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Guest Columnist

VOLUME 31, NUMBER 1 PUBLISHER

The Continuing Case for Merit Selection ofJudges in Arkansas

Arkansas Bar Association ARKANSAS BAR ASSOCIATION -100 II. \larkham Littl. Rock, Arkansas 72201 EDITOR

Stacey DeWill ASSOCIATE EDITOR, LAYOUT & DESIG

Sara Landis EDITORIAL BOARD Thomas M. Carpenter Susan Goldner Sarah James

Al Schay OFFICERS President Carolyn Witherspoon President路Elect Harry Truman Moore President-Elect Designee Jack A. McNulty Immediate Past President Robert L. Jones III Secretary -Treasurer Frank B. Sewall Executive Council Chair Sandra Cherry Young Lawyers' Section Chair Stuart Miller Executive Director William A. Martin Assistant Executive Director Judith Gray

EXECUTIVE COUNCIL Teresa M. Wineland A. Glenn Vasser R. Scott Morgan Don Hollingsworth Charles L. Carpenter, Jr. Stanley D. Rauls Charles L. Ham'ell Robert R. Estes Louis B. Jones, Jr.

By Lawrence H. Averill. Jr., .Professor of Law, University of Arkansas at Little Rock The awhor's opinion in Ihis article is his/her own and in flO way reflecls Ihe posilion of the ArkLmsas Bar Associaliofl.

which do not address the real problems

Judicial selection refonn is still a topical issue in Arkansas. Several matters concerning judicial elections were acted on during the last legislative session. I More comprehensive reforms continue

should not divert the real reform effort needed. I fear merely changing to nonpartisan elections is such a diversion. I have studied this problem of judicial

10

be discussed and advocated. In refer-

ence to the comprehensive refonn proposals, I want to express my skepticism about one of the prominent suggestions for reform, i.e., nonpartisan election for all judges. While I will concede that reform sometimes needs to be evolutionary not revolutionary, and that changing our judicial selection system from partisan elections to nonpartisan elections

selection from all angles. During my

seventeen years in Wyoming, I was able to see how judicial selection by nonpartisan election compared to a merit selection system. 4 It is my firm conclusion merit selection is by far the better sys-

tem. It is worth emphasizing that when Wyoming went to merit selection, it was abandoning nonpartisan elections as its judicial selection process. There are sincere, honest and intelli-

might be viewed as that type of incremental progress, I firmly believe that

gent persons who believe that switching

this change is an example of treating

respectfully disagree. As I stated recently:

some of the incidental symptoms and

ignoring the real causes of the problem. In my opinion this "remedy" neither addresses the problem nor improves the result. I have written about this previously2 and thus am reminded of the story of the

new preacher at the church. During the first Sunday sennon the preacher

harangued against sinful and evil conduct he had observed in parishioners'

conduct the previous week. The parishioners were pleased. The second week the preacher gave the exact same ser-

Donald P. Raney

mon. The parishioners were surprised

Mike Everett Michael E. Irwin David K. Harp Mark Cambiano Lynn Williams

but patient, it was a good sennon. When the preacher gave the same sermon the next two weeks, several of the elders decided to discuss the matter with the

The Arkansas Lawyer (USPS.546-Q.W) is published quarterly by the Arkansas Bar Association. Second class postage paid at Uttle Rock, Arkansas. POSTMASTER: send address changes 10 The Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. Subscription price to non路mcmbers of the Arkansas Bar Association $t5.oo per year and to members 510.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to n,e Arkansas Lawyer are welcome and should be sent in two copies to EDiTOR, n,e Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to n,e Arkansas Lawyer at the above address. Copyright 1996, Arkansas Bar Association. All rights reserved.

best diversions and at worst are dishonest. It is clear to me that modifications

preacher. They expressed the thought that sermons ordinarily should be differ-

ent each week. The preacher retorted, "When I see that the conduct of the

members of this congregation is reflecting the admonitions of my sermons, I'll change my sermon." I urge all to read

my previous sermon. 3 The point here is, until suggested

reform addresses the "sins and evils" of our current system, these reforms are at

to nonpartisan elections is meritorious. I

From an analytical standpoint of desirable features for a judicial selection sys-

tem, a nonpartisan election system may be the worst of all selection methods.

First, it does nothing to remove the corruptive aspects of a contested election syslem. Judges must still obtain cam-

paign funds, must still spend inordinate time campaigning, and campaigns can still create judicial ethics problems over campaign issues. In addition, it has been said that nonpartisan elections are often Continued on Page 39


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Features PAGE THE CONTINUING CASE FOR MERIT SELECTION OF JUDGES IN ARKA 'SAS by Lawrence H. Averill, Jr., Guest Columnist Another side to last issue's article by Justice Robert L. Brown On the Cover: The artwork on the cover was created by David D. Wilson, a partner in the Littte Rock law firm of Friday, Eldredge & Clark. Wilson is a 1990 graduate of the University of Arkansas at Little Rock School of Law.

How TO WRITE A LOSING BRIEF

1

10

by Coleen M. Barger A unique offering of rules to make the judges' decision in your next appeal easier... write the losing brief.

NOTICE OF ApPEAL: TIMING IS EVERYTHING by John J. Walkins Why it is imperative to File a timely appeal.

13

How ONE OUGHT TO WRITE

14

by Judge William R. Wilson, Jr. An excerpt from the 1993 publication The Scribes Journal oj Legal Writing

THE CLIENT SECURITY FUND FULFILLING OUR OBLIGATION TO THE PUBLIC by Justice Andree Roaf A review of the efforts Arkansas lawyers have made to protect clients from losses caused by the dishonest conduct of members of the State Bar of Arkansas.

20

THE GAMING AMENDMENT Pro by Janne Giroir Siegel and Can by Larry L. Page

24

A Pro/Con piece on the gaming amcndmcnl

In Every Issue by Carolyn Witherspoon EXECUTIVE DIRECTOR'S REpORT, by William A. Martin LAW OFFICE TECH OLOGfES, by David G. Nixon CLE DIRECTOR'S REPORT, by Charlotte Morrison Greer ApPELLATE PROCEDURE, by D. P. Marshall, Jr. LAW, LITERATURE AND LAUGHTER, by Vic Fleming PRESIDENT'S REPORT,

4 6 7 8 41

DISCIPLINARY ACTIONS/ADVISORY OPINIONS

42 43

IN MEMORIAM

48


President's Report

Equal Justice Under the Law by Carolyn Witherspoon Our country's democracy was founded on the simple concept of equal justice under the law. We Ihe people of Ihe United States, in Order w ... establish justice.... This democracy and our justice system are a wonderful

partnership but are mutually dependent upon each other. Judge Learned Hand said: "If we are to keep our democracy, there must be one commandment: Thou shall not ration justice," In my opinion, we are faced with that very situation rationing justice to the poor in Arkansas. That situation is

operates at the direction of a local governing board. These community-

simply unacceptable. We must keep our promise that liberty and justice for all is Iruty for all. When Fay asked for money to buy milk for her baby,

their programs, determining, for example, to focus on representing the

her husband started kicking her. Their clzildren watched as

he cOflfillued to beat he/: She was finally able 10 mil oul of Ihe house and into the woods. She walked 10 a friend's hOllse and called Ihe police. The neXI day she lVelll 10 Legal Services for help. She had nOlhing. Wilh Ihe help of her legal services lawyer, she gOl a protective orde,; custody of her childrell, safe !lousing, and she began divorce proceedings. Mrs. Smith was Ol'er 70 years of age and disabled when she gave a deed to her home and a power of attorney to a man who promised to take care of her personal needs for Ihe resl of her life. Even thol/gh she was so feeble Ihal she was bedridden and unable to feed herself, the man neglected her, sometimes leaving her little more thall a bucket of water for 1Iourishmellt. A Legal Services lawyer filed a court action on her behalf to set aside the deed of her home and dissoll'ed the power of attorney. The court action was successful. The attorney also helped her find a replltable persall who could wke care of her needs and act as her guardian. These stories are all too familiar 10 the staff and pro bono lawyers who represent Arkansas' low-income citizens

through the local Legal Services Programs. Unfortunately, Legal Services staff are finding it increasingly difficult to sustain services for poor people in

Arkansas. While appropriations are not yet certain. Legal Services Program anticipate a 27% loss in federal funds in 1996. This cut will cost the State $1.2 million in funding for legal services. This comes on the heels of a three percent loss in 1995. The Legal Services Corporation (LSC) is the entity that makes direct grants to local Legal Services Programs in

each state. LSC funds are to be used by these programs

Services.

Each Legal Services Program

based boards set the priorities for

victims of domestic abuse, the legal ..._ - _..._-"""-problems of the elderly, or other noncriminal legal problems. This local com- "WI 'l munity involvement is a key to the sucII e cess of these programs. appropriations are In 1995, the Legal Services Programs in Arkansas handled 14,380 cases which benefited over 32,636 low- not yet certain, Legal income Arkansans. Over 90 percent of

Services Programs

the funding for this work came from the federal appropriation given to the LSC. This year the federal funds for Arkansas programs will IOtal approximately $3.1 million.

anticipate a 27% loss

Legal Services is a bargain. Last year the average cost per case in Arkansas was 531 I. This representation

1996."

in federal funds in

is crucial 10 Mrs. Smith, Fay and many other people who need a lawyer but cannot afford one. II is too soon to predict the precise effect the funding cuts will have on the client community. However. it is clear that services will diminish. both in number of clients served

and the types of cases the programs will be able to handle. Collectively, Legal Services Programs in Arkansas have lost 9.75 lawyers, 4 paralegals. I executive director, I administrator, I assistant pro bono coordinator. and 145 support staff. Four (4) branch offices have been closed. More layoffs are anticipated and some are already scheduled. Legal Services' silent partner is the private bar. Two thousand private attorneys work with their local offices to

represent the poor people in their community. During 1995. the value of these donated services to the poor is estimated

10

provide legal help in civil matters for those at or below the poverty level. LSC is run in an extremely efficient manner

4

vice in Arkan as: Center for

Arkansas Legal Services, East Arkansas Legal Services, East Texas Legal Services, Legal Services of ortheast Arkansas, Ozark Legal Services and Western Arkansas Legal

to be $1,286,713. Some members of Congress argue that private attorneys can fill the gap created by the reduction

(and proposed elimination) of federal funds for LSC

with 97% of all funds appropriated by Congress going

through donated services. That is not realistic, and it is not

directly lo local programs. Six local programs provide ser-

justice for alL

The Arkansas Lawyer

Spring 1996


FEDERAL FUNDS to all Arkansans, regardless of income. Please educate your friends and clients on the concept that equal justice is not just a

In 1991, the American Bar Association estimated that 80% of OUf Nation's poor citizens did nol receive needed legal service. Congressional attacks on funding for legal services are expected to be more concerted and fierce

in 1996. Thus. those numbers could go up with each cut. If poor people are going to continue to have meaningful access to the courts, alternate funding sources must

fancy phrase that we all learned in school, but should be a reality for everyone in our State. Please respond positively when we call on you to speak to local organizations and corporations to urge their support for

the Legal Services program.

1995

1996

$2,008,444

51,488,324

OLS

5587.504

$445,572

LSNEA

5505,186

5379,848

WALS

5412,409

5312,780

EALS

5756,761

5488.544

ETLS

5189,052

5138,97

CALS

be

developed within our State. The Arkansas Bar Association and the Arkansas (OLTA Foundation co-sponsored a meeting on February 16, 1996, to address the cutbacks in federal funding for civil legal services to the poor. The purpose of the meeting was to develop a long-range plan for maintaining federal funding, diversifying the funding for legal services in Arkansas, and maximizing existing resources such as pro bono. Since the early 80's, when federal funding to the Legal Services Corporation came under fire, many states have begun developing new sources of income within

the state so that all is not swept away with each turn of the political tide. Nationwide, the method having the biggest payoff was the formation of a comprehensive IOLTA program. Arkansas has a comprehensive IOLTA program but

Reductions in Federal Funding

$2,500,000 $2,000,000

1995

1996

$1,500,000 $1,000,000

the revenue generated is not sufficient to

make up the loss created by the federal cuts. The second largest revenue producing approach is to seek state funding. The participants at the February 16 meeting decided that the possibility of a state appropriation or some other mechanism of state funding should be tudied. I have

appointed a task force. headed up by Maurice Mitchell, to begin exploring funding for Legal Services in Arkansas. More than two hundred years ago, the founders of our nation attempted in the preamble to the Constitution to state their rationale for forming our new nation. It is no accident that the first reason given was

to "establish justice." In the rush to cut the federal bUdget, we run the risk of forgetting that justice is not simply another government entitlement - it is the historic mandate of a free society.

