SUMMER 1996

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13794271

Results 01 the Spring 1993 FAX POll W. ""Irrt/ 4 1 1 _ I• ••r FAX POLL

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me,",d"

op"'." .. opm

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".".. ""/,b bI.>pI."d bJrlb" I••ril"11 I. lb. ml,l/ln,. "'IIY would Ilk, to comment on fh,laull II/seuued heflin th, form of,n 'ISIY or Irt/d•• pi"" lind to Edllor, ArtI.... L• ..,,, M.g,,''', 4(Jg W. M.rtb.m, LIlli. Rook.

AR 72201. ",I.w." III. " ..111, IIg."d p''''''.g.. S.m. perm",.,.. will nm .dd to 111t1% IS more thin 0"" 'lIftnf Of no ,trStnf ft, ,Iren.

b,

I. 01. yao IIl10w lIle orlml..1trI.1 •• u.. om••" ......d " _ '.......llIIlllotlney King?

15% Yn

0' ••Ing

.85% No

2. Old yao ..... wlUllll... nil.' In 1lI.11rt.1?

45% Yn 45% No

3. Do 'OU leel the lu.t1•••yst.m In the U. S.•how.d II. f.ull. d.rtnV lIle lint trI.l? &rt. Yn

35% No

4. Old ,oufollow U11ll1oV Civil Righls TrtalllIrough lIle media?

_Yn

l%Na

5. Old 'OU .... wlUlllle ..nllct?

111% Yn .95% No

e.

11_,..

Da YO' thlnIlllle two omce" .o......d ol nlng .hoeld han .110 ....n .o......d of .Idlng .ntI ._ng?

25% 65% No

y..

7. Da ,a. Ihlnk the twa olll."•••q.ln.d .ho.ld h••• been ......... olnlo....... Ive ,.... ? .95% Yn 111% No

•. Do

.._

'0' thlok tb. Iwo onlu,. ••q.ltI.d .ho.l. b... b•• n uI.ldlng .Ad ._ng?

41% Yn 55% No

V. Do yao til•• "'1110 _Illy" II. mllor ""bl.m In lIle U_ SIll...?

65% Yn 35% No 10. Do ,o.llIlnk "poll•• brullllly" I•• m'lor probl.m In Arb.... ?

45% Yn 50% No 11. Do ,a. tblnk the poll•• In An..... t.k••"10••1, tb. I.w. ag.lnst l1li........Ive ..... ?

35% Yn 65% No 12. Da yao IlIln1lllle otllce" ..m ..ed PI..1Iy .... IlI..Vh llIey han no orlml..1 1.5% 75% No

Y..

d ""Ive lIle mulm.m ?

13. Do ,oulllink lustlce WI' .....d In 1lI11 .... ?

55% Y..

38% No

FAX POLL SEX WITH CLIENTS O.K. How many of you have never looked at the FAX Poll and are looking now because of the headline? We really don't want to know, just answer these questions for us. Sex with clients is an issue that is currently being dealt with by bars across the country. Several states have made rule changes to their professional conduct codes prohibiting sexual relationships between lawyers and clients.

Remember-the poll is anonymous.

0'

yes

yes

no

__ none of your business, but I'll answer the rest of the poll __none of your business and I'm too offended by the question to continue with the poll 2. Have you ever had a sexual relationship with aformer client?

yes

no

yes

yes

Ma,' ., lb••omm••ts , ..I I. wllb ' " p.1I ",. tbl.g. /Ik. "/I IP/IUfIIlIero II • "ri_ ....,. ~rdy " " , "''', " ,,"""" 10 IlIe _IMI. S""" rnpoIIdMD .110 Ion 1I_ld hi _Ir I.r ..' .... 10 meb dtd ••, .l1Ind.

yes

no

8. Do you think a rule should be made simply stating that lawyers are not allowed to continue representing a client if the sexuai relationship causes the lawyer to perform legal services incompetently? (California)

yes

no

9. Do you think the Arkansas Supreme Court should amend the rules of professional conduct to include a rule against such relationships? yes

no

no

4. Do you think it is acceptable 10 have sexwijh a former client? yes

no

7. Do you think a rule shouid be made simply stating that lawyers are not allowed to require sex as a condition of representation? (California's rule)

__ none of your business, but I'll answer the rest of the poll __none of your business and I'm too offended by the question to continue with the poll

no

6. Do you think the lawyer should be required to inform the client in writing of how a sexual relationship between himlherself and the client could affect representation? (Oregon's rule)

1. Have you ever had a sexual relationship with a client while you were representing them?

70% No

I'."",,,,,._ ./rI.,1IMy""t

5. Do you think there should be a rule against lawyers CONTINUING to have a sexual relationship with someone who has SUbsequently become aclient?

3. Do you think it is acceptable to have sex with acurrent client?

14. Do 'OU IlIlnk our syst.m JUIlI.. h•• be.n dllll. m'lor blow by lIle ..Ie.... ol_. casn?

38% Yn

The Arkansas Lawyer

/rom,., Spri", 19t3

_.. WII*,., ",,,,1IIIy ..mHrl.. "".61_" 4,ZDtJ, 11111 11._" "'" •• ,",",II ...,."..,,., " ' _ " . . II 1101 I",.nhd I. '1#11. T1Ie FAX PolIlZiItI I. "..,d• • _ , lor "Id." 10 ..1.,1II.'r d I. dllaJlllon on

10. Do you think the American Bar Association should make a rule against such relationships?

no

FAX this completed sheet to:

The Arkansas Lawyer at 375-4901 or mail 10 400 W. Markham, little Rock, Arkansas 72201

yes

no

A Big Bang for your Buck

By Paige Markman

At the Bar Association, it is rare that we really "toot our own hom," but as you all send in your dues with the increase, I think it's a good lime for us to remind you what you receive for those hard-eamed dollars. You may know what you receive, butI'd like for you to take a minute to really think about it.

As lawyers, you are involved in law-making on a day-to-day basis in one way or another. Through the Bar Association, you are able to speak as a group, and power comes with numbers. As a legislative interest, the Bar Association influences our lawmakers often and the decisions they make affect you all in a very direct way. Being a member uf the Bar Association means that you contribute to making laws that will protect the people of Arkansas. That's important.

Another rarely thought of advantage of being a member of the Association is having a forum to discuss your ideas, meet other lawyers who may become business associates or friends. Being able to meet and work with your peers is also important.

As stated earlier, power comes with numbers. Being a member of the Bar Association helps you to find lower insurance rates through this large group. It entitles you to discounts on car rental, mailing services and low interest rate creclit cards. Isn't it worth your dues when you add up what you save on these things alone?

The publications you receive from the Association can be a vital source for your practice. The systems and handbooks are unmatched in this state for providing information and forms for Arkansas attorneys.

Both wtiversity law schools are able to publish informative journals because of the Bar Association. The NEWSBULLETIN keeps you up to date on what your Association leaders are doing on your behaU, upcoming CLE seminars and Association business you need to know.

And this magazine can be a tool too. (You knew I'd get to that) Take this issue for example. The Developing Law article thoroughly analyzes the new Family Leave Act of 1993. This act will affect each and every lawyer in the years to come, be it a client who comes in with a discrimination suit or you or your spouse needing to have lime off to care for a family member. Keep this article - you will probably need it! In the cover story you can learn more about your new President. If you want sometlting done by the Association, you need to know him. There is a special tribute to Charles Eichenbaum in the memoriam column. Those who knew him ,viii enjoy reading it and reflecting on their experiences with this long-lime leader in the Association. There is an article detailing the new Workers' Compensation Act with side bar articles responding to the act on how it will affect no only workers' comp lawyers, but general practitioners as well. Phil Pesek's analysis of the bill is artful and the responses from Joe Purvis for the respondent and Zan Davis for the claimant are worth reading for sheer entertainment if nothing else. In addition, we have the second part of a article on Video Depositions in tltis issue. It truly is a "general practitioners primer" for using tltis state-of-the-art trial aid. These are just some of the articles in this issue. All of the articles are well written, informative pieces that you could need to refer to tomorrow or the next day.

So the question becomes, "Is it worth the money? Can I get these services anywhere else?" I think it is worth it, and to my knowledge there is no other place you can get all of these services for such a relatively small price. Enjoy your Association, and feel good about your decision to pay your dues -- they'll payoff for you all year!

4

ARKANSAS LAWYER

SUMMER 1993

VOLUME 27, NUMBER 3 PUBLISHER

Arkansas Bar Association EDITOR & ART DIREcrOR

Paige Markman Director ofPRIMarketing ARKANSAS BAR ASSOCIATION 400 W, ~Iarkham Little Rock. Arkansas -no I OFFICERS President E. Lamar Pettus President-Eleer Robert L Jones III Immediate Past President John p, Gill Secretary -Treasurer jeaneue L. Hamilton Executive Council Chair

Russell Meeks m Executive Director WiUiam A. Martin

In This Issue:

4

Letter from the Editor

7

Letters to the Editor

8

The Developing Law: The Family & Medical Leave Act of 1993

12

Disciplinary Actions

20

The New Workers' Compensation Law: What Happens Now?

By Philip Pesek With Comments from Joseph Purvis, Zan Davis and Rick Holiman

Assistant Executive Director Judith G..y

EXECUTIVE COUNCIL Joe Benson

William Clay B"",i1 Thomas M. Carpenter Michad H, Crawford Boyce R. Davis Wendell L. Griffen David K. Harp Dave W. Harrod Charles L. Harwell Don Hollingsworth Henry C. Kinslow Robert Lynn Lowery Jerry C. PoSt Donald p, Raney Teresa M. Wineland

EX-OFFICIO E. Lamar Pettus Robert L. Jones III John p, Gill Jeanette L. Hamilton Russell Meeks III Brian Ratcliff The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Second class pa;tage paid at Uttle Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201.

Subscription price 10 non-members of Ihe Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues.

Any opinion expressed herein is Ihat of Ihe author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer.

Contributions 10 The Arkansas Lawyer are welcome and should be sent in two copies 10 EDITOR, Atbnsas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent 10 The Arkansas Lawyer at the above address.

By Paige Markman

By John T. Shannon

---

28 30 32

CLE Division Report President's Message

By Deb Garrison

By Lamar Pettus

-------

Cover Story: Getting Down to Business with Lamar Pettus

By Paige Markman

38

Law Practice Management

By Jerry Schwartz

39

Law, Literature & Laughter

By Victor A. Fleming

40

Third Party Legal Opinions: Has Some Order Come Out of the Chaos?

By Christopher Barrier & John S. Selig

-----

44

Let Your Fingers Do the Walking: Communities Give Feedback in Pretrial Services

50

In Memoriam

51

Young Lawyers' Section Column

52 53

Law School News

56

General Practitioners Primer Effective Video Presentation at Trial:

By Steven W Quattlebaum Put on a Good Show, But Cut to the Chase (Part II)

Law Office Technology Review

By Judy Camp

By Brian Ratcliff

By Barf}' D, Bayer & Benjamin H, Cohen

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LETTERS

Dear Editor: I think that the Rodney King fiasco represented an unfortunate lesson in how little society has progressed over the years. I submit that "he who is without faulr' should cast the first stone at the judicial system.

Had he not chosen to exploit the situation for financial gain, perhaps Rodney King might be the most likely candidate. After all, he was the one who was initially injured in the affair.

However, his background and the apparent circumstances surrounding his arrest (though not justifying the beating) would tarnish his right to cast judgment on our system.

At first glance, the person who filmed the video might seem to be a good choice.

He/she certainly precluded any cover-up of the incident and undoubtedly limited the possible explanations for King's injuries.

Nonetheless, it is extremely difficult to praise one who stood by filming the unwarranted beating of a human being rather than making some effort to stop the incident. Further, it would seem that person made a "bee line" to the commercial press rather than to King or his criminal defense lawyer. Although some journalistic award might be in order, this person should not condemn our system.

I think we can rule out the police officers without further comment. The next link in the chain would be the members of the press who, for now, I will pass.

Surely the "viewing public" is entitled to cast that stone because they had absolutely no connection with the incident Our only fault is that we have such an intense desire to be entertained by real life events (especially tragedies) that we make it commercially profitable for individuals to film rather than stop beatings; we have let the networks provide us with entertainment under the guise of reporting the news (while making a few bucks on the side); comedians viewed the tragedy and even gave us humor; some minorities used the incident as an excuse for perpetuating fears of discrimination and racial hatred; red necks found the violence to be somehow justified; and Some area residents labeled their own illegal acts (e.g. burning. looting and

TO

THE

EDITOR

beatings) as justifiable retaliation. The "public" cannot, however, condemn the system because it was their outcry for "justice" (whatever that is) that prompted a second trial of the same individuals for the same acts. The public is not justified in criticizing a system whose first decision was discarded merely because its verdict failed to cleanse the collective soul of a nation.

Without regard to the legal justification for two trials against the same persons on the same facts in different courts, it was wrong of the public to demand another trial. It was wrong of those who did not attend the first trial to summarily reject its verdict and place defendants in what practically, if not legally constituted double jeopardy. It was wrong of the public to sit like vultures waiting for jurors to "do the right thing" and convict those who had been once tried and acquitted. Having unduly influenced the judicial process, the "public" is not in a position to criticize the system.

That brings us back to the members of the press who turned a single incident involving an apparent breach of local laws into a national media event. Granted, the incident was, at first, newsworthy. If the press did not report such matters, it might condone such violence and remove a needed feeling of supervision from law enforcement officers inclined to engage in such activity. However, in its quest to publicize one single crime for monetary gain, the press gave additional momentum to those who promote racial hatred as well as to persons who are too eager to criticize law enforcement officers, lawyers and the judicial system.

I have intentionally omitted lawyers and judges from this analysis - first because we are members of the "public" and were included in the previous discussion. More importantly, comment shouJd not be made until it is determined whether we can look beyond the media "hype" and learn anything from this situation in our future administration of the "system."

Who can cast that first stone and condemn the system? I submit that there is no one who is qualified. Perhaps if those who drafted our constitution were around today, they might be fit to criticize their own system. They would probably be more concerned, though, with the

modifications we have made over the years and with our administration of the system which they created.

Your FAX poll asked whether our system of justice was dealt a major blow - it was, but not because of the outcome of these cases. The underlying problem is more serious than could ever be created by two trials. That the two cases ended differently only shows the existence of a problem; it is not the problem ilsell. The damage was caused when the blindfold failed to obscure the vision of the one who holds our scales of justice.

Stan Rauls Litlle Rock P. S. Don't "Lose the FAX Poll!"

Dear Editor: I wish that you had included a question in the FAX Poll about the way the trial judge in the criminal trial of the officers accused of using excessive force against Rodney King behaved. His decision to move the trial to Simi Valley from the Los Angeles area virtually guaranteed verdicts that wouJd be more sympathetic to the officers than responsive to the proof. And I also wish that the FAX Poll could have accommodated questions about the prosecution strategy in the criminal trial of the officers in state court.

It is too early to determine whether justice will be served in this case. Courts and lawyers should use the case as an object lesson about the prevalence of racial prejudice by law enforcement officials and the degree to which the trial process can be influenced by judicial bias as well as pretrial publicity. It would be wonderful if the profession would look at the trials, the Los Angeles riots, and re-visit the 1968 Kerner Commission Report on Civil Unrest in a holistic perspective.

Finally, thanks for your touching remarks about Rodney Slater's service to the profession and the loss of his presence and service as SecretaryTreasurer of the Bar Association.

Wendell L. Griffen LillIe Rock

•

e amI an 8

ARKANSAS LAWYER SUMMER 1993

•

e Ica

On February 5,1993, just weeks after his inauguration, President Clinton signed into law the Family and Medical Leave Act of 1993 ("FMLA"). Eight years and two sustained vetoes in the making, FMLA establishes another minimum standard for employment: the right to

take 12 weeks of unpaid leave annually for family or medical reasons and later to return to

the job. The purpose of this "family values" legislation is to balance the demands of the work

place with the need of families. Unlike the

Americans with Disabilities Act (the "Disabilities Act") which became effective two years after enactment,

FMLA is on a fast-track to

enJorcemenl. The Department of Labor ("DOL") was required to publish regulations by June 4, 1993, and the leave provisions are to take effect

on August 5, 1993.

The lime is now for

employers to review manuals and policies to determine what steps must be taken to comply with FMLA. The purpose of this article is to provide a broad review of FMLA leave provisions.

Statutory citations are to the Public Law. The key

source of legislative history is Senate Report No. 103-3, from the Labor and Human Resources

Committee (the "Senate Report").

SUBSTANTIVE LAW

The essence of FMLA leave requirements is

represented by the following five elements: (I) An employer (2) must grant (3) family and medical leave (4) to an employee (5) without discrimination.

FMLA ยง 102. This basic law is designed as "a sensible response to the growing conflict between work and family by establishing a right to unpaid family and medical leave for all workers covered

under the act." Senate Report at 4.

Let's develop the five elements of FMLA's leave provisions.

eave ( 0

by

John T. Shannon

(1) What is an employer?

Generally, FMLA covers any business with 50 or more employees. FMLA § 101(4). However, the 50 or more employees must be located at a work site or within 75 miles of the work site. For instance, a corporation with thousands of employees may have an isolated facility with 30 employees at Arkadelphia. As to the Arkadelphia work site, FMLA does not apply. Realistically, employers with multiple work sites

probably will adopt uniform standards to encourage internal mobility. Schools, public agencies and churches are not exempt.

(2) Is granting leave discretionary?

Eligible employees are entitled to leave. FMLA §102(a)(1).

Employers may require that employees submit a "request for leave" form, but FMLA does not provide the "he failed to submit the proper paperwork" defense.

(3) What is family and medical leave?

The heart of FMLA is the leave requirement set out at §102. Employees are entitled to 12 work-weeks of leave during any 12 months. Leave may be without pay.

FMLA §102(c). Generally, the employee may elect or the employer may require the employee to exhaust all accrued "leave with pay" in substitution of FMLA leave, with additional time granted if needed to meet the minimum 12-week requirement. FMLA §102(d). FMLA leave is not a "qualifying event" under the health benefit provisions of COBRA. However, it is a qualifying event when it becomes known that an employee on FMLA leave will not be returning to work.

Senate Report at 31.

(A) Family Leave: The employee may take family leave for the birth, adoption or placement of a child and in order to care for the child. FMLA § 102(a)(1)(A) and (8).

Male and female employees equally are I entitled to family leave. However, the right U to family leave is of the "use it or lose it" variety. The entitlement to leave ends 12 months after the birth or placement or the child. FMLA §102(a)(2). If spouses are employed by the same employer, the employer may limit the spouses to an aggregate of 12 workweeks of family leave. "Aggregate leave" is intended to eliminate any employer incentive to refuse to hire married couples. FMLA §102<O. If the employer and employee agree, the employee may take family leave intermittently or work a reduced schedule. FMLA § 102(b)(1). If the need for family leave is foreseeable based on an expected birth or placement, the employee must give the employer at least 30 days notice.

FMLA § 102(e)(1). Lf the employee is unable to give 30 days notice, the employee must give "such notice as is practicable."

Id. The notice requirement is consistent with Congress's desire to provide leave in a manner that accommodates the legitimate interests of employers. FM LA §2(b)(3).

(8) Medical Leave: An employee is entitled to medical leave to care for a spouse, son, daughter, or parent with a health condition, or if a serious health condition makes the employee unable to do his job. FMLA § 102(a)(1)(0 and (0). A "serious health condition" is a physical or mental condition that involves inpatient care or continuing treatment. FMLA § 101(11). A condition which chronically impairs the employee's or family member's ability to engage in routine activities is a serious

health condition. Examples include leave to take care of a spouse with Alzheimer's disease, who has suffered a stroke, or clinical depression, or who is recovering from major surgery, or is in the final stages of a terminal illness. Senate Report at 23.

However, when an employee catches the flu or the school nurse calls to report that your child has a fever, Congress intended that such conditions faU within most sick-leave policies.

Medical leave may be taken intermittently or on a reduced work schedule when medically necessary without the employer's approval. FMLA § 102(b)(1). If the employee requests intermittent leave or a reduced work schedule that is foreseeable, the employer may require the employee to transfer temporarily to another job. FMLA §102(b)(2). The employee selects the work schedule, but the employer identifies the position best able to accommodate work disruptions. The altemative position must provide equivalent compensation. Jd. If the need for medical leave is foreseeable, the employee must try to schedule treatment so as to reduce disruptions at work. The employee must also give the employer at least 30 days notice of his intention to take foreseeable medical leave. If the employee cannot give 30 days notice, the employee must provide "such notice as is practicable."

FMLA §102(e)(2). In addition to notifying the employer of foreseeable medical leave, employers may require that requests for med icaI lea ve be su pported by a certification of the serious health condition. FMLA § 103(a). The certification must state that the employee is needed to care for a son, daughter, spouse or parent or that the employee is unable to work. FMLA §103(b).

Certification is designed as a check against employee abuse of leave. If the relationship between the employer and the employee is established on the bedrock of mistrust, and if l the employer questions the validity of the certification, the employer may demand a il second opinion. The employer must pay for the second opinion. FMLA §103(C). FMLA has a tie-breaker provision if the first two medical opinions conflict: the employer may demand a third medical opinion, also paid by the employer.

FMLA § 104(d). Finally, at the employer's expense, the employer may require periodic reports on the health status and the employee's intent to return to work. FMLA § l03(e). OOL regulations may attempt to draw the line between reasonable recertifications and badgering the employee.

(4) Who is an eligible employee?

FMLA provides a two-prong test of tenure to determine whether an employee is entitled to leave. First, the person must have been employed by the employer for at least 12 months.

The 12 months need not be consecutive. Second, the person must have been employed for at least 1,250 hours during the previous 12 months. FMLA § 101(2). The purpose of these conditions is to exclud~ part-time or seasonal employees.

However, an employee working only 25 hours per week and taking a nvo-week vacation during the previous year is eligible.

(5) What is leave discrimination?

The general entitlement to family and medical leave is of little value if the employer may impose a cost on the employee's exercise of the FMl.A right. FMLA provisions are designed to protect employees who exercise leave rights. Upon an eligible

"Male and

f male employees

equallyar entitled to family leave.

However, the

right to family I ave is of the

e it or lose it yarle ty

10

ARKANSAS LAWYER

SUMMER 1993

contribution. FMLA§ 104(c)(2). The concept of recapturing an employee's return from family or medical leave, the employee employer's portion of the premium is intriguing because is entitled to be restored to his old job or to an equivalent employers usually pay premiums to the insurer, not to the position. FMLA § 100(a)(I). "This provision is central to the employee. DOL regulations may aUow employers to recapture entitlement provided in this bill." Senate Report at 28. premiums from employees as a set-off to severance payor a Reinstatement to a comparable or similar position is final pay check, or by a garden variety debt collection action. insufficient. The standard of "equivalent" requires reinstatement to a job with the same duties, terms, conditions and status. Restoration to a less than equivalent position would ENFORCEMENT AND REMEDIES deter employees from exercising their FMLA rights. Id. Two Employers are required to maintain records pertaining to categories of employees are exempted from guaranteed compliance with FMLA in accordance with regulations to be restoration. issued by the DOL. Aggrieved employees have a private right First, an employer may refuse to reinstate the highest paid of action. FMLA § 107(a). The law aUows double damages for ten percent of its employees within 75 miles of the work site. lost wages and benefits or actual monetary losses, such as the FMLA §I04(b). Congress deemed these highly compensated cost of providing care, with interest. To avoid double damages, employees to be at the executive level whose management skills the burden is on the employer to prove that it had reasonable and vision are crucial to the employer. However, employers grounds for believing that its act or omission did not violate may not arbitrarily refuse to restore its FMLA. FMLA § 107(a)(I)(A). The employee executives. The denial must be necessary to may also sue for equitable relief, including prevent substantial economic injury to the reinstatement.

