Page 1

MAY 1,1972

Vote Tuesday May 30th

David Pryor listens and understands the people of Arkansas. or twelve years , David Pryor has represented the people of Arkansas. In the Arkansas House of Representatives and the United States House of Representatives in Washington , David Pryor has always listened and understood . The people of Arkansas deserve a United States Senator they can talk to .


. . . America Can Be Made To Fulfill Her Promise.

WITH Congressman


As Your United States Senator (paid for by Harry Barnes )

MAY, 1972 VOl. 6 NO.3


Arkansas Lawyer SPECIAL FEA lURES 74th Annual Meeting Arkansas Bar Associat ion . .. ......................... 94


New Look in Arkansas Just ice Governor Dale Bumpers 84 What Persuades a Judge .......... John A. Fogleman 110

Paul B. Young, President Henry Woods, Vice·President Robert D. Ross, Secretary·Treasurer EXECUTIVE DIRECTOR C. E. Ransick EXECUTIVE CDMMITTEE James West, Chairman Phillip Carroll James B. Sharp lynn Wade Dale Price John Mann

Do es Law Progress Reasonably? Winning Law Day USA Essay . . .... Mary Lee Pogue 100 It's Assizetime in the United States Report on National Judicial Conference . . .. Chief Justice Carleton Harris 98 Arkansas Supreme Court Justi c es ........ .. ............ 87 The Arkansas Bar Associ ation Constitution : An Overview ........................ ... . Jim Spears 101

REGULAR FEAlURES Histo ry o f The Arkansas Supreme Court . .............. Judge Ed F. McFaddin 78 President 's Repo rt .... . ...... . .......... Paul B. Young 75 Juris Dictum . ...........•.•. . .•............ C. R. Huie 82


Law Sc hool News .....•.•. , ........ Robert Brockmann 96 Oyez-Oyez ............... . ...... . ........ . B. Ghormley 74

Paul B. Young Henry Woods Robert D. Ross John lile J. C. Deacon James B. Blair Stephen Matthews louis l. Ramsay , Jr.

EDITORIAL COMMITTEE Robert D. Ross Philip E. Dixon C. E. Ransick MAY, 1972

In Memoriam ................... . ..... . ............... 105 Exec ut ive Committee Notes ....... . ... Robert D. Ross 108 Publ ished bl-monlhly by the Arkansas Bar Assoc iation , 408 Donaghey Bldg .. Little Rock , Arkansas 72201. Second class postage paid at lillie Rock , Arkansas. Subscription price to non-members 01 the Arkansas Bar Association $6.00 per year and to members $2.00 per year included in annual dues. Any opinion expressed herein is that 01 the author, and not necessarily that 01 the Arkansas Bar Associat ion, The Arkansas Lawyer. or the Editorial Committee . Contributions to the Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 408 Donaghey Bldg ., lillie Rock , Arkansas

7220 1. All Inquiries regardi ng adve rtising should be sent to Advertising Department, Arkan. sas lawyer, Post Office Box 4117, No rt h Lit. t ie ROCk. Ark ansas 72116.


By B. G hor m it!y

Sam Highsmith

Mrs. J.H. Brunson

Edwin R. Bethune, Jr., Searcy. and Professor Rafael Guzman, Fayetteville , were invited to attend the National Judicial Conference for the Administration of Justice held at Baton Rouge. La. in February. Chief Justice Carleton Harris represented the Arkansas Supreme Court at the Conference . Sam Highsmith, Batesville, received the Batesvi lle Jaycee Distinguished Service Award at their February meeting . A joint Ame rican-Canadian Economics and Management Conference will be held in Toronto on June 1-4. 1972 with Richard A. Williams, litt le Rock . as one of the coChairmen , This is co-sponsored by the ABA Standing Committee on Economics of Law Practice and the Ontario Branch of the Canadian Bar Association . Henry Woods , Little Rock . spoke to the Stuttgart Rotary Club meeting in February concerning No-Fault Eugene Schieffler, West Helena. spoke to the Stuttgart Jaycees in March on No-Fault. Charles H. Eddy, Mo rr ilton , spoke to the Morrilton Lions C lub on its activities. Eddy is also the District Governor. Walker , Kaplan & Mays, P.A. , Little Rock . with Ted Goodloe and AI J. Daniel, Jr., associates. have moved their offices to 622 Pyramid Life Bldg . John B. Thurman and Stephen E. Safly have fo r med a partnership for the general practice of law at 312 Pyr amid Life Bld9 .. Little Rock. Dean Ralph C. Barnhart , University of Arkansas School of Law . Fayetteville, since 1958. has requested retirement as dean effective September 1, 1972. John T. Harmon, No rth Little Rock Ci ty Attorney. has resigned his posi tion effective December 31 . 1972 . Ruth Brunson was e lected President of the Southwestern C h ap ter of the American Association of Law Librar ians

during the Chapter's March meeting at Hot Springs; Dean Ralph C. Barnhart and P resident- Elect Henry Woods extended welcomes to the law librarians. Bar Activities : The Sebastian County Bar Association along with the Legal Economics Committee of the Arkansas Bar Association sponsored a Seminar on Economics of Law Practice March 24 . 1972. The Sem inar Com m itteemen were : Mitchell Moore, Chairman . Arkansas Bar Association 's Economics of Law Prac tice; James E. West , Chairman . Executive Commi tt ee; David Hubbard j and Douglas Parker . Other participants were : Owen C. Pearce, William M . Stocks, Paul L. Giuffre, and Finis F. Batchelor, Jr. Everett Proctor, President. Cross County Bar Association , has reported that a memorial is being planned for the late James Robertson . Bob Dawson, North Little Rock. and Eugene Mazzanti , Little Rock. worked as co-chairmen in revising the Pulaski County L awyer Referra l Service . Chancery Judge Lee Ward , P iggott . will serve as the Clay County Law Day Chairman with Joe Calvin and Scott Manatt as his committeemen. J. V. Spencer III is the new Union County Bar Association President ; Michael F. Mahony, Vice-President ; and Wallace M . Moody, Secretary-Treasurer. Eu gene D. Bramblett , EI Dorado. will serve Union County as its Law Day Chairman . Phillips County Bar Association 's new officers for the next two years are: W. G . Dinning , Jr. President; and John M. Pittman , Secretary-Treasurer . The Columbia County Bar Association with Harry B . Colay as chairman . drafted a memorial to present the lamily of the W . D. McKay. Byron Thompson was appointed chairman of the Columbia County Law Day Committee.


W.G. Dinning, Jr. (Bill)

Dean Barnhart

James West


11'011 8y Paul 8, Young

I would like to report to you concerning three different activities of the Association . one 01 which involves a new approach to the very important subject of legislation and the others open up new areas of service. 1. Full Time Leg islative Repre sentative. It is a commonly accepted fact by your past and present officers that the efforts of the Association in promoting our legislation program have been far from satisfactory . This resu Its from many factors including the failure to get the bills in which we are interested introduced early enough in the session, the fact that we have unduly imposed on lawyer members of the General Assembly by parceling out bills among them without keeping them adequately informed and several other reasons . In addition to the fact that we have not had a very satisfactory performance in getting recommended legislation passed, Arkansas lawyers have not been kept promptly informed about pending legislation in which they or their clients may have an interest . Then after the legislation is over, months elapse before they can get volumes containing the new bills that have become law . At my request , the Legislation Committee and Jurisprudence and Law Reform Committee have been holding joint meetings and discussing these problems . The result has been a recommendation for next year's planning and budget which , of couscourse , takes into account the regular meeting of the Legislature in 1973. The recommendations are that the Arkansas Bar Association have a full time employee for four or five months preceding and during each legislative session. He would, in effect , be the lobbyist for the Association . He would coordinate the flow of information be-

MAY, 1972

tween the Legislature , the Bar Association and its Executive Committee and all Arkansas Bar members. He will be sufficiently informed on each proposal so as to be able to explain it clearly to the Legislators and to the Governor 's staff. In addition, he will be expected to maintain a constant surveillance of all proposed legislation and report promptly any item which appears to be of interest because of its Significance to the administration of justice or to the practice of law to the Executive Committee, to the appropriate committees of the Arkansas Bar Association and on occasion to the general membership when that seems to be indicated . From what I have learned about the legislative programs of other state bars, the best results on a legislative program require a fu II time person employed who is responsible for it and who will also keep the members of the bar informed . The Executive Committee has approved the recommendations of the Legislation and Jurisprudence and Law Reform Committees and requested that the budget committee take this into account as they make financial plans for the next bar year . After the Legislature adjourns it is hoped that the Bar Association can make available to Arkansas lawyers the full text of all new statutes in a relatively short time after they become effective . As you know, it has taken months to get the official volumes of the statutes updated which has created a real handicap and hazard to the practicing lawyer. 2. Spec ial Committ ee Correction s . The American Bar Association has apPOinted a Special Commission on Correctional Facilities and services with a three man professional staff and an office in Washington . The ABA


Commission is headed by former Governor Richard J . Hughes of New Jersey who has called on state bar associations to give priority attention to problems of the prison and correction systems in their own states. President Leon Jaworski pointed out that "The legal profession , as the exponent of law , has no choice but to concern itself with corrections . In doing so it is also our duty to make correctional services procedurally fair and functionally effective. " As lawyers and judges our members are directly involved in the placement of inmates in our correctional system . We should not forget them when all avenues of legal recourse seeking their release have been exhausted . Your Executive Committee has responded to this challenge by creating a Special Committee on Corrections headed by Jack Lavey. The Committee was appointed with the advice and recommendations of President-Elect Henry Woods as the work of the committee will really just have time to get underway by the end of the present bar year. I sincerely believe that the Arkansas Bar can render a tremendous service in this field . 3. Committee on Prepaid Legal Services. As you probably know, the American Bar Association has established a special committee on this subject to recommend whether the ABA should assume permanent responsibilities in this field . Prepaid legal services plans have been blossoming across the country . The ABA committee has been assisting in the supervision of pilot projects at Shreveport and Los Angeles to determine whether a practical plan in the interest of the public and the profession can be developed .

Continued on page 104 PAG E 75

Cover Story. • • • . • • •

Sy Judge Ed f. Mcfaddin

History Of The Arkansas Supreme Court

. Justice Conley Byrd

Justice John A. Fogleman

Arkansas . geog raphically a po rtion of the Louisiana Purchase, became a Territory in 1819; and . 01 course. had Territorial Courts and Judges thereof; but in 1836 Arkansas was ad mitted as a State in the American Union (the 25th State) . and thereby became entitled to have its own State Courts. The Arkansas Constitution of 1836 provid ed for a Supreme Court composed of a Chief Justice and two Associate Justices, all to be elected by the Legislature in Joint Session . In its First Session (1836) . the Legislatu re se lected Dani el Rin go as Chief Justice, and Townsend Dickinson and Thomas J . Lacey as Associate Justices . Chief Justice Ringo drew a term of eight yea rs; Justice Tow nsend Dickinson a term of six years ; and

,[ ,I i:l

Justice George ROle Smith

'il :,1 . ! ,,



Chief Justice Carleton Harris

Justice Lacey a term of four years ; and thera1ter each term was for eight years. The Supreme Court of Arkansas he ld its first regular session in January 1837 in the Northeast Room of what is now the Old State Capitol building on Markham Street. Although there were many experien ced and able lawyers in Arkansas in the territoria l days. nevertheless the Arkansas Legislature saw fit to dec lare that no person cou ld practice law in the Supreme Court " until the person applying therefor shall been strict ly examined by the Co urt touching his qualifications . fitness . and ability to discharge the duties of his pro fession . an d be found we ll qualified the refor." Thus. much of the ti me o f the Supreme Court . for its fi rst year. was consumed in examining an d licensing attorneys.


I Justice Lyle Brown

Justice J. Fred Jones

Justice Frank Holt

The Arkansas Supreme Court continued to co nsist of three Judges selected by the Legislature as long as the Constitution of 1836 remained in force ; and under that Constitution . the fo llowing served as Judges for the periods shown : Chief Justice (POSition No.1) : Danie l Ringo 1836-1844 Thomas Johnson 1845-1852 George C . Watkins 1853-1854 E. H. English 1855-1861

Continued on nex t page



r.:J <l: 0..