$500,000 $0

1111 I I ••

CALS OLS LSNEA

WALS

EALS

ETLS

MCKENZIE, GRAVES, MCRAE & VASSER Attorneys at Law is pleased to announce that

M. CHAD TRAMMELL, licensed to practice law in Arkansas and Texas, has associated with the Firm at its Hope Office.

We must all work together as a tearn to educate ourselves, the general public,

and our legislators on the importance of an independent Legal Services organization in Arkansas. Let us join together in solving the problem of how to keep equal justice and access to the courts available

201 South Elm Street P.O. Box 458 Hope, Arkansas 71801

122 East 2nd Street P.O. Box 599 Prescott, AR 71857

5 The Arkansas Lawyer

Spring 1996


Executive Director's Report

Reno and Ramo - Problem Solvers hy William A. Morrill Lawyers must be problem solvers-that was the principle theme woven throughout their addresses when Attorney General Janet Reno and American Bar President Roberta Cooper Ramo spoke to the mid year meeting of the American Bar Association House of Delegates. Our education, the skills we develop through our practice of law and our experience in analyzing facts. understanding complex situations and developing realistic approaches make us better able to solve problems Lhan most other people. We know how to understand the opposing per-

son's concern and how to build bridges as well as be slrong advocates for our clients. We owe it to our clients and to our communities to be problem solvers and peace makers. The Attorney General emphasized that resolving dispUles by means other than litigation is oflen faster. better and less expensive. She quoted Abraham Lincoln's admonition to discourage litigmion because often thc apparel1l winner is the real loser. Whcn a disagreement is decidcd through litigation the undcrlying problem often remains. When a case is seuled by agreement or though the use of one of various alternate dispute resolution mechanisms there is a far greater likelihood the basic problem will be solved and the panies will avoid having the dispute erupt again. She told the House of Delegates that the Justice Department is committed to solving problems in the most appropriate and effective manner possible. While litigation may be a useful tool. enforcement of Federal law and regulations through litigation is 10 be a last resort. An Executive Order on civil justice from Prcsident Bill Clinton directs all means of attempting to resolve disputes be used and encourages the settlement of claims as early as possible. Attorney General Reno noted that securing convictions does not treat the underlying crime problem which must be a major concern of lawyers. She also talked about the need for lawyers to address the problems of how to make the law more simple, straightforward and real to the people we serve. Lawyers also have a role in reaching out to young people to educate them about the law and changing their attitudes so they respect the benefits of living under the rule of law. The Attorney General is working on the problem of previous lack of government lawyer involvement in the community by developing pro bono programs for Justice Department lawyers and encouraging them to serve on bar committees to improve the quality of justice. In turn she urges bar associations 10 reach out to government lawyers and make sure they are includcd and heard in the work of the organized bar. Mceting the ul1mct legal needs of low and middle income Americans is a problem both the Attorney General and President Ramo urged lawyers to COI16

The Arkansas Lawyer

Spring 1996

tinue to work at solving. We must be a voice for those who are not heard. The common law is derived from the will of the people and we must give all people access to justice. As misinformation is circulated we must know the facts and take pan in educating people about how our justice system works. We who do baule for clients must do baule for the justice system and keep the greatest justice system in the world from being destroyed. If the justice system is not working we cannot expect citizens 10 believe other pans of democracy will work. ----------Especially imponant is saving "The commoll law is legal services. It works, is not political or partisan, and is a required part of derived from the will our democracy. Lawyers have gone beyond what might normally be of the people and we expected in attempting to makc Congress and the public understand must give all people how essential the Legal Services Corporation is in today's complex access to justice" society if the poor are to have access to justice. We must continue our eFrons. lin Arkansas. Maurice Mitchell is heading a task force to seek ways to insure such services continue. My shorthand description of the terrible effects of thc absence of a systcmatic means of making pro bono services available is that ultimately the poor might resort to alternate dispute resolution in the form of gUlls and knives in the streets. Lawyers must not let the situation get bad enough for this happen.] Among the American Bar Association problelns President Roberta Ramo is working at solving is the decline in membership. She has teams of lawyers reviewing what services attorneys are looking for. They are developing membership outreach - a practical communications approach and improved partnerships with state and local bar associations. President Ramo ended her talk by reminding us we are concerned about and working to solve thc prob路 ICl11s affecting the justice system not because of pocket book issues but because of what the solutions do for Americans. The Attorney General concluded by telling the House she loves lawyers and loves the law but does not like greedy and indifferent lawyers. This is a time of challenge. \Vhere lawyers care they solve problems and things change for the better.


Law Office Technology

Windows 95 in the Small Law Office by David G. Nixoll Purpo,e of Anicle The purpose of this article is to share OUf experiences with those of you considering a switch from Windows 3.1 or

Windows for Workgroups 3.1 I ('"WFW") to Windows 95. Prior Experience/Sy\lcm OUf office has been committed for several years to the ideal of utilizing new technology where we can oblain a favor-

able combination of quality. efficiency. control and price. In that quest. our com-

puter operming system had evolved from

DOS to Windows to pemlit "multitasking" and easier transfer of data from program to program. From, there we adopted \Vindo\Vs for Workgroups to permit inexpensive networking, e-mail and sharing of resources such as printers, files and fax

ups without rebooting by simply tenninating individual programs which may have stopped running. Admini\tration of Sy..,tcm

I have typically been the one respon-

Binder... Office 95 utilizes what it refers to as ··binders". While we have not yet mastered their use in our office, they appear to permit one to group together a number

sible for administering and maintaining our computer system. With WFW, that involved owning and delving into the Microsoft Resource Kits and various ··*.inj"· files from time to time. I have

of separate, but related, office files, such as word-processing, spreadsheet, database

found I need to do much less of that in Win95. Longer file names One of the touted benefits of Win9S's

"bound" to the contract, promissory note(s). security agreements. etc. in Word format. Because they are "bound"

32-bit architecture is the ability to assign

formatted as a cohesive unit. Shortcut\ and programming a linle confu\ing at fir\t. For those of us familiar with the

long file names. We have found that using the longer file names permitted by

Win95 has been a plus for our office. In

and presentation. For example, you

might have an Excel spreadsheet analyzing the effeclS of a proposed contract

together. they can be stored. e-mailed and

WFW, we utilized a file-naming conven-

Windows 3.1 desktop and its formatting,

modems. We also chose to move from

tion that involved specifying the type of

lIsing a wide variety of software from different manufacturers to so-called "office suite" software. We changed. for exam-

word-processing document. Le. a letter. a brief or an order, by the three-character extension at the end of the file name.

ple, from WordPerfect for Windows and Lotus 1-2-3 to Microsoft Word and

Since Win95 and Office 95 prefer the

personalizing and modifying Win95 may prove a little cumbersome and confusing at first. However. we have found that setting up program groups and ··shortcuts" is not that hard once one has done it a few times. Once set up. the access to pro-

Microsoft Excel. While some resistance and retraining naturally resulted from the move, it has proven clearly beneficial for a variety of reasons which are beyond the

scope of this anic1e. Diffcrence~

from Window., for

Workgroups 3.11 and Windows 3.1 32 bit is more stable We were having a tremendous amount of trouble with system failures

using WFW 3.11. Typically, we were rebooting our system at least once per

day. This one fact alone prompted us to move to Windows 9S when we did. We were understandably reluctant to move to

a completely new and untried operating system, especially considering Microsoft's significant delays in release

of the product. I am happy to repon that we experienced an immediate and significant gain

in platform stability. We still have to reboot our system now and then, since we leave our system running all the time, but much less often than before. Also, it is much easier to recover from system lock-

same file extension for all word-processing files. i.e., ··doc". we have learned to

specify the type of document within the tile name itself. Except for that inconvenience unique to our office. the availabili-

ty of long file names has more than compensated for the inconvenience of the

change. Toolbar and informati\'c icon... Two of the things we really like about

Win95 are the use of the loolbar and the

grams through the desktop and the "Stan" button really is more convenient. We like

the toolbars provided by Microsoft Office as well. They give direct access to email. schedule and document processing functions we use regularly. etwork Service One complaint I have with Microsoft is its decision 110t to provide free support for what it calls "network" issues. These

issues include not only networking per se.

informative icons in the lower right-hand corner of the screen. If I have a number of programs running simultaneously

and group scheduling issues. which for

(which is usually the case). even if my

us. at least. are the key tools for which we

current program hides the program for which I am looking. I can find and open

it instantly by going to the tool bar. Win9S also exhibits icons at the lower right-hand corner of the screen which indicate which background functions are at work. e.g.. printing. faxing. sound. time and date. One also has direct access to those functions by "c1icking" on those icons and can then modify the parameters of that function or terminate it entirely.

but also. I believe. e-mail. remote faxing

purchased the software. It also happens these are usually the issues which tend to pop up more often since they are the morc complex uses of the software. In

spite of this drawback. we have found Microsoft's technical support to be con-

sistentlyexcellent. Hardware

pgrade Required

You will probably find that yet another hardware upgrade will be required to

See Law Oll1ce Technology Page 37 7

The Arkansas Lawyer

Spring 1996


CLE Director's Report

MCLE Serves Not Only the Profession, But the Public by Charlatt. Morrison Creer From where I sit, it is as clear as sunrise on a cloudless day that requiring lawyers to attend some minimum amount of continuing legal education has a positive effect on lawyers. on the quantity and quality of CLE programs, and, ultimately, on the clients lawyers serve. I opted not to spend time discussing whether formal continuing education is important to lawyers. I assume lawyers would agree that it is or there would not have been a market for this education before it became mandatory. I believe the real question is whether attending CLE increases the knowledge of lawyers who would not have gone but for the mandatory continuing legal education (MCLE) requirement? It is on this point that those arguing against MCLE somelimes quote the old saying "You can lead a horse to water, but you can't make it drink," Maybe not, but if you take the whole herd, most of them are going to have a drink. MCLE has its best effect on those lawyers who believe CLE can help them, but without the requirement, did not regularly attend CLE due to the demands of daily practice. Under the MCLE requirement, these lawyers pick programs that can benefit their practices, anend those programs, pay altention, and take what they learn back to the office or counroom and put it to use for their clients. How large is this group of lawyers? I believe it is sizable. The best estimates from The Arkansas Institute of Continuing Legal Education (AICLE) prior to MCLE were that one-founh to one third of Arkansas lawyers attended any CLE in a given year. Although there cenainly must be attorneys who have wasled the opportunities presented by the courses they have taken to satisfy MCLE requirements, I do not believe they are any significant portion of the bar. Rather, I believe that a large portion would agree that the requirement are an incentive to take courses they should take but would otherwise find weak excuses not to take. Obviously. MCLE has increased the number of CLE courses offered in Arkansas. By increasing the demand for CLE programs, MCLE has allowed the Bar to offer CLE in smaller towns than would have otherwise been feasible. Specialized seminars are also more available under the requirement. Finally. MCLE improves the quality of CLE offered because MCLE rules require written materials, appropriate environments, and other faclors that contribute to quality. Sponsors, in competing for attendance. look to quality as an area for improvement. Taken together, MCLE means more available, more varied, and better CLE programming. Allhough lawyering competence most assuredly is enhanced by experience in the practice of law, legal educators 8

The Arkansas Lawyer

Spring 1996

continue to encounter the asserlion that what lawyers need to know is only learned through experience and not in a classroom setting. The saying that "experience is the best teacher" does not account for what can be described as the gross inefficiencie and frequent failures of learning only through the daily experience of legal practice. MCLE has caused attorneys who would nol otherwise have done so to attend conlinuing education programs. As a result of this attendance, their knowledge of the law (an important component of competence) has increased. How could this not have helped the public?

NEED YOUR ETHICS HOUR?

The Arkansas Bar Association will be offering several opportunities for you to obtain your one hour of ethics before the June. 1996 reporting period. A video reply from the 1996 Mid- Year Meeting, Ethical Dilemmas, will be shown at the Bar Center. The replays are as follows:

May 30,1996

June 6,1996

8:30-9:30 a.m. 11:30-12:30 p.m. 5:00-6:00 p.m.

8:30-9:30 a.m. II :30- I2:30 p.m. 5:00-6:00 p.m.

For more information or to register, call Virginia at (501) 375-3957 or 1-800-609-5668. Members: $25.00

Non-members: $40.00

Space is limited. There will not be at-the-door registration. Please pre-register.


To get more illformatioll all these or other CLf semi/lOrs, cOlllact tI.. CLf office of Ihe ArkJJIISIls Bar Assacintiall al 501-375-3957.