FMLA § 107(a)(B). business. FMLA §I04(b)(I). This is a limited Employees may file their actions in any exception to the entitlement to job restoration. federal or state court of competent Employers using this exception should jurisdiction. FMLA § 107(a)(2). [n any action carefuUydocumentthreethings: the basis for OC in which the plaintiff prevails, the court is the determination that denial of job required to allow a reasonable attorney's fee, restoration is necessary, the extent of the (termination demotion expert witness fees and costs . FMLA § anticipated grievous economic injury, and the ' , 107(a)(3). Fee amounts are dIscretionary. The causal relationship between the requested .

DOL may inv-:stig~te and. attempt to resolve reprl ma n FMLA complamts JUSt as It would under the leave and the potential Second, school teachers are partially Fair Labor Standards Act ("FLSA"). The exempted from the right to job restoration.

DOL may also bring an action and pay any Schools may extend a teacher's unpaid leave I sums recovered directly to each affected to the end of an academic term in order to employee. FMLA § 107(b). Although FMLA avoid disruption in the classroom. FMLA 0 is silent on the issue of the right to a trial by §108(d). Restoration of teachers will be Jury, the remedIal prOVISIons of FMLA governed by local school board policies. paraUel the remedies provided by the FlSA, FMLA § 108(e). When a teacher needs to be am I me ICO which allows jury trials. The limitations repeatedly away from school because of period is two years after the date of the last recurring medical treatments, the school may event constituting the violation. The require that the teacher choose between IS limitations period is three years if the taking off a block of time or being transferred violation is willful. temporarily to a position that better 0 OW accommodates the absences. Senate Report at CONCLUSIONS 35. early 30 states have enacted family and Taking leave will not result in the loss of any employment medical leave acts, and employers in those benefit accrued before leave. Employees are not entitled to states have not experienced great disruptions in their accrual of any seniority or employment benefits during leave. businesses. FMLA creates new posting and record keeping FMLA § 104(a)(3). Accordingly, an employee on FMLA leave is requirements. FMLA requires employers to grant extended not entitled to unemployment compensation. Employers may leave without pay and later to reinstate those employees. Any require that employee be certified as able to return to work negative job action (termination, demotion, reprimand) taken in before restoring the employee to his fonner job or an equivalent response to a request for family or medical leave is grounds for position. FMLA § 104(a)(4). Post-leave certification of ability to a lawsuit leading to double damages, attorney's fees, expert return to work does not allow an employer to require medical witness fees and costs. Employers should revise personnel examinations that otherwise would violate the Disabilities Act. manuals and policies to reflect the new, federally established Senate Report at 36. and guaranteed right to family and medical leave.

The employer must maintain coverage under any group -health plan during leave under the same conditions as if the John T. Shannon is an associate with the Lillie Rock law firm of employee had continued working. FMLA § 100(c). Throughout Williams & Andersen. His primary areas of practice are commercial leave, the employer must continue to make whatever and environmental litigation and employment law. contributions it had been making, and the employee must continue to make any contributions that he had been making.

Arkansas Code Annotated $990 When must the employee on leave remit his contributions? If the employee fails to remit his contribution in a timely manner, Terms available. Call tor tree can the employer drop the employee from the group plan? The DOL is likely to regulate these issues. If the employer pays its catalog, Allin R. Jones, Michie Co., share of the group health plan premium and the employee then 1-800-448-5110. fails to return to work, the employer may "recapture" its

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DISCIPLINARY

JIMMY DALE TATE, JR. Upon recommendation of the Committee, on February 22, 1993, the Arkansas Supreme Court accepted the surrender of the license of Jimmy Dale Tate, Jr., of Fayetteville, Arkansas, to practice law in the State of Arkansas.

Mr. Tate was charged with public sexual indecency but entered a nolo cOlltel1dre plea to the reduced charge of disorderly conduct in the Municipal Court of Fayetteville, Arkansas.

Upon notification of the Committee's decision to institute disbarment action against him, Mr. Tate elected to surrender his license in lieu of formal proceedings.

Mr. Tate admitted in his petition for surrender that his conduct violated Model Rule 8.4(b).

BARRY

J. WATKINS

Upon recommendation of the Committee, on March 29, 1993, the Arkansas Supreme Court accl::pted the surrender of the license of Barry J. Watkins, Springdale, Arkansas, to practice law in the State of Arkansas. On or about November 14, 1992, Mr. Watkins was served with three formal complaints by the Committee. In the first formal complaint against Mr. Watkins, attorney Mel Sayes represented Security Pacific Housing Services, Inc. Mr. Sayes filed a replevin action on behalf of his client on February 20, 1992. Mr. Watkins filed an answer and objection to the replevin on behalf of his clients. Mr. Watkins stated that payment of the arrearages had been received; however, Mr. Watkins never remitted the same. A check was received from Mr. Watkins on July 27, 1992, drawn on Mr. Watkins' account but the check was dishonored for insufficient funds. Mr. Watkins promised to make the check good, but had failed to do so at the time of the filing of the formal complaint. Mr. Watkins' affidavit of response indicated that the aUegations of the complaint were basically accurate and that the delay was caused by his clients' failure to deliver the funds to his office and then, subsequently, poor accounting on his part that caused a shortfall in his trust account. Mr. Watkins paid Mr. Sayes on November 2, 1992.

12

ARKANSAS LAWYER

SUMMER 1993

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In the second formal complaint, Robert and Rhonda Wagner purchased land from Harold Roberts who had purchased the property from Leora Delozier under a sale contract in which there was a balance still owing. Mr. Roberts fell behind in his payments and Ms. Delozier filed suit against both Mr. Roberts and the Wagners. Mr. Watkin was hired by the Wagners, and he filed an answer on their behalf. Subsequently, the Wagners purchased Ms. Delozier's interest and assumed a first mortgage position. Soon after, Mr. Roberts died.

Mr. Watkins assured the Wagners he was negotiating with the heirs but would pursue a foreclosure action if the heirs could not agree to come to a settlement.

Mr. Watkins then indicated he had filed a foreclosure action and advised the Wagners of an auction date which he later said was cancelled and rescheduled.

Mr. Watkins subsequently informed the Wagners that the heirs had settled and that the judge would sign a deed the following Monday. Mr. Watkins never prod uced the deed, and the Wagners

OPINIONS

I learned that the case had previously

I

been dismissed. The Wagners also discovered that Mr. Roberts only had one heir and that the attorney for Mr. Roberts's estate had sent several letters to Mr. Watkins in an attempt to settle with no response from Mr. Watkins. In his affidavit of response, Mr. Watkins responded that the facts of the complaint were basically true. He stated that he did not bill for services not performed and that he had refunded $500 of fees to the Wagners. Mr. Watkins apologized to the Wagners and delivered their files to the attorney of their choice.

In the third formal complaint, Kenneth Schwind hired Mr. Watkins to file bankruptcy on his behalf for a fee of $120 down and the balance on an installment basis. From ovember to February of 1992, Mr. Schwind was informed by Mr. Watkins of various hearing dates which never actually took place. On March 19, 1992, Mr. Schwind picked up his file and was assured by Mr. Watkins that his bankruptcy was on its way to Little Rock. Mr. Schwind's

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DISCIPLINARY

bankruptcy was never filed. In his affidavit of response, Mr. Watkins states that the facts of the complaint were basically true. Mr. Watkins indicates that he received no other payment than the $120. and that he did prepare a petition which had to be redone because numerous creditors were omitted. Mr. Watkins then states that is was at this point that he failed in his responsibility to Mr. Schwind.

Upon notification of the Committee's deci ion to institute disbarment action against him, Mr. Watkins elected to surrender his license in lieu of formal proceedings. In his surrender of license, Mr. Watkins acknowledged that his conduct in the above mentioned legal representations violated Model Rules 1.3, l.4(a), 1.15(b), 8.4(c) and 8.4(d).

JOHN

F. BUERGLER

Upon recommendation of the Committee, on May 3, 1993, the Arkansas

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Supreme Court accepted the surrender of the license of John F. Buergler, Fort Smith, Arkansas. Two formal complaints were before the Committee. Brenda Lee Clark and Paul Franklin Clark's affidavits of complaint reflect that on April 12, 1989, a complaint was filed against Brenda Lee Clark for alleged injuries to a little girl whom she had been babysitting. Mr. Buergler had previously been hired to defend Brenda's brother-in-law against criminal charges involving the same matter. Brenda's father-in-law hired Mr. Buergler on Brenda's behaU. Mr. Buergler filed an answer on Brenda's behalf on May 2, 1992. On July 20, 1990, an amended complaint was filed adding Brenda's father-in-law as a defendant, and a copy of the amended complaint was served on Mr. Buergler. Mr. Buergler was also hired to represent Brenda's father-inlaw and was paid a total of $21,500 for the combined representation of Brenda, her brother路in-law and father-in-law. Mr. Buergler failed to file an answer to the amended complaint and a default

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judgment of $350,000 was entered against Brenda and her father-in-law jointly and severally. Mr. Buergler failed to respond to either of the two formal complaints by the Committee and on February 12, 1993, was notified of the Committee's determination and decision to initiate disbarment proceedings against him. Mr. Buergler elected to surrender his license in lieu of a formal disbarment action. On April 26, 1993, Mr. Buergler submitted his petition for surrender admitting that his conduct violated Model Rules 1.1, 1.3, 1.4(a), 1.4(b), 8.4(c) and 8.4(d).

CLARENCE PHILLIPS SHOFFNER Clarence Phillips Shoffner, Searcy, Arkansas was issued a reprimand for violation of Model Rules 1.1 and 1.3 as a result of a complaint by James R. Peacock.

In his affidavit, James R. Peacock stated that he had discussed with Mr. Shoffner in early 1992 several impending legal matters. Mr. Peacock, who was in the agricultural business, anticipated lawsuits being filed against him for certain debts incurred in connection with his business.

On May 6, 1992, Mr. Peacock was served with two complaints. The Bank of McCrory sought judgment on certain delinquent promissory notes, and M. D. Thompson and Son Company sought judgment for indebtedness on an open account. Mr. Peacock stated that the two complaints were delivered to Mr. Shoffner's office on or about May 6,1992.

On May 8, 1992, Mr. Peacock sent Mr. Shoffner a letter along with a check for $500 as a retainer. An answer to the bank's complaint was filed by Mr. Shoffner on June 1, 1992. Although Mr. Peacock only received a copy of that answer, he assumed that the Thompson lawsuit had been answered also.

Thereafter, Mr. Peacock called Mr. Shoffner's office on several occasions inquiring about the status of the lawsuits.

He was assured. on different occasions by Mr. Shoffner or his secretary that both lawsuits had been answered and matters were progressing normally. However, Mr. Peacock later discovered in July 1992 that the complaint and request for admissions filed by the Thompson Company were not answered and a default judgment had been entered against him. On July 20,

DISCIPLINARY 1992, Mr. Peacock paid $18,576.56 in satisfaction of that judgment.

Mr. Shoffner's response acknowledged that Mr. Peacock had consulted him regarding his financial and farming affairs. Mr. Shoffner stated that Mr. Peacock came by his office when it was closed and deposited the complaints in the mailbox. The two complaints were together and Mr. Shoffner's secretary opened a file in the name of the complaint which was on top, the suit by the Bank of McCrory. Mr. Shoffner stated that when he reviewed the file for preparation of an answer, he carelessly assumed that the McCrory Bank lawsuit was the only one.

His response denied that Mr. Peacock ever informed him or his secretary of the status of two lawsuits ur that he or his secretary told Mr. Peacock that two answers had been filed. Mr. Peacock did not inquire specifically about the

Thompson Company suit, and any information Mr. Shoffner's secretary may have given Mr. Peacock related to the

bank case only. Mr. Shoffner's response stated that he was astounded as much as Mr. Peacock when it was discovered that a default judgment had been entered against him.

ACTIONS

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ADVISORY

JOHN SKYLAR TAPP John Skylar Tapp, Hot Springs, was issued a letter of reprimand for violation of Model Rules 1.3, 1.4(a) and 8.4(d) as a result of a complaint by Anthony Mormino.

In his affidavit, Anthony Mormino stated that he and his former wife were divorced in JIlinois in 1981. On January 14,1991, the Illinois court found Mr. Mormino in arrears on his support payment for the one child of the marriage and directed that he satisfy the arrearages

by December 31,1991. The arrearages were not satisfied by that date.

Subsequent negotiation between the parties and their attorneys resulted in an agreement whereby Mr. Mormino was to pay $5,600 back child support. Mr. Mormino stated that he resided in Arizona and was experiencing considerable difficulty and delay in exercising his visitation rights due to his former wife's conduct. Mr. Mormino wired $5,600 to his attorney in llJinois pursuant to the agreement. At about the same time Mr. Mormino was due visitation with his child. According to him, his former wife caused a delay in the

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ARKANSAS LAWYER

SUMMER 1993

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visitation. Mr. Mormino decided not to go through with the arrangement since he felt he didn't owe $5,600 and his ex-wife didn't pennit visitation as agreed.

Mr. Mormino's former wife had recently relocated in Arkansas, and he decided to contact an Arkansas attorney.

He contacted Mr. Tapp by telephone and explained his situation. According to Mr. Mormino, Mr. Tapp told him that he could get the jurisdiction changed to Arkansas, and he felt Mr. Mormino could get better treatment in Arkansas courts.

Mr. Mormino stated that Mr. Tapp agreed to undertake the representation for a retainer fee of $800. That same day, July 7, 1992, Mr. Mormino sent a letter to his lawyer in Illinois instructing him to return the $5,600 and advising him of Mr. Tapp's retention as counsel. The following day Mr. Mormino received a facsimile response from the Illinois attorney advising that he would move to withdraw from the case but would not return the monies which he was depositing with the court for its decision for the proper disposition of the funds. On July 8, 1992, Mr. Mormino informed Mr. Tapp by facsimile transmittal of his former attorney's actions and requested Mr. Tapp to stop the deposit of the funds in the illinois court. Mr. Mormino sent Mr. Tapp a leiter and a $800 check by Federal Express on July 9, 1992. On July 17, Mr. Mormino received a copy of his former spouse's petition requesting the court release the funds to her. Mr. Mormino sent Mr. Tapp a letter the next day advising him of that development and inquiring of the actions Mr. Tapp had taken or would take. He telephoned Mr. Tapp's office thereafter on an almost daily basis but was never able to speak with Mr. Tapp. A hearing had been scheduled for July 27 on the petition to release the funds to his former wife. The monies were released by default. On July 30, 1992, Mr. Mormino wrote Mr. Tapp to inquire about the situation and expressing his dissatisfaction with the attorney's representation. M.r. Mormino stated, that, following his initial contact with Mr. Tapp and his payment of the retainer, he had received no communication from Mr. Tapp.

Mr. Tapp acknowledged an agreement to represent Mr. Mormino and the payment of the retainer fee. Although he thought that jurisdiction of the matter could be transferred to Arkansas, he stated that he did not advise Mr. (co"ti"ued Oil ptlge 16)

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DISCIPLINARY Mormino that he could undo the agreements or proceedings previously consummated in Illinois. He advised Mr. Mormino that he was not licensed in that state and could not represent him there.

Mr. Tapp attempted to contact Mr. Mormino's former lawyer but later received facsimile documents which reflected a rather disagreeable situation between the attorney and Mr. Mormino.

Mr. Tap? averred that he drafted a petition to establish jurisdiction in Arkansas, but it was never filed because he was never informed whether Mr. Mormino's ex-wife lived in Hot Springs or Garland County. Subsequent to the filing of Mr. Mormino's complaint against Mr. Tapp, Mr. Tapp refunded the retainer to him.

GENE A. LUDWIG Gene A. Ludwig, Little Rock, was issued a letter of caution for violation of Model Rule 7.3(c) as a result of a complaint by Robin Saito.

In her affidavit, Robin Saito stated that on or about October 12, 1992, her four (4) year old son, Christopher, was a passenger in an automobile involved in an accident. On or about October 21, 1992, Christopher received a solicitation letter from the Ludwig Law Firm, bearing the notation "Advertising Material", and signed by Mr. Ludwig. On or about October 23, 1992, Ms. Saito stated that she phoned the Ludwig Law Firm to question why such a letter was sent to a four year old child who was not injured in the accident. Ms. Saito stated that she spoke with a Mr. HaJJ at the Ludwig Law Firm who hung up when she informed him that the police accident report correctly reflected Christopher's age and the fact that he was not injured. Ms. Saito

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ADVISORY

maintained that Christopher was not known to be in need of legal services and, therefore, should not have been sent such a letter of solicitation.

Mr. Ludwig's response indicated that he did mail the solicitation letter to Christopher Saito and that Ms. Saito did subsequently phone his office and speak with Mr. Hall. Mr. Ludwig very hostile, cursed and used demeaning language and siad that Mr. Hall did initiate termination of the call. (51lapero v. Kentllcky Bar Association, 486 US 466, 100 L. Ed. 2d 475, 108 S. Ct. 1916 (1988) is cited for the proposition that truthful and nondeceptive letters by lawyers when mailed to the general public; to those so situated that they might in general find such services useful; or to those known to be in need of legal services in a particular matter.) Mr. Ludwig stated that even though the police report indicated that Christopher was not injured, he may have sustained property damage or Christopher may have realized that he was injured sometime after the accident.

Mr. Ludwig's response asserts that the Model Rules of Professional Conduct and the courts' interpretations of constitutionally protected speech permit mailed advertising by lawyers to the general public or to those persons so situated that they might in general find such services useful, as long as the communication is truthful, non-deceptive, etc. Mr. Ludwig further recognized that the more restrictive Model Rule 7.3 requires the words "Advertising Material" on personalized communications mailed to those known to be in need of legal services in a particular matter. The mailing of the letter addressed to Christopher Saito, which included the words "Advertising

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Material" and offered his legal services to him, is acknowledged by Mr. Ludwig's response. Mr. Ludwig concluded by stating that Ms. Saito, individually and as parent and natural guardian of her son, Christopher, could have simply discarded the letter.

DANIEL

H. HARMO

, JR.

Daniel H. Harmon, Benton, was issued a lette,r of reprimand for violation of Model Rule 8A(b) as a result of a complaint based on conviction of a criminal offense.

The records of the United States District Court for the Eastern District rellect that Mr. Harmon was found guilty of one count of Failure To File Income Tax Returns, a Class A misdemeanor. A jury acquitted Mr. Harmon on three other counts of the same offense. On July 29, 1992, a Judgment in a Criminal Case was entered in Case Number LR-CR-91-155, United States of America v. Harmon, whereby a special assessment of $25.00 was imposed and Mr. Harmon was placed on probation for one year with one month of home detention.

In his affidavit of response and testimony Mr. Harmon averred that his tax returns for the years 1985 and 1986

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DISCIPLINARY were being prepared by a CPA to whom he entrusted his tax records and materials.

The CPA subsequently left the state and he was unable to retrieve his records.

Another accountant was hired by Mr. Harmon to prepare returns for the years 1985 through 1988. These returns were not filed until after April 15, 1989, based on the accountant's advice because of the incomplete records for 1985 and 1986. Mr. Harmon stated that all the returns were submitted prior to initiation of an investigation by the IRS. In December 1990, the IRS contacted Mr. Harmon concerning a tax deficiency. He stated he contacted them and advised that if they would calculate the tax due, penalties and interest owing that he would borrow the money to satisfy the claim. He stated that this was not considered by the IRS, and criminal charges were prosecuted against him. Mr. Harmon presented evidence that reflected that the offense for which he was convicted contained no element of fraud, but, rather, was based on the untimely filing of the tax return. Numerous witnesses appeared on Mr. Harmon's behalf and offered evidence as to his character and reputation.

Advisory Opinions Advisory Opinion 93-01 (March 24, 1993) In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a judge may not serve on an advisory group for a state hospital program that provides intensive care for persons who have been excused from criminal conduct by reason of mental incapacity.

Advisory Opinion 93-02 (April 6, 1993) In an advisory opinion, the Arkansas Judicial Ethics Committee stated that a part-time municipal judge may not represent an individual in a domestic relations matter when the adverse spouse of that individual has an outstanding fine balance owed the municipal court over which the judge presides and may not represent a client such as a bank in a debt collection action against an individual who has an outstanding fine balance with that municipal court.

Advisory Opinion 93-03 (April 8, 1993) In an advisory opinion, the Arkansas

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ADVISORY

Judicial Ethics Committee stated that a judge may not participate in a fund-raiser by managing or playing on a softbaJlteam that would play against teams of the executive and legislative branches of state government where the judge's participation would be highly publicized and spectators would support their favorite teams or players by agreeing to contribute money to the charitable organization.

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Tbe New Worliers' (o_pensation law: Wbat Happens Now? Analysis by Philip Pesek with comments from Joseph Purvis, Zan Davis and Rick Holiman The Arkansas Legislature makes changes that will affect the means by which many lawyers do business in the Natural State. Read this analysis and commentaries from the Claimant and Respondent's sides--it might effect you, too.

In january, 1993, the 79th Arkansas General Assembly sel out to "reform" the Arkansas Workers' Compensation Law. The resultant legislation was expected to be the most signHicant piece of legislation to come out of the 1993 session. The chief reasons for the "reform" movement were

increasing workers' compensation premiums, increasing medical costs, increasing incidents of workers' compensation fraud and the continual expansion of the Arkansas Workers' Compensation Law by the Administrative Law judges, the Commission and the Arkansas Supreme Court and Court of Appeals.

Prior to the beginning of the 1993 legislative session, an ad hoc committee was formed by the Insurance Commissioner, Lee Douglass. The membership of the committee consisted of

a cross section of the different interests with regard to workers' compensation

including representatives from management, insurance, labor, the legal community as well as injured workers.

The Ad Hoc committee was charged with the task of reviewing a proposed bill which had been drafted by the Arkansas State Chamber of Commerce. The bill proposed massive changes to the existing law.

As expected, the membership of the Ad Hoc committee agreed on very little and the votes on each provision mirrored the respective labor/management interests on the committee. However, the management and insurance interests carried the majority of votes and the result of their work was a management 20 ARKANSAS LAWYER

SUMMER 1993

oriented recommendation. Their recommendations were included, in part, in HB 1615 which was introduced by Representative Mike Wilson early in the 1993 session. The bill was entitled: AN ACT TO INCREASE WORKERS' COMPENSATION BENEFITS FOK EMJ'LOYEES AND TO SUBSTANTIALLY RESTRUCTURE THE WORKERS COMPE SATIO LAWS TO DECREASE TO EMPLOYERS; COSTS I CLUDI G ASPECTS OF THE INITIATIVE BY INSURA CE COMMISSIONER DOUGLASS AND PROPOSALS OF AN AD HOC STUDY COMMITTEE APPOINTED BY THE JOINT INTERIM COMMITTEE ON INSURANCE A D COMMERCE; THE SAME BEl G ARKA SAS CODE SECTIO S 11-9-101 THROUGH 11-9-911; A D FOR OTHER PURPOSES, While HB 1615 was being introduced, several other comprehensive workers' compensation bills were being introduced by other interest groups, including labor.

One bill, SB 550, which was a waterdowned version of HB 1615, consisted only of provisions to which the Ad Hoc committee agreed.

HB 1615 easily passed in the House of Representative, but was slowed down in the Senate, Finally, after much debate and a number of hurried amendments, the 47 page bill was passed and sent back to the House. The House conferred with the Senate and quickly approved HB 1615 despite the repeated objections by labor

representatives, including Bill Becker, president of the Arkansas AFL/CIO, who, along with other labor interests, threatened that if HB 1615 passed, they would call for a referendum for the Arkansas voters to overturn it. Despite their threats, Governor Jim Guy Tucker signed the bill into law on March 31, 1993.

