14 the admissibility of the dying declarations of a manslaughter victim,15 the jurisdiction of a municipal court to hear violations of Arkansas’ “bone dry” law,16 and a challenge to special terms of court permitted by an act to prevent mob violence and lynching.17 On April 8, 1915, Jones was elected to serve as a special municipal judge for one case. While his election was a matter of distinction, it was qualified on racial terms and the regular judge felt compelled to justify why he recused:

Scipio Jones, negro lawyer, was named a special judge by election by attorneys present in the court, to act in a case in municipal court this morning. Municipal Judge Fred A. Isgrig disqualified in the case yesterday and election of a special judge by election by members of the bar in the court is required under provisions of the new municipal court law. It is one of the first instances in the history of Little Rock, if not in the entire State, that a negro has acted as a judge in a court of the standing of the Little Rock municipal court. Numerous attorneys and others in the city commented on it quite freely during the day. The following statement of facts leading up to and the circumstances of the selection of Jones was made by

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Judge Isgrig at request of the Democrat this afternoon, as a result of numerous inquiries received as to why white lawyers should have selected a negro to conduct the case: “When the case of Walker was called yesterday morning, W. A. Singfield, representing the defendant, asked that the case be passed until today. This was granted, and the case continued until today. Later, I was informed that there was objection to be made to my sitting in the case, because W. A. Singfield, representing the defendant, had filed suit against me in his own behalf, which suit has been pending for some time. “When I found that this objection was to be made I stated that I had no desire to try any case if it was thought there was reason why I was disqualified. “Accordingly, when the case against Walker was called, against Singfield’s client, I announced I would not try the case. The case was against a negro and the offense alleged had been committed against negroes, and all witnesses were negroes. In this connection, the case was one of several similar complaints found to be without foundation, and originating through spite in a colored neighborhood and in fact was a negro neighborhood row, as it later developed. “When I announced my disqualification in this case because of the attorney’s suit against me, the lawyers present called for the election of a special judge for this particular case. The clerk of the court, Thomas Donahoe, called for nominations and conducted the election as the municipal court bill provides. “Scipio Jones was nominated by the city attorney and voted for by Mr. Hale, deputy prosecuting attorney, and all of the lawyers in attendance. “I suppose all the white lawyers thought as I did—that for the trial of this particular case a complaint against negroes, Jones was peculiarly fitted by environment as well as marked ability as a lawyer, and in recognition of his reputation and standing in the community and in the bar of Little Rock.”18 His judicial election received mention in the NAACP’s magazine, The Crisis, as a noteworthy accomplishment.19 However, despite 14

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“‘He stands ace high.’”

the acknowledgment of Jones’ ability and his stature in the bar, four years before the Elaine Massacre, there was a need within the community at large to justify his election to sit as judge even for one case. Subtle racial animus continued even after his celebrated victory in the Elaine cases as illustrated in a 1928 opinion of the Arkansas Supreme Court. Akins v. Heiden20 was a quiet title action in which there was a disputed parol gift. The court credited the deposition of an insane person but included this excerpt of his cross-examination: Q. You deeded a half lot that you did not own? A. Lawyer Jones told me it was mine. Q. Do you believe everything a colored lawyer tells you? A. No, sir; no lawyer.21 Jones’ profile became national with the series of cases resulting from the Elaine Massacre. The Elaine events occurred on October 1-7, 1919, resulting in five whites and an estimated 200 African Americans being lynched or otherwise killed. A Phillips County grand jury quickly issued indictments of blacks for the murder of the whites and the first trials occurred on November 3, barely a month after the alleged crimes. While various sentences were handed out to African-Americans based on what occurred, 12 were sentenced to death.22 The Elaine cases are the most prominent example of Jones’ ability to clearly articulate racism and injustice to society as a whole. As with most cases today, the path from start to finish in these cases was not a straight line along a defined path of justice. Jones’ work for the 12 involved not only pragmatic lawyering in the courtroom in the face of open hostility and public outcry for the death sentences to be carried out be-

fore all legal process was exhausted, but also careful and effective use of Jones’ relationships with judges, governors and others.23 As a pragmatist who had cultivated relationships with the white community, Jones sometimes found himself at odds with the approach that the NAACP desired,24 but he persevered for the benefit of all of those convicted, seeking justice in the midst of varying aims of the NAACP and the white establishment. That led to this description of Jones at his death: a “‘liason’ [sic] man in the time of misunderstanding between the races.”25 The appeals of the 12 took a number of twists and turns which are chilling to us today when it is considered how close they came to execution.26 An appeal to the U.S. Supreme Court from the denial of a writ of habeas corpus by the federal district court was one of their last judicial avenues for relief. Public awareness of the case was employed effectively by Jones and the NAACP. In two issues of The Crisis, a brief by Jones was printed to inform those outside of Arkansas and to raise funds for the defense.27 In addition to detailing the factual background of the case, the brief stated that “on account of all the race prejudice which normally exists and which was enhanced a thousandfold at the time, by bitterness beyond expression, it was impossible for them to get a fair and impartial trial in said court before a jury of white men.”28 Jones then noted that African Americans had been excluded from the jury and that their trials were a sham.29 He included a blistering indictment of the Phillips County American Legion post and Rotary and Lion’s Clubs, each of which had adopted a resolution asking the governor not to delay the executions of the 12.30 The Supreme Court reversed the denial of the habeas petitions and remanded the case for rehearing.31 In the end, thanks largely to both the judicial and extra-judicial lawyering of Jones, the death sentences of all of the condemned were commuted or the charges were reduced or dismissed.32 When Ed Ware, one of the 12, was interviewed after his release, he said, “When I first got in this trouble, I consulted my God and He told me He would take care of me.”33 He could have added, “And He sent Lawyer Jones.” Jones’ impressive work in the Elaine cases was just one part of his extensive body of le-


gal work. He was a noted corporate lawyer, representing a number of fraternal organizations, most of which were in the insurance business in Arkansas.34 Jones was also involved in significant property cases35 and cases involving politics36 and equal pay for black teachers.37 His published cases alone would put him in an elite status as a lawyer today. Jones apparently died without a will, based on the affidavit that appears in his probate file.38 The inventory of his estate included real estate valued at $2,000 and these items in his law office: • • • • • • • • • • •

One flattop oak desk with additional glass top, 7 drawers One oak typewriter desk with three drawers One Royal Typewriter Two 4-drawer oak filing cabinets Thirty-five Book-case units Seven bottoms, and 7 tops for bookcase units One 5 ½ ft oak library table with drawers Six oak office chairs, one of which swivel One gold watch One iron Cary Safe Law Library complete

For all lawyers, the intangible value of a body of legal work is worth more than our tangible wealth in the end. Edgar McHaney, Jones’ co-counsel in the Elaine cases, gave this assessment of Jones: “Scipio Jones is respected by everyone in this community whose respect is worth anything, white or black. He stands ace high.”39 May we also be so remembered. Endnotes: 1. See e.g., Grif Stockley, Blood in Their Eyes: The Elaine Race Massacres of 1919 (Univ. of Ark. Press 2001) (“Stockley”); Robert Whitaker, On the Laps of Gods (Crown Publishers 2008) (“Whitaker”). 2. Arkansas State Press, April 2, 1943, p. 1 (“ASP”). 3. Tom Dillard, Scipio A. Jones, 31 The Arkansas Historical Quarterly 201 (1972) (hereinafter “Dillard AHQ”); Tom Dillard, Tulip’s Prestigious Schools Were Civil War Casualties, Arkansas Democrat Ga-

zette, June 11, 2006 (hereinafter “Dillard ADG”). 4. Dillard ADG. 5. Id. 6. Dillard AHQ, p. 203. 7. Id., p. 204; Pulaski County Circuit Court Record Book 11, March Term, 1889, pp. 194-195. 8. Dillard AHQ, p. 204. 9. Castleberry v. State, 69 Ark. 346, 63 S.W. 670 (1901). 10. See Bone v. State, 198 Ark. 519, 129 S.W.2d 240 (1939) (murder conviction reversed for undisputed allegations that African-Americans had been systematically excluded from juries for more than 50 years). 11. Stockley, pp. 92-96. 12. ASP; Whitaker, p. 192. 13. Arkansas Democrat, August 26, 1908, p. 3. 14. Keaton v. State, 73 Ark. 265, 83 S.W. 911 (1904). 15. Robinson v. State, 99 Ark. 208, 137 S.W. 831 (1911). 16. Gans v. State, 132 Ark. 481, 201 S.W. 823 (1918). 17. Bettis v. State, 164 Ark. 17, 261 S.W. 46 (1924). 18. Arkansas Democrat, April 8, 1915. 19. The Crisis: A Record of the Darker Races (“The Crisis”), Vol. 10, No. 2, p. 63 (NAACP 1915). 20. 177 Ark. 392, 7 S.W.2d 15 (1928). 21. 7 S.W.2d at 18. 22. Moore v. Dempsey, 43 S. Ct. 265 (1923). 23. See, e.g., Stockley, pp. 94-99, 101, 148150, 164-175, 180, 188-191, 205-207, 214-222. 24. Whitaker, pp. 219, 280-281; Stockley, pp. 94, 158. 25. ASP. 26. See Banks v. State, 143 Ark. 154, 219 S.W. 1015 (1920); Hicks v. State, 143 Ark. 158, 220 S.W. 308 (1920); Moore v. State, 41 S. Ct. 6 (1920); Hicks v. State, 41 S. Ct. 7 (1920); Ware v. State, 146 Ark. 321, 225 S.W. 626 (1920); State Ex Rel. Attorney General v. Martineau, 149 Ark. 237, 232 S.W. 609 (1921). 27. Scipio A. Jones, “The Arkansas Peons,” The Crisis, Vol. 23, No. 2 (Dec. 1921), p. 72 (“Peons I”); Scipio A. Jones, “The Arkansas Peons,” The Crisis, Vol. 23, No. 3 (Jan. 1922), p. 115 (“Peons II”).

28. Peons I, p. 75. 29. Peons II, pp. 115-116. 30. Id., p. 116. 31. Moore v. Dempsey, supra. Despite his work, Jones was not allowed to participate in the Supreme Court argument by the lead lawyer chosen by the NAACP. Whitaker, p. 280-281, Stockley, pp. 214-215. 32. Stockley, pp. 224-225, 227-228. 33. Arkansas Gazette, June 26, 1923, p. 1. 34. See, e.g., Odd Fellows’ Benefit Ass’n v. Burton, 83 Ark. 631, 104 S.W. 163 (1907); District Grand Lodge No. 11 v. Pratt, 96 Ark. 614, 132 S.W. 998 (1910); Knights of Honor of the World v. Epps, 123 Ark. 371, 185 S.W. 470 (1916); Thweatt v. Grand Temple & Tabernacle of Int’l Order of Twelve Knights & Daughters of Tabor, of Arkansas, 128 Ark. 269, 193 S.W. 508 (1917); Baker v. Mosaic Templars of America, 135 Ark. 65, 204 S.W. 612 (1918); Royal v. Mosaic Templars of America, 143 Ark. 596, 219 S.W. 752 (1920); Phillips v. Mosaic Templars of America, 154 Ark. 173, 241 S.W. 869 (1922); Henry v. Knights and Daughters of Tabor, 156 Ark. 165, 246 S.W. 17 (1923); State Ex Rel. Utley, Att’y Gen. v. Knights of Pythias, 157 Ark. 266, 247 S.W. 1068 (1923); Blakely v. Newton, 157 Ark. 351, 248 S.W. 907 (1923); Royal Arch Benefit Ass’n v. Taylor, Bank Com’r, 187 Ark. 531, 60 S.W. 2d 915 (1933). 35. See, e.g., Hunter v. Hunter, 198 Ark. 8, 127 S.W.2d 249 (1939) (quiet title); Lucado v. Hirsch, 203 Ark. 792, 158 S.W.2d 697 (1942) (quitclaim deed before commissioner’s sale); Lewis v. Lambert, 205 Ark. 277, 168 S.W.2d 406 (1943) (partition). 36. Robinson v. Holman, 181 Ark. 428, 26 S.W.2d 66 (1930) (Democratic Party could adopt a rule excluding African-Americans from primaries without violating the Fourteenth Amendment). 37. Morris v. Williams, 59 F. Supp. 508 (E.D. Ark. 1944), rev’d, 149 F.2d 703 (8th Cir. 1945). 38. Matter of the Estate of Scipio A. Jones, Deceased, No. 20465. 39. Mary White Ovington, Portraits in Color (Viking Press 1927), p. 103. 

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A REPORT ON BEHALF OF THE STRATEGIC GOVERNANCE REVIEW TASK FORCE REGARDING THE PROPOSED CONSTITUTION

By Eddie H. Walker, Jr.

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or well over 100 years the Arkansas Bar Association has been the voice of Arkansas lawyers. In addition to providing numerous benefits for its members, the Association has steadfastly advanced the administration of justice and regularly engaged in public service activities. Each year, dozens of members of the Association volunteer numerous hours identifying, planning, promoting and engaging in activities that cause the Association to remain relevant. Most Arkansas lawyers are members of the Arkansas Bar Association, and one measure of the importance of the Association is the fact that each year a person serving as its President volunteers hundreds of hours dedicated to preserving the Association’s traditions of service and leadership while studying legal trends and observing activities of Bar Associations in other states in order to facilitate new ideas that keep the Arkansas Bar Association relevant and viable. During the past several years a disturbing trend was noticed. The number of members

attending Board of Governors and House of Delegates meetings declined. Eventually, it was often very questionable whether enough governors or delegates would be present to constitute a quorum. Because of the negative impact of not being able to reliably predict whether a scheduled meeting would have enough members present to constitute a quorum and thereby conduct business, it was determined that efforts to improve the Association’s governance structure were needed. In March of 2018, RR Consulting Group was retained to assist the Association in its efforts to improve its governance structure. The consultants interviewed the President’s group, Executive staff, representatives from the 2020 Commission, and representatives from the Governance Committee to learn about the status of current efforts to improve Association governance. Presentations were made to the Board of Governors on April 20, 2018, and the House of Delegates on June 10, 2018. At the June 2018 meeting of the House of Delegates, the delegates were requested

Eddie H. Walker, Jr., is the chair of the Strategic Governance Review Task Force. He is Past President of the Arkansas Bar Association and a member of Walker & Harp, P.L.L.C. in Fort Smith 16

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to list members of the Association who they believe have the judgment and temperament to serve on a committee charged with the responsibility of reviewing the governance structure of the Association for the purpose of determining what modifications in the current structure are needed in order for the Arkansas Bar Association to remain a relevant, viable organization that provides valuable services and support for the Arkansas legal community. Considering the list of names provided by the House of Delegates in conjunction with utilization of her knowledge and judgment, then president Suzanne Clark appointed the Strategic Governance Review Task Force. The Task Force is co-chaired by Aaron Squyres and me. The 25 members of the Task Force come from a variety of practice areas, geographic locations, firm sizes, race, gender, and tenure as a lawyer. The Task Force had its first meeting on September 12 and 13, a second meeting was held November 12 and a third meeting was held on January 12, 2019 (a Saturday). At the beginning of the September meeting all of the attendees signed a pledge to keep the best interest of the Association at the forefront of all discussions that occur during the Task Force meetings and to not allow personal interest or interest of clients to undermine their commitment to reach conclusions that represent the best interest of the Association. We all committed to be candid but to remain civil. We acknowledged that the Arkansas Bar


Your ArkBar, Your Voice The House of Delegates voted in June to recommend adoption of a new constitution changing the governance structure of your ArkBar. Electronic ballots distributed to members November 15, 2019.

Voting begins November 15, 2019.

visit arkbar.com/for-attorneys/ new-governance-structure-proposal of the future must have agility, while remaining relevant to and representative of its members. A comparison of the minutes of the April 20, 2018, Board of Governors was made with those of the June 20, 2018, House of Delegates meeting and it was the consensus of the Task Force that the two bodies agreed on the following: 1. The mission statement of the Association is too broad 2. Governance is too slow 3. Lack of participation in the House of Delegates is a problem 4. Attendance needs to be enforced 5. Change is needed Work groups were established so that they could study specific issues and submit recommendations to members of the Task Force prior to the meeting that was scheduled for November. At the November meeting, consensus was reached that the governing body needs to be small enough that the Association will not have to worry about having a quorum but needs to be large enough to provide leadership opportunities for the Association’s members, and be sensitive and responsive to the diverse nature of its membership. On January 12, 2019, the Task Force met for almost the entire Saturday diligently working to make decisions regarding all outstanding issues. Consensus was reached that the Bar As-

sociation’s continued relevance and viability would be best served by merging the Board of Governors and the House of Delegates into a single governing body made up of 45 Trustees elected from 15 districts. It was determined that district boundaries should be established every six years instead of every 10 years, so that the governing body would more accurately reflect the changing nature of the geographic work locations of the Association members. It was further determined that the governing body should meet four times per year, including the annual meeting, and that attendance rules should be enforced. Transparency has been a core value of the Task Force. Progress reports were made to the Board of Governors and to the House of Delegates. Before a final proposal was submitted, recommendations were posted on ACE and input was sought from the membership, including current delegates and governors, past presidents, and tenured delegates. Each member of the Task Force contacted assigned members of the House of Delegates and invited them to consider that Task Force member a contact person for any questions that might arise regarding Task Force recommendations. The Task Force made recommendations to the Board of Governors and the Board of Governors voted in favor of those recommendations and submitted them to the House of Delegates, the policy-making body of the Association.

At the annual meeting of the House of Delegates there was considerable discussion regarding the proposed Constitution, and it was ultimately determined that instead of having 45 Trustees it would be more appropriate to have 60 Trustees. No other modifications regarding the recommendations made by the Strategic Governance Review Task Force were made. The Task Force thanks the Association for the opportunity to propose a Constitution that represents the Task Force’s best effort to preserve and respect the traditions of the Arkansas Bar Association while anticipating and preparing for the challenges and opportunities of the future. The proposed Constitution preserves the tenured status of those who have earned such status through years of service. It guarantees representation for all areas of the state by requiring the election of four Trustees from each of the 15 Trustee Districts; it protects the rotation of Presidents by maintaining three State Bar Districts; yet, it reduces the size of the governing body so that the Association can predictably have quorums, efficiently make decisions, and enforce attendance requirements. The membership is requested to please support the proposed Constitution. 

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MEDIATION AND ARBITRATION, A PERSPECTIVE FROM THE MEDIATOR By G. Alan Wooten

Alternative dispute resolution, in the form of either arbitration or mediation, can be a positive alternative to litigation for your clients. It can avoid the damage to relationships that litigation causes, and often is usually less expensive than litigation. It encourages the parties to be involved, promotes efficient resolution, and is confidential. Preparing yourself and your clients effectively for arbitration or mediation can help you achieve positive results for your clients.