Arkansas Bar Association Calendar of Events TAX AWARE ESS I STITUTE Date: May 10, 1996 Location: UALR School of La w,

Little Rock

lABOR lAW

ETHICAL DILEMMAS

Date: May 16 -17, 1996

Date: May 30, 1996 June 6, 1996

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The Arkansas Lawyer

Spring 1996


How to Write a Losing Brief by Coleen M. Barger In every appeal. one side wins and one side loses. 1The merits of the case ought to have something to do with it. but sometimes they don't. Instead, the efforts of the lawyer writing the appellate brief innuence the outcome of the appeal. You probably know that numerous helpful articles and books already exist to provide guidance on writing the winning brief. 2 I can't add anything new to all the good advice Lhat's already been published. So I have a different thesis. Will you accept the proposition that appellate judges are very busy people? For every case, they have to decide who wins, and who loses, and why. Will you agree that cases take a long time 10 go through the appellale process? Is judicial economy a goal 10 be desired? If you answered "yes' to al1lhese questions. I offer you the following rules to make the judges' decision in your next appeal much easier, much quicker: Wrile Ihe losing brier. Rule I. Don't bother to check the court rules. Following this nile may be Ihe fastesl way of al1 10 lose an appealyou can halt the progress of your brief right at the c1erk's office, before a judge ever sees it. 3 For example. if you're drafting a brief for an Arkansas appellate court, try submitting a wordy brief whose Argument section runs about 28 pages in length. 4 Or abstract witness testimony in the third person. or reference several pages of the record al once 5 Or try 10 conserve paper by squeezing in a couple of extra lines per page. Will it maner that your margins are less than one inch? Yes, it will. 6 For those fascinated with computer technology, try using one of those fancy new fonts that came with the wordprocesSOl'. If you use a font that's small enough. you can fit a 28-pagc Argument into 24 pages 7 If you're drafting a brief for a federal appcllatc coun, though, some of these 10

The Ark'U1sas Lawyer

Spring 1996

tricks may nOI work. The federal clerks are more likely to return the brief to you (again and again), until you finally get it righl and they can forward il 10 the judges. So we'd better go to the next rule. Rule 2. Raise as many issues as possible. Remember how you learned 10 spot issues on law school exams? The more you found, the more your professors liked your paper. ow you can put that talent to work again. When you represent the appellant. comb the record for every conceivable ruling, objection, instruction. and put each one into its own point of error. No appellate court will buy your arguJ11clll that the trial judge made that many prcjudicial errors. Bury your good point in a haystack of losers. Or save it to use as your last point: the judges' attention will be gone long before they ever make it that far in your brief. Rule 3. Get a head start on your argument b)' attacking the trial court in lhe Statement of the Case. Belinle the trial judge. Accuse the judge of fol-

lowing his own agenda. ThaI's the Slrategy used by counsel in one Arkansas case. and it worked 8 If you're rude enough. the court may even strike your entire brier. a result Ihat really shoncuts the court's time in making a decision. 9 And you can certainly put the court in the proper frame of mind to rule against your client if your Statemenl of the Case distorts the facts, omits m::uerial information that favors your opponent, or argues the significance of facts on your own client's side. Rule 4. Distort the standard(s) of review. There are several ways to distort the standard of review. One, you can pretend it doesn't exist, and simply argue whatever seems to work, whether the appellate coun can give you thal relief or not. Two. you can misstate the standard. For example, did the trial judge exclude your proffered evidence as more prejudicial than probative? Argue a de 1101'0 standard (Latin always sounds educated). 10 Three, for a multi-issue appeal, state a


single standard of review, even though each issue you raised obtains review under a different test. Let the appellate judges sort it Ollt. They ought to know lheir job. Rule 5. I)on't include any poinl headings within the brief, or if ),ou

must draft some, make them as non· specific and topical as possible. Some judges have the silly notion lhat by skimming your argumentative headings, they can get a sense of your argument's

scheme and structure. Such judges lind it extremely helpful 10 ~ncounter headi,~gs ~ like this one: 'The tnal court abused Its discretion by admitting twenty-five gory and repetitive photographs of the corpse." Rather than draft a heading that clearly asserts your position on the issue. keep your headings simple: "Admission of photographs." Drafting this kind of heading works whelher you're the appellant or low this rule properly, it helps if you'll the appellee, so you don't even have to forget thalthe typical appellate judge . W h'Ie h'd keep up with 51 e you ' re on. II reads scores of briefs per year. (Don't Rule 6. Quote whatever you like, as think of the possibility that if we recycled much as you can. The writer whose brief all the paper in those briefs, we could is resplendent with quotations, stitched save at least a half-acre of pulpwood per together by citations, not only persuades judge. 13) Unfortunately. judges don't get the appellat.e court that he or she has done to choose which briefs they'll read. After no original thinking, but also, if the quoall, aren't they paid to read every single tations are long enough to merit block word and the next word and the next format. gives the judges a handy way to word. lOO? skip reading large sections of the brief. It's a simple mailer of psychology, Here's an example: really. When you were in law school, did Legal argumelll based on a knowingly you prefer reading the four-page tort false represelllatioJl of law COllstillltes cases or the twelve-page constitutional dishonesty toward the tribunal. A lawyer law cases? Quick, tell me the facts of is not required to make a dishl1erested ?alsgraj. Now tell me the facls of exposition oj the law, bill must recognize Marbury v. Madison. Judges are no dif· the existetlce of pertinent legal Gwhoriferenl. As between the ten-page brief lhat ties. Furthermore, as stated ill paragraph succinctly addresses the issues and the (a)(]). all adl'ocale has a dllty 10 disclose thirty-five page brief that rambles on and directly adverse authority in the cOll1m/on. which one will the judges read? The ling jurisdiction which has not beef! dis· losing brief is the one that stays on the closed by the opposing parry. The ill/der· desk. lying concept is that legal argumelll is a Rule 8. Don't worry about con· discllssion seeking to determille the legal structing Ihe lable of contenls or the premises pmperly applicable to the case. lable 01' authorilies. No one ever looks Sec how easy it is to just skip that at them. If you provide inaccurate entire paragraph? 12 tables-whether because of citation And here's another tip: Quote from errors, wrong page numbers, omissions. head notes, even though their author is a or incomplete information-you've found publishing company's employee. not lhe another sure-fire way Lo reinforce the judge who wrote the opinion of the court. judges' notiollthat you don't know what After all, the language of the headnote you're doing. Type or dictate "S.W.2d" might lT'lean something distinctly different when the case was in the Southern in the actual context of the repol1ed case. ReponeI' 2d. Get the volume number Rule 7. Be wordy, verbose, loquawrong. Never Shepardize anything. Make cious, prolix, and long-winded. To fol-

the judges' law clerks hunt for the case. After all, they were probably some of those law review geeks who earned all the A's and memorized the Bluebook. Serves them right. No point in making the tables easy to read either. Run the citation all the way across the page so that the page numbers, date of decision. statute numbers. and pages of the brief are in t.he same visual field. Guaranteed to irritat.e. Rule 9. Do not - I repele - do nol proofreed. This rule is important because even though you want lO write the losing brief, it's nice to give the judges a good laugh while they're ruling against you. 14 Make enough mistakes, and you increase your chances of distracting the judges from noticing anything meritorious that you might have inadvertently included in the brief. Rule 10. Make 'em work for it. This rule may seem contrary to my opening thesis-that you can save the legal system a lot of time by writing a brief so bad that the judges will quit reading in disgust and quickly rule ill favor of your opponentbut it's here for an important reason. Some judges are so stubborn that they will persist in reading your brief, looking for any kernel of insight. despite your best efforts to follow my tirst nine rules. For these judges, then, you must turn to your ultimate weapon: fog. Think about it. Fog is gray. dense. See Writing a Losing Brief Page 36 11

The Arkansas Lawyer

Spring 1996


ot 100 long ago. a good friend who hails from the Delta was meeting with several coworkers abollt a major project.

In her sort Southern drawl. she emphasized more than once that "timing is everything:' As a decision was about to be reaehed. one of the other partieipanls had a question ..,( understand where we

are going with this:' he asked. "but just who is this 'Tommy' fellow you think is

so important?" Misunderstandings aside. my friend could well have been talking aboul the nOlice of appeal. lhe first slep in the Arkansas appellale process. The failure LO file a timely notice of appeal. even in the event of mistake or unavoidable casualty. deprives the appellate court of jurisdiction. 1A notice is untimely not only if it is too I3Ie. 2 bll\ also if il is too early: if filed prior to the day on which the order being appealed is entered. the notice has no erfcc1. 3 It is imperative. therefore. to aseertain lhe period during which lhe notice must be filed. This brief article focuses on that issue in the context of civil litigation. I. The Fimllity Doctrine

The starting point in any appeal, of course. is the finality doctrine. As a general mle. appeals may be taken only from orders. decrees or judgments that "dismiss the pal1ies from the COUI1. discharge them from the aClion. or conclude their rights to the subject matter in con troversy:'~ This principle. embodied in Rule 2(a)( I) of the Arkansas Rules of Appellate Procedure - Civil (Ark. R. App. P. - Civ.). is jurisdielional 5 Al the heart of the finality requirement is the notion that cases should not go to appellate courts on a piecemeal basis but rather as a whole. onetheless. immediate appellate review of a non-final order may on occasion be efficient in terms of judicial administration or necessary to protect the rights of a party. Various exceptions to the finality requirement have thus emerged. Pursuant to Rule 2(a). for example. an immediate appeal may be takcn from an order that grants a new trial. strikes an answer or olher pleading. disqualifies an aHorney. or grants or denies a motion for class ccrtific3tion. 6 Rule 54(b) of lhe Arkansas Rules of Civil Procedure (Ark. R. Civ. P) is a different sort of exception. 7 Ordinarily. a judgment or order in a case involving multiple pmties or multiple claims is not

appealable unless il "coverls] all of the panics and all of the claims:' 8 However, Rule 54(b) permits an appeal from a "lesser judgment" if the trial court so certifies in accordance with the rule. 9 However. failure to seek certification does not preclude an appeal when the entire case is resolved. IO This certification. I I which should be reserved for the infrequent harsh case. 12 has two components: the trial coun's "express direction for the entry of judgment:' and its "cxpress detennination. supported by faclual findings. lhal there is no jusl reason for delay:·t) Abselll proper certification. the appellate court lacks jurisdiction and lhe appeal will be dismissed without prejudice. 14 II. The Notice or Appeal If an order is appealable. either because it is final or because it falls within an exception to the finality doctrine. the rules governing the notice of appeal come into play. The relevant provisions appear in Ark. R. App. P. - Civ. 3 and 4. Strict compliance with the timing requirements of Rule 4 is essential. lS and the record on appeal must renect that they have been smisfied. 16 Pursuanl LO Rule 3(b). an appeal is taken "by filing a nOliee of appeal wilh the clerk of the coun which entered the judgment. decree. or order:' 17 With cerlain exceptions. Rule 4(a) provides that lhe nOlice must be filed "wilhin lhirty (30) days from the elllry of the judgmenl. decree or order:' t8 Under Rule 4(e). such an "entry" occurs when the judgment. deeree. or order "is filed with the clerk of the court in which the claim was tried:' The point at which a judgment becomes effective is not relevant. 19 nor is the date of the clerk's docket notation or recordation in lhe judgment book 20 There are two exceptions lO Rule -tea}: an extension of time available when a pany does not receive notice that the judgmcnt. decree. or order has been cntered, and an automatic extension when cenain posttrial motions are filed. In addition. the time for filing the notice of appeal may begin 10 mn at a different poinl in some Ark. R. Civ. P. 54(b) cases. A. Party Unaware 01' Judgment Added 10 the appellale rules in 1986. the first exception is of limited scope. Rule 4(a) provides that lhe lrial court "may extend the time for filing the notice of appeal by any parly:' ror a period not to exceed sixty days from the expiration

of the otherwise applicable deadline, upon a showing of "failure to receive notice of entry of the judgment. decree or order from which appeal is sought." Such 3n extension "may be granted before or afler the [deadlinel has expired:' The trial court must determine. as a factual matter. whether there was a "failure to receive notice:' and the record must reflect adequate support for that finding 2t This provision is obviously based on fairness considerations. nder longstanding Arkansas custom. counsel for the prevailing party prepares the judgment or order and submits it to the court for approva1. 22 Although opposing eounsel usually has an opportunity to review the document. "circumstances have arisen where [he or she] did not receive thaI opportunity and did not otherwise receive nOlice that a judgment had been entered:· 23 B. Posttrial Motions The second exception. described in par:lgraphs (b). (e) and (d) or Rule 4. applies when certain posttrial motions are made. If any party files a timely motion for JNOV. a new trial. or addilional findings of facl,24 lhe deadline for all parties to tile a notice of appeal is extended. In this situation, the notice must be filed within thirty days from the entry of an order granting or denying the motion. so long as the order is entered within thirty days of the motion's filing. If no dispositive order is entered within that time frame. however, the motion is "deemed denied" as of the thirlieth day. and the lime for filing the nOlice of appeal begins 10 mn al thaI point. Moreover. a premature notice has no effect. and a new filing is necessary lO perfect the appea1. 25 Rule 4(c) expressly provides that a notice is ineffective if filed "before the disposilion of [the posttriall motion" or. if no such order is entered. "prior to the expiration of the thirty-day period" for consideration of the posttrial motion. In the latter situation. a notice filed on the thirtieth day is ineffective. 26 With respect to a dispositive order. howcver. a notice ··counts·· if filed on the same day as the order but actually prior in timc.27 Although this procedure was adopted In 1988 to simplify previous Arkansas

Sec Timing is Ever)'thing Page 34 13

The Arkansas L<'lwyer

Spring 1996


How One Ought to Write by William R. Wilson, Jr.