After reviewing HB 1615, one can easily conclude that it was very successful in swinging the workers' compensation legal pendulum from a liberally construed act which was sympathetic to workers' claims and sometimes produced absurd results to a sbict, unbending act which is management oriented. HB 1615 can be divided into five major areas compensability of claim, return of injured workers to the workplace, workers' health and safety, health care delivery through managed health care and determent of fraud. The purpose of this article is to review some of the major provisions of the new Act and discuss its possible ramifications with regard to the future of workers' compensation.

WHAT IS A COMPENSABLE INJURY? In Section 2 of the Act, amending Ark. Code Ann. § 11-9102, the definition of "compensable injury" was radically changed. A compensable injury only includes accidental injuries caused by a specific incident with a known time and place of occurrence. Injuries not caused by a specific incident are limited to: (l) injuries caused by rapid repetitive motion such as carpal tunnel syndrome, (2) back injuries, (3) hearing loss, (4) limited mental illness with concurrent physical injuries, (5) limited incidents of heart attacks or cardiovascular disease, and (6) hernias.

Compensable injuries must be established by medical evidence (stated within a degree of medical certainty l) supported by objective findings (findings not under the voluntary control of the patient2). Complaints of pain will not be considered and with regard to ratings to the spine, straight leg raising tests or range of motion tests shall not be considered objective findings.

Compensable injuries do not include (1) injuries to any active participant in assaults or combats which either result from non-employment-related hostility or animus between the combatants or results from a deviation from customary duties including injuries caused by horseplay (innocent victims protected); (2) injuries incurred while engaging in recreational or social activities for the employee's own pleasure; (3) injuries occurring before or after the employee was hired or terminated or when employment services

were not being performed; or (4) injuries substantially occasioned by the use of alcohol, illegal drugs or prescription drugs used in contravention of physician's orders (includes a provision for reasonable and responsible substance testing).

The claimant has the burden of proving a compensable injury by a preponderance of the evidence. Where the injury is not caused by a specific incident, the claimant must show that the injury is the major cause (defined as more than 50%) of the disability or need for treatment.

Once a compensable injury is found, the claimant is entitled to medical and temporary disability benefits. Permanent benefits will only be awarded if the compensable injury was the major cause of the disability or impairment even when combined with a pre-existing disease or condition or with the natural process of aging. If a non-work related, independent intervening cause follows a compensable injury and causes or prolongs the disability or the need for further treatment, the above benefits are not payable even though the intervening event was not caused by the negligence or recklessness of the claimant.

This new definition of "compensable injury" has raised more concerns among the labor interests and claimant's attorneys than any other provision in the new Act. It is easy to see why they are concerned. If an employee cannot point to a specific time and place of the injury, he will not receive benefits unless the injury fits in one of the enumerated categories of exceptions to this specific requirement.

The types of injuries which do not fall within either category are degenerativetype injuries to the arms, hands, neck (unless you consider this part of the back), legs or knees.

Even if the employee can point to a specific time or place of injury, soft tissue injuries as well as other types of nonspecific injuries such as back sprains will not be compensable because pain will not be considered in determining physical or anatomical impairment. In addition, straight leg raising tests and range of motion tests have been specifically excluded from "objective findings."

Section 2 also accomplishes the task of overtu.rning a series of cases which had resulted in absurd holdings. 4 In fact, it specifically amends §11-9-102(5)(C) to slate that "[alny and all prior decisions by the Commission and the Courts inconsistent with the definition of compensable injury as herein set forth are hereby specifically annulled, repealed,

and held for naught."

Exclusivity Section 4 amended Ark. Code Ann. §11-9-105(a) to broaden the scope of the exclusivity of the remedies of the Arkansas Workers' Compensation Law. In combination with Section 6, which amended Ark. Code Ann. §11-9-107, Section 4 reemphasized that exception to the exclusivity doctrine should not be broadened by the ALls, the Commission and the Arkansas courts, and specifically overruled three cases which had done so.5 In addition, Section 4 added prime contractors to the list of benefactors of the exclusivity doctrine. Arguably, this addition may be unconstitutional under Art. 5, §32 of the Arkansas Constitution6 because the legislature can only limit the amount of recovery where the employer/employee relationship exists?

Ordinarily, prime contractors are not considered employers of the employees of subcontractors even though they are ultimately responsible, pursuant to Ark. Code Ann. §11-9-402, for the payment of workers' compensation benefits to these same employees when the subcontractor has not obtained coverage.

FINES, PENALTIES AND PROSECUTIONS Throughout the new Act, the General Assembly provided increased fines and penalties and increased the criminal aspect of violations from misdemeanors to Class D felonies. An employer can be fined up to $10,000 and subject to a Class D felony conviction for willful misrepresentation with regard to the decrease or defeat of a claimS; for wiUfuI discrimination against an employee on account of the filing of a workers' compensation claim 9; failure to secure workers' compensation coverage 10 ; refusal to provide employer reports ll ; failure to implement a safety program, if found to be an extra-hazardous employer 12; and failure to pay timely benefits. 13 At first blush, these increased penalties, fines and prosecutions should prompt any employer or carrier to refrain from contesting many facially-legitimate claims. However labor interests and claimant's lawyers complain that increased fines and penalties will have no effect on the employers and carriers because the old penalties, fines and prosecutions were never enforced.

MENTAL AND CARDIOVASCULAR INJURIES A mental injury is not compensable unless it is accompanied by a physical injury to the employee's body except

where the claimant is a victim of a oime of violence. If a physical injury has caused the mental injury, the mental injury must be diagnosed by a licensed psychiatrist or psychologist and the benefit shall be limited to 26 weeks. Death caused by a mental injury is not compensable unless the death occurred within 1 year from the incident causing the mental injury.

As a result of the amendments proposed by Section 8 to Ark. Code Ann. ยง11-9-109, it will be very difficult to prove that a mental injury is a compensable injury. As stated above, mental injuries are only compensable if accompanied by a physical injury. An argument advanced by the labor interests during the debate of HB 161S stated that Section 8 would preclude a fireman or a police officer from recovering benefits for psychological trauma. Without any accompanying physical injuries, they were probably right. To add insult to injury, even if a mental injury is accompanied by a physical injury, the benefits are limited to 26 weeks.

A cardiovascular, coronary, pulmonary, respiratory or cerebrovascular accident or a heart attack is only compensable where the accident was the major cause of the physical harm. The injury or disease is not compensable if it i... shown that the work causing the injury or disease was not extraordinary and unusual to the employee's normal work or there is an absence of some unusual or unpredicted event. Stress will not be considered a relevant factor.

Section 8 made it almost impossible to receive benefits for a heart attack. Most previous heart attack cases in which benefits were paid considered stress in assessing the causation of the compensable injury. Under Section 8, stress no longer will be considered. In addition, it must be shown that the claimant was involved in an event that was unusual and extraordinary from his normal job. Therefore, if a claimant's normal job involves lifting 50 pound drums, he will not be entitled to benefits if one day he has a heart attack while lifting those same 50 pound drums, even though he was under considerable stress due to a tight deadline for shipping those same drums.

THIRD PARTY LIABILITY A claim under the workers' compensation law will not affect the right of an employee to bring an action against a third party for those same injuries. As stated above, a prime contractor is not considered a third party when being sued by an employee of a subcontractor. The employer is entitled to notice of the action 22

ARKANSAS LAWYER

SUMMER 1993

and the opportunity to join in the action.

If the employer joins in the action and the claimant prevails, the employer is entitled to a 1st lien of 2/3 of the net proceeds recovered.

An employer liable for compensation also has the right to maintain an action in tort against a third party responsible for the injury to his employee. The employer must give notice to the employee that he has the right to hire an attorney to represent his interest. The employee is entitled to any damages recovered after the cost of collection and the amount the employer paid for compensation has been deducted. In no event .hall the employee recover less than 1/3 of the amount recovered from the third party.

Under the new language of Section 14, which amends Ark. Code Ann. ยง11-9410, notice of settlement of a third party action, whether maintained by the employee or employer, must be given to all parties with an interest in the claim.

Does "all interested parties" include insurance carriers, unpaid medical providers, disability insurers, medicaid providers, the Social Security Administration or anyone who has paid benefits or provided services to the claimant?" Or, does "interested parties mean only persons who have intervened in the third party law uit. The distinction is very important.

In another new provision to Ark. Code Ann. ยง11-9-410, an employer liable for compensation may also maintain a third party action against the employer's uninsured motorist coverage. The purpose of this right is to prevent a double recovery by the claimant.

REHABILITATID One of the main purposes of the workers' compensation "reform" was to return the injured worker back to work.

Under the old Act, an employee who was receiving permanent disability benefits and who had not been offered an opportunity to return to work was entitled to rehabilitation benefits. This remains the same under the new Act, but rehabilitation benefits have been increased from 60 to 72 weeks. However, if the employee fails to cooperate in the rehabilitation plan, he will not be able to receive benefits in excess of his actual permanent disability (Le. no wage loss disability).

A problem which existed under the old act still lives under the new Act. It has been established by caselaw that a claimant undergoing rehabilitation is not entitled to the simultaneous payment of permanent partial disability payments. J4 Tht:: chief complaint about the

rehabilitation part of the Workers' Compensation Law is that a claimant will not choose rehabilitation because he needs

the permanent disability payments to pay his monthly bills. The problem is compounded under the new Act because if the claimant does not choose rehabilitation, this could be viewed as lack of cooperation. In addition to losing the chance of rehabilitation, the claimant also loses any chance for wage loss disability benefits. This problem has been somewhat remedied by the fact that a number of insurance companies do not suspend permanent disability payments

during rehabilitation although not obligated to do so.

PERMANENT TOTAL DISABILITY Section 22, amending Ark. Code Ann., introduced numerous changes to

the payment of permanent total disability payments. First, Section 22 did away with the Odd-Lot Doctrine. Second, Section 22 states that an impairment rating guide will be developed which will not consider

pain as a basis for impairment. Finally, persons over the age of 65 who receive

permanent total disability benefits will be subject to an off-set of retirement or pension benefits, whether privately or

publicly funded. The sole exception is employee contributions to a privately

funded plan.

The retirement/ pension offset raises several questions. How will the off-set work where an employee is entitled to a lump sum retirement benefit? If an employee contributed to a retirement plan, how will this contribution be factored into the offset where the amount of benefits being paid are a combination

of employer contributions and employee contributions? Will Social Security benefits be included in the category of

publicly funded plans?

THOU SHALL OT TREAD 0 OUR LAW The 79th General Assembly probably saved the best provision for last. In Section 35, it is stated as follows:

The Seventy-Ninth General Assembly realizes that the Arkansas Workers' Compensation statutes must be revised and amended from

time to time. Unfortunately many of the changes made by this act were necessary because Administrative

Law

Judges,

the

Workers'

Compensation Commission, and the Arkansas Courts have continually

broadened the scope and eroded the purpose of the Workers Compensation statutes of this state. .

In the future if such things as the statute of lim.itations; the standard of

A Different Viewpoint: Civil Litigation Reforms of the New Workers' Compensation Act

By Richard E. Holiman In addition to sweeping changes to the rights of claimants and employers before the Workers' Compensation Commission, the new act attempts to make other drastic changes in the field of civil litigation in general. The major changes are summarized in this article.

Currently, Arkansas law allows an employee of a subcontractor to sue a prime contractor if the negligence of the prime contractor caused injury to the plaintiff. The subcontractor must have workers' compensation insurance in place at the lime of the injury. See Baldwin v. Manor 224 Ark 348 (1954). The new act specifically places the prime contractor in the shoes of a subcontractor by applying the exclusive remedy doctrine to the prime contractor. See Sec. 4 of the new act.

Current Arkansas law allows an employee who is injured on the job to sue the employer in tort for damages if the employer is acting in another capacity in relation to the employee. This is more commonly referred to as the "dual persona doctrine." See Landers v. Energy Sys. Management Co.,305 Ark 267 (991). The new act explicitly destroys this doctrine by not allowing this exception to the exclusive remedy doctrine. See Sec 4 of the new act.

Under present Arkansas law, an employee may sue an employer for wrongful discharge if the employee has been terminated for filing a workers' compensation claim. See Wal-Mart v. Baysinger, 306 Ark. 239 (1991) and Mapeo Inc. v. Paine, 306 Ark. 198 (1991). The new act specifically eliminates this cause of action and annuls the holding of the above cases by specifically citing them. The act attempts to address the problem by providing a remedy from the Workers' Compensation Commission in the fonn of fines and criminal sanctions.

The new act limits causes of action against an insurer or a self insured employer for negligent implementation of a safety program. See Sec. 13(5) of the Act. Suits of this nature generally have been pursued only in other states. Current Arkansas law would probably not allow this cause of action.

Current Arkansas law allows a claimant and a liability carrier to settle any third party claim "around" a workers' compensation carrier if a third party claim exists. Commercial Union Insurance Co. v. Suitt Construction Co., 673 F Supp. 320 and International Paper Co. v. Wilson, 34 Ark. App. 87 (1991). The new act prohibits or restricts this process by requiring three days written notice to all "interested parties." Each party with an interest must "cooperate" in the settlement of the claim.

Ln addition to the above restrictions of civil litigation, there may be an expansion of civil remedies by the limiting of certain claims available under the act to a claimant. The new act specifically removes stress and mental claims not involving physical injury and certain "gradual injuries" from coverage under workers' compensation. Arguably, this would give the green light to claimants to sue the employer and not be faced with the "exclusive remedy" deIense.

The foregoing changes to the Workers' Compensation Act will be litigated in forums other than the Workers' Compensation Commission.

While there may be other changes affecting litigation within the new act, those mentioned raise many more questions than provide answers.

review by the Workers' Compensation Commission or courts; the extent to which any physical condition, injury or disease should be excluded from or added to coverage by the law; or the scope of the Workers' Compensation statutes need tu be Liberalized, broadened or narrowed, it shall be addressed by the General Assembly and should not be done by Administrative Law judges, the Workers' Compensation Commission or the courts.

It is apparent that one of the drafter's purposes of HB 1615 was to "get rid of' all of the "bad" ca...e law generated by the ALJs, the Commission and the Arkansas Supreme Court and Court of Appeals in an attempt to broaden the scope of the Arkansas Workers' Compensation Law. After reading HB 1615 one would agree that the drafters accomplished their purpose. In addition, the drafters laid down the gauntlet and dared the ALjs, the Commission and th~ courts to liberalize or broaden its provisions.

Although Section 35 has no teeth due to a doctrine call "Separation of Powers," it is clear that the drafters were sending the message to all that they will not tolerate anyone trying to accomplish workers' compenSc1tion "reform" without their involvement. Ln other words, if the ALjs, Commission or courts expand the provisions of the new Act, you can count on the General Assembly to correct the expansion at the next legislative session.

WHAT TO LOOK FORWARD TO IN THE FUTURE There are a number of programs which were mandated by the new Workers' CumpensaLion Law. First, the Workers' Compensation Fraud Investigation Unit was established by Section 5, amending Ark. Code Ann. §119-106. The Unit will be headed by a director, who along with a deputy director will be responsible solely for investigating workers' compensation fraud. The director will report to the Insurance Commissioner. All fraud matters will ultimately be referred to the County Prosecutor, who will have the authority to hire special assistants to a ist in the prosecution of these fraud cases.

Section 13, amending Ark. Code Ann. §11-9-109, established the Workers' Health and Safety Division. The Division will cooperilte with the Arkansas Department of Labor and will serve as a repository for workers' health and safety statistical information. The Division will utilize this information to prioritize safety needs, coordinate safety services and promote health and safety through educational programs.

In addition, the Division will 24

ARKANSAS LAWYER

SUMMER 1993

establish a job Safety Information System which contains a comprehensive data base that incorporates information compiled from employers. The identity of the employers will be kept confidential.

Further, the Division will establish the Extra-Hazardous Employer Program which places employers, whose injury frequencies are higher than normal, on a mandatory job safety program.

Section 19, amending Ark. Code Ann. §11-9-508, mandates the establishment of a system of managed health care. The Commission will have to establish appropriate rules and regulations by july 1, 1994. Under this type of health care system, the claimant will be requirE'd to go to a physician who is associated with a managed care entity certified by the Commission. The physician can only make referrals to specialists who are associated with a certified managed care entity.

The Commission will also 0) certify managed care entities; (2) develop regulations for peer reView, service utilization, and resolution of medical disputes; (3) prohibit "balance billing"; (4) establish fees for medical services (Rule 30); and (5) enable the employer to choose the initial treating physician with the right of the claimant to make a one-time request for a change in physician. 15 Sections 22, 23 and 24, amending Ark. Code Ann. §§11-9519, -521, -522, state that the Commission must adopt an impairment rating guide to be used in the assessment of anatomical impairment.

The rating guide must be adopted by july 1,1994.

In order to staff the above-mentioned programs, approximately 54 new state positions were created. These positiun::. will be spread throughout the Department of Insurance, the Workers' Compensation Commission and the Department of Labor. In light of the stated purpose of decreasing the costs of workers' compensation, these programs may not be well received because of the costs of implementing them from scratch. In addition, some critics have cited to the fact that a number of the functions of the new programs could be borrowed from exi ting programs l6 . Further, the new programs are not all controlled by the Workers' Compensation Commission. As a result, good results will be dependent upon bureaucratic cooperation, a novel idea. The more predictable result will be mass confusion, failure of cooperation, duplication of effort and increased costs a result not contemplated by the drafters of HB 1615.

It is the opinion of the author of this article that HB 1615 was a step in the right direction. Some would disagree and say

that HB 1615 was "one giant step" by management on the heads of employees throughout the state. Regardless of which opinion is correct, it can generally be agreed upon that HB 1615 is not a "cureall" for aLi of the workers' compensation woes. It is anticipated that workers' compensation could be revisited in the not too distant future to address the problems created by the new Act. The only question is - when? In the meantime, it will be very interesting to see how the ALjs, the Commission and the courts will react to the new Act in light of the strict construction mandate.

END OTES I. Ark. Code Ann. §11-9-102(6) 2./d.

3. Ark. Code Ann. §11-9-102(14).

4.See e.g. fOlies v. City of Imboden, 39 Ark. App. 19 (l992)(law enforcement officer injured after termination of employment still entitled to compensation); Welch's LAundry v. Clark, 38 Ark. App. 223 (1992) (employee sustains injury in fight with co-worker and receives benefits); Engle 54/< Corp. v. Egaa, 39 Ark. App. 79 (1992) <death benefits affirmed in claimant's death caused by accidental overdose of pain medication after work·related injury).

5. See e.g. Waf-Mart Stores. '"c, v. Baysinger,

306 Ark. 239, 812 S.W.2d 463 (1991); Mapco, lac. v. Pa;ae, 306 Ark. 198, 812 S.W.2d 483 (1991); and Thomns v. Va/mac I"dllstries, 306 Ark. 228, 812 S.W.2d 673 (1991).

6."The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees ... Provided, that otherwise, no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property."

7. 5t.'c Btlldwill Co. v. Mallcr, 224 Ark. 348, 273 S.W.2d 28 (1954).

8. Ark. Code Ann. §11-9-11J6.

9. Ark. Code Ann. § 11-9-107.

10. Ark. Code Ann. § 11-9-406 (up to

$1,000 per day).

II. Ark. Code Ann. § 11-9-529 (up to a

$500 fine).

12. Ark. Code Ann. § 11-9-409 (fine up 10

$1.000 per day).

13. Ark. Code Ann. § 11-9-802 08% penalty without award; 20% penalty with award; and 36% penalty for willful and

intentional failure to pay any benefits).

14.See Ryaa v. NAPA, 268 Ark. 1065,598 S.W.2d 443 (1980) (pennanent partial disability payments are suspended while a claimant is undergoing rehabilitation).

15.The change of physician can only be to a managed cart:= physician or 8 bona fide regular treating physician \-,tho agrees to refer only to managed care Specialists. Set Ark. Code Ann. §11-9-508(d).

16. Why come up with an impairment rating guide when a number of guides are currently available? The Commission can adopt the guides which are more closely identified with the purposes of the new Act.

From the Respondent: WORKERS' COMPENSATION REFORM An Attempt to Save the Goose that Laid the Golden Egg

By Joseph H. Purvis The 1993 Arkansas General Assembly passed Act 796, an act to increase workers' compensation benefits for employees and to substantially restructure workers' compensation law to decrease the cost to employers.

Background Workers' compensation was compromise Legislation enacted in the 1940's in Arkansas to strike a compromising balance in dealing with injuries to employees arising out of and in the course and scope of their employment.

Under the system as originally formulated, all parties were to benefit.

The employees were to benefit because where their injuries arose out of and in the course and scope of their employment, all of their medical bills would be paid, they would received 66 2/3% of their average weekly wage up to a maximum state cap, and would likewise receive payment for any permanent impairment that they received. All of this without their having to prove that someone else was at fault or the proximate cause of their damages.

Employers would benefit in that they would be spared the expense in terms of time, money and worry of having to litigate injury claims through the court system and their potential exposure was generally far less than any recovery would be in tort law in that there would be no monies for pain and suffering, loss of consortium, mental anguish and the like.

The Crisis Over the past ten years or so, a crisis has developed in the area of workers' compensation, not only in Arkansas, but throughout the United States. The crisis has resulted from a number of factors.

First, a majority of workers' compensation acts call for liberal construction of the act in favor of the employee and appellate courts, in Arkansas and throughout the nation, have seized upon this and mightily expanded the definition of a "compensable claim路' during this period.

Secondly, medical costs have skyrocketed. In addition to other fadors, it is a sad fact of life that a workers' compensation case is the only type of case a physician will handle which will guarantee that he will be paid 100% of his fee. While most states have provisions holding the respondent liable for only a "reasonable medical charge", the fact is

that most commissions and courts have

I been loath to call doctor's hands on any

fees. For a number of reasons, the medical costs on each claim have soared.

Thirdly, workers' compensation fraud has soared throughout the country and is well documented by a number of expose shows such as 20-20 and 60 Minutes, Individuals have discovered that a workers' compensation case is the easiest of all to prove given the fact that the Act should be liberally construed in favor of the claimant. Unfortunately, many administrative law judges throughout the country have found it easier to take the path of least resistance and award full benefits even where there was no proof whatsoever other than the c1aimanrs own selI-serving testimony that he suffered an injury during the course and scope of his employment.

The Initial Solution By 1986, the playing field in the area of workers' compensation had become so tilted in favor of employees, and claims and insurance premiums had grown so high, that employers and insurers were forced to take a drastic step. For the first time in anyone's memory, these groups banded together and applied pressure to the legislature and Governor to create some fundamental changes in the workers' compensation system as we know it. What ultimately resulted was a great compromise struck among organized labor, the Arkansas Trial Lawyers Association and respondents' groups which resulted in Act 10 of 1986.

It was felt and agreed that this Act would do a great deal to lower costs and premiums. This Act altered somewhat the liberal construction of the Act and required the party having a burden of proof to meet that burden by a preponderance of the evidence, and provided that in making said determination, the judge would weigh the evidence impartially without giving benefit to either party.

While Act 10 substantially raised workers' compensation benefits, it also provided that any determination of the existence or extent of any physical impairment should be supported by objective and measurable physical or mental findings. After the special session of 1986, employers felt most of the problems had been solved and that the playing field would be once again leveled.

This was not to be, however, as the Arkansas appellate courts continued to broaden the scope and coverage of workers' compensation and, in some instances, seemed to opine that the language of the statute did not mean what it seemed to clearly state.