Introduction Alternative dispute resolution is on the rise, and one cannot help but wonder why. Popular reasons include that the cost of litigation may outweigh the interests at stake, litigation occurs in a public forum with the potential for negative publicity, courts can only address a narrow number of remedies such as money damages or limited injunctive relief, and litigation often results in irreversible damage to relationships. In addition, most disputes involve more than money alone and alternative dispute resolution encourages flexible settlement discussions tailored to all aspects of the dispute. Although the United States’ litigation process is the best in the world, it is not perfect, and some issues are simply not suited to judicial or jury resolution. In opposition, the mediation or arbitration process encourages parties to be involved, promotes efficient resolution, and are confidential.

G. Alan Wooten is a partner with Conner & Winters, LLP in Fayetteville. His practice includes the area of mediation and he is certified as a civil and probate mediator by the Arkansas Alternative Dispute Resolution Commission.

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Arbitration Arbitration is an effective means of resolving a dispute, which arises where the parties have agreed that a dispute related to a contract will be determined through arbitration rather than traditional litigation. It usually involves a hearing before an arbitrator or panel of arbitrators selected by the parties and results in a decision by the arbitrator(s) much like a judge would issue in court. Some agreements provide that the American Arbitration Association will administer the arbitration, which utilizes different rules for different types of cases. For example, there are commercial, construction industry, consumer, employment and labor arbitration rules. However, the parties may waive application of those rules. Arbitration requires that the parties prepare for a hearing as they would for a trial, and the arbitrators can be involved in discovery disputes. Ordinarily arbitrations do not involve the courts unless an award is enforced or appealed after a decision by the arbitrator. Selection of an arbitrator or a panel of arbitrators is very important because under most organized proceedings, such as one involving the American Arbitration Association rules, the parties will be furnished

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with a number of potential arbitrators and substantial background information on the arbitrators, along with information regarding the arbitrator’s area of expertise. Since the arbitrator is the decision maker, this may be the most important procedural part of the process. Once the arbitrator or panel has been selected, the arbitrator ordinarily conducts a conference to discuss scheduling and the case will generally proceed like it would in court with a couple of notable exceptions. For example, the arbitration is not going to be a public proceeding. The parties may arbitrate their dispute in private and resolve their dispute without any public record. This is a distinct advantage from traditional litigation where the controversy may be subject to public filings and perhaps substantial publicity. Arbitration has been used often in Arkansas by nursing homes in an effort to reduce the cost of dispute resolution. The initial contracts between a nursing home and potential residents or their representatives generally provide for arbitration of any disputes, including matters related to a resident’s care and any alleged negligence on the part of the nursing home. The advantage of such agreements is that the matter will generally be decided more quickly, the proceeding will be less expensive compared to a jury trial, and the dispute remains private between the par-

ties. Also, the outcome depends upon the award of a neutral party, the arbitrator, who ordinarily possesses specialized knowledge related to the issues in dispute which is not common with juries. Parties to arbitration proceedings are much like litigants in court; they are present because they were compelled to be there as a result of entering into an arbitration agreement and there is little to no opportunity for an exchange between the parties which might result in a settlement as is the case in mediation. Settlement conferences do take place within arbitration proceedings, but generally do not involve the type of discussions which come about in mediation. Arbitration awards can be flexible like mediation agreements insofar as ordering performance or non-performance of an agreement, and other solutions not related to judgments for money. Also, arbitration can be very effective in cases that involve highly technical issues which would be very difficult for a lay person on a jury to understand as compared to an arbitrator with specialized knowledge of the dispute’s subject matter. Mediation What should you expect as an advocate taking your client to a mediation or arbitration? The mediation process is a straightfor-

ward and user-friendly process. It ordinarily begins with a voluntary decision by the parties to mediate a dispute, but in some instances, it may result from a court order or where a dispute arises out of a contractual agreement that provides for mediation. Although each mediation is unique, they can include a settlement conference, a mini trial, or, in some instances, even involve a thirdparty neutral expert who provides technical assessment and analysis of the facts. In the instance of arbitration, it is a binding and enforceable dispute resolution process which can be tailored to the nature of the dispute and the parties’ needs. Mediators utilize different approaches in facilitating settlements. Some mediators are aggressive and work to convince the respective parties of the weaknesses and strengths of their positions and ultimately may suggest a range of reasonable settlement. Others assume more passive roles by facilitating discussions between the parties to help the parties and their counsel to consider the various strengths and weaknesses of their cases. The most effective process depends upon the mediator’s personality, the mediator’s evaluation of the parties and their counsel, and the nature of the dispute. It is important to remember that most mediators have been attorneys and have worked within the me-

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“... arbitration can be very effective in cases that involve highly technical issues which would be very difficult for a lay person on a jury to understand as compared to an arbitrator with specialized knowledge of the dispute’s subject matter.” diation process as advocates and not as facilitators until they have completed mediation training and experienced the mediation process as a mediator. An advocate is taught to evaluate and come to reasonable conclusions about the subject of a dispute. Mediators are not usually in a position to determine what is a reasonable settlement in a dispute, but they can guide the parties toward a solution to their dispute and facilitate a settlement. In order to handle court-ordered mediations, mediators must complete continuing education programs on an annual basis as prescribed by the Arkansas Alternative Dispute Resolution Commission. Initially, mediators have to undergo forty hours of training in basic mediation or civil mediation. Domestic relations and juvenile division mediators must undertake additional training in their respective areas of practice. Most mediators in Arkansas attend sessions offered by the Arkansas ADR Commission. Also, many states allow private training programs which may offer basic mediation training and advanced or specialized mediation training. The Role of the Parties, Attorneys, and the Mediator Counsel: Legal counsel plays a critical role in the mediation process. Prior to beginning mediation, it is essential that counsel be prepared. The side that is most knowledgeable regarding the facts and the possible outcomes of a given case is more likely to achieve a reasonable settlement. In addition, it is important that counsel manage client expectations. A client needs to understand that the first offer may not be reasonable, and if it is an insulting offer, the client cannot move toward settlement until discussions are within the range of a reasonable settlement. Responding to an insulting offer with an insulting counteroffer is generally not productive, but if a client has been forewarned, he or she will be less likely to terminate the mediation session or give an insulting response in return. The parties need to engage in mediation with an open mind as to what form a settlement might take and should consider creative solutions where possible. 20

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Patience is a necessary virtue of the mediation process and your client needs to understand this going into the mediation. By advising your client beforehand, the process will likely progress more smoothly. An attorney and client should discuss in detail their case and what they believe to be a reasonable resolution prior to the mediation. This gives the attorney a chance to control expectations if the client’s initial position is unreasonable and unlikely to result in settlement. Advising clients of the respective strengths and weaknesses of their case and the impact of such characteristics is necessary to keep expectations within a reasonable range. It is important that an attorney come to mediation with a proper client relationship. A client is usually angry because the dispute exists and may look at the mediation as a battleground for the dispute. By carefully preparing and analyzing the issues involved, counsel may be able to work with their clients to draw some of the emotion out of the issues and talk frankly with them about their case. At the mediation, the attorney is a valuable resource for the client who will generally have questions during the process about both legal and practical matters, such as what it will cost to proceed with a matter to trial or what the chances are of success. Counsel should also be in a position to help a client analyze offers in the context of the negotiation process. Every litigant is going to have a different opinion in the beginning with regard to the respective merits or demerits of the other side’s case, which will necessarily affect the amount of money that they will offer or accept to settle the case. These amounts will likely be far apart in the beginning but, hopefully, not so far apart as to discourage the parties from continuing the negotiation. Attorneys should assure their clients that even though they may be far apart, this is how the process works and they should remain patient with the process because in the majority of instances where this process is utilized, the parties finally reach a zone of agreement where an actual resolution may be attained.

Mediator: The mediator’s role, first of all, is to organize and provide structure to the mediation process. This ordinarily begins with the mediator soliciting a position statement from each of the parties and then determining the primary issues to be discussed and the best order for addressing each. It may be valuable for a mediator to contact counsel before the mediation in an effort to frame the issues in advance. It is important that mediators be flexible, as what appeared to be an important issue at the beginning may not be so important once the process begins. The mediator must also set the stage. A mediation should start off with a feeling of optimism, despite the fact that the parties are involved in a dispute. A mediator’s opening to the parties and their counsel should educate them as to the overall process and explain the application of confidentiality and its benefits. In addition, the mediator’s opening should instill trust in the mediation process and encourage the parties to invest a good faith effort in resolving the dispute. It is also very important for the mediator to empathize with the parties. The parties, without relying upon the mediator as an advocate, need to feel that they have a person who’s leading the process that understands the parties’ positions and empathizes with them. Parties: The parties need to understand that a mediator is not there to provide them with legal advice. Most mediators will comment on legal issues if asked by the parties, but are going to refer the parties back to their respective counsel to receive specific legal advice. The mediator is not in a position to fully evaluate the respective claims of the parties because the mediator does not have the range of knowledge that the parties or their counsel have gained through discovery or experiencing the facts. The parties play the most important role of all, as they are there to determine the outcome of settlement negotiations. Their counsel and the mediator serve to help the parties and facilitate that process, but the party is the ultimate judge and jury. The party needs to come with an open mind. Sometimes, this is very difficult in a dispute, but a success-


ful settlement negotiation cannot occur if the parties do not have an open mind about resolution. The parties should be encouraged to carefully think about what would be a reasonable outcome and should discuss that with their counsel. The mediation process is also a chance for the parties to hear the facts and arguments of the other side and rethink their initial position. Although the parties are rarely happy with the outcome of a successful mediation, their satisfaction will come later when the litigation no longer exists and they can spend their time on more productive matters rather than dealing with a legal dispute. The Process All mediations involve an opening session of some sort. It may be limited to the mediator explaining what the mediation process is about, what the parties have to gain by settling their dispute, and what the parties have to lose by going through the litigation process. In some instances, if the parties request, there will be an opening statement made by counsel or a chance for the parties to make any statement they wish to make. It seems that fewer participants are requesting an opening statement by counsel, although there are instances when such statements can be very helpful as they give the parties a chance to hear counsel for the other side state what they believe is important from their side of the dispute. From a mediator’s perspective, a mediation is not a place for the attorney to posture or spend any time convincing the client that a settlement is going to result from taking an unreasonable position. Despite our natural zeal for representing our clients’ positions, a mediation is not the place for such sort of advocacy, but should be a place where reasonable parties and counsel can have meaningful discussions directed toward resolution. Once the opening session is completed, the parties generally separate and the mediator goes to one of the parties to seek an opening offer. Opening offers can be very significant. An opening offer that is an insult will often result in an equally insulting response. Some disputes require considerable time and effort by the mediator to reach realistic offers, frequently involving multiple back and forth discussions with the respective parties. An insulting opening offer can cause the opponent to refuse to bargain further and end the mediation proceeding. As a part of the back

and forth between the parties, the mediator must try to move the parties within a bargaining range as quickly as possible, a zone of agreement which is acceptable to the parties. It should not be forgotten that there are nonmonetary considerations which might be offered, such as an apology or an agreement to perform, or partially perform an agreement, which may be important to a settlement. If the parties reach a settlement at mediation, there should be some sort of written agreement signed by the parties setting forth the terms of the settlement. The mediator is going to rely upon the parties in most occasions to be specific about their settlement agreement, but a memorandum of settlement may be appropriate. If a case does not settle, most mediators will follow up with the parties in an attempt to see if further progress can be made toward resolution. This can usually be accomplished through a simple telephone call to the counsel for the parties and an inquiry as to what else might be done to help the parties resolve their dispute, and, if it is productive, to facilitate further discussion between the parties. Most settlements occur at mediation, although it is not unusual for parties to reconsider their positions after mediation is completed. Below is a list of mediation tips for parties and counsel: 1. Preparation is essential. 2. The parties and their counsel should come to the mediation with knowledge of a reasonable zone of agreement and an expectation that they can get within that zone as a result of their discussions. 3. Opening statements by counsel are, for the most part, not productive. More often than not, opening statements create animosity and division rather than a positive atmosphere for further discussion. 4. Selecting the right mediator is important. Mediators have specific skillsets and often experience in particular areas of the law which can make them more effective for particular cases. Picking a mediator simply because he or she is available may not give you the best chance of settlement. 5. It is important to be patient with the process. It takes patience to formulate offers that will move the dispute toward a zone of agreement. If the parties are having discussions within the zone of agreement before the mediation occurred, the mediation will most likely be unnecessary.

“Legal counsel plays a critical role in the mediation process.”

6. Parties need to understand that the mediator is present to facilitate discussions, not to provide legal advice or champion one side’s cause. The mediator is not present as an advocate for the parties. 7. Listening is important for all participants. 8. Impasse doesn’t necessarily mean impasse. It is sometimes necessary in order to reach a settlement for one side or the other to say, “that’s all I’m going to do to resolve this case today.” Often such statements do not mean that this is the last offer but simply express an anxiety to move toward the zone of agreement. Lots of cases settle after demands were made that were “final demands” at the time but ultimately resulted in further negotiations. 9. Cases do settle after the formal mediation process has ended and it is important to keep lines of communication open regarding possible settlement. 10. A thoughtful mediator will give the parties a chance to express their emotions. Often, parties cannot reasonably decide how their issues should be resolved without having a chance to express their emotions regarding the case. Alternative dispute resolution, in the form of either arbitration or mediation, can be a positive alternative to litigation for your clients. It can avoid the damage to relationships that litigation causes, and often is usually less expensive than litigation. It encourages the parties to be involved, promotes efficient resolution, and is confidential. Preparing yourself and your clients effectively for arbitration or mediation can help you achieve positive results for your clients. 

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ALTERNATIVE DISPUTE RESOLUTION PROCESSES

Jewish Courts Since the post-exilic establishment creation of the Beth Din, Jewish courts have thrived as an institution to adjudicate civil matters among Jews wherever they have found themselves. The first courts were established around 70 CE after the Roman destruction of the Second Temple in Jerusalem. Most secular governments where Jews have lived in the Diaspora have, if not encouraged, at least sanctioned some form of Jewish self-government. Thus, particularly in Europe, Jews were unique in being allowed their own system of courts wherever there was an organized Jewish communal life. In today’s world, the jurisdiction of Batei Din (plural) consists primarily of marriage and divorce issues in the Orthodox community as well as matters of commercial and religious law. Jurisdiction is by agreement, much like agreements to arbitrate in civil law. In New York State and the boroughs of New York, these religious courts operate pursuant to New York’s arbitration statute. Given most courts’ preference for voluntary alternate dispute resolution, similar results should obtain elsewhere, as long as there exists a written agreement to submit to the jurisdiction of the Beth Din. That agreement can be either in an initial contract or in writing after a dispute has arisen. Just as in civil law courts, once it is determined that a valid agreement to arbitrate exists, civil courts will not stay the proceedings. There are procedural safeguards for the parties. They must have sufficient advance knowledge of the proceeding and have clearly and unequivocally agreed to the jurisdiction of the court. The litigants are entitled to representation either by civil counsel or rabbinic representation. There are provisions for discovery and witnesses may be called to testify. Most courts are composed of three Rabbis, although the court can operate with as few as a single judge. In commercial cases, at least one of the judges can be an individual with business experience, often a lawyer. The cases are always decided in accordance with religious law in matrimonial cases and even in commercial cases where the court can find a basis in religious law. Many of the Batei Din have staffs of trained legal professionals as well as Jewish legal experts in Halachic (religious) law. These experts are well trained in Talmudic law and are ordained rabbis. As is the case in most civil arbitrations, members of the Beth Din are not bound by the rules of evidence. As this is a religious court, they are not bound by civil substantive law. They essentially can and do try to achieve what we would call equity. The awards are typically private as they are in arbitration in Arkansas, although recently a New York Beth Din has published awards after redacting names and other identifying materials.

Philip E. Kaplan is an attorney with Williams & Anderson PLC in Little Rock.

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Christian Conciliation

Christian conciliation is an approach to conflict resolution using biblically-grounded conflict coaching, mediation, and arbitration to resolve personal, business and even church conflicts. There are several providers of such conciliation services, including the Christian Conciliation Service (“CCS”). The CCS’s Handbook for Christian Conciliation states that the purpose of Christian conciliation is “to glorify God by helping people to resolve disputes in a conciliatory rather than adversarial manner.”1 In addition to facilitating the resolution of substantive issues, Christian conciliation seeks to help parties learn how to change their attitudes and behavior to avoid similar conflict in the future. Christian conciliation is available for scenarios that would traditionally call for an arbitrator as well as those where a mediator would be used. Although the methods and techniques are Bible-based, the arbitrator or mediator does “take into account” any state, federal, or local law presented to him or her.2 However, the Bible is given primary authority over “every aspect of the conciliation process.”3 In Christian conciliation, the arbitrator or mediator is called a Conciliator. The provider of Christian conciliation services is called an Administrator. The selection of Administrator is made by agreement of the parties. Under the CCS Rules of Procedure, if no agreement is reached, the CCS will appoint an Administrator. The Administrator appoints one or more Con-


ciliators for approval by the parties. If agreement as to Conciliators cannot be reached, the Administrator may appoint them. Conciliator decisions are made by a simple majority vote. Where insurance is involved, the insurer is invited to participate in the conciliation process to the same extent that any party may, which includes the right to select an Administrator and appoint Conciliators. Similar to a traditional arbitration or mediation, the Administrator may charge a fee for his or her services including all reasonable direct costs, pursuant to a written fee schedule. In an employment matter, the employee may request that the employer pay all initial fees and expenses that may be required, and the final apportionment between the parties shall be negotiated during the mediation and may be decided by the Administrator. A Christian conciliation mediation or arbitration ordinarily follows a predetermined procedure, consisting of an introduction and opening prayer, statements from each party focused on clarifying the issue to be resolved, the presentation of each party’s claims, defenses, witnesses and evidence, an opportunity for the other party’s response to same, questioning by the Conciliator, a discussion of each party’s responsibility for the dispute (which may first take place in private), counseling of how relevant biblical principles guide a resolution here, a discussion of an appropriate resolution, an agreement on a solution, and a closing prayer. If a matter is not resolved by mediation, it may transition to arbitration by unanimous agreement of the parties. The Administrator and/or Conciliators may meet individually with each party prior to the mediation to obtain an overview of the dispute and to assess the party’s attitude and any needs, as well as determine settlement potential. They may even discuss relevant biblical principles and “assign homework that will facilitate the mediation process.”4 Conciliators may also caucus separately with any party during the course of a mediation. During mediation, attorneys may serve only as advisors to their clients. Administrators may be attorneys, but may not provide legal advice. If an attorney is to be present

to advise a party, notice must be given five days before the mediation. If other parties will not have an attorney present, the Administrator may exclude all attorneys from the mediation. Evidence may be offered during the mediation, with questions of relevance and materiality to be resolved by the Conciliators, without any requirement that evidence conform to the legal rules of evidence. Evidence may be offered in the form of deposition or affidavit, and may include personal inspection of premises or objects. All communications during the conciliation process are treated as settlement negotiations and as such all oral and written communications are strictly confidential and inadmissible for any purpose in a court of law. The conciliation agreement or arbitration decision may be furnished to a party if the decision is contested or appealed pursuant to an available statute. In certain circumstances, the church of any parties who profess to be Christians may become involved in resolving a matter. If a party who professes to be Christian is unwilling to cooperate with the conciliation process or refuses to abide by an agreement reached during mediation or arbitration, the Administrator may report the matter to that person’s church and request that the church actively participate in resolving the dispute. The Administrator is permitted to disclose any information which has bearing upon the matter, and the church is permitted the ability to gather and hear evidence and take “whatever steps it deems necessary to facilitate reconciliation and promote a biblical resolution of the dispute.”5 Where a final resolution is reached, an agreement is signed and it becomes binding upon the parties. If the matter was mediation/arbitration or straight arbitration, no new or different claim may be submitted without approval of the Administrator. If an agreement cannot be voluntarily reached, the Conciliator may meet with the parties separately, engage in Bible study and prayer, and if necessary issue a non-binding advisory opinion which identifies what each party should do to resolve the dispute and reconcile the relationship.

