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Results of the Winter 1993 FAX POLL We nce/red 32 rt/sponses 10 our FAX POil from the Winter 1993 ;ssue. With the readership cu",ntly numbering approxfmatlJ/y 4,200, this Is obviously nDt

The Arkansas Lawyer

an aceural. "sUrv.y" of Ih. "adBTShlp and Is nollnl.nd.d 10 "p"s.nl such. The FAX Poll exists to provide a format for readers to voice their opinions and /0 open discussion on Issues which may be explored further In articles or essays In th, magazine. If any reader would like 10 comment on the Issues discussed hert In the form of an essay Dr artie/e, please send to Editor,

Arkansas Lawyar Magllin., 400 W. Markham, Lilli. Rock, AR 72201. B.low

are the "sults. figured by percentage. Some percentages will not add 10 100% as more than one answer or no answer was gir,n. 1. Some view the idea 01 English Rule or 'oser pays"' as the only fair way 01

paying lor IItlgalion. Do you think Ills "fair?" 50% Yas 50'10 No 2. Do you Ihlnk Ihe use ot English Rule would discourage Irlvolous or questionable IIl1gatlon? ?8% Yes ZZ% No 3. Do you think use of contingency lees discourages frivolous or questionable

litigation? 28% Yes

72% No

4. Do you Ihlnk Ihan Ihe use 01 English Rule would Inhlblilhose wllh meritorious claims from seeking compensation?

66% Yes

5. Do you think the Implementation or English Rule would

Increase

the

22% No

6. Do you think English Rule should be Implemenled In Ihe United Slates on I

This issue's FAX Poll 'ocuses on Ihe Rodney King lrials which have jusl concluded al press time. Please circle your response. Commenls are welcome, please allach additional sheels 10 your FAX Poll if necossary.

1. Did you follow the criminal trial of the officers accused of using excessive force against Rodney King? yes

34'10 No

number of earty settlements?

?8% Yes

FAX POLL

2. Did you agree that trial? yes

no w~h

the verdict in

no

national basis?

44% Yes

53% No

7. Do you think Individual states should Implement English Rule? 44% Yes 53% No 8. II you answered yes to either or the previous two questions, do you leel "loser pays" should be limlled to IIl1gation Involving prlvalely lunded Individuals lacing Instllullons? (i.e., Joe SlIpSla" vs. Melronallonal

Insurance) 9% Yes

10. Do you think Value Billing would be a good step lowant improving Ihe justice system in the United States?

37,.. Yes 41% No Nolo: Acoupl. 01 "spons.s ask.d whal .alue billing Is. Value blillng Is Ihe pracl/ce Dr billing by Ih. lob Ins'ead 01 by Ihe hour, lor ..ampl., ha.'ng a basic charg. 011500 lor dramng a will.

yes

no

5. Did you agree w~h the verdict? yes

no

6. 00 you think the two officers 28% No

44% Somellmes

12. Do you think the national or local government should be able to regulate billing路 be it value or hourly?

12% Yes

4. Did you follow the King civil rights trial through the media?

44% No

9. Do you 1001 legal Aid services should be exempt Irom "loser pays" rules? 47% Yes 41% No

11. Do you 'value bill" now? 6% Yes

3. 00 you feel the justice syslem in the U.S. showed ~s faulls during Ihe first trial? yes no

75% No

convicted of using excessive force should have also been convicted of aiding and abetting?

BVBn

31% No

9. 00 you think 'police brutality路 is a major problem in the United States? yes

7. 00 you think the two officers acquitted should have been convicted of using excessive force? yes

no

10. 00 you think 'police brutality' is a major problem in Arkansas? yes

no

11. 00 you think the police in Arkansas take seriously the laws against using excessive force? yes

no

12. 00 you think the ollicers convicted should receive the maximum penalty even though they have no criminal records? yes

no

13. 00 you think justice will be served in Ihis case? yes

no

14. 00 you think our system of justice has been dealt a major blow by the outcome of these cases?

Comments:

14. Do you think lhe Mansas Bar should take a stand on value billing?

53% Yes

no

no

no

If they didn't know

13. Do you think Ihe American Bar should lake a sland on value billing? 50% Yes 34'10 No

yes

yes yes

NotB: Several respondents voted -no路 on this one what value billing was路 a sign of the times?

8. 00 you think the two officers acquitted should have been convicted of aiding and abetting?

no

FAX this completed sheet to:

The Arkansas Lawyer at 375-4901 or mail to 400 W. Markham. Little Rock. Arkansas 72201

_


Nothing in Life is Free By Paige Beavers Markman

"Just remember, nothing in life is free." I probably heard this from my mother at least once a month, and I'll probably say the same to my daughter. It's true really, and something all of those in the legal community are experiencing now. With the election of President Bill Clinton, many good things came to Arkansas more business, a better public image, increased tourism. But with his departure, we also lost. Besides losing the Clinton family, we are now losing several leaders in the legal field to the White House. The past three months here at the Association office have been charged not only with excitement about "FOB's" [Friends of Bill] we know going, but also with sadness as we watch some of our most active members - leaders in the Association -leaving. One of those leaders has been very special to many of us here. He's one of those people whom most of us look at and say "How does he do itT' and then figure that he must never sleep, eat, or spend any time having fun. But after getting to know him, you find that serving, leading and giving are his enjoyment. He serves in many capacities in the legal community, giving his tireless efforts toward improving the system and each lawyer with it, enriching the lives of those in the field by simply being a part of it. He is the one you call when you really need something done - you know he'll take care of it. He may run in at the last second with it, but it will be there. This leader, the one who has paved the way for many and will continue to do so in more ways than one is Rodney Slater. Many of you know him as our Secretary-Treasurer, others know him as Past President of the Harold Flowers Law Society, Chairman of the Highway Commission or Director of Governmental Affairs at ASU. We know him, not only as all of these, but as our advisor, our advocate and our friend. As he leaves to take the post of Administrator of the Federal Highway Department, we are saddened. We will miss his racing in here with the minutes two days before the Executive Council Meeting; we will miss kidding him about his inability to keep his private life from us because he is constantly in the news; we will miss his understanding and willingness to listen and his wise words when we need them. Watching Rodney leave, we know the country will be a better place if he has anything to do with it, and we are happy for that -- but nothing in life is free. We hope the loss is only temporary. 4

ARKANSAS LAWYER

SPRING 1993


VOLUME 27, NUMBER 2 PUBLISHER

Arkansas Bar Association EDITOR & ART DIRECTOR

Paige Beavers Markman Director ofPRiMarketing ARKA:"SAS BAR ASSOCIATION 400 W. Markham [ inle Rock. Arkansas -220 I OFFICERS President John P. Gill Presidem-Elecr E. lamar Pettus Immediate Past President James H. McKe.nz.ie Secretary -Treasurc:r Rodney E. Slater Executive Council Chair Rosalind M. Mouser Executive Director William A. Martin AssisÂŁant Executive Director Juditb Gr.ly EXECUTIVE COUNCIL Joe Benson Sanford Bcshear William Clay Brazil

Thomas M. Carpenter Michael H. Crawford Boyce R. Davis Vincent Fonce, Je.

Seephen A. Geigle Dave W. Harrod Henry C. Kinslow Robert Lynn Lowery Jerry C. POSt J. Thomas Ray Eddie H. Waiker.Jr. Rober< E. Young EJ(.{)FFlCIO John P. Gill E. Lamar Pettus James H. McKenz.ie Rodney E. Slarer Rosalind M. Mouser

Lucinda McDaniel The AJ'bnsu Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Second class postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkolnsas Lawyer, 400 We51 Markham, Little Rock, Arkansas 7220l. Subscription price to non-members of the Arkansas Bar Association $15.00 per year and to

members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Atkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to EDITOR, Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Atbnsas Lawyer at the above address.

In This Issue: 4 7

Letter from the Editor

8

Belts or Suspenders? Perfecting a Security Interest in a Trademark or Copyright

-

12 19 20 22 24 27 30

By Paige Markman

Letters to the Editor

By Nancy Bel/house May

Disciplinary Actions Book Reviews By John P. Gill

The President's Message

By Jerry Schwartz

Law Practice Management Executive Director's Report

By William A. Martin

Law, Literature & Laughter

By Victor A. Fleming By Robert M. Berry, Ph.D. & Samuel A. Perroni

Law, Psychology & Paper Moons

38

COVER STORY: AVLE . Ten Years Later The Vision is Even Clearer

43 45 46 48

In Memoriam

Cover Art provided by West Publishing Co. from their'Art & the Law" Collection. Story Photos by Andrew Kilgore.

Young Lawyers Section Column

By Lucinda McDaniel

Law School News Law Office Technology Review

By Barry D. Bayer & Benjamin H. Cohen

50

General Practitioners Primer Effective Video Presentation at Trial: By Steven W Quattlebaum Put on a Good Show, But Cut to the Chase

57

Arkansas Bar Association CLE Calendar


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LETTERS Dear Editor.

The "FAX Poll" contained in the last issue of The Arkansas Lawyer reflects that 80% of those polled believe lawyer advertising hurts the image of the legal profession. [n fact, I think the vast majority of us are of the opinion advertising is generally unprofessional and, in many instances, on a par with ambulance chasing. In the same issue, on page 20, you ran an ad which seeks to propagate lawyer advertising. This ad, among other things, states that with an extraordinary advertising campaign, a

lawyer can reap an additional $50,000.00 per month in new client personal injury settlements and "earn a whopping 20 times Return on Investment from your advertising campaign." I find the ad distasteful and am unsettled that you would run it ..., or any other ad promoting lawyer ad vertising.

lim Hall Pine Bluff Dear Edi tor: Lose the FAX Poll! It reminds me of the old Arkansas Democrat's phone-in poll. It, like this FAX Poll, was neither scientific nor relevant. Besides, if you obtained only 35 responses out of over 4,000 members of the Arkansas Bar [Association] that receive The Arkansas Lawyer, I would say this is not much of a survey. Only those readers who hold the strongest opinions are going to respond. Now, in regard to your latest FAX Poll wherein you asked lawyers about the "English Rule" which you define as the "loser pays" rule, do you have any idea how the English Rule works in England? Or do you have any idea how

TO

THE

EDITOR

many lawyers actually know how the English Rule works? Without addressing these questions, the poll is meaningless. In reality, differences between the English and American systems are SO pronounced and varied that a true "loser" in England very rarely pays anything towards the other side's costs of litigation. Besides, the FAX questions have non contextual basis. Why don't you ask how lawyers would feel about a "loser pays" rule in a situation where the litigants are ffiM and their grandmother? Until you are able to make your questions more fair, relevant and asked in the proper context-lose this poll!

David H. Williams Little Rock Editor's Note: To make sure that no one thought we were trying to represent the answers 10 the FAX Polls as any killd of survey or accurate representation of the entire membership of the Arkansas Bar Association we agreed that each time published, tire number of responses received would be given. The language introducing ti,e responses in this issue will perhaps illustrate that more effectively. As to it's relevance, we can only reiterate what we said in introducing the FAX Poll ill April 1992, that it is jlltended to give members a place to voice their opinions, to set up a forum for diswssioll if needed. The qllestions for the FAX Poll ill the lallllary 1993 isslle were formlliated by the editor after reading the November 1992 issue of the ABA /ou"lol which contained a lengthy article 011 "English Rule." Two lawyers reviewed the questio'1s, offered sllggestions alld approved the Poll for publication. The assumption was made, perhaps ill error, that the readership would have a general understandillg of the concept. Your concerns are noted, and the magazine invites more discussion on the issue of English

Rule, from you or other interested parties who wollid like to explore this area of the law further. Additionally, if you have any ideas for questions for fuillre FAX Polls, please se"d them in - our goal is to hear from our readers.

[The following is an excerpt from letter regarding October FAX Poll dealing with Image of the Pro{essioll[ Dear Editor: I have been active in the Arkansas Bar Association and local bar associations in the St. Francis and now Benton Counties since 1972. Lawyers do have a serious image problem - always have. I've done my little bit along the way to help, but we really need to seriously address this problem and come up with some effective ways to address it. By the way, I own a Lawyers' Joke Book and enjoy a good lawyer joke as much as anyone. But, we [the Bar Association) desperately need to keep our sense of humor and perspective about the problem. The problem did not develop suddenly and won't be solved in the short term. We may not ever be held in high esteem (due in part to the nature of our work), but we can and should do a better job telling the public about the good lawyers and the good things lawyers do as people as well as professionals. End of speech. Keep up the good work!

LOJlis B. "BJlcky" Jones, Jr. Belltonville Tire Arkansas Lawyer welcomes all comments, suggestimJs, etc. from readers. Please send to: Editor, The Arkansas Lawyer, 400 W. Markham, Little Rock, Arkansas 72201.

A BLU.El'IUN'l' t'UR THE 21ST CENTURY LAWYER THE 1993 ANNUAL MEETING JUNE 9-12, 1993 THE ARLINGTON HOTEL â&#x20AC;˘ HOT SPRINGS NATIONAL PARK


marks and pending federal registration applications, and to

limits, and may also exact costs and attorneys' fees from the

describe any unregistered marks. Although some courts appear

infringer.

to have accepted the language of the UCC and its comments at

Like a trademark, then, a copyright can be a valuable

face value, ., Heille-Geldem v. ESle Cnpitnl Uti re Magnum Opus

property, worth considering as security for a loan. Unlike the

Elec.), 19 U.CC Rep. Serv. 242 (S.D.N.Y. 1976) (trademark); 111

Lanham Act, though, the Copyright Law provides for a single

re Chnttallooga Chao-Choo, 98 B.R. 792 (Bank<. E.D. Tenn. 1989)

centralized recording

(service mark); cf. Holt v. U"ited States, 13 U.CC Rep. Serv. 336

copyrights must be recorded at the Copyright Office. See 17

(D.D.C 1973) (patent and patent application); C Tek Software v.

U.S.c. 搂20S (providing for recordation of any document

New York State Busi"ess Ve"ture Part"ership (I" re C Tek Software), 117 B.R. 762 (Bankr. D. .H. 1990) (copyright); 1" re Specialty

transferring ownership in a copyright or any other document

syst~m.

Security interests in registered

pertaining to a copyright). Failure to record there can be fatal,

Foods, 98 B.R. 734 (Bank<. W.o. Pa. 1989) (trademark license), it

Unsecured Creditors Committee v. Zenith Productions (In re AEG

would seem unnecessarily risky to rely on a description

Acquisition Corp.), 127 B.R. 34 (Bann. CD. Cal. 1991); see also

Natiollal Peregri"e, 116 B.R. at 203, for the UCC

couched in general terms when it is possible to describe the specific intellectual property

yields to a comprehensive federal recording

II

路 the lender scheme. 5 Consequently, although there is covered by the security interest. Taking that risk probably no harm in including the debtor's choo ing both belt under-secured, because an unperfected security registered copyrights in a UCC filing made for other reasons with the relevant state authority and suspenders interests the same property. (perhaps because it also covers the debtor's trademarks), the creditor taking a security Copyrights today ... is the A copyright grants the owner essentially interest in a registered copyright must be sure exclusive rights in particular expression of an always to record at the Copyright Office. lender most idea by prohibiting others from copying that Each registered copyright should be expression. Even though the copyright does not described with accuracy in the document likely to be (whether a copy of the security agreement, the enable the owner to monopolize the idea itself, it grants the owner, among other things, the financing statement with attached exhibit, or a clothed with exclusive right to make and distribute copies of schedule expressly prepared for this purpose), the copyrighted work. Thus, the Walt Disney by reference to its name and registration perfection Company's copyright the movie Beauty and number, that it can be indexed appropriately the Beast protects its pa.rticular rendition of that in the records at the Copyright Office. Should 路omorrow. t

could leave the lender either unsecured or interest can be held subordinate to others' in

its

filed

in

classic fairy tale.

0

one may reproduce the

il

SO

the lender also take a security interest in a

fiLm- or indeed, any of the Disney characters or songs featured

copyright for which a registration application is pending, the

in it- without Disney's permission. There is a limit to the

application should be identified by name, type, claimant and

copyright's reach, however: assuming the story itself is in the

filing date. The certificate of registration eventually issuing will

public domain, the copyright does not prevent others from

include this information as well, making it relatively easy for

using the idea of animating it and adding a musical score. They

interested parties to trace the application through the records.

may do so, provided they do not copy Disney's work.

As the preceding discussion indicates, the rule for perfecting

A copyright owner need not register its copyright in order to

a security interest in a copyright is pretty straightforward.

invoke the protection of the Copyright Law. The work will be

There is, however, one important exception: the recordation

protected as soon as it is fixed in tangible form, but as with a

provisions in the Copyright Law apply only to documents

trademark, registration-and in particular, prompt registration-

affecting registered copyrights. 17 U.s.C 搂20S(c)(2). Since the

of a copyright conveys significantly enhanced rights. Once the

copyright holder need not register, this exception is significant;

owner of a work in which the copyright was registered during

unregistered copyrights are relatively common, and a secured

the statutory window period has proved infringement at trial, it

party can perfect its interest in one only by filing as the VCC

is required to prove neither the amount of the infringer's profits

directs. In fact, even if the borrower provides assurances that its

nor its own damages. Instead, the copyright owner may simply

unregistered copyrights are soon to be registered, the ca.reful

ask the court to set damages in any amount within the statutory

lender will plan to make a UCC filing unless and until the


borrower actually produces evidence that the registration

applications have been liled. Recording only at the Copyright Office before an application to register has been filed may well

be ineffective. AEG Acqllisitioll, 127 B.R. at 41 11..8. 6 Trade Secrets, Trade Dress, and Patents The lender should also remember that a debtor willing to grant a security interest in its trademarks and copyrights might also own a valuable trade dress, some trade secrets, and a

patent or two, all of which could potentially provide additional security for the contemplated loan. The trade dress and trade secrets can be handled like the trademarks and the unregistered copyrights, since there is no national registry in which to record security interests in trade dress or trade secrets. The proper procedures for creating and perfecting a security interest in a

patent (let alone securing a priority position) are open to debate, however, so the lender should be sure to consult a patent

attorney before deciding where to file.' Conclusion The lender taking a security interest in both registered and unregistered trademarks and copyrights would do well to prepare a schedule listing the registrations by name and serial

number, and describing the unregistered marks and copyrights. A copy 01 the schedule should be made an exhibit to, and should be incorporated into, any UCC-l filed at the state level to cover all trademarks and the unregistered copyrights, and

should also be filed with the Copyright Office to cover the registered copyrights.8 It would not be imprudent to file the schedule at the PTO as well, to put anyone searching its records on notice. Despite the National Peregrine court's fears about the

confusion likely to be engendered by multiple filings, it appears that the lender choosing both belt and suspenders today- that is, the lender filing as comprehensively as possible- is the lender most likely to be clothed with perfection tomorrow.