As a result of all this, the crisis in workers' compensation continued to mushroom and it became readily apparent that many businesses that were supplying jobs to Arkansas workers were in danger of either going under, dropping workers' compensation insurance or moving to other states.

Arkansas employers were being met with a double whammy: (I) the number of insurance companies writing insurance in Arkansas shrank to an alarmingly smali number; and (2) at the same time, workers' compensation premiums increased so rapidly that companies were either forced to go out of business or push perilously close to that position.

The Ad Hoc Committee and Douglass Measure In 1972 an ad hoc committee was appointed to review Douglass's bill. This committee was made up of businesses and employers on the one hand and organized labor and the Trial Lawyers Association on the other. The committee met repeatedly over a period of several months, making precious little headway having quickly divided into employee/employer camps. Their meetings were marked with a great deal of acrimony and hostility. They were only able to agree on a few, rather innocuous items centered around increasing some safety provisions of the current act.

At the direction of The House Insurance Committee, Insurance Commissioner Lee Douglass drafted a bill based on the workers' compensation act in Oregon where they had been able to reduce workers' compensation premiums by 35% over a four year period, while at the same time dramatically increasing the number of underwriters issuing workers' compensation in that state. Douglass' bill revised Arkansas' workers' compensation act by putting greater emphasis on safety while at the same time dramatically restricting what would be a compensable injury under the law.

That bill was called a "mean spirited" anti-worker bill by labor, which urged its defeat.

House Bill 1615 In the meantime, the Arkansas State Chamber of Commerce was hearing its members speak to it loud and clear. The

26

ARKANSAS LAWYER

SUMMER 1993

members were being strangled by workers' compensation costs and knew that something must be done in 1993.

This same group thought that the workers' compensation problem had been solved by Act 10 of 1986, only to have these hopes dashed when the Act was eroded by loose, broad construction of its terms.

The members of the State Chamber of Commerce looked at the ad hoc committee and found only some rather innocuous items that would really not result in the sort of immediate and needed savings they felt were needed in order to preserve business in Arkansas.

The group also looked long and hard at Commissioner Douglass's bill. It found that while this bill provided an excellent base for change, given their experience with Act 10 of 1986 and what they felt was an ever-broadening and liberalization of the Act by the courts, something more dramatic was needed.

With that in mind, the State Chamber of Commerce drafted House Bill 1615. This bill, which used Commissioner Douglass' bill as a base, was modified extensively after it cleared the House of Representatives through intense negotiations with the Senate Judiciary Committee, ATLA and the Governor's office. The modified version of this bill then rapidly cleared the House of Representatives and was signed by Governor Tucker as Act 796 of 1993.

I know of no Act in recent memory which has been as vilified as this one. It seemingly has become a popular thing to do to criticize this Act and organized labor now refers to it as "the coldest, most mean-spirited piece uf legislation in their memory." The deriders of the bill fail to note that there are a number of benefits in this Act for employees.

The Act specifically penalizes those who would willfully and knowingly make materially false statements or representations for the purpose of not only obtaining benefits but also for the purpose of avoiding, defeating or decreasing any benefit.

This Act specifically prohibits employers' conduct willfully discriminating in regard to the hiring, tenure of work or of any term or condition of work of an individual on account of that person's filing a claim for benefits. The Act penalizes employers who fail to secure workers' compensation by providing a fine of up to $1000 per day of violation up to a total of a $10 /000 fine.

The critics of this Act likewise fail to mention that Act 796 beefs up the safety requirement to prevent injuries from ever occurring and provides for specifically identifying those employers who are

extra hazardous and penalizing them.

Thus, the Act will force a much safer workplace for employees.

The critics likewise failed to note that benefits stand to be dramatically increased as well. Under the provisions of the Act, the maximum weekly benefit payable for a compensable injury on or after January 1, 1997 will be 85% of the state's average weekly wage if the Insurance Commissioner certifies to the Workers' Compensation Commission during December 1996 that workers' compensation insurance rates overall have been decreased by at least ten percent over what they were as of July 1,1993.

The detractors likewise neglect to mention that where an employer refuses without reasonable cause to return an injured employee to work where suitable employment is available within the employee's physical and mental limitations, then the employer shall be liable to the employee for Ule difference between the workers' compensation benefits received and the employee'S average weekly wage lost during the period of such refusal for a period not exceeding one year. The detractors likewise failed to mention that the period for a rehabilitation program has been increased from 60 to 72 weeks.

It is certainly true that Act 796 of 1993 seeks to tighten and reduce the cost of workers' compensation by reducing compensable injuries. It also seeks to reduce compensable injuries by increased safety programs and putting pressure on employers, and by seeking to reduce medical costs with programs designed to dovetail with the current Rule 30 of the Rules of the Workers' Compensation Commission.

The employers of the State of Arkansas who provide jobs for the workers of Arkansas were in a most serious crisis in workers' compensation.

Business is "the goose that laid the golden egg" by providing jobs for our people. This "goose" was in danger of expiring. Act 796 of 1993 was an act to increase workers' compensation benefits for employees and to substantially restructure workers' compensation law to decrease costs to employers. While the Arkansas State Chamber of Commerce and other employer groups have been vilified for their active support of this bill, the fact remains that this bill passed both the House of Representatives and the Senate by more than a two-thirds vote. Obviously, the members of the legislature heard the cries for help from the "goose." I think that Act 796 wili save our goose rather than cook it. Let us all hope so.

From the Claimant: WORKERS'COMPENSATION REFORM Cutting Costs by Eliminating Employees from Coverage

By Zan Davis Workers' compensation rdorm was foremCht on the agenda of the Arkansas General Assembly during th~ 1993 se5sion and when that happens there's trouble ahead (or someone. And we got it - Act 796 of 1993. What follows is a brief comment on our workers' compensation

rdonn from a \Tery bia~ ob!otCrvcr.

The Early Compromise With the adoption of the original workers' compen~tion law in the 1940'si a great compromise was struck.

Employ",-" gave away the nght to sue an employer in lort, the right to trial by jury, and the right to rt.'Cover full damages for their injuries. In exchange, there was established a no-fault system of recovery for Iimih.'C1 compensation which was to be obtainable in a speedy and informal manner with rights to benefits being conslnled liberally in favor of the injurc>d worker. While the employer's immunity from suit in tort and the exclusive remt.'CIy shield has been preserved in the slatutes and staunchly protectc>d by the courts, the ArkalLSds legIslature has gradually erod<>d the righls of employees under Ihe Workers' Compensation Law. As a result, employers have been able to take back, to a great extent, their end of the bargain.

Act 796 of 1993 is the most recenl and devastating blow.

The Douglass Initiative As we entered the 90's, premiums paid by empluyers for workers' compensation insurance had risen to strangling levels, primarily due to the sky-rocketing cost of medicdl treatment.

The Arkansas Insurance Department granted a 18.5% rate increase in 1992. The heat was on. The Joint Interim Committee on Insurance and Commerce direded Lee Douglas.., Insurance Commissioner. to do something about insurance premiums through legislatl\·e reform. Dougla .. ~ looked to Oregon, a state where major workers' compensation reform had resulted in double digit premium reductions for workers' compensation insurance. According to Oregon officials. the driving force bt.·hind reductions had been a tough and extensive safety program which drasticall} reduced the number and seriousness of work-related injuries occurring in that statl'. Douglass drafted a proposal borrowing heavily from the Oregon reform act and produced

what eventually came to be known a" the "Douglass Initiative". An ad-hoc committee of workers' compensation experts from all walks of life was created by the Joint Committee on Insurance and Commerce to study the Dougl,lss Initiati\"e. For months, the ad-hue committee reviewed, modified, and added to the Douglass Initiative.

Eventually, a 37 page bill emerged repre~cnting the unanimous recommendation" of the ad-hoc committee. At the last minute, the Chamber of Commerce decided that the recommendations of the ad-hoc committee were not radical enough and drafted an entirely different bill which became I louse Bill 1615. Afler heak>d debate, 1615 pa,sed the House of Representatives and the Senate with minor amendments and became law on March 31, 1993, as Act 796 of 1993.

Ad 796 of 1993 Unlike the Oregon plan, which was predicatl>d on prevention of injuries, Act 796 of 1993 will attempt to reduce workers' compen~ation costs by simply eliminating large groups of injured workers from coverage. Specifically, many "gradual" injuries, psychological injuries, injuries resulting from aggravation of preexisting conditions, and those suffering from work related respiratory or heart problems will be significantly restricted or entirel~' eliminated from coverage under the Worker!'t' Compensation Law. Even though these people will be dis.lbled and In need of medical treatment, they will not be compensated even if there is no question that their problems are work rt~latL~. Obviou!:>ly, costs can be reduced bv eliminating large groups of workers from con~rage. But what will happen to these people? \Vhl're will thl"· end up" Thos~ ,",,·ho have medical insurance md} be able to obtain partial payment of their medical bills but premiums for medical insurance are already out of control. Some will end up on Medicaid but this system is broke. \-1an}' will simply go untreated, unable to get \".ell and return to work.

Arguably. this is not a very enlightent-~ approach to soh·jng the workers' compt.'nsation problt'm, but the Arkansas Legislature has nC\"l'f been f~lmous for cerebral solutions.

CLE and Sacrifice

By Deb Garrison It's 7:30 a.m. and I've been up for the past two hours preparing for this particular morning. I'm in the Best Western parking lot manhandling the third, yes tllird, fifty pound box of books out of the back end of my Izuzu Trooper.

My only thought: "Please, God, let the coffee be read y."

I get to the registration table where I am greeted by a man who looks rabid.

"Surely," I think, as my mind starts racing, this man is in the wrong place.

Registration doesn't ~tart until 8:30 a.m.

I got up at an ungodly hour this morning just so 1 could have registration set up before ...

"Is this that eLf seminar?" he bellows, his voice filled with loathing.

"Family Law?" I reply with a tentative smile, hoping against hope that thin maniacal man is in the wrong place.

"That's it," he barks, "I dun'l know

what this CLE is good for. Can lead a horse to water but you can't make him

drink."

To make a long story short, I spent much of the next six hours listening to this man's tirade about CLE, the Bar

Association, the Supreme Court and every other goshawful institution known to man. He never let up. Even as other lawyers made their way through the registration line.

Because I was polite and allowed him to vent, we ended up "good friends."

As we left the Best Western that afternoon, he let me know that if it ever became necessary for him to sue the Bar Association, he would ~xc1ude me from the lawsuit. I thanked him and went home where 1 promptly downed three vodka tonics to the sounds of Pink Floyd's "Dark Side of the Moon." It was not a good day.

I though that most of the resistance to mandatory CLE had died down in the last few years. Boy, was I wrong.

Becoming an employee of the Arkansas Bar Association (as I did last September when AICLE was merged into the Association) has forced me to take a second look at CLE. "Fixing CLE n The movers and shakers within the Association tell me that all is "ot well with eLE in Arkansas. They report that

28

ARKANSAS LAWYER

SUMMER 1993

certain factions want to "increase the number of carry-over hours" because they have to "travel out-of-state to get quality CLE:' Others say that they hear continued complaints that "CLE is inconvenient" or "it costs too much." Still others who would like to shape the Association's approach to CLE, say that, in their opinion, there is "too much CLE." Both of the candidates for PresidentElect of the Association have been quoted in Ti,e Daily Record as saying that, if elected, they would "stress" continuing legal education. I'm not sure what that means, but I get the feeling that with all of the bad rap, they've probably got some pretty definite ideas about how to "fix" CLE. The CLE staff has tried to "fix" CLE. We've cut back on wasteful spending, thus insuring low registration fees.

We've tried to make seminars available throughout the state, thus insuring convenience. We've tried to work with our speakers and program planners to improve quality through such measures as early planning and guidelines for presentations and course materials.

We've tried to encourage our speakers to use effective adult learning methodology - or at least use auuio-visual aids, if appropriate. We've even hosted a faculty development workshop.

Stilt according to most accounts by those in the know, many of you are dissatisfied with CLE. Don't misunderstand me. There is room for improvement. Staff is probably more in touch with the shortcomings of CLE than you'll ever know. (We actually read those evaluation forms you turn in.)

We are always trying to improve what we do - within a limited budget.

An You Willing to Sacrifice Your Time to Make CLE Beller?

I think you'll find the CLE staff is ready and willing to do what it takes to make our s~minars better. My question to the nay-sayers is this: Are yo" willing to do what it takes to make CLE better?

To the nay路sayers who have abandoned the cause by only attending out-of-state programs - when is the last time you offered to help us make our CLE seminars better? Are you willing to volunteer your time to plan a program or

speak? What have you learned at those programs that would work here? Tell us.

To the nay路sayers who have volunteered in the past - are you willing to take even more time away from your practice to attend a workshop to help you improve your presentation skills? Are you willing to study effective adult learning techniques and put them into practice in your next CLE presentation? Are you willing to learn how to properly use audio-visual aids to help our attendees get more out of CLE seminars?

To the nay-sayers who have planned programs in the past - are you willing to work with us to develop more intensive, problem-solving workshops workshops which require a BIG time commitment?

(Try at least two, preferably three, planning meetings with faculty and a problem-drafting session at least 9 months in advance) To the nay路sayers who hold or aspire to hold policy-making positions within the Association - are you willing to commit the resources - budgetary and otherwise - to staff as we implement all of these innovative methods in CLE programming? Are you willing to sacrifice atl~ndance numbers (and registration fees) for the smaller workshop approach? Are you willing to take the time and spend the money to find out the needs of the entire membership, not just those who are most active? Are you willing to consider that, in the face of increased competition for the CLE dollar, we should offer more high-quality, convenient and cost effective seminars?

And finally, to nay路sayers in general - when you attend one of our programs, you're a recipient of CLE credit courtesy of your fellow lawyers - busy lawyers who have volutlteered to plan programs, write outlines, and prepare oral presentations. Every time you badmouth CLE, you bad-mouth your peers.

Isn't that lawyer- bashing at its worst?

If your answer to at least some of these questions is "yes/' caU me at 3753957. If you're ready to make the sacrifice, I'm ready to work with you to improve CLE.

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ACall to

A. R. M. S.

By Lamar Pettus

I am very proud to have the opportunity to serve as President of the Arkansas Bar Association. To introduce myself to you, I want to ramble a little and discuss three things which are important to me: the need for a legislative package; the dues increase; and a call to A.R.M.S. First, I believe the most successful and productive associations are driven by the ideas and thoughts of its membership. I need your advice and your help. I do not have a preconceived agenda except to challenge you to be active and make a difference through the Association. You can-I know, because T did as a young lawyer. By "complaining to a bar president," a law was changed.

That one incident is probably why I am here today.

The 1993-94 Bar Year is considered a non-legislative year. Because of this, there is a danger that you and I will lapse into a "there is nothing to do" attitude. If this becomes your attitude, you need a "wake-up call." The 1993-94 memberslup must write and assemble our next legislative package. Each committee, each member, should be working diligently to review, revise, and propose legislation which will alleviate problems directly affecting our lives as lawyer.;. If our legislative package is not complete by mid-June, 1994, there will be no legislative package. Thus, I challenge the committees and the membership to begin the new year with new hopes and new goals.

Second, for the first time in 14 years, there will be an increase in mcmbcrship dues. Is membership worth it? If your answer is" o!" or'1 doubt it," then may I be so bold as to suggest that if membership is not worth it, it is your fault. To derive the most from the Association, one has to participate and be an active part of the Association: Are you reading the Arkansas 30

ARKANSAS LAWYER

SUMMER 1993

Lawyer/responding to the "fax poll"?

Do you attend Bar-sponsored CLE programs?

Have you updated your Arkansas Form Books/Computer Discs?

Have you participated in a Pro BoliO or Public Service Program?

Have you joined the Lawyer Referral System?

Have you read the Arkansas Law Review or the Law Journal?

Are you familiar with BARNET? Have you thanked our lobbyist and Past President John Gill because Lawyer Services/Fees are not being taxed?

I submit the benefits of membership far outweigh the cost. One client obtained through the Lawyer Referral System can produce profits far in excess of your dues. The savings handed to each lawyer when the Association rallied to help defeat the proposed tax on la\vyer services will more than offset the cost of your 1993-94 dues plus your dues for years to come. Why not become a Sustaining Member or commit to spend a few days in Little Rock working with our lobbyist during the next legislative session; time is money and the dues are worth it.

Finally, I want to issue to each lawyer a call to A.RM.S. Just as you are the key to making membership a rewarding business venture, it is you and I who must formulate an Aggressive Response to a Misinformed Society.

We have allowed ourselves to become a maligned profession. For years, our profession has been under attack by politicians, business leaders, other professionals, and yes, even our own. A member recently wrote and suggested maybe we, as lawyers, need a "wake-up call" in general-not just to the crisis our justice system faces-I agree!

Lawyers must Aggressively Respond to a Misinformed Society by publicly acknowledging the roles the

legal profession plays and the sacrifices its members make in protecting individual freedoms which help maintain a free society. Each lawyer must become involved-be active, be positive, and take the challenge. To encourage active lawyer involvement, lawyers must publicly acknowledge our members who serve on city boards, city councils, county quorum courts, school boards, commissions, and in the legislature. Such service is no less pro bono than the providing of free legal advice and representation to the needy client for which service our members are awarded by public acknowledgment amI lapel pins.

But we must do more. Lawyers must publicly acknowledge and support an individual's rights to legally challenge laws, regulations, and projects which, although locally popular, might be constitutionally suspect. We must also provide public and private moral support for the lawyer who steps forward to represent the individuals who initiate such unpopular challenges.

We are members of a profession once held in high esteem for its fairness, courage. hard work, intelligence. aggressiveness, honesty, ethics, and independence.

As members of this Association, we must diligently and quickly begin the work of the 1993-94 Bar year. We must prepare our legislative package, pay our dues, become active, and become involved.

We also must begin to build the base from which we can wage a war against those in society who threaten the very foundation of individual freedom by an unrelenting attack on our profession. It is what I view as a call to A.R.M.S.-an Aggressive Response to a Misinformed Society. Become a part of the campaign; become active in your Association, your community, and your state.

GETTING

DOWN

T0

BUSINESS

WIT H

L Shrewd (shrOOd) adj.: 1. having READY FOR A SURPRISE? Pellus left Forrest City thed",y .fter keen insight: ASTUTE. 2. Artful and 1 - - - - - - - - - - - - - - - - - - - 1 IUs high school graduation to attend cunning. 3. Sharp.

LAMAR PETTUS IS NOT summer school at the University of Affable (af e' be'l) adj.:1. Easy to Arkansas at Fayetteville. I asked him converse with: AMIABLE. 2. Marked A GOOD OLE BOY. why he wentto summer school at that by gentleness or graciousness. point. '1 was in a hurry. I was going These are two words that aren't HE'S A BUSINESSMAN AND to make enough money torel:ire at age normally used together to describe 40 so I figured I better get started." someone, but with Lamar Pettus, READY TO START "But you're 48 and you're still they seem to fit perfectly. This 48 working, " I remark. year-<lld President of the Arkansas TAKING CARE 0 FIT. '1 decided when I was around thirtyBar Association really is affable but five that maybe I was going too fast," at the same time quite shrewd. he responds. " llooked around, and I When you first meet Pettus the

BY PAIGE MARKMAN was working all the time. I mean, you affable is obvious. He's handsome, work all day, every night, all weekend friendly, outgoing and talkative. The and what do you get from it? Money. shrewd part sneaks up on you. Just when City that Pettus got IUs first taste of being Thars really all- money. And you you think you've got him figured to be a "President." He was plagued with a know, how important is it in life to have a good ole boy, ready to go golfing or speech impediment as a child and was whole lot of money? I decided it wasn't fishing at the drop of a Razorback taken to special classes several times a important enough to keep me from being week to overcome it. If you listen happy, from spending time with my baseball cap, he throws in a really carefully, Pettus still employs the family." enlightened, man-<lf-the-nineties comment referring to the operations of IUs techniques they taught him when It was at the University that Pettus suecessfullaw practice in orthwest speaking. He pauses between sentences, met Donna Evans from Little Rock. thinks very carefully of what he wants to '1 met her when it counted in July of Arkansas. Intrigued, you continue the conversation and find, not really say, and then deliberately proceeds 1968," said Pettus. surprisingly, that tlUs is not only a slowly to get IUs point across. The speech " No it wasn't - it was September of shrewd lawyer but a savvy businessman problem taught him a lesson many of us 1967, LamarI," exlaims Donna. with the instincts of a shark. So, shrewd could still learn - to think before we "Oh, that's right. I had met her and affable make a very interesting speak - but also left him shy and before, but I don't really remember it. She somewhat withdrawn from his does. But we didn't start dating until combination all of the sudden. And just to top it off, throw in a lawyer-wife _ classmates. Pettus was not a "joiner." He September of '67. She was going wilh who's just as intelligent as he is but with usually had a small group of friends. He someone else, and I asked heroul. I an added ingredient - you will not find a didn't join in the ever popular Southern didn't know she was going out with this woman more in love with her husband high school fraternity system. It was this guy, and when I brought her back to her and more loyal and devoted to helping syslem thaI led him 10 IUs first attempt at dorm he was there waiting. He told me he her husband get to where he wants to be. holding office when IUs group of friends was dating Donna and asked if I was Pettus says he was a "poor farm thought it would be funny to nominate ready to fight him over it. I said "No, I'm boy," raised in Forrest City, Arkansas Pettus for Student Body President so that not going to fight you over a girL" When where IUs father was a farmer and IUs the usual Fraternity guys would have asked why he didn't fight, Pettus's first mother remained busy taking care of some competition. Pettus agreed and set response was: "There were 499 other Lamar, his older sister Patricia, and a out to run a real campaign. He did .. and women on ca.mpus. I had only had one younger brother, Glenn. It was in Forrest he won. date with Donna." Thars your first clue

J

32

ARKANSAS LAWYER

SUMMER 1993

about Lamar's shrewdness. Donna was

good combination with his engineering

at night. Again, he went to summer

impressed and promptly dropped the other guy to began dating Lamar.

During his time at the University, Pettus also became politically active,

degree, get him a little closer to that retirement goal, and further his political efforts.

school each year and finished in 2 1(2 years. After graduating with honors, Pettus went to work for Pearson &

Woodruff in Fayetteville. He worked for the finn for nine months and quit to go out on his own. There's your second due about shrewdness. Determined to work for himself and make lots of money, he opened his own firm and borrowed money to buy one of the local gas stations.

He put Donna, now with two children, to work managing the station during the day, and at five o'clock, he would take of( his suit and put on his overalls and run

serving on the Student Government and making an unsuccessful bid for

President of the Student Bodyhe lost to a young man from

Hope- it was Mack

the station himself at night. The

McClarty.

After graduating from

the results sent to the University of Arkansas, the University of Texas and Southern Methodist University. He got an acceptance letter from Texas and no

investment did not tum out to be the money maker Pettus thought it would be, so he closed it after two years and put his money into real estate, a business in which he has continued to invcst and find success.

Donna came into the office as his secretary after the saJe of the gas station.

It is obvious when you meet her, though, that she was probably a valued advisor and partner even at that point. It was just before the birth of her third child, Chase, that Donna decided she wanted to go to law school. After Chase's birth, she began

response from SMU. He decided not to do anything about it at that point and had

law school in 1980.

"I had always been interested in the

one night soon after reaching California and said "Why don't you come out and visit and maybe we'll get married." They

returned to Canton to resume his job.

Upon returning, he found a letter that had

was working all the time, and I thought if

literally "followed him around the world"

I were a lawyer, not only could I see him

did marry on August 17th of that year.

Donna left college at that point and joined

from the University of Arkansas.