Endnotes: 1. Handbook for Christian Conciliation, Christian Conciliation Service, at Part III(1), available at https://rw360.org/wp-content/uploads/2019/04/Handbook-for-ChristianConciliation-v5.3-4-23-19.pdf. 2. Id. at 20. 3. Id. 4. Id. at 25. 5. Id. at 25. See also Matthew 18:15-20 (New International Version), available at https://www.biblegateway.com/ passage/?search=Matthew+18%3A1520&version=NIV: 15 “If your brother or sister sins, go and point out their fault, just between the two of you. If they listen to you, you have won them over. 16 But if they will not listen, take one or two others along, so that ‘every matter may be established by the testimony of two or three witnesses.’ 17 If they still refuse to listen, tell it to the church; and if they refuse to listen even to the church, treat them as you would a pagan or a tax collector. 18 “Truly I tell you, whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven. 19 “Again, truly I tell you that if two of you on earth agree about anything they ask for, it will be done for them by my Father in heaven. 20 For where two or three gather in my name, there am I with them.” Anton L. Janik, Jr., is an attorney with Mitchell, Williams, Selig, Gates & Woodyard in Little Rock.

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THE DISAPPEARING JOINT SESSION— A TROJAN HORSE? A STRATEGIC AND PRACTICAL GUIDE TO MEDIATING CIVIL CASES

By Frank S. Hamlin

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eware! A Trojan Horse has entered the world of dispute resolution from coast to coast and north to south. This Trojan Horse is the ever-increasing tendency of plaintiff and defense attorneys, claims adjusters, risk managers, company officials, and individual parties to regularly dispense with a joint session at the beginning of a mediation in a civil case. It’s as though only private caucuses matter. Looks like a good idea, but it is not. Both sides in a mediation are deceiving themselves in believing that a joint opening is unnecessary. It is inviting to do this and ignore downsides in refusing a joint session. Actually, this seeming shortcut undermines the process and magic of mediation and can alter the outcome in unfavorable ways. Granted, there are mediations occasionally with difficult personalities, strong emotions, hurt feelings or a client who won’t make an effective appearance that lend to dispensing with an opening joint session. These situations are and should be the exception not the rule. The opening session is viewed by many as unnecessary and a waste of time. Some attorneys, clients, and claims officials are concerned about possibly offending the opposing party or attorney and think they can gain by saving time without a joint session. These people often deem it best to start a mediation with separate caucuses and spend the entire mediation process in separate caucuses. The human interaction and dynamics (even if very brief ) between the opposing sides is missed. In my experience, the use of an opening joint session can change the content and mood of a case from one of an atmosphere of contentious litigation to one focused on resolution of all issues. In that regard, Eric Galton and Tracy Allen, two long-time ADR professionals, stated in their article entitled “Don’t Torch the Joint Session” as follows:1

Frank S. Hamlin is the managing member of Hamlin Dispute Resolution, LLC with offices in Little Rock, Bentonville, Paris, Fort Smith and Memphis, TN. Frank has been a mediator and arbitrator since 1992. 24

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Many of us have wondered what the mutant child of the marriage of law and mediation might look like. Now we know: deconstruct the process and turn mediation into the more familiar judicial settlement conference. Many attorneys who are used to mediation take the opening joint session for granted and are often bored with it. They have heard the mediator’s opening remarks and instructions countless


times, but what they miss is that the opening has not been heard by the parties. Mediation is not primarily for the attorneys, but for their clients, and the mediator’s opening remarks are crucial for the parties. A joint opening session was designed for a modest amount of “meet and greet,” the opportunity for the parties themselves and their counsel to make limited substantive points, and to give parties an initial opportunity to participate in the mediation process. Unfortunately, in my 27 years of mediating, I have seen this trend away from opening joint sessions become stronger and more prevalent.2 Some of the missed opportunities of no joint session are the following: 1. A defense attorney, adjuster or defendant in a tort action apologizing to a grieving plaintiff or plaintiff ’s family, if appropriate, can pay big dividends (I have witnessed this many times with apologies or asking a pertinent question); the power of an apology should not be forgotten; 2. The defense reassuring the plaintiff and vice versa that their group is present with sufficient time and intends to work with the opposing side to reach a resolution; 3. The plaintiff and/or family members and the defendant having the chance to emotionally and substantively have his or her say directly to the opposing group, if desired; if done sincerely, great dividends can be achieved; 4. Learning something new or having items clarified by the opposition; 5. Verifying the previous negotiations; 6. Observing the appearance and demeanor of the opposition; 7. An attorney and client missing the chance to “sell” his or her case to the opposition; 8. Not allowing the mediator to build trust in the process by effectively managing a joint session. Attorneys shy away from emotion because they are not comfortable having to deal with it. Attorneys can rely on the mediator to hold a safe and trustworthy space and expect them to primarily deal with the emotions of the parties. Attorneys become uneasy when a client is emotional in a joint session and want to end the session immediately. Actually, if the client is still under control, but showing emotion, the attorney should allow the client to

“Why pass on a joint session that may raise the odds of settling on the day of mediation? Parties, attorneys and company officials should respect the entire process and purpose of mediation, which is primarily for the parties.”

proceed. This process helps begin to reduce the emotions and tension in the client. It is like releasing part of the air from a balloon that is about to burst. After 4,000 mediations in 27 years, any time either party becomes emotional and sheds some tears in the joint session or a private caucus, in my experience, the case always settled. I have said for years that until, as the mediator, I am able to satisfy the emotional component of the case, seldom am I able to settle the substantive component, to wit: settle the case. The joint session is a great place to begin “deflating the balloon.” When that session is over, if handled properly by the attorneys, the clients should feel at least partially emotionally satisfied. Another key to a productive opening joint session is allowing the mediator to start building trust in the process and in the

mediator himself or herself. This is an opportunity to get all parties to “buy into” the process energetically and substantively. This will help with the parties participating more fully earlier than later in the private caucuses. I submit to those heading into their next mediation to think long and hard before passing up the opportunities available from a beginning joint session. Likewise, attorneys should take at least a little time to organize their strategy and thoughts for the comments in the joint session. The thoughts and strategies should be shared by the attorneys with their respective clients and any claims adjuster prior to mediation. Also, attorneys should recommend that clients at least briefly participate in the remarks in the joint session. Sometimes clients, claims adjusters, and company officials can advance their case more than the attorneys

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THE WILSON LAW GROUP themselves and really help the overall process in a joint session. This is especially true if a plaintiff or a defendant has not been deposed by the opposition. All it takes is some minimal preparation by the attorney and a client willing to participate to a small extent on his or her own behalf. Too often, I see attorneys who have instructed their clients not to say anything in a joint session. This is a big mistake in most cases. A joint session can set the stage for a successful mediation through participation of the parties. I have witnessed so many good and informative things occur at a beginning joint session. Also, a joint session can be reconvened, if necessary, later in the day. I have also witnessed attorneys “poison the well” by making inflammatory, threatening and insulting remarks. Give serious thought to your opening comments. Attorneys and other professionals are in a room with parties on one of the most difficult days of their lives. The process and the parties deserve respect and the right to be heard. Poor preparation by attorneys and callous regard for the process create untold damage that takes the mediator time to repair. If done appropriately, the chances of upsetting the op26

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position in a joint session are very small. The time spent in a fairly brief joint session will likely shorten the length of the mediation and raise the odds of settling. A 15- to 20-minute joint session can set the tone for the entire day. If a video presentation will be presented, it should not last more than 15 minutes. Seldom have I ever seen a joint session irreparably harm the remainder of the mediation. One important example of a successful joint session occurred many years ago when I mediated a case in which a truck driver burned to death in a horrible interstate highway crash. Amazingly, there was a video of this incident taken by a bystander. At mediation the brother of the decedent, who was the executor of the estate and a claims adjuster, participated in the opening joint session. At some point during his comments an innocent question was asked of the brother. He became very emotional and slammed the DVD of the fiery crash on to the conference table and cracked the DVD case. A lot of “air was released from the balloon” at that moment. For the remainder of the joint session and for all the private caucuses in a full day mediation, the brother was much more subdued,

very cooperative, and realistic in helping reach a settlement. This was a cathartic experience for this gentleman in that joint session. It set the tone for a successful mediation. Another telling example of the magic of a joint session occurred in the summer of 2019. I was mediating a case where a man in his late 20s was seriously injured in an auto accident. He was permanently disabled but not totally. He was a man of very limited education. With his numerous orthopedic injuries, surgeries and intense pain, it had become almost impossible for him to work at any job. During the joint session a very skilled claims professional asked the plaintiff how he intended to use a large amount of settlement money. The plaintiff answered that he and his wife already owned two small rent houses and it was now their dream to own numerous rent houses as an income stream and as a retirement. The plaintiff then really opened up to the process after this question. This answer from the plaintiff himself greatly impressed the claims adjuster and this interchange seemed to really motivate the plaintiff and adjuster to find common ground for settlement. In private caucuses, both plaintiff and adjuster showed increased respect of one another and the case settled. This one question by a claims professional and an in-depth answer by the plaintiff set the tone for the entire mediation. Why not “score some points” with the opposing party by giving short, well-planned remarks or questions by clients, attorneys, adjusters and company officials? This can be accomplished by “being hard on the issues and soft on the parties.” It is like shooting free throws in a basketball game (uncontested shots). Would any coach completely pass on the players shooting foul shots? Of course not! Why pass on a joint session that may raise the odds of settling on the day of mediation? Parties, attorneys and company officials should respect the entire process and purpose of mediation, which is primarily for the parties. Give this a try on your next mediation and beware of the Trojan Horse. Endnotes: 1. Eric Galton and Tracy Allen, Don’t Torch the Joint Session, Dispute Resolution Magazine, Fall 2014, at 25. 2. See Lynne S. Basis, Face to Face Sessions Fade Away, Dispute Resolution Magazine, Fall 2014, at 30. 


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DIVORCE MEDIATION: WAR OF THE ROSES OR KRAMER V. KRAMER

By Debby Ferguson

F

Debby Ferguson is an attorney of counsel and mediator practicing with the law firm of Gill Ragon Owen. 28

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or those unfamiliar with those divorce movies, the Roses engage in a destructive battle that continues even as they lie on the floor after their chandelier crashes down on them. The Kramers, on the other hand, battle, but in the end, become civil toward each other and put the best interests of their child first. Although there may be a few divorcing couples out there who are able to calmly sit in a room together and work through difficult issues for an extended time, they are an extreme minority. The Roses and the Kramers represent different ends of the spectrum of the majority of couples that divorce mediators work with. After all, most couples getting divorces are doing so because they are unable to get along. Underlying all mediations are the Arkansas Alternative Dispute Resolution Commission’s Requirements for the Conduct of Mediation and Mediators. These requirements are intended to guide mediators, inform mediating parties, and instill public confidence in the mediation process. They include 12 Standards covering matters from the mediator’s professional competence to the parties’ right to selfdetermination. Beyond complying with the ADR Commission’s Requirements and Standards, divorce, or, officially, domestic relations mediators have a range of strategies regarding how to best help these couples. The domestic relations mediators certified by the Arkansas Alternative Dispute Resolution Commission will have had the 40-hour course in basic mediation skills that all mediators receive, plus an ad-


ditional 20-hour course in family mediation, and several observations of domestic mediations for practical experience. Despite these common features in their training, domestic relations mediators may use quite different mediation techniques and styles. There are several highly-requested mediators who either never or almost never put soon-to-be ex-spouses in the same room. This practice can be effective in keeping emotion and dramatics to a minimum, and keeping participants calm may improve the chances that they can reach an agreement. Other divorce mediators may strive to keep a couple in the same room for the entire mediation with the purpose of giving the couple an opportunity to work on communication. Other mediators fall somewhere in between. Where the parties start, remain, and finish is usually determined on a case-by-case basis. Some mediators will use a pre-mediation phone conference to assess how well the parties tolerate being in the same room together. Sometimes a mediator will learn that the hostility between the parties has reached the point that it would be best to stagger their arrivals or otherwise avoid having them sitting in the waiting room together. Simply asking each party before beginning whether each would be comfortable being in the room with the other can give the parties a sense of control that may help put them at ease. In almost every case, the parties are comfortable enough to sit in the same room for the 10 minutes it takes for the introduction and the review, and the signing of the mediation agreement. Doing so avoids duplication and ensures that both sides hear exactly the same information about the process. It also reinforces the mediator’s impartiality, a requirement of Arkansas Mediator Conduct Standard 5. If there is reason to think that putting the parties together is likely to invoke anger or cause one party to feel intimidated, the parties should be separated for negotiation. The Roses would be separated, for example. Especially if there has been a history of violence or intimidation, the parties should be separated. Arkansas Mediator Conduct Standard 4 requires that “a mediator shall encourage a reasonably balanced process . . . .” If one party feels scared or intimidated, there may be no way to facilitate a reasonably balanced process. Many mediations have been cancelled after talking with the attorneys or parties and determining that mediation would

“There are countless ways a domestic relations mediator can facilitate communication between the parties—a goal of mediation that may be of greater importance than in many other mediation contexts.” not be appropriate because the process could not be reasonably balanced due to fear or past abuse. Another concern in those cases is that a party might feel coerced to enter an agreement out of fear. Such an agreement would not be voluntary, as required by Arkansas Mediator Conduct Standard 3, and mediators need to be alert to parties’ cues. Absent those sorts of concerns, keeping parties in the same room can have benefits to the extent they are willing to work at engaging in respectful discussion of the issues and are able to tolerate the process. Particularly when there are minor children affected by the divorce, the parties will need to communicate in order to raise their children. Some parents come to mediation having only communicated by text or email for a long period of time without actually speaking to each other or being in the presence of the other. Much animosity, mistrust, and misunderstanding can develop, and staying in the same room can create an opportunity to dispel accumulated tension. Mediation can be an opportunity for the parties to practice communication in a safe space and with some supervision. Mediators can serve to remind them to be courteous to each other, even in such simple ways as allowing the other person to finish speaking. A mediator can facilitate communication by rephrasing what each person has said and perhaps in a way that the other can better understand the speaker’s interest. There are countless ways a domestic relations mediator can facilitate communication between the parties—a goal of mediation that may be of greater importance than in many other mediation contexts. Although there are generally some challenging moments in every divorce media-

tion, when they work best, they end more like Kramer v. Kramer than The War of the Roses. Consider the example of a mediation where the mediator separated the parties because of their initial level of tension and mistrust. Each had expected the other to be disrespectful if they remained together. The mediator soon discovered that a long history of communicating only through text messages had led to huge misunderstandings on both sides, and neither party had picked up the phone to clarify. While they were apart, mom and dad seemed calm and reasonable. After meeting with each, the mediator, who had gotten different versions of facts from each party, could have tried to clear up misunderstandings in individual conferences, but the dynamics suggested a different route. After asking each separately if they would be comfortable getting back together and sharing the information with the other party that they had just shared separately, they both wanted to get along and have the other involved in their child’s life, so they each agreed to return to a joint meeting. After commending both of them for agreeing to share with the other what they had shared separately, the mediator asked each person to listen to the other without interrupting or gesturing in any way until the other finished talking. Then, the mediator invited each to share. As they did, the misunderstandings were cleared up, and the tension and mistrust melted away. The agreement regarding custody and timesharing for the child came easily after that. While the attorneys and mediator drafted the written agreement, the dad asked the mom if she was hungry, and the two walked to a nearby restaurant for lunch. The two came back laughing and talking comfortably. It was a complete transformation that happened because all took a chance on direct communication. That mediation certainly had that Kramer v. Kramer feel-good ending, but even when couples do not reach that level of communication, being in the same room for even a short period of time can be the start of rebuilding communication and trust. However, separate rooms are sometimes necessary, and the mediation strategy that works best for the Roses may not be best for the Kramers. 

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NOT QUITE WHAT IT SEEMS: TRENDS IN COMPELLING ARBITRATION IN ARKANSAS

This article reviews recently-reported Arkansas cases involving requests to compel arbitration to identify recent trends in the litigation of such motions and areas where the law may still be developing.

C By Johnathan D. Horton

Johnathan D. Horton is a business litigation attorney at Wright, Lindsey & Jennings LLP, Little Rock and an adjunct professor at the UA Little Rock William H. Bowen School of Law.