A ssoci ate Justice (Position No. 2) : Towsend Dickinson 1836-1842 George W . Paschal 1843 William K. Sebastian 1843-1844 William S. Oldham 1845-1848 Chrislopher C . Scott 1848-1859 Henry M. Rector 1859-1860 Hubert F. Fairchild 1860-1861 Associate Justice (Position No. 3) : Thomas J . Lacey 1836-1845 Edward Cross 1845-1846 William Conway 1847-1848 David Walker 1849-1855 Thomas B . Handley 1856-1858 Felix I Matson 1859 Freeman W . Compton 1859-1861 In 1861 Arkansas exercised its claimed right of secession from the Union ; and adopted a Constitution, referred to as the " Secession Constitution ," under the terms of which the Supreme Court of Arkansas consisted of a Chief Justice and two Associate Justices, who were to be appoinled by the Governor, with the advice and consent of the Senate. During the time of the Secession Constitution the following served as Justices of the Arkansas Supreme Court: Chief Justice (Position No.1) : E. H. English 1861-1864 Associate Justice (Position No. 1): Hulbert F. Fairchild 1861-1864 A lbert Pike 1864 Assoc iate Justi ce (Position No. 3): Freeman W. Compton 1861-1864 T he fo rt unes of war went against the Peo ple of Arkansas, and in March 1864, at an e lection held by military au thorities, at w hich only Federal so ldiers encamped within the Stale and su ch citizens as had taken the oath of allegiance to the United States were perm itted to vote , the Constitution of 1864 was adopted . It is referred to as the "Military ConMAY, 1972

stitution "; and provided that the Justices of the Supreme Court should be elected " by the qualified voters of this State ." This language had the eflect of disqualifying all of Ihe Southerners w ho refused to take the oath of al legiance . Under the Constitution of 1864 the Supreme Court consisted of three Justices; and they are: Chief Justice (Position No. 1): T. D. W . Yon ley 1864-1866 David Walker 1866-1868 Associ ate Justice (Position No. 2) : C . A . Harper 1864-1866 Freeman W . Compton 1866-1868 Assoc iate Justice (Position No. 3) : John J . Clendennin 1866-1868 In 1868 there was adopted anolher constitution, now referred to as "the Carpet-bagger Constitution" ; and the military co mmander at Vicksburg announced its adoption . Under its terms the Supreme Court was increased to five members. The Chief Justice was to be appointed by the Governor, and the fou r Associate Justices were to be elected by t he "qualified electors." Since the State was under the Carpetbag rule, practically all of the longtime citizens of the State had been disfranchised , leaving the reins of the government in the hands of the carpetbaggers. Under this "Carpetbag Constitution " or "Reconstruction Constilution" of 1868, the following served for the years shown : Chief Justice (Position No. 1): W . W . Wilshire 1868-1871 John E. McClure 1871-1874 Associate Jus tice (Position No. 2): LaFayette Gregg 1868-1874 A ssociate Justice (Position No. 3) : Thomas M . Bowen 1868-1871 John E. Bennett 1871-1874 Assoc iate Justice (Position No. 4): William M . Harrison 1868-1872 M . L. Stephenson 1873-1874 A"oclate Justice (Position No. 5) : John E. McClure 1868-1871 E. J . Searle 1871-1874 In 1874 the Southern people of Arkansas regained control of their

State government ; and a new Constitution was adopted , known as "The Constitution of 1874." The Supreme Court was temporarily reduced from five to three; but with a provision in the Constitution that when the population of the State exceeded a million , then the Court would be enlarged to five members. This event occurred in 1889; and from then until 1926, the Supreme Court consisted of five members. In 1924 a Constitutional Amendment (No.9) was adopted , allowing the Legislature to increase the Supreme Court to seven members . This was done in 1925; and there are now seven Justices of the Supreme Court. The Constitution of 1874 continues to be the organic document of this State; and the following are the names and years of service of those who have been on the Arkansas Supreme Court from 1874 to 1972. Chief Justice (Position No. 1 ): English 1874-1884 S. R. Cockrill 1884-1893 H. G . Bunn 1893-1904 Joseph M . Hill 1904-1909 E. A . McCuliosh 1909-1927 J . C . Hart 1927-1933 C. E. Johnson 1933-1936 Griffin Smith 1937-1955 Lee Seamster 1955-1956 Carleton Harris 1957-to date . Associat e Justice (Posit ion No. 2) : David Walker 1874-1878 Jesse Turner 1878 John R. Eakin 1878-1885 B. B . Battle 1885-1910 W . F. Kirby 1910-1916 T . H. Humphreys 1916-1942 R. W . Robins 1943-1949 R. A . Leflar 1949-1950 Sam Robinson 1951-1966 Osro Cobb 1966 J . Fred Jones 1967 to date.

Continued on page 80 PAGE 79

Continued fro m page 79

A .. oclate Justice (Position No.3) William M . Harrison 1874-1882 W. W. Smith 1882-1888 Monto H. Sande Is 1889-1890 W. W. Mansfield 1891-1894 James E. Riddi ck 1894-1907 Jesse C . Hart 1907 -1927 E. L. McHaney 1927-1948 Charles C. Wine 1948 George Rose Smith 1949 to date Associate Justice (Position No. 4) (Position created In 1889) W. E. Hem ingway 1889-1893 Richard H. Powell 1893 Carroll D. Wood 1893-1929 Turner Butler 1929-1938 W. R. Donham 1938


J . S. Holt 1938-1961 Neill Bohlinger 1961 -1962 Frank Holt 1963-1966 Huge M. Bland 1966 Conley Byrd 1967 to date A ..oclate Justice (Position No. 5) (Position created In 1889) Simon P. Hughes 1889-1904 E. A. McCulloch 1904-1909 Samuel Frauenthal 1909-1912 Frank G. Smith 1912-1949 Edwin Dunaway 1949-1950 Paul Ward 1951-1968 Frank Holt 1969 to dale Associate Justice (Position No. 6) (position created In 1926) W. F. Kroby 1926-1934 Basil Baker 1934-1941

Karl Greenhaw 1941-1942 Ben Carter 1943 Robert C . Knox 1943-1944 Minor W. Millwee 1945-1958 William J . Smith 1958 Jim Johnson 1959-1966 Guy Amsler 1966 John A . Fogleman 1967 to date. Associate Justice (Position No. 7) (Posilion created In 1926) Tom M . Mehaffy 1927 -1942 Ed. F. McFaddin 1943-1966 Lyle Brown 1967 to date . Since the beginning of Statehood . 86 individuals have been regularly com missioned Justices of the Arkansas Supreme Court. in addition to numerous lawyers who have been commissioned "Specia l Justices" to sit in a particular case in which one or more of the Regular Justices were disqualified .


The Arkansas Supreme Court has appellate jurisdiction in all cases from the Circuit, Chancery and Probate Courts ; and appeal is a matter of rights to the litigant, and not dependent on the discretion of the Supreme Court . In addition, the Supreme Court has certain original jurisdiction , as prescribed by the Constitution . Since 1933. the Court had considered all cases en bane , that is, all seven Justices vote on each case , and a majority of four is required for a decision . Since 1927. the Court has always been current with its docket: that is , when the Court adjourns for Summer vacation e8ch year. all cases ready for submission have been submitted and decided. except in rare instances whenoneor two cases may be carried over for further study or consideration. The Arkansas Supreme Court has always had a good library ; but when the Court moved from the Old State House to the New Capitol Building in 1912 , Chief Justice Edgar A . McCulloch began the enlarging and improving of the Supreme Court library: so that we now have the session acts, statutes and reports of all the States and also the reported cases from the various English speaking countries , even some of the

old Engl ish Yearbooks. Very few States have as complete a law library and has Arkansas : and the use of the Library is free to the public . To tell of interest ing cases and Judges would extend this history far beyond the space allotted ; but one incident must be told . When the Union Army caplured Little Rock in Sept. 1863, the Confederates moved the seat of their State Government to Washington in Hempstead County, and the Arkansas Supreme Court decided cases there . But when the South surrendered , the government, set up under the Military Constitution of 1864, refused to recognize any of the decisions made by the Supreme Court in Hempstead County. Accordingly, those cases were restored to the docket and re-decided by the Court set up under the Military Constitution . But the opinions delivered by the Justices in Hempstead County were found to be correct and were adopted. as having been prepared by the named persons. Such opinions may be found in pages 371 to 477 of Volume 24 of the Arkansas Reports ; and all this is explained on the fly page to said Volume 24. From the beginn ing of Statehood in 1836 the sessions of the Court were regularly held in the court room in

what is now the Old State House on Markham Street . On September 23. 1912. the Supreme Court met for the first time in the present State Capitol Building in the elegant cou rt room on the second floor, which room is still preserved as a Supreme Court room. On May 26. 1958. the Supreme Court met for the first time in the present Justice Building on the southwest portion of the capitol grounds . Since January 5, 1953. the Justices of the Supreme Court have worn judicial robes when presIding over the Court. The Arkansas Supreme Court convenes on the first Monday in September and remains in session until Ihe first Monday in June following, and delivers opinions and takes submissions on each Monday morning from September to June. Its sessions are open to the public. We have a good Court . â&#x20AC;˘


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MAY. 1972


JURIS DICTUM b y C.R . Hu ie Executive Secretary, Jud ic ia l Departme nt

During the year 1971 the total work load continued at an almost record high . Total matters heard by the court were 691, excluding motions for exte n sion of time for filing briefs , as compared with a tota l of 716 in 1970. 375 appeals were heard as compared with 386 in 1970. A tota l of 420 opinions were written in 1971 as com-

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pared to a total of 427 handed down in 1970: majority opinions totaled 360. dissenting 38. concurring 14. dissen. ting in part - concurring in part 3, and supplemental or substitute opinions 5. Of the 360 majority opinions written . three were prepa r ed by special justices O liver M . C legg . Sen Core . and Robert L. Jones. each of whom wrote one opinion. Wi lliam S. Arnold . W . D. M urphy. William I. Prewett . and John Stroud. Jr. also served as special justices. each serving in one case . It should be noted that the number of written majority opinions per justice average 51 while the national median number of written opinions per justice in states without intermediate appellate courts. of which Arkansas presently is one. is 26.2 which ranks Arkansas among the highest in the nation in work load and written majority opinions per justice. Present indications are that the work load in 1972 will surpass that of 1971 . Administrative Responsibilities In addition to writing his share of the opinions. 46 majority . 6 dissenting , and I dissenting in part - concurring in part for a total of 53. Chief Justice Carleton Harris as administrative director of the courts performed many additional duties not the least of which consisted of assigning judges to those districts in which additional help was needed . One particularly noteworthy instance of the value of this procedur~ occurred when the newly elected judge of the Fourth Division , Sixth Judicial Circuit was disqualified in several hundred cases which created a most troublesome backlog in the other criminal divisions , A total of seven circuit Judges we re assigned into Pulaski County for one to two weeks each , and one retired judge was recalled to active duty . As a result the Prosecuting Attorney of the Sixth Circuit reported that the project had " a dramatic impact on the population in the county jai l" , Prior to the special aSSignments. the Prosecutor reported that seventy persons were awaiting trial in the county jail and the time they spent there averaged 3 1/2 months each . When the aSSignments were terminated . the jail had 34 defendants aw aiting trial and their time in jail averaged 1.3 months eac h.


Committee on Professional Conduct Attention should also be invited to the action of the court in amending its rules for the Committee on Professional Conduct resulting in a statement by former United States Supreme Court Justice Tom . C . C lark

in an address to the Arkansas Bar Association that Arkansas " has one of the finest structures in disciplinary procedures". Effective implementation of the committee '!l work was assured when the court on November 15. 1971 increased the license fee for attorneys for the purpose of providing funds to support the estab lishment of a full time office of Executive Secretary to the comm lttee. Two other important projects should be mentioned in connection with the Supreme Court's work in 1971. Committee on Criminal Procedure In a joint effort to recodify the state 's crimina l laws and to revise and modernize t he rules of cri minal procedure , the Attorney General and the Supreme Court have appointed committees to undertake this important task which is being funded by the Arkansas Crime and Law Enforcement Commission . The committee appointed by the Attorney General is engaged in redrafting the crimina l code and the committee appointed by the Supreme Court is engaged in preparing rules of crimina l procedure which was authorized by Act 470 of 1971 . The Supreme Court Comm ittee on Criminal Procedure is headed by Ed Bethune of Searcy. The work of the Committee on Model Jury Instru c tions has been temporarily suspended pending the completion of the work of the Committees on Crimina l Code and Procedure. Standards for Criminal Justice Two workshops for the study of the ABA Standards for Criminal Justice were sponsored by the Supreme Court in 1971 and the third and final workshop was held in January 1972 . These workshops. funded by the Arkansas Commission on Crime and Law Enforcement we re attended by the state's trial judges, prosecuting attorneys, Supreme Court Justices and attorneys interested in criminal law . The Arkansas Bar Association also sponsored the wo rksh ops and furnished the administrative assistance so necessary in an undertaking of this nature. Much praise is due Col. C.E. Ransi ck , Executive Director and his staff for their splendid and efficient

MAY. 1972

handling of these projects. Along with the Arkansas Supreme Court, the workshops were sponsored by the Arkansas Judicial Council. the Arkansas Pro secuting Attorneys Association . the American Bar Association and the Arkansas Commission on Crime and Law Enforcement. Invaluable assistance was rendered by the University of Arkansas Law School and its students in preparing compa rati ve ana lyses of present Arkansas Criminal Laws and

procedures and the proposed Standards . At an Appellate Judges ' Conference recently held in Baton Rouge , Louisiana. and attended by Chief Justice Carleton Harris, the president 01 the American Bar Association, Leon Jaworski , made particular reference to Arkansas as a leader in the field of study of the standards and former United States Supreme Court Justice Tom Clark praised Arkansas for its work. _

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The New Look In

Arkansas Justice I

Governor Dale Bumpers

Text of Address by Governor Dale Bumpers at the Joint Dinner Session o f the 19th Mid-Year Meeting of the Arkansas Bar Association and of th e Arkansas Judges' and Prosecuting Attorneys' Workshop ilion the Standards for Criminal Justice - January 20 , 21, 1972.