The letter said "You've been

Lamar in California for a short time

accepted to law school at the U of A School of Law; get your check for $50 and your photo sent in by the fourth of july

the five year

Engineering Program in 4&1 /2 years, Pettus went to work for International Harvester in Canton, Hlinois. He was there only two months when he was calJed to active

He took the test and had

duty in the Navy.

He reported to the U.S.s. Oklahoma City in San Diego, California, in February,

1968. He called Donna from a pay phone

before they shipped out to Yokusuka, japan. They spent a year in japan and lived in several other ports over the next

three years, including aples, Italy, and ewport, Rhode Island. Donna finished her degree by returning to Fayetteville for a couple of semesters and taking correspondence courses.

After his stint in the avy, Pettus returned to Canton to work for International Harvester. A funny thing

happened, however. While he had been out at sea, his commanding officer had asked him to take a advanced degree exam because he got $15 for every serviceman he could get to take the test.

Pettus thought about it and agreed to take the LSAT. He had thought about going to law school before, lhinking it would be a

34

ARKANSAS LAWYER

SUMMER 1993

law, but, more importantly to me, Lamar

more often, I could hel P ..--____

Asked why he wouldn'tfight

him and understand what

his problems and goals were -

it

would just be one

weekend." Being that it was

more thing we over Donna had in common," jumped in his car and drove after theirfirst says Donna. "1 just down to Fayetteville, stopping thought it was the date, Pettus sallS best of both worlds at the local K-Mart to get his "T/J" picture taken in a booth, and to be able to work nere were 499 with Lamar and be slid his check and photo under the Dean's door just in other Women on with him at home. I time. can't imagine only To get through law campus, I had seeing him for two school and help support hours a night at home only had one date when we're both Donna and their new baby, Pettus got money from the with Donna. " tired." "She just V. A. Bill and worked two

the 4th of july weekend, Pettus

jobs, roofing houses during the day after class and being a janitor

wanted to make sure J never bought another

I comments she didn't like.

gas station/' says Lamar.

I've been known to throw a file or two," says Lamar.

After graduating from law school Donna

'Well yes, but not very

went out on her

own to see what it was like to be a small town practitioner as

Lamar had done.

When Pettus, Johnson & Gibson broke up, Donna joined Lamar in

forming the Pettus Law Firm. The firm now employs two

other lawyers, Lisa Thome--Corke and Don Wilson. When asked who is the senior partner, there is no hesitation, "I will always consider it

"Lamar is the

often anymore. f think we've

trial lawyer,

gotten past a lot of that as

outgoing, one-on-one, person-to-person lawyer. I p~efer research, wrtttng, developing a case, "says Donna.

Lamar's firm. He established it, and, if it weren't for him it wouldn't be the firm that it is."

Making the transition from mother to mother Ilawyer has not always been easy

for Donna. She has been the primary

we've matured, both professionally and in our marriage," says Donna.

The two work well together when it comes to

most cases the firm handles.

Lamar is known for taking on controversial cases, but only the ones in which he believes.

"Lamar is the trial lawyer, outgoing, one-onone, person to person lawyer. I prefer research

and writing, developing a case," says Donna.

Often Donna will do the research for Lamar, and he will take it into court. And he wins - a lot. One gets the feeling listening to his "war stories" that once you hire Lamar Pettus, once he believes in your case, he's like a

and be part of the b<xIy helping Lamar make the changes he wants to happen," says Donna.

Changes Lamar wants. This usually

begins the section of the article where the new President presents his lofty goals of totally revising the judicial system or the

legislature or tackling the image of lawyers on a national basis. A very shrewd Lamar Pettus doesn't have big,

lofty goals. He has very detailed steps toward the future, not just for his year but for the Association and Arkansas lawyers for years to come.

Pettus is different from past Presidents I've interviewed. They have all been very intelligent, well-spoken men, but they are and have always been

lawyers. Pettus is not only a lawyer, but as stated earlier, a very savvy businessman. His forays into the business world have included not only the gas

station, but building up and managing extensive real estate investments. He has been a property manager, a buyer and seller of properties, a maintenance man

and a landlord. Because of this experience, he has an insight into the "business" aspect of the Bar Association

working at least an 8 hour day.

dog with a bone - he's not going to stop fighting until its done. Donna has been equally successful, putting together some

"Lamar and I share some of the responsibilities, but the children will

carefully researched and documented cases. And, though her main

groundwork laid for furthering the predecessors, but now it's time to take a

caretaker of their three children while

always be my first priority. It's easier

job has been raising her

since Lamar made the downstairs of our

children and

office building an apartment for the kids.

I would pick them up from school and bring them to the office, and they would

supporting Lamar's efforts, she has begun

do their homework or watch TV

well. As ofthis

basketball outside where Lamar put up a

writing, Donna Pettus is one of the new members

during the interview to remind his

mother to tell me he was the good looking one with all the babes - obviously takes after the old man.

The Pettuses believe they

"Through seeing Lamar's

complement each other to make the firm work. 'There are always problems with spouses working together. I'm sure employees in our office have heard Donna slam doors when J've made

look at the Association itself the business.

of the Arkansas Bar Association House of Delegates from her district.

senior at Fayetteville High School, and Chase, the fourteen year old who called

profession by John Gill and his

to come into her own in the profession, as

downstairs, and sometimes play net for them," says Donna. "It's better now that the kids are older."

The children are Lamar Jr., now a senior at the Air Force Academy; Carrie, a

that others haven't had - and he's going to use it. Pettus says we've had good

work with

the Association, I've

...

-::!:::::~"",,::::::::::: ~r....r;;;;~

come to see the benefits of working with the Bar, seeing how you can make a

difference. I wanted to be a part of that

'Tm going to run the Association this year like I would any other business. As CEO of the Association for the year, I am going to see that we take a look at the way the business end is run - staff responsibilities, program administration, how each member's money is being spent.

I'm going to take the things I find to the members and make sure this is how they

want their dollars spent," says Pettus.

This will include the assessment by an independent management consulting team of the Association staff and executive staff and n clearing through

Pettus of any major expenditures. The Executive Council will evaluate personnel policies and procedures and will report to

the members on all of these findings and let them vote on how they want their Association to operate.

Basically, Pettus is going to ask

questions, not only to the members, but to

the established Bar and the Association staff. He is a seeker of knowledge - your last due to his shrewdness - and he uses

that will affect our profession, and affect it directly and immediately. But I also feel the Association should be member-driven, not leader driven, so I will go with what the members want," says Pettus.

Pettus looks at the Association strictly as a business and will view it as

manyCEOs are looking at their businesses

these days. He believes that if we want to go fonvard, we need to streamline, arrive at a position in which we are lean, mean and

going to make them

going to take an individual effort from each member to modernize the Association and also to change the image of lawyers, which will make the profession better for all of us," says P~ttus.

So what do these changes mean to the members of the Association? You may not see the dramatic changes, you may not be on the direct receiving end of the questions or suggestions. I have a feeling, though, that all of you will see the changes eventually. Lamar Pettus is going to make the changes that will allow the lawyers of Arkansas to have a solvent,

more in depth? Are we

successful BUSINESS to support them for

trying to compete with

a long time to come. And perhaps, I think, these are the rno t important

efficient- ready to meet the challenges

the knowledge he attains to improve or

before us. We need to set some dear

better the people and things he is

goals and work diligently toward those goals. Part of that process is asking

associated with. He wants to know if our

programs are, first of all, what the members want and secondly, cost effective.

'1f you're going to be a leader, if you are going to be involved, you have to ask, 'Why are we doing things this way? Is there a bette.r way?'

You've got to

answer these questions and be committed to make changes if that is what is necessary. It can

only help us as la wyers. The reason [ am in the position I am in now is that the Association has done a lot for me as a lawyer. I think it is a good organization and is a means by which lawyers can make a difference in ways

36

ARKANSAS LAWYER

questions about everything we are domg now.

"We have a major question in CLE. If

we are going to be in the CLE business, where are our CLE

Programs going? Are

"we need to set some clear goals and work diligently toward those goals.

Part ofthat . process IS. asking questtans about everything weare doing now. "

we going to continue to offer good quality programs? Are we

national providers?

We may not like all the answers, we may

not like the suggestions we get, but it is very healthy for the Association

to look inside itself, and 1 think it's time for us to do it. We need to make decisions.

I also want to get the members involved

in changing things for ourselves. It is

SUMMER 1993

changes of all.

"He's looking out for the well being and reputation of lawyers as a profession.

His concern and dedication for this profession is his passion. He'll do a great

job" says Donna as she again looks toward her husband, not only with a

maturing love, but with great respect.

Editor's Note: Thanks to DonnQ and LAmar

Peltus for braving the hfJ1t during the photo shoot and also for their honesty and franlrness while being interviewed.

8th Cir Opinion S

•

written

Dean Howard E·se.. ""-, ,", of the UALR Sc Now, for only $1 ~~lfY those attorneys and ega ssistants who practice outside Pulaski Count an et a Friday-only subscription to The Daily Re rd atewide "LAW EDITION" without paying e re lar $95 daily subscription rate.

ch riday issue includes: Supreme ourt d Court of Appeals regular syllabi, statewide n w C61]foration fLlings and statewide bankruptcies, featuring I . orial, legal commentary, regular AG opinions, tips d pful information for the Arkansas law office.

Call 374-5103 and subscribe today.

y $12 for 52 issues

-,po-....

THE

DAILY RECORD Daily Newspaper of Law and Businesslnformatwn since 1925

LAW

PRACTICE

MANAGEMENT

The Benefits of Automation

By Jerry Schwartz

Automation is very important to the financial success of the law office.

The benefits of automation should be considered by those who have not automated and should be reviewed by users. Those that have not automated will see the deficiencies in their operations and the users will be encouraged to fully utilize the power of the hardware and software that they have purchased. Not including word processing, which should be automated in every law office at this time, these are the four major classifications of law office software and some of the benefits which should be enjoyed from their use in the law office: Time and Billing: Easily provide access to client names, addresses and telephone numbers.

Provide immediate access to current financial and client data on demand.

Increase overall efficiency and prod ucti vi ty. lmprove cash flow.

Increase law office profits.

General Ledger, Trust Accounting and Accounts Payable Integration with the billing system to eliminate duplicate entries.

Standardization of reporting with the use of a chart of accounts.

Monthly reporting of income and expense and comparison to budget and previous periods.

Monthly reporting of the law office assds, liabilities and capital on a balance sheet.

Ability to analyze information for budget and cost containment purposes.

Automatic transfer of trust funds to the billing and general ledger

Keduce the amount of repetitive

system. Review of trust account

clerical tasks and duplicate entries.

Reduce the month end work load.

Reduce the amount of time spent billing clients for attorneys and staff.

Flexibility of billing formats.

transactions and balances of client funds.

Reduce time in preparation of accounts payable checks.

Facilitates cash management by anticipating cash requirements.

DOCUMENT MANAGEMENT ( LlTiGATlON SUPPORT) SOFfWARE Store documents in full text and/or document abstracts.

Efficient search of multiple files.

Ability to perform proximity and conditional searches.

Produce management reports to

allocate resources and identify problem areas.

Reduce write-offs caused by late or undetailed bills.

Reduce the amount of unbilled time and disbursements through the use of Work in Process reports.

38

ARKANSAS LAWYER

SUMMER 1993

Encourage productivity of lawyers and staff.

Reduce outstanding Accounts Receivable.

Ability to add and search notes added to documents.

Listing of documents which meet search criteria.

CASE MA AGEMENT SOFfWARE Tracking of case data including case name, case value, case type, incident information, attorneys involved, fee arrangement and referral information.

Tracking of plaintiffs, defendants, witnesses, expert witnesses, doctors, insurance policies and adjusters.

Provide information on court and arbitration information including judge, court, term and number, trial date. Statutes of limitation are calculated to insure that important deadlines are met. Conflict of interest checking of all parties included related parties.

Ability to store notes on case.

Report on the status of case events.

Law

offices

that

are

not

automated or are only partially automated should consider the benefits of automation and make the decision to move forward with an investment in the future of the law office.

Jerry SchWllrtz is the presidellt of Legal Management Services, [rIC. of Memphis, Tennessee, a consulting and management

services firm specializiflg in profitability improvenumt for small and medium size law

offices.

LAW,

LITERATURE

&

LAUGHTER

ACouple of Devilish Con Law Cases

By Victor A. Fleming

In the continuing saga of whether judicial opinions, pleadings, or sworn testimony is the most entertaining, Lynn Lisk of Little Rock has entered the fray with a contribution for each category.

Lynn's first entrant is U.S. ex rei.

Gerald Mayo v. Satan and lIis Staff, 54 F.R.D. 282 (U.S.D.C.W.D. Pa. 1071) (a hard-back law book). District Judge Weber's opinion reads, in salient part, as foUows:

"Plaintiff...alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiffs downfall.'" Sounds like the Satan that we all know so well. The opinion continues: "Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.... ITlhe Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district....WhiJe the official reports disclose no case where this defendant has appeared as defendant, there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action ... raised the defense that the plaintiff was a foreign prince with no standing to sue in an American court.

This defense was overcome by overwhelming evidence to the contrary.

Whelher... this would raise an estoppel in the present case we are unable to

determine at this time....

"We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marines for directions as to service of process.... It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied:路 So much for Lynn's entry into the judicial opinion division.

As to pleadings, Lynn submits documentation from the Little River County Chancery Court, filed in a 1990 case. In a "Civil Complaint" against the local prosecuting attorney, the plaintiff alleged as follows: "Plaintiff... challenges the acts of governmental functions by the defendants herein as they be no contrary to the Arkansas State Constitution of 1874 under the provisions of Article 2 and Article 7 as each may be sera tim in the complaint at bar." Do what? The complaint continues: "LAI lawful impanelled jury convicted the plaintiff of Capital Murder, and sentenced him to life in prison without parole. The court rendering the conviction herein consisted of: [here the complaint names the judge, the prosecutor, a deputy prosecutor, and the court reporter, aU of whom have the same last narne 2 ]. Each of the named court officials participating in the case at bar are all invuikatuib if Arkansas State Constitution of 1874, Article 7 section 20, which states as seratim: .. :No judge or justice shall preside in the trial of any cause in the event he may be interested,

or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law: [The complaint then goes on the describe the familial relationships of the named individuals.]"'

Had enough? It ain't over yet. The answer of the defendant states, inter alia: "Defendant is not conversant with the word 'invuikatuib,' ...and would ask for a definition of same." Whereupon the plaintiff, in a responsive pleading of sorts, states: n...Defendant not being conversant with the word 'invuikatuib' should research the definition and respond to Plaintiff." Well, !"ll be! Lynn Lisk has effectively written the entire column for this quarter. And I have not yet got to his testimony entry.3 So, thanks Lynn. Score: 13-12-5.

1. Which, research reveals, was actually highlighted m LLL in April of 1988-mnking LLL feel really old. Since five yenrs' worth of new lawyers have come onto the Arkansas scene since first mention of this case, it is deemed wort1IY of second mellti01I-besides, it has been counted in the currttlt competition.

2. Readers in Little River County and surrounding areas may sucussfully guess the names of these individuals, to whom apologies are hereby made for any i'lConve"ience this notoriety may cause them.

3. Which actually is going to require a bit of research, since what he se"t was from an abstract of a Supreme Court transcript. Abstracts can be tricky becaust they often place ill the mOllth of the witness language actually contained in some outrageous question asknl by a lawyer. So, watch for more 011 this ~xt issue, but for now to whet your appdite, suffia it to say that one of the lines from the abstract is ..[ wanted the dog to tell me what happened so [got him out of the car with me."

"ever

漏 1993 by Vic Fleming

Editor's Note: This is the second in a twopart series by Mr. Barrier & Mr. Selig. The first part of tllis article was published in the Fall 1992 issue of the magazi"e.

SUMMARY: Our first article, in the October 1992 Arkansas lAwyer, discussed the historical background and current context of the Third-Party Legal Opinion Report ("Report") and Legal Opinion Accord ("Accord").

The Report and the Accord were produced over a two-year period by the Business Law Section of the American liar Association, beginning with the "Silverado Conference" in mid-19 9, and with the final product appearing in the November, 1991 Business Lawyer (47 Business lAwyer 167).

The entire effort followed years of discussions, speeches and articles seeking to develop uniform standards governing legal opinions given by transactional lawyers to parties to transactions other than their own clients.

The most common types of this sort of opinion are those given by a borrower's lawyer to that clien~s lender with regard to a secured borrowing and those given in connection with business acquisitions.

Two of the most frequent sources of conflict in such i.nstances have been definition of terms and general scope, i.e., what should be reasonably asked for and what should be given in such instances.

The Report as a whole discusses the issues, while the Accord provides specific rules or answers to govem those opinions to which the Opinion Giver and Opinion Recipient agree the Accord applies. It also provides an illustrative Opinion to demonstrate how the application of the Accord works in a typical transaction.

Finally, the Report provides arguably its most important contribution by setting out guidelines for negotiating and preparing third-party legal opinions, regardless of whether or not the pa.rties agree to apply the Accord itself. Sections 40

ARKANSAS LAWYER

SUMMER 1993

1 through 9 of the Accord deal with issues of scope, disclosure, sources of reliance and permissible assumptions, all of which were discussed in the first article. This article will summarize Sections 10 through 22, which deal with substantive provisions of the Accord and then briefly look into the future.

that the "agreement is a legal, valid and binding obligation, enforceable against Ithe Opinion Giver's client]. in accordance with its terms." As noted in the definition of Remedies Opinion in the Glossary, any language reasonably similar or which appears designed to indicate a legally binding agreement in an Accordgoverned opinion gives rise to the provisions dealing with the Remedies Opinion. It is not necessary to include the terms "in accordance with its terms."

However, failure to use these type of words which give rise to the Remedies Opinion means that in an Accordgoverned opinion, no Remedies Opinion is being given.

CHOICE-OF-LAW CO SIDERATIONS Under the Accord, the Remedies Opinion is given by the Opinion Giver based on the law of the opining jurisdiction being the law which governs the document opined upon, without regard to whether the document being opined on so provides, i.e., without a specific contractual governing-law or choice-of-Iaw provision.

When the jurisdiction of the client's organization is different than the opining jurisdiction, that portion of the Remedies Opinion which deals with the formation of the contract is given on the basis of the law of the client's jurisdiction to the extent that such law governs the client's organizational status, good standing, and authorization of the transaction and the document, unless the opinion letter expreSSly states different assumptions or relies on an opinion of other counsel as to these matters.

If there is a governing law provision in the transaction document and it chooses the law of the opining jurisdiction, then the Remedies Opinion implicitly includes an opinion that the choice of law contained in the agreement itself will be given effect under the opining jurisdiction's choice of law rules.

On the other hand, if the transaction document chooses the law of some other

~

THE "REMEDIES OPINIO " Section 10 covers the "Remedies Opinion," a central element in almost every legal opinion. Under the Accord, that term means an opinion (a) that a contract has been formed, (b) that a remedy as to each agreement in the contract is available or will otherwise be given effect, and, (c) where the opinion expressly states that a certain remedy is available, that that remedy will in fact be available as stated in the opinion.

The Opinion Giver and Opinion Recipient must also look to Sections 11 through 14 dealing with the General Qualifications to the opinion, to which Remedies Opinions are specifically subject. Typically, a Remedies Opinion in a non-Accord transaction is a statement

jurisdiction, or does not contain a governing-law provision, then the Remedies Opinion will not include an opinion as to what law governs.

EXCLUSIONS FROM COVERAGE The Accord provides that the relevant laws of the opining jurisdiction are the laws of contract and such other laws in the opining jurisdiction that a lawyer exercising "customary professional diligence would reasonably recognize to be directly applicable...." Omniscience is not presumed.

Sections 18 and 19 specifically exclude certain matters from the opinion's coverage and thus the Remedies Opinions also exclude those matters unless explicitly so indicated. Thus, if the document being opined upon contains an arbitration provision, then what the Remedies Opinion means as to that promise is that the arbitration provision will be given effect but it does not deal with how disputes would be resolved by that arbitration. Just as other substantive provisions, the remedies provision is subject to any exceptions, qualifications or limitations which may be set out in the opinion letter.

"GENERAL QUALIFICATIONS" The Remeclies Opinion is also subject to the "General Qualifications" which are specified in Section 11 as the Bankruptcy and Insolvency Exception (Section 12), the Equitable Principles Limitation (Section 13), and Other Common Qualifications (Section 14).

It is possible to have the General Qualifications provision applicable to opinions other than the Remedies Opinion, but in that instance, the opinion must specifically say so, unlike the Remedies Opinion in which the General Qualifications are applicable unless the opinion indicates specifically to the contrary.

Occasionally, an Opinion Recipient will request that the Opinion Giver provide an assurance that none of these exceptions interfere with the "practical realization" of the Opinion Recipient's rights under the transaction document.

Section 11 indicates that this qualification is beyond the scope of the Accord. Thus, if the parties want to use the concept, it must specifically be included. The commentary indicates that, even if that language or similar language is included, it does not overrule the General Qualifications.

Further, the Guidelines for Negotiation and Preparation of ThirdParty Legal Opinions provide that, while this is a matter subject to negotiation by the parties, assurances like "practical

realization" are necessarily imprecise.

Additional definitions of terms may be required. In any event, the Guidelines neither endorse nor disapprove of this kind of assurance.

SPECIFIC EXCEPTIONSBANKRUPTCY (Section 12) The Bankruptcy and Insolvency Exception basically means that the opinion to which this exception applies is subject to bankruptcy Jaws, insolvency laws, and similar laws which affect the rights of creditors generally. It includes state or federal moratorium, receivership, assignment for the benefit of creditors, and similar laws, state fraudulent transfer laws, and similar judicially-developed doctrines. It also includes those federal laws which are applicable only to certain kinds of debtors or affect only certain types of creditors, such as financial institutions and insurance companies.

However, laws that may affect creditors generally but are not based upon bankruptcy, insolvency or similar concepts, such as certain provisions of the Uniform Commercial Code or laws dealing with usury, are not included within this exception. Accordingly, if there is a provision in one of those laws which might affect the enforceability of a provision, it is necessary to specifically describe that effect unless one of the other general qualifications deals with it.

SPECIFIC EXCEPTIONS EQUITY (Section 13) The Equitable Principles Limitation basically provides that the opinion for which this limitation is applicable is subject to general principles of equity, whether applied by a court of equity or a court of law. The limitation includes principles requiring good faith and fair dealing, reasonableness, materiality of breach, impossibility or impracticability of performance and unconscionability of the enforcing party's conduct. The Equitable Principles Limitation principally deals with the conduct of the parties after the contract has been entered into and the impact of that conduct on enforceability.

However, if, when the opinion letter is being given, the Opinion Giver has actual knowledge that one of these equitable principles would limit the enforceability of a particular promise or of the entire contract, thereby rendering that provision or the contract generally unenforceable ab initio - for instance, knowledge that one party cannot possibly perform the contract as written - the commentary makes it clear that No Remedies Opinion should be given or, if it is given, that this issue should be brought specifically to the attention of the Opinion Recipient in

the letter. Gamesmanship is discouraged.

OTHER COMMON QUALIFICATIO S: Section 14 sets out the Other Common Qualifications. These include, to the extent that they are applicable both to the provisions of the contract covered by the opinion and by the law of the opining jurisdiction, legal requirements which deal with the sale or disposition of collateral; the fact that forum selection clauses may not be binding on the court in the forum selected; rules regarding the election of remedies; laws which provide for judicial discretion in determining damages and attorneys' fees; and laws which give a party the right to cure default in certain circumstances.