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ompelling arbitration sounds easy. The law favors arbitration as a public policy.1 Courts view arbitration as costing less, moving faster, and relieving congested dockets.2 To promote that policy, “in determining whether the parties intended to arbitrate claims arising from a contractual relationship, ‘any doubts and ambiguities must be resolved in favor of arbitration.’”3 The Federal Arbitration Act (“FAA”) provides that “[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”4 Arkansas courts only look at two issues: first, whether the parties have a valid arbitration agreement; and, if so, whether the dispute falls within the scope of the arbitration agreement.5 Clever pleading will not avoid arbitration.6 So, at first glance, compelling arbitration sounds easy, right? As easy as it sounds, recent Arkansas cases confirm that compelling arbitration is no easy task. A court may declare the agreement unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.”7 In considering that issue, Arkansas courts continue to apply rigorous analysis to whether a valid arbitration agreement exists and a minority rule to evaluate one element of contract formation. If a court concludes an agreement exists, it will then construe the arbitration agreement to see whether the dispute falls within its terms.8 Recent cases where a valid agreement exists have focused on the other grounds, not a construction of the clause. For example, in Gibbons v. Anderson, the appellate court, apparently as an issue of first impression, held that an arbitration provision in a trust agreement cannot compel arbitration to determine the validity of the trust itself, which is an issue for the court to determine.9 Similarly, one bankruptcy court wrestled with arbitration in the context of two bankruptcy litigation cases.10 In the first case, In re Benson,11 the court stayed an adversary proceeding involving non-core claims pending arbitration. In the second, In re May,12 the court refused arbitration finding that the claims involved core claims litigation. Most Arkansas cases, however, turn on formation issues. In examining whether an enforceable arbitration agreement exists, Arkansas courts first examine whether the elements of contract formation are met: (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations.13 Mutual agreement and mutual obligations have generated the most litigation. In examining mutual agreement, an enforceable agreement requires mutual agreement with notice as to terms and subsequent assent.14 Traditional rules of contract construction and interpretation also apply to arbitration agreements, so the court seeks to give effect to the


“... if parties seeking to compel arbitration are unsuccessful, they should be aware that orders denying arbitration are subject to immediate appeal.” ...

parties’ intent as evidenced by the arbitration agreement.15 Courts can only construe and enforce the agreement the parties made, so if there was no meeting of the minds, there is no contract.16 A meeting of the minds requires an agreement as to all terms using objective indicators, and both parties must manifest assent to the contractual terms.17 The first group of cases turns on the element of mutual agreement. Arkansas courts scrutinize the proof and deny arbitration if contractual terms were not communicated to the other party or if objective indicators of assent are lacking. For example, in Asset Acceptance LLC v. Newby,18 the court refused to compel arbitration where a purchaser of a credit card debt offered no evidence that the account agreement’s terms were communicated to the cardholder.19 In ErwinKeith, Inc. v. Stewart,20 the court found no evidence that the second page of the agreement containing the arbitration clause was delivered to plaintiff, who denied its receipt. In Madison Companies LLC v. Williams,21 the evidence was insufficient to show the arbitration agreement contained in the clickwrap agreement of a ticketing agent’s website was effectively communicated to plaintiff, that plaintiff assented to its terms, or that plaintiff was bound as a third-party beneficiary. Arkansas courts have had little sympathy where poor document preparation impairs evidence of mutual assent. In Crain v. Byrd,22

the court affirmed denial of a motion to compel arbitration finding no arbitration agreement existed. There, an automobile dealership and its principal tried to require a former officer to arbitrate claims under a mutual release, but failed because the release did not have an arbitration clause and did not incorporate the operating agreement (which did).23 In AT&T Corp. v. Clark County, Ark., ex rel. Tucker,24 the court rejected arbitration, finding AT&T failed to show it communicated the arbitration agreement to the County or that the County assented.25 There, the account documents failed to incorporate other documents and were ambiguous as certain boxes were not checked to indicate the parties’ intent, so the documents were construed against AT&T, who drafted them.26 The court reached a similar result where a nursing center sought to compel arbitration of claims on behalf of a resident, but the arbitration agreement contained blanks for the parties to the agreement, i.e., the “facility” and “resident,” making the parties unidentifiable from the face of the agreement.27 The court rejected the facility’s argument that the separate admission agreement (which was not incorporated into the arbitration agreement) provided the information to permit enforcement of the arbitration agreement.28 Arkansas still adheres to a minority position on mutuality of obligation.29 Almost 20 years ago, one commentator noted: “Today,

virtually all courts hold that the doctrine of mutuality of obligation does not preclude enforcement of nonmutual arbitration clauses. . . . The principal exception is the Supreme Court of Arkansas.”30 He noted if the parties provided consideration beyond the promise to arbitrate, then most courts found no additional requirement of mutuality of obligation was necessary.31 He criticized Arkansas’s rule and its reliance on the separability doctrine as treating arbitration clauses differently than contracts generally and as possibly pre-empted by the FAA.32 Despite that criticism and similar arguments from parties seeking to enforce arbitration provisions, Arkansas requires mutuality of obligation as an essential element for an arbitration agreement.33 It requires “an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; thus neither party is bound unless both are bound.”34 No mutuality exists where one party may shield itself from litigation using arbitration while reserving to itself the ability to pursue relief in the courts.35 One decision suggested Arkansas might relax this element.36 There, the parties’ arbitration agreement permitted litigation of certain issues, and the borrower sought to require arbitration of a replevin action, even though the finance company had a contractual right to repossess or to seek replevin.37

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The court affirmed denial of a motion to compel arbitration rejecting the borrower’s arguments that the agreement lacked mutuality.38 However, in Jorja Trading Co. v. Willis, on nearly identical facts, the court refused arbitration, and held no mutuality existed based on available repossession remedies.39 In Hickory Hills Health & Rehabilitation LLC v. Adams, the court also refused to compel arbitration for lack of mutuality of obligation because disputes less than $30,000.00 were subject to litigation, but disputes in excess of that amount were subject to arbitration.40 These cases suggest attempts to compel arbitration will continue to meet challenges based on mutuality of obligation.41 Nonsignatories may also be subject to arbitration.42 In Murphy, the decedent’s arbitration agreement with the nursing home where he was a resident bound his wrongful death beneficiaries because the statutory wrongful death claim derives from the decedent’s rights.43 In a nursing facility context, Arkansas courts addressed a common set of facts for compelling arbitration under a third-party beneficiary theory.44 Illustrative of such cases is Northport Health Services of Arkansas, LLC v. Posey, where the Eighth Circuit reversed summary judgment for a nursing facility in which the district court concluded that a son who signed for his father’s admission did so in a representative, not individual, capacity.45 Because the son was neither the attorney-in-fact nor the legal guardian, the son lacked capacity to sign as his father’s representative, so the district court erred in relying on an underlying agreement between the son individually and the facility.46 On similar facts, Arkansas state courts have reached similar conclusions refusing to enforce arbitration agreements under agency or third-party beneficiary theories.47 As the recent cases suggest, Arkansas’s unorthodox approach makes compelling arbitration more difficult than it would seem at first glance. Arkansas litigants will, therefore, continue to find that they must analyze the elements of formation of the arbitration agreement and the construction of the clause carefully to craft a motion to compel arbitration that will have a reasonable chance of success. However, if parties seeking to compel arbitration are unsuccessful, they should be aware that orders denying arbitration are subject to immediate appeal.48 34

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Endnotes: 1. See, e.g., Cash in a Flash Check Advance of Ark., L.L.C. v. Spencer, 348 Ark. 459, 466, 74 S.W.3d 600, 604 (2002); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). 2. Cash in a Flash Check Advance of Ark., L.L.C., 348 Ark. at 466, 74 S.W.3d at 604. 3. See, e.g., Gruma Corp. v. Morrison, 2010 Ark. 151, at 6, 362 S.W.3d 898, 902 (quoting Pest Management, Inc. v. Langer, 369 Ark. 52, 59, 250 S.W.3d 550, 556 (2007)). 4. 9 U.S.C. § 2. 5. See, e.g., AT&T Corp. v. Clark County, Ark. ex rel. Tucker, 2018 Ark. App. 207, 547 S.W.3d 697. 6. Claims pleaded as tort but sounding in contract are still subject to arbitration. CEI Eng’g Assocs. Inc. v. Elder Constr. Co., 2009 Ark. App. 259, 306 S.W.3d 447. 7. AT&T Corp., 2018 Ark. App. 207, at 12, 547 S.W.3d at 705-706 (quoting Bank of the Ozarks v. Walker, 2014 Ark. 223, 434 S.W.3d 357, itself quoting 9 U.S.C. § 2). 8. AT&T Corp., 2018 Ark. App. 207, at 12, 547 S.W.3d at 705-06. 9. 2019 Ark. App. 193, at 12, 575 S.W.3d 144, 150. There, the court declined to address whether arbitration provisions in a trust agreement are enforceable when the validity of the trust is not at issue. Id. at 12 n.4, 575 S.W.3d at 150 n.4. 10. May v. Midland Funding, LLC (In re May), 591 B.R. 712 (Bankr. E.D. Ark. 2018); Benson v. Conn Appliances, Inc. (In re Benson), 3:18-AP-1071, 3:18-BK10224, 2018 WL 6930390, at 1 (Bankr. E.D. Ark. Sept. 13, 2018). 11. Benson v. Conn Appliances, Inc. (In re Benson), 3:18-AP-1071, 3:18-BK-10224, 2018 WL 6930390, at 1 (Bankr. E.D. Ark. Sept. 13, 2018). 12. 591 B.R. 712, 724 (Bankr. E.D. Ark. 2018). In a subsequent opinion, the United States Bankruptcy Court for the Eastern District of Arkansas also held that a class action waiver would, however, be enforced. May v. Midland Funding, LLC (In re May), 595 B.R. 894 (Bankr. E.D. Ark. 2019). 13. See, e.g., Pine Hills Health & Rehab., LLC v. Matthews, 2014 Ark. 109, at 6, 431 S.W.3d 910, 915. 14. AT&T Corp., 2018 Ark. App. 207, at 11, 547 S.W.3d at 705 (citing Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005)).

15. Id. (citing Courtyard Gardens Health & Rehab., LLC v. Quarles, 2013 Ark. 228, 428 S.W.3d 437). 16. Id. 17. Id. 18. 2014 Ark. 280, 437 S.W.3d 119. 19. Id. at 8-10, 437 S.W.3d at 123-125. 20. 2018 Ark. App. 147, 546 S.W.3d 508. 21. 2016 Ark. App. 610, 508 S.W.3d 901. 22. 2019 Ark. App. 316, 577 S.W.3d 765. 23. See id. 24. 2018 Ark. App. 207, 547 S.W.3d 697. 25. Id. at 18, 547 S.W.3d at 709. 26. Id. 27. Lakeside Nursing & Rehab. Ctr. v. Rufkahr, 2019 Ark. App. 142, at 7, 572 S.W.3d 461, 465-66. 28. Id. at 7-8, 572 S.W.3d at 466. 29. See Christopher Drahozal, Nonmutual Agreements to Arbitrate, 27 J. Corp. L. 537, 545 (2002); see also 2 Newburn et. al. Arkansas Civil Practice and Procedure § 14:14 (Thompson West 2019) (quoting Drahozal, supra). 30. Drahozal, supra, 27 J. Corp. L. at 545. 31. Id. at 545. 32. Id. at 546 n.68 (citations omitted). See also Nathaniel Conti, Arkansas Supreme Court Holds Invalid Arbitration Agreement for Lack of Mutuality, 7 Y.B. Arb. & Mediation 204 (2015); but see John C. Williams, Arbitration Agreements in Arkansas After Concepcion, 37 U.A.L.R. L. Rev. 235, 260 (2015). 33. Alltel Corp. v. Rosenow, 2014 Ark. 375, at 11 n.7, 2014 WL 4656609. 34. Jorja Trading Co. v. Willis, 2018 Ark. App. 574, 566 S.W.3d 510. 35. Cash in a Flash Check Advance of Ark., L.L.C. v. Spencer, 348 Ark. 459, 74 S.W.3d 697 (2002). 36. Hamilton v. Ford Motor Credit Co., 99 Ark. App. 124, 128, 257 S.W.3d 566, 570 (2007); see also 2 Newburn et. al. Arkansas Civil Practice and Procedure § 14:14 (Thompson West 2019) (discussing case and noting subsequent cases distinguishing but not overruling Hamilton, supra). Interestingly, the opinion in Hamilton was authored by Judge Brian S. Miller, now a district judge in the Eastern District of Arkansas. 37. Hamilton, 99 Ark. App. at 128, 257 S.W.3d at 570. 38. Id. At least one federal decision took a similar approach. See, e.g., Diversicare Leasing Corp. v. Nowlin, No. 11-CV-1037,


2011 WL 5827208, at 1 (W.D. Ark. Nov. 18, 2011). 39. Jorja Trading Co., 2018 Ark. App. 574, at 4, 566 S.W.3d at 513 (noting repossession and class action waiver both benefitted finance company exclusively). 40. 2018 Ark. App. 560, at 7, 566 S.W.3d 134, 137 (declining to follow Nowlin, supra); see also Regional Care of Jacksonville LLC v. Henry, 2014 Ark. App. 361, at 8, 444 S.W.3d 356, 361 (affirming refusal of arbitration based on lack of mutuality of obligation where disputes over collecting services or billing were excluded but other claims were not). 41. See, e.g., Bank of the Ozarks v. Walker, 2016 Ark. 116, at 10-12, 487 S.W.3d 808, 814-816 (Goodson, J., dissenting), cert. denied, 126 S. Ct. 126, 196 L. Ed. 2d 42 (2016). In dissent, Justice Goodson observes that the court has applied mutuality of obligation to arbitration agreements to require mirroring obligations, which differs from the application of mutuality of obligation in other contexts. Id. 42. Searcy Healthcare Ctr., LLC v. Murphy, 2013 Ark. 463, 2013 WL 6047164. See also Bigge Crane & Rigging Co. v. Entergy Arkansas, Inc., 2015 Ark. 58, at 4, 457 S.W.3d 265, 268 (noting nonparty may compel arbitration through traditional state law principles like “assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel”). 43. Id. 44. See, e.g., Northport Health Serv. of Ark., LLC v. Posey, 930 F.3d 1027 (8th Cir. 2019). Interestingly, in that case an amicus brief asserted that the third-party beneficiary doctrine developed to permit beneficiaries to enforce agreements against parties, not vice versa. Id. at 1029. This observation, however, seems to ignore the recognition that a litigant who is not a party to the arbitration agreement may seek to compel arbitration under the FAA if the state contract law permits enforcement of the agreement. E.g., Arthur Anderson LLP v. Carlisle, 556 U.S. 624, 630 (2009). If argued as a matter of state contract law, it seems counter to Arkansas law which permits enforcement of contracts against non-signatories in certain instances. See, e.g., Searcy Healthcare Ctr., LLC, 2013 Ark. 463, at 6; Am. Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994); PRM Ener.

Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830, 834 & n.3 (8th Cir. 2010). Similarly, this conclusion seems likely to precipitate a conflict over whether mutuality is preempted. Compare Enderlin v. XM Satellite Radio Holdings, Inc., No. 4:06-CV-0032 GTE, 2008 WL 830262, at 10 (E.D. Ark. Mar. 25, 2008), with Alltel Corp. v. Rosenow, 2014 Ark. 375, at 11 n.7, 2014 WL 4656609. The Eighth Circuit has suggested premption prevails. Plummer v. McSweeney, ___ F.3d ___, No.18-3059, 2019 WL 5405642, *3 n.1 (8th Cir. Oct. 23, 2019) (citing Enderlin, supra). 45. 930 F.3d at 1029-30. 46. Id. at 1031. 47. See Hickory Heights Health & Rehab. LLC v. Cook, 2018 Ark. App. 409, at 1011, 587 S.W.3d 286, 292 (daughter had no authority to bind mother to arbitration agreement to nursing home she signed in representative capacity where attorney held power of attorney so no third-party beneficiary theory valid); Pine Hills Health & Rehab. LLC v. Talley, 2018 Ark. App. 131, at 8, 546 S.W.3d 492, 497 (daughter had no authority to bind mother to arbitration agreement to nursing home she signed in representative capacity where son held power of attorney so no agreement from which to impose third-party beneficiary theory); Broadway Health & Rehab. LLC v. Roberts, 2017 Ark. App. 284, at 7-8, 524 S.W.3d 407, 412 (daughter’s signature in capacity as daughter insufficient to establish agency or to bind mother to arbitration agreement); Courtyard Gardens v. Williamson, 2016 Ark. App. 606, at 5-6, 509 S.W.3d 685, 689 (power of attorney not properly completed to give son authority to agree to arbitration, so agreement invalid, and could not support arbitration); Progressive Eldercare-Servs.-Chicot, Inc. v. Long, 2014 Ark. App. 661, at 4-5, 449 S.W.3d 324, 327 (spouse signed as husband’s representative but was not authorized to sign as his representative, so no agreement to support third-party beneficiary theory to compel arbitration). 48. Ark. R. App. P.-Civ. 2(a)(12). 

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Members who have served in the military To continue honoring and remembering those who served, this list is a reprint from features in the Fall 2018, Winter 2014, and Fall 2013 issues of The Arkansas Lawyer magazine with a few updates included. The list was compiled from members’ contributions and is not inclusive. If you know of someone who should be included in future publications, please contact the editor. Overton Anderson, Officer, U.S. Naval Reserve, JAG CORPS, 1968-72; stationed in Newport, Orlando, the Philippines and Memphis. Philip S. Anderson, Second Lieutenant, U.S. Army Adjutant General’s Corps, 195960; Captain in the Reserves 1968. Frank Bailey, Sergeant, U.S. Army; served in Vietnam; attached to the 23rd Infantry and 101st Airborne; Vietnamese language trained counter intelligence agent; honorable discharge, 1971. Judge Harry Barnes, (May 14, 1932-February 27, 2019) Colonel (Ret.), U.S. Marines Reserve, Annapolis Grad. Fines F. Batchelor, Jr., (19272018) served in the Army Air Force Reserve, 1944-45; active duty 1945. Army Air Force Reserve and U.S. Air Force 36

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Reserve 194551; active duty 1951. Commissioned June 1951 a Second Lieutenant in U.S. Air Force Reserve with the OSI and transferred to JAG in 1962 and to the Air Force Academy Program in 1978, with a 28-year retirement as Lt. Col. in 1979 and retirement in 1987. Served dual, enlisted active duty and Reserve Commissioned service from June 1951-Nov. 28, 1951.

Sembach Air Bases, Germany, 1974-76.

Jonathan W. Beck, Sergeant, U.S. Army Reserves, 755th Postal, 19982006, including active duty service in support of Operation Iraqi Freedom in 2003.

73.

Ronny J. Bell, Staff Sergeant in U.S. Air Force, Security Service, 196569. Joe Benson, First Lieutenant, U.S. Air Force, 1972-76; 21st Special Operations Squadron, Nakhon Phanom Royal Thai Air Force Base, Thailand 197374; 601st Tactical Air Support Squadron, Wiesbaden and

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Ed Bethune, Sergeant, U.S. Marine Corps, 1954-57.