Nancy Bellhouse May is a partner with the Wright, Lindsey & Jennings Law Firm in Little Rock. She practices in the areas of Copyrights, trademarks, trade secrets, unfair competion and related litigation. © 1993 by Nalley Bel/hollse May ENDNOTES 1. This article addresses only the perfection of security interests, and does not address the niceties of priority. As the UCC can be preempted either entirely or as to perfection only, compare Ark. Code Ann. § 4-9-104(entire VCC preempted) with Ark. Code Ann. §4-9-302(3) (UCC perfection preempted), the distinction is crucial. Even if it appears that perfection is controlled in a particular transaction by one of the federal statutes discussed here, then, state law (or the law of bankruptcy) may still apply to priority and related issues. See generally Nationaf Peregrine, 116 B.R. 2()4.{)7. 2. In an Arkansas transaction, this may be the secretary of state, the circuit clerk and recorder in the county where the debtor is located, or both. Ark. Code Ann. §4-9-401.

3. The proposed section provided in pertinent part: A security interest in a registered mark, or a mark for which an application to register...has been filed ... may be obtained and will be superior to any interest subsequently granted to a third party, provided(B) notice of such interest is filed in the Patent and Trademark Office(i) within ten days after the interest is granted if the interest pertains to a registered mark or if it pertains to a mark which is the subject of an application for registration under (the intent-to-use provisions]..., or (ii) within four months after the mark is registered if the interest pertains to a mark which is the subject of a [use-based application) ...and the person holding the interest has a valid, perfected interest pursuant to state law at the time the mark is registered. Senate Rep. No. 1()()..SlS, l00th Cong., 2d Sess. (1988), reprinted I" The Trademark LAw Revision Act of 1988 (U.S.T.A. 1989). 4. If the contemplated transaction involves actually assigning a registered mark to the lender instead of merely granting a security interest, that assignment must be recorded at the PTO. This requirement may be of little practical consequence, however, as it seems unlikely that many lenders would be willing to expose themselves to the risks associated with actually becoming trademark owners. Among other things, assignees may acquire responsibility for product liability claims involving the trademarked goods. C/. Torres v. Goodyear Tire & Rubber, 901 F.2d 750 (9th CiT. 1990) (trademark owner, as licensor of name, liable for injury caused by defective product). 5. There is at least some question whether the Copyright Law's provisions are sufficiently comprehensive to override the vee, because the references to copyrights in the VCC are less than clear. Compare Ark. Code Ann. § 4-9-104 comment with Ark. Code Ann. § 4-9-302 comment. Nonetheless, recording at the Copyright Office would now seem to be appropriate, for the Copyright Law provides a more comprehensive scheme of regulation than did the act in force when the most recent comments to the VCC were drafted. See 17 U.S.C §§ 101,201,205 (documents memorializing transfers, including mortgages and hypothecations, to be recorded at Copyright Office). 6. Since a copyright registration ordinarily will date back to the day on which the application was filed, it seems unnecessary to wait until the certificate has actually issued before recording at the Copyright Office. If no registration has issued when it is time to renew any vce filing, however, that filing should not be allowed to lapse. It is always possible (albeit unlikely in most cases) that the Copyright Office will deny registration. Unless the lender has maintained the UCC filing, its interest will be unperfected should the certificate of registration fail to issue. 7. A filing sufficient to protect the secured party's interest in a patent against subsequent purchasers for value or mortgagees, for example, may not be suffident to resist a claim of priority by a trustee in bankruptcy or debtor in possession. As note 1 indicates, though, issues of priority -and certainly of priority in connection with patents- are beyond the scope of this article. 8. Since there is no foolproof system for automatically securing an interest in after-acquired copyrights, see e.g., National Peregrine, 116 B.R. at 202-03 n. 10, the lender must in addition keep abreast of the debtor's activities to be sure the security interest continues to reach all the debtor's copyrights. To cite a concrete example, consider a manufacturer of computer software that routinely enhances and upgrades its products. Each new version may be separately copyrightable (or might at least contain new material subject to copyright), so the lender probably should require this kind of borrower both to register any revisions to previously registered works (and any new works) promptly, and to provide the lender with any information necessary for preparing updated schedules.

Arkansas Code Annotated $990 Terms available. Call for free catalog, Allin R. Jones, Michie Co., 1-800-448-5110.


DISCIPLINARY

ROBERT R. CaRT/NEZ Robert R. Corti nez, Little Rock, was issued a letter of caution for violation of Model Rule 1.8(j) as a result of a complaint by Brenda Brighton. In her alfidavit, Ms. Brighton stated that, following dismissal of her previous attorney, she engaged Mr. Cortinez in early February 1989 to represent her in a pending divorce action. No retainer fee was required and an agreement was made for compensation by the hour. The client stated that the lawyer said the fees would be payable at the conclusion of the divorce action. The parties, through their respective attorneys, were attempting to reach a voluntary settlement for the division of the marital

property. There was considerable disagreement between the parties as to an acceptable division, and several offers and counter-offers were made.

Part of the marital property consisted of two condominiums. The settlement negotiations, among other things, variously contemplated each party receiving one of the properties or that one would be sold and the husband keep the remaining condo. As the matter progressed, Ms. Brighton said she received a couple of monthly statements for fees and expenses. She contacted Mr. Cortinez and was informed that the billings were automatically generated by the computerized bookkeeping process and she should disregard them. The client maintained that, although she was willing and offered to pay the lees on a current basis, she was told that it would not be necessary and she would be charged when the divorce was final. The case had been set for trial on June 1, 1989, in Garland County. In a final attempt to negotiate settlement, the parties and their attorneys met in Mr. Cortinez's offices on May 26, 1989. Alter spending considerable time in an unsuccessful attempt to compromise the property division, Ms. Brighton spoke to her lawyer privately. Ms. Brighton said she was advised tu try to settle the property rights and get on with her life. She stated that Mr. Cortinez suggested she take both condominiums. When she inquired about this variance of the previous offers Mr. Cortinez told her that he would buy one Irom her. Ms. Brighton returned to his office on May 30,1989. She appeared on that date and

12

ARKANSAS LAWYER

SPRING 1993

ACTIONS

/

ADVISORY

Mr. Cortinez had a divorce decree with a property settlement agreement for her signature. The decree, among other things, provided that her husband give up his interest in both condos. A sale agreement for Mr. Cortinez's purchase of one of the condominiums was prepared. The transfer contemplated the lawyer's assumption of the outstanding mortgage liability and credit for payment of Ms. Brighton's legal fees and expenses. According to Ms. Brighton, she reluctantly signed the documents. On May 31, her husband signed the property settlement agreement and executed quit claim deeds to the properties. His attorney presented the decree to the chancellor who granted it on June 1, 1989. In early 1990, Ms. Brighton contacted Mr. Cortinez concerning some difficulties which had arisen with the mortgage company. She expressed her opinion that she thought it unlair that the lawyer obtained the property for attorney fees which she lelt was less than her owner's equity based on a previous purchase offer to her and her husband. Mr. Cortinez declined to consider an adjustment and advised Ms. Brighton and the lawyer assisting her that they could sue if they believed legal grounds existed. Mr. Corti nez's response admitted assumption of Ms. Brighton's representation following her dismissal 01 her previous attorney because of inability to obtain a satisfactory property settlement. He stated that there was considerable animosity between the parties which added to the difficulty in pursuing an agreed division of marital property. Numerou conversations with his client, discovery, depositions and exchange of offers and counter-offers were accornplisheu by the attorney during the course of the the meeting of May 26, 1989, Ms. Brighton was not agreeable to the settlement terms offered because she did not feel she was receiving enough cash money. After approximately two hours of negotiations, Ms. Brighton agreed to accept an increased amount of cash, both condos, and the other terms as subsequently set out in the decree. As she was leaving the attorney's office, she asked if he would accept one of the condos in exchange for attorney fees. She was told that it could be discussed when she returned on May 30 to sign the agreement and the decree which would be prepared by that date. She returned on

OPINIONS

May 30, 1989, reviewed and executed the settlement agreement. According to Mr. Corti nez's affidavit, Ms. Brighton provided some photographs of the condo and discussed the transfer proposal at length. She felt it would be difficult for her to sell the extra condo because of the depressed real estate market at that time. She wanted to exchange it for fees and expenses because she preferred not to use the cash she was receiving from the settlement. The lawyer agreed to assume the mortgage payments on the property and prepared a sale agreement. Ms. Brighton left the office and presumably had lunch. She later returned and signed the agreement in the presence of a notary public. Mr. Cortinez personally took the property settlement agreement and the decree to Hot Springs on May 30 and delivered them to the opposing counsel. The decree was entered the following day. Thereafter, Mr. Cortinez represented Ms. Brighton in a litigated dispute over ownership of certain boat slips at the condominium complex. He also prepared a will for her and charged no fee for either of these services. The attorney stated that Ms. Brighton expressed no dissatisfaction with the legal services or the fee arrangement until February 1990. She had contacted Mr. Cortinez and requested financial assistance. He told her he could not give her any money and suggested that her financial difficulties might be a result of her non-employment. Shortly therealter the lawyer was advised of Ms. Brighton's dissatisfaction with the property transfer. Mr. Cortinez stated that the client paid no retainer because she was financially unable and requested that payment of fees be made at the conclusion of the divorce. She never offered to pay the fees as they accumulated. An affidavit from the attorney manager was offered in support of this contennon. Mr. Cornnez stated that the fee amount which Ms. Brighton attributed to the consideration for the property transfer was inaccurate. Ms. Brighton relied on the billing through April 1989, and no bill was sent for work and expenses for the month of May because the property transfer arrangement had been concluded. The purchase offer to which Ms. Brighton referred was received almost a year prior to the sale agreement. The previous offer to purchase was not


DISCIPLINARY

performed and the earnest money forfeited. According to the real estate broker, the only other offer on the property was in late January 1989 and was for an amount $8,000 less than the offer to which Ms. Brighton referred. One of the adjoining condos subsequently sold for an amount even less than that. Mr. Cortinez denied that Ms. Brighton was unduly influenced or treated unfairly. In fact, he contended Ms. Brighton had experience in the management and sale of real estate and was fully knowledgeable of the agreement she made.

PHILLIP

K. KINSEY

Phillip K. Kinsey, Fort Smith, was issued a letter of caution for violation of Model Rule 1.5(c) as a result of a complaint by Ann Hauser. In her affidavit, Ann Hauser stated that she and her husband retained Mr. Kinsey in August 1989 to pursue their claims for damages arising out of an automobile accident. The legal services were to be provided on a contingent fee basis. Subsequently, in 1991, it was

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necessary for Mr. Kinsey to file suit against the liable party. Thereafter, in late November or early December, 1991, the lawyer informed the clients that a settlement agreement had been concluded. Ms. Hauser said that she was informed that the settlement would cover the outstanding medical bills, which the attorney would satisfy from the proceeds. The clients received a check drawn on the lawyer's trust account and, according to Ms. Hauser, they were to receive any excess proceeds after deduction of legal fees and payment of medical bills. Due to some apparent miscommunication or misunderstanding, Ms. Hauser deposited the check for their part of the settlement on the same date as the clients had endorsed the insurance company's draft. The check was dishonored by Mr. Kinsey's bank. When Ms. Hauser learned that the check had not cleared his bank, she called Mr. Kinsey. Ms. Hauser stated that Mr. Kinsey advised her to redeposit the check. The check subsequently cleared the bank on or about December 18, 1991. Ms. Hauser had requested a complete

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accounting of the settlement proceeds. She said Mr. Kinsey promised to do so but, despite several telephone requests, he failed to provide a settlement statement. Mr. Kinsey's response admitted representation of the Hausers on a contingent fee basis. He stated that there were two separate personal injury cases being pursued on behalf of the Hausers during the period of his legal representation. Ms. Hauser had been involved in a second automobile accident in July, 1990. Both cases ultimately settled about the end of November, 1991. The Hausers were called to his office where they approved the settlements. The Hausers executed the release of claims and endorsed the insurance draft on December 2, 1991. Mr. Kinsey wrote a check to the clients and, contrary to his instructions, Ms_ Hauser deposited the check for collection. It was dishonored by the bank because the draft had not cleared the issuing bank. When informed of this occurrence by Ms. Hauser, Mr. Kinsey told her to redeposit the check. The response reflects that various checks were issued by the insurer on behalf of one of the liable parties payable to the attorney, the clients, and in most instances, to certain medical providers. These checks were endorsed by the necessary parties and remitted to the medical providers or other entitled parties. The other case was settled by the acceptance and endorsement of the draft on December 2, 1991. Mr. Kinsey presented copies of checks disbursed from his trust account in connection with this matter and stated that the proceeds were fully accounted for in accordance with the agreement with the clients. The response, however, did not reflect that the clients were provided a written settlement statement upon the successful conclusion of the legal matters.

JAMES MICHAEL HANKINS

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James Michael Hankins, orth Little Rock, was issued a letter of reprimand for violation of Model Rules 1.3, 1.4 and 8.4(d) as a result of a complaint filed by Lee X. Franklin. Mr. Franklin, an inmate in the Arkansas Department of Correction, filed a civil action in the U. S. District Court against certain employees of the Department. The Court appointed an attorney to assist Mr. Franklin in his lawsuit. The appointed attorney had limited experience in cases of this nature and sought Mr. Hankins' assistance and


DISCIPLINARY guidance. Mr. Hankins was apparently agreeable to assist 011 the lawsuit and to act as lead counsel. On December 19, 1990, the Court, citing the initial lawyer's attempts to render adequate representation, but noting his lack of experience in that type of litigation, entered an order appointing Mr. Hankins co-counsel. The Court extended the time for response to the defendants' motion for summary judgment to January 7, 1991. According to Mr. Franklin's affidavit, Mr. Hankins accepted the role as lead counsel and the primary responsibility to respond to the motion. Mr. Hankins visited Mr. Franklin at the penitentiary to obtain information for the response to the motion for summary judgment. When Mr. Hankins failed to respond to Mr. Franklin's subsequent correspondence, he contacted the other attorney to inquire about the status of his case. The other lawyer forwarded Mr. Franklin's correspondence to Mr. Hankins and requested that he communicate with the client. Receiving no communication from Mr. Hankins, Mr. Franklin again contacted the other lawyer. Over the next six weeks, the other attorney wrote and telephoned Mr. Hankins several times in regard to this matter. either Mr. Franklin nor the other attorney received

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any acknowledgment or response from Mr. Hankins. On May 31, 1991, the other lawyer, under the belid that Mr. Hankins had answered the summary judgment motion, was startled to learn that Mr. Hankins had not responded to the motion and that the U. S. Magistrate had issued findings and a recommendation to grant summary judgment. On May 31, 1991, the other attorney filed an objection and attempted to submit a belated affidavit of response to the motion for summary judgment. These actions were unsuccessful and Mr. Franklin's lawsuit was dismissed. Mr. Franklin also averred that Mr. Hankins failed to return his files and documents to him. Although Mr. Hankins did not respond to the formal complaint when initially filed against him, he requested a de novo hearing subsequent to the Committee's action by written ballot vote. At the hearing, Mr. Hankins acknowledged his representative capacity in Mr. Franklin's legal matter and he did not contest the allegations of the affidavit of complaint. Mr. Hankins stated that he visited with Mr. Franklin and obtained information relating to his claims. Afterwards, Mr. Hankins was of the opinion that Mr. Franklin, who had filed several actions previously, did not have a

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ARKANSAS LAWYER

meritorious cause of action in the pending lawsuit, However, Mr. Hankins admitted that he did not properly convey his opinion to Mr. Franklin nor did he take any further action in the matter.

James Michael Hankins, North Little Rock, was issued a letter of reprimand for violation of Model Rules 1.3, 1.4(a) and B.4(d) as a result of a complaint by Vickie Yvonne Bush. In her aflidavit, Ms. Bush stated that Mr. Hankins was retained and paid his requested attorney's fee in August 1990, to file a divorce action on her behalf. M . Bush has been able to make contact with Mr. Hankin on only one occasion since that time. The divorce complaint was filed but, to Ms. Bush's knowledge, nothing has been done since the filing. The client has been unable to make contact with Mr. Hankins despite her numerous attempts. Ms. Bush would telephone his office only to be told that he was on another phone call, in court, or out of the office. Mr. Hankins failed to return her calls or communicate with her. Although Mr. Hankins did not respond to the formal complaint when initially filed against him, he requested a de novo hearing subsequent to the Committee's action by written ballot vote. In his testimony, Mr. Hankins admitted representation of Ms. Bush and did not contest the allegations of her complaint. He stated that the defendant was incarcerated and his attempts to obtain service or a waiver of service were unsuccessful. The case was later dismissed for failure to perfect service of the complaint within the allotted time, and Mr. Hankins did not pursue it further at that time. Mr. Hankins advised that he has since discussed the matter with Ms. Bush and that she is agreeable to Mr. Hankins reinstitution of the divorce action and pursuing it to conclusion.

MARK

TELRAN 8

OPINIONS

SPRING 1993

B.

CHADICK

Following a three month suspension from law practice imposed on October 3, 1992, the Committee on Professional Conduct has reinstated the license of Mark B. Chadick, Pine Bluff, effective January 3, 1993.

CHARLES

A.

POTTER

Following a one year suspension from the practice imposed on ovember 1, 1991, the Committee on Professional Conduct has reinstated the license of


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,

Charles A. Potter, Texarkana, effective November 1, 1992.

G.

B. "BING" CaLVI

III

Following a six month suspension from the practice 01 law imposed on July 6, 1992, the Committee on Professional Conduct has reinstated the license 01 G. B. "Bing" Colvin III, Dermott, effective January 6, 1993.

DAVID SCOTI POST Upon recommendation of the Committee, on ovember 23, 1992, the Arkansas Supreme Court accepted the surrender of the license of David Scott Post, Fort Smith, to practice law in the State of Arkansas. The United States Attorney filed a criminal information against Mr. Post. Mr. Post admitted in his petition for surrender that his conduct violated Model Rules 1.2(d), 4.1(a), 8.4(b), 8.4(c) and M(d).