NO BREACH OR DEFAULT: Section 15 covers the "No Breach or Default Opinion." As defined in the Glossary, that opinion is the opinion which states that, (a) the execution, delivery and performance of the agreement does not violate the basic governing documents (the articles and bylaws) which are defined as the "constituent documents," (b) does not breach or result in a default under "any other agreemenY' (defined in the Glossary as contracts other than the transaction documents to which the client is a party or by which its property is bound) and (c) does not breach or otherwise violate any obligation of the client under a court order (which includes administrative as well as judicial orders which either name the client or are specifically directed to it or its property).

Section 15 provides that the other agreements and court orders with which the opinion deals are those that are either specifically identified or which can be identified in a manner described in the opinion letter. As is common in nonAccord practice, the term "breach or defaulY' also includes any act which, with the giving of notice or passage of time, or both, would constitute an event of default.

In order to give the 0 Breach or Default Opinion, the Opinion Giver must only determine whether the terms of a transaction document and the performance of its agreements would constitute a breach or default under another agreement or violate the specific terms of a constituent document or court order based on information provided the Opinion Giver pursuant to Section 3 and other facts of which he has actual knowledge.

This may require inquiring of the client and reviewing of other contracts, but the No Breach or Default Opinion is not deemed to include permissive action

or conduct by the client under a transaction document unless such action or conduct takes place simultaneously with, and the Opinion Giver has actual

knowledge that it constitutes part of, the consummation of the transaction.

NO VIOLATION OF LAW The No Violation of Law Opinion, pursuant to Section 16, means that the execution and delivery of the specified document and the performance by the

client of its terms is not prohibited by any statute or regulation in the opining jurisdiction that a lawyer "exercising customary diligence" would reasonably recognize as being applicable nor would it

similarly subject the client to a fine or like sanction. The 0 Violation of Law Opinion arises when language similar to "execution and delivery by of, and performance

by [the Opinion Giver's _ client] of its agreements in [the document(s) opint::J upon] do not violate applicable provisions of statutory The No law or regulation."

Violation of Law Opinion plugs some of the holes left by the Remedies and other Opinions but is not a substitute for them.

It is designed to tell whether performance by the client will give rise to a sanction for violating a statute or regulation. It is not an opinion that the client is in compliance with all applicable or "material" laws generally, and as is pointed out in the commentary, a request of that breadth is inappropriate.

Since the opinion speaks as of its date, to the extent that future conduct of the client might fall within the purview of a No Violation of Law Opinion, that opinion relates onJy to conduct which is required in order to comply with the agreement.

NO PENDING ACfIONS Frequently an Opinion Giver is called upon to include in an opinion a statement that there are no legal proceedings pending or threatened against the client.

Section 17 of the Accord makes it clear that this is really not a legal opinion at all.

It is merely a confirmation based on information provided to the Opinion Giver by others under Section 3 and the Opinion Giver's review of its own lit.igation docket or other internal means for monitoring litigation.

The Accord also makes it clear that no review of court or other public records is necessary nor is it necessary to undertake any broader review of the Opinion Giver's files.

The commentary further indicates that, in the absence of very special circumstances, a request should not be

42

ARKANSAS LAWYER

SUMMER 1993

SURVEY MEASURES AWARENESS In the fall of 1992, R. Bradbury Clark with the O'Melveny & Myers law firm in Los Angeles sent a detailed questionnaire on the Report and the Accord to approximately 470 lawyers over the country. The purpose of this canvass was to gather data for talks Clark was to give to American Bar Association gatherings in December 1992 and January 1993.

In particular, Clark was seeking to measure the level of "awareness of and general familiarity with" the Accord, extent of usage and acceptance, "comfort level" with it, problems encountered and methodology in actual practice.

The recipients were either members of the ABA Ad Hoc Committee on Opinions (the successor to th" "Silverado" group); members of firms insured by Attorneys Liability Assurance Society; or acquaintances of Clark with an interest in the subject.

Nearly 40% responded, with a good geographic spread and not too much concentration among Wall Street firms. Those responding were generally familiar with the Accord (although Clark suspects that may mean the non-responding 60% were not). Those responding also indicated a high level of approval and support for the concept and general approach of the Accord.

However, they also expressed an equally high level of caution in pulling the Accord into general use without a lengthy period of trial and adjustment. Even among those firms which had "decided to adopt the Accord," only a third had actually done it.

Some resistance among Opinion Recipients was reported, and even some lawyers favorable to the general concept found the actual Accord too complex and rigid to be broadly useful, with specific deficiencies ated as to the Remedies Opinion, its Qualifications and exclusions, and state law issues commonly addressed in traditional opinions, such as incorporation and due authorization. Most felt private ordering would have to be used routinely to make the Accord fit specific transactions, from both the standpoint of Opinion Givers and Opinion Recipients. The Commentary and the Guidelines were popular, as drafted.

Clark expects som" "xpansion of the Accord's subject matter, specifically on the state law issues, and some attention to the problem areas, but is uncertain as to the pace of acceptance. We see as a possible scenario fairly rapid acceptance and adaptation in perhaps one area, followed by national acceptance in rather short order of the version of the Accord produced by that experience.-John Selig & Chris Barrier made of the Opinion Giver to eva.luate the possible outcome of legal proceedings.

Where that kind of evaluation is to be provided, the Opinion Giver's response should conform to the American Bar Association's Statement of Policy Regarding Lawyers' Responses to

in the expressed opinion, but based upon "prevailing norms and expectations among experienced lawyers in the opining jurisdiction" it is reasonable under the circumstances giving rise to the opinion.

Auditors' Requests for Information (1975).

OTHER QUALIFICAnONS AND LIMITATIONS Sections 18, 19 and 20 of the Accord

addressed in the opinion letter, an opinion

deal with certain other qualifications and limitations in opinions. Section 18 provides that an opinion only deals with those matters explicitly addressed in the opinion. The only way that an opinion on an issue can be i.mplied is if it is not only essentiaJ to the legal conclusions reached

Section 19 states that unless explicitly governed by the Accord does not deal with securities laws; pension and employee benefit laws; anti-trust laws; local law; the creation, attachment, perfection or priority of a lien on real property or a security property; environmental laws; land use laws and other similar laws. These laws generally

are of the type which Opinion Recipients would want to receive special mention

and thus there should not be any expectation of coverage absent specific language covering these laws.

RELIANCE AND USE It has become commonplace in Arkansas and elsewhere in non-Accord situations to specifically state in the opinion who may (and who may not )rely on the opinion. tn Arkansas, Act 661 of 1987 has had a hand in the development of this process. This concept is continued in Section 20 of the Accord. If something different is desired, then it needs to be specifically stated either in the opinion letter or in a separate document. Further, under the Accord and in common nonAccord practice, the opinion letter may not be used or relied upon or furnished to persons other than regulators, in connection with defending an action in which the opinion is involved or in response to a court order.

"PRIVATE ORDERING" Section 21 deals with the issue of modification which is called "private ordering" in the Accord. Essentially, the Accord provides that any provision may be modified, supplemented or deleted, and, if agreed to by both the Opinion Recipient and the Opinion Giver, arbitrary assumptions may be employed and other legal interpretations or other facts and circumstances may be expanded upon that may not be consistent with the Accord. So long as those are spelled out with reasonable particularity, the private ordering will control.

ADOPTION: Section 22 deals with how the Accord may be adopted. To do so requires a declaration in the opinion letter substantially as follows: "This opinion lelter is governed by and shall be interpreted in accordance with the 'ugal OpitJion Accord' of the ABA Section of Business Law (1991).

As a consequence, it is subject to a number of qualifications, exceptions, definitions, limitations on coverage and other limitations, all as more particularly described in the Accord and this opinion letter should be read in conjunction therewith. The law covered by the op;nio1l expressed herein is limited to (specified jurisdictions)."

The Report closes with an illustrative Opinion Letter which demonstrates how the Accord can be adopted as governing the opinion, defines who constitutes the "primary lawyer group", states who may receive and rely on the opinion, and provides for a Remedies Opinion, a No Breach or Default Opinion, and a 0 Violation of Law Opinion. It also confirms the absence of any threatened or pending litigation.

1

WHERETIllNGS STAND: Aside from its merits or demerits, the Accord represents change, which is sometimes unsettling. Many different groups of lawyers are reviewing the Report and determining its utility for their specific practices or concerns.

The National Association of Bond Lawyers (a group to whom opinions are of paramount importance) is studying the Accord in light of NABL's own Model Bond Opinion project, which is actually a similar effort in a more specialized area.

NABL's Committee on Opinions is, understandably, proceeding cautiously.

NABL's spring quarterly newsletter (The Quarterly Newslelter, National Association of Bond Lawyers, Vol. 13, o. 2, May 1, 1992, Pages 14-21), contains a very measured analysis of the Accord, listing reasons why adoption of the Accord might be beneficial in bond transactions, especially as to approving opinions, and citing parallels in the Model Bond Opinion itself.

However, the Committee's "interim report" (The Quarterly Newsletter, ational Association of Bond Lawyers, Vol. 14, o.

1, February 1, 1993, Pages 17-22) finds more reasons not to use the Accord in bond transactions - specifically (I) the general absence of legal representation for bond purchasers, leaving no one to negotiate such opinions, and (ii) the exclusion from Accord opinions (absent private ordering) of tax and local law opinions, both essential elements in bond opinions.

The Tri-Bar Opinion Committee in New York City (active in this area for over a decade) has analyzed use of the Accord in "non-customary financing transactions" [47 Busi"ess Lawyer, 1720-1730 (1992), at page 17211 and has "concluded that the Accord can be adopted for use in specialized financing transactions." 147 Busilless Lawyer, 1720 (1992) at page 17221 That committee's analysis goes on to explore possible problem areas that require special attention before the Accord can be effectively used, including perfection of security interests in project revenues, significance of equitable remedies, and characterizations of lease transactions.

Yet, it also finds the clarification as to required diligence a major step forward, (even if the presumption against implied opinions may require lawyers requesting opinions to think harder about what they are actually getting).

AND WHERE WE'RE HEADED It may be that at least some Accord concepts will become absorbed into efforts such as the Model Bond Opinion

without a specific embrace of the Accord itself.

A subspecies of Accord may develop for "specialized financing transactions," that will become their starting point, rather than going all the way back to the Accord itself. Perhaps alternative glossaries will be necessary.

But, it is well to keep in mind that the authors of the Report and Accord have expected a gradualist and even evolutionary approach rather than anticipating (or even wanting) wholesale acceptance and adoption. (See the accompanying article.) In this regard, Arkansas practitioners certainly have not disappointed them. To date, explicit use of the Accord in Arkansas has been sparse.

However, the Guidelines and the underlying philosophy of the Accord in fact are being used with increasing frequency. The limited use of the Accord here is due in part to a lack of familiarity with it, the apparent absence of practitioners elsewhere using the Accord, and the general reluctance of lawyers to use something that is both untested and not used by other lawyers.

As Arkansas lawyers get a chance to become more familiar with the Accord and as more lawyers use it in other states, we can reasonably expect to see the Accord commonly used in the future, perhaps in more than one permutation, as to specialized transactions, or perhaps in pieces. Certain elements of the Accord, such as its concepts of "actual knowledge" and "primary lawyer group," are already being used with some increased frequency and acceptance in Arkansas.

The crafters of the Accord were motivated by the pressing need for order in the seeking and giving of legal opinions. The success of the Accord in providing that order points to its eventual acceptance, in Arkansas and the nation.

JOHN SELIG and CHRIS BARRiER are partners practici"g in the Little Rock office of Mitchell, Williams, Selig, Gates & Woodyard.

Selig is a former bank holdillg compallY

general counsel and former Arkansas Securities Commissioner, and chaired the panel on third party legal opi"io"s at the 1992

Financial Institutions lAw Seminar.

Barrier was program Chair for the Seminar and served for the second time as Chair of the Financial Institutions Law Section of the Arkansas Bar Association i" tile 1992-1993 bar year. Selig and Barrier preViously co-authored "Revenue Bo"d Financing in Arkansas" for Ti,e Arka"sas Lawyer.

Communities Give Feedback in Pretrial Services

By Judy Camp The reporter's voice on the other end of the phone searched for answers, "I have a questionnaire that was mailed out

to people in this area asking their opinions in a local murder case. Can you tell me who might have mailed it and how lawyers might use this information?'"

As a researcher who provides community surveys and focus groups to attorneys, I twinged at the thought of a mail survey in a high profile case. Though market re earchers have used mail surveys to collect information for decades, its limitations and biases are widely known .â&#x20AC;˘ In the context of a legal case, where attorneys seek information to support a change of venue or to help construct juror profiles, the mail survey ri ks much. Most obviously, as with the example above, it risks the public, rea) jurors in the case, and the opposition finding out about it. It also risks collecting biased information from a limited group of people.

Because of increased media coverage of the justice system and the public's appetite for news, it is hard for responsible citizens not to be aware of major cases in their community. Attorneys in these cases may find it nearly impossible to select an impartial jury, and community surveys can help them gage widespread attitudes and beliefs about their clients. However, among litigation researchers, telephone surveys and personal interviews have proved more valid and practical methods for gajlling this feedback.

Telephone surveys especially have gained popularity in pretrial preparation.

This is mainly due to widespread telephone distribution. (The U.S. Census shows 99% of all American households have telephones.) It is also due to

44

ARKANSAS lAWYER

SUMMER 1993

developments in telephone research techniques which increase validity.

(Documented research exists on research designs, questionnaire construction, question writing, sampling technjques, _ viewing techniques. 2) Telephone surveys also offer attorneys immediate feedback with no "paper trail" in the community.

Thomas Beisecker, a litigation researcher and professor teaching graduate statistical research in the University of Kansas Department of Communication Studies, explains, "The manner used to collect data in litigation research is much different than the manner in which market researchers collect data to sell soap."

Beisecker says attorneys who need information on community attitudes should use consultants who specialize in jury and litigation research rather than using marketing firms, because these consultants understand the constraints of such information and how to use the research under these constraints. He says, "Litigation researchers can design a study for help in developing the case theory, and they understand what issues are important and how the information will be used." Consultants who specialize in providing research to the legal community are more than data collection agencies; they can interpret research results for use throughout jury selection and the trial process.

Beisec.ker's firm, Advocacy Research Associates in Lawrence, Kansas, consults to attorneys nationwide and provides community surveys and change of venue studies using telephone research. He says his firm would never consider a mail survey, because "you have too great a possibility of a low response rate and a non-respondent bias which skews the

Artwork by Kitty Harvill

results. You also have no control over who is filling out the questionnaire."

(Remember The Simpsorrs episode where Bart has fun filling out Homer's mail questionnaire with bizarre answers?)

In addition to the high risks of someone else filling out the questionnaire or the media finding out about the study, direct mail surveys also possess serious limitations due to low response rates.

Mail surveys with response rates over 30% are rare, and often they are only about 5 - 10%.3 That means that over 9 out of 10 people who are surveyed may not respond! Since the reliability of data depends on the number of questionnaires obtained, not the number of surveys mailed, the most important consequence of a low response is the "non-response bias" that is likely to result. If respondents randomly completed or failed to complete and return the questionnaire, there would be no bias, but that is seldom the case.

Usually the person's characteristics, attitudes, opinions, and interest in the topic determine whether or not a questionnaire recipient will complete and return it or discard it. Thus, some groups tend to be overrepresented and others underrepresented in the sample, creating biased results. 4 Robert Hirschorn, a lawyer and jury consultant with Bennett and Associates in Galveston, Texas, recently co-authored a book on jury selection and trial dynamics with the late Cathy Bennett which includes a chapter on survey works.

Hirschorn says that lawyers could run into ethical questions regarding jury tampering when using a mail out survey, but the benefits of community telephone surveys and face-to-face, personal interviews are multi-focal. "First," he says, "they are helpful for gaining a change of venue, but in civil cases, they are also helpful for detecting the 'hot issues' in the community and for giving juror profiles for use during jury selection."

Hirschorn's finn uses both telephone survey techniques and personal interviews to collect community data. He and Bennett have consulted on some of the nation's largest and most publicized cases, including more recently the Texas Cheerleader and William Kennedy Smith trials. In the Howard Hughes Will case, Hirschom's finn provided 200 face-to-face interviews lasting 30-minutes each in order to gain feedback on issues and to construct juror profiles.

These face-to-face interviews are often warranted when more complex and intricate recording of data by a field worker is needed. A two-way

conversation provides for several "contingencies." where the question to be asked depends on a previous response. 6 Telephone surveys are limited by the amount of time people will reasonably spend answering questions; as questionnaires become longer and more complex, people are more hesitant to complete telephone surveys. In face-toface interviews, a large amount of data from each of the respondents can be collected.

Hirschhorn says that the key to a good community analysis is the design of a neutral instrument (questionnaire) which is not tainted or weighted on any factor. In order to do this, he says, attorneys should hire neutral experts such as jury and litigation researchers to design the instruments. This neutrality of experts should also extend to the study's analysis and interpretation of the results. "Vou cannot have the attorney looking at the data." Hirschhorn says, "and saying, 'I knew it would show this,' because it would be a biased interpretation of the results." However, a neutral statistician can come up with trends to suggest for jury selection which are more valid interpretations. When studies are to be used in court to support change of venue motions! both Hin:;chhorn and Beisecker agree that the standards for research need to be strict, because the researcher is often called to defend the survey's methods.

The study's purpose often determines the degree of record keeping and monitoring of the actual interviewing. "For a juror profile analysis," Hirschhorn says," you have a questionnaire that is attorney work product, and it is to be used for internal purposes. However, a change of venue

instrument is held up for your opponent to give feedback on, and much more care and planning needs to go into this type of study."

Beisecker notes that "judges have become more familiar with community surveys, either through thei.r experiences on the bench or through their educational backgrounds," and he says survey research carries more weight now than it did a decade ago. Hirschhorn further notes, "My universal experience is that when surveys are prepared by the lawyer or when lawyers take part in the questionnaire design, there is much less credibility and acceptanre in the court, so there is less likelihood of achieving the survey's goal."

However, Hirschhorn also says that in low budget cases where professional surveys or jury focus groups are cost prohibited, lawyers may feel they have no option. "You either go with your gut feelings not knowing the community's response, or you get volunteers, a neutral survey questionnaire, and 100 to 200 people to respond to it, preferably by telephone." For a juror profile analysis!

Hirschhorn says, "this might be better than no information at all, but the work would have to be quite different for a change of venue:' Representative samples of jurors can also give community feedback on case issues in focus group research. Focus group studies also allow people to complete questionnaires after being more adequately screened. Participants also sign contracts before the research, SO the chance for a breach in confidentiality about the study is lessened. Focus groups are one way attorneys are able to try out

the intricacies of their cases on the community! while telephone studies provide feedback on wider issues.

Methods for Conducting Telephone Research Deciding which cases could benefit from community data is not as difficult as constructing research to provide specific answers. However, by understanding the basic standards and methods for conducting telephone research, attorneys can better evaluate researchers and survey designs. Telephone surveys commonly help in cases with extensive pretrial publicity, limited voir dire, or community bias. The later includes cases involving racial minorities, prominent citizens, political issues, or aspects which will affect jurors or local residents. 7 Some answers which community surveys provide are: 1. The retention of information concerning a high media profile case; 2. The client's name recognition level and image; 3. The opinions of the clienrs guilt or innocence; 4. The public's accuracy of information; S. The spread and belief-value of information which will not be admissible in court; and 6. The community's ability to give the client a fair trial. s The study's design! administration, and interpretation rely on scientific techniques to produce valid results. For this reason, researchers give careful attention to questionnaire design, sampling, the study's personnel! interviewing techniques, and data analysis.

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ARKANSAS LAWYER

SUMMER 1993

Questionnaire design Questionnaire construction requires special knowledge and skill, especially when results will be used in court. 9 Question structure, order, wording, and verbal presentation can affect the type of information in respondents' answers. to Including both open- and closed-ended questions in the instrument allows researchers to demonstrate that the respondents' answers were not led to benefit the survey's sponsor. For example, mentioning the name of the case in a questionnaire to measure the effect of pretrial publicity (Q: "Have you heard of the Jones murder case?" A: "Oh, yeah, I remember reading about that.") would not give as valid an indication of the community's recollection of the case as a more general, open-ended question (Q: 'What murders have you heard of in your community in the last six months? A: "The Jones murder.") For these reasons, attorneys work closely with survey professionals to define the study's purpose before researchers construct questionnaires. I I Researchers design questions to solicit four basic types of information: 12 1. What people say they want: Their attitudes 2. What people think is true: Their beliefs 3. What people do: Their behavior 4. What people are: Their attributes (demographics) By providing specific information in the questionnaire's introductory message, the researcher adheres to ethical principles of research on human participants. 13 Mandatory items include giving the research organization's name, the study's general purpose, and the interview's approximate length. The researcher must also assure the respondents' confidentiality and give them opportunities to refuse participation and ask questions. 14 The questionnaire also screens respondents to ensure that data comes only from those who are eligible for jury service.

Asking personal information, such as income, race, religion, or behavior, requires skill in wording to obtain truthful responses and to prevent respondents' from "dropping-out" of the study.IS Simple questionnaires include about 20 questions and take about ten minutes to complete. Longer questionnaires require highly skilled and experienced interviewers to reduce "drop-out" rates.

The questionnaires are also constructed so that interviewers can easily record responses and so that statisticians can

easily code these responses for analysis.

Pretesting the questionnaire as it is drawn up verifies the validity and clarity of each question as well as the overall design of the instrument.

Pretesting will also suggest the range of possible and probable responses likely for each question, allowing for simplification in coding responses.

Sampling Sampling involves selecting a group from the total population to be surveyed.

For valid survey results, every person in the group must have an equal chance of being selected for contact. In litigation research, the group includes all people in the community eligible for jury service.

Since jurors are not always representative of U.S. Census statistics,I6 past juror lists can determine the respondents' necessary characteristics and sample size for representativeness. If a representative sample is not obtained, the survey findings can become inadmissible. I7 To contact respondents, researchers use several methods to obtain a random selection: 1) computer-assisted, randomdigit dialing, 2) a systematic random selection using the telephone directory (in communities where unlisted numbers are low and telephone service high), and 3) a two-stage survey approach where special telephone lists are constructed prior to the interviews using pertinent juror demographics. IS Random-digit dialing adds time and expense to surveys, but it is necessary where a high percentage of unlisted numbers and new listings are not represented in telephone directories. 19 Study Personnel Survey personnel include a principal investigator, a project director, and interviewers. The principal investigator has knowledge of the study's purpose and works closely with attorneys. This person also constructs the questionnaire, determines the survey's sample, and helps interpret results. A project director

administers the study and oversees the coding and analyzing of data; the director also trains and supervises all interviewers.

To assure maximum accuracy of data, neither project director nor interviewers know the study's sponsor. This way, they cannot influence the study's conclusions, a phenomenon known as "interviewer bias."20 Interviewing In order to collect unbiased data, interviewers read introductions and questions exactly as they appear on questionnaires. The project director trains interviewers to answer potential questions from respondents and provides an answer key. Interviewers record all responses and remarks word-for-word.

This applies to open- and closed-ended questions. Most importantly, interviewers do not interpret questions or inject remarks. Although they do not know the client's identity or study's purpose, interviewers can be called to testify when field procedures are questioned in court. 21 lnterviewing is always conducted in a centralized location to allow the project director control of basic procedures.

Telephoning is completed as efficiently as possible, in two or three days, to prevent the respondents' prior knowledge of the survey.22 In small communities, where rumor spreads quickly, telephoning is usually completed in one day. In large cities, survey design, implementation, and analysis can take several weeks, especially when results will be used in court.