In America when we use the term 路路 Justice ". we usually mean "Cri minal Justice ." Our system o f cri minal justice used to deal with those crimes it can't prevent and those criminals it can not deter is neither a monolithic nor consistent system. It was not designed or completed in one piece at one time. Its philosophic co re is that a person may be punished by the state if. and only if. an impartial and deliberate process determines that he has violated a specific law . Around that core. la ye r upon layer of institutions and procedures . some carefully const ructed . some improvised. some inspired by principle and some by expediency. have accumu lated. Parts of the system magistrates courts. trial by jury. bail are very old. Other parts such as juvenile co urts . probation and parole. professional policeman are relatively new. The entire system represents an adaptation of the English common law to our peculia r and different structure of Government . which allows each local government to con struct institutions that fill its special needs . Every village. town. city.county. and state has its own criminal justice system. and there is a federal one as well. The y all operate similarly but no two of !nem operate precisely alike . Social Revolution In the last few yea rs. we have seen


the credibility of virtually all our institutions attacked. Much of this is the result of a social revolution beginning after World War II. In the forefront of this revolution are the youth. In an indepth examination of American crime, the uniform crime report reveals two striking facts most crimes are committed by young people under 25 and are committed in cities. In one year (1965) the index revealed that 75 per cent of the arrests for c r ime s were of youngsters under

25 . For a nation as rich as America , as abundant in resources, as rich in the democratic heritage. so dedicated to the worth of the individual. this is a terrible indictment of our society. Part of our social breakdown can be seen in the weakening of the traditional paternal authority over young people . The programs and activi ties of almost every kind of social institution with which young people co me in co ntact - schools. churches . social-service agencies. youth organizations - are predicated on the assumption that chi ldren acquire their fundamental attitudes toward life. their mo ral standards. in their homes . Dean Pou nd said it c learly in 1923. "Law does but a part of this whole task o f social con trol ; and the criminal law does but a part of that portion which belongs to the law . The household. through its internal discipline and through the pressure o f the

opinion of its members brought to bear on partieu lar members, has always been the agency of first importance ," The Factors Many factors are interrelated: I) poverty and racia l discrimination; 2) bad housing and commerc ial exploitation ; 3) the enormous gap bet ween American ideals and Ame ri can achievements . These are the things that have such a dramatic import on child ren . The criminal justice system has great potential for dealing with individual instances of c rime but it was not designed nor has it had any effect on eliminating the conditions in which most crime breeds . We cannot look at one single part of our problem and salvage our legal system . The attack must be broad-based . In our lifet ime we have seen other nations suspend all rights for periods long enough to eradicate a substantial portion of the dissenters Hitler's Germany Hungary Castro 's Cuba - Indonesia - Vietnam - many cou ntries in the near east and more recently in east Pakistan . In every instance. their institutions were fragile. either unable to cope with the whims of political ca price . or the rampages of its people . 95 per cent of our people believe in the right th ings. The y may express


prejudices instead of opinions and otherwise poorly articulate their feeling . but when led by a man . a group of men or an institution that has earned and merited their con fiden ce - they 'lI follow . What No .. So. how will they be guided tomorrow and the day after? If we continue clinging to false value bad traditions - sloven lethargy. as I believe we have been doing , the result will be a continuing erosion of public confidence. and a -vyeakening of our institutions . When I recently requested the Legislative Council to make a study of " no fault " to determine whe ther or not some form of " no fault " would be feas ible - several of you visited my office. Some expressed opposition to such a plan as Massachusetts had. and some expressed opposition to any form of " no fault ." I am reserving judgment on the question on whether it will be good for us until studies have been made. but the really pertinent paint is the deluge of mail and phone calls from citizens who had no previous concern about " no fault " but felt that if the lawyers were vs it. it must be a pretty good thing for the people. Absolute Obligation If our institutions are to survive, then self must be submerged in the pursuit of noble ideals . You as well as I. must be willing to spend yourself without measure for those reforms which automatically bring us closer to pure justice . If I didn 't believe our obligation was absolute. I would not have sought this position . Why. why shou ld I. seated comfortably until two years ago. where you sit, subject myself and my family to the intense pressu res and at times outright harrassment which accompanies this office . The prob lems are no less yours than mine . The stakes are as high for you as they are for me . I don 't believe, and you don 't believe that we have been the people we set out to be and we won 't be until . as Walter Li ppman said. - - that leader arises who can capture the imagination of people who can strike a responsive chord to which the people will respond - it is no t an irremediable situation. The model jury instructions for criminal cases is a worthy and ambitious undertaking . and will hopefully lead to more rational verdicts . However. po lls still show that among jurors questioned . an overwhelming majority did not understand the instructions. Obviously then , verdicts


have not been rendered rightfully or wrongly because of the correctness of instructions . those delicate little pieces of verbiage on which we always hang our hopes for reversal. The very ability to deliver instructions in an articulate meaningful manner varies with each Judge. St andards Workshop This association 's workshop on standards relating to speedy trials , guilty pleas . pretrial release . our passing Act 470 of 1971 making the Supreme Court the repository for rule making in c riminal cases. the Attorney General's efforts to recodify the substantive criminal laws of this state. all indicate a new awareness on the part of bench and bar . Your other porgressive plans are encouraging . Some of the basic human problems will apparently always remain - such as the guilty gOing free because of an inept prosecutor being torpedoed by a sharp defense counsel. or the innocent being convicted for the very opposite reason - and the disparate sentences from juries to juries. (Inciden tally . I granted executive cle mency to a man because his acco mplice, tried under the fede ral system had long since been freed.)

were such children whose personality and behaviorial problems were ignored or unattended. By the end of this year we hope to have 80 communities offering juvenile services to these children in the hope that some behaviorial modification can be achieved . When you know that 90 per cent of our inmate population never knew a home comparable to the poorest home represented here tonight - that the average inmate educational attainment is 6th grade - that 25 per cent of them have no family - t hat 97 per cent o f them wi ll wa lk out someday (with 525 .00 in his pocket . etc.) then you can see that juvenile services prison re form and I might add jail reform - share the spotlight with reforms in standards of criminal procedures. Who Now It is not all my problem - it is not all your problem it is all our problem . No man is an island - when one man suffers - we all suffer . â&#x20AC;˘

The Cau ses of Crime While you are streamlining your systems and institu tions, I have been directing my attention to one of the causes of crime. Every second . third and fourth grade teacher can. with a reasonable degree of certainty. tell you which children in her c lassroom will commit an antisocial act at some foreseeable time . About 90 per cent of our inmates

Governor Bumpers presenting 1972 Law Day Proclamation to Association President Young and Law Day Committee Chairman Jay W. Dickey, Jr. PA GE 85

Laws are a dead letter without cou rt s to expound and define their true meaning and operation . - Alexander Hamilton

Justice Conley Byrd

Justice John Fogleman Justice George Rose Smith

Justice J . Fred Jones Chief Justice Carleton Harris

Justice Frank Holt

Justice Lyle Brown

And So -- On This Law Day, USA -- It Is Particularly Fitting That We Honor These Esteemed Members __ .





Arkansas Lawyer

May 1, 1972

TO ALL CONCERNED : The Congress has by Resolution set aside May 1st as Law Day USA- - - " a special day of celebration by the American people in appreciation of their liberties and the reaffirmation of their loyalty to the United States of America ; of their rededication to the ideals of equality and justice under law in their relations with each other as well as with other nations ; and for the cu lt ivation of that respect for law that is so vital to the democratic way of life",

The dedication of this issue to the Arkansas Supreme Court and our Justices is - to our thinking - a particularly effective means for observing the ideals of Law Day ,USA .

- The Arkansas Lawyer

Carleton Harris realized a lifelong ambition when he was elected to the position of Chief Justice of the Arkansas Supreme Court. While a student in Junior High Scool ,and only 13 years of age, he decided that he desired a career in law, and every elective course in high school or college was selected with that in mind . He obtained his LLB degree in May, 1932 from Cumberland University, then a one year law school located at Lebanon , Tennessee. returned home . and within a few days announced his candidacy for the office of Jefferson County Representative in the General Assembly . Harris took time off during the summer campaign to pass the bar examination , and he was admitted to practice in July of that year. In November, he was elected to the office sought, and at 22 years of age, was one of the youngest to be elected to that body . before or since . He served three terms as Representative , and in the 1937 session, was selected as Chairman of the House Judiciary Committee, composed of all the lawyers in the Ho use . He served as Assistant Prosecuting Attorney for Jefferson County, a part of the Eleventh Judicial District, and engaged in civil practi ce, until entering the United States Marine Corps in March , 1944. Upon returning home after the war, he was, in 1946, elected Prosecuting Attorney for the Eleventh Judici al District, and after one term , made a successful race for Chancery and Probate Judge of the Fourth Chancery District. He served in that capacity for 8 years before being elected to his present position of Chief Justice in November, 1956. He has often commented that every office held better qualified him for his ultimate goalthe Supreme Court.


Chief Justice Carleton Harris

MAY. 1972

Harris is presently in his 16th year as Chief Justice of Arkansas, and during this period of time. has appeared on legal programs and seminars in several states; some of his opinions have received wide recognition and have been


published in American Law Reports, being used as the principal case in various Annotations. Recognition of his abili ty was demonst rated in Aug ust. 1966, when Chief Justice Harris was elected National Chairman of the Conference of Chief Justices, composed of the Chief Justices o f the 50 states. and Puerto Rico . Prior to that time , he had served seve ral years as a member of the Executive Council. as Vice-Chai rman . and had appeared on the program as a speaker a number of times. The Chief Justice has long been active in civi c, fraternal. and religious affairs. He is a Past Presi dent of th e Pine Bluff Lion 's Club. a former member of the Board o f Trustees o f Ouach ita Baptist University and Arkansas Bapti st Hospital. and pre sen tl y serves as a .member of the Exec utive Committee of the Sou thern B aptist Convention . He h as twice

Justice John Fogleman

John A. Fogleman , the son of John Franklin and Julia McAdams Fogleman , was born in Marion. being at least a fourth generation Arkansan . His forebears were pioneer citizens o f Arkansas whose names appear as patent owners in many of the earliest land titles of Crittenden and southern Mississippi counties. Old pioneer stories say that Abe Lincoln stopped over at Fogleman 's wood yard on the banks of the Mississippi when mak :ng a barge float trip to New Orleans. Fogleman 's ancestors lived near the river at a point adjacent to the spot where the ill-fated Sultana exploded and foundered at the close of the War Between the States and helped rescue survivors . John Fogleman was educated in the Marion Public Schools. stu died at the University of Arkansas and obtained his law degree from the Unive rsity of Memphis Law Schoo l, now Memphis State University. Since his admission to the bar in 1934, his life PAGE 88

served as Grand Orator o f the Grand Lodge of Arkansas , F. & A .M ., and is a Past Potentate of Sah ara Shrine Templ e, and Past President of t h e Cen tral States Shrine Association, co mposed o f Shriners from seven st ates. He has been parti c ularl y interested in youth o rg anizations, having prepared the original charter of the Pine Bluff Boy's Club. and having served on the first Board . He is a former member o f the National Committee on Education o f the Am erican Leg ion . and is presently a member o f the National Counci l, Boy Scouts of Ameri ca . Harris is married to his boyhood sweetheart . th e former Marjorie Wilson o f Pin e Bluff, and they are the parents of one son , Eugene (Kayo) Harris, who practices law in Pin e Bluff. The "apple of their eye " is Bru ce Carleton , a threeye ar o ld grandson .