Most folks have heard lhe story about Ihe mule lhat jumped OUI of Ihe mule pen and ran in the Kenlucky Derby. Of course. he came in dead 1asi. and when he jumped back into the mule pen. the other mules chided him for this hopeless effort. The outclassed runner replied, "1 knew I couldn't win. but I lhoughl lhe association would do me a world of good:' I wouldn'I repeat lhis chestnut but for lhe fact il so aptly describes how I felt about writing alongside Judge Robert Keeton and Professor Charles Alan Wright - and the other luminaries who contributed to a project I worked on. Abraham Lincoln supposedly wrote. "With educated people. the semicolon is a l11~lller of rule; with me, iI's a maHer of

feeling:' This pretty much describes the way I write. My missives do not square wilh Strunk and While (nor do they meel the Bryan Garner standards). It's not Lhat

I didn't have Ihe opportunilY to pick up the rules of grammar and construction since my parents were schoolteachers from Ihe old school. Proper grammar

was an article of faith with them. To borrow from Merle Haggard. "Mamma tried"; but unfonunntcly.

(00

liule stuck.

Despite this shortcoming. I have alway~ loved to read and write. For betler or worse. Mark Twain. Josh Billings. and Bret Harte were my early favorites. Additionally. my maternal grandfather W3S a rock-ribbed. circuit ridin', shoulin', whiskey hatin' Methodist preacher. so the Holy Writ (King James Version. of course) has been a staple for me. When I was a young man I had the privilege of hearing the Ime Oswald Jacoby give a lalk on poker (which. incidentally. he preferred to bridge). His lalk was chock路full of interesting anecdotes. After his presentmion. I visited with him brieny. and commented on his skills as a raconteur. He said. "I learned long ago Ihat if you will entertain first. education may follow:' I doubl that my students of the law are much differcnt Ihan those who would improve thcir game of chance. 14

The Arkansas Lawyer

Spring 1996

When I was growing up (in Ihe 40s and 50s) my elders had just wealhered the Great Depression. and their language was rich wilh figures of speech, born of Ihal cxperience. Onc might preface a rumor with, ''This is just what I heard. but 'course now. you can hear anything but meat fryin' and money jinglin'''' How belter 10 express the lack of reliability of hearsay - at least to listeners who knew full well of Ihe scarcity of meat and hard money during the Depression? Similes and metaphors common to a particular area or occupation have always been a favorite study of mine. For some-

Whatever my writing skills may be, I lay no claim to originality. My scholarly friends tell me that Shakespeare himself was a shameless thief of lines; and if the Bard himself could purloin thoughts from others, surely an ordinary street lawyer call. Proper attribution is in ordel; but Mark Twain might have added, "only ifone is fairly certain to get caught." one who grew up around livestock. and remembers Ihe first days of DDT. how better to describe a weird person than "crazy as a sprayed Oy:' I am sorely afraid. however. that television is homogenizing our language. The disappearance of the farm family also concerns me. Will "crazy as a peach orchard boar" mean anything to a person who has never secn a hog drunk on peaches that fell to the ground and fermented? Perhaps it is my rural background that draws me 10 the bucolic

aphorism. Whatever my writing skills may be. I lay no claim to originality. My scholarly friends tell me lhat Shakespeare himself was a shameless thief of lines: and if the Bard himself could purloin lhoughts from olhers. surely an ordinary street lawyer can. Proper attribution is in order. but Mark Twain mighl have added. "only if one is fairly certain to get caught:' Drafting and redrafting have always been a necessity for me. I am in awe of those speakers and writers who can just let it now, but I simply have not acquired that abilily. Perhaps lhis is a rare skill. When I was first called 10 lhe bar. I heard an inspiring speech by a lawyer of yesteryear who was known as a great extemporaneous speaker. After his lalk. I asked him if his skill was inherited or acquired. He told me that he had always invested a great deal of time in rehearsing his impromptu speeches. Redundancy is abhorred by lhe purist. but I simply cannot resist in truth and in fact. Irregardless is scorned. but doesn't it make something more irrelevant than regardless? (Ir-by-God-regardless is used in the Ouachita Mountains for especial emphasis.) For anyone who has ever climbed a tree and drug a squirrel out of its hole. SHying dragged grates on the ear. So that yOll can let the reader know lhat you have had passing exposure 10 proper grammar, it is best. in this instance, to go ahead and add your own sic. It is my belief that from time to time. digression is good for the writer's soul. if nOl for Ihe reader's train of Ihought. If one does not stray too far afield. a digression may even lighten the load for the reader. Funher. it is my firm belief that one should get some fun out of writing so that one does not dread the experience like a teenager facing a two-hour sermon. In fine. my notion of writing was pretty well described by the laIc Dizzy Dean's 3dvice for living: "Be yo-self:'


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The Client Security Fund Fulfilling Our Obligation to the Public by Justice Andree Roaf

O

ne of the most disheartening occurrences for most lawyers is to learn that a colleague

of the lawyer - client relationship are

by rule of the Arkansas Supreme Court.

covered. The Fund is not designed to

The Bar Associalion subsequel1lly presented its proposal in a petition LO the

or her clients by misappropriating client

court. and the Client Security Fund was

funds. It is particularly painful to read of

created by per curiam on April 30. 1973 2

cover negligence or similar acts. 2) Reimbursements arc a matter of grace, not a maller of right. and no claimant has any right in the Client Security

such events in our daily newspaper and know that our profession has suffered yet another blow to its image and reputation.

The initial fund was financed by voluntary contributions from members of the Arkansas Bar and by transfer of surplus funds from attorney's license fees.

erwise. The Client Security Fund COlllmittee may admit or reject claims in whole or in part.

has betrayed the trust of his

It is of no consolation LO consider that all professions and disciplines have a share of dishonest members or that dishonest lawyers comprise only a very small frac-

tion of the total membership of the bar. In this day of lawyer jokes and lawyerbashing from all corners. these occurrences are especially hurtful and damaging to lhe image of our profession. and to us as individual attorneys. It is therefore both timely and appropriate to review the efforts that Arkansas lawyers have made to protect clients from losses caused by the dishonest conduct of members of the

State Bar of Arkansas. Client security funds first came into existence in ew Zealand. which estab-

lished the Security Fund in 1929. A number of countries soon followed. with

England creating the Law Society's Fund in 1942. In 1959. Vermont was the first state in this country to establish a fund. I Today. the overwhelming majorily of states operate some type of client security

fund. The genesis of the fund in Arkansas was a resolulion adopted by the Ethics and Grievance Committee of the Arkansas Bar Association in 1968, which

20

recommended the establishment of a fund

The Arkansas Lawyer

Spring 1996

Beginning in 1974. the fund received 52 of the annual license fee paid by each attorney: claims were initially limited to

5.000. There have been a number of changes in the ensuing years LO increase

Fund as a third party beneficiary or oth-

3) Claims must be filed no later than three years ancr the claimant knew or

should have known of the dishonest conduct of the lawyer. 4) No claims may be paid until the

the annual contribution per lawyer and to

Committee on Professional Conduct

raise the claim limit. From 1973 to 1990

has certified that the member of the bar of Arkansas has been disbarred. is sus-

the annual per lawyer contribution was

2. from 1990 to 1994. 4 and. in 1995. the supreme court raised the contribution

to SID. The per claim limit was 55.000 from 1973 to 1991. In 1992 it was raised to S25.000 and in 1993 it was again raised to S40.000. There has never been a per-lawyer cap on claims in Arkansas. although many other stales have a limit on the dollar amount paid on claims attributable to anyone individual. The Client Securily Fund is administered by a committee appointed by lhe Arkansas Supreme Court. The rules for the committee can be found in the Court Rules volumc of the Arkansas Code. Some of Ihe more significant provisions are:

I) Only losses caused by the dishonest conduct of a lawyer and which arisc out

pended from practice. voluntarily resigned from the practice of law and surrendered his license. or died before a disablement. suspension. or surrender

of license could take place. 5) Lawyers may not be compensated for prosecuting a claim against the fund.

In 1993. the supreme court authorized a press release to further publicize the existence of the fund. The Administrative Office of the Courts also prepared and distribuled a pamphlet which provides inform3lion aboul

the fund. Consequently. the claims filed have increased dram;llically with the

public awareness of this fund. The following chart sets OUl the hisLOry of the submission and payment of claims since the inception of the fund


YEAR 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995

*

NO. CLAIMS FILED 0 3 2 2 4 1 0 1 7 4 0 1 8 10 10 4 3 3 8 7 43 29 6

otc thal the claims paid in any given year are nor necessarily from applications received during that year.

* In the past, the fund

has always paid all approved claims in full. AI the present

funding level of $1 0 annually per licensed attorney, the fund will receive a maxi-

mum of $70,000 per year. If the amounts paid in 1994 and 1995 are an indicator for the future. it is obvious (hal the fund cannot continue to pay all approved claims in full without additional monies. The supreme coun and the Client

sion. It should indeed be a source of pride for all Arkansas lawyers lhat we have undertaken this ~df-irnpusetl responsibility to our clients and to our profession. ENDNOTES I Mullin, Clients' Security Fund. 5 Ark. Lawyer 186 (197 I). 2 254 Ark. 1075.493 S.W.2d 422 (1973).

Security Fund Committee are deeply

commincd 10 Ihe objective of continuing to meet the losses of clients who have been victimized by unscrupulous lawyers. Toward this end. the court and the committee are involved in an ongoing review of the current procedures and are considering options for other funding sources.The Client Security Fund is an important aspect of the self govemance of our profession and we must continue to accept this responsibility to the public. It als:J presents an excellent opportunity to demonstrate Ollr commitment to maintaining the integrity of the legal profes22

TOTAL PAID 0 0 $ 960.21 3,351.40 3,424.98 0 0 0 2,667.34 400.00 0 0 5,000.00 16,938.80 12,990.00 15,948.21 0 125.00 0 41,636.38 35,753.04 136,658.86 152,276.00

NO. CLAIMS PAID' 0 0 2 1 7 0 0 0 2 1 0 0 1 9 5 12 0 1 0 3 5 11 20

The Arkansas Lawyer

Spring 1996

The supreme court and the Client Security Fund Committee are deeply committed to the objective of continuing 10 meet the losses of clients who have been victimized by unscrupulous lawyers.

EEOC Discrimination Consultant Charles Bucher (501) 224路0877

Retired from EEOC with 20 years experience


Opening Announced for Executive Director's Position

THE LAW FIRM OF DAVIDSON, HORNE & HOLLINGSWORTH Announces the Change of the Firm Name to

The Arkansas Bar Association, a statewide association located in Little Rock, Arkansas, with 3900 members, a full-time staff of thirteen (13) and an annual budget of $1,080,000, seeks an Executive Director. The duties of the successful candidate will commence on December 2, 1996.

The position requires the ability to implement the goals, policies and programs of the Arkansas Bar Associa tion as adopted by the President, Executive Council, and House of Delegates. Included in the duties will be supervision of staff members, management of building facilities, financial administration and budgeting, planning and coordination of meetings, supervision of the publication of Association periodicals and other printed materials and maintenance of communications and cooperative relations with the American Bar Association and with the various specialty, local and state bar associations.

Qualifications include at least a bachelor's degree and 110 less than 3 years of experience in management, financial administration and personnel supervision. Alaw I degree or graduate degree in a related field is preferred. Management experience in non-profit or volunteer organizations is desirable. The successful candidate should possess excellent communication skills.