Researchers can increase responses to telephone interviews by scheduling studies in prime months and at prime times. The best months in which to reach the greatest number of respondents are January to April. Undesirable months for survey research are June through August, due to the number of people taking vacations, and December is the worst month for telephone research. 23 The best time periods for calling are Friday from 7

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- 9:30 p.m.; Saturday from 10 a.m. - 12 Noon, 1 5 p.m., and 7 - 9 p.m.; and Sunday from 1:30-5:30 p.m. and 7 - 9 p.m. 24 Analysis When using computer analysis, resea.rchers numerically code each answer for computer interpretation. Open-ended questions require special coding and extra time. The actual analysis should be done by an independent, neutral statistician, especially when the study is to be used in court, because this expert witness must justify any generalizations of survey results. 25 Statistical analyses which are commonly used in litigation research include a frequency distribution, which gives the percentage of responses under each question, and a cross-tabulation, which shows the relationship of one response to another. For example, "How many people consider the client guilty?" versus "How many could give a fair trial?". Profiles of desirable and undesirable jurors require multi-variate, regression, interaction, or discriminant analyses. These techniques show demographically how types of people are likely to feel on certain issues and their probable behavior in the jury room. 26

Conclusion In addition to giving documented support for change of venue motions, community surveys, when professionaUy conducted, provide reliable and objective information about jurors. These surveys aid lawyers by assessing attitudes predictive of jurors' thoughts and fedings.

Surveys can also give valuable input for constructing opening and closing statements and for identifying areas of voir dire. Additionally, the surveys provide information for: 27 1. Determining the most or least desirable juror profiles; 2. Testing trial straLeg'ies; 3. Determining the best jurisdiction in which to file a lawsuit; 4. Supporting motions for: A. Lawyer-conducted voir dire; B. Individual voir dire; C. Extensive voir dire; D. Challenge to the jury panel composition.

More importantly, scientific studies involving telephone research or personal interviews reduce the risks of nonresponse bias ana media exposure associated with mail surveys. The information collected enables the lawyer to form accurate conclusions regarding jurors and trial strategies by reducing "the unknown."

As community surveys come of age in the practice of law, attorneys can better evaluate resea.rchers and research results by familiarizing themselves with the standards and methods for conducting this type of research. The manner in which surveys are conducted is just as important as whether they ilrc used at all.

When surveys are designed and conducted by those who lack training and experience in litigation resea.rch, it's likely that mistakes will be made that diminish the accuracy of the survey's results. In addition, there is a strong chance that the person conducting the research may not even detect these mistakes.

Community surveys are an aid to lawyers, but they do not predict with certainty how the jury will react at the actual trial or how each juror will ultimately vote. Telephone surveys and personal interviews have become tools for providing information to expose community biases or prejudices, but ultimately, they are tools to be welded to the trial lawyer's knowledge, experience, and instinct.

Judy Camp, N.A. is a communication consultant with Camp & Associates, a litigation research and consulting firm in Little Rock lllat provides focus groups and community surveys; sIre is also a faculty member at the University of

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DISPUTE RESOLUTION THROUGH SETTLEMENT PRACTICE LIMITED TO LITIGATED MATTERS 48

ARKANSAS LAWYER

SUMMER 1993

Arkansas at Little Rock. 0Per the last terl years, she has organ.ud and studied uoer ]00 focus groups for attorneys. and sire has conducttd large commu"ity attItude surveys ;n cases such as HIt Savings and Loan crisis i" Colorado and murder-lor-hire througl1 Soldier of Fortune magazi'le i" Florida. SI,e ',as

also participated i" workshops designed to 11e1p attorneys apply litigation researcll i" their practices and has authored llumerous articles on focus groups. jury analysis, and communication in the legal setting.

Laurent, A. (1972). Effects of Questiorr Length on Reporting Behavior in the Survey Intervino. Joumal o{ the Amen'can Statistical Association, 67, 298-305.

11. F<ey,

J. H. (983). Survey Research by

Telephone.

Beverly Hills, CA: Sage Publications.

12. Dillman, op. cit.

13. American Psychological Association (1973). Ethical Principles in the Conduct of Research with Human Participants.

Washington, D.C.: APA.

ENDNOTES 1. Dillman, D. A. (978).

Mail and Telephone Surveys. ew York: John Wiley & Sons.

2. Alreck, P. L. (1985). The Survey Research Handbook. Homewood, IL: Richard Irwin, Inc. 3. Alred, op. cit.

4. Alreck. op. cit.

5. Bennett, C. E. & Hirschhorn, R. B. (993). Bennett's Guide to Jury Selection and Trial Dynamics in Criminal and Civil Cases.

St. Paul, MN. West Publishing Co. (HlOO-6229266).

6. Alreck, op. cit.

7. Starr, V. H. & McCormick, M. (985).

Jury Selection. Boston: Little Brown & Company.

8.Id. 9. Dutka, S. (1980). Bus;,res5 CDlIs Opinion Surveys to Testify for the Defense. Harvard Busi"ess Review, 58, 40-42.

10. Kahn, R. L. (1957). Dynamics of Interviewing. New York: John Wiley & Sons.; and

14. Frey, up. cit.

15. Blair, E. Sudman, 5., Bradburn, N.M., & Stocking, C. (1977). How to Ask Questions about Drinking alld Sex: Response Effects ;'1 Measllri"g Consumer Behavior. }our"al o{ Marketing Research, 14,316-321.; and Locander, W.B. & Burton, J.P. (976). The Effect of Question Form on Gathm'ng Income Data

by Telephone. Journal of Marketing Research,

20. Frey, op. cit.; and Beisecker, T. (1986). Social Science and Litigation: How Not 10 Justify Demoting Christine Craft. (A review of survey procedures in Christine Craft v. Multimedia, Inc.). Cassette Recording No.2 of the American Society of Trial Consultants Meeting. Towson State University, Towson, MD: ASTC. 21. Dutka, op. Clt. 22. F<ey, op. cit.

23. Viderhous, G. (1981). Scheduling Phmle Interviews: A Study of Seasonnl Patterns. Public

Opinion Quarterly, 45. 250-259.

24. Starr, op. cit.

25. Dutka, op. cit.

26. Frey, op. cit.; and Starr, op. cit.

27. Starr, up. cit.

Small Office Practitioner

13,189-192.

16. Camp, D. (985). Melhods 10

Investigate Venire Composition (A Study of How Community Jurors Compare to U.S. Census Statistics.) Cassette Recording No.4 of the American Society of Trial Consultants Meeting. Towson State University, Towson, MD: ASTC. 17. Dutka, op.cit.

18. Starr, up.cit; and

Frey, op. cit.

19. Landon, E.L. & Banks, S.K. (1977).

Relative Efficiency and Bias of Ph~s-Otle Telephone Sampling. !oll,."al of Marketing Researelt, 14, 294-299.; and Rich, c.L. (1977). Is R.Jmdom Digit Dialing Really Necessary? }o"nlal of Marketing

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A Special Tribute to E. Charles Eichenbaum

By Judge John A. Fogleman

E. Cllar'es Eic',enbaltm How we shall miss him - this giant uf

small physical stature. The Arkansas Bar Association, the Arkansa Bar Foundation, the Senior L.lwyer Divi ion of the American Bar Association. The William R. Overton Inn of Court, the American College of Tax Counsel, the American Law In~titutc, the American Bar Foundation, the Ozark Folk Culture Center Commission, the Little Rock Rotary Club, the Director of the Offenheimer Foundation, the Levi Arthritis Foundation, Temple B- ai Israel, the ity of Little Rock, and countless friends, shall miss him - along with his beloved famIly. To each, he gave unstintingly and un elfishly. To all he contributed leadership" guidance and support.

Sometimes his contributions were recognized, sometimes taken for granted.

This self-described "worker in the r~nks" earned the prestigious LawycrCitizen Award of the Arkansas Bar Association/ Arkansas Bar Foundation "in recognition and appreciation of the credit inuring to the legal profession because of your outstanding participation In and excellent performance of civic responsibilities while at the same time demonstrating a high standard of professionalism;" the Golden Gavel Award for outstanding performance as Chair of the Arkan as Bar Association Committee; an honorary doctor of laws degree for "out tanding service to the University [of Arkansas at Little Rock!, the legal 50

ARKANSAS LAWYER

SUMMER 1993

profession and his state;" the Humanitarian Award of the ational Conference of Christians and Jews; and the Fifty Year Award of the American Bar Foundation, bestowed upon "a lawyer who, during more than fifty years of practice, has adhered to the hIghest principles and trauilions of the legal profession." lt is difficult to describe this man adequately. I have tried previously, ""ying: Whoever fir t attached the title "Esquire" to the names of lawyers must have fon'secn E. Charles ("Charlie") Eichenbaum, that is, if he had in mind a definition given by Black's Law Dictionary: "a title of dignity next above gentleman .. ." Gentility has characterized Charlie in both his personal and professional life. He is, and always has been, a gentleman of

the old school - always kindly, courteous, mannerly, and graciously

elegant.

Devotion to the legal profession and observance and promotion of the highest professional and ethical standards have characterized his career and his life. If all lawyers followed his pattern of profeSSionalism, our profession would be held in much higher esteem.

His devotion to his profession and community was only exceeded by his devotion to his lovely, charming and talented wife of 60 years, the former Helen Lockwood, his daughter, his grandchildren and his greatgrandchildren.

He was an a,'id hunter, fisherman and golfer.

Many, like I, will mist him most as a true friend.

AGNES

F.

ASHBY

Agnes F. Ashby, 83, of Arkadelphia died May 25. She was a retired attorney with Lookadoo,

Gooch & Ashby, former SecretaryTreasurer of the Democratic Party in Clark County, Past President of

the Pilot International Club, a member of the American Legion Auxiliary and a senior member of the Arkansas Bar Association.

Ashby was also an active member

of First Methodist Church.

Survivors include three brothers, two sisters and nieces and nephews. Memorials may be made

to First United Methodist Church or the charity of the donor's choice.

ANTHONY GEORGE KASSOS Anthony George Kassos, 75, of EI dorado died on April 4th. He was a sole practitioner, having received his Jaw degree from the

University of Arkansas in 1940. He served in the Arkansas House of Representatives for one term in 1941, and was a member of the Arkansas Bar Association for 53

years.

Survivors include his wife.

Florence W. Kassos; three sons,

Anthony George Kassos, Jr., John E. Kassos, and David Kassos; one daughter, Laura Jeanne Villegas; and five grandchildren.

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YOUNG

LAWYERS'

SECTION

COLUMN

The Young Lawyers路 Section: Past, Present and Future

By Brian Ratcliff

What do Bill Wilson, Bill Prewett, H. T. Moore, J. C. Deacon, Ted Boswell, Judge Jack Lessenberry, and Frank E1can all have in common? They are all distinguished past Chairs of the Young Lawyers' Section. The Young Lawyers' Section has been in existence since 1946 when Paul Sullins served as its first chair. The purpose of the section is to stimulate the interest of young members of the Bar of Arkansas in the objectives of the Arkansas Bar Association. The Section also provides younger members of the Bar with more effective means to participate in activities directed toward

improving the administration of justice and promoting the public welfare. This purpose has been accomplished by such projects as the Senior Citizens' Handbook (now in its sixth edition), founding Arkansas Volunteer Lawyers for the Elderly, the Bridging the Gap Seminar, and the Statute of Limitations Handbook. These projects and programs have become proud recipients of praise from the entire Bar Association. Lucinda McDaniel has completed her year as Chair. Through her hard work and organization, the preceding projects were made possible.

I have been given the opportunity and privilege to lead this section for the upcoming Bar year. I am truly excited about the forthcoming year and look forward to the projects and challenges that are presented to our section. We

have several new projects which are in various stages of completion.

Ruth Ann Wisener of Pine Bluff has chaired the Consumer Law Handbook committee. This is a first edition

handbook by our section. The handbook advises consumers on what types of investigations to make and what type of questions to ask before entering certain transactions and agreements. The handbook has sections addressing, for example, buying a used car, the Fair Debt Collection Act, consumer scams, and the Fair Credit Billing Act. It is being funded by grants from the American Bar Association, IOLTA, and the Arkansas Bar Foundation. In order for us to bring this handbook into the consumer's home, we arranged to appear on the television program '7 on Your Side." You may have seen our handbook and television appearance earlier this summer.

We have also received funding from the American Bar Association and the Arkansas Bar Foundation to print a disaster relief pamphlet. This, too, is a first edition publication. William S. Roach of Pine Bluff is preparing the pamphlet which will address legal services that are offered in times of disaster. The pamphlet is being designed so that it can be handed out at the disaster scene to those in need of services.

Through the hard work of Lisa DeLoache, the section has received a grant from the American Bar Association to publish a desk manual for attorneys in the field of Elder Law. Arkansas ranks among the highest in the nation in the percentage of its population who are 60 years of age or older. As the average age of the citizens of our state rapidly increases, this is a blossoming area of law in which all attorneys should be

prepared to advise clients. The manual will address several areas of substantive law including probate and trusts, alternatives to guardianship, Medicare and Medicaid, nursing home law, and Social Security. We are currently forming a committee to write the sections and publish the completed project in a notebook format.

While working on these three new projects, the section continues to sponsor its annual Law Day project where young lawyers go into high schools throughout the state addressing constitutional issues.

This year we presented the case of What's So Free About Speech, requiring high school students to decide the case of Opi, Taylor v. Mayberry School Disl riel. Opie Taylor, as editor of his high school newspaper, devotes a section of the paper to the status of homosexuals in the military. The students addressed the First Amendment as it relates to freedom of speech. The section also continues to sponsor the Bridging the Gap Seminar, the Spring Trial Practice Seminar, and receptions with both law schools.

The present is quite exciting, and the future promises to be just as exciting.

Steve Quattlebaum is the Chair Elect of the section. Steve has been one of the hardest workers in our section. Through my support, that of Steve Quattlebaum, and all the other hard-working members of our section, we will strive to continue to serve the Bar Association and the community in promoting the administration of justice and improving the public welfare just as those distinguished members metioned earlier did before us.

LAW

UNIVERSITY OF ARKANSAS AT LITTLE ROCK SCHOOL OF LAW OUTSTANDING FACULTY. Ranko Shiraki Oliver received the 1993 Outstanding Teacher Award for the entire University at a special award dinner on April 30th. It was the first lime in the five

year history of the UALR awards that a Law Faculty member had won an allUniversity Award. Professor Tom Sullivan won the Law School Award for Scholarship, while Professor Frances Fender Rosenzweig won the awa.rd for

Service. Professor Dennis Hansen was elected the outstanding faculty member by the First Year Gass. Dean Eisenberg was elected outstanding faculty member by the Second Year Class, while Eisenberg, Professor Scott Stafford and Professor John Pagan tied for the Third Year Class honors.

LAW WEEK EVENTS. During Law Week, Richard S. Arnold, Chief Judge of the United States Court of Appeals for the Eighth Circuit, spoke to the students on recent Eighth Circuit decisions and changes in the Federal Rules of Appellate Procedure... Also during Law Week the Delta Theta Phi Legal Fraternity sponsored a panel on racism. Included on the panel were UALR alumnae Sharon Priest (former Little Rock mayor) and Marva Davis. Other panelists included Meredith Oakley, columnist for the Arkansas Democrat Gazette; Little Rock Attorney Wendell Griffen, and Dean Eisenberg.

RACE JUDICATA. Professor Ken Gould won the annual 3 kilometer race held at the Law School on April 17. Judy Lansky finished first in the women's division. Finishing first in the faculty division was Professor Dent Gitchell, while Howard Eisenberg won decisively in the Dean's Division. Both Gitchell and Eisenberg had the sense to finish behind Arkansas Supreme Court Justice Robe,rt Brown, as did Judges Judith Rogers, Robin Mays, and Ellen Brantley.

However, Judges Rogers, Mays, and Brantley tied for first in the "strolling division" of the race. Funds raised by the race were donated to Central Arkansas Legal

52

~rvices.

ARKANSAS LAWYER

SUMMER 1993

SCHOOL

NEWS

SPORTS LAW TOUR. Professor Glenn Pasvogel and Dean Eisenberg accompanied twelve students on the First Annual Sports Law Tour to Chicago. The event, held between the end of final exams and graduation, included three Chicago Cubs games and massive quantities of the types of food that made Chicago famous. Due to Professor's Pasvogel' s well known abstinence, no liquor was consumed on the trip.

Pasvogel was last seen at a reggae bar on orth Clark Street, not far from Wrigley Field.

FACULTY ACTIVITIES. Coleen Barger was one of two speakers at an all day CLE seminar on revocable living trusts in Arkansas sponsored by the ational Business Institute. She also chairs the Arkansas Bar Association's Probate and Trust Section and is a member of the ew Lawyer Task Force of the Bar Association.... Professor Paula Casey, who represented the Arkansas Bar Association during the legislative session, spoke to bar groups in Sebastian and Jefferson Counties, and to the DebtorCreditor Bar on the action taken by the Arkansas legislature. She also presented a program at the annual meeting of the Bar Association.... Dean Howard Eisenberg's article on "Rethinking Prisoner Civil Rights Cases and the Provision of Counsel" appears in the Spring issue of the Southern nIinois University LAw Journal.

Dean Eisenberg spoke to the Little Rock Downtown Rotary Club on April 29 on "Should We Tear Down the Law School and Build a Bowling Alley? Or Lawyers as Parasites." Dean Eisenberg will discuss ethical issues in the representation of alleged delinquents at the annual meeting of the Bar Association... Professor Dent Gitchell served as a team leader at the NITA Florida Regional Program in Fort Lauderdale and as a team leader at the Emory Intensive Trial Techniques course in Atlanta. Dent also served as vice-chair of the National Conference of Christians and Jews 1993 Humanitarian Award dinner honoring Governor Jim Guy Tucker.... Professor Sarah Howard Jenkins' article "Coordinating the Expedite Funds A vailability Act with Regulation J and U.CC 4A-404: Acceptance, Availability and Cancellation" will appear in the Summer

issue of the Uniform Commercial Code 1..Jlw 100mml. Professor Jenkins will address the Arkansas State Convention of ational Association of Colored Women's Clubs on "Community Service-Continuing the Historical Role of the Black WomanLifting as They Climb," in June....Professor Phil Oliver's article on food animals (opposing the use of animals for food) appeared in the Los Angeles Times and in newspapers in Arizona, Tennessee, Rorida, Virginia, Minnesota, Ohio, Wisconsin, Vermont, and Alabama, as well as the Arkansas Democrat Gazette.

It is not true, however, that the ational Association of Cows, Pigs, and Sheep had awarded Phil their humanitarian of the year award .... Ranko Shiraki Oliver spoke on the Americans with Disability Act to the 1993 Workers' Compensation Law Institute and to the Family Training Project Meeting on Education. She spoke on the same topic at the Arkansas Bar Association's Annual Meeting...Professor Betsy Parsons spoke at the annual training session of the Little Rock District of the U.S. Army Corps of Engineers on 'Women in the Workplace... An Invitation to Dance?" Professor Parsons has been appointed co-chair of the Association of American Law Schools' Section on Women in Legal Education's AntiHarassment Committee...Professor Glenn Pasvogel spoke to the Pulaski County Bar Association on Debtor/Creditor Law Update....Professor Frances Fendler Rosenzweig attended a conference at Columbia University on Privatization in Eastern Europe in February. She also organized a panel discussion on "Unique Challenges Facing Women Lawyers." Participants included Judge Annabelle Clinton Imber, Marva Davis, Barbara Halsey, Patty Lueken, Didi SaIlings, and Laura Hensley Smith.

Her article "Director-Exculpation Gauses Under the Arkansas Business Corporation Act of 1987" will be published in the next issue of the UALR Law Joumal .... Distinguished Professor Robert Robert Wright III, was elected Secretary of the American Bar Association's General Practice Section at the Association's annual meeting in San Francisco.

Professor Wright authored an article, "Advocacy and the General Practitioner," which appeared in the spring issue of the Section's magazine, Tile Compleat Lawyer.

More Federal Tax Publications on Disk

By Barry D. Bayer & Benjamin H. Cohen Six months ago we reviewed the CCH Standard Federal Tax Reporter and the score of other discs that comprise a rather complete federal tax library on CDROM and replace walls of bookshelves.

The software was easy to install and use, and the material complete and reasonably priced.

This week we look at the TaxBase electronic federal tax publications from Tax Analysts. The software is easy to install and use, the material available is complete and less expensive than CCH, but is updated less frequently and doesn't provide as much analysis and annotation asCCH. Multiple Formats TaxBase comes in two different formats - CD-ROM and floppy disk can be loaded onto the hard disk. The Internal Revenue Code (Title 26 of the United States Code), Treasury Regulations (Titles 26 and 27 of the Code of Federal Regulations) and an ever growing group of Taxpayer Information Publications (TIPS) each form a separate set. These same three title also come loaded on a single CD-ROM. Revenue Rulings and Revenue Procedures take up one disc; Private Letter Rulings and Technical Advice Memoranda are divided into one disc from 1980 to 1989 and another from 1990 to the present.

The data bases seem to be the same, whether residing on CD-ROM or hard disk; the CD-ROM version of the Folio search engine, however, has more bells and whistles than the hard disk version.

An IBM PC or compatible, 512 kilobytes of memory, plus a standard CD-ROM drive and Microsoft extensions for the CD-ROM version, or a high density floppy disk drive and a large hard disk for the other, are all that is needed to run the prod uct.

Installing the Floppies To install the floppy based Code, we

placed the first disk into the disk drive, typed LOAD and the Enter key. The automatic installation program requested we enter the source and destination of the files, started loading data from the first disk and told us when to pull the old disk and insert the new one. This can take a long time: the Regulations need 14 disks, with half that each for the Code and Pubs.

Allow a half hour or more depending on computer speed, to load a file. Hard disk requirements are 28 megabytes for the Regulations, 15 for the Publications and almost 10 for the Code.

Installing the CDs Installing the CD was also automatic: an Install program on each CDROM disk transferred about 350 kilobytes of software and configuration files to our hard disk. The data files, of course, remain on the CD-ROM. Each of the five CDs is independent of the others, but the same software runs any of the five, so the installation need be done only once.

Database Scope The Internal Revenue Code material marked February, 1993, purports to include all changes in the Code through January 30,1993. The Code includes official background notes, and some Tax Analysts material. Some recent additions are shown highlighted, or in yellow on our color monitor. The header to Section 501, for example, notes material including the 1992 Nat'l Energy Policy Act. The newly included material is included as subsection 21 of Section SOl(c), and shown in yellow at that point of the Code.

We weren't familiar with 27 CFR, which turns out to be the Treasury's Alcohol, Tobacco and Firearms regulations. In addition, of course, are the more familiar (to us) regulations of 26 CFR, again claimed to be current through January 30.

The Publications section has more than 125 official IRS publications; we had

seen some of them before, but were unfamiliar with most. The publisher claims that many of them are not widely available, even from the IRS and hopes to include even more titles with each update. Even some IRS posters are included as "publications." Many, if not most, of the large format tables in these publications are not included, but are available in paper format from Tax Analysts.

The combined Revenue Ruling and Revenue Procedure database claims the full text of all such documents issued since 19S4. The Letter Rulings and Technical Advice Memorandums are divided into a 1980-1989 set, and a 1990 to present database; these documents have Tax Analysts summaries and headnotes.

Each database except the 1980-1989 Letter Rulings and TAMS disk are updated quarterly. The publisher also promises a Code update "within 20 working days after the passage of any major tax bill."

Searching and Stuff Each of the databases, even the Code, Regulations and TIPS material contained on a single CD-ROM, are separate. There are no hyperlinks between one database and another; in fact, even references between Code sections within the Code are not linked. There are folio "groups" within databases, making it possible to search just headings, or titles, rather than full text, and jump from a title directly to the text. We feel that the publisher could make much better use of linking available with the Folio software. We were told that improvements are planned for future releases, beginning with the May, 1993 material.