Allen W. Bird II, U.S. Navy; JAG CORPS; Lieutenant Commander, U.S. Navy Reserves, 1968Sam N. Bird entered Air Force Officer Training School 1962, and was commissioned a Second Lieutenant 1963. Following nine months of training and being designated a graduate with honors from Intelligence Communication Officer’s School at Goodfellow AFB, TX, he was assigned to the Air Force Security Service’s Special Security Office (SSO) in Ankara, Turkey, in January 1964, was promoted to 1st Lt. August 1964, and to the position of OIC of SSO Ankara in January 1965. Upon completion of his tour of duty in Turkey in July 1966, he was assigned to Air Force Security Service Headquarters, Kelly AFB, TX, was promoted to Captain in 1967, and remained at Kelly AFB until his honorable discharge from active duty on August 31, 1967, to attend UA School of

Law. Thereafter, he remained in the Air Force Reserve until discharge on November 8, 1968. Judge Denzil Keith Blackman, Lieutenant Colonel (Ret.), U.S. Army Reserve. Commissioned on 5-26-71; retired on 5-26-98 as lieutenant colonel; Branch: air defense artillery. LeAnne Pittman Burch, Brigadier General (Retired), U.S. Army Reserve. U.S. Army JAG CORPS, Active Duty 19861998; U.S. Army Reserve 19982016. William Jackson Butt, II, Major, U.S. Army JAG CORPS, active duty; regular Army 1972-79, airborne ranger qualified with duty at the Pentagon, Germany, Korea, and Army Security Agency; Reserves 1979-92. Worth Camp, Captain (Ret.) U.S. Navy Reserve, active duty 1957-1960 with deployment on the USS Midway, CVA 41, to the Western Pacific,


during the Matsu-Quemoy Crisis of 1958 when General Eisenhower was President. Jennifer Carlisle, Major (Ret.), 189th Airlift Wing, Arkansas Air National Guard. She enlisted on December 6, 1990, was commissioned in July 1996 and retired in July 2011. John Phillip Carroll (19252013) arrived at the front lines in Europe as a 19-year-old Squad Leader, Staff Sergeant. On a bitter snowy day in January 1945, Phil along with his unit was captured by the German Army Panzer Division in the battle of Hatten, which occurred just after the Battle of the Bulge. He was captured and became a German prisoner of war in Stalag IV B until the war’s end. Only three months after gaining a job with the Rose Law Firm, Phil was called back to duty for the Korean War. Visit https:// www.dailyrecord.us/default/ view?id=4546 for feature story in the Daily Record, March 26, 2013. Mark B. Chadick (1946-2019) served in Vietnam with the 101st Airborne Division and was awarded a Bronze Star. John S. “Jack” Cherry, Captain, U.S. Army Reserves; served two years as a signal officer in Germany and remained in the

Army Reserve for several years in the 1970s. Randall B. “Randy” Clark attended Bowen School of Law while on active duty in the U.S. Air Force stationed at Little Rock AFB. After graduation in 1978, he transferred to the JAG department and served a total of 10 years active duty in the Air Force before going into private practice. He remained in the Air Force Reserve for the next 20 years and retired in 2003 at the rank of Colonel. Nathan Coulter, graduated from Officer Candidates School in Quantico, VA in 2014 and served in the USMC Reserves until November of 2018. He was first attached to 2d Battalion 25th Marines in Garden City, NY. After that he transferred to Combat Logistics Battalion 435 in Texarkana, TX. He promoted twice while in the USMC after his commissioning and left the reserves at the rank of Captain. Judge Gerald K. Crow, U.S. Army; Vietnam 196768 and 1972. He entered the service as a private and left the service as a captain to attend law school. He served with the Recon Platoon, E Company, 2/506 Infantry, C Company, 2/506 Infantry, as an enlisted man; served as a Warrant Officer helicopter pilot with the 23rd Artillery Aviation Section and with the 192nd Assault Company; served as a company Commander with the

2nd Infantry Division (Korea) and as an Operations Officer and Battalion Executive Officer for the 7th Infantry Division. He received the Bronze Star for Valor, Purple Heart, Meritorious Service Medal, Air Medal, Combat Infantry Badge, Army Aviator, and Parachutist badge. F. Thomas “Tom” Curry, Colonel (Ret.), U.S. Army JAG CORPS; commissioned 1979; law school deferment 1979-82; active duty 1982-87; U.S. Army Reserves 1987-2009. Jerry Dodd, U.S. Air Force, 1975-1986; AF JAG CORPS, 1979-1986.

Bob Estes, U.S. Army, 1969-1972.

Peter G. Estes, Jr. (1946-2019) In 1968, Peter went into Officer Candidate School. As a Lieutenant JG in the U.S. Navy, he served two tours in Vietnam on the Salvage Ship USS Safeguard. John C. Everett served in the U.S. Navy JAG CORPS, serving as Trial Counsel, Defense Counsel, and Military Judge (1968-74, Active Duty 197074).

David Gibbons, U.S. Army Infantry, 1970-73. Sam Gibson was commissioned into the U.S. Army Reserve through the University of Arkansas ROTC program in June 1968. He was transferred to the Retired Reserve 22 November 2002 at the rank of Brigadier General. John P. Gill, Lieutenant Colonel, U.S. Marine Corps, 1960-1988.

Morton Gitelman, Sergeant, U.S. Army, 19541956.

James C. Graves, U.S. Navy, 1967-71. Commissioned in 1967, he served as combat information center officer on USS Stribling (DD867) for two years. Although an East Coast ship they made a cruise to Vietnam in between Mediterranean deployments. Next assignment was Navigator on USS Nashville LPD-13 for about two years, leaving service as a full lieutenant. Ron Griggs, U.S. Navy.

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Judge Wayne Gruber, enlisted in the Air Force June 1969; 1969-73 Supply Services Specialist stationed at LRAFB; worked at base grocery and clothing sales store; honorable Discharge 1973; re-enlisted Arkansas Air National Guard 1981; commissioned as a Supply Officer 1983; selected as a JAG CORPS about 1988 and thereafter Staff Judge Advocate for the 189th Airlift Group with approximately 1200 unit members; retired as a Lieutenant Colonel with approximately 30 years combined service in 2007. Will Gruber served in the Arkansas Air National Guard from 2006-13 and finished as a Staff Sergeant. Thomas P. Guarino, U.S. Navy, 1977-1979, Ocean Systems Technician, E-3. Judge David F. Guthrie, Lieutenant Colonel (Ret.) U.S. Army Reserves 197199, active duty in Saudi Arabia during Persian Gulf War 1990-91. Don F. Hamilton, U.S. Marine Corps Reserve, 195557; U.S. Army Reserve, 195864, serving two years active service 1958-60, 1st Lt., Artillery, Korea (DMZ) for 13 months with “D” Battery, 2d Howitzer Battalion, 8th Artillery, 7th 38

The Arkansas Lawyer

Infantry Division, Forward Observer and Liaison Officer. Stuart W. Hankins, First Lieutenant, U.S. Army, 1966-69; served as Infantry Platoon Leader with 199th Lt. Inf. Bde. in Vietnam in 1968-69. Judge Eugene S. “Kayo” Harris received an NROTC scholarship to attend Duke University; served three years on active duty and 17 years in the Reserve, retiring with the rank of Commander. Dave Wisdom Harrod, Captain U.S. Air Force Pilot (19651979), 62nd Tactical Airlift Squadron, Aircraft Commander; 64th Tactical Airlift Wing Headquarters Squadron, Squadron Commander. Arkansas Air National Guard: 154th Tactical Reconnaissance Squadron, Executive Officer; 189th Tactical Reconnaissance Group, Air Operations/Air Intelligence Officer. U.S.A.F.R.: 9006th Air Reserve Squadron, Disaster Preparedness Officer. Dick Hatfield, First Lieutenant, U.S. Army (Branch, Armor) stationed at U.S. Military Academy, West Point, N.Y. (Football Office), 1967-69.

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William D. Haught, Captain, U.S. Army JAG CORPS from 1964-68; served initially in the Eighth Army

Support Command at Seoul, Korea, and subsequently in the Office of the JAG CORPS (in the International Affairs Division in Washington, D.C.). Robert L. “Skip” Henry, Capt., U.S. Marine Corp Reserve, Infantry and Military Police, 1967-72; Major, U.S. Army Reserve, JAG, 1973-89, serving in 431st Civil Affairs Company and then the 32d JAG Detachment until retirement in 1989. Donald C. Hill, Captain (Ret.), U.S. Navy, 33 years of service: jet carrier pilot (Intelligence); Attorney, Adjunct Instructor at the U.S. Naval War College, Oceans Law and Policy (International Law Department); an editor of the “Commander’s Handbook on the Law of the Sea” and the department’s Blue Book Series associated with the Department’s prestigious “Stockton Chair;” member, War College Foundation; served during Vietnam conflict and flew in the combat zone of the Gulf War before being selected to serve at the U.S. Naval War College. One-half of his practice is volunteer work for disabled veterans residing overseas, seeking VA benefits. He is licensed before the U.S. Court of Appeals for Veterans Claims, among others. He is a “Distinguished Naval Graduate” of the Naval Flight Training School. Randal Hobbs was an infantry instructor and drill sergeant for the Arkansas National Guard. He received a direct commis-

sion as a 2nd Lieutenant in the Aviation branch. Randal attended flight school at Ft. Rucker, Alabama, where he graduated as a Blackhawk helicopter pilot. Randal still serves Arkansas as an Aviation Officer where he holds the rank of Major and is a Pilotin-Command. James W. Hyden, U.S. Naval Officer Candidate School, Newport, RI, commissioned Ensign, U.S. Naval Reserve, 1967. Served in the Pacific Fleet 1967-70 and onboard USS DENVER (LPD9) as part of the commissioning crew. He was an unrestricted line officer and a division officer and department head aboard DENVER, an amphibious landing ship. The ship carried, landed and supported a reinforced U.S. Marine combat battalion—about 1000 troops. After graduating law school, he stayed in the Naval Reserve until 1986, completing 20 years of service, retiring with the rank of Lieutenant Commander. Greg S. James, U.S. Air Force, 1991-1995; Arkansas Air National Guard, March 1996 to 2014. C. Cole Jeffries, Jr., of Helena, Arkansas, served on active duty as a JAG officer for 20 years in the U.S. Navy. He was commissioned in August 1970 and retired from the Navy in July 1990 and then entered private practice in Tampa, Florida. Edward P. Jones served in the U.S. Air Force.


Glenn W. Jones, Colonel (Ret.), U.S. Army Reserves; served 30 years in the Army Reserves; former Commander of the 431st Civil Affairs Company (now Battalion); received two Army Commendation Medals and a Humanitarian Service Award. Simon Kelly serves as the Judge Advocate for VFW Post 9095.

Tim Leathers, Captain, U.S. Army Reserve, JAG CORPS, nine years.

John C. Lessel, commissioned Ensign, U.S. Navy, December 1970. Completed aviation training and awarded wings at Meridian, MS, in September 1972. Assigned to VA-127 (A-4 replacement air group), NAS Lemoore, CA from September 1972 to August 1973. Selected for and attended University of San Diego School of Law on Navy program from September 1973 through May 1976. Redesignated from line to staff as member of JAG CORPS during law school. Served at Naval Legal Service Office, San Diego, May 1976 - July 1979. Attained rank of LCDR, JAGC, USNR. Fletcher C. Lewis, First Lieutenant, U.S. Army, 19681974. Stark Ligon, Colonel (Ret.), U.S. Army JAG CORPS; served in the Arkansas Army National Guard from 1968-2003; served as State Judge Advocate.

Chester C. Lowe, Jr., Captain, U.S. Army Reserves; served two years active duty, 1962-64, as an infantry officer, including service with the 1st Cavalry Division in Korea. William A. Martin served 28 years as an Air Force lawyer, retiring as a colonel in October 1983. Major Air Force assignments included: Chief of Claims and Tort Litigation Division, U.S. Air Force; Staff Judge Advocate, Oklahoma City Air Logistics Center; Legal Advisor to Commander, U.S. Forces, Japan and Staff Judge Advocate, Fifth Air Force; and Staff Judge Advocate, Air Training Command. Decorations include the Legion of Merit with one oak leaf cluster, Meritorious Service Medal with two oak leaf clusters, Joint Services Commendation Medal, and Air Force Commendation Medal with one oak leaf cluster.\ Phillip A. McGough, USAF 1972-1976, Sergeant.

Joseph P. McKay, Captain, U.S. Army 19881994, Artillery Platoon Leader Persian Gulf War 1990-91, U.S. Military Academy Class of 1988.

Philip McMath, Captain, U.S. Marine Corps, active duty from 196770. He was a tank platoon commander and company commander with 1st. Tank Bn, 1st Marine Division in Vietnam. He was a tank platoon commander and Assistant S-3 2nd Tank Battalion, 2nd Tank Bn at Camp LeJeune, NC. James McMenis, Major (Ret.), U.S. Army, JAG CORPS, active duty with JAG 1973-93. Chancery Judge Andy McNeil (Ret): enlisted for three years in the U.S. Marine Corps in 1950 and served with the 1st Marine Division in Korea from 195152. By the end of his enlistment period in 1953, he had obtained the rank of Staff Sergeant. Henry N. Means, III served in the U.S. Marine Corps in 1958 after graduating from the U.S. Naval Academy in Maryland. While in Vietnam, he was honored to command the 1st. 8” Howitzer Battery. Shortly after returning from Vietnam, he was directed to take a company of Marines to Los Angeles to defend the “war protesters.” At that time he submitted his resignation and left the Corps in the spring of 1968. James. W. Moore (19362019), served as a First Lieutenant in the U.S. Army;

was an Armored Platoon Leader, 2nd Armored Division; and was a Legal Assistance Officer in the JAG CORPS. George B. Morton, Marine Corps. 1966-1969.

Lee Muldrow, Captain, U.S. Air Force, 1968-73. J. R. Nash, U.S. Air Force, 196066. Served at Indiana University, then as Russian translator in Bering Strait, followed by tour at Command Headquarters, Security Service (military arm of National Security Agency). Edward Nelson, First Lieutenant, U.S. Air Force, 1974-78, stationed at Little Rock AFB with 308th Strategic Missile Wing serving as a Missile Combat Crew Commander for Titan II missiles in Arkansas. Frank B. Newell, U.S. Army Reserve, 431st Civil Affairs, 19691975, enlisted. Jim Nickels served in the U.S. Army from 1970-72. Richard C. Ourand, Jr., Lieutenant Colonel (Ret.), U.S. Air Force; served 28 years in the

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Air Force (1979-2007). He is currently a government attorney in Indianapolis, Indiana, with the Defense Finance and Accounting Service (DFAS). Hugh Overholt, U.S. Army JAG CORPS, Major General and U.S. Army JAG Major General and Judge Advocate General. Military education includes the JAGC Basic and Advanced Courses, Airborne School, Command and General Staff College and the National Defense University. General Overholt has been awarded the Distinguished Service Medal (Oak Leaf Cluster), Legion of Merit, Department of Defense Meritorious Service Medal (Oak Leaf Cluster), and the Army Commendation Medal (Two Oak Leaf Clusters).

Ellis Lamar Pettus, Commander, U.S. Naval Reserve; served as Repair Officer and Damage Control Officer on board the USS Oklahoma City, CLG 5 and as Engineer Officer on board the USS Hammerberg, DE 1015 during his active duty career from 1968-71. He was awarded the following medals: Navy Commendation, Navy Achievement, National Defense Service, Vietnam Service, Vietnam Campaign Medal with Device and the Armed Forces Expeditionary Medal (Korea). He remained active in the U.S. Navy Reserve for 17. He attended the Navy War College for reservists and he moved from surface warfare to the JAG CORPS. In 1988, he retired as a Commander, U.S. Navy Reserve (JAG).

William L. Owen was commissioned in the U.S. Army Reserves in 1965. Active service and reserve duty. Transferred to the Retired Reserve as a Major, JAGC. Walter Paulson, MG (Ret), U.S. Army and Army National Guard, 19702005; bio in AR Mil Vets Hall of Fame, class of 2018. Leon Francis Pesek, Sr., (1928-2018), was a Korean War Army veteran and former JAG officer.

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David Dero Phillips, U.S. Army Military Police Corps, 1984-2005. George E. Pike, Jr., U.S. Army National Guard, 195561.

Donald E. Prevallet, U.S. Air Force, Colonel, 1959-89. Brian D. Rabel, U.S. Air Force, 19942000.

T. Scott Randall, Major, U.S. Army JAG CORPS, assistant professor at the Judge Advocate General’s Legal Center and School in Charlottesville, VA (the third U of A graduate in a row to serve in that position). He has been in the Army since 2003. Prior to that (1993-2001), he was a mortarman in the Marine Reserve serving with 3/23 India Company, 4th Marine Division at Camp Robinson. Gordon S. Rather, Jr., Lieutenant, U.S. Navy. Active duty from 196165 and Navy reserve from 1965-68. Served as Operations Officer on a Destroyer based in Mayport, Florida. Ship made three sixmonth deployments as part of the U.S. Sixth Fleet in the Mediterranean.

During his service to his country, Rhodes was awarded, among other honors, the U.S. Navy Commendation Medal, the U.S. Navy Achievement Medal, the Commander-in-Chief, U.S. Pacific Fleet Citation for Meritorious Service, the National Defense Service Medal (IraqKuwait War: Desert Shield and Desert Storm), the U.S. Armed Forces Reserve Medal, the Commander, Naval Reserve Intelligence Commendation for Exceptional Professional Achievement & American Bar Association’s U.S. Armed Forces Outstanding Legal Assistance Award. He also served with NCIS (the Navy Criminal Investigative and Counter-Intelligence Service) as an Intelligence Officer. Rhodes was commended for, among his other duties, “making a most significant contribution to the defense of his country and to the readiness of the Navy.” George Ritter, U.S. Naval Academy, 1961.

Allen P. Roberts, Private (E-1), U.S. Marine Corps, 195960, Reserves, 1960-65.

George Plastiras, U.S. Army, 195556.

Richard A. Reid (19322019), Captain, U.S. Army JAG CORPS.

William S. Robinson, Major (Ret.), Arkansas Army National Guard.

David M. Powell, U.S. Army, active duty in military intelligence, 1970-71, with service in Vietnam.

Byron Cole Rhodes is a former U.S. Navy JAG and retired from the U.S. Navy as Lieutenant Commander.

James (Jim) A. Ross, Jr., Lieutenant, U.S. Navy JAG CORPS, 196265.


Herb Rule, First Lieutenant, U.S. Marine Corps Reserve, Artillery and Intelligence officer, 3d Marine Division 1959-61. Stationed in Okinawa, Japan, Philippines, N. Borneo, Quantico and Little Creek, Virginia and Naval Air Station, Corpus Christi, TX. Thomas S. Russell, U.S. Army, 1969-71, the last five months in Vietnam. Marissa A. Savells, Captain, U.S. Air Force JAG CORPS. A third generation AF officer, she commissioned as a Second Lieutenant from AFROTC at University of Arkansas in 2010. After law school in Fayetteville, she served on active duty for nearly five years and entered the U.S. Air Force Reserve in 2018. She is currently serving as the Deputy Staff Judge Advocate for 913 Airlift Group, LRAFB. Eugene L. Schieffler (1927- 2014), U.S. Air Force, Judge Advocate. He served in the Navy at the end of World War II and was a Judge Advocate in the Air Force during the Korean Conflict. Corey Seats, Lieutenant Colonel (P); served over 21 years in the active army and the Arkansas Army National Guard. He deployed to Iraq in 2006-07.