HARRELL

A.

SIMPSON, JR.

Upon recommendation of the Committee, on November 2, 1992, the Arkansas Supreme Court accepted the surrender of the license of Harrell A. Simpson, Jr., Pocahontas, to practice law in the State of Arkansas. Having received a suspension in ovember, 1991, Mr. Simpson failed to comply with the requirements 01 Section 70, Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Pursuant to the Procedures, contempt proceedings were initiated against Mr. Simpson. Thereafter, Mr. Simpson submitted his petition for voluntary surrender of his law license. His petition acknowledged that he untimely complied or failed to comply with certain of the duties imposed by Section 7D 01 the Procedures and that his conduct was prejudicial to the administration of justice

and violated Model Rule 8.4(d).

CHRISTOPHER DONALD MITCHELL Upon recommendation of the Committee, on December 21, 1992, the Arkansas Supreme Court accepted the surrender of the license of Christopher Donald Mitchell to practice law in the State of Arkansas. Mr. Mitchell has criminal charges pending against him and admits his conduct violates Model Rule 8.4(b) and 8.4(c). hristopher Donald Mitchell, of Jonesboro, was suspended from the practice of law December 3, 1992, for one year for violation of Model Rules 1.3, 1.16(d) and 8.4(d) as a result of a complaint by Curtis Leo Branscum. In his affidavit, Mr. Branscum stated Mr. Mitchell was paid $SOlI to represent his son on a OWl charge. Trial was scheduled for November 14, 1991. The complainant's son was charged with another OWl offense on November 1, 1991, and plea and arraignment was scheduled lor November 18. Mr. Mitchell was paid an additional $350 on or about November 7, 1991, for representation on the second charge. Mr. Branscum's son was found guilty on the first charge and Mr. Mitchell agreed to prosecute an appeal lor $150. The complainant's son paid Mr. Mitchell at that time. Mr. Mitchell failed to appear at plea and arraignment on November 18, 1991, and the client entered a guilty plea. He also decided to abandon the appeal of the first conviction. When later contacted about his absence at the second proceeding, Mr. Mitchell explained that he had been mixed-up about the court date. The complainant requested that Mr. Mitchell refund $500 of the advance fee paid lor prosecuting an appeal and representation

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on the second DWI charge. Mr. Mitchell agreed to send Mr. Branscum a $500 refund but has failed to do so. The complainant's subsequent attempts to contact Mr. Mitchell produced no responses.

EVERETI

O. MARTINDALE

Everett O. Martindale, Little Rock, was issued a letter of caution for violation of Model Rules 1.1, 1.3, 1.16(d) and 8.4(d) as a result of a complaint filed by Al Williams. Mr. Williams stated that Mr. Martindale was employed in February 1988, to continue a lawsuit he had previously instituted in July 1986, against a bank and an automobile dealership involving his dissatisfaction with a van he had purchased, an attempted swap of the vehicle and the subsequent repossession of the van. During the course of the business dealings, Mr. Williams became involved in an altercation with one of the dealership's employees and desired to pursue an action for assault and battery against the individual. Mr. Martindale substituted as counsel 01 record and filed an amended complaint adding the individual defendant. At the same time Mr. Martindale filed certain discovery documents and caused them to be served on opposing counsel. About the end of March 1988, the individual defendant was deposed. Five or six weeks later Mr. Martindale called Mr. Williams and advised that the court reporter had completed the transcript of the deposition. Mr. Williams obtained a copy from Mr. Martindale and attempted to file it with the circuit clerk. The clerk refused to Iile an unsigned, uncertified copy. Mr. Williams stated that he contacted Mr. Martindale for the signed original and was informed that he had only received a copy from the reporter. Mr. Martindale advised him that he would attempt to locate and obtain the original transcript. According to the complainant, he telephoned Mr. Martindale over the next several weeks inquiring about the deposition and the lack of the delendants' responses to the pleadings filed in February. Mr. Martindale repeatedly advised Mr. Williams that the court reporter wanted her fee and needed to be paid. Mr. Williams refused to do so. He contended that he shouldn't pay for the transcript until he had the properly executed original in his possession. About this time Mr. Martindale advised Mr. Williams that he didn't intend to use the


DISCIPLINARY deposition at trial in any event. Mr. Martindale insisted that Mr. Williams go ahead and pay the reporter, but he refused to do so until he received the original transcript. In September 1988, Mr. Martindale sent Mr. WiUiams a copy of a letter to the court requesting a trial setting and a statement for attorney's fees expected to expended at trial. The court subsequently scheduled the trial for December 29, 1992. On October 28, 1988, Mr. Martindale filed a motion to be relieved as counsel on grounds that substantial conflicts had developed with the client over the handling of the case. A hearing on the motion was held on December 5, 1988. The court permitted Mr. Martindale to withdraw. M.T. Williams was unsuccessful in obtaining substitute counselor gaining a continuance. On the scheduled trial date the suit was dismissed without prejudice. On December 28,1989, Mr. Williams refiled his lawsuit against the three defendants. The individual defendant responded with a motion to dismiss on grounds that the statute of limitations had run. Mr. Williams discovered that a

summons had never been issued for the individual defendant when he was added to the amended complaint in February 1988. The individual defendant prevailed since service was never had on him and the dismissal without prejudice in December 1988 did not toll the running of the statute as to him. Mr. Martindale's response reflected that he undertook representation of M.T. Williams although Mr. Martindale informed him that it did not appear he had a very good lawsuit. Mr. Williams persisted and prevailed upon Mr. Martindale to represent him. Mr. Martindale agreed to do so on the basis that the fee be paid in advance for

expected services and expenses immediately paid when due. The client paid a retainer but refused to remit any additional fees for anticipated services or to sa tisfy the court reporter's charges for the deposition. Mr. Martindale eventually paid the court reporter but Mr. Williams declined to reimburse for that expenditure. Mr. Martindale sued Mr.

WiUiams for that debt and the balance of the attorney's fees and was awarded a judgment that remains unsatisfied. Mr. Martindale stated that, following the individual defendant's deposition, he advised the client that there did not seem to be a sufficient basis to pursue a lawsuit against the individual and Mr. Martindale

16

ARKANSAS LAWYER

SPRING 1993

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reiterated the matter of the circuit clerk's miscalculation as contained in his original motion for rule on clerk. Mr. Colvin slaled that he thought the original motion sufficiently accepted responsibility, and it would not be necessary for him to file an additional affidavit of responsibility. Although he admitted some confusion concerning the actions he should have taken and sought counsel and guidance from others, he stated that he became a deputy prosecutor on August 1, 1988, and because of the excessive workload the appeal completely slipped his mind.

did not intend to use the deposition at trial. Mr. Martindale averred that the client led him to believe that he agreed with Mr. Martindale's assessment and djd not desire to pursue that claim. According to Mr. Martindale's response, Mr. Williams was a very difficult client. The relationship further deteriorated due, in part, to his failure to pay expenses and advance fees as agreed. Mr. Martindale stated that Mr. Williams knew at the time he sent the letter of October 28, 1988, seeking withdrawal that Mr. Martindale was not intending to represent him further. Mr. Williams was advised that he should seek other counsel and if he wished to pursue his potential cause of action on the assault and battery claim it would be necessary to obtain service of the individual.

GEORGE

W. MAso , III

George W. Mason, ill, El Dorado, was issued a reprimand for violation of Model Rules 1.1, 1.3 and 8.4(d) as a result of the Arkansas Supreme Court's per curiam granting appellant Byron Hooper's motion for a belated appeal. The Supreme Court's per curiam of june 15, 1992, and the associated record reflect that Mr. Mason was the appointed counsel Byron Hooper, an indigent, in pursuing the appeal of his conviction for possession of cocaine with intent to deliver. Mr. Hooper had been sentenced to life imprisonment following trial lasting more than two days. Subsequent to the Court's granting Mr. Mason's motion for rule he filed an abbreviated abstract and brief on February 3, 1992. The Attorney General moved the Court to compel the appellant's compliance with Court Rule 9 and ll(f) regarding the sufficiency of the abstract. The Attorney General noted that the trial record consisted of 740 pages and appellant's entire abstract and brief comprised only 25 pages. The Court granted the state's motion and directed Mr. Mason to resubmit the abstract and brief by April 4, 1992. An extension of time was obtained from the clerk but he did not tender the revised abstract and brief within normal business hours on the due date. Mr. Mason was rcauired to obtain oermission

G. B. "BING" CalVI G. B. "Bing" Colvin, III, Dermott, received a reprimand for violation of Model Rules 1.3 and 8.4(d) as a result of the Arkansas Supreme Court's per curiam granting appellant john L. Lewis' motion for a belated appeal. Mr. Colvin represented john L. Lewis at trial on the charge of robbery. Lewis was found guilty and the judgment was entered on july 29, 1987. olice of ap!"",l was timely filed on August 14, 1987, and an extension of time to lodge the transcript was entered. on ovember 12, 1987. On or about March 4, 1988, Mr. Colvin attempted to lodge the transcript and it was rejected by the clerk as untimely. A motion for rule on clerk was filed wherein Mr. Colvin maintained the delay resulted from the circuit clerk's error in calculating the extension time from the filing of notice of appeal rather than the entry of judgment. The Supreme Court rejected Mr. Colvin's contention of unavoidable error or excusable neglect and issued a per curiam on March 28, 1988, stating that permission to file the record would be granted upon Mr. Colvin's filing a motion and affidavit responsibility. On May 14, 1992, the appellant filed a pro se motion for rule on clerk citing Mr. Colvin's failure to respond to his numerous requests la perfect the appeal. The Court issued a per curiam on june 8, 1992, finding that Mr. Colvin never filed an affidavit accepting responsibility for the untimely tender of the record. Appellant was granted a belated appeal and counsel appointed to represent him. Mr. Colvin's response to the complaint

OPINIONS

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DISCIPLINARY to file a belated brief. Thereafter, he resubmitted the abstract and brief in May 1992. Again, the state averred that the abstract was insufficient and moved to compel compliance with Court Rules 9 and 1I(f). The state asserted that the abstract of the record was inadequate for a clear understanding of the issues raised on appeal and that, again, the appellant had failed to provide the required jurisdictional statement. The Court granted the motion and, inter alia, found that the abstract was so inadequate that certain points for reversal submitted by the appellant could not be reached or decided. The Court relieved Mr. Mason as counsel of record and appointed new counsel for the appellant. Mr. Mason's response asserted that representation of the indigent appellant placed a great burden on his time and resources as an individual practitioner engaged in the general practice of law. Mr. Mason explained that the resubntitted abstract was tendered twenty minutes late because of traffic conditions he encountered in the attempted delivery to the clerk's office. He felt that the record was properly abstracted and if the Attorney General's office was dissatisfied they could have utilized their abundant resources to prepare the abstract. Further, Mr. Mason maintained that additional counsel could have been appointed to assist him prosecute the appeal for an indigent.

GREGORY FERGUSON Gregory Ferguson, Little Rock, received a letter of caution for violation of Rule 1.8(e) of the Model Rules as a result of a complaint by Rickey Wayne Sntith. Mr. Ferguson received the caution following a public hearing held on November 21,1992. Mr. Ferguson has filed notice of appeal from the Committee's decision. According to Mr. Sntith's affidavit, he hired Mr. Ferguson in May 1987, to represent him on a claim for workers' compensation. Unable to work, Mr. Sntith experienced considerable financial difficulty. During the course of representing Mr. Smith on the workers' compensation claim and some other legal matters, Mr. Ferguson, at the client's request, made loans of money or advances to Mr. Smith, to some of his relatives and to third parties on his behall. In December 1991, Mr. Sntith's workers' compensation claim was settled in the final amount of $4,200, an amount less

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than had been anticipated initially. At that time Mr. Ferguson had extended loans or advances on periodic occasions over the preceding two years in the approximate amount of $7,845. Mr. Smith signed an affidavit acknowledging that he, and others at his request, had received monies from Mr. Ferguson and he was indebted for those amounts from the settlement proceeds. Mr. Ferguson's response and testimony adntitted representation of Mr. Smith on the workers' compensation claim. Additionally, Mr. Ferguson represented him and his wife on some unrelated matters. Mr. Ferguson stated that it was about january 1990, after his assumption of legal representation on Mr. Smith's workers' compensation case, that he came to Mr. Ferguson destitute and in need of financial assistance. Mr. Ferguson felt extremely sorry for Mr. Sntith and his predicament and, at his request, began providing him monetary assistance. Mr. Smith anticipated an income tax refund and also appeared to be a distributee of his grandfather's estate which was being settled. Mr. Ferguson viewed the loans made to Mr. Smith and others on his behalf as being unrelated to the workers' compensation claim and that his other potential sources of income were the primary source of funds to which he was looking for repayment. Mr. Ferguson felt the assistance he provided was fair, reasonable, fully explained, and a humanitarian gesture for the welfare of the client. Mr. Smith still owes Mr. Ferguson for a portion of the monies advanced and Mr. Ferguson feels that he may have been the victim of these transactions as a result of some of the misrepresentations.

ROGER TRENT JEREMIAH Roger Trent Jeremiah, Van Buren, was suspended from the practice of law February 1, 1993, for three months for viola lion of Model Rules 1.3, 3.2 and 8.4(d) as a result of a per curiam complaint. The Court's per curiam of May 4, 1992, and the associated records reflect that Mr. jeremiah lodged the record on appeal from a criminal conviction on behalf of his client, Richard Lee Mitchell. He failed to file a brief and did not respond to the clerk's several requests to do so, nor did he offer any explanation for the failure. The Court issued an order for Mr. Jeremiah to show cause why he should not be held in contempt of court. A special master was appointed and received

OPINIONS

evidence in the matter. Mr. Jeremiah testified that he thought the client had decided to abandon his appeal. He also stated that he was unfamiliar with the rules of practice requiring him to either dismiss the appeal or withdraw as counsel. Upon the findings by the master, the Court found Mr. jerentiah in contempt and assessed a fine of $500.00. The complaint was served on Mr. jerentiah August 4, 1992. No response was subntitted to the Comntittee on his behalf. On October 20, 1992, Mr. jeremiah was sent a letter notifying him of the Committee's action and advising him of his right to request a de novo hearing. Mr. jeremiah timely requested a hearing and a hearing was scheduled for January 9, 1993. Prior to that date he decided to withdraw his request for a hearing. The Comntittee's action from which he sought a de novo adjudication then became a final decision. NOTICE: TIle Arkansas Bar Association lIas set up an Opinions Subcommittee of tI,e Professional Ethics and Grievances Committee for the purpose of giving Advisory Opinions to licensed attorneys. TI,e charge is $50 for members of tl,e Association and $75 for non-members. Requests for opinions slrall relate to prospective cotlduct only and shall contain a complete statement of all facts upon whic1, tl,e opinion is requested, atld a concise question of professional ethics. The requesting individual shall include with tl,e request a concise memorandum setting forth his or her own research and conclusions concerning the question and tIle statement that the matter is not the subject of a pending disciplinary proceeding. The idetltity of the individual, who is the subject of tIle request, shall be disclosed to tIre Committee. TIle procedure for obtaining an opinion was printed in the Fall 1992 NEWSBULLETIN, if you need a copy, please call tire Association at (800) 482-9406 or 375-4605. Advisory Opinion 92-01 (Arkansas Bar Association, December 2, 1992): Referral Fees The Professional Ethics and Grievances Committee of the Arkansas Bar Association issued an advisory opinion discussing the sharing of fees


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ACTIDNS

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DPINIDNS

among lawyers in different law firm according to Ark. Rule of Professional Conduct 1.5 (e). Although the rule permits different options, the most typical scenario permits fees to be divided or shared without regard to the division of work, labor, and services between the lawyers, provided the total fee is reasonable, the client consents, and both lawyers accept joint responsibility for the representation. For purposes of malpractice litigation and disciplinary proceedings, the lawyers are treated as if they are partners in a single firm. If properly done, a fee may be shared even if one lawyer has done nothing other than to refer a client to a second lawyer. (A copy of the complete opinion is available from the Arkansas Bar Association.

Advisory Opinion 92-06 (Arkansas Judicial Ethics Committee December 17, 1992) Ln an advisory opinion, the Arkansas Judicial Ethics Committee stated that, where a judge's Sibling is an attorney employed in the litigation division of the state attorney general's office, the judge may sit in cases that involve the office of the attorney general, except those in

Advisory Opinion 92-05 (Arkansas Judicial Ethics Committee ovember 19,

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LAW UBRARY FOR SALE: Extensive law library for sale. Cal (501) 225-3602 day or evening for details. FOR SALE: Arkansas cases, SW, and SW2d, complete to date. ALR 1, Ark. Digest, Blashfield Auto Law, Am Jur, Personal Injury Valuation, Shepards. All with, or without shelving. CaU 329-5330. Make an offer for all or part. Good Condition.

1992)

Ln an advisory opinion, the Arkansas Judicial Ethics Committee stated that Arkansas judges who hold offices filled by election may purchase tickets to and attend the inaugural ball for Bill Clinton regardless of whether the ball is considered a celebration or a political gathering and regardless of whether the adntission charge is used to defray costs of the event, is given to a charitable organization, or is used to support Democratic Party activities.

which the sibling will appear of record as attorney or assists in any way in the preparation or trial. However, the Committee advised that it may be a ,vise course for the judge to always disclose the relationship on the record and invite the parties and attorneys to offer any additional facts that could possibly require disqualification.

72902,782-o36l. ARKANSAS TRIAL LAWYER'S ESTATE SALE: Library includes S.W. ReportersArkansas Cases, Arkansas Code Annotated, Arkansas Digest, CaseBase and other pertinent materials. Please contact Margaret Belford at 372-7771.

I

THE PROBLEM:

ARKANSAS RULES OF EVIDENCE with Cor,lmentary and Annotations by

Mort

G~.lm8ll,

Marcia Mcivor, & Carl E.

Sm~h

The most complete source of material avail路 able on current Arkansas evidence law; the commentary 10 each nie and each anootation have been wriUen especially for this book. More than 1,000 annotations in handsome loose-leaf binder; 278 pages; annual supple路 mentation at reasonable prices. Satisfac路 tion guaranteed; may be returned within 30 days for full refund.