can be well divided into three c lassifi cations: that of good citizen , leader in his profession and Judge. Although his prac tice was varied and productive. John Fogleman found time to do much civic work and be classed as a good citizen . For thirty years he was a member of the official board of the Marion Methodist Church , being Chairman for three years ; he taught the Men 's Class and took an active interest in religious endeavors. He was Master of his Lodge. He has been a Rotarian for many years and is a past president of his Club . He likewise served his country in World War II. having been induc ted as a private and discharged as a First Lieutenant in the Judge Advocate General's Department. In 1961 he was named Man of the Year in West Memphis where his law office was located . In his professional life. John Fogleman h as been a con tinuing leader. While working for his law degree he served as Deputy Circuit Clerk of Crittenden County and gained a keen insight as to the workings of the courts. He likew ise found time to serve as Chairman of the Democratic Central Committee and Secretary of the Board o f Election Commissioners. During this time. he served eleven years as Deputy Prosecu ting Attorney. being noted for his fairness and his desire to protect the innocent as well as zealously seeking proper enforcement o f the law. He served as a member of the State Board of Law Examiners for three years. was an active member of the Crit~enden County and Northeast Arkansas Bar Associations , being ca lled upon to serve as President of each . He served the Arkansas Bar Association on the Executive Committee and was elected its President. He was Chairman of the Arkansas Judiciary Commission for two years ; in 1961 was e lected a Fellow of the American College of Tri a l Lawyers . From this unselfish and active professional background . John A . Fogleman was elected to the State Supreme Court in 1966 and took office on January 1. 1967. Other than the legal duties and activities as a member o f that Court . he has been ca lled upon and served ab ly on the Arkansas Con stitutional Revisi on Study Commission in 1968. He is presently a member of the National Committee for Preparation of a Model Set of Rules for Admission to the Bar and is likewise a current member of the Criminal Code Revision Committee. In 1968 he was c hosen to serve on the Freedom Foundation Jury for the selection of award winners. Judge Fogleman was married to Annis Appleby of Fayetteville in 1933 and they have three child ren : John A . Fogleman . Jr .. Mrs . Henry M . (Dell) Rect or. both o f Little Rock. and Mrs. Charles L. (Mary) Williams. Jr. of Marion . He boasts of seven grandchildren . THE ARKAN SAS LAWY ER

A student of the history of the Arkansas Supreme Court might say with some truth that it seems to be almost a tradition to have a justice named Smith as a member o f that tribunal. Justice George Rose Smith , now the senior mem· ber o f the court is one of five Smiths (all unrelated to one another) who h~ve served on the court. Since October 30. 1912. there has continuously been at least one Smith on the court at all times, and occasionally two and even three at once. At the expiration of Judge Smith 's present term of of· fice , a Smith will have been on the court for more th an half the time since Arkansa s became a state in 1836. Judge W . W .Smith . who had practiced law at Clarendon and Helena, was a member of the court from 1882 until his death in 1888. Judge Frank G. Smith . whom lawyers would probably choose as our greatest judge, served for 37 years, from 1912 unti l 1949. Chief Justice Griffin Smith was first elected in 1936 and continued in office until his death in 1955. George Rose Smith has been a member of the court since January 1. 1949. William J. Smith served by ap· pointment for a few weeks in 1958. A native of little Rock , as was his mother. George Rose Smith was born in 1911 . the son of Rev. and Mrs. Hay Wat· son Smith. After attending Washington & Lee University for three years he graduated with honors from the University of Arkansas Law School in 1933. Except for some four years in the mi litary service Smith practiced law with the firm of Rose . Hemingway. Cantrell & Loughborough from 1933 un· til he became a justice in 1949. He and the former Peg Newton were married in 1938. They have one daughter. Laurinda. Judge Smith's judicial opinions have been c haracterized from the beginn ing by their co mparat ive brevity, averaging less than three printed pages a piece. He has written two small books on Arkansas law and a number of law review articles. Two of his best known and most widely reprihted ~rticles have to do withthe preparation of judicial opinions. The Current Opinions of the Supreme Court of ArkansasA Study in Craftsmanship . 1 Ark . l. Rev . 89 (1947); A Primer of Opinion Writing , For Four New Judges, 21 Ark . L. Rev. 197 (1967). The judge himself says . however. that he is likely to be remembered best as the author of the opinion in

Justice Lyl e Brown

MAY. 1972

Justice George Rose Smith Poisson v. d 'Avril , which may be found in 22 Arkansas Law Review at page 741 (1969) . That was an April Fool opinion which was published in the official advance sheets and caused much consternation among lawyers. when it appeared at first blush that the court was solemnly declaring that the Arkansas legislature had repealed every statute on the books prior to 1945. From the tone of the opinion one gets the distinct impression that Judge Smith may have thought that such a sweeping legislative measure might not rea ll y have been altogether unwise . It's impossible to be certain about this , however, for the judge promptly takes the Fifth Amendment whenever the subject is mentioned . How about that?

Since his admission to the bar in 1935 Judge Brown has served in all three branches of our government. He has been a prosecuting attorney. served in the General Assem· bly. a member of the State Board of Education . and is now rounding out his twentieth year on the bench . as a Circuit Judge and Supreme Court Judge . He was one of the early presidents of the Prosecuting Attorneys' Association and for two years he served as president of the State Judicial Council. Judge Brown says there are two high paints in his caree r. First . he lists his service on the co mmittee which produced AMI. Second. he had the honor of bein g elected to the Supreme Court for a full eight-year term without op. position. that election starting his first term on the court. Judge Brown calls Hope his home . Mrs . Brown and he reside temporarily at Rivercliff Apartments in Little Ro ck. They have two daughters. Mrs . Jim Lockhart of Hope.and Mrs . Edward Riffe l of Little Rock . Judge Brown says his hobby is pampering his three grandchildren . A flower fan· cier , the judge misses the greenhouse he had in his back yard at Ho pe.


Justice Frank Holt

Frank Holt was one of e leven children born to Bud and Adeline Moore Holt of Harrison. Arkansas . His parents we re members of pioneer families of that area. He was graduated from Harrison High School with honors and as president of the student body . A popular student, he was president o f his sophomore . junior and senior c lass, active in athletics and editor of the school paper. After graduation he attended the University of Arkansas where he was an honor roll student ; president of Pi Kappa Alpha ; vice president of this senior class and a member of Blue Key . Following graduation from the University School of Law . he studied international law in Switzerland on a scholarship and returned to the private practice of law in Little Rock. In 1942 he

Conley Byrd was born in Poughkeepsie, Arkansas. on January 14. 1925. Hi s parents . Lee and Artie Byrd . were hill farmers. After graduating from high school in Poughkeepsie in 1943, Byrd served in the U.S. Navy from May 20, 1943, to November 24, 1945. He attended Arkansas State College at Jonesboro. State Teachers College at Conway. and graduated from the University of Arkansas in 1950 with an L.L.B . He practiced law at Evening Shade. Pine Bluff and finall y. Little Rock before being elected to the Supreme Court in 1966. Earlier. he worked one year for Babcock & Wilcox Co . and 10 months for the State Revenue Department. Then he served six years as Arkansas Supreme Court Reporter and two years as cle rk to Gordon Young. U.S. District Judge. In 1949 he married Frances Hardin of Redfield . where the Byrds now live . They have four chi ldren : Con ley Jr .. 21. married to Gale Kelly of Whitehall. who are students at the University of Arkansas ; Susan . 19. married to Leon Ho lmes of Hazen . students at Arkansas State University; J . Paul. 15; and Margaret. age 3. PAGE 90

entered the army where he served in the Military Intelligence Branch . He was married that same year to M ary Reid Phillips of Litt le Ro ck. After his discharge from service he returned to his law practice. In 1947 Judge Holt began his political career as Deputy Prosecutor for the Sixth Judicial District. In 1954 he was elected Prosecuting Attorney. serving three terms ; served as Attorney General from 1960 to 1962 ; was elected Associate Justice of the Arkansas Supreme Court where he served until 1966 when he resigned to run for Governor. After suffering hiS first defeat for an elective office. Holt again ran for a position on the Supreme Court in 1968 and was elected for an 8-year term. Judge Holt is a member of the Pulaski , Arkansas . and American Bar Associations ; licensed to practice before the U.S . Supreme Court; Past President of the Arkansas Prose cuting Attorneys Association ; has served as Chairman . Arkansas Committee on Special Services for Juveniles ; Director. National Association of Prosecut ing Attorneys ; delegate to the 1960 White House Conference on Children and Youth ; and was made an honorary member of Phi Alpha Delta, national legal frate rnity in 1964. Throughout his career Judge Jolt has been active in numerous community affai rs and is a member of the Baptist Church . He has served as Pulaski County Red Cross Chairman ; Advanced Gifts Chairman , Pulaski County March of Dimes; Co-Chairman. State Multiple Sc lerosis Campaign ; active member of the American Legion. serving four times as Chairman . Committee on Americanism for the Arkansas Department of the American Legion , and recipient of the Legion 's Americanism Award for 1971 ; Member of the National Membership and Post Activities Committee. Ameri ca n Legion; Radio Free Europe State Fund Chairman ; and served as a member of Freedom 's Foundation Awards Jury, 1970. The Holts have two daughters, Lyda and Me lissa . Lyda graduated from SMU and is presently attending the University of Arkansas Graduate School at Fayetteville. Me lissa is attending Agnes Scott College where she is president of the Junior Class. Both girls have been quite active in school. youth. and church activities. as their father before them.

Justice Conley Byrd



Justice J. Fred Jones When Judge Jones assumed his duties on the Supreme Cou rt in 1967 he was no stranger to his colleagues on the bench . having served in the state legislature with three of them some thirty years previously . Judge Jones' father , Ira Jones. was reared in the Choctaw Nation of the Oklahoma Terr itory and when the Kansas City Southern Railroad was being built through western Arkansas . he moved to Mena in Polk County where he married Ella Tyler. They later moved to Montgomery County and homesteaded 160 acres of government land in the Ouachita Mountains west of Mount Ida where Judge Jones was born in 1907. and where he still likes to hunt squirrels and fish with his father who is now 92 years of age. Judge Jones attended rural schools in Montgomery County and graduated from the Mounl Ida High School (then Mount Ida Baptist Academy) in 1929. He attended Arkansas Polytechnic College in Russellville for two years and graduated from the University of Arkansas Law School at Fayetteville in 1937. Judge Jones says Ihat it did not actually take him from 1929 to 1937 to obtain his law degree.

but that during his college career he would work at sawmill and bridge construction work one year and attend college the next. After his freshman year in law school. Judge Jones ran for the office of state representative from Montgomery County and was elected . He returned to law school in the fall of 1934 as the only student in law school who had been elected to the state legislature. He was re-elected to the House of Representatives in 1938. thus becoming the first person to be elected to that office from Montgomery County for three consecutive terms. Judge Jones was admitted to the state bar in 1935 after passing the state bar examination and in 1936 he married Lorea Hoback of Green Forest in Carro ll County and they established their home in Mount Ida where Judge Jones began the practice of law . He says that money was so scarce and livestock was so plentiful and cheap he soon found that he was practicing himself out of the law and into the livestock business . so he purchased a farm near Mount Ida. Judge Jones was appOinted assistant prosecuting attorney for Montgomery County in 1937 and continued to practice law and farm until the beginning of World War Two . In anticipation of being called into the military service . he sold his farm and moved to Little Rock in 1942 where he handled workmen 'S compensation claims for the Aetna Casualty & Surety Company for a short time until he was rejected for military service. He then opened his law office in Little Rock where he continued in the general practice of law until his election to the Supreme Court in 1966. In 1951 he was appOinted to the newly created Second Division (traffic division) of the Little Rock Municipal Court and served in that pOSition until it was filled by general election . Judge and Mrs. Jones live at 1208 Silverwood Trail in the Shady Valley Addition to North Littte Rock . where Mrs. Jones has continued her own profession as home economics teacher at the Ridge Road Jr. High School. Judge Jones is a Methodist and a 32 degree Mason . Prior to his election to the Supreme Court . he was active in the international "World Peace Through Law" organization . Judge and Mrs. Jones have three children . Two sons and one daughter. Their oldest son , James Voland . is 33 years of age and married to the former Penny Hicks of Russellville. They have two children, a son and a daughter who presently live in Honolulu where Jim is stationed as a Lieutenant in the United States Navy. Their daughter Vanda is 28 years 01 age and is married to George Crocker of Russellville. They have two daughters and presently reside in Germany where George is stationed as a Captain in the United States Army . The youngest son , Lyn , lives at home and stu dies at the University of Arkansas at Little Rock .




The Arkansas Supreme Court's Pillars . ... . . .

C. R. Huie Executive Secretary

Rutn Lindsey Librarian


Jimmy H. Hawkins Court Clerk

Ruth Vines Court Reporter


Supreme Court Staff Front Row , L to R: Mrs. Bettie Stobaugh, Mrs . Ellen Bearden , Jo Linker , Mrs. Dona Williams . Second Row : William Somers, Paul Benham, James Hamilton, William Woodyard. Back Row : Mrs. Norma Benjamin, Cark Baker, Stuart Hankins. Supreme Court Law Clerks Front Row , L to R: Paul Benham , Jo linker, James Hamilton . Back Row , L to R: Stuart Hankins , William Woodyard .

JUDICIAL DEPARTMENT STAFF Front Row , L to R: Paul Riviere , Mrs. Sarah Lodge, Robin Horne, Jack Jarrett. Back Row , L to R: Phillip Oozier, Dale Adams .

Supreme Court Secretaries L to R: Mrs. Norma Benjamin, Mrs. Ellen Bearden, Mrs. Dona Williams, Mrs. Bettie Stobaugh.






about the . .. ARKANSAS BAR

" The new Bar Center Becomes a Reality " Bar Foundation Luncheon - Friday


~~ fou~ LADIES!