Robert Luther Shults, Jr., was a decorated combat soldier in World War II, serving three and one-half years in the U.S. Army Infantry, including two and one-half years in France and Germany during and after the war. He was awarded the Bronze Star for Valor, a battlefield commission as a Second Lieutenant at age 19 (then one of the two youngest commissioned officers in the European Theater), the Army Commendation Medal, and a Presidential Citation, all for his heroic service during the war. Dennis Shackleford (1930-2014), graduate of U.S. Air Force Pilot Training School in 1953; Korean Conflict 1953-54; Helicopter Pilot, Air Rescue Service. William F. Sherman, Brigadier General (Ret.), U.S. Army National Guard. Commissioned as a Second Lieutenant from ROTC, U of A, in branch of Infantry, June 1960. Assignments included Platoon Leader, 2D Battle Group 9th Infantry Reg., Ft. Benning; four years with 9th Special Forces Gp and 12th Special Forces Gp, USAR (Co. D, served as A Team Ldr, S1 and S2); JAG CORPS officer Advanced Course (1973); Staff JA, 39th IN Brigade, four years; Operations & Training Off, Assist. Dir., AR ARNG; Commander, 2nd Bn, 153rd Inf. Reg.; SJA, STARC (State Judge Advocate); Special NG Assistant to Judge Advocate General, U.S. Army (1986-90).

Brenda Simpson enlisted in the U.S. Air Force in 1986. She graduated basic training as an Honor Graduate in January 1987. She earned her commission through Officer Training School as a Distinguished Graduate in 1998. Simpson is a combat veteran, having served a one-year tour in Iraq. After 24 years of service, she retired in 2010 and relocated to Arkansas. Her military decorations include the Bronze Star and Meritorious Service Medal with two oak leaf clusters. Simpson served as a commissioner on the Arkansas Veterans Commission from 2013-15. Charles R. Singleton served four years in U.S. Navy 19681972, which included four campaigns in Vietnam. Served 28 years in Arkansas Army National Guard; JAG CORPS 1981-2009, serving nine years as State Judge Advocate. Retired in September 2009 at the rank of Colonel. Damon C. Singleton, currently serving as a Staff Judge Advocate Officer in Arkansas Army National Guard JAG CORPS in rank of Captain. James E. Smith, Jr., First Lieutenant, U.S. Marine Corps, active duty 1968-72. William R. Stringfellow, Staff Sergeant, U.S. Air Force, Crew Chief & Flight Engineer on Troop Carrier and Cargo Aircraft, 1953-1957 (active duty), 1957-1961 (reserve duty).

Judge John F. Stroud, Jr., Lieutenant Colonel, U.S. Air Force, 1951-56, active duty, reserves 16 years. Paul Suskie, Lieutenant Colonel, Deputy State Judge Advocate, Arkansas Army National Guard. William L. Terry (19222016), U.S. Air Force, World War II Veteran. Served in the European Theatre with the 8th Air Force, 388th Bomb Group as an Aerial Gunner on a B-17. Flew 35 missions between March 1944 and August 1944. Received the Distinguished Flying Cross and Air Medal with Oak Leaf Clusters. Visit https:// www.dailyrecord.us/default/ view?id=4546 for feature story in the Daily Record, February 12, 2012. Corey E. Thomas, Major, U.S. Army National Guard, 2009-Present; U.S. Navy, Seaman, 19881989; U.S. Marine Corps, Supply and Acquisitions Officer, 1993-2003; 16 years of service. F. Mattison Thomas, III, E-3 (PFC) U.S. Army; active duty 1991-93; served as a military Police Officer, Seirra Army Depot, Herlong CA.

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Suzanne L. Tipton, SPC, U.S. Army, Vicenza, Italy, 1991-93; U.S. Army Reserves 1993-96. Lonnie C. Turner, First Lieutenant, U.S. Army, commissioned 1966 spending 1967- 68 with 1st Infantry Division in Vietnam as 1st Lt. of MP platoon. Todd Turner, U.S. Army National Guard, 1988-92. Richard E. Ulmer, U.S. Army 1969-1971 at Firebase Bronco with 523rd Signal Battalion, American Infantry Division.

Kit Williams, Lieutenant, U.S. Army, 1971-73; he used the GI bill to pay for his law school education.

National Guard and U.S. Army Reserves; 1996-2015. John C. Wade, LCDR, USN, graduate of U.S. Naval Academy, Class of 1985, Surface Warfare Officer, served as Anti-Submarine Warfare Officer in USS Hayler (DD997), two tours in Baltic Sea and one tour in North Sea tracking Soviet submarines during Cold War era.

Wayne Williams served in the Arkansas Army National Guard from 1996-2007 and was deployed for homeland security operations (Operation Noble Eagle II) and combat operations in Iraq (Operation Iraqi Freedom II) where he held the rank of Captain.

Friends of the COURT

Stan L. Warrick is a 1977 graduate of the U.S. Military Academy (West Point) and served 20 years in the military before retiring in 1997. He is a Gulf War Veteran and served 9 of 20 years overseas.

Judge Wm. Randal Wright, U.S. Army National Guard JAG Corps, 19721981. Steven S. Zega, Colonel, Arkansas Army National Guard. He is a Judge Advocate (JAG), and the State Military Judge for Arkansas.

Judge Billy

Volume 15, Number 3 RoyNovember, Wilson,2007

Lieutenant, Junior Grade, U.S. Navy, 1966-70, Published by the Arkansas Administrative Office of the Courts Edward Ward Vietnam served as Veteran. an artilleryFred Ursery, man with the Philip M. Spec. 5 enlisted U.S. Army in U.S. been a memberWilson, of the Arkansas man with the Germany and Army Reserves, Natural Heritage Commission. 6th Battalion Vietnam from 28also years. For Kiwanis, he is Past 77th Artillery 1968-1969. President of Kiwanis International of the U.S. He was awarded the Purple Foundation and has held the posiArmy. Served Heart, Bronze Star, and Army tion of MO-Ark District Governor. in Vietnam Commendation medals. Judge Wilson has been a circuit from 1968-69. Daniel H. which judge for the 2nd Circuit, Richard N. Woods, First includes six counties and nine Judge Rice Watts served Lieutenant, courthouses, since 1989. VanAusdall, in the U.S. U.S. Army, U.S. Army, Marine Corps 1949-1954. three years as an infantry Active duty active duty. officer. during Korean War, 19501952, serving as Company Raymond Weber, U.S. Army, Commander, Company B, 1970-72; he used the GI bill to Magistrate 10th Medium Tank Battallion, pay for his law school education. Judge Joe 5th Armored Division. Also on Judicial Council Officers and Board members that served during the 2006-2007 term: (seated: Volpe, active duty, served as defense left to right) Judge Rice Van Ausdall, Judge Lance Hanshaw, Judge Alan Epley. (Standing: left Lieutenant counsel for the Division General to right) Judge Vann Smith, Judge Ellen Brantley, Judge Jim Spears, Judge Don Glover, J.D. Gingerich, Judge Kim Smith, Judge Carol(Ret.), Anthony, Judge John Fogleman and Judge Joe Colonel Court. Griffin. (Not pictured, Judge John Judge Ralph Wilson receives the U.S.Pittman.) Army “Community Service Award” from Judicial Field Artillery; Council Pres. Kim Smith. The Arkansas Judicial 1988-1992; Council Hon. Lance Hanshaw, and Hon. met in Fort in Arkansas October Army for John Homer Wright. JAG Smith CORPS Hon. Ralph Wilson received the their annual fall meeting. New Supreme Court Historical officers for the 2007-2008 terms “Community Service Award”. The 42 The Arkansas Lawyer www.arkbar.com Society Holds award is presented each year to a are: Hon. Rice Van Ausdall-Pres.,

JUDICIAL COUNCIL MEETS

Annual Conference


Members who have served in the military The following members will be published in the printed version of the Winter 2020 issue of the magazine that comes out in February 2020.

Major Natalie G. Brown, Deputy Staff Judge Advocate Arkansas National Guard

Johnathan D. Dial, Sr. Captain, U.S. Army Retired. John enlisted in 1996. He earned an infantry commission with the 82nd Airborne Division in 2002. John was a 2003 Honor Graduate of the Infantry Officer Basic Course before deploying to Iraq. There he recruited, trained, and embattled a rifle company of Iraqis in support of 3-325 Airborne Infantry Regiment. John administered his own fortified base and one of only three gas stations in all of Bagdhad. His protege became the first Sergeant Major in democratic Iraq. John did all this as a fresh Second Lieutenant, with almost no support. He later served as an anti-tank platoon leader, HHC executive officer, and general’s staff officer. John was severely wounded and medically retired in 2006. Johnathan D. Dial, Jr., and his wife, Madison, are 2017 graduates of the United States Military Academy at West Point. Dak Kees, currently serving as a Staff Judge Advocate Officer in Arkansas Army National Guard Judge Advocate General Corps in rank of Major.

Scott E. Smith, Captain, United Stated Marine Corps. 19851988 served as Judge Advocate stationed at Camp Pendleton assigned as a Trial Counsel and as a Special Assistant US Attorney prosecuting civilian crimes occurring on military bases in Southern California. Recalled to active duty 19901991 to serve as an infantry platoon commander in Desert Shield/Desert Storm with India Company, 3rd Battalion, 23rd Marine Regiment in Saudi Arabia and Kuwait. Andy Rittenhouse, First Lieutenant, U.S. Army Judge Advocate General’s Corps. He is a Judge Advocate and serves as Trial Counsel for the 87th Troop Command Brigade. Adam Rose, Major, U.S. Army, currently serves as a Judge Advocate, Special Victims’ Counsel with the National Guard Bureau, Office of Chief Counsel. Major Rose received an LL.M. in Military Law from the Judge Advocate General’s Legal Center and School, Charlottesville, VA in 2018. Major Rose has been a member of the Arkansas Army National Guard since 2011.

Todd C. Watson, First Lieutenant, U.S. Army, serves with the 326th Trial Defense Team as a Judge Advocate in the Arkansas National Guard. He has been in the Guard since February 2016.


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Veteran

justice alert. Defective 3M Dual-Ended Combat ArmsTM Earplugs In a startling settlement in July 2018, the 3M Corporation agreed to pay $9.1 million in a False Claims Act lawsuit to settle allegations that it knowingly supplied the United States military with defective earplugs. Servicemembers and combat veterans who were issued 3M Dual-Ended Combat ArmsTM Earplugs Version 2 (CAEv2) have reported multiple side effects, including • Hearing loss • Tinnitus, or ringing in the ears • Permanent hearing damage • Deafness Military personnel who have been diagnosed with these problems after using the defective earplugs may file lawsuits against the manufacturer alleging that 3M knowingly supplied the defective earplugs, leaving servicemembers vulnerable to injury. We can help injured parties seek justice. Medical devices and drugs that cause harm must be challenged. Veterans need an experienced advocate. Associate the unique expertise of The Law Office of David H. Williams for 3M CAEv2 Combat Earplug and other complex medical and product defect cases. 211 S. Spring Street Second Floor Little Rock, AR 72201 (877) 492-3030 (501) 372-0038 david@dhwlaw.net dhwilliamslawfirm.com

David H. Williams

PRESERVE THE JURY TRIAL


Operation Iraqi Freedom II — Operation Etch-a-Sketch By Wayne Williams, Attorney at Law

Wayne Williams served in the Arkansas Army National Guard from 1996-2007 and was deployed for homeland security operations (Operation Noble Eagle II) and combat operations in Iraq (Operation Iraqi Freedom II) where he held the rank of Captain. He is pictured on the far left of the photo of his unit delivering school supplies. For more on his story go to chicagotribune.com/news/ct-xpm-2004-04-22-0404220160-story.html.

T

he 1-206 Field Artillery (Arkansas National Guard) arrived in Taji, Iraq, in the middle of March 2004. We were the first element of the 39th Infantry Brigade and the 1st Cavalry Division to enter Iraq during Operation Iraqi Freedom II. The base at Taji, Camp Cooke, was named for the 1st Armored Division Command Sergeant Major who had been killed during Operation Iraqi Freedom. It was located approximately 17 miles north of Baghdad. The base had once been home to elements of Saddam Hussein’s Republican Guard, and it contained an airstrip and an enormous “boneyard” of Iraqi Army equipment that was used for vehicle repair and maintenance. When we arrived at Camp Cooke, the 1-206 participated in what the military calls “right seat-left seat” rides. New units coming into the area ride along with the unit they are relieving, sitting in the “right seat” to observe operations. After familiarization, the new unit gets in the “left seat” and the unit being relieved observes. In addition to providing artillery fire support, the battalion’s main mission consisted of defensive operations in and around Camp Cooke. The base was ringed by barbed wire and watch towers and had two main entry points, Gunner Gate and Castle Gate. The towers and gates were manned by both American and Iraqi

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personnel. The Iraqi personnel who were serving alongside the American soldiers were members of a unit known at that time as the 307th Battalion, Iraqi Civil Defense Corps (ICDC). A few days prior to the road march from Kuwait to Taji, I had been assigned to the position of ICDC coordinator. Essentially, my job was to serve as a liaison between the ICDC and the American units on the base. The 206th also assigned about a dozen non-commissioned officers (NCOs) to work with and train the 307th. Collectively, we were known as the ICDC cadre, and we wore special armbands as a means of identification. During our right seat/left seat ride, we became familiar with our Iraqi counterparts. The 307th was comprised of three line companies and one headquarters company consisting of battalion staff officers and support personnel. The line companies were responsible for manning the towers and gates, as well as a traffic checkpoint just outside the base. It quickly became clear that the 307th needed a lot of improvement. Many of its soldiers lacked basic equipment such as uniforms and boots, and soldiers had to trade off weapons when they changed shifts. The captain I had relieved had done the best he could with limited resources to

organize the 307th into a military unit, but with the fallout of the invasion of Iraq still fresh, there hadn’t been a lot of time to do more than lay down the basic groundwork for building a military unit. On any given day, the companies’ strengths fluctuated by several dozen men, and no two companies had the same levels of manpower or equipment. None of the companies were on the same duty schedule. At the same time, with new Army units rotating across Iraq, the insurgency took advantage of the situation with daily mortar or rocket attacks and other forms of disruption. Eventually, the situation around Camp Cooke began to stabilize, and the ICDC cadre implemented a new training regimen, which was dubbed “Operation Etch-ASketch,” due to the need to shake things up and get a fresh start. During the next few weeks, we pulled all ICDC soldiers from their camp security duties, and their places were temporarily taken by U.S. soldiers. We reorganized the 307th so that each line company had equal strength, and we reorganized the headquarters company to function more efficiently. Once that was done, we identified individuals who had prior military training or exhibited leadership potential, and we began to put into place a company and battalion level command


structure. Each company was divided into a day shift and a night shift. One company would man the guard towers and gates, while a second would be responsible for the traffic checkpoint. The third company would undergo training and conduct patrols in and around Taji. Eventually, we augmented the 307th by adding a fourth company. During this period of reorganization, someone found a shipping container on the base that contained hundreds of uniforms, boots, and helmets. Then a shipment of several hundred AK-47 rifles arrived from Baghdad. We were able to uniform and equip the ICDC, and, as their training progressed, they began to look and function like a military unit. Over the next few months, the cadre continued to train and work with the ICDC. We conducted patrols through the local village, meeting the people and adding a security presence that had been lacking. On one occasion, we delivered a large quantity of school supplies (donated by family and friends back home) to the local school, giving them pens, pencils, paper and other items that they desperately needed. On one

patrol, we located a massive IED buried in the middle of a dirt road, completely concealed except for two bright pink wires that were left exposed so that a detonator could be attached. In September, I received orders to rotate home. I had been deployed the previous year for homeland security operations, and the Army’s policy at the time was to limit guard and reservist soldiers to two years of active duty at a stretch. I have both good and bad memories from my time in Iraq. I knew some men, both Iraqi and American, who were killed in the line of duty. But what I remember with pride is delivering school supplies, handing out candy to local children, and, during one patrol through the village, being invited to eat cake at a young boy’s circumcision celebration. The entire experience was one of the most significant events in my life, and hardly a day goes by that something doesn’t remind me of it. 

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Ten Honored for Pro Bono Service at Access to Justice Month Kickoff

T

he Supreme Court of Arkansas designated October as Access to Justice Month in Arkansas. In doing so, the Court sought to “draw attention to the justice gap in Arkansas, recognize the valuable contributions made by legal aid and pro bono attorneys throughout the year, and to encourage pro bono participation to address the legal needs of low-income Arkansans.”1 At a kickoff event for Access to Justice Month hosted by the Arkansas Access to Justice Foundation, 10 attorneys were honored for their pro bono service. These attorneys were selected based on their longtime service with legal aid, willingness to take on difficult cases, and innovative approaches to helping those in need. Included among the honorees were two recently licensed attorneys who demonstrated a commitment to pro bono service while in law school.

Speaking at the kickoff event, Justice Robin Wynne thanked the honorees for their service and encouraged all attorneys to follow their example. He said, “I hope you all will make room for pro bono in your practices, whether it be taking a case with legal aid, volunteering at a clinic, serving on the board of a nonprofit, or offering a reduced fee to a struggling client.” If you are interested in learning more about pro bono opportunities in your area, please contact Jordan Rogers, Program Coordinator at the Arkansas Access to Justice Commission, by emailing jrogers@arkansasjustice.org. 1

Justice Robin Wynne

In re Arkansas Access to Justice Month, 2019 Ark. 276, 1 (2019).

2019 Access to Justice Month Pro Bono Award Winners Jeannie Winston

Steve Joiner

Robert Rushing

Greers Ferry, Arkansas

Little Rock, Arkansas

El Dorado, Arkansas

Winston Law Firm

Rose Law Firm

Pro Bono Focus: Family Law

Pro Bono Focus: Family Law & Landlord-Tenant Issues

Nominated by Legal Aid of Arkansas

Nominated by the Center for Arkansas Legal Services

Ray Nickle

Simon Kelly

Nickle Law Firm

William H. Bowen School of Law

Jonesboro, Arkansas

Pro Bono Focus: Family Law

Student-Graduated May 2019 Little Rock, Arkansas

Nominated by Legal Aid of Arkansas

Pro Bono Focus: Veterans Issues

Rushing Law Firm

Pro Bono Focus: Bankruptcy/Economic Justice

Nominated by the Center for Arkansas Legal Services

Tom Owens

Owens Law Firm

Pine Bluff, Arkansas

Pro Bono Focus: Family Law & Probate

Nominated by the Center for Arkansas Legal Services

Nominated by the Center for Arkansas Legal Services

Not Pictured:

Christopher Brockett

Lisa Dennis

Fort Smith, Arkansas

Fayetteville, Arkansas

Nominated by the Center for Arkansas Legal Services

Nominated by Legal Aid of Arkansas

Robertson, Beasley, Shipley & Robinson Gunn Kieklak Dennis, LLP

Pro Bono Focus: Property & Family Law

Pro Bono Focus: Family Law

Christina Murphy Lusk

Greg Dow

Student-Graduated December 2018 Destin, Florida

Bentonville, Arkansas

University of Arkansas School of Law

Pro Bono Focus: Domestic Violence Prevention

Walmart Stores, Inc.