Complete with 1992 Supp.-$75 Send check for $75.00 payable to:

m & m Press P.O. Box 338 Fayetteville, AR 72702 18

ARKANSAS LAWYER

SPRING 1993

THE SOLUTION:

LEGAL MANAGEMENT SERVICES Jerry Schwartz (901) 385-1185 Serving the legal community for over ten years


THE ARKANSAS BAR ASSOCIATION TRIAL NOTEBOOK Committee Chaired by Samuel A. Perroni Reviewed by Henry Woods No attorney primarily engaged in trial practice or aspiring to such a career should be without the TRIAL NOTEBOOK prepared by a distinguished committee of Arkansas trial lawyers and edited by Sam Perroni. Rarely has so much information been compressed into relatively few pages. Every aspect of the trial is covered from voir dire to summation. There are also valuable chapters on the roles of paralegals and the use of exhibits and demonstrative aids. I wish that all attorneys that practice in my court would pay special attention to the section on exhibits. One of their most frequent deficiencies is to appear and announce ready for trial without having their exhibits marked and listed and without having consulted opposing counsel as to stipulations on admissibility. The chapter on expert witnesses contained many highly valuable suggestions as to the presentation of expert testimony, that expensive and controversial aspect of the modern trial. The chapters on direct and cross examination contain many practice observations along with Irving Younger's famous "Ten Commandments of Cross Examination." By closely following the chapter on

'Making Your Record: many a practitioner will be spared the embarrassment of having an appeal dismissed on a technicality. When I was admitted to the bar over 50 years ago, no such valuable publication was available to me or my contemporaries. We had to learn the hard way by trial and error and hard experience which was sometimes very costly to our clients. I wish such a trial notebook had been available to us!

THY KINGDOM COME by john S. "Bud" Applegate Reviewed by Thomas G. Williams For anyone who has enjoyed either of james Herriot's books ALL CREATURES GREAT AND SMALL or ALL THINGS BRIGHT AND BEAUTIFUL, you will appreciate THY KINGDOM COME. For those of you unfamiliar with Herriot's books, they are a charming compilation of the experiences of a Yorkshire veterinarian serving the countryside community where he resides. This book, subtitled "Tales of a Small Town Lawyer" is comprised of a collection of short stories, some contrived, some fact, which reflect the experiences of the fictional character john Stirlen, a small-town trial attorney. Each of the stories is set in the town of Galarna, Washington during the period following World War II. Mr. Stirlen's courtroom adventures are based primarily on the

experiences of the book's author, john S. "Bud" Applegate, a retired lawyer from Yakima, Washington with a 50 year certificate of service from the Washington State Bar Association. Applegate's alter-ego, john Stirlen, is a dedicated trial attorney who attacks each case with equal vigor, inc! uding his pro-bono appointments. Although each story does not result in a successful outcome for Mr. Stirlen's clients, they are equally delightful and, like Herriot's books, reflect the author's dedication and love for his profession. THY KINGDOM COME is wonderful reading for both the lawyer and non-lawyer. For the nonlawyer, the stories are not only entertaining, but also informative. The author takes considerable time to explain, in layman's terms, legal procedure and terminology. Additionally, the reader is given the occasion to track Stirlen's legal analysis and trial strategy as he works his way through a myriad of cases. Although the lawyer may find these detailed asides elemental, they are presented in such a manner so as not to detract from the reader's overall enjoyment of the book. Thy Kingdom Come is perfect summer reading and would make an excellent gift for a lawyer's family members or friends. The book is selfpublished and, therefore, not available at most bookstores. However, it may be ordered from its publisher, Vantage Press in New York City, or from the author himself.


PRESIDENT'S

MESSAGE

The Thin Gray Suit Line By John P. Gill

Arkansas born General Douglas MacArthur immortalized the long gray line in his farewell to West Pointl That long gray line has stamped out oppression and evil. OUf military slrength has yielded peace among nations, and the military has protected our freedom from outside threat. But walk the halls of our juvenile courts and see if there is peace. Look at the "no public rest room" sign at the convenience store and see if there is freedom for all citizens to use facilities serving the public. Talk to the adult child who agonizes over the do-it-yourself living will executed by her unconscious aged mother and tell me that the war of the soul is over. See the frustrated frown of a CEO who wants to offer his employees an opportunity to own shares in their own company only to learn that thousands of pages of laws and regulations limit his doing so. Plenty of

work remains for the men and women in the gray suits - the gray suit line of lawyers. There may be a peace dividend from a deactivated military, but there are no peace dividends for human suffering, and society needs the long gray suit line now more than ever. Yet lawyers are unsure of themselves because society questions their role. The divorce war is a classic illustration of a place where the professional can bring peace. The professional will resolve a dispute quickly and leave bridges in place for an understanding about the children's future. The unprofessional will attack and delay and confuse and charge by the hour treading on other people's misery. Ethics calls upon us to resolve the dispute. The unethical lawyer will contribute to the agony. There are many things the soldiers in the long gray suit line can do to protect freedom. I'll mention only two. Number One, maintain an ethical lifestyle. umber Two, push back the paradigms 20

ARKANSAS LAWYER

SPRING 1993

of the judicial system. Number One. As Michael Josephson said at our last annual meeting: There is a tendency to approach ethics rules as if they were tax laws - which is to look for ambiguities and loopholes. It seems to me that as long as lawyers approach ethics as a set of rules, we will always look for loopholes. We've been taught the Socratic approach since law school and we can't change the looking for loopholes habit. What we can do is approach ethics as a way of life in which there are basic truths - not rules. We know these truths. No one can receive seven years of higher education without knowing the simplistic difference between right and wrong, especially after learning the law. Lawyers are highly educated. They know what is right and true and ethical. We are the one group in America who know how to do right. Enough said. Number Two. The judicial system in Arkansas is a tattered and tom disgrace. We spend far less than 1% of the state's total revenues on one-third of its government, the Judicial Branch. Incredibly, the state spends more for medical care and feeding of prisoners than the entire appropriation for administration of justice. We have judges without secretaries, we have jury rooms without chairs, we have judges elected without independence because they have taken an oath, under God, to support one political party and not the other. We have municipal court fines used to pay the retirement and salary of the judge who decides whether or not the fine should be imposed. We have jingles to educate the electorate on who should be a judge. We try the same capital case over and over again because we can't try it right the first time. We have no way of insuring that an attorney can get paid for his work since it is easier to get a mechanic's lien on an automobile than it is to get an attorney's lien on a fee.

Clients have no means for resolving fee disputes except filing another law suit. We have staggering malpractice insurance rates. And a whole lot more. In short, we have out-of-date justice. All of these paradigms have been in place for years, and they deny justice and steal freedom. On June 13,1992, I asked the lawyers of Arkansas to challenge the paradigms and solve these problems; by midAugust many solutions were aLready on the table and more are coming. Its called 21st Century Lawyering and is in the November issue of The Newsbulletitt. The long gray suit line is working in Arkansas. It is highly educated. Motivated. Well trained. It's a line of lawyers today that stand for freedom. Freedom and justice for all. I'm very proud to have served in that line with you this past year. However, our work is not done and we cannot rest. The Arkansas justice system is nearly bankrupt and even judgments to pay fines are ignored - with impunity in many cases. Refusals to comply with discovery requests are commonplace. Uncivilized conduct among lawyers is admired by unprofessionals. And clients and iawyers alike (even judges) worship the billable hour, when uur prooecessors worshipped serving the client by solving problems. Happily, lawyers in the Arkansas Bar Association are spending hundreds of "billable hours" solving these and many other problems. If you don't have a place in the march to 21st Century Lawyering, let me know and you can have one, because, together, you and I can stop the cause for lawyerbashing, be it a misunderstanding of what freedom is all about, out-of-date justice, or loss of professionalism. Remember the long gray suit line is thin. Its only you - one lawyer - that stands between justice and injustice. 1. Witlt 11Ie lIelpofafrw Marilles.


Mediation Mediation is a voluntary, non-binding process whereby a qualified and trained neutral person helps parties (and their attorneys) resolve their dispute before or during litigation. Mediation is informal, quick, confidential and inexpensive.

Professional MediationArbitration Service • An Arkansas private dispute resolution company providing mediation and

arbitration services throughout the State of Arkansas • Serving the legal profession, business community and insurance industry • Mediations are scheduled to occur within 30-40 days • A referral to mediation is at no cost to the parties if the mediation does not take place


LAW

PRACTICE

MANAGEMENT

Beyond Computer Illiteracy By Jerry Schwartz

Many years ago we sat at the kitchen table or in the living area of our house with our parents and were tau~ht the letters of the alphabet. Some of us were very lucky to have had flash cards that helped us to learn our alphabet a little faster than the other children. Our parents probably made a game out of learning our alphabet, and we were all prepared for elementary school, where the teacher taught us how to form our printed letters and later how to write with good penmanship. Those skills learned in our early years were essential to our success as professionals today. Without the abiJity to read and write, one cannot perform the tasks required of an attorney at law. Many lawyers long hand or dictate documents today using the skills learned as a child. Years ago these documents were typed by secretaries on typewriters and sent to the courts or parties associated with the case. This method sufficed for many years but because of the volume of work and difficulty in making changes to the document, the word processor was d~v~loped by a number of companies. The typewriter became obsolete with the new innovation which allowed data to be electronically stored so changes could be made with ease, therefore increasing the volume of documents which could be completed. The word processor hardware and software were proprietary to the company that developed them. They did not have the ability to communicate with other word processing equipment or software. A higher skilled person was needed to operate the word processors because the commands to enable the machines to operate were code intensive. The lawyer was insulated from the

22

ARKANSAS LAWYER

SPRING 1993

output of written documents and continued to perform the tasks required of an attorney at law, which had been basically the same for decades. A little over ten years ago the rules of the game changed with the development of the personal computer. We now had a piece of hardware which would accept software developed by different people and companies. The creative energies of the American marketplace took over and many software packages became "user friendly" which enabled more people including lawyers to use a personal computer. The importance of learning to operate a personal computer is as important to you today as those days spent learning the alphabet and how to form your letters. The entire world is computerized and thust: that resist will fall behind and will not have the skills to competitively perform the tasks of an attorney at law. L.:,wyers readily admit that they are computer illiterate, as if that makes things all right. The true fact is that it is not all right. The cost of qualified support staff is rising ilnnually. Using outdated equipment in the office affects law office profitability in many ways: efficiency of the equipment is poor; maintenance cost of old equipment is expensive; productivity of support staff is reduced; and other helpful computer programs cannot be used. If you are going to practice law (or the next five years you must take the time to learn how to operate and use personal computer hardware and software available for law offices. All law offices must make the transition from older word processing equipment to personal computers. The transition should be slow but steady.

Rather than starting with a computer network, the law office may start with stand-alone personal computers. Once the support staff is productive, the lawyers should get computers. When the lawyers are comfortable with computer use, the office should consider a computer network. At every stage of implementation training is critical to a successful installation. The cost of training should range between 20 and 25% of the cost of the eqUipment. This cost is often overlooked and the lack of knowledge undermines the potential increase in productivity. The hardware selection should be based on more than cost. Support and service is crucial to the long term success of the instaUation. This is an investment in the practice and although you should seek out the best price available, the cheapest is not always in the best interest of the law office. The cost of the transition should be looked at as an investment in the future of the practice and should be spread over the useful life of the equipment. Many law offices resist change because they pay for purchases out of current doUars. It is more reasonable for the law office to spread the cost of the acquisition over the life of the equipment by borrowing for the acquisition or leasing the equipment. The law office cannot tolerate much more delay. The technology is not "new" after more than ten years of use; it is the "standard" which clients have come to expect and which they deserve.

Jerry ScJnoortz is tile owner of Legal MQlwgemellt Services of Memphis. Tetlllessee, a cot/suiting and ma"ageme"t services firm specializillg ill profitability improvcmellt for smalf and medium

siu law OffiCes.


NOTICE TO ARKANSAS BAR AsSOCIATION MEMBERS ON HISTORY OF THE BAR By ROBERT R. WRIGHT UALR SCHOOL OF LAw, 1201 McA1.MONT, The Arkansas Bar Association has designated me to write a history of the bench and bar of Arkansas. This leads me to ask for your help. Although most of the recent history of lawyers and judges is known to us, not even all of that is known to me. Moreover, when you move back into the period of this century prior to World War n, it takes you to a time more shrouded in the memory of a few older people. In that situation, particularly in the early part of this century, some colorful local lawyers may slip through the cracks. Of course, it becomes even more difficult when you move back into the 19th century. It becomes primarily a matter of research as opposed to memory. So. this is how I need your help: I would like for every lawyer, judge or layman, who wishes to contribute to this work, to send me a letter or memorand urn pertaining to your recollection of Arkansas Lawyers and judges whose history should be a part of this book. I would particularly urge you to include "stories" of some interest about Arkansas lawyers with regard to entertainment value. I do not want this to be a pure

I

LITILE

ROCK, ARKANSAS 72202

history book or biographical discourse. I want to write it in such a way that it will be of interest to the reader and also enjoyable to read. We will use some pictures in this book, and you may wish to submit some of those. I am creating a set of files with the material divided according to the anticipated chapters. I currently plan to divide the State into regions, such as the Delta, and discuss the lawyers and judges of that area separately from other areas. It is my expectation to have a chapter pertaining to women lawyers, another with regard to African-American lawyers, another as to the federal judiciary, another as to the Supreme Court and Court of Appeals, and another as to the law schools. Because of the small size of the bar and judiciary in the early part of the 19th century, I may separate that part into a chapter all its own. Let me emphasize that even though I will be writing this book, it is your book. I will have to take the blame for any mistakes or historical inaccuracies. But if you want material in the book about certain people or events, whether serious or humorous, you will need to do your

part. I have begun to do interviews with lawyers and judges in Arkansas, but that alone will not suffice. Give me your help and let us make it a book that we can all enjoy and appreciate in the years to come.

HANDWRITING EXPERT Scientific examination of Handwritten, Typewritten, Printed, Altered, Obliterated, Charred and Office Copier Documents; Ink and Paper Analysis, Dating and other document-related problems. Diplomate of the American Board of Forensic Document Examiners, Inc. Member of the American Academy of Forensic Sciences.

ROBERT G. FOLEY FORENSIC DOCUMENT EXAMINER 1109 N. 4th Street Monroe, LA 71201 318-322-0661 Qualified and Experienced Expert Witness in Federal, State, Municipal and Military Courts

John E. McAllister, P.E. EXPERT WITNESS Graduate Electrical Engineer, 34 Years Industrial Experience. Specialist in Industrial Machine Guarding and Safety. Born 1921. B. Sc. in Electrical Engineering 1947. 14 Years experience with General Electric Co. in engineering and industrial sales. II Years President of company involved with repair and rewinding of electric motors and the manufacture, sales, installation and servicing of electrical control panels for industry. 9 Years President of large distributor specializing in the sales, manufacture, installation and servicing of all types of safety equipment for industry with major emphasis on metal forming and stamping. Registered Professional Engineer in 3 states. Curriculum vitae and references on request. EXTENSIVE COURTROOM EXPERiENCE.

John E. McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909路3214 Phone: (501) 922路1709 Fax: (501) 922路4177


EXECUTIVE

DIRECTOR'S

REPORT

Proud to be a Lawyer By William A. Martin

"He makes me proud to be a lawyer," was my reaction when I heard Morris Dees when he was the keynote speaker for the opening session of the 1991 American Bar Association meeting. Our President, john Gill, heard Morris Dees in another setting and knew immediately he was a must speaker for our Annual Meeting. Morris Dees conveys his message about the importance of the rule of law and our role as lawyers in upholding it in a quiet, calm manner and without big words or carefully turned phrases. In a sense, the messenger is the message as he tells about how he and other lawyers at the Southern Poverty Law Center represented people who were victims of injustice and vindicated their rights. His appearance alone will make your coming to our Annual Meeting worthwhile. Dees became a lawyer for the right reasons. He tells of his interest in the law as a means to right wrongs going back to a time when he was 16 and his father sent him to an Alabama justice of the peace court with a black worker from the family cotton farm who was wrongly accused of drunk driving. The police and jP considered black people unworthy of belief and there was a conviction. Dees told his father that was not right and the reply was: "If you want to do something about it 24

ARKANSAS LAWYER

SPRING 1993

why don't you be a lawyer someday." Dees has been doing something about it for well over a quarter century and is probably best known for his civil suit following a Klan inspired murder that resulted in a judgment bankrupting the Klan. For his work in making hate crimes expensive, he has been recognized by ABC's Peter jennings as "Person of the Week." We need to take time occasionally to reflect on the magnificent things law and lawyers do for our society. In this day of frequent lawyer bashing by politicians and the press it is easy to become discouraged with our chosen profession. The stress of everyday practice and the pressure to produce "billable hours" have made a substantial number of lawyers who respond to surveys say they are dissa tisfied. To help us put things in perspective we have other parts of the Annual Meeting program to address SOme of these issues. A presentation about Value Billing will start us on the road to looking for alternatives to the inefficient and unsatisfactory billable hour tyranny. We will have a debate about whether law is a profession or a business and how conflicting pressures to make it either can be resolved to make it the best of both. Besides programs to tell us what the law is our Annual Meeting will give us time to reflect on what we individually and our profession must

be as we approach the 21st Century to make ench of us continue to be proud to be a lawyer.

Of course we do not have to wait for meetings to think about why we are proud to be lawyers, but sometimes they focus our attention. We know from the very beginning days of our nation that lawyers were the people who had the foresight to establish a system of government which gives us the world's longest surviving democracy. Today we have lawyers, and especially Arkansas lawyers, in the highest positions in state and national government. We have lawyers effectively running many businesses. We have lawyers who have been responsible for the progress we have made in recognizing, extending and protecting individual rights. Without the knowledge and inspiration flowing from a legal education and the mentoring, the companionship and the example of lawyers passed on from generation to generation OUf state and nation would not have the strength and potential to get better and better that it has. The title to an old Charles Wesley hymn, "A Charge To Keep I Have," sums it up. We all have a charge to do the things and to be the things that make us all proud to be lawyers.


ARKANSAS MEDIATION / ARBITRATION SERVICE An Affiliate of Oklahoma Mediation / Arbitration Service is pleased to announce that Fayetteville Attorney, David Morris, has become a member of our mediator panel. Attorneys Bart Virden & J. R. Buzbee will continue as members of our Little Rock mediator panel.