Minimum salary is $65,000 (plus benefits) and is negotiable based on qualifications and experience. I

Applicants should send a cover letter, resume, and salary requirements to Search Committee, Arkansas Bar Association, P.O. Box 5130, North Little Rock, AR 72115 by August 15. Resumes and inquiries will be kept confidential. The Arkansas Bar Association is an equal

I

opportunity employer.

~

HORNE, HOLLINGSWORTH & PARKER A Professional Associahan AND TAKES PLEASURE IN ANNOUNCING THE FOLLOWING ADDITIONS TO THE FIRM FRANK j. WILLS JOYCE BRADLEY BABIN BRADLEY S. CHAFIN EDM.KOON

HORNE, HOLLINGSWORTH & PARKER A PROFESSIONAL ASSOCIATION

401 West Capitol, Suite 501 Post Office Box 3363 Little Rock, Arkansas 72203-3363 Telephone (501) 376-4731 Telefax (501) 372-7142 Allan W. Horne Cyril Hollingsworth Michael O. Parker james P. Beachboard Mark H. Allison Frank j. Wills joyce Bradley Babin Bradley S. Chafin Ed M. Koon Walter W. Davidson Retired Garland W. Birllls, jr. of Counsel 23

The Arkansas Lawyer

Spring 1996


y

In The author's opil/ions iff this article are !tis!lter OWII and i"

110

Imy reflect

'he position of ,he Arktmsas Bor Associm;oll. while committing to become a responsible conscientious member of the communityat the same time. The communities who enjoy successful partnerships with the casino industry are those who have defined their goals and expectations as they relate to the gaming industry. They have chosen their partners carefully and given serious thought to the terms of their relationship with the casino operators. Some communities which have welcomed the industry may have experienced growing pains: however. these communities may very well have been unprepared for the tOlal impact of the casino industry. An obvious success story of the gaming industry is Tunica County. Mississippi. The impact of gaming in Tunica surpassed anyone's expectalions. The unemployment rate in Tunica went from 26.2% in 1992 to 4.9% in October of 1993 5 The welfare department's col-

Pro by /anne Giroir Sieael "Gambling is now bigger than baseball. more powerful than a platoon of Schwarzenegers. Speilbergs. Madonnas

and Oprahs. More Americans went to casinos than to major league ballparks in 1993.

inety-two million visits!"1

Communities who have sllccessful

partnerships with the gaming industry experience an economic resurgence due to new jobs. lax revenues and capital

investments. 2 The purpose of this article is not 10 discuss whether gaming is morally right or wrong: that is an indi-

vidual decision. Rather. the purpose of

lection rate has increased while the number of welfare recipients has decrensed. Casino Gaming has brought more employment opportunities to Tunica than there were residents of the County in 1990. The casinos present vocational and educational opportunities via a training school 10 leach potential employees the necessary technical skills to work in the gaming atmosphere. Once employed. the casino employees earn an average annual salary of 525.000.00 6

this article is to give an overview of the gaming industry. The gaming industry is a fast growing industry thal has been intensely scrutinized and studied both internally and externally. No other industry has been the source of more debate on both a political and an emotional level than the gaming industry. Current arguments against gaming maintain that it is a regressive form of taxation. results in extensive social costs. reshufnes the local economy as (the) residents spend money on gaming which would otherwise be spent at local establishments. and finally increases street crime and attracts organized crime.3 While these arguments are repeatedly and commonly asserted against legalized gaming. it has been demonstrated in several existing models that these claims do not reflect the realities of legalized gaming's effect on the communities. For background purposes. it is important to understand that there are actually three different types of gaming. "Lottery" is a state sponsored and promoted type of gaming. "Convenience Gaming" consists 24

The Arbnstls Lawyer

Spring 1996

of keno machines. video poker. video black jack a"d other video display terminals that orten appear in bars, restaurants and truck SLOpS. "Casino Gaming" is a full scale dedicatcd gaming and cntertainment establishment containing slot

machines. blackjack tables. craps. baccarat. roulette and other games of chance. 4 Each of the three forms of gaming have various consequences and effects, both positive and ncgative. and

Lady Luck Casino in Tunica, Mississippi

each should be evaluated individually: however. the remainder of this article will focus on casino gaming. Casino Gaming offers a symbiotic

relationship to a local community and Slate by commilling to an incrcase in employment opportunities. increased tax revenue and increased capital investment.

The ancillary benefits of casino gaming in Tunica have been new housing. service sector businesses. recreational vehicle parks and the construction of new restaurants and motels. The casinos also benefit the infrastructure within the counties. as Mississippi gaming law requires that a cerwin percentage of casino revenue go to the counties. In Fiscal Year 1995 the revenues allocated to the counties in Mississippi amounted to $2.500,000.00. In addition. new local highways are being constructed. budgets of local law enforcement and fire departments have experienced increases. two ncw utility districts have been formed, 25

The Arkansas Lawyer

Spring 1996


ized gaming and its choices have lead to a successful partnership between the gaming industry, the cOlllmunities and the SIale 8 In general, the positive effects of the casino industry have far-reaching economic benefits in diverse sectors of the local economies. For instance and nOl by way of limiLatiol1, the following indus-

tries continually directly benefit from the expanded effect of casinos in a local economy: the Real ESlalC Industry; the "Other Business Services" (those busi-

nesses that provide professional services all a contractual fee basis: credit report-

general, the sHive effects of â&#x20AC;˘ caSIno in ust have far-reaching benefits in diverse sectors of the local â&#x20AC;˘ economIes. and the public school system has been completely overhauled.? In fael. gaming revenue has provided $1.400.000.00 of additional funding for the 1994 school year. Clearly. Mississippi has carefully chosen what results il wanted from legal26

The Arkansas Lawyer

Spring 1996

ing, computer programming, temporary staffing. security services. printing services. elc.); the Advertising Industry, the Construction Maintenance Industry (additional construction of casinos as well as on-going maintenance and renovation of the facilities); Electric Utilities: Landscape Architecture and Services; Plastics Manufacturing (wall panels, ceiling tiles, plastic lighting fixtures and other constmction products); Wholesale Trade (Ihe chief funclion of which is to sell goods to trading establishments, contractors or professional business users): Equipment Maintenance and Repair Services (slot machines, heating and air conditioning, video equipment, office equipment, etc.); Banking industry (checking and savings accounts 10 meet payroll and purchase obligations, lines of credit to meet purchase and payroll obligations); Food and Beverage Services (restaurants, bars and caterers); Management Consulting; Attorneys; Accountants; and the Telecommunications Industry.9 In addition to the above economic benefits. the casino gaming industry strives to contribute to and become a viable member of the community wherever it is located. For instance, in Iowa, Ihere is partnership between Ihe casino operators and non-profit local entities whereby the non-profit entities will distribute casino partners contributions to designated charities. educational foundations. development groups and other charitable organizations. IO Indiana requires all casino operators to obtain a "certificate of suitability". This certificale is granted only pursuant to a hearing before Ihe State Gaming Commission whereby it is determined Ihat the casino operator is commining to the community

development through a range of qualified projects. II In Las Vegas. Harrah's Casino brought IOgether four corporate sponsors for the Kids' Cafe which provides one free hOl meal to the neediest children in the area on a daily basis. The Kids' Cafe project also requires that those children 14 and over participate in and give back to the program. 12 In Atlantic City, nQl only have the Rescue Mission and Uniled Way been greatly impacted by the casino industry, but so have the local schools via the Adopt-ASchool program whereby the casino operators choose a school and assist in various areas of the children's education. 13 While the casino gaming industry is cognizant and righlfully proud of its positive effects on the economies of the local communities and its community involvement, it has often found itself unfairly linked with an increase in crime. Specifically, it has been alleged thai casinos cause an increase in street crime as well as bring an influx of organized crime into the host community. 14 Typically. Las Vegas and Atlanlic City are the leading examples used by those who oppose legalized gaming. However, those who cite crime as a reason to oppose legalized gaming. not only ignore the realities associated with legalized gaming, but instead, focus on misleading interpretations of statistics,I5 In fact, Las Vegas is among the safesl cilies in America, and Illinois, the country's foremost river boat casino state has experienced no increase and even some reduction in crime in SOme of ils river boat communities. 16 Numerous law enforcement officials from Joliet. Illinois: Aurora, Illinois; Davenport. Iowa; Alton. Illinois; East St. Louis, Illinois: and Biloxi, Mississippi all unequivocally agree that crime has either not increased or has actually decretlsed as a result of legalized gaming in their communities. 17 Atlantic City is often ciled as another favorile example by the opposition 10 support Ihe claim that legalized gaming increases street crime. Gaming was introduced in Ihe Atlantic Cily Boardwalk in 1978. At that time, the town population included a large number of unemployed and unemployables and was noted for poverty. welfare. and


crime. However. since that time and with the construction of a number of casinos. research has indicated that the individual risk of victimization in Atlantic City was actually less than it was before the advent of casinos. In addition. a higher percentage of crimes are being reported due to the presence of casino related security. 18 Lastly it should be recognized that the claims, made by those who oppose legalized gaming with respect to organized crime dominating the gaming industry, can be easily countered. Today the gaming industry is tightly regulated at several levels: the federal level via the Internal Revenue Service and the Securities and Exchange Commission; the state level via gaming regulations and licensing requirements; and on an internal level via various internal controls relating to financial reporting which recognize the in1portance of the industry's publicity to shareholders, investors and stock analysts. Many of the gaming companies are publicly traded companies who are unwilling to jeopardize their credibility or create the risk of being investigated or prosecuted. 19 The gaming industry is also sensitive to the problems associated with the industry. namely the problem arising from compulsive gambling. As such, the casino gaming industry addresses the issue by committing resources to stop underage and compulsive gambling. Specifically, two such projects are "Operation Bet Smart" and "Project

21".20 Operation Bel Smart educates employees, patrons and the industry about compulsive gambling and provides assistance to those who are battling gambling problems. Project 21 teaches educators, parents, students and casino employees about the dangers of underage gambling. 21 Furthermore, several states require an allocation of a portion of the casino revenues to a Compulsive Gambling Fund to assist in the treatment of a person's addictions to gambling. 22 In conclusion. our State is surrounded by states who are benefiting and growing because of the casino industry. with the most obvious success story being Mississippi. We should not shy away from the benefits the gaming industry offers based on misguided apprehensions. In essence. we have the

benefit of learning from the existing models in other communities. evaluating its strengths and weaknesses and then planning our strategy ensuring thai it would met the goals and integrity of our State. We should, with thorough licensing requirements and an elaborate regulatory scheme, choose those casino operators who commit to our economy. commit to supporting the infrastructure and development of the host communities and commit to becoming a partner and responsible member of the community. As such, the casino industry would be a welcome addition to our State.

Meat. p. 38. Casino Journat (February t996) 13. Katz Herriot. Working to Make a difference iI/ Atlall1ic City, p.58, Casino Journal (February t996) 14. Statement of Jeremy D. Margolis, Former Assistant United States Attorney and Director of Illinois Stale Police al the Committee on the Judiciary of the United States House of Representatives 011 H.R. 497 regarding the National Gambling Impact and Policy Commission Act, September 29, 1995. 15.ld.

END NOTES I. The New York Times Magazine, July 17.1994. as quoted in Harrah's Survey of Casino Entertainmelll, 1995. 2. Harrah's Survey of Casino Entertainment. p. 2 ( 1995)

3. See Professor Robert Goodman: The Luck Business: The Devastating Consequences and Broke" Promises of America's Explosion. (1995) 4. Reifel', This Emperor Has No Clothes, Casino Journal. p. 38, December J 995 5. Testimony of Webster Franklin, Executive Director. Chamber of Commerce, Tunica County. Mississippi at The House of Representatives. COlllmittee 011 Small Business hearing regarding The National Impact of Casino Gaming Proliferation. p. 18 (September 2 t. 1994). 6.ld. 7.ld. 8. Id.

9. The Direct Impact of the Casino Industry: Purchase and Employment Effects in the Major Supply Industries. The WEFA Group. August 1994. The WEFA Group is a leading international consulting firm specializing in analysis of industry and econometrics. WEFA was formed from the merger of Wharton Econometric Forecasting Associates and Chase Econometrics in 1987.

16.ld. 17. Harrah's Survey of Casino Entertainment. 1995. 18. Statement of Jeremy D. Margolis, Former Assistant United States Attorney and Director of Illinois State Police at the Committee on the Judiciary of the United States House of Representatives all H.R 497 regarding the National Gambling Impact and Policy Commission Act, September 29, 1995. 19.1d.