Pro Bono Focus: Education Law Nominated by Legal Aid of Arkansas

Nominated by Legal Aid of Arkansas

AATJ Pro Bono FullPg ad.indd 1

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Bowen School of Law Creates Veterans Legal Services Clinic

Bowen Dean Theresa M. Beiner at the podium. Seated, L-R: Colonel (U.S. Army, retired) Nathaniel “Nate” Todd, secretary of the Arkansas Department of Veterans Affairs; Arkansas Attorney General Leslie Rutledge; Arkansas Governor Asa Hutchinson

By Dean Theresa M. Beiner

T

he UA Little Rock Bowen School of Law’s new Veterans Legal Services Clinic is a testament to what educators, a determined student, and public officials can accomplish when they put their minds to it. The seeds of Bowen’s newest clinic can be traced back to Simon Kelly, a recent graduate of the UA Little Rock William H. Bowen School of Law and an even newer attorney who just passed the July 2019 Arkansas bar exam. But before Kelly was an attorney, he was a soldier. He entered the military in April 2006, deployed in 2009, and left the military in 2013. When he was considering law schools three years ago, on the top of his list were law schools that would consider providing free legal services to veterans. Enter Matt Kerns, the Assistant Dean of Admissions at Bowen, who met with Kelly when he came to Bowen for a private tour of the school. At the time, Bowen already had a strong clinic presence, but a veterans clinic wasn’t on the school’s radar. Kerns’ answer? Bowen would be interested if there was strong student interest and support. Kelly enrolled at Bowen, and immediately raised the possibility of creating a veterans clinic with the dean at that time. But not much really happened until a meeting was called by Colonel Nate Todd, the Director of the Arkansas Department of Veterans Affairs. This meeting during March of 2018 included representatives of his department; Cory Cox of Attorney General Leslie Rutledge’s office; Jim Carlsen, Executive Director of the Veterans Consortium Pro Bono Program in Washington, D.C.; and Bowen’s Interim

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Dean John DiPippa as well as Theresa Beiner, at the time the Associate Dean for Academic Affairs at Bowen. Colonel Todd described the need for free legal services among Arkansas’s veterans. Mr. Carlsen suggested that a law school legal clinic was a great way to provide services to veterans while creating a group of attorneys who would help provide services to this very worthy group of Arkansans. After that meeting, on a flight from Chicago to Little Rock, Beiner found herself sitting next to Arkansas Senator Jason Rapert. They began discussing the law school. “I told Senator Rapert that Bowen was interested in starting a veterans clinic and he immediately responded that the state would fund that.” That gave her hope that there would be support and a funding source somewhere in state government. In July of 2018, Beiner had become Dean of the Bowen School of Law. Simon Kelly was quick to stop into her office once she began her term as Dean to remind her about the possibility of starting a veterans clinic at Bowen. Dean Beiner and Bowen’s Assistant Dean for External Relations Wanda Hoover reached out to Cory Cox in the Attorney General’s Office as well as Steve Eggenspberger, Governor Asa Hutchinson’s Military/Veteran Affairs Liaison, for a meeting to discuss potential funding for a veterans clinic at the law school. Meetings with Colonel Todd, his staff, and others concerned with veterans’ access to legal services followed. “Both Cory and Colonel Todd believed strongly in the need for this clinic, and they

knew the governor and attorney general were working toward improving services available to Arkansas’s veterans,” Hoover said. “They helped get us in touch with various veterans’ groups so we could listen to what the community needed and how we could best fill that need.” All of this work culminated on August 20, when Bowen announced the creation of its new Veterans Legal Services Clinic at a news conference attended by Governor Asa Hutchinson and Attorney General Leslie Rutledge, whose offices each funded half of the $1.5 million project. “Providing legal aid through the Veterans Legal Services Clinic is another way to show our appreciation to veterans for what often is a life-altering sacrifice,” Governor Hutchinson said. “I commend the Bowen School of Law for launching this project, and I am honored to be able to help fund the clinic on behalf of all Arkansans.” Law students will work in this clinic under the supervision of a Bowen faculty member who will represent Arkansas veterans in the Veterans Affairs disability appeal process as well as in the process for reconsideration of discharge status. “Arkansas is home to over 250,000 veterans who have honorably served our country to protect our freedoms,” Attorney General Rutledge said. “Sadly, too many veterans do not have the financial means to address service-related legal issues. The funds allocated to the Veterans Legal Services Clinic will not only provide legal assistance to our nation’s


heroes, but it will give future attorneys the education, opportunity and desire to serve those who have served us.” This legal clinic will also serve as a Veterans Pro Bono Services Center for the state of Arkansas. It will coordinate and provide practicing attorneys free continuing legal education on veterans’ legal issues and then seek to match participating attorneys with Arkansas veterans in need of legal assistance. “These two endeavors further Bowen’s commitment to our core values of access to justice, public service, and professionalism,” said Dean Beiner. “The legal clinic’s goal is to spark in our students a lifelong dedication to serving this very worthy group. The services center will continue that mission by providing attorneys with training opportunities and helping them connect with veterans in need of legal services.” Of Bowen’s 452 current students, approximately 29 are veterans or active military. Approximately 60 Bowen graduates are veterans or active military members across all services. The Veterans Legal Services Clinic will be the seventh legal clinic at Bowen providing opportunities for law students to represent clients while still in law school. Other clin-

From the ordinary to the most complex, no appeal is too small or large Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court

ics include Business Innovations, Consumer Protection, Delta, Litigation, Mediation, and Tax. And what about Simon Kelly? He’s been recognized for his work with the Veterans Legal Assistance Program (VLAP) and received the Arkansas Access to Justice Outstanding Contribution to Pro Bono Efforts. He also received Bowen’s Public Service Award at graduation. He’s currently serving as the Judge Advocate for VFW Post 9095, and he still finds moments that inspire him to fight for his fellow veterans. “Working with VLAP for the past three years and seeing the need for this kind of work has been both heartbreaking and motivating. Motivating because we as a community can make a real impact on the lives of these service members and veterans. Heartbreaking because the need seems to grow far greater and faster than we have been able to help in the past. This clinic will be movement in the right direction to mitigate this.” Bowen is currently searching for a clinic director and administrative staff. They anticipate the clinic will begin reviewing and accepting cases in fall 2020. 

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Vol. 54 No. 4/Fall 2019 The Arkansas Lawyer

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Law School Updates

UA Little Rock

University of Arkansas

William H. Bowen School of Law

School of Law

Dean Beiner

Bowen’s fall semester got off to a busy start when 161 first-year students arrived for First Week orientation. This is a 14.5% increase in first-year students from last year. Forty-nine percent of the students are female, 36% are from out of state, and 30% are first-generation college graduates. They also have a higher entering median GPA and LSAT score. As their public service project, incoming students collected over 1,200 books for pre-K3 through fifth grade students attending Washington Elementary School in Little Rock. They also spent the morning on Washington’s campus completing landscaping and beautification projects in the rain to ready the school for the new academic year. A Bowen student concluded the law school’s first Summer Internship at Arkansas Blue Cross Blue Shield. Working in the Human Resources office, the student reviewed immigration files for internal audit and policies and procedures for updates. He also received professional coaching and participated in leadership forums. Bowen will start providing legal services for veterans. Beginning in the fall of 2020, students in the Veterans Legal Services Clinic will assist Arkansas veterans in disability appeals and reconsideration of discharge status. The Pro Bono Services Center will provide practicing attorneys free CLE on veterans’ legal issues and match participating attorneys with Arkansas veterans in need of legal assistance. Governor Asa Hutchinson and Attorney General Leslie Rutledge each funded one-half of this $1.5 million project. The law school honored three alumni at its annual Alumni Luncheon: Distinguished Alumnus, the Honorable Dustin McDaniel; Outstanding Alumnus in Public Service, Representative Jimmy Gazaway; and Emerging Young Alumna, Tamika Edwards. Bowen also celebrated the generosity of Little Rock attorney Sam Perroni. Mr. Perroni, who is among Bowen’s earliest alumni and also served as an adjunct professor from the early 1990s until 2008, has made a planned gift to name a classroom at Bowen. Alumnus Wiley Cavin also made a planned gift to name a conference room at Bowen. On November 1, Bowen’s Law Review hosted its annual Altheimer Symposium. This year’s topic was Blocking the Pathways: Eradicating the School-to-Prison Pipeline. Speakers from the Intercultural Development Research Association, the National Center for Youth Law, the Southern Poverty Law Center, and Texas Appleseed addressed mental health issues among juveniles, racial disparities in the pipeline, police presence in schools, and creating positive school climates. The event was simulcast at the University of Arkansas Law School in Fayetteville. (l to r) Dean Beiner, Dustin McDaniel, Tamika Edwards, Jimmy Gazaway and Wanda Hoover 50

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Dean McCabe

I find it hard to believe that the fall semester is half over. As always, our vibrant campus is awash in an exciting blend of classes, competitions, and unique student opportunities – three of which are highlighted below. First, can you imagine being introduced by a Supreme Court Justice who then remained in the audience while you gave a presentation? On Monday, October 7, Professor Mark Killenbeck had just that experience when Associate Justice Stephen Breyer introduced the first Leon Silverman Lecture of the 2019 series in the United States Supreme Court chamber. Professor Killenbeck, the Wylie H. Davis Distinguished Professor of Law, presented “The Dissent as Concurrence – From Fletcher to Whitney.” I was particularly proud of the students who traveled to Washington to observe first Monday U.S. Supreme Court arguments and attend the lecture. The general theme of this year’s Silverman Series is Dissenting at the Supreme Court. In addition to Professor Killenbeck, it features Charles J. Cooper, founding member and chairman of Cooper and Kirk PLLC, Pamela Brandwein of the University of Michigan, and Justin Driver of Yale Law School—who will also be at the University of Arkansas on November 1 to give the Hartman Hotz Lecture in Law and Liberal Arts. Second, Professor Carol Goforth has become a go-to source for those wanting a better understanding of cryptocurrency and the law. Professor Goforth, a University Professor and the Clayton N. Little Professor of Law, is one of the nation’s leading experts on the Regulation of Cryptotransactions—which is also the tentative title of her cutting-edge textbook, to be published by West Academic in 2020. Thanks to her insight into this emerging field, we will host a dozen legal, business, governmental, and academic experts on October 25 for “The Evolving Regulation of Crypto,” this year’s Arkansas Law Review Symposium. These authorities will explore the varying regulatory regimes applicable to cryptotransactions. Finally, we were pleased to host this year’s Federal Courts Roundtable for Junior Scholars. Twenty-two junior faculty from 18 law schools gathered to discuss their federal courts scholarship and receive feedback from senior scholars. The event was organized by Professor Alan Trammell, who is quickly establishing a national reputation for his expertise on national injunctions. These highlights are just a few of the exciting and engaging activities our law school offers to students, faculty, and guests. We hope to see you in Fayetteville soon!

(l to r) Jeremy Brumbelow, Dean McCabe, Lorren Patton, Jessica Guarino, Taylor Farr, Professor Killenbeck, Shannon Stroud, Chord Cantrell, Cheston Wright


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Disciplinary Actions ATTORNEY DISCIPLINE ACTIONS Final actions from July 1 – September 30, 2019, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http://www.arcourts. gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

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for interim suspension was filed in No. CPC 2019-030 and Panel B of the Committee on Professional Conduct placed Satterfield on an interim suspension on September 5, 2019, which continues in place. SUSPENSION:

INTERIM SUSPENSION: Satterfield, Guy R. “Randy,” of Little Rock, Bar No. 81140, represented two decedent estates. In one estate, he initially held estate assets totaling $97,654.89. In the other estate, he initially held estate assets totaling $37,195. Grievances were filed concerning the location of those assets and the Office of Professional Conduct requested trust account records. The bank records showed that there were not sufficient funds in the trust account equal to or in excess of the amount Satterfield was to safeguard for the two estates, revealing an overall shortage of at least $60,000. Based on the information from the trust account records, a petition

Pearson, Melynda G., of Texarkana, Texas, Bar No. 95076, in No. CPC 2019-022, by Order filed July 30, 2019, was reciprocally suspended from the practice of law in Arkansas for a period of 24 months, with three months active suspension and 21 months probated suspension, based on the similar suspension of her Texas law license by agreement entered on May 1, 2019, for her conduct in two client matters in Texas. SUSPENSION-STAYED: Johnson, Thomas H., now of Frisco, Texas, Ark. Bar No. 92249 and Texas Bar No. 00796069, in State Bar of Texas case No.

201601118, on April 12, 2018, agreed to a fully probated and stayed suspension of his Texas license for 12 months for his conduct in neglecting the legal matters of a client in two civil cases. The Texas Bar reported the matter to OPC. As a public sanction, OPC, in No. CPC 2019-028, registered the Texas sanction in Arkansas. CAUTION: Craytor, Bart C., of New Boston, TX, Bar No. 93046, in No. CPC 2019-023, by Consent Findings & Order filed September 20, 2019, was cautioned for violations of Rules 1.3, 1.16(c), 3.2, 3.4(c), and 8.4(d). In 2016, Quayvon Peoples was charged with three counts of felony rape in Miller County, Arkansas. Peoples hired Craytor to represent him on the charges. After a jury trial, Peoples was found guilty and sentenced to 30 years in the Arkansas Department of Corrections. Peoples requested Craytor file an appeal of his conviction, which Craytor

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Craytor was directed to file the remainder of the record in the case within 10 days of the Court’s Opinion. Peoples’ motion was granted. Craytor then failed to file the record as directed by the Court and was removed as Peoples’ attorney. Van Es, Todd, of Centerton, Arkansas, Bar No. 2008202, in No. CPC 2019-011, by Findings & Order filed September 5, 2019, on a complaint from John Craig Moline, for violations of Rules 1.3, 1.4(a)(3), 1.4(a) (4), 1.16(d), and 8.1(b), was cautioned and ordered to pay $300 restitution to Moline. Moline engaged Van Es in August 2018 to review legal documents and prepare a deed, paying $300 for the services. Van Es did not perform the work and failed to communicate with Moline, who filed a complaint with OPC. Van Es failed to respond to inquiry from OPC and then failed to file a response to the formal Complaint filed April 9, 2019, which constituted an admission of the charges.

timely filed. Peoples was declared indigent for purposes of the appeal. Craytor made a request for the record in the case. The court reporter completed the record providing a Certificate of Cost, a Certificate of Cost Paid showing Peoples as indigent, and a Certificate attesting to the authenticity of the record prepared. Craytor signed a Receipt for Picking Up Appeal acknowledging that he had picked up the record on that day. Craytor failed to lodge the record with the Supreme Court Clerk. Approximately one year after Craytor picked up the record in his case, Peoples filed a Pro Se Motion to File Appeal, and a

partial record. The Office of the Criminal Justice Coordinator of the Supreme Court of Arkansas wrote Peoples a letter acknowledging receipt of Peoples’ motion and attached documents, and advised it was treating Peoples’ motion as a Motion for Rule on the Clerk. The Supreme Court issued its Opinion and Formal Order finding that Craytor had filed a timely notice of appeal but failed to tender the record within the required time frame. The Court also found that Craytor did not take any action to perfect Peoples’ appeal, nor was Craytor permitted by either the trial court or appellate court to withdraw from his representation of Peoples.

Young, Paige E., of Fayetteville, Bar No. 99123, in No. CPC 2019-004, on a complaint by Eloise Jackson, by Findings & Order filed September 30, 2019, for violations of Rules 1.2(a), 1.3, 1.4(a)(3), and 1.4(a)(4), was cautioned. In August 2014, after a group presentation at a senior citizens center, Young was engaged by Ms. Jackson, an elderly widow, and paid a $2,000 fee to prepare estate planning documents for her. No documents were received by Jackson. In March 2017 a lawyer friend of Jackson’s began contacts with Young about the matter. With no results, Jackson filed her grievance in July 2018. OPC contacted Young. He stated he would refund her fee. After additional contacts by OPC, in November 2018, Young refunded the fee to Jackson. 

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Arkansas Judges and Lawyers Assistance Program

Meet the JLAP Staff

Amanda Canant serves as the Administrative Assistant and is the glue of the Arkansas JLAP office. She is a native to Little Rock and a mom of 2 children and 2 fur babies: Adam 16, Analise 13, Little Ann and Stack, both 5. In combination with her skills as an office professional, she maintains the daily organizational operations. Amanda also uses her many years of media and marketing experience to raise awareness about JLAP and the services provided by running website and social media campaigns. Therese Skinner, LCSW joined JLAP as the first full-time clinician in August 2019. She has a bachelors in psychology from University of Wyoming, and Master of Social Work from University of Arkansas, Little Rock. Therese is currently working on her national certification for Dialectical Behavior Therapy, an evidenced based therapeutic approach that has strong success in treating trauma, substance abuse disorders, anxiety, depression, and personality disorders. Therese is passionate about direct, outcome-based therapy and is thrilled to be practicing with the JLAP

community. Therese enjoys spending time with her four children and passionately supports the Little Rock Central High student body and activities. Laura Laser earned her MSW degree from UALR and has been a clinical social worker for over 20 years. She has family ties to the Arkansas legal community and with that comes a deep understanding of JLAP clients and their needs. Laura has worked extensively with the judges, lawyers, and their families as well as serving law students. Her personal commitment and professional experiences have given her a clear sense of the struggles our legal community faces. She has been with JLAP since 2012 and is excited about the future of AR JLAP. Laura has two amazing daughters with whom she loves to spend time especially travelling. She is an accomplished artist and wellknown foodie. Jennifer Donaldson, a Licensed Certified Social Worker, is the newest AR JLAP Executive Director. She specializes in the effects of trauma

and the professional’s health. As Executive Director, she oversees the program’s operational quality, implementation of services, and department growth and expansion. Jennifer joins JLAP with a background in behavioral health program development and is looking forward to expanding JLAP’s approach to overall well being to the legal community across the state. Jennifer is also a mother of two: a teenage son Parker and a preteen daughter Savannah. She is originally from Monticello but now resides in Maumelle. She obtained her MSW from the University of Arkansas at Little Rock. She enjoys time with her family and friends. She believes “life is one large juggling act, in which we ALL have trouble keeping every ball in the air. It is ok to drop the ball, forgive yourself, and keep juggling!”