ADMINISTRATIVE OFFICE John D. Rothman, Legal Director 7666 East 61 st Street Triad Center I, Suite 335 Tulsa, OK 74133 (918) 459-0100 Fax (918) 459-0103

Toll Free 1-800-753-0100 Little Rock 501-372-5152


GIves Meaning to the Numbers

Attomeys know the law, accountants know their numbers, and when a case in litigation involves complex accounting, tax and financial issues, you bring in a CPA to "make sense of the numbers:' That's where BKD can help your case. 'fake a recent business dissOlution case, for example. We objectively determined the value of the business in question, then testified about the tax consequences, the company's fair value and the independence of the parties involved. Call us for more information about hoW our tax and financial exPertise can help your case in business splits, business continuations or structuring noncompete agreements.

Little Rock

372-1040 Pine Bluff 534-9172


LAW,

LITERATURE

&

LAUGHTER

ADog and Mule Show of Precedential Proportions By Victor A. Fleming

Back to the issue: Which is most entertaining - testimony, pleadings, or judicial opinions? Jacqueline Wright, Arkansas Supreme Court librarian, submits State v. Jackson,I an appeal from a conviction for refusing to comply with a "lawful order of (aJ police officer [directing] traffic," contending a man on an animal was not "traffic:" "The animal ... was named Frieda. Frieda's mother apparently had an impeccable equine pedigree - indeed, the events of this case suggest origins in the hunt country of Maryland or Virginia, with strains of hunter, Morgan, or perhaps saddlebred in her background. Unfortunately, like many young ladies of breeding she made a love match far below her station. Her mate may have had charm, and clearly had animal magnetism, but he was also indisputably a jackass. Frieda, the product of this unhappy union, was a mule. "She was no ordinary mule, however. Although genealogy and geography had conspired together to deprive her of her rightful heritage, Frieda could not be content with a mule's customary plodding fate, shackled to a plow or wagon, with no hope of pleasure in youth or even progeny to comfort her in old age. Encouraged by her owner and by a coonhound named Buck - reportedly valued at $1500 â&#x20AC;˘ Frieda took up that nocturnal ritual known as coon-hunting. She was an apt pupil. From her father she had inherited a surefootedness which proved advantageous on rough and rocky ground. From her mother she had acquired talents which, with a little practice, enabled her to clear a four-foot fence with ease ... "[W]hile returning from one of her favorite evening outings, ... Frieda had

her present brush with the law. It was almost midnight and Frieda, tired from the chase, was riding in the back of her owner's pickup, swaying gently between the stock racks and looking forward to spending the rest of the night peacefully in her pasture on the banks of the Verdigris River. 2 Buck was in the cab with their mutual owner ... They [were] less than half a mile from Frieda's pasture when they encountered a police barricade and Deputy Lee Coltharp ... "... Although he had been allowed through some six hours earlier when he had picked Frieda up, this time the defendant was ordered to turn around and go back. He protested that doing SO would mean eight or ten miles of driving to reach the nearby pasture ..., got out, and signaled to Frieda. Obediently, Frieda jumped out of the truck. Before Coltharp could react, defendant mounted and rode off into the night, ... through the restricted area, to the pasture. There Frieda made her last leap of the night, over the fence and into the familiar safety of her home grounds. "Defendant returned ... afoot, again through the restricted area, to his truck and the waiting Buck. Also waiting was Deputy Coltharp, citation in hand."3 Because a statute defines "traffic" to include pedestrians and "ridden animals," the court affirmed the conviction. From Bob Jesberg of Little Rock, this exchange in a domestic dispute (one partner was alleged to have used a knife on the other): Q. Prior to the incident in questions, were you and the defendant living together as husband and wife? A. Two or three night a week we was. From William J. Wynne of El Dorado, this from an auto accident case:

A. [The only other accident I've been involved in] was when l was driving down this logging road in a pickup truck and ran into a hog. Q. Was anyone hurt? A. Only the hog. Q. Was he hurt bad? A. He must have been, because he died. And Kay McClanahan, of the Administrative Office of the Courts, submits some pro se grievances received by the Committee on Professional Conduct on pre-printed forms (we'll call these pleadings for the record): Q. What did you hire the attorney to do for you? A. Slip and fall out of state. 4 Q. What was the fee arrangement? A. I would pay for coping and filling fees and if settlement was reached she would get 30% of medical charges? And these excerpts from statements of "the circumstances involved": "The worst part about the whole thing is that now my reputation has been expunged." "1 believe she has broken the standards of conduct for an attorney; and the Mordate rule also." "Also is there any way for me to be reimbuse for the money which I have

sent?"6 Š 1993 by Victor A. Fleming 1. 5 Kan. App. 170, 613 P.2d 398 (1980). 0 testimony was cited fOf" this 2. conclusion about Frieda's state of mind. 3. 5 Kan. App. at 171. 4. Must have been a Texarkana lawyer. 5. I wonder if the First Lady's proposed healthcare reform will address roping fees? 6. Score at the end of round 5: Testimony 12; pleadings 12; opinions 4. Come on, you opinion readers out there, let's close this gap!


ARKANSAS BARASSOCIATION SUSTAINING MEMBERS The support ofthe Sustaining Members ofthe Association contributed this year to the production of The Consumer Law Handbook which will be distributed to the pubic free ofcharge. They are also sponsoring the appeara"ce ofMorris Dees at the 1993 Annual Meeting. PHILIP S. ANDERSON LllTLEROCK

DAVIS DUTY FORT SMITH

ROBERT L. JONES, UI FORT SMITH

BOBBY LEE ODOM FAYETIEVILLE

ROBERT D. TRAMMELL LlTlLEROCK

R. KEITH ARMAN HOTSPRIN S

E. CHARLES

PHILIP E. KAPLAN LI1TLE ROCK

JOE D. OLSON BRANSON, MO

FRED S. URSERY LnTLEROCK

WARREN O. KIMBROUGH FORT SMITH

DAVID L. OSMON MOUNT AJN HOME

JAMES R. VANDOVER MARIANNA

JOHN T. LAVEY UTILE ROCK

BE L. PADDOCK FORT SMITH

ROBERT C. VITIITOW WARREN

[J<E AUE LAWS,jR. RUSSELLVILLE

EDWARD M. PENlCK LlITLE ROCK

LYNNF.WADE FAYEITEVILLE

CHARLES R. LEDBElTER FORT SMITH

E. LAMAR PEITUS FAYEITEVILLE

JACK L. LESSENBERRY LITILE ROCK

FRED M. PICKE S, jR. NEWPORT

ROBERT O. LEVI ORTH LI1TLE ROCK

FRED E. PICKEIT BENTO

RUTH LINDSEY UTILE ROCK

DAVID A. PIERCE NEOSHO

WILLIAM A. MARTIN NORTH LlTILE ROCK

WILLIAM I. PREWETT EL DORADO

RO ALD A. MAY UTI"LE ROCK

DONALD C. PULLE HOT SPRINGS

BERNARD WHETSTONE UTl"LEROCK

S. HUBERT MAYES LI1TLE ROCK

JOHN I. PURTLE LITILE ROCK

PERRY V. WHITMORE NORTH UTILE ROCK

HERBERT H. MCADAMS UTI"LE ROCK

LOUIS L. RAMSAY, JR. PINE BLUFF

j. GASTO WlLLIAMSO UTl"LEROCK

HAYES C. MCCLERKIN TEXARKANA

CHARLES B. ROSCOPF HELENA

WILLIAM R. WILSON, JR. LITILEROCK

H. H. MCKENZIE PRESCOIT

NORMAN C. RUSSELL TEXARKANA

JAMES H. MCKENZIE PRESCOIT

ROBERT G. SERIO CL.ARENDO

H. MAURICE MITCHELL LITILE ROCK

DENNIS L. SHACKLEFORD ELDORADO

ANTHONY BARTELS JONESBORO PAUL B. BENHAM, III LfITLEROCK

TED BOSWELL BRYANT WILLIAM H. BOWE LfITLEROCK WM. CLAY BRAZIL CONWAY

EICHE BAUM UTl"LEROCK JOHN D. ELDRIDGE AUGUSTA OSCAR FENDLER BLYrHEVILLE JOHN A. FOGLEMAN UTILE ROCK VI CENT FOSTER. jR. WASHINGTO ,DC HERSCHEL H. FRIDAY UITLEROCK

EDWARDW. BROCKMAN, JR. PINEBLUFF

CHARLES R. GARNER FORT SMITH

RICHARD K. BURKE PRESCOTI, AZ

JOH P.GIU UTILE ROCK

GEORGE M. CALLAHAN HOT SPRINGS

CHARLES L. GOCIO BENTONVILLE

GEORGE B. COLLI S CHICAGO,IL

ATHA G. GORDO MORRILTO

CARL K. CREEKMORE VANBUREN

ALBERT GRAVES, jR. HOPE

JAMES D. CYPERT SPRINGDALE

JOHN C. GREGG BATESVILLE

M. BURK DABNEY MARKEDTREE WALTER W. DAVIDSO Ll1TLEROCK JACK DEACON JONESBORO jAYW. DICKEY,JR. WASHINGTON, OC H. T. DICKINSO SWEET HOME

MI HAEL E. HALE LI1TLEROCK RICHARD HATFIELD UTILE ROCK DAVID A. HODGES UTILE ROCK PHlLUP D. HOUT NEWPORT CLlNTHUEY WARREN

PHILIP E. DIXON Ll1TLEROCK

DO ALD T. JACK, jR. LnTLEROCK

WINSLOW DRUMMOND LITTLE ROCK

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suggested a definite trial strategy where, essentially, the "defrauded" company was put on trial and the defendant was portrayed as striving for legitimate financial success. The pre-trial simulation also revealed that respondents familiar with the term "bond-daddy" consistently voted for a guilty verdict. During voir dire, three members of the panel acknowledged familiarity with the term bond-daddy, and peremptory challenges were exercised against these three. In a mini-validation of the select jurors using these criteria. Justice Purtle was acquitted and his simulation, one of those struck two co-defendants were convicted. The subsequently responded to the narrative contribution of jury selection to the and found the defendant guilty. At trial, acquittal is undetermined but our strong the preferred instruction regarding intent impression was that it was extremely was adopted by the court and the actual helpful. 3 We regarded the technique so trial outcome corresponded exactly to the promising that we decided to explore its simulation results: ot Guilty on 18 counts; guilty on three counts. One of the possibilities in subsequent cases. One of the earliest post-Purtle cases primary lessons learned was that our involved a defendant who was charged simulation tool, primarily designed as an with 21 counts of mail and wire fraud in empirical guide to jury selection, could his capacity as an account executive for a also be used to experimentally determine local securities firm. Again, a written trial the relative effectiveness of alternate trial narrative was prepared along with a juror strategies. The use of experimental variations of questionnaire and a response sheet that provided for verdict and estimates of the trial narrative was also highlighted in critical evidence. Our expectation was that the trial of a doctor charged with illegally most "jurors" would find the defendant dispensing prescriptions for controlled guilty but our hope was that we could drugs. In particular, his authorizing DEA identify some criteria that would help in Certificate of Registration had been jury selection. We were surprised by the revoked as the result of a prior felony large number of not guilty verdicts. conviction and he had dispensed Analysis of pre- and post-verdict prescriptions using another physicians deliberations and interviews with the OEA registration number. The Grand jury indictment of the respondents revealed that the critical variable revolved around financial gain or doctor was based not only on information loss. "Jurors" who acquitted concerning the current case but also acknowledged the defendanYs actions but included details of the prior conviction. inferred no intent to defraud because One experimental question was whether most transactions involved a financial information concerning the prior conviction should be suppressed in limine. gain. Based on these results, a new trial A related question was whether that narrative was developed which information was central to the indictment. emphasized defense arguments that the The questions were addressed by "defrauded" company actually made preparing two versions of the trial money from the defendant's actions and narrative. The narratives were identical that the defendant's intent was to make except for the addition of five sentences to money for both himse1f and his company - Form B of the narrative. Both narratives not to defraud anyone. One half of the referenced the prior conviction in the new narratives included one form of prosecution's opening statement and judicial instructions regarding intent and again in the doctor's cross examination. the other half included a different set of The additional five sentences were added instructions. A significant increase in not to cross examination and elaborated on guilty verdicts was associated with the the circumstances of the prior conviction. The results were striking and new defense argument, and the increase was augmented with Form A of the statistically significant.' Only 25 percent judicial instructions. Overall, our of the "jurors" who responded to form A simulation jurors found the defendant not found the doctor guilty while the guilty on the 18 counts involving financial conviction rate rose to 66% for jurors gain, and guilty on the three counts provided with details of the prior involving financial loss. These results conviction. These results were not required to support the suppression The narrative produced both guilty and not guilty verdicts, but the verdicts were not randomly distributed across respondents. When the respondents were structured by a particular combination of gender, newspaper preference, and case familiarity, there was a distinct and significant trend toward not guilty. Because of the probabilistic associations between verdict, case familiarity, gender, and newspaper preference, Perroni and co-counsel Bill Wilson were advised to

32

ARKANSAS LAWYER

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request, which was granted. but they were presented to the judge in support of a motion that the case be dismissed on the basis of an unconstitutional indictment. The argument was that by introducing irrelevant and inflammatory information before the grand jury, the indictment became the product of passion and prejudice and therefore tantamount to grand jury abuse. From the bench, the judge spent about two hours considering the motion and his verbalizations suggested that he was clearly sympathetic. In the end, however, he decided to send the case to the jury who acquitted the doctor. Post-trial interviews with selected jurors confirmed that the eVidentiary issues apparent from the simulation were the salient issues in the actual trial. During the savings and loan trial of Howard Weichern, the initial pretrial simulation suggested that a conviction was likely on one or both of two criminal counts and also revealed useful defense information for trial purposes. It did not, however, yield any clear criteria for jury selection although an earlier venue survey established that familiarity with the case was associated with pretrial estimates of guilt. 5 The absence of a clear strategy for jury selection prompted us to experiment with an interesting supplement to the simulation approach. In 1987 the American Law Institute and the American Bar Association published Walter Abbotrs Analytic Juror Rater, which uses national survey data to make a quantitative estimate of the likelihood that four types of values are represented by jurors in various status categories (e.g., gender, age, occupation). The virtue of the Analytic Juror Rater (AjR) is that potential jurors can be profiled, or probabilistically associated, with the four types of values using the limited data available from the offidallist of petit jurors provided by the court (e.g., gender, age, occupation, marital status). The primary problems with the technique are that (1) no validation data has been reported SO there is no confidence that the values are actually related to verdicts, and (2) it isn't always clear for a particular case which value, or combination of values, should be profiled. We circumvented the problems by, first, revising our juror questionnaire to include two questions related to each of the four AjR values. This enabled uS to evaluate each respondent relative to each scale. Secondly, the pre-trial narrative and revised questionnaire were administered to a new sample in the week prior to trial and individual verdicts were correlated


with scores on each of the four scales. Scores on the economic scale predicted verdicts. This result was unknown to Perroni and his paralegal, Sherry Joyce, as they independently identified ten jurors from the official petit juror list likeiy to be challenged based on network information. We profiled the entire panel of 88 petit jurors on all scales and nine of the ten jurors nominated for peremptory challenge were profiled at the bottom of the economic scale. The convergence of simulation and network results gave us confidence to use the economic scale as a guide to jury selection in the Weichern case. Profile scales are constructed such that the most favorable juror can receive a score of 100 while the most dangerous juror can receive a score of O. The distribution of profile scores across the Weichern panel was skewed in the dangerous direction with an average score of 43. Fifteen potential jurors scored below 30 while only four scored above 70. The problem of finding an impartial jury, much less a favorable jury, was compounded by the pu blicity surrounding the triaL Familiarity with the case was common and several members of the panel were dismissed for cause on the basis of preformed opinions. Fortunately, all panelists excused for cause scored below 39 on our profiler. Two additional low scoring panelists were excused for cause based on their response to a voir dire question taken from the economic scale. With the exception of one dangerous juror recommended for inclusion by Mr. Weichern, peremptory strikes were used to eliminate the remaining jurors identified as most dangerous to the defense. The peremptory strikes by the prosecution eliminated our two most favored jurors with the result that the profile composition of the final jury was compressed into the low midrange of scores. After the case went to the jury, deliberations proceeded for three days when the jury reported they were deadlocked on the two counts. The question became whether or not to administer the "dynamite" instruction. By all appearances, the trial had gone well and Mr. Weichern supported the instruction, which the court administered. The jury subsequently rendered a verdict of guilty on one count and not guilty on the other (with the dangerous but included juror a champion of guilt). The retrospective lesson may be that the "dynamite" instruction will induce a lessthan-favorable jury to compromise on verdicts involving multiple counts.