Educational Test ing Service are indicative of the pi c ture . They report that at the end of the first week in February of last year. 33.320 LSDAS candidates had reg istered . The comparable figure for the same time this year is 75.829 registrants . There are two visit ing lecturers at the Little Rock Division this spring .

by Professor Robert Brockmann

Dean Ralph C . Barnhart has announced his retirement as Dean and his return to teaching this coming September. Accordingly . University of Arkansas President David W . Mullins has appointed the following to serve as an Advisory Committee to assist in the selection of a Dean of the School of Law : Dr. Palmer C . Pilcher. V.P . for Academic Affairs . Chairman; Charles N. Carnes. Professor of Law . Fayetteville ; Albert M . Witte. Professor of Law . Fayetteville ; Arthur G. Murphey. Jr .. Professor of Law . Little Rock Division ; Milton Copeland . Associate Professor of Law . Fayetteville ; Robert G . Brockmann . Assistant Pro fessor of Law . Fayetteville ; Hershel Friday . Practicing Attorney and Chairman . Law School Committee. Arkansas Bar Association. Little Rock ; C. Randolph Warner. Jr .. Practicing Attorney. Fort

Smith ; Winston C . Beard . Professor and Chairman. Department of Bus. Adm .. UALR ; Thomas J. Bellows. Associate Professor and Chairman . Department of Politi cal Science. Fayetteville ; Warren E. Banks. Associate Profess or of Law and Professor of General Business and Finance. Fayetteville ; Jewell Brown . Student. School of Law . Fayetteville ; Darwin Davidson . President. Student Bar Association . School of Law . Fayetteville ; John Thom as Tuohey. Student. Little Ro ck Division . School of Law . Anyone having suggestions as to possible candidates for the position should contact one of the committee members . As many are aware the admission crush at all accredited law schools including the University of Arkansas is unbelievable . Recent statistics from

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Robert Chowning . a practicing attorney in Little Rock who is teaching contracts and Byron Eiseman . also a practicing attorney in Little Rock who is teaching Corporations . Darwin Davidson . President of the Student Bar Association has been appointed to the Arkansas Bar Association 's Law School Committee as the non-voting student member by Presi dent Paul B. Young . By the time this is printed the Student Bar Association will have ce lebrated Law Day here at the Fayetteville Division of the Law School The celebration was held April 20-22 due to final examinations being held May 8-17 . On Thursday April 20 the Phi Alpha Delta mock trial was held followed by the Law Review banquet in the evening . On Friday evening the annual dinner was held at the Fayet· teville Country Club . On Saturday morning Phi Alpha Delta had a brunch and Saturday evening the " Barristers 's 8all " was held at the Rink . Through the cooperation and assistance of Don Schnipper. Chairman of the Law Student liason Committee of the Arkansas Bar. the Student Bar Association recently presented a program concerning the work of both the American Bar Association and the Arkansas Bar Association . Speaking in behalf of the respective organizations were Mr . Herschel Frid ay of Little Rock and Mr. Paul B. Young of Pine Bluff. The Editorial Board of the Arkan· sas Law Review for the spring semester consists of the following : Editor in Chief - Dick Johnston ; Managing Editor. Zachary D. Wilson ; Comments Editor - Frank Morledge; Articles Editor - Wade Berryhill ; C itations Editor - Jerry Post ; Business Manager- Bob Hard in and Associate Editors . Byron Freeland . Fletcher Lewis. Tom Goodman and Ty May. O . M . Young of Little Rock. the oldest practicing lawyer in the State of Arkansas . soon to complete 62 years as such presented a stein to the Rubinson Chapter of Phi Alpha Delta Law Fraternity at the Little Rock Division , at the chapter 's meeting held on March 24 . The stein had originally been presented to Mr. Young by the fraternity when he graduated from law school in 1910 . • THE ARKANSAS LAWYER

The great tides and currents whicn engulf the rest of men , do not turn aside in their course , and pass the judges by. - Cardozo, "Nature of the Judicial Process"


We know that his is no easy task-We are pleased to let him know that we know--

ThQ Bank That DOQS MorQ For You.

WORTHEN BANK &TRUST COMPANY Member FDI C and Fede ral Reserve Co .

MAY, 1972

PAG E 97


~t.e ~"'i ted State~- -


(Editor 's note : The Arkansas Judges' and Prosecuting Atto r neys ' Workshop III on the Standards for Criminal Justice w as held on January 20, 21 , 1972. Workshop III completed the Arkansas serie s, and the work products of the three workshops are now in the hand s o f t he Ark ansa s C ri m in al Code Rev ision Commission. The National Judicial Conference on th e St andards was held three weeks later, February 11 · 14, 1972 at th e Louisiana Stat e Un ive rs ity . Baton Rouge. More than 300 appellate judges , including the Chief Justice s of the 50 States , participated in the conference . Arkansas was held up as the leader in this general effort ; and all concerned can well be proud . Chief Justice Carleton Harris of the Arkansas Suprem e Court attended the Na tional Judicial Con · ference and this is hi s report.)

Held at Baton Rouge, Louisiana February 10-15 Four full days were devoted to sessions of the Conference . Friday. February 11 . through Monday . February 14. and all sessions were in· teresting and informative. Interest in the Conference was evidenced by the fact that the host committee was not able to house all of those in attendance (as per original plan) at the Prince Murat . and the overflow was housed at the Howard Johnson Motel. Seventeen standards were discussed by prominent jurists. lawyers . and law professors at plenary sessions. and in addition . attendees were divided into a number of workshop groups. these groups ho lding sessions during two afternoon sessions . It was obvious from the questions asked and com· ments made by some of those in at· tendance . that a number of the states had done nothing to promote the standards. Others had held one workshop on the standards (similar to our workshops at Hot Springs) and a few had held two workshop sessions. but


with the exception of the pilot states (Texas. Florida. and Arizona) Arkansas is the only state that has held three workshop sessions and com pleted its study of these standards for the administration of criminal justice . I. of course . was particularly proud when the President of the American Bar Association . Leon Jarworski . made particular mention of Arkansas as a leader in the field . and former United States Supreme Court Justice Tom Clark praised Arkansas several times during his remarks . There was probably more en thusiasm displayed at this conference than any that I have attended . and there is no doubt in my mind but that those in attendance returned home with the intention of conducting workshops in their respective states. Several made inquiry of me with regard to steps to be taken in setting up a workshop . and Attorney Ed Bethune of Searcy handed out several programs of the first standards workshop held in Arkansas . Mr . Bethune and Professo r Rafael Guzman . a law professor at the University

Chi ef Just ice Carl et on Harr is of Arkansas Law Sc hool. served as clerks for two of the workshop groups . I cons idered the Conferen c e a com· plete success and a tremendous aid in determining whether the standards should be ad o pted in a particular state.


the light of the world . .... A Judge must be clear from the spirit of party , independent o f all favor, well inc lined to the popular institutions of his country; firm in applying the rule, merciful in making the exception; patient, guarded in his speech , gentle and courteous to a ll. Add his learning , his labour, his experience , his probity, his practiced and acute faculties , and th is man is the light of the world , who adorns human life and gives security to that life which he adorns. - Syd ney Smith, 1824




an honor to honor his honor - -

EI MAY, 1972

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Does Law Progress Reasonably? -Mary Lee Pogue Knobel High School

The real test of new thinking : In the street or in the vote? Protest has brought a fl ew dimension to change in our coun¡ try. But protes t alone accomplishes little. Fo\ permanent change, new thir.king still needs new laws. The final test of thinking and new ideas isn' t in how people rea ct to a d emonstration but how they react to a ballot. The final tes t of change res ts in th e vo te. Votes elect legislators wh o make laws. Support th ose wh o favor your viewpoint, yo ur thinking. If elected , they'll pass laws that give yo u the changes you' re looking for. Without law, th ere can be no meaningful chan ge. Cha nnel ch ange throu g h

law a nd re a son .

(Editor's Comment: - The Arkansas Association of Women Lawyers sp o nso red a 1971 Law Day Essay Contest for high sc hool students on the general theme of "C hannel Change Through Law and Reason" . Mrs . Elizabeth Brooks was the Law Day Committee Chairman. Th e winner was Miss Pogue; June Mann o f Lee High Schoo l, Marianna, was second; Marce lla Simon of St. Joseph High Schoo l, Conway, was th ird. The presentation of the awa rds was made at th e Association's Luncheon on May 1,1971. Associate Justice Frank Holt of the Arkansas Supreme Co urt was the luncheon speaker. The Arkansas Lawyer congratu lates all concerned and is pleased to print herewith the winning essay.) L aws have developed gradually from the time of Hammurabi . a king who ruled in Babylonia more than 3.600 years ago. In order for the people of the wor ld to have justice. laws must change from time to time. What was considered a good law a hundred. or even fifty years ago. might not even seem reasonable today . We are fortunate to live in a country wi th a democratic form of government. In a democracy the people are able to determine the rules under w h ich they live. Even though the legis lators lay down the laws. they are often changed to suit the needs and desires of the people . But sometimes the law fails to keep up with the changing society. The impact of social change on institutions is a further factor in the crime situation . Traditional controls do not work effectively when old insti tu tions fail to meet new situations. Th e mores are questioned. New methods of getting something for nothing have been developed with no available way to restrain them . Modern criminal methods have evaded outworn police techniques as effectively as nuclear warfare has outmoded o lder methods of wartime defense. For example, a major crime problem has arisen in China as a result of the conflict between new laws and old mores. Some laws remain technically in force, although no one bothers to conform to them . Laws should not be ignored . If a law is out of date it

PAGE 100

should be changed or struck from the book. Law enforcement is one of the most im portan t ways a government has of protecting its :::i t izens . It usually refers to the action of police and the courts in apprehending and rehabilitating criminals. But law enforcement also includes the administration of justice in all law cases by the courts . Law enforcement is necessary to maintain order in a community . state. o r country . In a dictatorship. the people have no peaceful way to get laws changed . Th e dictator can use decrees. o r have laws approved by a legislative body that does what he wants . If he wants his decree to look as though it has popular support , he may have a socalled " election " in which the people usually do not have secret ballots, and the result is always the way the dictator wanted it. The only way people can change laws under a dictatorship is by revolution. Americans should be thankful for the privi lege of being able to determine their laws . They shou ld take advantage of this privilege. by being interested in what kind of laws our country has and by caring enough to try to get things done peacefully . Some old laws . such as our constitution . do not need to be revised because they still apply to today. However, some laws need to be changed along with our fast changing world . American people can change these laws if they rea ll y care enough to try to accompl ish something and not just sit back and criticize .â&#x20AC;˘ T HE ARKANSAS LAWY ER

The New Arkansas Bar Association Constitution:

An Overview - Jim Spears The Arkansas Bar Association began operations under a new constitution the first of this year, beginning with the elective process. The full constitution will become operative at the beginning of the annual meeting , and it would be a safe assumption that most members of the association have not taken time to become familiar with its provision . It is the purpose of this article to point out some of the changes that have been made in the structure and procedure of our association . We have a Bar Association in order to promote justice, our profession, and to improve the quality of legal services available to the public . These ideals are constant , and our constitution is the method by which we attempt to meet these goals. The new constitution was adopted because it was felt that it was a better method than had been used in the past to obtain these desired ends. M embership The Arkansas Bar Association is a front-runner and has been used as a model in other states in allowing law student membership. A law student having completed twenty-four hours of work and in good standing in any accredited law school in the state . or a state resident attending School out of state may become a member of the Arkansas Bar Association . A law student member has all rights and privileges of full membership with the exception of the right to vote and hold elective office. Regular members may be anyone who is licensed to practice before the Supreme Court of Arkansas and who is e lected to membership in the association. The dues under the new by-laws are;

MA Y, 1972

may become a senior member and be exempt from payment of dues.

(Editor's Note: - Jim Spears is a law student at the University of Arkansas school of law at Fayetteville. He is a Vice-President of the Student Bar Association and Co-Chairman of the Law Student Division of the Arkansas Bar Association. His article is a "must " on the reading list of all lawyers, not only to familiarize them with the new democratization processes and procedures, but a/so to point up the rewarding relationship between the law student and the Arkansas Bar Association.)