20. Rutherford, The Case for Citizen Gaming. p. 58. Casino Journal (February t996). 21. td. 22. See N.J. Sial. AIIII 45: /2-/45 (Wesl /988). Several states also allocate a portion of louery revenues to programs which treat compulsive gamblers. Del. Code Anll. Tit. 29.ยง 48/5(b)(2) (/994). See also Go Code A'lII. ยง 50-27-24(7/)( /992) (allocating a portion of unclaimed prize money, not (Q exceed $200,000 annually. to lhe Department of Human Resources for the treatment of compulsive gambling and related educational programs). and Minl/. Slat. AIIII.ยง 297ยฃ./6(3)(0) (Wesl /994) (allocating 10% of the proceeds generated by the sale of confiscated gambling contraband to programs established to treat compulsive gamblers).

Rutherford. The CaseJor Citizen Gaming, p. 36. Casino Journal (February 1996) t

t. Id.

12. Kids' Cafe: Serving Hope and a Hot

Conlinue on to Page 28 for the flip side to this issue... 27

The Arkansas Lawyer

Spring 1996


Con by Larry L.

Pa~e.

Executive Director. Christian Civic Foundation or Arkansas

There are several contexts in which one can examine the issue of gambling. Certainly, gambling as it relates to personal morality is one of the more significant contexts. For many people Ihal can

be the overriding factor. However. for purposes here I will

address legalized gambling outside of the moral considerations. even though those are quile significant to me personally. This Iremment of gambling will be within the confines of the economic implications of casino and lottery gambling. I can find no better premise upon which to build lhe economic case against gambling than the definitive stalcmCI1l by Paul Samuelson. the Nobel Prize-winning economist. He said. "There ... is a substantial economic case 10 be made against gambling ... it involves simply steri Ie transfers of money or goods between individuals. creating no new money or goods.... gambling subtracts from the national income:' To conduct a study of Ihe effects of gambling without looking at the costs to Ihe economy and society is simple-minded at best and deceptive at worst. Yel. that is precisely what the gambling induslry and its apologisls do. They finance study after study which invariably presel1l the rosy. but scandalously inaccurate. scenario for (he economic panacea they tout - casinos. lottery gambling or a combination of those. Robert Goodman. a Lemelson Professor of EnvironmeJ1lal Design and Planning at Hampshire College and a fonner columnist for Ihe BOSIOII Globe has done the most objective. serious and scholarly work in this issue over the course of Ihe last four years. As a resuh of his extensive research. he has found the following: "In the course of all Ihis work. I was consistently struck by how much mis· leading information is rOluinely used by decision makers and people in the media to estimate the economic benerits IhaL new gambling enterprises will bring. The 28

The Arkan . . as Lawyer

Spring 1996

research to support these claims was almost always underwrillen by lhe gambling industry itself, carried out by paid consultants. and trumpeted by legislators who were already commilled to the pro· jecls. The result is that critical public pol icy decisions have been made on the basis of complelely biased projections. (Roben Goodman. The Luck Business:' Manin Kessler Books. New York. 1995.

p. ix.) In addition. he found that in the fourteen such studies he analYl..cd. claims of economic benefils were exaggerated. while costs were undersl::ued. Most of the studies could nor be considered objeclive descriptions of economic bene· filS and COSls. (Robert Goodman. Legaliz.ed Gambling as a Strmegy Jor Economic Developmell1. Center for Economic Development. University of Massachusetls at Amhers!. 199-1. p.16.) In light of this. it is imperative that Arkansans receive objective. reliable and balanced information about gambling before they wrile into their state constitution something as serious and significanl a~ tht: It:galiLi.1lion of casino and 101lery gambling. This ankle is an example of the kind of objective data Ihal is needed. The case - the objective caseagainst gambling is really quite damaging to the out of state gambling interests who arc seeking to expand their opera· tions in Arkansas and elsewhere. What follows is a brief summary of the case against legalized gambling as viewed through the economic prism. The New York Times made the following observations: "But even as the $30 billion-a-year gambling juggernaut gains momentum. economists and regional planners are predicting that it will chew up more income than it creates.... Compulsive gambling. bred by easy access. reduces labor produclivity. and has been linked to incrcases in white collar crime embezzlement. fraud and the like. Lnlc· nighl gambling adds to Ihe cos I of polic-

ing traffic. not to menlion the toll from drunk driving and other alcohol-related violence.... these eXlernalities equal roughly half the revenues of casino gam· bling - and these costs. ultimalely borne by Government, are far more than the direct and indirect laxes on the industry:· (peler Passel!. ''The False Promise of Development by Casino:· The Nell' York Times. June 12. 199-1.) Research highlighted in that article also found thm the amount of taxes collected by a state on gross casino receipts per person were fony dollars. Thai is contrasted with Ihe average cost per per· son of I\VO hundred dollars. These COSIS "include regulatory oversight legal services linked wilh criminal aClivity. and losl job productivity associ.lled with addicted gamblers:' (Passell. The New York Times .) Professor John Kindt of the University of Illinois concludes that for every dollar of gambling revenue received by the state. taxpayers must put up a minimum of three dollars to cover expenses created by gambling. He found these costs include infrastructure expenditures. regulatory costs. expenses related to the criminal justice system and large social-welfare costs. (John Kindt. Slalemenl before a hearing of Ihe U.S. House of Representatives Committee on Small Business. Seplcmber 21. 1994.) Conneclicut conducted a study of its 1991 gambling industry. Its findings were nothing shOl'l of shocking. The stale generated 362 million. bUI al a whopping cost of $554 million. (Earl Grinols. ··Bluff or Winning Hand? Riverboat Gambling and Regional "Employment and I1cmployl1'lent:' Illinois Business Redel\'. niversity of Illinois at Urbana-Champaign. Spring 199-1. Volume 51. limber 1. p. 8.) Maryland. a state that docs not have casino gambling. but does permit IOllery. horse racing. slot machines and bingo. did" two-year sludy of its gambling operations. The Slate found that gam-


bling costs its taxpayers $1.5 billion annually in lost work productivity, unpaid taxes. bankruptcies, gamblingrelated criminal activity and other considerations. (Maryland Department of Health and Mental Hygiene, Alcohol and Drug Abuse Administration. "Final Report: Task Force on Gambling Addiction in Maryland," 1990. p. 2.) In his study conducted for the Ford Foundation. Robert Goodman refers often to the "cannibalization" of nOI1gambling businesses, a term which he uses to describe the substantial declines in both jobs and revenues experienced by

many nearby enterprises. Money for gambling is usually diverted from people's discretionary

expenditures. Not only are dollars diverted from other products and services. but

governments often lose sales taxes which would have been spent on those products

and services. (Goodman, Legali:ed Gambling. p. 5/.) In addition to boasting about the huge boon to state revenue thal comes with gambling. the promoters of gambling make wildly exaggerated promises of new. good-paying jobs as a result of gambling expansion. These promises soon prove lO be empty. University of Illinois economisl Earl Grinols made a sludy of ten Illinois counties in which casinos were opened between 1990 and 1993. He concluded that the net effecl of gambling was lhal roughly one job was lost for each gambling job crented. (Earl Grinols, Testimony before a hearing of the U.S. House of Representatives Committee on Small Business, September 21. 1994.) In 1993. Bostoll Globe reporters Mitchell Zuckoff and Doug Bailey reported that gambling operations generally offer "Iow-paid service jobs that provide no transferable skills." (Doug Bailey and Mitchell Zuckofr. ·'Cities Weigh Quick Cash vs. Social Costs;· BOSlon Globe, September 30. 1993. p. I.) They found that casino promoters often innare lhe average wages of gambling workers by including lhe salaries of a few highly compensated executives. A recent Arkansas Law Revieu' article authored by John Kindt pointed out that "Iegalized gambling is nol a 'painless lax.'" It goes on to state: " ... gambling is del1nitely not painless. especially to that 10'70 of the population

"In addition to boasting about the huge boon to state revenue that comes with gambling, the promoters of gambling make wildly exaggerated promises of new, good-paying jobs..." who will become problem economic gamblers (PEGS) or the 1.5% to 5% who will become compulsive economic gamblers (CEGS). A guaranteed 10% of practically any U.S. population base will redirect proportionately large amounts of consumer dollars away from the preexisting economy and transform those dollars inlO gambling dollars once gambling is legalized by the state government (i.e.. the ·acceptability factor')'·. (John Kindt. "Legalized Gambling Activities as Subsidized by Taxpayers:' Arkallsas um' Reviell'. Volume 48. Number 4. 1995. p. 896.) Robert Goodman concludes in his

study what should be obvious to everyone. There is "a direct increase in the numbers of people with pathological gambling problems as a result of increases in legalization:" (Goodman, Legali;.e(1 Comb/iI/g. p. 9.) Howard Shaffer, head of the Harvard Medical Schoors Cemer for Addiction Studies, estimates that between 3.5 to 5% of those exposed to gambling will develop il1lo pathological gamblers: the percentages are even higher for adolescents and young adults. (Stephen Simurda. ··When Gambling Comes (Q Town," Columbia Journalism Review. January/February 1994. pp. 3638.) 29

The Arkansas Lawyer

Spring 1996


The chair of the research committee

for lhe Nalional Council on Problem Gambling, Rachel Vol berg. has determined that the annual cost to the public

of the average palhological gambler is S 13,600. That figure is arrived at by considering 10Sl income due to gambling behavior. prosecution and incarceration

costs for gambling-related crimes and "bailout costs" -

money given by others

to meet financial needs crealed by gambling losses. (Goodman, Legalized Gambling. pp. 61-63.) Olher expens have pUl the figure as high a S52.000. (John Kindt. "The Economic Impacls of Legalized Gambling AClivilies:' Drake Law Review. volume 43. 1994.) ESlimales of the extent of the pathological gambling problem suggesl lhal as

alional

Council on

Problem and Pathological Gambling. Inc.) The seriou~ problems associated with compulsive

gambling affect more than the

gamblers and their families:

sociely has to pay a staggering amount as a

result of that irresponsible

many as ten percent of American adults

behavior. Henry

may be afilicted. ("Relying on Gambling is Taking a Long Chance," USA Taday. April 6. 1994, p. 12A.) Gamblers

chairs the

Anonymous estimate that there may be as many as 10 million compulsive gamblers in the country. That's an increase

from 3 million in 1986. (Earl Eldridge, "Nation's Steamy Love Affair with

Gambling Still Growing," Gannett News Service, May 19. 1994.) By every indicia, the plight of the compulsive gambler and the circumstances of the members of the gambler's

family are desperate indeed. One of five pathological gamblers attempts suicide. The spouse of a male compulsive gambier i three times more likely to attempt suicide than her counterpan in the gener-

al population. Stress-related physical illnesses in the spouse of a male compulsive gambler are eight times more com-

mon than in the general populalion. (The ational Council on Problem and Palhological Gambling. Inc.,"The eed for a alional Policy on Problem and Pathological Gambling in America". 1993) Children of pathological gamblers do worse in school than their peers. are more apt to have alcohol, drug. gambling or eating disorder problems. and are

more likely to be depressed and attempt suicide twice as often as their classmates. Two of three pmhological gamblers eventually commit illegal acts to

pay gambling debts. A study of gamblers in recovery found that 47% of them had engaged in insurance fraud or thefts in which insurance companies had to pay 30

the victims.

(The

The Arkansas Lawyer

Spring 1996

Lesieur, who depanment of criminal justice

at Illinois Slate University, has found that compulsive gamblers engage in an

eSlimaled SI.3 billion in insurance-related

fraud each year. (Henry Lesieur. "Compulsive Gambling:' SnriPT)'.

May/June 1992. p.45.) In terms of the costs that would be associated with a two

As n w gambling ventures drai potential investment capit I for other businesses, as ex'sting businesses lose more 0 e â&#x20AC;˘ consumer dollars to gambling ventures, more businesses are being pushed closer to decline and failure...

billion dollar casino proposed for the city of Chicago.

Professor John Kindl calculated that lhe increased criminal justice costs for the

complex would have exceeded one billion dollars. That sum would represent a 40 to 50% increase in cost of the state's criminal justice system. (John Kindt. "Increased Crime and Legalizing

Gambling Operalions: The Impact on the Socio-Economics of Business and Government;' Criminal UlIV Bulletin,

NovemberlDecember 1994, pp. 552554.) Perhaps some focus ought to be brought to bear on the lottery. In some

ways. lhe lottery can be described as the most insidious form of gambling. Two

features of the 10ltery justify thaI description. First. the regressivity of the lottery as a tax is such an established fact that even the 1110st clever economists

hired by the lottery proponents can nOl convincingly refute it. Second. since the stnte operates the

lottery with lhe knowledge of the 1011 it takes on the economically disadvantaged. it is a case of the state acting as an economic predator of its weakest citizens. The studies that demonstrate the inefficiency and counterproductive nature of the lottery are numerous.