While a complete Weichem acquittal was not achieved, use of the AJR appeared so promising that questions relating to AIR values are now routinely included in all of our simulation questionnaires. If any value, or combination of values, reliably predicts verdict, then that value is used to profile the actual jury panel. Having a structured rating of the potential jurors at voir dire provides an efficient mechanism to manage the limited and sometimes confusing moments when actual selections are made. One simply exercises peremptory strikes against those jurors at the bottom of the list who survive voir dire challenges for cause. We should emphasize that the profile does not guarantee that a particular juror reflects a particular value. It simply specifies the empirical probability that the value is represented by the juror. If other empirical information contradicts the profile, we don't hesitate to modify the rating. For example, one bankruptcy fraud case involved a defendant who had been involved in an extramarital affair. The affair was not legally germane to the case but the simulation results revealed that it effectively increased the probability of a conviction. Relative tolerance for sexual promiscuity is reflected in the cosmopolitan lifestyle scale and this scale was used in combination with one other scale to profile the jurors. One particular juror seemed to be ideal from a defense standpoint as he scored some 15 points above the second highest juror rated. When called, our "ideal" juror announced that he was actually a Pentecostal preacher and believed that extramarital affairs were second only to overeating on his scale of sinful activity! We moved. him from the top to the bottom of the scale. Another extra-evidentiary issue in the same bankruptcy fraud case revolved around the fact that the defendant was an attorney. When the "jurors" involved in the simulation had this information they voted to convict while acquittal was the norm when the information about profession was withheld. It was not a case of equating lawyers with criminality but a matter where the jurors assumed that a person trained as a lawyer would have known the ramifications of certain actions relating to the fraud charges. These results contributed to the decision to keep the defendant off the stand. As a consequence, the professional background of the defendant never emerged at trial and the defendant was acquitted. While all of the preceding cases have been criminal cases, the simulation can be equally effective for civil cases. In fact, the

simulation provides an excellent tool to generate estimates both of liability and probable damage awards. For example, one recent case involved a plaintiff who had broken his back following a faU from a truck and was left impotent and incontinent. He brought civil action against the company where the truck was being loaded when the accident occurred. Based upon the depositions in the case, a trial narrative was developed and administered to 47 jury-eligible subjects in the trial jurisdiction. Only four of the subjects individually failed to find the company liable prior to deliberation and all post-deliberation verdicts supported company liability. Prior to trial, attorneys for the defendant offered a financial settlement. Our question was whether to accept the settlement offer. The simulation results included categorical amounts of damage awards from each juror. These data and the techniques of statistical inference were used to determine the lower and upper limits that would be awarded by 95% (and by 99%) of randomly selected juries from the trial jurisdiction. The results suggested that the offer was significantly less (by a factor of 3.5) than a randomly selected jury would award - and less by a factor of about five than a jury selected on the basis of the high-award juror characteristics identified. by the simulation results. Eventually, a settlement was reached that was consistent with the simulation awards. Despite the advantages conferred by the simulations, there are cases where pretrial information seems to be not quite enough. We recently perfonned the usual pre-trial activities in a case that involved. a defendant charged with the illegal packaging and selling of misbranded penicillin to poultry producers. Our "jurors" identified several trial issues that required resolution if a successful defense were to be achieved. Most of these were addressed prior to trial but one sticky issue revolved around the defendant's role or responsibility in the storage of illegal penicillin in a rented miniwarehouse. There were reasonable explanations but there was no pre-trial resolution of the lines of argument to which the jury might be most receptive. An additional problem was a weak association between juror characteristics and verdicts. In this case we supplemented our pretrial information with informa tion supplied by surrogate or "shadow" jurors. On the week-end prior to trial, three people from a group of 10 interviewed were selected from the community where the case was being tried and hined to sit in


the spectators' seats during the actual trial, listen to the attorney's arguments and hear the real witnesses testify. Each time the proceedings in court were held outside the real jury's presence, our ju.ry left the courtroom. Ln short, they were a "shadow" of the real jury. They were paid a daily fee but were not informed which party had engaged them. Each day after the trial adjourned, the shadow jurors were taken to a conlerence area where they were individually engaged in a discussion of the case. They also completed a questionnaire that provided for a multidimensional evaluation of each attorney and witness, estimates of the strength of the respective cases, questions and points of confusion, and ratings of their current bias toward conviction or acquittal. Each evening, we reviewed how witnesses and evidence were being evaluated by the shadow jury and they effectively became on-the-spot, layperson advisors for the defense. Very early in the trial we determined that the shadow jury liked the defendant, thought the prosecution case was weak, and wanted some reason to justify acquittal. Both prosecution and defense had rested by 11 a.m. on a Thursday, and the judge recessed until 2 p.m. at which time closing argumenls would be heard. During the three-hour break the shadow jury assembled in the conference area and were instructed to deliberate. In the course of deliberations, the major obstacle to acquittal revolved around a defense explanation of the defendant's role with the rented mini-warehouse. The shadows discussed three possible explanations and concluded that one explanation in particular would warrant acquittal. They "chose" the preferred explanation and voted for acquittal. By 1:30 Perroni was aware of the shadow deJiberations and incorporated the preferred explanation of the mini-warehouse into his final argument. The defendant was acquitted. The results derived from the pretrial narratives, the juror profiles, and the shadow juries all involve simulation elements that help define the favorable odds for selecting a particular ju.ror, or adopting a particular case theory or argument. Just as successful baseball managers and gamblers play the odds whenever they can, empirical trial approaches provide attomeys wi th simila r opportunities to play the odds relative to critical trial decisions. These decisions are often based on the attorney's intuition and a knowledge of the odds can result in an improvement over intuition. How expensive is the improvement of intuition? Historically, sophisticated prt:-

34

ARKANSAS LAWYER

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trial research has been extremely expensive, easily reaching $30-50,000 with six figure costs not unusual. 6 The expense has effectively limited these resources to large corporations and wealthy clients and potentially offer an advantage to those with the financial ability to employ such resources. We think thal the approach we've outlined here can level that playing field as it (1) produces results that are equal or superior to alternative approaches, and (2) is a resource well within the means of most clients. First, consider the effectiveness of jury selection. In the 1971 conspiracy trial of the Harrisburg-Seven 7, a team of soci<ll scientists developed "scientific" or systematic jury selection which has now been used in a number of highly publicized trials that ended with acquittals or favorable awards. 8 The technique usually involves an extensive survey of the population in the trial community to determine attitudes about the case and the development of demographic profiles of statistically probable "good" and "bad" jurors based on these attitudes. Indirect information is gathered about prospective jurors prior to trial through information networks and, at voir dire, potential jurors are individually rated using one or more scales. Attorneys in these cases, along with the mass media, have frequently attributed favorable trial outcomes to the jury selection technique. 9 However, there are reasons to be skeptical about the impressive success rates reported in these cases. The success may have had nothing to do with selection: most of the trials had political overtones, involving difftculHoprove conspiracy charges, and often involved cases where the opposition's evidence appeared weak. Further, attomeys with the drive and resources to engage social scientists have probably prepared exceptionally well on all aspects of the trial anyway, and it may be exceptional case preparation, not the jury selection, that accounted for the trial outcomes. Finally, a good lawyer working alone, using good judgment and traditional skills, probably can eliminate some biased jurors. The control condition for measuring the effectiveness of any selection procedure is to compare the verdicts of jurors selected and challenged by the lawyers' usual procedure against the verdicts of jurors sel~cLed by the alternative procedure. This comparison could determine if the alternative technique made a difference. In fact, the relevant comparison has not been reported, and the validity of jury selection procedures is difficult to assess. Some of these factors are potential competing explanations for our own

positive results with the simulation-based selection procedure. For example, some of our cases have involved conspiracy charges and we can't reliably separate the simulation results from general case preparation. Moreover, we have never assessed the difference between attorney selection and selection by simulation. 1O So, estimates of validity for either systematic selection or selection-by-simulation are difficult at best. However, there is a subtle but profound difference in the product of the two approaches which relates to validity. The product of systematic selection is a probable association between demographics and certain attitudes. Any association with verdict is only presumed. The chain of reasoning is as follows: demographics are correlated with attitudes; attitudes presumably predict verdicts; therefore demographics presumably predict verdicts. In contrast, our approach empirically establishes demographic+verdict (and attitudeverdict) relationships for the simulation and then presumes the relationships will also characterize the actual trial. The predictive association between identifiable juror characteristics and sJ11lUlation verdicts is one validity indicator favoring our approach. There are also several lines of real-trial eviden~

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that constitute validation-type material: jurors removed for cause have been those jurors identified as dangerous by the simulation results; one juror identified as dangerous but not removed really was dangerous; jurors struck because they were identified as dangerous responded to the simulation as predicted; post-trial interviews with jurors support the pretrial ratings. These encouraging signs are not sufficient to establish validity but they do inspire a certain confidence in the approach. Further, unlike systematic selection, the simulation approach has greater potential for the the development of trial strategies. The general information produced by the simulation includes the points where a typical juror makes a trial decision, changes his or her mind, what information or witnesses prompted the change, and the basis for both pre- and post-deliberation opinions. Frequently, these initial results have suggested focus areas or issues that would not have been apparent without the simulation, or issues to avoid (eg., our attorney defendant). The initial baseline results can then be used to test the impact of different presentations (e.g., opening statement or closing argument; order of introd ueing

witnesses) or pieces of evidence. Simulation studies are common in psycholegal research and a considerable amount of controversy concerns the fidelity of the simulation. A common presumption is that the value of a simulation is directly related to the congruence between simulation conditions and a jury trial. Thus the most valuable research setting is the trial itseU, followed, in order of preference, by a live mock trial, a trial videotape, an audiotape, and then a written transcript. This presumption can be challenged. The first consideration in selecting an appropriate simulation medium concerns the research question that is being asked. In our case, it is the applied question of whether our simulation can model the behavior of jurors in the actual trial. There are also practical considerations such as whether a given medium can be utilized with the available resources of time and money. In general, as the fidelity of the simulation increases, so does the cost in time and money. This does not mean that the fidelity of the simulation is maximized according to the client's ability to pay. In fact, our experience suggests that the least expensive model- a narrative- has several advantages over the seemingly less

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artificial models. Consider the clistinction between "structural" and "functional" verisimilitude." Structural verisimilitude is concerned with questions such as: How realistic are the setting and circumstances wherein participants are asked to behave as jurors? How similar are the research participants to real jurors? Functional verisimilitude, on the other hand, is concerned with the extent to which the model mimics the behavior of actual juries behaving under conditions of similar input While functional verisimilitude is our clear objective, a preference for maximum fidelity only follows if structural verisimilitude is a necessary prerequisite for achieving functional verisimilitude. We think not. However, we do maximize fidelity along some dimensions of the real trial. For example, we use jury-eligible subjects representative of the actual jury pool and provide case-specific, legally relevant, sequential information (opening statements through judicial instructions) to obtain post-deliberation verdicts. A courtroom setting mayor may not be used and mayor may not generate the awe and solemnity that most jurors are believed to feel in an actual trial. The narrative does not portray linguistic cues

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(e.g., pitch and intonation) or nonverbal cues (e.g., appearance, demeanor, and facial expression) and the extent to which the trial outcome is determined by such cues limits the extent to which the results of a narrative simulation will generalize to the actual trial. One way to represent these cues is to enhance the fidelity of the Simulation, perhaps by a mock trial or through a videotape. The unrecognized risk is that any surrogate actors may introduce their own unique linguistic and nonverbal cues that actually reduce the value of the simulation. In this case the use of a written trial narrative may provide greater functional resemblance to critical trial features than either a live or videotaped bial. Because of this risk, and since most authorities agree that the large majority of trial outcomes are determined by the case evidence, our bias is that the best medium for isolating the case evidence is often provided by the narrative. This rationale guided our early preference for the narrative simulation, and the preference has been reinforced by our actual experience. There has been one major exception. The exception was our first collaborative civil case and involved a young man who broke his neck in a swimming accident. During his subsequent hospital stay, a dislodged endotrachael tube resulted in a life-threatening emergency followed by cardiac arrest and brain damage during reintubation. The young man's final condition was that of a ventilatordependent quadriplegic. The narrative simu lotion results strongly suggested that jurors would determine the hospital to be negligent, with some distribution of liability across two specific doctors. The associated simulation awards were substantial. Even though the trial presentation was less than perfect (e.g., one expert read a critical x-ray upside down), the primary trial evidence seemed to correspond to the simulation evidence (except for a real-trial delay of one week between the presentation of plaintiff and defense cases). After extensive deliberation, the Pulaski County trial. The jury determined there was no liability for any of the defendants. The immediate aftershock of the jury decision was to question whether civil cases could be adequately simulated in narrative form. This seemed unlikely since, relative to a criminal trial, the availability of pre-trial depositions increases the amount of case-specific information that can be portrayed. Another question revolved around the 36

ARKANSAS lAWYER

SPRING 1993

impact of the trial delay on the jury's decision. Our curiosity about the decision was resolved through post-trial interviews with the jurors which revealed that they collectively believed the hospital to be liable and six attributed liability to individual doctors. Despite their individual attributions of negligence, they feared that the attorneys and the young man's family, not the young man himself, would receive all the damages. It was this concern that led them to decide against the plaintiff. This deliberative outcome mayor may not have been anticipated if the narrative would have addressed the distribution of damages across potential recipients. Whether the question would have arisen with a simulation that included visual fidelity is simply unknown. The lesson, however, was twofold: 0) A narrative, civil-case simulation should include interview questions designed to reveal sensitivity to potential award recipi.ents and (2) a visual simulation should be used if there is reason to believe visual information may affect the trial outcome. Perhaps the best course is to administer a narrative simulation to a large sample and then, based on the results, conduct a more extensive videotaped simulation. It may at least be prudent to determine reactions

to videotaped samples of major trial players (e.g., attorney, plaintiff and/or defendant) even in cases where visual elements are not expected to affect the trial outcome. Again, the primary consideration is to represent the case in such a way that the simulatlon results will generalize to the actual trial. ow consider costs. As indicated earlier, systematic selection can be expensive and its primary yield is a probabilistic association between demographics and attitude. In contrast, our clients' expense for a probabilistic association between demographics and AJR attitudes approximates $600, depending on the number of attitudes scaled and the size of the petit jury list. In cases where the attorney knows which attitudes and values to use for jury selection, $600 can be a manageable expense to estimate the demographic associations with those attitudes. If additional simulation-derived information is sought, the expense of preparing and conducting a simulation within Arkansas will typically range from $3,000-5,000, depending on the complexity and location of the simulation, the medium utilized, and the number of respondents. 12 In this context, complexity refers to the number of trial elements to be

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evaluated, the amount of evidence, and the extent to which the researcher assists the attorney in assembling the information <e.g., opening statements, anticipated witness testimony). The cost difference between narrative and audio simulations is negligible, and even the production costs associated with a video presentation are nominal. If surrogate jurors are sought to monitor the actual trial proceedings, the typical fee in Arkansas ranges from $50-7S/day so the tolal cost of a shadow jury depends on the number of surrogates and the length of the triaI.13 This discussion suggests that some improvement in intuition can be obtained at relatively low expense. In fact, the expense can be further reduced since much of what has been reported here can be executed by the resourceful attorney. For example, a paralegal can be trained 10 profile the jury panel according to the Analytic Juror Rater. A determination of the trialrelevant scale can be derived from AJR guidelines, or as a resull of administering the attorney's own mini-simulation to a representative sample of jury-eligible subjects. Practical descriptions for preparing both live and videotaped simulations are available.1 4 In some cases, pre-trial research of the sort we've described may not even be necessary. For example, in cases where the evidence is exceptionally strong either way, the particulars of the case will probably outweigh the composition of the jury and perhaps any insights derived from the simulation. One key to the financial management of pre-trial research is to determine your trial needs and circumstances and then tailor the research to meet those requirements, doing whatever can be done to limit potential weaknesses. Given the range of objectives and resources of trial attorneys, a paper moon strategy may be optimal.

Robert M. Berry, Ph.D., is a psychologist who owns and operates RMB Associates, Applied Trial Services, specializing in PreTrial Testing/Simulation, Jllry Selection, Feedback Jurors and AUJIlrd Fore=ting. He freqllently works with Samuel A. Perroni, a noted criminal trilll lawyer with Perron; & Looney in Little Rock. Endnotes 1. The advantages are both practical and methodological. The practical advantages are associated with available resources and research costs in securing subjects, stimulus materials, facilities, etc. Methodological

advantages include the ability to obtain multiple replications and to effect precision and control over critical evidentiary variables. 2. Although the case was to be tried in Perry County, we used Pulaski County respondents for the actual test as we were sensitive to potential case contamination had we tested in Perry County. Because the population characteristics of the two counties were distinctly different, the risk was that results from a Pulaski County sample might not represent the results that would have occurred with a Perry County sample. To minimize this risk, the Pulaski County sample was selected on the basis of demographic and economic characteristics that were similar to the Perry County population. 3. The primary evidence in aU three cases was highly siotilar, but it was not identical. Further, there were different juries in different locations, at different times, with different defense attorneys. There is slmply no means to measure the effectiveness of the simulation. 4. The difference was attributable to the additional five sentences and not due to chance. 5. Fifty percent of the respondents who were aware that indictments had been issued in the case made pretrial estimates that Mr. Weichem was guilty. Only five percent of those who were not aware that indictments had been issued made pretrial estimates of guilt. Indictment awareness thus became a relevant voir dire question. 6. McConahay, Mullin, and Frederick. The Uses of Social Scie"ce ifl Trials willi Political and Racial OvertOfles: The Trial of Joan Litt/e. 41, Law and CONTEMPORARY PROBLEMS, 205-2Q9, 1977.

7. United States v. Ahmad (Cr. No. 14950, Middle District of Pennsylvania, Harrisburg Division). 8. Schulman, j., Shaver., P., Colman.R., Emriclc,B., and Christie, R. 0973, May). RÂŤipe for a Jury. Psychology TodDy, pp. 37-44, 77, 7984.

9. For example, Litigation Sciences advertises a 95% success rate in cases where their advice and recommendations have been employed; The New York Times reported that joan Uttle's defense lawyer boasted that he had "bought" her acquittal with a large defense fund which supported a team of jury selection experts (October 20, 1975); Bermant and

Shepard reported that defense lawyers and an advisor to the prosecutor credited the acquittals in a highly publicized Texas murder trial to jury selection techniques rather than the trial evidence. 10. We are attempting such an assessment in a forthcoming case slmulation. 11. Bermant, McGuire, McKinJey, and Salo. The logic of simulation in jury research.

CRIMI AL JUSTICE AND BEHAVIOR. 1974, 1,224-233.