$40 .00 - if admitted to the Bar for more than five years 20.00 - if admitted to the Bar five years or less 20 .00 - if on active military duty or a non-resident 5.00 - if a law student member Any member who reaches age seventy-five and who has been a member of the association for ten continuous years immediately preceeding his seventy-fifth birthday

Officers The officers of the association are the President, President-elect, and the Secretary-Treasurer. All will serve a one year term beginning at the conclusion of the annual meeting at which they were elected . The duties of these officers are the duties usually performed by officers of their respective titles and those prescribed by the constitution , by-laws or the Executive Council. The office of President-elect is not a new concept for our association . This office under the former constitution was called vice-president. Following a term in the office of President-elect one becomes President of the association for the next year . While this is not new , the manner of nomination and election is new . As under the old constitution the state is divided into four districts for this purpose. the President-elect shall be elected by the entire membership but candidates may be nominated only by members residing in the eligible district. A nominating petition must be signed by twenty-five such members and filed with the Secretary-Treasurer of the association Sixty days prior to the first day of the annual meeting. Following the close of nominations the Secretary-Treasurer will mail a ballot to all members with the candidates listed in alphabetical order. For a vote to be counted it must be postmarked fifteen days prior to the first day of the annual meeting . The ballots will be counted under the supervision of the Secretary-Treasurer with the assistance of two tellers

Continued on page 102 PAGE 101

Continued from page 101 designated by each candidate and the candidate who receives the most votes will be declared the winner. The state bar districts and their number in rotation are indicated on the ac~ companying map . The Secretary-Treasu rer of the association sha ll be elected from the majority of those present and voting at the annual meeting of the House of Delegates . Any vacancy in this o ff ice shall be filled by a majority vote o f the Executive Council. House of Delegates The most significant change made by the new constitution is the creation of the House o f Delegates as the policy-making body for the association . Before, these duties lay in a vote of the total membership at the annual meeting or more often in the Exe c utive Committee . The creatiof') of the House of Delegates is an attempt to make our asso ciation more responsive and more representative of its membership. The House of Delegates shall consist of fifty~six regular members and six ex -officio members for a total of sixty-two members . The President of the association is an ex-offi c io member and shall

preside over the House of Delegates and may vote only in case o f a tie. Other ex-officio members include the President-e lect , Secret ary-Treasurer, Immediate Past President , Chairman of the Executive Council. and Chairman o f the Young Lawyer's Section. Delegate Districts For purposes of selecting the members of the House of Delegates the state has been divided into delegate districts. The se districts and the number of delegates to be selected from each are as follows : One delegate each 1. the county of Benton 2. the counties of Boone, Carroll and Madison 3. the counties of Crawford , Franklin , Logan , Scott and Yell 4 . the counties o f Johnson and Pope 5. the counties of Howard, Little Rive r, Montgomery, Pike, Polk , and Sevier 6 . the counties of Clark, Hempstead and Nevada 7. the counties o f Columbia and Ouachita 8 . the counties of Bradley , Calhoun , Cleveland. Dallas. Desha. Drew and Lincoln 9. the counties of Ashley and Chicot

10. the counties of Grant . Hot Sprin gs and Saline 1 1. the counties of Arkansas. Lonoke, Monroe and Prairie 12. the counties of Lee and Phillips 13 . the counties of White and Woodruff 14. the counties of Cross and St . Francis 15. th e county of Crittenden 16. the county of Mississippi 17. the counties of Clay and Greene 18. the counties of Jackson and Law renc e 19. the counties of Fult on, Independence , Izard , Randolph , Sharp and Stone 20. the counties of Baxter, Cleburne, Marion , Newton , Van Buren and Searcy 21 . the counties of Conway, Faulkner and Perry Two delegates each ~ 1. the counties of Lafayette and Miller 2. the county of Garland 3. the county o f Union 4. the county of Jefferson 5. the counties of Craighead and Poinsett Th ere are three delegates from Washington county , four from Sebastian county and sixteen delegates from Pulaski county. Each


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PAGE 102


ten years these districts sh all be reviewed as to p ossib le reapportionment. In ad dition to these delegate districts each law school facility in the state is considered a delegate dist ri ct and the members of







facilities may elect a delegate who shall have all fl oor privileges Inc luding the right to vote. Delegates shall serve a three year term but may not succeed themselves. Th e initia l membership of the House of Delegates shall have varying terms in office determined by lot so as to provide that one third of the membership shall be newly elected as of each annual meeting . A delegate who draws less than a three year term in this manner is apparently eligible to succeed himself. Nominations A person residing in a delegate district may be nominated for a delegate position by a petition signed by three members also residing in that district. This petition must be filed with the Secretary-Treasurer of the association sixt y days prior to the first

day of the annual meeting . Balloting shall be at the same time and in the same manner as that for Presidentelec t .

If the number of nominees does not exceed the number of delegates alloted to a particular district the necessity for an election may be dispensed with . In the case of a tie the winner shall be determined by lot, and in the case of a vacancy the House of Delegates shall choose a successor from among the members of the association from that district to serve the unexpired term until the next regular election at which time a regular successor will be elected. Executive Council The old Executive Committee has been replaced by the creation of the Executive Council. The Executive Council will be composed of twelve regular members and six ex-officio members . The ex-officio members are the President , President-elect. immediate past-President . and the SecretaryTreasurer of the association . along with the Chairman of the Young Lawyer's Section and the Chairman of the Executive Council. The regular members are selected by a caucus of the delegates from each of the four slate Bar districts . One from each district will be chosen every year . Executive Council members serve a three year term and may not succeed

themselves In elective office . A member may of course become an exofficio member or succeed himself if he has been selected to fill an unexpired term due to a vacancy. Th e Executive Council elected at this first annual meeting under the new constitution will consist of three members from each of the four state Bar district: one to serve a one year term, one to serve a two year term, and one to serve a full three year term. All selected at subsequent meeting will serve three year terms. The Chairman of the Executive Council is appointed by the President of the association immediately after he takes office . The Chairman of the Council serves a one year term, presides at the meeting of the Council , and votes only in case of a tie. He carries out all other tasks assigned to him by by the Executive Council which are not inconsistant with the constitution and by-laws. A vacancy in this position is filled by presidential apPointment. Meetings of the Executive Counci l, which like the House of Delegates are open to the membership of the association. may be ca lled by the President , the Chairman of the Council or by any five Council members. Continued on page 104

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MAY, 1972

An active , practicing attorney asking for the opportunity to serve his state and nation. Pa Id for by Dean Boswe ll. Jr 801( 1972. Brya n' , Ark

PAGE 103

Continued from page 103 The Council will also set a regular meeting schedule. Council Pow ers The Executive Council will have all powers and duties delegated to it by the House of Delegates not inconsistant with the constitution and by-laws . Any action taken by the Counc il is subject to review by the House of Delegates. The Secretary-Treasurer of the association will send a copy of all minutes of the Executive Council to each member of the Council , House of Delegates . and each non-voting liason member . He will also send a tentative agenda of the Council meetings to these same persons fifteen days prior to such meeting . Non-voting Ijason members of the Council are ; Chairman of the Legal Education Committee , Chairman of the Arkansas Bar Foundation , the association ' s De legate to the American Bar Association , the Executive Direc tor of the association , and the member deSignated for ser-


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The purpose of this article has been to put the new constitution and bylaws of our association into a more readable form so as to provide an easy vehicle for association members to become familiar with them , The w riter feels the new constitution will fulfill its objec tive of creating a more responsive and relevanl association and hopes this artic le has achieved in some sma ll way its goal of informing the members of the changes that have been made, .







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A prepaid legal service s plan delivers services to large numbers of the public, usua ll y associated in groups having a c ommon interest. Many of them have never used legal services before. The cost of the service is prep aid by the group member or by some organization on his behalf. II is my understanding that the plan supervised by the ABA preserves tile right o f each member of the public to choose his own lawyer and simply provides a means whereby the legal expenses are paid . T he indications are that prepaid legal service plans are going to assume an increasingly important role in the use of legal services. Your Executive Committee has created a specia l co mmittee under the cha irmanship of Silas Brewer for the pur. pose of studying these developments. The function o f this committee is to review this subject including the experience of the pilot projects and to make any recommendations which the com m ittee may feel ad visab le w ith respect to any action on the part of the Arkansas Bar .•


_., ._.

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President's Report Continued from 75

vice on the C ouncil by the Arkansas Judicial Coun c il. There is much more in the new constitution which is very similar to the provisions in the former charter and for this reason and fo r conciseness they will not be co mmented upon , Among these are : adoption and amendment of the constitution and by-laws , the establishment and purposes of various sections and committees , the proposal and adoption of resolutions and initiative and referendum of proposa ls.




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PAG E 104

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3Jn jflemortam Nobe J. Henley (1905 - 1972) Searcy County lost one of its most beloved citizens in the death of Nabe J. Henley, which occurred on Jan. 8. 1792. As a young man, he was a teacher in the Marshall High School ; and he never lost his love for young people. He was admitted to the Arkansas Bar in 1931. and was a member of the Arkansas and American Bar Associations; and continued in the active practice until shortly before his death. He was active in all civic affairs. particularly in defeating the proposed Arkansas Constitution of 1970. He is survived by his wife, two brothers and three sisters. Mr •. Mary Smith Massey (1900 - 1971) Searcy County lost one of its outstanding civic and business leaders in the death of Mrs. Mary Massey. She was admitted to the Arkansas Bar in 1929, and served as county and circuit clerk of Searcy County, and also as a member of the County Board of Education . Mrs. Massey was the organizer and President of the Citizens Bank of Marshall, and also the owner of the Massey Lumber Company. She was State Grand Worthy Matron of the Order of the Eastern

Star: and was a member of the First Christian Church. She is survived by three sisters.

mission. Chancery Judge and U.S. District Attorney. Judge Rorex was a veteran of W.W. I. a leader in the American Legion. He was one of the authors of the GI Bill of Rights for W.w. II Veterans. which work. he considered was one of the most rewarding services of his life . He was a Mason and a Methodist.

William Dayid McKay (1902 - 1971) Judge Dave McKay was born in Magnolia, a member of a prominent Columbia County family . He was admitted to the Arkansas Bar in 1923, and was a member of the Arkansas Bar Association. He held many public offices. inc luding : City Attorney of Magnolia. Circuit Judge of the 13th Circuit, and a member of the 1970 Constitutional Convention. He was a Methodist. He is survived by his wife. Mrs. Bernice Tyson McKay, two daughters and five grand children.

Eugene W. Moore (1912 - 1972) Judge Eugene W. Moore of Harrison passed away a short time ago. He was born at Jasper, in Newton County; was a graduate of the Arts Department of the University of Arkansas; the University Law School: and also of the Naval SchoOl of Military Government at Prin ceton. N. J. He was a WW II Veteran. Judge Moore was admitted to the Arkansas Bar in 1933; and served two terms as Prosecuting Attorney of the 14th Judicial District. and also as Chancery Judge of the 11 th Chancery District. Later he was Judge of the Harrison Municipal Court. He was a member of the Arkansas and American Bar Associations. Judge Moore was a Methodist. He is survived by his wife, Mrs. Marguerite Montgomery Moore. two sons. a daughter. and five grand children.

Sam Rorex (1886 - 1971) Judge Sam Rorex died on Dec . 22. 1971 after a long illness. He is survived by a son. a daughter. five grand children. and six great grand children. Judge Rorex was born at Russellville, was a graduate of the University of Arkansas. was admitted to the Bar in 1912, and was a member of the Arkansas and American Bar Associations. Among the many offices he held. be was a member of the Arkansas Legislature. Prosecuting Attorney. Chairman of the State Tax Com-


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MAY. 1972

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PAGE 105

The country can't get along as well without




Whether you want things in our country to change a lot, or change just a little, the way to let the country know is by working within-rather than against-the system. In a presidential year, a year in which miUions of voters are enfranchised for the first time, this means your voting. In commemorating Law Day U.S.A. on May 1, Americans everywhere will reflect on the values of living under a system of law that protects individual freedom and promotes a free society. Then, on November 7th, they'll go to polling places all over the country and work within that system to effect the changes they want. Be among them. Things just won't work as well without you.