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Arkansas Bar Foundation Report by Ann Dixon Pyle, Executive Director, Arkansas Bar Foundation

Julie Greathouse, Edward Oglesby and Danyelle Walker Photo credit: Michael Pirnique

#OktoberFellowsFest Under the leadership of this year’s President, Danyelle J. Walker of Little Rock, the Foundation held its third annual Foundation Friendraiser. Thanks to 37 generous sponsors, and the support of guests and other donors, OktoberFellowsFest, held at Fassler Hall in downtown Little Rock, was a success with over 100 guests in attendance enjoying Octoberfest-themed beverages and light fare. Net proceeds benefit the Arkansas Bar Foundation with 25% of net proceeds designated to the Arkansas Mock Trial Competition to help support travel costs for the winning team to attend Nationals in the Spring of 2020. Many thanks to the hard-working efforts of the Foundation’s Development Committee: Danyelle J. Walker, Chair, Missy McJunkins Duke, Julie DeWoody Greathouse, Edward T. Oglesby and Teresa Wineland.

#GivingTuesday 2019 Please mark your calendar for Tuesday, December 3, 2019, for this year’s #GivingTuesday. This is a global day of giving, providing charitable funds to your favorite non-profit and charitable organizations. I encourage you to remember the Arkansas Bar Foundation on that day. Funds donated to the Foundation on #GivingTuesday2019 will be designated to #CelebratingtheCentennial. Funds raised for this program will be used to assist in offsetting the cost to host the American Bar Association’s Nineteenth Amendment traveling exhibit: “100 Years After the 19th Amendment: Their Legacy and Our Future.” The centennial anniversary of the Nineteenth Amendment gives the Foundation the opportunity to help celebrate 100 years of women’s constitutional right to vote and to educate the public about the Nineteenth Amendment and the battle for women’s suffrage. This six-banner free-standing exhibit features historic photos and artifacts and details the story of the battle for ratification. It will be displayed February 6-7, 2020, at the Arkansas Bar Association Mid-Year Meeting in Little Rock. Memorials The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period August 1, 2019 through October 31, 2019. In Memory of Judge Harry F. Barnes Carol and Glenn W. Jones

In Memory of Ed P. Jones Carol and Glenn W. Jones

In Memory of Herman B. Trotz Peggy and L. R. Jalenak, Jr.

In Memory of Edward Wayne Boyce, Jr. H. David Blair Jeffrey and Lester McKinley

In Memory of Bernard Kustoff Peggy and L. R. Jalenak, Jr.

In Memory of Field Wasson Charles D. Roscopf

In Memory of Randall S. Bueter Hyden, Miron & Foster, PLLC Brian Rosenthal Judge Bill Wilson and Judge Cathi Compton

In Memory of Austin McCaskill Carol and Glenn W. Jones In Memory of Dan Max Orr H. David Blair

In Memory of Donald “Red” Dodge Judge Bill Wilson and Judge Cathi Compton

In Memory of Richard A. Reid Brian Rosenthal Tom D. Womack

In Memory of J. Leslie Evitts III Brian Rosenthal Rex M. Terry

In Memory of Burl Rotenberry Carol and Glenn W. Jones

In Memory of Judge B. Kenneth Johnson Jennifer and Randy Coleman Don A. Eilbott Brian Rosenthal Judge Bill Wilson and Judge Cathi Compton 56

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In Memory of Barrett Spears Judge Bill Wilson and Judge Cathi Compton

Contributions Judges Rita and Wayne Gruber Judge Mary McGowan Jordan Bates-Rogers

SAVE THE DATE Arkansas Bar Foundation Scholarship Dinner Friday, February 7, 2020 6:00 Reception • 7:00 Dinner Country Club of Little Rock


in memoriam Randall Scott Bueter of Little Rock, died August 29, 2019, at the age of 66. Growing up in Little Rock, Randy graduated from Catholic High School for Boys in 1971, then attended Washington University in St. Louis graduating with a B.A. degree in Biology in 1975. Obtaining a license in real estate, he partnered with his father at Bueter Realty of Little Rock and became President of that company from 1980-1986. After his father’s retirement, Randy was Executive Vice President of Block Realty and Executive Vice President of Arkansas Federal Savings Bank. Randy then joined his wife Patricia at Bueter Designs and Construction where they remodeled, designed, and built homes and commercial property. During which he attended the University of Arkansas Bowen School of Law graduating with a J.D. degree in 1992. Admitted to practice in Arkansas and Tennessee, in 1995 Randy joined Wilson & Associates law firm in Little Rock where he became a partner in 1999 and member of the Executive Committee. He led the firm’s Closing Department in both Arkansas and Tennessee, and he also established a new title insurance agency, “Attorney’s Title Group,” which he managed. He was a distinguished attorney for over 25 years. Mark Braden Chadick of Pine Bluff died on August 15, 2019, at the age of 72. He graduated from Pine Bluff High School in 1964. Mark joined the U.S. Army in 1966. He completed the airborne paratrooper school in March 1967. He was eventually assigned to the 82nd Airborne Division in Fort Blagg, North Carolina. Mark received his orders to Vietnam and served with the 101st Airborne Division during his eighteen-month tour. He was awarded the Bronze Star. He graduated from the University of Arkansas at Monticello

in 1974 and entered the University of Arkansas School of Law, Fayetteville. He graduated with a Juris Doctor degree in 1977. Mark began the practice of law in Pine Bluff where he eventually opened his own law firm, the Chadick Law Firm. Derrick Mark Davidson of Lowell died August 5, 2019, at the age of 56. Derrick graduated with his Doctor of Jurisprudence degree from Vanderbilt University School of Law in Nashville, Tennessee in 1990. Before Vanderbilt, he attended Hendrix College in Conway, Arkansas, where he earned his Bachelor of Arts degree with a major in English in 1985. Derrick also held licenses to practice in the U.S. Court of Appeal for the Eighth Circuit. He practiced Law in Northwest Arkansas. Howard Joseph Goode of Texarkana, Texas,died October 7, 2019, at the age of 71. He practiced law in Texarkana and the surrounding area. He graduated college from John Brown University and received his law degree from the University of Arkansas Law School. He was a member of the Texarkana Bar Association and the Arkansas Bar Association. Peter Gay Estes Jr., of Fayetteville died October 9, 2019, at the age of 73. He was educated in the Fayetteville public school system, graduating from Fayetteville High School in 1964. He continued his education at the University of Arkansas in Fayetteville, where he earned a Bachelor’s degree in Marketing Management. In 1968, Peter went into Officer Candidate School. As a Lieutenant JG in the United States Navy, he served two tours in Vietnam on the Salvage Ship USS Safeguard. Peter then went on to graduate from the University of Arkansas School of

Law in Fayetteville 1973. He practiced law with his father, daughter and son during the course of his 40 year career. John Leslie Evitts, III, of Little Rock, died September 1, 2019, at the age of 60. Les attended Benton Public Schools and received his Bachelor’s degree from the University of Arkansas. After working in the oil business for a few years, he returned to the University where he received his Juris Doctorate degree. Les was a partner at Hardin, Jesson & Terry, PLC. Les was a member of both the Sebastian County Bar Association and the Arkansas Bar Association. Nathan David Hamblen of Bella Vista died August 26, 2019, at the age of 46. He was a 1991 graduate of Russellville High School and a 1995 graduate of Arkansas Tech University with a degree in History and Political Science. He completed his Juris Doctor at the University of Arkansas Law School in 2002. He also became a member of the Arkansas Bar Association in 2002. Upon graduation from law school, Nathan worked at Walmart Stores, Inc. in Bentonville in the real estate transactions division. He also spent time as an attorney at his own Hamblen Law Office in Bentonville. Honorable B. Kenneth Johnson of Monticello died October 13, 2019, at the age 75. He graduated in 1962 from Jonesboro High School. He was a 1966 graduate of Hendrix College, attending on a basketball scholarship playing all four years and winning numerous AIC awards.

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in memoriam Kenny was inducted into Hendrix’s Hall of Honor in 2018. After college, he attended the University of Arkansas Law School and graduate in 1969 with a Juris Doctorate degree. Kenny began his law career in Pine Bluff with the law firm of Dickey & Drake. As his career developed, he moved to Dumas and joined the firm of Marion Gill. During his tenure as attorney, he was City Attorney of Dumas for 14 years along and serving as a member of the State Law Examiners. After a fulfilled law career, Kenny was elected to the Tenth Judicial Circuit Court, 2nd Division for two consecutive terms as well as the administrative law judge for the district. Edward Paul Jones, age 81, of Fayetteville, died August 6, 2019, at the age of 81. He was born April 16, 1938 in Pampa, Texas, the son of Paul Cecil and Thelma Jean Ward Jones. Ed was a retired Circuit Judge for the State of Arkansas. He played football and basketball for the University of Arkansas. He was in the United States Air Force. After serving in the Air Force Ed returned to Law School at the University of Arkansas to receive his law degree. Ed practiced law in El Dorado, Ark., for multiple years Cheryl K. Maples of Heber Springs died August 22, 2019, at the age of 69. Cheryl lived in Pacific Palisades, CA until 1962 when she then moved to Springdale eventually moving to Springbrook Farm in Fayetteville. She graduated from Fayetteville High School in 1968, and married the love of her life Richard on that same day. She entered college when she was 30 and graduated seven years later from UALR with a law degree. She was the first Truman Scholar to stay in Arkansas for her college education. She was a nationally recognized civil rights advocate known for 58

The Arkansas Lawyer

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her work with the poor and disadvantaged. Her family was the most important thing in her life. James (“Jim”) W. Moore of Tupelo, MS died September 12, 2019, at the age of 83. Jim attended undergraduate school at Virginia Military Institute and law school at Tulane School of Law. Before practicing law as a profession, Jim served as a First Lieutenant in the United States Army in Fort Hood, TX, was an Armored Platoon Leader, 2nd Armored Division, and was a Legal Assistance Officer in the Judge Advocate General’s Office, 2nd Armored Division. Jim began the practice of law in 1962 as a field attorney with the National Labor Relations Board in Memphis, TN. He then served as senior law clerk to Chief Judge Pat Mahaffey on the United States Eighth Circuit Court of Appeals. In 1965, he went to work for the Friday, Eldredge and Clark law firm in Little Rock. Jim served as the Managing Partner of the Labor and Employment Law section at the Friday firm for many years until his retirement from the full-time practice of law in 1999. Jim served as Senior Labor Counsel at Phelps Dunbar LLP in New Orleans from 2000 to 2001, served as adjunct professor in the International Studies and Economics Department at VMI from 2001 to 2002, and concluded his professional career as a Certified Federal Mediation Conciliation Service Arbitrator. He was a member of the Arkansas, Tennessee, and Louisiana Bars. He served on the House of Delegates for the Arkansas Bar Association from 1980 to 1983. Richard A. Reid of Blytheville died September 3, 2019, at the age of 87. He graduated from Blytheville High School and graduated from the University of Arkansas with a Bachelor of Science in Business Administration. He

acquired his Juris Doctor Degree from the University of Arkansas School of Law at Fayetteville. While in law school, he served on law review staff and was president of the Student Bar Association and lettered three years in tennis. He served his country with honor in the United States Army and served two years of active duty with Judge Advocate Generals Corps, acquiring the grade of Captain. In 1959, Richard returned to Blytheville and entered the law firm established by his father in the 1920s now known as Reid, Burge, Prevallet and Coleman. Richard was a member of the Blytheville, Northeast Arkansas, Arkansas and American Bar Associations as well as being a member of the Commercial Law League of America. He served on various committees of the Arkansas Bar Association in the past including the Judicial Nominations Committee, Professional Ethics and Grievances Committee, the Bar Association’s Task Force on Lawyers Admission and Discipline, as well as the Arkansas Bar Association’s Unauthorized Practice of Law Task Force Committee. He was a Fellow of the Arkansas Bar Foundation. John W. Settle, 67, of Fort Smith died October 26, 2019, at the age of 67. He was a graduate of the University of Arkansas as well as the University Of Arkansas School Of Law. As a student at the University of Arkansas, John was honored to receive the J. William Fullbright Award as the senior history student with the highest academic achievement for the year 1974. John graduated from law school and continued in the practice of law for nearly 40 years. He established a private law practice, became a Fort Smith city judge and most recently served as the city’s prosecutor for 11 years. The information contained herein is provided by the members’ obituaries.


2020 ArkBar Legislative Timetable

The voice of the Arkansas lawyer

One of the most important things The Arkansas Bar Association does each year is represent its members at the Arkansas Capitol during the legislative session. The Association speaks with a unified voice to best represent the interests of the legal community and the profession of law. Legislative or administrative proposals concerning all matters of jurispru-

dence and procedure, including reforms of the substantive law and improvement in practice and in administration of the courts, originate with Association members, sections and committees. If proposals are recommended by the Jurisprudence and Law Reform Committee and adopted by the House of Delegates, they become part of the Association’s Legislative Package.

Deadlines have been established by the Arkansas Bar Association to facilitate consideration and inclusion for the ArkBar’s Legislative Package, and thereby sponsored by the Association. For the 2021 legislative session of the Arkansas General Assembly those deadlines are as follows:

JANUARY 31, 2020

APRIL 2020

JUNE 2020

Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. All proposals must be in bill format.

Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates.

House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. The House may also add up to three additional bills.

For more information or to submit proposals, contact Jay Robbins at the Arkansas Bar Association’s office at (501) 801-5665.

Vol. 54 No. 4/Fall 2019 The Arkansas Lawyer

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Index to Advertisers

WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS.

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Send details to: P.O. Box 13557, Denver, CO 80201.

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THANK YOU FOR YOUR MEMBERSHIP 

The Arkansas Bar Association thanks you for your membership and commitment to sustaining our profession and association. Please contact Anna at ahubbard@arkbar.com if you would like a copy of the new member decal shown here for your website or email.

Λορεμ ιπσυμ δολορ σιτ αμετ, χονσεχτετυερ αδιπισχινγ ελιτ, σεδ διαμ νονυμμψ νιβη ευισμοδ τινχιδυντ υτ λαορεετ δολορε μαγνα αλιθυαμ ερατ ϖολυτπατ. Υτ ωισι ενιμ αδ μινιμ ϖενιαμ, θυισ νοσ ♦

2019-2020

60 3

Arkansas Access to Justice

46

ArkBar CLE

10

ArkBar Mid-Year Meeting

IBC

ArJLAP 51 ArkBar Jobs

49

Bell & Co.

45

Blair & Stroud

31

BXS Insurance

BC

Clio 47 Fastcase

IFC, 27

Landex Research

47

Law Pay

30

McMath Woods P.A.

47

National Academy of Distinguished Neutrals 52

Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications)

1. Publication Title

2. Publication Number

The Arkansas Lawyer

4. Issue Frequency

0 5 4 6

_

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0 4 6

5. Number of Issues Published Annually

4

Quarterly

7. Complete Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4 ®)

2224 Cottondale Lane, Little Rock, AR 72202

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same 9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do not leave blank) Publisher (Name and complete mailing address)

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Same

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(4)

Paid Distribution by Other Classes of Mail Through the USPS (e.g., First-Class Mail®)

Full Name

16. Electronic Copy Circulation

19529 943 637

4904 2859 1945

0 0

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1582

4804

d. Free or (1) Free or Nominal Rate Outside-County Copies included on PS Form 3541 Nominal Rate Distribution (2) Free or Nominal Rate In-County Copies Included on PS Form 3541 (By Mail and Free or Nominal Rate Copies Mailed at Other Classes Through the USPS Outside (3) (e.g., First-Class Mail) the Mail)

0

0

0

0

0

0

0

0

Free or Nominal Rate Distribution Outside the Mail (Carriers or other means)

e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4))

f. Total Distribution (Sum of 15c and 15e)

0 1582

c.  Total Print Distribution (Line 15f) + Paid Electronic Copies (Line 16a)

1582

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100

No. Copies of Single Issue Published Nearest to Filing Date

Public Notice Agency

54

The Brad Hendicks Law Firm

51

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43

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31

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26

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0

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4802

1582

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35

4802 100

I certify that 50% of all my distributed copies (electronic and print) are paid above a nominal price. 17. Publication of Statement of Ownership

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Date

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0 4804

g. Copies not Distributed (See Instructions to Publishers #4 (page #3))

413

100

1995

4904

100

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h. Total (Sum of 15f and g) i. Percent Paid (15c divided by 15f times 100) 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or None Other Securities. If none, check box

August 2019 Average No. Copies No. Copies of Single Each Issue During Issue Published Preceding 12 Months Nearest to Filing Date

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(4)

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The Arkansas Lawyer 15. Extent and Nature of Circulation

Contact Person

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Odom Mediation Services

100

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Complete Mailing Address

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Vol. 54 No. 4/Fall 2019 The Arkansas Lawyer

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FEBRUARY 6-7 HOLIDAY INN

AIRPORT 3201 BANKHEAD DR. LITTLE ROCK • 72206 NEW LOCATION! FREE PARKING! EVENING CLE!

at Mid-Year Meeting 2020 • PROBATE & TRUST TRACK • ELDER LAW TRACK • IMMIGRATION LAW • NEW! FAMILY LAW • 4-HRS. BXS INSURANCE • PRACTICAL SKILLS

The Arkansas Bar Association will host the 19th Amendment Traveling Exhibit during Mid-Year Meeting!

THURSDAY

NEW! Evening CLE

Power Up Your Office with Barron Henley of Affinity Consulting Group

6 – 7 PM: Microsoft Word Power Tips for Legal Users

7 – 8 PM: A Lawyer’s Guide to PDF Files

thursday evening reception

FRIDAY

JLAP Featured Speaker In Pursuit of Well-Being with Michael Rexford of Manatt, Phelps & Phillips, LLP

10:30 – 11:30 AM: Lawyering with a Healthy Mind

All members and guests invited – followed by a YLS After Party at Flying Saucer

more information coming soon!

2 – 3 PM: How to Talk to Someone in Crisis


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We offer a robust suite of insurance options that are designed specifically for ArkBar members. Our Professional Division has nearly 40 years of experience with lawyer’s professional liability, general liability and all other lines. Visit ArkBarBXSI.com for a free quote or, if you have questions about how we will endeavor to provide you a cost-effective insurance solution through tailored coverage, email ArkBar@bxsi.com or call 1-800-358-7741 today.

bxsi.com 1. BXS Insurance is a wholly owned subsidiary of BancorpSouth Bank. 2. Insurance products are • Not a deposit • Not FDIC insured • Not insured by any federal government agency • Not guaranteed by the bank • May go down in value. 3. BXS Insurance is an insurance agent and not an insurance carrier. 4. Always read your policy for coverage terms and conditions.

Profile for Arkansas Bar Association

The Arkansas Lawyer Fall 2019  

The Arkansas Lawyer Fall 2019