12.ln most states, the mlnimum expense for a simulation is $10,OCX), with typical expenses in

the $15-30,000 range. 13. In large cities, surrogate jurors are

typically paid $100/day. 14. For a live presentation, see: Mulroy, T.R. Jllry Simillatiorr: A practical arrd it/expensive way to gd at/ "edge" at trial. THE JURY 1984:

TECH IQUES FOR THE TRIAL LAWYER (1984) For a videotaped presentation, see: Kassin, S.M. Mock jury trials. Trial Diplomacy Journal, (1984), 7, 26-30. An extensive discussion of the various uses of simulations is

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By Gerald Coleman, President AVLE Board of Directors West Memphis, Arkansas The "vision thing" that is all the rage today is exactly what the founders of Arkansas Volunteer Lawyers for the Elderly (AVLE) had plenty of in 1983. Then, as now, AVLE is a uniting of the private bar and legal services to promote fairness and integrity in our state's legal system. The foresight, planning and hard work of the players from the Arkansas Bar Association, the legal services community and the aging services network has prepared us to beller meet the legal needs of the most rapidly growing segment of our population, our elders, into our second decade of service. Part of the impetus for forming AVLE was the crisis in

the deHvery of legal aid to the poor that began with budget cuts to the Legal Services programs in the early 80s. The private bar, through the American Bar Association, the state bar associations Hke the Arkansas Bar Association, and the county bar associations across this nation began to work with legal services to prevent the dissolution of federally funded civil legal services to the poor, and to expand the service deHvery through pro bono efforts. AVLE is a product of that initial coalitionbuilding. In 1991, Arkansas was ranked eighth in the nation in the percentage of pro bono attorneys participating in organized pro bono programs. That is strong evidence that the majority of Arkansas lawyers beHeve in equal access to the judicial system and beHeve that cause is well-served through organized pro bono programs. Today, the AVLE panel consists of 600 volunteers who


agree to represent economically needy older Arkansans. A typical client has a legal problem not unlike those the attorneys routinely handle in their private practice. The panel attorneys practice in 67 counties outside of central Arkansas so that many of the pro bono lawyers are solo practitioners, or in small to medium-sized firms. These attorneys dispel any myth that only big firms can do pro bono because solo practitioners and small firms lack essential resources. Some of the most consistently loyal volunteers are from solo practices in rural communities having only two or three practicing attorneys. AVLE lawyers readily recognize their professional responsibility to preserve human dignity tl\fough the promotion of justice. A VLE is a non-profit corporation jointly sponsored by the Arkansas Bar Association five Arkansas Legal Services Programs; one Texas Legal Services Program (serving four southwest Arkansas border counties) and the Arkansas Department of Human Services, Division of Aging and Adult Services. AVLE is governed by a fourteen-person Board: six members of the Arkansas Bar Association, one person appointed by each of the six Legal Services programs, a person appointed by the Division of Aging and Adult Services, and a potentially eligible client. AVLE is administered by a full-time staff located in the Legal Services of Arkansas office in Little Rock, only a quick walk from the Arkansas Bar Center. Each year over 550 cases are completed by AVLE lawyers. Funding of the program is provided by the Legal Services programs and the Division of Aging and Adult Services; in addition, the Arkansas TOLTA Foundation and the Arkansas Bar Foundation have been significant financial contributors over the past several years. AVLE clients are referred by the Legal Services programs and the area agencies on aging tltroughout our 67 county service area. The county programs and agencies interview the clients and refer the cases to the AVLE Director, Lisa DeLoacl1e. The AVLE staff makes the referral to the private attorney and notifies the client so s/he can call for an appointment. The attorney works with the client until the case is closed. The AVLE staff is available to assist the attorney should a problem arise, and the staff pursues updates on case progress. AVLE attorneys are invited to attend at least two CLE programs annually. These are sponsored by the Arkansas Legal Services Support Center. In addition, the AVLE program has co-sponsored CLE programs with national support centers in law and aging to provide training on nursing home law, age discrimination, advance directives, and health law. Some of the organizations that have visited Arkansas to conduct these trainings are the


American Bar Association/ Commission on Legal Problems of the Elderly; the National Senior Citizens Law Center, and the AARP /Legal Counsel for the Elderly. The founders of the Arkansas Volunteer Lawyers for the Elderly had the foresight to recognize that equal access to justice was at risk in America for all people but especially for the population that was graying in greater numbers than ever before. The founders realized that after all the sacrifices and contributions of older Americans in behalf of future generations, the greatest injustice of all would be to turn them away in their time of need.

From Board Members: Amidst the press of court dates, dates for depositions deadlines for appellate briefs and just the general pressures that are part and parcel of the daily practice of law, [ have discovered an oasis. The oasis is one that allows me as a lawyer to focus and accomplish that which was the original premise for my becoming a lawyer. The oasis is one that not only allows me to meet my professional obligations but also allows me to do that which is required of me as a Christian in trying to help those who have need of my talents. That oasis is the Arkansas Volunteer Lawyers for the Elderly. In being a member of this pro bono panel over the past 10 years, [ have had the privilege of working with people who have intense need to receive some sort of relief through the judicial process. The clients with whom I have worked have in every case been very grateful for the services that I have performed. The clients with whom I have worked have in every case been most cooperative in helping me prepare their case and in working through their legal problems. In many instances, had it not been for the services that I rendered through the AVLE program and had other AVLE lawyers not rendered their services, a segment of our society would have gone without a judicial remedy and, therefore, would not have received full benefit of membership in our society. Not only would such be a waste but it would be unjust to tell the indigent elderly who have contributed greatly to our society in the form of their knowledge and experience that they cannot receive legal representation merely because they lack adequate financial resources. In short, as a member of the Arkansas Volunteer Lawyers for the Elderly panel, I find that [ am able to return something to my community for the privilege of practicing law. I find that I am able to help satisfy my obligations as a Christian to serve the needs of those less fortunate than I, and I find that in dealing with the clients, the experience has been most satisfying and rewarding. It is for these

reasons that I would encourage every lawyer to participate in some sort of pro bono program, not only because we should do it in recognition of the privilege of practicing law, not only because it is mandated by Christian beliefs, not only because it is satisfying work, but because it is the right thing to do for human beings in need. Robert Depper, Jr., El Dorado

As attorneys, it is ollr dllty to ensure that no person goes without legal representation. Some attorneys provide pro bono defense in criminal cases. Others represent indigent clients on appeal. I provide pro bono service through the Arkansas Volunteer Lawyers for the Elderly and have found that experience to be richly rewarding. Clients sent to me through AVLE are always appreciative and cooperative. They have contacted A VLE with questions they could not answer or problems they could not solve. AVLE has answered their plea for legal assistance and prOVided for them the legal services they could not otherwise afford. In return for this free legal representation, they are willing to work with the attorney and provide whatever assistance is necessary to complete the case. When the client's problem is solved, 1, as would any attorney, feel gratified by helping someone who could not help himself. The AVLE staff supports the volunteer attorney in all matters, and paperwork is kept to a minimum. The staff is quick to advise of compliments given by the client and to express their thanks for the public service provided by the attorney. Pro bono representation of the elderly is an essential public service and one which rewards the vol un teer attorney. Lucinda McDaniel, Jonesboro

AVLE Board Members 1983-1993 Max Bowie Wayne Boyce Jean Tllmer Carter Ben Cole Jerry Coleman Jamie Cox James Crollclr Bob Depper Jayme Dissley Ed Doman Janet Dyer Ann FIIllerton Panl Fnrrl. Margaret Gilbert David Harp P. K. Holmes

Jerry lroin Blaine Jackson David Manley Martlra Miller Harriman Louis Nisenbaum Val Price Rick Ramsey Cindy Seivers Plril Smitlr Qneen Ester Smitlr Rick Spencer annan Stein Jean Stewart Mona Teagne Teresa Wineland Gayle Zimmerman


AVLE - LEND A HAND!! What 18 AVLE? AVLE Is a Joint effort of the Arkansas Bar Association, Arkansas legal services programs and the state office on aging to provide free legal assistance In civD matters to poor elderiy Arkansans. Private attorneys provide pro bono legal services through AVLE In 67 Arkansas counties. AVLE receives funding from the legal services programs In this 67 county service area and from the Arkansas Department of Human Services, Division of Aging and Adult Services. In addition, the IOlTA Foundation has been a substantial contributor to the AVLE program. Since tts Inception In 1983, AVLE has defended the rights of thousands of poor elderly Arkansans through the unselfish efforts of tts volunteer attorneys. How Does The Program Work? All AVLE clients are first screened by etther a legal services program or an area agency on aging to determine their e1lglblltty for assistance. Once ellglblltty has been determined, the intake program sends the client Information to the AVLE staff for referral to a private attorney in the client's county of residence or county where the legal matter exists. Both the client and the volunteer attorney receive written confirmation of the referral. The volunteer attorney also receives open and closed case reports In order to keep the AVLE staff apprised of case progress. The AVLE staff will monttor each case until closure by requesting case updates.

Volunteer attorneys are not responslble for the payment of costs. If the client Is unable to pay the court costs, the AVLE staff wUl provide Information and forms for filing court actions "in forma pauperis". In addttlon, free malpractice Insurance Is provided on ali AVLE program cases. How Much Time Does h Take? AVLE volunteers are asked to accept no more than three cases a year, always with your prior approval. How Will Volunteering Beneth You? * Volunteers attend free or at a reduced rate MCLE training sessions Volunteers receive a Poverty Law * Practice Manual, plus all updates. Volunteers may decline federal * appointments. Volunteers have access to national * support centers. How Do You Volunteer? Fill out the form below and drop In the mall, or call the AVlE staff at 1-800-950-5817,

ext. 100. Please join us In helping the poor e1deriy delend their legal rights. Just a few hours of your time each year wUI help them preserve their digntty.

I hereby join AVLE by agreeing to represent up to three low-income elderly Arkansans each year free of charge. Name .,--,--,-Street Address Mailing Address City -:-:Firm Name Signature

State _ _ Zip

_=-_

_ _ _ _ _

County

Phone Date

To help older Arkansans with their legal problems, fill out form, detach and mail/a: A VLE, 615 W. MarlcJulm, Suite 200, LillIe Rock, AR 722iJL

_


IN

MEMORIAM

DON WAYNE BASSETI Don Wayne Bassett, 42 of Little Rock died in March. He was an attorney with the Bassett Law Firm. Survivors are his wife, Rebecca Bassett; a son, Brandon

ARKANSAS BAR

Cory Bassett; two daughters, Amy Denise

FOUNDATION

Bassett and Stacy Marie Bassett; his parents; three brothers and a sister.

PRESIDENT

JUDGE JAMES FERDINAND

FRANK

DAUGHERTY Retired Judge James Ferdinand Daugherty of Augusta died in December, 1992. He served as a municipal judge for

C. ELCAN II

23 years. He was a retired Lieutenant Colonel from the Air Force and a

Frat.k C. Elcat.

Frank C. Elcan ll, 41, of Harrison died in December, 1992. He was an attorney with the law firm of Elcan and Sprott, the U. S. District Court Magistrate and President of the Arkansas Bar Foundation. Elcan was active in area civic work serving as President of the Harrison Chamber of Commerce and Founding Pre ident of the Harrison Chamber Foundation. [n 1992, the Chamber of Commerce named Elcan its "Outstanding Individual" for his community services. He was on the Board of Directors of the Boone County United Way, North Arkansas Community College Foundation and the Harrison Council for International Visitors. In 1987, he received the statewide award for Exceptional Accomplishment from the Arkansas Community Development Program. Elcan served as President of the Boone County Bar Association in 1983, Chair of the Arkansas Bar Association Young Lawyers' Section and was a member of the House of Delegates. He was a 1983 and 1990 recipient of the Golden Gavel Award. Arkansas Bar Association President john P. Gill said "The lawyers of Arkansas have lost one of

the giants in their profession with the death of Frank Elcan. He was a lawyer's lawyer who dedicated his energies to the improvement of the legal profession and the full, fair and complete representation of his clients. Our true loss is that he will not be at our side as a role model and we shall miss him. I sat beside his bedside many times during his long struggle for life and he always talked about his family, his community and the law. We are all blessed with the memories of a great man who in his short life achieved the pinnacle of his profession." Elcan was a member of the First United Methodist Church of Harrison, where he served as a lay leader, Chairman of Finance President of the Methodist Men, and Chair of the church's expensive capital improvement program. Survivors include his wife, Angie; a son, Clint; a daughter, Ellen; his parents; a brother and a sister. A Memorial Trust has been established to provide for the education of the Elcan children. Checks should be made payable to: Frank C. Elcan Memorial Trust, and sent to: Security Bank, Attention Kathy Jefferson, P. O. Box 1078, Harrison, Arkansas 72601. l

member of the Methodist Church in Augusta. Survivors include his wife, Eugenia

Daugherty; two sons, James F. Daugherty and William S. Daugherty; a daughter, Eugenia

D.

Harrell

and

ten

grandchildren.

OMAR FAIRLEY GREENE Omar Fairley Greene, 65, of Little Rock died in October, 1992. He served as Chief Bill Clerk in the House of Representatives in Washington, D.C. Greene was also an aide to the late

Senator John L. McClellan. Survivors include his wife, Jane Greene; a son, Gmar F. Greene ll; three

daughters, Elizabeth Jane Greene Byrd, Joan Leigh Greene, and Jennifer Jon Greene; two brothers; a sister and four

grandchildren. TOM FOREST LOVETI Tom Forest Lovett, 49, of Little Rock died in MaTch. Lovett was the President of the Lovett Law Firm and a member of the Arkansas Bar Association. The Association of Trial Lawyers of America, the Arkansas Defense Counsel, the Defense Research Institute and the Lawyer-Pilot's Association. He was

listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers. Survivors include his wife, Jane Lovett; two sons, Torn Forest Lovett, Jr., and Jonathan Collier Lovett; and a sister. Memorials may be made to the Boy

Scouts of America.


WRIGHT, LINDSEY & JENNINGS We are pleased to announce the following have been named as partners

NATE COULTER Commercial Litigation

BEVERLY BASSETI SCHAFFER

JUDY SIMMONS HENRY Bankruptcy/Commercial

KIMBERLY WOOD TUCKER

Securities, Corporate Fayetteville Office

Litigation

Bankruptcy/Agriculture

And we welcome the following new associates

J. MARK DAVIS

STUART JACKSON

FRED M. PERKI S III

Utility/Commercial Litigation

2200 WORTHEN BANK BUILDING UTILE ROCK, ARKANSAS 72201-3699 (501) 371-0808 FAX: (501) 376-9442

100 WEST CENTER STREET, SUITE 200 FAYETIEVILLE, ARKA SAS 72701 (501) 575-0808 FAX: (501) 575-0999


WRIGHT, LINDSEY & JENNINGS ATTORNEYS AT LAW

YOUNG

LAWYERS'

SECTION

COLUMN

Edward L. Wright (1903-1977)

Equity not just Ethics

Robert S. Lindsey (1913-1991 )

Ronald A. May Isaac A. Scott, Jr. James M. Moody John G. Lile Gordon S. Rather, Jr. Terry L. Mathews David M. Powell Roger A. Glasgow C. Douglas Buford, Jr. Patrick J. Goss Alston jennings, Jr. john R. Tisdale Kathlyn Graves M. Samuel Jones III john William Spivey III Lee J. Muldrow Wendell L. Griffen N. M. Norton, Jr. Edgar J. Tyler Charles C. Price Charles T. Coleman James j. Glover Edwin L. Lowther, Jr. Beverly Bassett Schaffer Charles L. Schlumberger Sammye L. Taylor Walter E. May Anna Hirai Gibson

Gregory T. Jones H. Keith Morrison

Thomas C. Courtway Bettina E. Brownstein

Walter McSpadden Roger D. Rowe Nancy Bellhouse May ate Coulter

John D. Davis Judy Simmons Henry Kimberly Wood Tucker Mark L. Pryor Ray F. Cox, Jr. Harry S. Hurst, Jr. Troy A. Price Patricia Sievers Lewallen

james M. Moody, Jr. Kathryn A. Pryor J. Mark Davis Tammera Rankin Harrelson

Kevin W. Kennedy Karen j. Garnett M. Todd Wood R. Gregory Adin Fred M. Perkins III William Stuart Jackson Alston Jennings

George E. Lusk, Jr. Of Counsel

By Lucinda McDaniel

Equity: dealing fairly and equally with all concerned; freedom from bias or favoritism I have recently been accused of seeing equity issues in black and white. To that charge, I willingly plead guilty. Equity is not ethics. Lawyer ethics sometimes fall in gray areas: Are these funds properly placed in a trust account? Do I have a conflict of interest? Can [ sue a former client? Unlike "ethics" which may present situations where a practitioner is unsure of the correct course, questions of fairness, impartiality, and equality are clear. There is a right and wrong in issues of equity. Equity is not gray. The Arkansas Bar Association is actively promoting the teaching of ethics to lawyers. Two proposals ha ve been adopted by the Association aimed at insuring that Arkansas attorneys practice ethically. One resolution proposes to require the teaching of ethics in continuing legal education courses. The second resolution proposes to require testing of ethics on the bar examination. While we may study the Model Rules of Professional Conduct, the scope of the rules themselves admittedly, "do not, however, exhaust the moral and ethical considerations that should inform a

lawyer, for no worthwhile human activity can be completely defined by legal rules." Model Rules of Professional Conduct, Scope, (983). The challenge to instructors will be not only to teach the ethical rules but to instill in attorneys an emotional commitment to fairness. Ethics is not enough. The goal must be equity. Etltical behavior witltin the bounds of the Model Rules of Professional Conduct does not equate with equity. One can be unfair and yet not violate the Model Rules. In a society where attorneys are held in low esteem by the public, our profession must go beyond ethical rules to embrace the principles of equity. Just how does one insure that he or she will practice equitable law? Difficult question. We can theorize that anything equitable under the law must be ethical, but conversely, not everything ethical is equitable. Use this test: Ask yourself '15 it fair?" If you hesitate in your answer, it is probably not equitable. I accept any criticism for demanding what is right and fair and just. Attorneys should do no less. We must see equity issues in black and white. There must be a right and wrong. We must hold fast to our principles and demand not only ethics but equity.