LAW DAY USA Our duty as a citizen With our rights as a citizen of the United States of America go individual responsibilities. Every citizen shares them . Only by fulfilling our whole duty as responsible citizens can we strengthen our country and its institutions. Our duties as a citizen inc lude : The duty to respect , obey and uphold the laws. The duty to be informed on issues of govern-

Weare proud '. this meaningful Arkansas Association of Women's Lawyers Arkansas Bar Association Arkansas Bar Foundation Baxter-Marion County Bar Association Conway County Bar Association Cross County Bar Association Greene & Clay County Bar Association

PAGE 106


What is Law

MAY 1 1972 I

ment and community affairs. The duty to vote in elections. The duty to practice and teach the principles of good citizenship in our home . T he duty to serve on juries if called . The duty to support agencies of law enforcement. The duty to honor the rights of others. The duty of alleg iance to the Constitution of the United States of America and to work for its betterment and perpetuation .

to co-sponsor Law Day Message Northeast Arkansas Bar Association North Pulaski County Bar Association Ouachita County Bar Association Pulaski County Bar Association Sebastian County Bar Association State Judicial Council of Arkansas Texarkana Bar Association White County Bar Association

MAY, 1972

Excerpt from address by Judge John A. MacPhail, 51st District Court, Gettysburg, Pennsylvan ia Ac tually , it is not easy to say what the law is . The best definition I have found is that su ggested by Dr . Samuel Jo hn路 son . He sai d , " The law is the last result of human wisdom acting upon human experience lor the pub lic good ." If a law is the resu lt of human wisdom and not of expediency o r whim or pressure, it wi ll be a good law . If laws are based upon human experience and not upon statistics. polls or applause meters, the y will be good laws. But most impo rtan tly. if the law is enacted for the public good, as opposed to any private or individual sector of ou r society . it wil l be a good law . But in a democracy the law must be even more than what Dr. Johnson says it shou ld be . The law is the breath and the blood of democracy. Without the law. democracy cannot survive. Whether the law will survive will be determined by the numbe r of citizens who believe that the law must be obeyed . If they are in the majority the law wi ll live and democracy witt live and we can and will bui ld a better society . On the ot her hand. if the law-abiding citizens are in the minority, there may be no society to bui ld because without the law there will be no democracy . The alternatives to democracy are anarchy . socia lism . communism or dictatorship. In any of those alternatives a society is not " built ," It IS mandated , Further. I suggest that in a democracy we must obey the law as it is . If we are dissatisfied with the law then we shou Id proceed to change It by democratic means . Democracy cannot afford the luxury of citizens who reserve to themse lves the right to determine whether or not cert ain laws shou ld be obeyed or disobeyed . Thi s by no means . excludes the right of dissent . but it does limit the scope of dissent to lawful bounds . What we decide today should be our position With respect to the law . what we decide today about whether the law shou ld be obeyed or disobeyed: and what we decide today about whethe r the law or democracy is worth saving and what we can do ttl help to save it will. indeed. not on ly decide the burning issues of our lime , but . more impo rtantly. will have an Impact (for good or bad) upon the generations yet to come. In conc lUSion leI me repeat the mu c h told story about Benjamin Franklin . After the bLller debates and long ag ruments at the Constitutional Convention had been co ncluded . Dr Franklin was be ing ca rned from the conven tion hall to his home In a portable cha ir. Along the way he was stopped by a female pedestrian who inquired , " Dr . Frank lin , is it fini shed? " H IS reply was , " Yes Madam , it is fini shed ." Next she asked. " Will it work? " To this question Fra nklin replied , " That , M ad am , is up to you ."

PAGE 107


EXECUTIVE COMMITTEE NOTES by R obert D. Ross, Sl'l.'relory-Treosure r

ding legislation and comp ile for publication by the Association membership on pending legislation and compile for publi ca tion by the Association a final report of Acts passed by the General Assembly ,

At its February meeting the Executive Committee approved. subject to the Budget Committee's determination of the availability of funds for the Association year 1972-73, the recommendation made jOintly by the Legislation Committee and the Jurisprudence and Law Reform Committee that a qualified attorney be em p loyed to act as a liaison man for the Association with the A r kansas General Assemb ly at the next regular session . It is anticiapated that the liaison man would begin work about November 1. 1972 , and continue beyond t he session long enough to prepare a report of bills passed at the session which are of special interest to lawye rs. Duties of the liaison man would be to obtain sponsors for the proposed bills in both Houses of the Legislature. keep abreast of the status of each proposed bill , work for the passage of the bills , identify all bills introduced which might affect the prac tice of law or in which the Association should be interested , compile periodic reports to the Association membership on pen-

The liaison man would also be available as a contact with Governor's Office when the Governor desired the assistance of the Association in reviewing proposed legislation as proposed by Governor Bumpers in his address to the Association at the Annual Meeting . The Legislation Committee of the Assoc iation would have direct supervision of the liaison man . All leg islation proposed by committees or members of the Association should be submitted to the Jurisprudence and Law Reform Com mittee not later than July 31, 1972, That committee will see that the proposed b i lls are in proper form and will review the proposals and make recommendations to the Executive Council. The House o f Delegates will be requested to meet at the time of the Fall Legal Institute to consider proposed legislation and to determine whether Association endorsement and sponso rship is desirable. Chairman John Gill of the Public Relations Committee reported at the March meeting that two new pamphlets are now completed and available to Association members. They are titled "So You're Go ing To

LA WYERS' MART Classified Ad Rate 20 cents per word each insertion$3.00 minimum Aaaoclate Wanted The firm o f Schieffler and Murray is seeking an associate. Confidential applications with resume and photograph should be mailed to Schielfler and Murray, Attorneys , p ,O, Box 2309, West Helena, A r kansas 72390 , Books lor Sale : American Law Reports, Volumes 1 - 121 American Jurisp ru dence, Vo lu mes 1 - 22 Wigmo re on Evidence , 6 Vo lu mes David Solomon ; Helena , Ark. ; 338 -7427

PA GE 108

Be A Witness? " and " How Do Lawyers Set Their Fees." Information on cost and ordering procedure will be printed in the next issue of the Arkansas Lawyer. John also reported that as o f January there had been 913 reported plays by over 20 radio and TV stations of the public information tapes which were obtained from the Ameri can American Bar Association and prepared lor broadcast by the Public Relations Committee with the help of Cranford /Johnson/Hunt & Associates . A special Law Day TV program is also being prepared , The establishment 01 a Speakers Bureau composed of Association members has also been accomp lished by the PR Committee and speake rs on any subject dealing with law are now available to any civic or related organization through this Bureau . William S , Arnold 01 Crossett has prepared the Association 's brief in support of the Association 's petition seeking the promulgation by the Arkansas Supreme Court of new criminal rules dealing with desimination of information concerning litigants in criminal cases . The rules are commonly referred to as Fair Trial-Free Press rules . The Association continues to set new records with each new member. As of March 17, Association membership was 1544 as compared to 1475 on March 18, 1971 ,.

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A SPECIAL MEANING Law Day has a special meaning for all of us at Simmons First. We enjoy strong and long-standing ties with the law community . .. and truly appreciate the great leadership of men such as our area's representation on the Arkansas Supreme Court-

Chief Justice Carleton Harris of Pine Bluff (left) and Associate Justice Conley Byrd of Redfield. We are also proud of our Trust Division's day-to-day working relationships with practicing attorneys throughout south Arkansas. It's notable, too, that an attorney now serves as president of


financial center. So, we are sincerely interested in you and your work. When you need a bank, we hope you'll keep us in mind. Together, there's so much we can do!


Pine Bluff



PAGE 109

What Persuades A Judge Text of Address by Associate Justice John A. Fogleman of the Arkansas Supreme Court at the 17th Mid·Year Meeting of the Arkansas Bar Association· January 22, 1970.

You know, I first saw this program in The Arkansas Lawyer and I looked forward to this particu lar number, " What Persuades a Judge " , with an· ticipation. Nothing was said about who would appear on the program . You may well imagine that my an· ticipation was not as great several days laler when I gol a telephone call that said I was elected. I really had hoped to learn something , and I have, from the speakers who preceded me. English Practice was quite shocked to hear repeated this idea that in the Eng li sh courts there is no time limit on the arguments, and they ramble on and on and on , and just end when the lawyer gets ready . It reminded me of a story that I heard Lord Diplock , who is now a member of the House of Lords, tell of a young barrister who was presen· ting a case in oral argument and had expounded at length on each and every point involved when his senior colleague handed a note to him . The judge noticed it , and in a few moments said , " Counselor, did your associate not hand you a note?" He said, " Yes my Lord." The judge asked " Whal did il say? " He replied , "Well , my Lord , it's of a very personal nature." The judge directed , "Let me see it." He said , " My Lord , it's of a most personal nature," but the judge perSisted : " Nevertheless, let me see it. " The judge read it. The note said , "Sit down ; the old bastard is with you ." The judge had still another question ; that was, "Counsellor, did you read the note? " I agree so thoroughly with most of what has been said that I'm rather left at a loss here as to just what to say. I

PAGE 110

will be repetitious to a great degree in those areas in which I co ncur. As might be anticipated, there are those views to which I dissent. In that situation , I feel much like the story I'm sure most of you have heard abo ut Hie preacher on a bad wintry day wHf> went to his church and found one parishioner in attendance. He sa id to him, " Well, brolher, I don't know whal to say . You are the on ly one here. I have prepared a sermon , but I hesitate to go into it with only you. " The parishioner said , " Well , Reverend, I'm a farmer a cattle farmer and when I go out to the pasture to feed the cattle and only one shows up , I feed that one." So the preacher launched into his ser mon at length. When he concluded the parishioner said, " Reverend , I didn 't say when I went to the pasture to feed the cattle and o nly one showed up that 1 gave that one Ihe whole load ." I may give you the who le load.

I have a different reason for being here, though not nearly as good an excuse as the Chief Justice. I came because you asked me, and I probab ly will continue to do that. I have as much interest in the activities o f this profession and this association as I ever had. In addit ion to those who have preceded me here, I can refe r you to authorities much better than I. Among them is Judge Hamley 01 Ihe Ninlh Circuit. I believe he's the judge who first dreamed the idea of the appe llate judges ' seminar at New Yo rk University, which Dr. Bob Leflar supervises. Participation is an excellent experience, I assure you . If you wi ll refer to your Law Review , you will see that

Judge Hamley has spoken on this subject quite we ll.

The Subject Now on the subject of "Wh at Persuades a Judge " . I mu st necessari ly be asking what pe rsu ades me. I approach this wit h an idea that there is a ca lcu lated risk in talking o n this subject , because I can 't help but view the thought in my mind and yours that maybe my vote is committed, or taken to be, in so me cases th at arise, o r that I might be embarrassed later in trying to makE:: a conc rete app lication of some abst ract remark I've made. The reason I looked forward to this prog ram wit h such antic ipatio n is that I want to know the an swe r to th e question : How do I decide a case? Th at is what you are really getting down to when you talk about what persuades a judge, and I don't really know how I decide a case . I am very much concerned abou t this when I try to bring these random thoughts into some conc re te form ; but , you know , I have found out that othe r judges have been plagued wi th this tro uble. Justice Cardoza Among them is none other than Justice Cardoza, for who m we all have the greatest respect. Being fu ll y aware o f the dangers of read ing, I cannot help but read , because I don't believe I cou ld begin to say this in words he would use. In hi s " Nature of the Judicia l Process " in lec t ures on the methods 01 an d phil oso phy in deciding cases, he said, " The wo rk of deciding cases goes on every d ay in hundreds of courts throug ho ut the land . Any judge, one might suppose, would find it easy to describe the





process that he had followed a thousand times and more. Nothing could be farther from the truth . Let some intelligent layman ask him to explain: he will not go ve ry far before

taking refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft . Such an excuse may cover with a semb lance of respectability an otherwise ignominious retreat. It will hard ly serve to still the pricks of curiosity and conscience. In moments of introspection, when there is no longer a necessity of putting off with a show of wisdom the uninitiated interlocutor . the troublesome problem will recur, and press for a so lution .

The Questions " What is it that I do when I decide a case? To what sources of information do I appea l fo r guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable , when do I refuse to follow it? If no precedent is applicable, how do I reach the rule

that wi II make a precedent for the future? If I am seeking logical consistency . the symmetry of the legal structu re, how fa r shall I seek it? At what point shall the quest be halted by some discrepant custom , by some consideration of the social welfare , by my own or the common standards of justice and morals? " Into that strange compound which is brewed daily in the Cau ldron of the courts. all these ing redients enter in varying proportions , . .Some principle , however unavowed and inarticulate and subconscious, has regulated the infusion . It may not have been the same principle for all judges at any time , nor the same principle for any judge at all times. But a choice there has been , not a submission to the decree of Fate . .In such attempt at analysis . .there will be need to distinguish between the conscious and subconscious. I do not mean that even those considerations and motives which I shall c lass under the first head are always in consciousness distinct ly. so that they will be recognized and named at sight. Not infrequently they hover near the surface. They may, however. with comparative readiness be isolated

------------------ ----

with themselves . and inconsistent with one another ." The Answers I believe if we had the answer to all these questions we could all go home and everybody wou ld win a ll of his cases on appeal. In seeking some guidance to answers to these questions, I think it is important to remember that American law is the work of the advocate. I have often said - and I believe it more firmly now than ever - that American law is the result more of the work of the advocate than it is of the judges, and that the performance of the bench depends more on the efficiency of the advocate than it does on the person who may . from time to time , sit on the bench . Of course , in seeking my answers to these questions, we are going to have to recognize that I will be like one of the fabled six blind men who went to see the e lephant. It will be a situation in which I may describe the barn door while one of my colleagues describes the rope and so forth . I think you will also have to consider that you have a better means of objective determination not only what persuades the court of which I am a member, but all appellate courts

- ----------------,

- that is. through the written opinions that are published . You can be much more objective about that than we can about ourselves. From this method, the answer is based on the individual idea of the individual judge of the judicial function and t h at wh ich might

be called his phi losophy of life. Again , Justice Gardoza re m inded us that , " The re is in each of us a st ream of tendency , whether you choose to call it philosophy or no t , which gives coherence and di rection to our thought and action . Each o f us h as an outlook on life enfo lded by inher ited instincts , traditiona l beliefs, and acquired convict ions . No matter how objective we attempt to keep it. judges can on ly see cases throug h the ir own eyes Mr. Ka rl Ll ewe llyn , in h is Common Law Tradition on decid ing appea ls, described the judges ve ry we ll , I think. He says, " Most judges h ave a decent human share of prejudice, passion, and b lindness, and a limited endowment of brains , imagination and t raining ." I am g lad to recognize this after-

noon that judges are human beings, a startling discovery I made just about th ree years ago.