The CD-ROM product lets the user log research by client or matter, and save search queries and attach user notes to a given "folio." These amenities are not available on the hard disk-based

prod ucts. Of course, portions of the text may be printed or saved to disk. When we used a database from within Microsoft Windows 3.1, we were able to copy material to the Windows clipboard, and paste it directly into our word processor.

Being familiar with Folio, we had no trouble with search technique, but on-line and printed manuals should help even Folio beginners to get started with little difficulty. Toll free technical support, 8:30 AM to 6:30 PM, Eastern time, was easy to reach, but one support person we spoke with suggested only that she could take our name and phone number, read the manual herself, and then call back and try to answer our questions.

Value The advertising from Tax Analysts makes the various databases seem inexpensive, and they are. The hard disk based material costs $99 for a single set of the Code, Regulations or Publications, with an additional $100 per database for three quarterly updates. Each of the CDROM discs are $199 for a single copy and an additional $100 for three quarterly updates. Obviously, if you have a CDROM drive, $300 for a year's subscription to the same materials is a good deal.

Al though not mentioned in the sales literature, we are told that renewal annual subscriptions will also be $100 per year.

Printed versions of the Code and Regulations updated semi-annually, are available from CCH for about $175.00, but we consider the electronic publications much easier to use than the printed material.

Add annual subscriptions for the Revenue Rulings and Procedures disk and current Letter Rulings at $300 each, and you're left with a user cost of $900 for the first year, and $300 per year thereafter.

This compares, although not directly, to the CCH Standard Federal Tax Reporter wltich includes the Income Tax Code and Regulations, CCH analysis, currenl tax cases, and at least references to Revenue Rulings and Procedures and Letter Rulings, updated with a new disc each month and a newsletter each week. CCH charges $1290 per year on a two year subscription for all of the above, and less than $400 per year if you also purchase the multi-volume loose leaf service. The full text of the Revenue Rulings and Procedures and TAMS on CD-ROM are several times more expensive than the Tax Analysts versions.

Further complicating comparisons, both Tax Analysts and CCH have substantial discounts for multiple purchases, and charge premiums for multiple users on a network. (We're sure 54

ARKANSAS LAWYER

SUMMER 1993

each company's sales representatives will explain pricing in detail.) Also to be considered, although we like the Folio search software that Tax Analysts uses, we prefer what CCH has done with its Access software.

Although tax professionals may need the editorial material and more frequent updates provided by CCH, the Tax Analysts CD-ROMs represents excellent value to any professional at all interested in federal taxes.

Summary The Tax Analysts electronic publications of the IRS Code, Regulations, Revenue Procedures and Rulings, and Private Letter Rulings and Technical Advice Memorandums are easy to use and provide excellent value.

Details 1993 Internal Revenue Code on Diskette, 1993 IRS Regulations on Diskette, 1993 IRS Publications on Diskette. Price: each set: $99.00 for single order; $199.00 for annual subscription including three quarterly updates.

Subsequent annual renewals, $100, each.

Requires IBM PC or compatible, high density 3-1/2 or 5-1/4 floppy disk drive, 512 kilobytes of memory, from 10 to 30 megabytes of free hard disk space.

1993 Internal Revenue Code, IRS Regulations and IRS Publications on CDROM, IRS Revenue Rulings and Procedures on CD-ROM, (1954 to Present), IRS Letter Rulings and Technical Advice Memorandums 1990 to Present.

Price: each set, $199.00 individual disk,

$299.00 for annual subscription induding three quarterly updates. Subsequent annual renewals, $100, each. IRS Letter Rulings and Technical Advice Memorandums 1980 to 1989. Price: $199.00. Requires IBM PC or compatible, 512 kIlobytes of memory, CD-ROM drive with Microsoft extensions. Tax Analysts, 6830 Fairfax Drive, Arlington VA 222139901. Phone: (800) 955-2444 or (703) 5334600. Fax: (703) 5334444. Commerce Clearing House, Inc. 4025 West Peterson Avenue, Chicago, IL 60646. Phone: (BOO) 248-3248 or (312) 583-8500.

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There are two ba ic procedural designs .~ ~ .~1.i'f for the recording of deposition testimony 'c~ by nonstenographic means. First, Rule ~,' ~~t,~_~ 3O(b)(4) of the Federal and Arkansas Rules ~~~ of Civil Procedure permits the recording -'il~ of deposition testimony by other than ,:lai..~~ stenographic means upon written :~ ..~~. stipulation of the parties or court order. ~'~:-.jffi. Second, orne jurisdictions only require .. _~ notice of the intent to record by videotape. :;.l;~~ Video-taped depositions are not ~l!~~ prohibited in any jurisdiction. Thus, the ~~::.. federal and Arkansas procedures are the ,~.~~ most restrictive. '~"iJ\ . THE FEDERAL AND ARKANSAS ~'.lt1 PROCEDURES . .~ !.\~_ The federal procedure provides -::~,~,~~ flexibility by allowing the parties to agree ·l:"~·",~;:,,: to the recording of depositions by other ~J)~~~ than stenographic means, but imposes . . .~.~....~~ certain requirements on the parties. Rule "~.%., 3O(b)(4) reads as follows: ~,~.

"The parties may stipulate in writing 'Mt;~-~: or the court may upon motion order that =~,/ the testimony at a deposition be recorded ,~--"~t ~ by other than stenographic means. The ,.."':~ t-A,' stipulation or order shall designate the ~<$" \t~ person before whom the deposition shall ~·~:1v..':a be taken, the manner of recording, .! ...... preserving and filing the deposition, and '~;-4~ "Tv, may include other provisions to assure ~~r- that the recorded testimony will be

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accurate and trustworthy. A party may arrange to have a stenographic transcription made at the parties' own expense. Any objections under subdivision (c), any changes made by the witness, the witness' signature identifying the deposition as the witness' own or the statement of the officer that is required if the wi mess does not sign, as provided in sub-division (e), and the certification of the officer required by sub-division (f) shall be set forth in a writing to accompany a deposition recorded by nonstenographic means.

Pursuant to the federal and Arkansas procedures, deposition may only be taken by videotape if the parties so stipulate in writing or if the court orders the deposition to be recorded by other than stenographic means. Whether the video-taped deposition is taken pursuant to a stipulation or an order, the following information should be included in the written stipulation or the order authorizing the recording of the deposition by videotape: (l) the person before whom the deposition shall be taken; (2) the manner of the recording (videotape); (3) the procedure for preserving and filing the deposition; and (4) other provisions to assure that the recorded testimony will be accurate and trustworthy.

Parties often desire to have a stenographic transcription in addition to the videotape recording. Thepresenceofa stenographer assures that the record will be accurate and trustworthy.

Additionally, the recording by a stenographer facilitates the presentation of objections to the court. (See the discussion of objections below).

Finally, the federal and Arkansas procedures require that the recorded deposition be accompanied by a writing which sets forth: (a) any objections lodged as to the administration of the deposition; (b) any changes made by the witness; (e) the witness's signature identifying the deposition as the witness's own, or a statement of the recording officer, if the witness doesn't sign; and (d) a certification by the officer that the witness was duly sworn and that the deposition is a true record of the testimony given by the witness.

UNIFORM AUDIO·VlSUAl DEPOSITIO ACT The federal and Arkansas procedures are workable procedural devices, but fail to recognize. the prevalent acceptan~e by the bar of VIdeo technology as a reltable, accurate and useful tool for recording the

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The Uniform Audio-Visual Act, 112 U.l.A. r, ~~ 13 (Supp. 1992)J ("the Uniform Act"), '~"'" •.~~1 provides much more detail. It reads as {t.::t.~~ follows: '. "'-'>:,f~~ "§1. Authorization of Audio-Visual :~~-?~ Deposition ~'~; , "(a) Any deposition may be :~': recorded by audio-visual means without a ~t\~ stenographic record, Any party may make '. ~~ . at his own expense a simultaneous.'" ..... stenographic or audio record of the ::. :t. deposition. Upon his request and at his ' , .. own expense, any party is entitled to an audio or audio-visual copy of the audiovisual recording. "(b) The audio-visual recording is an official record of the deposition, A transcript prepared by an official court .....".,,,'" reporter is also an official record of the deposition. l(}j~~~ "(e) On motion the court, for i:.~~'ilj good cause, may order the party taking, or who took, a deposition by audio-visual recording to furnish, at his expense, a transcript of the deposition. "§ 2. Use. An audio-visual deposition ~~ll4:"'<l\.~ may be used for any purpo e and under any circumslances in which a stenographic deposition may be used. "§ 3. Notice. The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition must state that the deposition will be recorded by audio-visual means.

1'tJ~~~ "§4. Procedure.

The following ~ procedure must be observed in recording '. an audio-visual d e p o s i t i o n : f ; l · · ~~'. "(1) (Opening of Deposition.) The I" 's:r~ deposition must begin with an oral or ~~ .~~ written statement on camera which ~)?:~ includes: •••~,-,,; "(i) The operator's name . ..,,~ and business address; (il) The name and ~'\~ business address of the operator's .: . employer; (iii) The date, time, and place of the deposition; (iv) The caption of the ' ...i',,~~~ case; (v) The name of the witness; (vi) The iill:; party on whose behalf the deposition is r~~~ being taken; and (vii) Any stipulations by . )~~i! the parties. .~ ...~ "(2) (Counsel.) Counsel shall ~ ~ identify themselves on camera. ;f' ~ "(3) (Oath.) The oath must be • ' ••. ' administered to the witness on camera. '~'-" :. "(4)(Multiple Units.) If the length 1.·....·oN':*' of a deposition requires the use of more 12 than one recording unit, the end of each ",:t-~ unit and the beginning of each succeeding ~~-a5'~ unit rnus~, be annOl~.nced on cam~r~.

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L•.:-;~ "(7) (Objections.) An objection ~~~~I must be made as in the case of [~lc t~ stenographic depositions. ~~i{'~ "(8) (Editing.) If the court issues ~,~ an editing order, the original audio-visual ' ''"':.t~ recording must not be altered.

'1, ".}1~J': "(9) (Filing.) Unless otherwise .. ~~.... stipulated by the parties. the original ~;,..~:_ audio-visual recording of a deposition, kr-.. ~, any copy edited pursuant to an order of :~" the court. and exhibits must be filed ~.-:it:.: forthwith with the clerk of the court. ~.:.{~ "§5. Costs. The reasonable expense of ~,~~) recording, editing, and using an audio:r~~" visual deposition may be taxed as costs. ol" ~-t4~.. "§ 6. Standards. "The [Supreme Court, Court Administrator, Clerk] may ~1~, promulgate rules establishing standards "'~ for equipment and guidelines for taking "'l·~~ and using audio-visual depositions. I . t'(:"~_ Incompatible audio-visual recordings .~~;..~ must be conformed to the standards at the expense. of the proponent. Both recordings i"l:':C; .It are ongmals. ...~:- :"-....... "§ 7. Uniformity of Application and :.:;;;: . Construction. This (Act] (Rule] shall be ~: ....,;; applied and construed to effectuate its ~. ~~" general purpose to make uniform the law t.~~.. f-;(:"" with respect to the subject of the [Act] :·~i.~~, [Rule] among states enacting it.

1ii[\~ "§8. Short Title. This (Act) (Rule] may )•• ,~\. ..:r_. be cited as the /lUniform Audio-Visual 4;;t;"'"-,.,;,;'. Deposition (Act) (Rule]". ~ ~;.~ "§9. Time of Taking Effect. This (Act] .... ':-,. ; '::-..:'" (Rule] shall take effect . . . "( ote: , ..~~~ Bracketed material is deemed optional by ~ "'.'4:;;. the ational Conference of ~.,!:..... rr'i Commissioners on Uniform State Laws. "~J"" ~ The section titles are also optional.) r}'p';';p~,~.~ It is not necessary to dissect the ~r~".i; Uniform Act in this article as it is self •nJ-::"I. explanatory, but its comprehensive design l:1t ~.. ~, is not superfluous. The issues addressed .~.:.:~ in the Uniform Act are issues which '....{,."ti· regularly give rise to controversy during ;:.!f/i?z~ the course of a videotaped deposition. The ~".);,4 wise practitioner will take note of the ;(;t~. ~ provisions of the Act and incorporate ~@\l~'~' them into orders or stipulations utilized in ~_~"'_:',; federal court or jurisdictions not following t. the Uniform Act. IIl- :-;, STIPULATION ,~ . if you intend to record a deposition by ,;'f-'. videotape. the following issues should be ,~ .. ;;:,;'" included in any stipulation or order I~~': goveming the procedure for the recording

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(J) The scope of the stipulation: Whether the stipulation is intended to govern only one deposition, a series of depositions or all depositions in the case should be stated at the beginning of the stipulation.

If the stipulation is to cover only one deposition, that deposition should he identified by time and place.

(2) Notice of intent to videotape: If the scope of the stipulation includes a series of depositions or all depositions, the stipulation should ensure that the party defending the deposition receives notice of the intent to videotape the deposition, sufficiently in advance of the deposition to provide for proper preparation. Five (S) business days is generally considered sufficient advance notice.

(3) Deposition officer: If possible. the officer who shall be responsible for recording the deposition should be identified in the stipulation. If the officer cannot be identified at that time, the notice of intent to videotape the deposition should include the name of the officer or the company by whom the officer is employed.

(4) The video equipment and its operation and coutrol: The stipulation should clarify that the deposition officer has exclusive control over the video equipment and that he/she will operate the equipment in a manner assuring the accurate reproduction of the appearance of the deponent. This provision of the stipulation should also address the necessity of timely objections to the administration of the deposition.

(5) Special operation technique: The camera angle, unless left to the operator's control, should be stipulated as a neutral angle. neither a low to high angle nor a high to low angle. The use of "telephoto" or "zoom" shots and "pan" shots should be subject to redundant agreement of the parties. Sometimes, zoom shots of exhibits are necessary for the proper recording of the testimony. Sometimes, pan shots of all participants in the deposition are helpful in visualizing the participants. However, these techniques easily can be abused. The use of day/time index on the tape should also be required. The use of the day/time index assures a continuous record of the deposition and facilitates the reference to objections or specific portions of the deposition.

(6) Commencement of tire deposition: At the beginning of the deposition, the videographer should state his/her name and business address; the date, time and place of the deposition; the name of the deponent; the identity of the party on whose behalf the deposition is being

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between the stenographic record and videographic record. ~:...... and recorded exclusively on the (11) Expenses and tlte recoverabilify of ..."',,/'.... stenograp Ilie transcript. Th I e ."":-:-"'1',. us, t lC expellses as costs: eneral I y, the party ,,,,.~;, . videotape isn't encumbered with desiring to record the deposition by ::~ • '. objections which require editing prior to videotape should bear the expense of the ~~t"J~ triaL II the objections are sustained prior videotaping. Additionally, whether the :\ ~"~t: to trial. the videotape can be edited to expense of the videotape is considered a ; ~;.},;~_ exclude the objectionable testimony. This recoverable cost of the action should be '''e'~~ procedure is often cumbersome if addressed in the stipulation. If the party ,~.(.:;..-. "'.' objections are numerous. requesting videotaping is not the party (9) MOllitors: The stipulation should responsible for the stenographic expense, ~~ add.ress whet.her monitors .s~all be agreement rega~ding th~ division of the .;...t. ':'f<- avatlable dUrIng the deposltton for expense of Videotaping should be ~f1ti!s~ viewing by any party. As discussed at included.

- ~"'t- length in the first segment of this series of (12) Review of the videotape: The ~:~~: articles, it is important to have a monitor stipulation should assure that the E~ xl: at the deposition. deponent will have an opportunity to (10) Stenographic reportillg: The review the videotape and any 1t~~' stipulation should state whether the stenographic transcript of the deposition ,; ~~ deposition is to be simultaneously and provide written notice of any .":i:~; recorded by a stenographer and which inaccuracies. The opposing party should ~~1:':-: party shall bear the expense of the then be allowed ten days to dispute any :-J:<l~'~~r stenographer. The parties should address proposed changes or corrections. The ~"~:*" in the stipulation the resolution of any parties should also stipulate whether the ,~- ;~: discrepancy between the video record and party requesting that the deposition be ~~i the stenographic transcript. In the event recorded by videotape is obligated to ~~.} the stenographer utilizes .an aU~io provi~e a copy of the videotape to the ~... ~:' recorder as a secondary recordmg deVice, opposmg party. ~,,''f. the audiotape should be preserved until (13) Certificatioll of videotape: The ~; .. \~ the conclusion of the action as it may be parties should agree that the deponent ~,.?.'f"~ ': needed to resolve any discrepancies may review the videotape and c:ertify it as

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to cause an illusion of vibration on the film because of the nature of the video ~}' recording process and plaids may ~ "camouflage" the witness with the ..v;.r.;-~'''' background. White clothing creates a 7te··~7t.; glaring reflection. Light blue, grey or . ~~,.~ yellow clothing is preferable. Solid colors ~ 0;' absorb light more evenly than stripes or .~ ~~~ plaids. For women, makeup is dramatized :l;t . ~ by the videotape, but the application of ;t~I' . facial powder during breaks to absorb 'l.f;)..., . moisture on the skin avoids the glistening :i~~" . effect. Powder is sometimes applied to ~T' \ male witnesses to avoid the glistening :-!'':~':' effect, but this is dangerous as the t~ examiner, in an effort to detract from the ~~~ credibility of the male witness, may point out that makeup is being applied during breaks. ~ ;/Ji..

Witnesses tend to be more nervous ,~.~ during videotaped depositions than ..~~.~ during transcribed depositions. Thus, it is :~~) ..., ': important that you place your witness ~~~: before a.video camera and. lights durin.g ~~,~ preparation. Whether the VIdeo camera 15 ft·~~ operating or not, the witness will become . ~~... more accustomed to its presence. ~~ : DEMONSTRATIVE AND TECHNICAL ~l--~~-": AJDS ~ ~49j, Videotaped depositions which last :::~Gf.1 longer than thirty minutes will usually '!':.~? J become boring to the viewer. Because (.;~ f t television has conditioned us to focus our ~..~~.,,~ attention in segments, videotaped :<~·f depositions should be distinctly segmented. Television shows are ~J'i:-~~- interrupted by commercials I\'~if..; approximately every 15 minutes. ews shows are not only interrupted by ~~ .... " commercials, but are interspersed with J. ~,~ film clips of the topic or story being ~~.Ji~"j discussed. To the extent that witnesses ~.;:~""~ being videotaped can use and refer to '.1:~~~ demonstrative or technical aids which ~~:..~ break the visual monotony, interest in the ~';~~. videotape will be enhanced. Thus, for • r;.f\.. -: long depositions one should use enlarged l~""'" documents, photographs, models, video ,~ ..; ..)~ segments, computer graphics, x-ray films, •~~ and action by the witness to enhance the '-"'~~'.:~ persuasiveness of the production and ':,""~~ foster interest in the message being ~(~'~~~ presented. Discussed above is the use of t;'~.:~ multiple video cameras when using such l~;~~': demonstrative and technical aids to create a split screen or window effect. When <~;;. demonstrative aids are used, the use of multiple cameras is preferable. .!'-:.;:;J.' When one is relying upon a selected ". ': number of documents, the documents ;c"~': should be enlarged, reproduced into --' ::;." photographic slides or otherwise " .~{.-.. graphically depicted for use at the ~ .. , " ;;:;t~~~~ videotaped deposition. It is important that ... ~:... the witness be prepared to use the ";0,

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demonstrative aids in a manner consistent with videotaping. The witness must stand to the side of the enlargement, not between the camera and the enlargement, and use a pointer. The enlargement must be stationary, preferably on an easel.

Movement of the enlargement is annoying and defeats the purpose of its use.

Secondary aids may be useful to the witness in explaining the importance of a particular scene portrayed on a photograph or a particular portion of a document. Adhesive arrows can focus the attention of the viewer on the particular part of the photograph or document being discussed. U there is particular language in a document upon which a witness's testimony is focused, it may be helpful to film the witness highlighting the important language on the enlargement.

In this instance, it is often necessary to have the witness step to the side and read the language highlighted. These techniques may seem.elementary,.but.a smooth and persuaSIve production IS dependent upon an awareness of the camera. If multiple enlargements are going to be used in a videotaped deposition, it is important that the witness be prepared to handle the enlargements i.n an organized manner and not shuffle through them portraying confusion about the order of the enlargements. Obviously, rehearsal by the witness will help or avoid confusion to ensure a professional production.

When a product is in issue, it is often helpful to have a model of that particular product. When a particular injury is in issue, it's often helpful to have a graphic aid to portray the extent of the injury.

Such graphic aids include skeletons, diagrams of the nervous, muscular or skeletal system, and models of the particular bodily part involved. Again, the witness should be prepared to utilize this aid in a manner which results in a visually persuasive production. The model should be stationery whenever possible.

However, it should be movable so that it can be repositioned to enhance a particular perspective, but once repositioned, it should again remain stationary during filming.

X-ray films are often useful in videotaped depositions of doctors. During a recent videotaped deposition of a doctor, a viewing box was provided at the deposition for the doctor to show x-rays.

Her explanation of the films was particularly persuasive because she used a laser pointer which produced a red dot wherever it was pointed. This simple device dramatically enhanced the doctor's illustration of a compressed and bulging '

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usually obtained from lriends or family, but sometimes third parties have recorded events from which the lawsuit arises.

THE USE OF VIDEOTAPES IN WRO GFUL DEATH ACTIONS In wrongful death actions, videotapes of the family before the wrongful death of a family member are significant. In one such case, a 14-year-old boy performing at a violin recital two days before his death was videotaped by his father. A family friend surreptitiously videotaped the father videotaping the son. The friend's videotape clearly portrayed the love and pride of the father. Obviously, this tape proved valuable during a settlement conference.

As macabre as it may seem, videotaping funerals has become an optional service of some funeral homes. U the funeral service shows extraordinary grieving of the family or the large numbers of persons present to pay their respects to the decedent, the video may be beneficial to the plaintiffs wrongful death case.

Finally, even if videotapes of family members are unavailable, the video recording of a series of still photographs often has more impact than the still photographs indjvidually. This technique is very useful not only in settlement conferences, but also at various stages of trial.

CONCLUSION The use of videotaped recordings in trial is limitless. Explore the creative side of your brain and foster interest in your trial by the use of videotaped recordings.

Jurors often complain that trials are boring and dull. Avoid boredom by using videotapes at your next trial and simultaneously enhance the persuasiveness of your case.

Steven W. Quattlebaum is a partner witll tthe Williams & Andersotl UlW Finn in Little Rock.

BIBUOGRAPHY

SELECTED ARTICLES Federal judicial Center, Pub. No. 76-3, Guidelmes for Pre*Recording TestimOlIY all Videotape Prior to Trial (2d ed. 1976) (hereinafter- "Ftdtral GUitklines"): Cenler (or State Courts. Pub. o. R0034, Audio/Video Ttchnology and the Courts: Guides for Court ManJIgers (1977) (hereinafter "State Guidelines").

Murray, Using Vidto in LitiK"tion (PU 1983).

Charles D. Monteleone, Videotaptd Depositions: &sic Pointers for Q Skilltd Presml/ltion, 68 A.B.A. J. 863 (1982).

The Federal judicial Center, Washington, D.C., Guidelines for Pre*Recording Testimony on Videotape Prior to Too, f)C Pub. 0.76-3 2d., December 1976. james P. Barber &: Philip R. Bates, Videotape in CriminJII Proardings, 25 Hastings L.j. 1017 (1974).

Gordon Bennant, et aI., Juror Responses 10

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