Thomas Jones and John Amalfitano in their book America's Gamble highlighted a study of the equity of state lotteries that was conducted by the Sociology Department of the University of Connecticut. 'The report concluded thaI the Connecticut lottery primarily allracts poor. unemployed. and less educated players. The study recommended the discontinuance of the IOllery. claiming that it is a regressive means of raising state revenue:' (John Amalfitano and Thomas Jones. America's Gamble:

Public School Finance and Srate Lotteries. Technomic Publishing Co.. Inc.. Lancaster. 1994. p. 55.) Two Olher imponant finding by Jones and Amalfitano have to do with the inefficiency of the lottery and the poor revenue source that it represents. They stated, "As a fund-raising device. the state lottery is also criticized as being deplorably inefficient.. .. Inefficiency in taxation suggests excess costs to the taxpayer and taxing jurisdiction." (Amalfitano and Jones, p. 61.) They discovered that on average 10llery states spend 40 cents to raise one dollar through the lottery. "Viewed as a tax. lotteries are incredibly costly to administer." (Amalfitano and Jones. p. 62.) But doesn't the louery provide desperately needed resources to education. making it attractive to states that lack sufficient assets to fund their obligations to provide public education? That is the selling point that is invariably offered up by the louery proponents. Lotteries do contribute millions to elementary and secondary education. This is indisputable. But the lottery funds are used in place of other funding. Some work suggests that funds for basic programs are actually eroded overall as 101lery revenues become the norm. If using lotteries for education does not result in significant fiscal enhancement. then lotteries produce no education benefits. This assumption has imponant implications for education policy. The gamble that loueries actually would improve America"s public schools or their funding is a gamble we can surely say is already lost. (Amalfitano and Jones. pp. 149-150.) A very thorough and extremely accurale research sludy was performed by Mary Borg, Paul Mason and Stephen Shapiro. They compiled Iheir findings in

the book The Ecollomic COllset/uellces of Stale wfferies. The conclusion they reached are not good news for lottery proponents. Borg. Mason and Shapiro found. among other things. that lhe 101lery is "not an equitable way of raising state revenues:' (Mary Borg. Paul Mason and Stephen Shapiro. The Economic COl/sequences of State Lofferies. Praeger. New York, 1991. p. 32.) ..... there is consensus from most economists that earmarking lottery funds does not work. Most studies conclude that 101lery funds only supplant funds from the general revenue for their designated beneficiary:" (Borg. Mason and Shapiro. p. 14.) They went on to say: As a result in all regards. lotteries have likely increased the inefficiency of state government revenues and have probably done lhe same to expenditure policies indirectly. Therefore, even while ignoring the equity implications of state lotteries. which are also quite negative. state lotteries are a bad deal for state governments and their constituencies. (Borg, Mason, and Shapiro. p. 48.) The authors sum up their findings with this statement." ... the lotteries have done much more to hann education in the states lhat employ them lhan they have done to help:' (Borg, Mason and Shapiro, p. 47.) Knowing that. why would any state be giving any kind of serious consideration to instituting a lottery? Robert Goodman makes some very astule statements and asks some pene· trating questions in the preface to his book, The Lllck Bllsilless. I think it fitting to close with lhese thoughts and questions - questions that we Arkansans will soon have to answer. I trust we will have the good sense to examine this issue fully before casting our votes next November. Professor Goodman proposes the following: As new gambling ventures drain potential investment capital for Olher businesses. as existing businesses lose more of their consumer dollars to gambling ventures. more businesses are being pUshed closer to decline and failure. more workers are being laid off. and enormous public and private costs are incurred to deal with a growing sector of the population afnicted with serious gambling problems.... do we rcally want

our governments so dependent on gambling that they are forced aClively to promote an activity that takes disproponionately from those who can afford it least. does great damage to existing economies. and can be highly addictive? If governments are going into business. couldn't they find alternatives that create less trouble and offer more real longterm economic and social value? (Goodman. Lucky pp. xiii -xiv. ) The case against casino and lottery gambling is solid, compelling and persuasive. Arkansas can do better than what the ganlbling promoters have t.o offer. The Natural State should remain just that.

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Timing is Everything Continued From Page 13 praclice. 28 problems continue to ari e. In fact. some aHomeys probably agree with Justice Darrell Hickman's conclusion "that it is hazardous for a lawyer to file any motion for postjudgmenl relief:'29 For example. some confusion apparently exists as 10 the applicmion of Rule 4(c) when a posttrial motion is filed by one but not all of the defendants. This is so despite the fact that the rule "clearly provides that when allY party files a specified posllrial motion. the time for appeal for al/ parries runs from the entry of the order disposing of the motion or from the deemed-denied date:' 30 AnoLher question is the effect of posttrial motions not mentioned in Rule 4(b). What. for instance. happens to the time frume for the notice of appeal when a motion for remittitur or a motion for stay is filed? By its terms. Rule 4(c) applies when "a timely motion listed in section (b) of this rule is filed in the trial court ... :' Not surprisingly. the Arkansas Supreme Court has held that motions "not contemplated" by Rule 4(b) do noL cxtend the period for filing Lhc notice of appcal 31 On a related point. the court has concluded. quite reasonably. that an amendment to a posttrial motion covered by the rule relates b~lck to the date on which the original motion was filed and docs not commence a new thiny-day period for the trial judge to act. 32 A different problem OCCllr~ when the posttrial motion is made prior to the entry of judgment. That was the situation in

Finf Pyramid Life Insurance Co. \'. Slollo 33 After the jury returned its verdict but before a judgment was entered. Fi"t Pyramid filed motions for JNOV and a new trial. Thc trial court entered a final judgment in accordancc with the verdict about two weeks later. having previously held a hearing on the motions. On the day following entry of the judgment. First Pyramid filed a not icc of appeal. Stoltz claimed that the notice was premature: because the trial judge had never entered a formal order disposing of the posttrial motions. he argued. they were not "deemed denied" until well after the notice had been filed. The supreme court disagreed. holding that the final judgment consistelll with the jury verdict necessarily renectcd the trial judges dcnial of First Pyramid's mol ions. 34 3-1

The Arkansas Lawyer

Spring 1996

On occasion. lawyers and trial judges seem to forget the significance of Rule 4(c)"s thirty-day deadline for action on a posttrial mOlion. The burden falls on the attorney to obtain a ruling on his or her motion within this period. 35 and a belated decision is irrelevanl insofar as the timing of the notice of appeal is concemed 36 Indeed, the supreme coun has made plain that the trial coun has no jurisdiction to act on the motion beyond the thirty-day period 37 The notice of appeal nlso has an impact on the filing of the record on appeal. Under Ark. R. App. P. - Civ. Rule 5(0). the record must be filed with the clerk of the supreme coun and court of appeals "within 90 days from the filing of the first notice of appeal." unless an extension is granted by the trial coun. 38

Rule 5(b) provides that the time may not be extended "more than seven (7) months from thc date of the entry of the judgment. decree or order. or from the date on which a timely postjudgment motion under Rule 4(b) is deemed LO have been disposed of under Rule 4(c). whichever is later:' 39 These provisions seem relatively straightforward. except for the fact that Rule 5(b) apparently establishes as the swning point the date on which a posttrial motion is deemed denied. even if the trial coun actually rules on it in a timely fushiol1.~O However. application of the rule is not so clear in a case with multiple defendants who file posltrial motions. In Pennington v. J-ItlITeSf foods. l"c.. 41 the supreme coun divided sharply on the issue. The nine defendants in that case sought to appeal a judgment entered on October 25, 1994. Three filed postlrial motions covered by Rule 4(b) on ovember 4. and the others followed suit on November 7. The trial court entered an order on December 7 denying all motions. and timely notices of appeal were filed. On February 17. 1995. all nine defendants jointly moved for a sevenmonth extension pursuant to Rule 5(b). asking that the deadline for tendering the record be pusbed back to July 7. The trial court granted the motion but did not specify a date. and the record was subsequently filed on July 7. In a motion to dismiss Lhe appeal as to the three defendants who filcd posltrial motions 011 November 4, Lhe plaintiff-appellee argued LhaL (I) those

motions were deemed denied pursuant to Rule 4(c) on Dccember 4. and (2) the trial coun's extension for filing the record could not. under Rule 5(b). extend past July 5. The supreme coun agreed in a ~ curiam upinion joined by four justices. Rule 4(c) deals specifically with the posttrial motions of Illultiple parties. the court said. and was intended to eliminate confusion over the time frame for the notice of appeal when multiple panies have filed posllrial motions. Rule 5(b). however, is silent on thc mailer and need not be construed in the same fashion because of "the discretion each party has in designating the record on appeal:' Accordingly. lhe court read Rule 5(b) literally and granted the appellees motion. 42

C. Rule 54(b) Another twist in cases with multiple parties involves Rule 54(b) of the Arkansas Rules of Civil Procedure. As suggested previously. the time for filing the notice of appeal may vary depending on the posture of thc casco When the trial court certifies a claim for immediate review under Rule 54(b). the lime for filing the nOlice of appeal should. in general. begin to run upon the entry of final judgment pursuant to the certification.~3 If the judgmcnt is entered first. however. the relevant date is apparently the filing of the certification. for thc judgment is not appealable ulltilthe trial court so cenifies.+I While these questions have not been squarely answered by thc supreme coun. it is clear that the trial judge cannot enter the necessary Rule 54(b) certification. mlllc pro tunc. after the record has been dockeLed in the appellate cOllrt 45 Suppose, however, thm the certification occurs before the record is lodged but after the nOlice of appeal has been filed. The general rule. of course. is that a notice of appeal filed prior to entry of a final judgment is ineffective.46 and finality in a Rule 54(b) case depends upon certification. Nonetheless. the supreme coun has held that a premature not icc of appeal is effeclive in this situation and. accordingly. that a new notice after certification is 110t necessary. -17 This approach is consistenL with that taken by the fedcral courts. which have held thm certification validates a premature notice of appeal. 48 Continued


III. Conclusion My friend was righl. Timing is everything. especially with regard 10 appellate practice in Arkansas. NOTES I. Eddillg~ I'. Lippe. 3Q.t Ark. 309. 802 S. W.2d 139 ( 1991): Hawki/ls I'.

SUIte Farm Fire & Cl/S/lllll)" Co.. 302

Ark. 582. 792 S.W2d 307"( 1990): Burris I'. Burris. 278 Ark. 106. 643 S.W.2d 570 (1982); LaRue \\ ulRue. 268 Mk. 86. 593 SW2d 185 (1980).

E.g .. Robinson v. O'Bryan. 320 Ark. 95. 894 S.\V.2d 921 (1995): Hawkins v. Stale Farm Fire & Casualty Co.. 302 Ark. 582. 792 S. w.2d 307 (1990).

2.

s(~(! gl'fU'rlilly Kelly 1'. Kelly.

310 Ark. 244. 835 S.w.2d 869 (1992). Ark. R. ApI'. P. - Gv. 4(f). as amended in 1995. provides thaI "lal notice of appeal fi led on the same day as the judgmem. decree. or order appealed from shall be effective:' See III re Notices ojAppelll flied before 3.

Jlldgl/ll'llts.

321 Ark. 699. 900 S.W2d

560 (1995). Prior 10 this amendment. a notice was ineffective if filed on the same day as. bUi only minutes before. entry of the order. E.g.. Ll/lvre/lce Brothers. Inc. I'. R.J. "Bob" Jones E.w:m'olillg Cotllracfor. IlIc.. 318 Ark. 328.884 S.W.2d 620 (1994).

4. Kelly I'. Kelly, 310 Ark. 244. 245. 835 S.W.2d 869. 870 (1992). To be finaL an order "must be of such a nature a~ to not only decide the rights of the partic~. but to put the court's directive into execution. ending the litigation or a separable pan of it:' Id. a! 245. 835 S. W.2d at 871. Under Ark. R. Civ. P. 54(a). the term "judgment" includes "a decree and any order from which an appcallies:' 5. AllJerlY I'. Widema". 312 Ark. 434. 850 S.\V.2d 3[4 (1993): Mueller I'. Killam. 295 Ark. 270.748 S.W2d 141 (1988). 6. Ark. R. App. P- C;v. 2(a)(3). (4). (8) & (9)

7. As olle court has observed. the rule is nOt so much an exception as it is "an adjunct to the requirement of finality." RePass I'. Vreeland. 357 F.1d 801. 804 (3d Gr. 1965). 8. Maroney I'. CilY of Mah'em. 317 Ark. 177. 181. 876 S. W.2d 585. 587 (1994); lVifliamwm I'. Miumer. 316 Ark. 192. 194.871 S.W.2d 396. 398 (1994). The record musl reneci the disposition of all claims and parties. £.g. SOllrh COllllty. Illc. I'. First Western L/}{III Co.. 311 Ark. 501. 845 S.W.2d 3 (1993).