UNIVERSITY OF ARKANSAS AT LITTLE ROCK SCHOOL OF LAW ALTHEIMER LECTURE: The spring Ben J. Altheimer Lecture was presented on Tuesday, March 30, 1993, by Professor Okianer Christian Dark of Williams School of Law at the University of Richmond. Professor Dark is a leading Womanist Theorist and teaches is the areas of antitrust, torts, and white collar crime. The lecture was presented in the Herschel H. Friday Courtroom in the Law School. STUDENT ACTIVITIES: The Law School's move to the MacArthur Park Building has dramatically increased the institution's involvement in the neighboring community. Forty-five law students have established the Law Students for Literacy Program and regularly visit the Rockefeller School, which is immediately across Interstate 30 from the Law School. Law students are working one-an-one with Rockefeller students, helping them with reading and comprehension skills. Other students are working with Pulaski County's Habitat for Humanity and are rehabilitating a house on 40th and Ludwig in Little Rock. The students are devoting their Saturdays to assisting community members rehabilitate and build homes for low income persons. Still other students with accounting backgrounds have established a volunteer taxpayer assistance program, in cooperation with the Internal Revenue Service. The students assist lower income persons in preparing their income taxes and then electronically file the returns with the IRS. The students are operating out of the Law School's Clinic suite and will provide assistance every Saturday afternoon until April 15th. The Black Law Student Association sponsored a program honoring the Birthday of Dr. Martin Luther King on January 15. Newly elected Circuit Judge Marion Humphrey was the keynote speaker. Dean Eisenberg also spoke. BLSA was active during Black History Month 46

ARKANSAS LAWYER

SPRING 1993

I

and sponsored a trivia contest as well as speeches by Attorney Wendell Griffen and Judge Joyce Williams Warren. Dean Eisenberg and Professor Frances Fender Rosenzweig attended the memorial service for justice Thurgood Marshall sponsored by the NAACP and the Harold Flowers Law Society at Central High School, on the Sunday following Justice Marshall's death. PEOPLE'S LAW SCHOOL. The Law School, in cooperation with the Pulaski County Bar Association and the Department of Life Long Education at UALR, is sponsoring a nine session "People's Law School" to be held every other Thursday through mid-June. The program, directed to the general public, will address such topics as family law, bankruptcy, consumer law, small claims and traffic courts, and elder law. The faculty includes attorneys, judges, Law School faculty, and social service professionals. More than 350 persons have registered for the program. MI ORITY RECRUITMENT AND RETE TIO : At the beginning of the academic year the School of Law had 51 minority students, 34 of whom are African American. This represents by far the largest number of minority students in the School's history. Dean Eisenberg and the H.arold W. Flow~rs Law Society have established a minority advisory committee to address such issues as minority recruitment and retention; academic support; and financial aid. The Student Bar Association has also established a special committee to assure that the concerns of all minority groups and women are addressed at the Law School. Women have constituted the majority of the entering classes in both 1991 and 1992. FACULTY OTES: Professor Lawrence Averill in October presented continuing legal education programs on living wills and durable powers of attorney at the quarterly attorney luncheon sponsored by the Mcilroy Bank and Trust in Fayetteville and at the monthly Pulaski County Bar Association CLE program ... Coleen M. Barger, formerly with the Mitchell Firm in Little Rock, has joined the Law School's legal

writing faculty. Ms. Barger presented a Program on "Planning Opportunities with Living Trusts" as part of the Arkansas Continuing Legal Education program. She has been asked to present the program again as part of the June "Best of CLE" program. She also provided training for the Arkansas Legal Services Support Center on "Estate Planning for Poor People." ... Professor Paula Casey has returned to the Law School aher serving two years as Legislative Counsel to Senator Dale Bumpers. Professor Casey teaches in the trial advocacy and clinical areas.... Associate Dean john DiPippa presented a program on "T-R-O-U-B-L-E and Your Client's Money: Stay Out of Both" as part of the Bar Association's Mid-Wulter CLE program. He also spoke on Legal Ethics as part of UALR's multidisciplinary faculty group.... Dean Howard Eisenberg has been elected to membership in the American Academy of Appellate Lawyers, the first Arkansas attorney so honored. Dean Eisenberg presented a program on Financial Exploitation of Older People at the Joint Conference on Law and Aging in Washington in October. He will present at program on Ethical lssues in the Representation of Older People as part of the Bar Association's "Best of CLE" program in june.... Professor Lynn Foster's article on Access to Academic Law Library Services: A Survey" has been published in volume 84 of the Law Library JOllrnal. The faculty has nominated Professor Foster for the West Publishing Company Academic Law Librarian Award ... Professor Dent Gitchell has returned from off campus duty assignment. Professor Gitchell spent two months in London observing English trials for his upcoming book on trial practice.... Professor Kenneth Gould has returned to UALR after spending the fall semester visiting at Wake Forest University. Professor Andrew McClurg's article on liThe Rhetoric of Cun Control" appeared in Volume 42 of the American University Law Review .... Professor Arthur Murphey attended a meeting of the United StatesMexico Law Institute in Santa Fe, New Mexico on "The Problems and Prospects of the North American Free Trade Agreement." ... Professor Philip OUver has /I


LAW been elected President of the Federalist Society of Arkansas, Lawyers' Division. Professor Oliver participated in a panel sponsored by the Federalist Society and the Phi Delta Phi legal fraternity on the legalization of drugs....Ms. Ranko Oliver has been elected to participate in the Family Leadership Project sponsored by the Arkansas Governor's Developmental Disabilities Planning Council. She also serves as project director for a program to develop a Disability Law course and CLE program, both of which will be presented this summer. The project is funded by the Planning Council. ...Professor Frances Rosenzweig will have her article on securities law published in Poland later this year. She attended a February conference on Privatization in Eastern Europe at the Parker School of Foreign and Comparative Law at Columbia University in New York. Professor Rosenzweig hopes to spend the spring, 1994 semester teaching in Poland ....Professor J. Thomas Sullivan has had two articles published recently. One, "Teaching Appellate Advocacy in an Appellate Clinical Law Program" appears in the Seto" Hall Law Review, while his article"An Overview of the Law of jury Selection for Arkansas Criminal Trial lawyers" appears in volume 15 of the UALR Law Review. Professor Sullivan presented a program for federal magistrate judges at the August Eighth Circuit Conference in Minneapolis. He presented a similar program in September as part of the Bar Association's CLE program....Professor Robert R. Wright III has been nominated to be Secretary of the General Practice Section of the American Bar Association. Professor Wright is a

member of the Section's council as well as serving as Chairman of the Section's Advocacy Committee. He serves as chair of the Arkansas Bar Association's General Practice Committee. Professor Wright has agreed to write a history of the Arkansas Bench and Bar. SCULPTURE DEDICATED: In January the final completion of the new Law School was marked by the dedication of the major sculpture in front of the building. The sculpture, which looks like a large green "W" held up by granite pillars, is the work of well known Chicago sculptor Barry Tinsley. The work, entitled

SCHOOL

NEWS

"Res Imobiles" includes the two rough granite pillars intended to symbolize law students being honed into lawyers. The granite was selected because it matches the type of granite in the Old Federal Building, the former home of the Law School. The large bronze "W" actually reflects the design of the art deco arches over the front and rear doors of the Law

School building, originally constructed in the early 1930's.

UNIVERSITY OF ARKANSAS AT FAYETIEVILLE SCHOOL OF LAW This fall, Professor Jan Levine and the staff of the Legal Research and Writing Program invited alumni to return to the

School of Law and judge the class of 1994 deliver oral arguments for the Appellate Advocacy course. Over fifty alumni participated in the fall program, and by all accounts the experiment was successful. Approximately seventy alumni volunteers have been scheduled to come back to the School of Law this spring and will judge members of the class of 1995 in the delivery of their oral arguments, which will be based on briefs prepared for the new Legal Research and Writing IT course. This fall, the faculty approved Professor Levine's request to modify the courses in the LR&W Program. The firstyear students will receive a five-credithours on instruction in two courses tha t integrate analysis, traditional hard-copy research, drafting of objective memoranda and persuasive briefs, and appellate oral advocacy. In their second year of school, the students will take a two-credit-hour course addressing advanced legal writing and research techniques, also in an integrated format. The advanced course will deal with letter writing, statutory history and interpretation, regulatory drafting, advanced computer-assisted legal research, and other similar techniques. Professor Levine is also the faculty advisor to a new student organization, the Arkansas Coalition for Public lnterest Law. The students hope to develop

various projects in areas such as environmental law and child protective services. Professor John Watkins is a visiting professor at the UALR School of Law for Spring 1993 and his article, "Summary Judgement Practice in Arkansas" was published in Vol. 15, #1 of the UALR Law Jounral. Professor john Steinkamp presented "The Generation-Skipping Transfer Tax" at the recent Arvest Trust Company's quarterly Estate Planning CLE. Professor Robert Laurence taught a two-week course in Business Law and Communications last faIl at the College for Foreign Trade in Budapest, Hungary and will return for another two-week session this spring. As a spin-off to this teaching experience, Professor Laurence and Katalin Kollath, a member of the English Department at the college, are writing a book, Commercial Law and the Language of Commerce, simultaneously. Former Dean Jake Looney and Professor Paul Schwartz both spoke at the Conference on the Force of Law, I' Association Juristia and the City of Nantes, at Nantes, France in November of 1992. Professor Schwartz delivered a paper, Paradigms of Privacy and Data Protection Law, at the Annual Meeting of the American Association of Law Professors, Panel on Defamation and Privacy, in january 1993. Professor Schwartz has had published Data Processing and Government Administration: The Failure of the American Legal Response to the Computer, 4J Hastings Law journal 1321 (1992). Former Dean jake Looney has been a speaker on Agricultural Law issues to the Arkansas Bankers Association, the Pork Producers Conference in orth Carolina, in Zaragoza, Spain and Costa Rica. He has also published "The Changing Focus of Government Reguwtion of Agriculture in the United States, 44 Mercer Law Review 1 (1993). Dean Leonard P. Strickman made a presentation on 'The Ethics of Deaning " at the American Bar Association New Dean's Workshop held in Boston in February of 1993. H


LAW

OFFICE

TECHNOLOGY

REVIEW

United States Code on CD-ROM By Barry O. Bayer & Benjamin H. Cohen

One of the first rules we established in writing these columns is to not discuss or recommend a product which has not been

released to the general public. We violated that rule last summer when we recommended, sight unseen, that our readers sent $30 to the Superintendent of Documents for the United States Code on CD-ROM, scheduled out in September. The days of 1992 dwindled down to a precious none. Only the new year finally brought us a CD-ROM entitled "United States Code, containing the General and Permanent Laws of the United States, in force on January 2, 1991." We found lots of room for improvement, but with a $30 price tag, the disc is a steal. The Database The CD-ROM, according to the documentation, includes the full text of aU 50 titles of the United States Code as of January 2, 1991, as divided into 57,169 documents. This sounds rather old, but apparently is as fresh as the current print version, which includes 28 volumes and supplements that cost some $1200. lnstaUationIDocumentation The USC disc includes Windows Personal Librarian, Version 1.71 dated February, 1991, (WPL) and I-Search software for non-Windows MS-DOS users.

The two programs are not

identical, but have simiJar features and use the same database. We instructed the automatic installation program to install both programs on our hard disk. A second option was to install two and a half megabytes of "performance files" on the hard disk. Installing the files made searches with both programs work faster. The disc comes with a five inch square 19 page manual and an on-line WPL manual searchable by either WPL or 1Search. The GPO provides telephone support weekdays, 8:00 a.m. to 4:00 p.m. The support person we spoke with was helpful, although many of the questions

48

ARKANSAS LAWYER

SPRING 1993

we had were more properly directed to the search software publisher (Personal Library Software, Inc.) or the database provider (Office of the Law Revision Counsel). Two Ways to Search In a slandard Boolean search, we select concepts represented by one or more synonyms and instruct the software to find documents in which each concept was represented by at least one synonym. (More realistically, we often began with only one word representing each concept and had to broaden the search with additional synonyms until we found the document we needed.) We then browsed through the hit list from beginning to end, noting the cases or statues that we really needed. Although the WPL and I-Search software each handle straight Boolean searches using the familiar A 0, OR, NOT and Win operators, both programs boast more sophisticated features: • Relevancy Ranking takes all of the "hits," fulfilling the literal terms of the search request, and ranks them (according to rules not well explained in the manual) with documents best fitting the request at the head of the list. • Automatic "Stemming" finds the root of each word in the search request and expands the search request to include each word in the database that has that root. ("Stemming" is similar to, but more comprehensive than, the familiar search technique of truncating a search term and ending it with a wild card character.> • "Expand" examines a search term and displays other words which frequently appear in the database in the same parts of the same documents as the search term. A WPL or I-Search user would reasonably connect each concept represented the search phrase with the OR connector, "stem" each word of the

search phrase to catch all plurals, singulars, compounds and other words that share a common root, and expand key parts of the search phrase to include contextually related words. Having collected the hundreds or thousands of documents satisfying the broad, enhanced search request, the user then instructs the software to rank each "hit" according to relevancy and can browse through citations or text of the ranked documents, secure in the knowledge that the documents most closely matching the search request would be at the top of the list. With Boolean searching, we try to narrow the hit list by careful use of ANDs and NOTs; with the WPL/I-Search model, we broaden the search as much as reasonable and let the software separate wheat from chaff using Relevancy Ranking. The Search Software The I-Search software requires a minimal PC system with MS-DOS 2.0 or higher and 640 kilobytes of memory. The program does not support a Mouse, but does use the pull down menus and includes a useful description of the USC database. A convenient "form search" mode requires that the user to "fiU in the blanks" to search for a code section, citation to public law, statute at large or date of enactment. The WPL software requires a computer running M.icrosoft Windows 3.0 or later; we recommend a minimum of a 386 based computer with four megabytes of memory, a substantial hard disk and color monitor. WPL does not have the database description, context-sensitive help or explicit form search mode available in I-Search. WPL features five icon buttons which control whether windows showing the search request, citation list, relevancy bar chart, extended word list and current


document are displayed. We liked the bar chart (not available in I-Search) showing the relative relevancy of the first 50 documents on the hit list. The program designers should consider the addition of a host of other icon buttons to perform such burdens as easing navigation through the hit list and database. The WPL user must either use pulldown menus or go to the keyboard and press + and - keys to move the next or prior document in the hit list; even worse, CtI+ and 01- are needed to move to the next or prior document in the database. We don't favor two hand commands in a non-Windows environment; with Windows, particularly, a Mouse click should be sufficient. A Ctrl-R, required to access a particular document on the hit list, requires only one hand, but should be replaced with an icon button nonetheless. Both versions let us print lists or document to disk or the printer. The Windows software let us copy all or part of a document (but not the hit list) to the Windows clip board and paste it directly into our word processor. Finally, the search software is, by PC standards, quite slow. A typical search with the Windows product - four search terms ORred with automatic stemming and relevancy ranking selected - often took two minutes or more on our 33 megahertz 386 based PC clone. The MSDOS based I-Search software was noticeably faster, but still not fast. Neither program has a way of stopping a search in progress; occasionally we just rebooted (Cll-All-Del) rather than suffer through an interminable search. Recommended Setup The manual discusses a number of sample searches, but it took us quite a while before we became corniortable with the product. We found best results setting the default search connector to OR and selecting Relative Ranking (SETS on the Option pulldown menu in WPL, or Defaults under the Option pulldown in 1Search), and setting Autostemming to Off in I-Search. (WPL won't let you turn off Autostemming; we had to put a quotations mark at the end of each search word we didn't want Autostemmed.) As neither program let us save these defaults, we had to reset them each time we booted the program. Wish List The Office of the Law Revision Counsel invites comments and suggestions for the January, 1992 edition scheduled for Spring 1993 publication. We hope that lots of lawyers buy the current disc and offer their own comments. Here are a few of ours: • Include a general Table of Contents; • Add hyperlinks, at least between

listings in tables and the statute section; • Let the user save a custom default; • Remove unsupported WPL or 1Search features from pulldown menus; • Let the WPL user turn off Autostemming, copy cite lists to the clipboard, and navigate the database using icon buttons; • Add good context-sensitive, searchable Help to the WPL version; • Last, but certainly not least, add some elegant way of terminating a search without puIIing the plug. Value The USC on CD-ROM is a step forward for computer assisted legal research. Particularly at $30, the disc should find a place in every law office in the country. Summary The Government Printing Office's first try at the United States Code on CD-ROM is slow, the software needs improvements, and the implementation needs work. Still, at $30, the publication presents exceptionally good value. Buy it! Details U. S. Code on CD-ROM, as of January 2, 1991. Requires CD-ROM player with Microsoft extensions. I-Search software requires IBM PC or compatible with 640 kilobytes of memory, MS-DOS 2.0 or higher; Windows Personal Library software requires computer running Microsoft Windows 3.0 or higher. Price: $30.00, standalone. Additional license fee required for network use. Superintendent of Documents, P. O. Box 371954, Pittsburgh, PA 15250-7954. Phone: (202) 783-3238. FAX: (202) 512-2250.

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EFFECTIVE VIDEO PRESENTATIONS AT TRIAL: PUT ON A GOOD SHOW, BUT CUT TO THE CHASE By

STEVEN

W.

QUATTLEBAUM

The equipment used, the environment in which the tape is made (which includes background, lighting, acoustics and external interference), the position in which the subject is placed and the movement of the camera are only a few of the variety of aspects which affect the overall quality of the production. It is equally important to keep in mind the attention span of our audience and the points of persuasion to be elicited by the videotape. Thus, successful video presentations result from thorough preparation, consideration of visual and auditory enhancement techniques and a well-planned, succinct program. Electronic smoke and mirrors will not hide the truth or change the facts of any case, and there is no substitute for thorough preparation, but an understanding of the many facets of a quality video production can be useful in presenting evidence in its most persuasive manner.

ENHANCI G THE OUALITY OF YOUR PRODUCTION EQUIPMENT The subject of available and state of the art video equipment could be the central focus for an entire book. However, these sections provide basic infonnation about cameras, monitors, microphones and lighting, which should be understood before beginning the taping session. Cameras

Video cameras acceptable for use in video depositions or other presentations should be equipped with certain functions. First, they should have a digital time/date function which is continuously visible on the tape. This allows for ease of indexing and ensures continuity of the tape. Second, the camera should have

away is an effective method of breaking monotony. Telephoto capability is also necessary for legibly filming documents' or graphic exhibits. Third, the camera should be equipped with external microphones. Fourth, the camera should .~ be solidly mounted on a sturdy base or ~;.• tripod. These are the components , necessary for a quality film. ~~ Also worthy of note is the use of ~ multiple cameras to accommodate split ~~ . frame or window shots. This feature is t~~ especially useful when the witness is ~:l examining documents or objects. The .." documents or objects can be shown by :~.....~-;; split screen or on an inner window on the . ~ replay. Dual cameras are also useful in .~~ depicting dialogue by showing the ,.,:r:~ examiner in the window. ot only does )::~'+': this enhance the professional quality of "~'-~~~ 'v~ the production, but it breaks the ~~ monotony of the "talking head" ..c~....~ syndrome. After all. maintaining the ... attention of the jurors is a paramount concern, and varying the visual image serves to diminish the boredom factor. ':-;-One circumstance in which dual .,. ~ .,,[. cameras have proved extremely useful is ~~ .". in filming a doctor describing .... Air'~ observations and impressions from an x~ ray film. The split screen or window· -s... accommodates viewing of both the doctor and the x-ray film. The technique makes the doctor's testimony easier to understand. This technique could be applied with equal force to the:lr examination of documents by witnesses ~~. with other areas of expertise. 'J~J .. One should also be cognizant of the '. angle of the camera. Low to high shots •~::. produce larger than life images. High to ~ ~", • low shots produce smaller than life . "'-fl .

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