Continued on page 112

there's a reason so many lawyers cite Corpus Juris Secundum

the courts do

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Eyery day in every sta te, lawye rs a nd th e CO llrts cite C,J .S. What b etter reaso n d o you need to learn a bo ut COI'P"S Juris Secundum ?

are quick ly acknowledged as guiding principles of conduct. More subtle are

W rite or call today.

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PAGE 111

Continued from page 111 Primary Functions When we look at the functions of the judiciary, I would say that the primary function of the judiciary is to decide the controversy before it, the particular controversy . That is first and foremost. Second, it is to say what the law is so far as that particular decision is concerned and so far as it is necessary to that decision. Some of you do not always adhere to this belief, but the judicial process should be limited to these purposes and should not be utilized for socia l engineering . Justice John M . Harlan , Jr. has said that. " Judges judge cases , not causes." The pronouncements made by judges, of course, will govern unanticipated and unconsidered situations and contingencies in the future, and probably many are stretched too far in many instances to do so. The judiciary must recognize that there are inadeqiale statutes where there are statutes, but we cannot perfect them; we can only seek to apply them properly . It is not basically our function to abrogate or declare obsolete the unwise or unjust or old statutes. I think the function of a judiciary is not to pronounce new law, but to maintain and app ly sound law. In performing this function we must answer the question posed by the litigant and argued by counsel in a manner which tends to establish and preserve uniformity and consistency in the law. and to permit its rational development from case to case . We must treat more of the specific and less of the general . and often more of the mechanical and less of the philo sophical.

The Mechanical would say in prsuading a judge that one should not overlook the importance of that which might be called a mechanical approach . It is often said of a lawyer, and more p'articularly of a judge, - perhaps in criticism that he acts as a mechanic and not as an architect. Well , I want to say a word for the mechanic . The law would certainly be a monstrosity were it not for the mechanics. We all want architects to design a building. but few of us would want to live in a house or occupy a building that one constructed. I would say this in all favor to the expert mechanics of the bar and the bench who are the artisans of the law in a measure. In speaking of specifics, I think we have to give attention to the tools that PAG El1 2

are available . In applying these tools there are certain things that we must remember . One is that in most cases worthy of appeal there is not always just one right answer. The function of the advocate is to persuade the court that his answer is the right answer, and, therefore , that answer should follow. Again , referring to Mr. Kar l Llewellyn , he says that appellate courts exist because ski lled men do not agree . This is the first thing to keep in mind when using these tools.

Good Record The first tool to persuade an appellate judge is a good record. In making a good record , the first conside r ation is preparation. In my opinion there are more cases won and lost on preparation, or lack of it , than on any amount of oratory, examination of witnesses , or any other element. Preparation is the one most single important element. I think a trial brief is indicated in most cases that are tried . It permits the lawyer to make specific objections, specific offers of proof, and specific motions to indicate specifically to the trial court what he wants done or not done. It is a very effective weapon for the appellate advocate. The advocate must always keep in mind when he is trying a case that potentially he is trying it for two courts. He 's trying to persuade the court or tribunal before which he 's trying the case , but he also must remember that he must have a record which is the basis for persuasion of the appeltate court. When you are prepared to take the next step and use the next tool- that is the brief on appeal - don 't trust your memory. Read your record : abstract it carefully; read the statutes. Even for procedure, don 't rely on your past experience or your fi ling of a previous case . The legislature may have passed an act and it 's always astounding what you find in the statutes when you look. It may be that some new court ru le has been adopted . I want to say something here about the court rules. I am convinced that the rules of procedure in our court are rather simple and are not long. I think each one of them serves a very necessary purpose , and I am convinced that a very high percentage of the briefs we receive are written without even a glance at the rules . Don 't trust your memory. Go to the ru les. Briefing The second weapon or tool is a good brief. That is the first thing seen

by the judges of our court. We cannot overlook the value of the written word. The human brain is more impressed with the written word than any volume of words spoken . The judge has the abi lity to review, re-read , compare . It gives you an opportunity to record the applicable statutes and cases . The necessity of putting words on paper is apt to require an organization of thoughts which may be random up until that time . This, of course , I think is the backbone of appellate practice. A brief, prepared according to rules , helps greatly . Opening Statement There is one particular thing I want to mention in briefing. That is the opening statement. There is a ru le about the opening statement, and one of my colleagues, Justice George Rose Smith, has spoken on this subject. His remarks are in the Law Review, and I refer you to them. Briefly, the purpose of this statement is not the same purpose for which an ope n ing statement is provided in trying a case to a jury. That is the outline of the evidence you are going to offer. The only purpose of an opening statement in a brief is to alert the judges who are going to read it to the things they need to watch for, i.d. , what are the issues involved? It is a little elaboration on the statements of points to be relied upon so the judges won 't be wandering through the abstract trying to find what is important. This can be done in two pages. I had intended to bring one here that I thought was an excellent opening statement. but the case is still pending and I thought perhaps I had better not do that. It was a case of some complexity , but the advocate was successful in stating succinctly what was involved in that case. It was easy to read the brief. When you have to go back and try retrospectively to relate what you have read in the brief to the issues, you are wandering. In briefing , the case should be analyzed carefully . I want to emphasize the p roposition that weak points should be abandoned . They tend to color a judge 's opinion. Perhaps too much reliance being put on these weak points is taken to be a characterization of the case. Now a brief without citation of authority is not much help. There should be some logical reason , based .upon authority , for the court reaching the result that you desire. I would say that a brief without authority may be better than no brief. but it 's not much better.

Continued on page 114


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Continued from page 112 Oral A rgument Of course , the next tool is that of oral argument. You have heard a great deal aboul that today. If it were suggested that oral arguments be abolished , I would answer with a resounding no . If it were said that every case should be argued orally, I would answer with the same resounding no . My experience is that virtually half of the oral arguments I have heard have been a waste of time. Certainly an oral argument should not be a "parroting " of a brief. The purpose of the oral argument is to pinpoint what really is significant - to bring it into sharp focus. So, the argument should be organized with that in view. I would agree with the Chief Justice as to the classification of cases that should be orally argued: difficult, complex, factual situations at those that involve novel legal questions, but certainly not every case. I would repeat that when a lawyer gets a reputation of requesting oral arguments in every case, then his request will become suspect and he might not get as good attention as he might otherwise, because the court knows it is his habit to request an oral argument in every case. Whether it is desirable or not, certain ly it would be totally impossible and impractical in our situation to have oral argument in every case . The case load of the Arkansas Supreme Court has been on a steady increase , at least since 1963, every year . On the 1st of January we had thirty more cases on the docket than we had this time last year . Fiftyone cases were filed in the month of December. It would be totally impossible for us to carry the case load and hear oral arguments in every case . I am very jealous of the record the court has established, long before I was on it, of maintaining currency; and has done it well enough that a problem has arisen in having enough cases ready for submission that we can keep up and avoid a backlog. Cardinal Pri nci ple s Justice Harlan has stated some very cardinal principles to follow in oral argument : selectivity, simplicity, candor, and resiliency . Of course, you have heard the suggestion that you select the issues to be argued . I think if you want a favorable decision and want to persuade a judge or a court , that you should express your argument and thoughts as simply as possible. I think the English language is particu larly designed to permit the expression of thoughts in simple

PAGE 11 4

words . This, of course , requires an organization of thought and requires that the premises - the factual and legal premises be carefully marshaled . It requires that the argument be structured to move on a direct path from these premises to the conclusion . and that there should be a means and terms of expression that will permit the court to be inoculated or oriented or brainwashed. if you please, to the background that is presented by the advocate. Of course, I think the p r incipal thing to be co n sidered in reference to candor is that the successful appellate advocate, the persuasive one, will recognize and meet the difficult issues of law and fact head on. If he doesn 't , he can totally destroy his effectiveness and will tend to lose the attentiveness of the court. These difficult questions must be faced up to. No amount of ducking, dodging or twisting will answer, and any amount only tends to emphasize weaknesses. With reference to candor in answering questions. sometimes no answer is better than an evasive one. I cannot help but think of a device used by one lawyer when asked a very difficult question. The j u dge said, "This is worrying me." The lawye r very frankly said, " Judge, that's worrying me, too." He then said, "How much time do I have left? I don 't want to talk overtime." H is time was up. Resiliency In considering resiliency the major emphasis I would make is that , while your argument should be organized , it should not be frozen into a rigid mold so that a question or questions will throw you into consternation. I know a lot of lawyers regard questions as an intrusion , but I think the true advocate welcomes questions. It is his one chance to answer the question that he has stirred a judge into worrying about. Now questions are asked for different reasons . Sometimes a judge who asks the question may not have a clear understanding of the facts , or he may want to give you an opportunity to expound more fully , not only for the benefit of himself, but for the other members of the court or some other member of the court. Then sometimes a question is asked to expose it so that opposing counsel will have to treat it in some manner. Sometimes they are asked in an attempt to emphasize a point or provoke thought on the subject by others. I have confirmed a suspicion I had when I was on the other side of the bench that when I talked to seven stone faces

who never asked a question , that I had already won or lo st the lawsuit and usually had lo st it. I say that you had best welcome questions and beware if there are no questions. Don 't answer " I put that in my brief. " The judge has read the brief. Don 't say , " I' ll come back to that later" if you don 't intend to come back to it later. This question still hangs in that judge 's mind " I wonder what he would have said about that. " So I say to you that it is advisable to answer. Precedent Another tool that must not be overlooked is precedent. Our whole legal system is based on precedent. Its influence is the single greatest factor in every dec ision , particularly in cases involving property , vested rights , and commercial and business practices. Those are the fields in which stability and uniformity in the law are more desirable than technical correctness because dealings must be carried on in reliance upon precedent. Perhaps it should control almost to the same extent in constitutional and statutory construction because of the overriding necessity for certainty and the importance of the interpretation of many of our organic and statutory laws . Uniformity and stabi lity are essential to the rule of law , and not of men . I would say that judges are answerable first to the law and then to abstract justice . Notions of abstract justice may be too variable from time to time and from case to case , both with courts in general and judges individually, even without personnel changes . Now in presenting your case in reliance on the precedent , I think it must be demonstrated that a decision actually is precedent in that the factual background is the same or similar. It must be remembered that when making this demonstration the basic function of the court in the previous decision that set the precedent was to decide that case , so it is precedent on Iy for what was decided . Proof text quotations are of little help. Proper distinctions, I think, should be made in utilizing the tool of precedent. If a prec edent is inapplicable , clear distinctions must be made . If a precedent is attacked , there must be a clear demonstration of the unreasonableness, the harshness and the injustice of the application of that specific precedent in your case. The reasons for the previous decision may no longer exist. More ultimate harm may resu It in following it than in overruling it. If it is a minority rule, then it shou ld be demonstrated that it


matter. When we are talking about this I think we need to know exactly what we are talking about. Again. ac-

likely to have a very lasting influence on the law . Justice Holmes wrote to a friend in this regard . " I have said to my brethren many times that I hate justic e ... if a man begins to talk about that , for one reason or another he is shirking thinking in legal terms ." However , certainly a factor that is not to be overlooked or discounted is justic e in the particular situation . I have referred to this sort of argument or position as relying on the natural equities. I believe that Mr: Llewellyn has called them the " fireside equities." Another expression I have often heard in referring to this general feeling is " widow law " , which may be

cording to Justice Harlan , a judicial

a pretty apt description . But I think the

decision b ased on an impulse that someth ing must be done and which looks no farther than the just ice or injustice of the particu tar case , is not

justice of a situation, regardless of the precedent, should be demonstrated and the advo c ate should demonstrate how the justice of his particular case

is, and shown that the other rule the majority rule - is supported by reason . I think it is always advisable to show that available precedent consists of only one decision and that it ,

perhaps , was



decision ,

when that is the situation . Wi dow Law Now the next th ing that must be considered , I think. is that the court mu st be convinced of the result or effectiveness of the previous decision .

That gets down to the justice of the

could fit into the framework of our law.

Conclusion repeat , are , after all , human beings. They are responsive to the same traditions , same customs , same prejudices, and the same sense of right and wrong as are lawyers and other human beings. So in determining whether something would be persuasive to a judge, you shou ld fi rst ask yourself this : " Is is persuasive to me? " You know , usually one can tell when an advocate is not sold on his own position . A man who is not sold on it doesn 't do a ve ry good job of persuading. In deciding what to use in persuading a judge and in the use of any tools , I say the first thing to consider is this: " Am I sold o n it and can I sell it? " . Judges,




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