9. Bam!wfl \'. Cil)' of !:"ayeuel'il/e. 316 Ark. 742. 744. 875 S. W.2d 79. 81 (1994). 10. McCmn I'. Johllso1l. 196 Ark. 231. 755 S.\V.2d 566 (1988). II. This tern, does not appear in Rule

54(b) but is frequently u~ed. £.g, f)rigger.f I'. Locke. 323 Ark. 63. 66. 913 S.W.2d 269. 270 (1996): Reel'e!t' I~ flillkle. 321 f\rk. 28. 30. 899 S. W.2d 841. 8..J2 (1995): Cortese I'. Atlal/lie Richfield. 317 Ark. 207. 209. 876 SW2d 581. 582 (1994).

12. Mllrry AI/ro/llobi/~

I'.

Stale Farm Mutllal

"1.\. Co.. 291 Ark. 445.

725 S.\V.2d 571 (1987): Tulia I'. Arkansas BIlle Cm,\',\' & Blue Shield. 283 Mk. 278. 675 S.W.2d 369 (1984). 13. Ark. R. Civ. P. 54(b). The Arkansas Supremc Court has cmpha+ sized Ihm "strict compliance" with these requirement50 i~ necessary. St. Palll Fire & Marilll' IllS. CO. I'. Fir,~r Commercial Bank. 304 Ark. 298. 300. 801 S.w.2d 652. 653 (1991). 14. £.g.. CilyofMarilllllla 1'. Arkansas Mllnicip€11 Leaglle. 289 Ark. 473.712 SW2d 305 (1986).

15. Kefly I'. Kelly. 3 [0 Ark. 2-1-4. 835 S. W.2d 869 (1992).

16. £.g.. Bi,,"s I~ Heck. 322 Ark. 277.908 S.W.2d 328 (1995) (notice of appeal. while reproduced in an appendix to appellant's brief. did nOi appear in the record. and appellant did nOt liIe a motion to supplement the record to include it): £dditf8S \'. Lippe. 304 Mk. 309. 802 S.W.2d 139 (1991) (nothing in the record indicmed that the trial court ever ruled on appel+ lant's motion for new trial). [7. A notice IiIcd in the wrong court. even if timely. is not sufficient Rossi I'. Rossi. 319 Ark. 373. 892 S.W.2d 246 (1995). The contents of the notice arc sct out in Rule 3(e): the name of the appellant: the judgment. decree. or order being appealed: the contenLS of the record on appeal: and a statemcnt thm the appellant has ordered a transcript. While substanti..l compliance with this provision is sufficient. an appeal will be dismissed if its requirc+ ments are complelely ignored. Johl/so/l I'. Ca"l,enrer. 290 Ark. 255. 718 S.\V.2d 434 (1986); Hilt/SOli 1'. HlIllsolI. 277 Ark. [83.641 S.\V.2d I (1983). A proposed amendment to Rule 3(e) would ft.--quire a statement that the appellant ha~ "made any financial arrangcmcnts required by the court reporter" ror preparation or the t.ranscript. puriluant 10 Ark. Code Ann. § 16-13-510(c)(RepL (994). 1111'1.' Recomme"dflt;otl.f of rhe A rklmslIs Sf/preme COllrt Commiuee 0" Cil'if Practice. 322 Ark. No.6. appendix. 908 S.W2d No.3. LXXVIII (November [3. 1995). 18. This paragraph also state.. a notice of cross-appeal lllUSt generally be filed within ten days after receipt of the notice of ;Ippeal. However, the cross-appellant h:1S at least thirty days from the entry of the judgment. dl.:cree. or order in which to acL Confusion lllay arise in detemlining whether a litigant should tile an origi+ nal appeal or a cross+appeal. e.g.. JOhllSOIl I'. Carlu'lIlet. 290 Ark. 255. 718 S.W2d 434 (1986). or whether an appellee mu<;{ Cfos..-appeal tQ rai~e a particular issue in the appellate court.

£.g.. Moose v. Gregory, 267 Ark. 86. 590 S.W.2d 662 (1979).

19. Effecti\'eness is governed by Ark. R. Civ P. 58. under which a judgment or decree is not effective unless it is a separ.l.te document "cntered as provid+ cd in Administrative Order No.2:' As used in the order. the term "entered·' refers to the clerk's nOlation of the judgment or decree in the docket book. Consequently. the date of rendi+ tion i<; immaterial. S,mulridge I'. Standridge. 298 Ark. 494. 769 S.W.2d 12; Morrell I'. Morrell. 48 Ark. App. 5..J. 889 S.W2d 772 (199..J). For pur, poses of taking an appeal. however. Rule 4(e) defines "entercd" to mean "filed with the clerk:' Unfortunately. the RCl>oner's Notes accompanying Rule 58 muddy Ihe water somewhat. According to the notes. "for appeal purposes, the date of entry or filing of lhe judgment or decree is the effective dale. as opposed to the date of rendition." On at least one occasion. the Arkans.15 Supreme Court has cited this statement in conncction with the timing of a notice of appeal. See Kelly v. Kelly. 310 Ark. 244. 835 S. W.2d 869 (1992).

cussed in nOie 3. supra. Although Rule 4(1) mentions only a notice filed on Ihe same day as '"Ihe judgment. decree. or order appealed from:' it was clearly intended to apply as well when the notice is filed carlier in Ihe "'ame day as an order disposing or a posttrial motion. See Coun's Comments to Ark. R. App. P.-Civ. 4(f) (this provision "overrules" Lawrence IJro.f" lllc. I: R.J. "Bob" Jones Excal'{lting Co1ltractor. Inc.. 318 Ark. 328. 884 S.W.2d 620 (1994). which held ineffective a notice of appeal filed on the same day as. but prior in lime to. entry of the Irial judge's order denying a mOl ion ror JNOV). However. Rule 4(1) docs not address the situation in which the notice of appeal is filed on the same day that a posurial mOl ion is "deemed denied:' In contrast, the criminal appellate rules expressly provide that a notice of uppeal is effective if "filed on the same day lhat the judgmel11 or order appealed from is eillered or on the day that a posnrial motion is deemed denied...:' Ark. R. App. P.Crim 3(b). Accordingly, the Kimble case cilcd in note 26 presumably remains good law in civil cases.

28. See Kelly I'. Kelly. 310 Ark. 244. 835 S.W.2d 869 (1992): Blish I'. Blish. 306 Ark. 513. 816 S.\V.2d 590 (1991): Phillips I'. Jacobs. 305 Ark. 365. 807 S.W2d 923 (1991). As the supreme court has pointcd out. cases applying the fonner version of Ihe rule may be misleading. See Blish I~ !Jush. SlIpra: Knight I'. AlIslllle !IIS. CO.. 300 Ark. 203.779 SW2d 138 (1989) (Punle. J.. concurring).

20. Schaefer I'. Me.:Chee, 284 Ark. 370.681 S.W.2d 353 (1984). Accord. Arkllltsa.f Dep't of HlllnlU/ Sen'ices I'. flrm/y. :316Ark. 119.871 S.\V.2d 352 (1994): HawkillS 1'. Stale Fan71 Fire & Ca.walIY CQ.. 302 Ark. 582. 792 S. W.2d 307 (1990). 21. Arklll/saJ SWle Highway Comm'" I'. Phifrile f){'I·t'lopmellt, !IIC .. 30 Ark. App. 88. 782 S.W2d 595 ([990). Even if the appellant failed to receive notice of the judgment. the trial court cannot act to cxtend the time when more Ihan sixty days havc passed since the notice of appeal was due. JOlles-Blair CO. I'. Hammett. 51 Ark. App. 112.911 S.W2d 263 (1995).

29. Poole 1'. Poole. 298 Ark. 550. 551. 768 S. W.2d 544. 545 (1989) (Hickman. J.. concurring). A lawyer who docs so, Justice Hickman warned. will enter a "maze" of rules and dccisions that qualify for the "Scrbonian Bog" award. Id.

25. For u case involving not one but two prcmature notices..Iee Glol'er I'. Ltmgford. 49 Ark. ApI'. 30. 894 S.W.2d 959 (1995).

30. Cmig I'. TtIJlor. 323 Ark. 363, 366.915 SW2d 257. 258 (1996) (emphasis original). The plaintiff in CJ:gjg won a jury verdict against one defendant after the other had successfully movcd for summary judgment. Shortly after a judgment was entered in accordance wilh the \erdict. the plaintiff filed a notice of appcalto attack the summary judgment. The appellee moved to dismiss the appeal on the ground that the notice was pre+ mature. having been filed prior to the other defendant's motion for JNOV and the trial court's denial of the motion. The supreme coun W:1S clearly prepared to :Igree but pointcd OUI that the record did not include the motion for JNOV and the order. if any. disposing of it. "On the record before us:' the court said. "appellant's notice of appeal was filed within thirty days of the final judgmcnt and was therefore timely." Id.

26. Kimble" Crt/y. 40 Ark. App. 196.842 W2d 473 (1992). af!,d. 313 Ark. 373. 853 S.W.2d 890. Accord. Glol'er I'. umgford. 49 Ark. App. 30. 894 S.W.2d 959 (1995).

31. Pel/nil/gtoll" Han'eSI Foo<ls, IIIC., 322 Ark. 820. 823, 913 S.\V.2d 758.759 (1995) (motion for remittitur). Acconl, McCraw,'. McCraw. 46 Ark. App. 236. 878 S.\V.2d 3 (1994)

27. See Ark. R. App. P.- Civ 4(f). dis+

Continued on Page 40 Timing is Everything End Notes

22. See Reporter's Notes to Ark. R.

Civ. P.58. 23. Addition to Reporter's NOles. 1986 amendment to Ark. R. App. P.Civ 4. TI,c federal rules comain a similar provision. added in 1991. See Fed. R. App. P. 4(a)(6). As an additional safeguard. the clerks or federal district courts arc required to prornpt+ Iy mail copies of judgments and orders to all partie~. Set' Fed. R. Civ. P. 77(d). Strong objections from the st:lle c1erl..·s association doomcd a propo"..1to add such :t requirement to the Arkansas rules.

24. See Ark. R. Civ. P. 50(b). 52(b) & 59.

35

The Arkansas Lawyer

Spring 1996


Writing a Losing Brief Continued from Page II uncomfortable. With very little effort, you can achieve the same effect on p3per and

in the reader's brain. Put text into long, long paragraphs. There's nothing like Illrning a page and seeing a mass of words, unbroken by indentation or white space. But don't stop there. Fog your sentences. too. Use of the passive voice and insertion of strings of long prepositional phrases, coupled with the particularly effective technique of using many, many words 10 separate the subject of the sentence from its verb, are among the most successful methods employed by the masters of fog. So there you have it, ten proven ways to keep your brief from being read. Choose from a panoply of technical violalions of the court fules. Employ clumsy, wooden writing. Dull the attention of appellate readers. who will find it far easier La put down the brief than to scour it for some redeeming value. Do your part to accelerate the appellate process. Write the losing brief.

Coleen M. Barger is aI/ instructor at the Unil'ersily ofArkansas at Little Rock School of Lt,W. where she teachesjirstyear legal writing and lipper-level appellate advocacy. and in her spare lime. coaches moot court teams. ENDNOTES

I. I couldn't find a case that s:lid thi!>. hUI for ~nl1l'" rCi!son I think it's true. Write a leller to the Arkm/sll.\" ulII'yer if you find an authority thllt S3yS otherwise. 2. Here arc just :I few examples: Andrew L. Frey & Roy T. Englert. Jr.. How /0 Write II Good AppelfClfI! Brit,!

L1TIG .. Winter 1994. at 6: Girvan Peck. WRITING PERSUASIVE BRIEFS (1984): Robert Barr Smith. PersullsiOIl on Appeal, 41 OKLA. L. REV. 463 (1988).

3. See, ",g.. Ark. R. S. 0. 4-1(d): "Non-compliance. Briefs nOl in compliance with this Rule shall nOI be accepted by the Clerk:' Or try Ihis one. Ark. R. S. Cl. 4-2(c). which says it a lillie differently: "NonCompliance. Briefs not in compliance with the format required by this Rule shall not be accepted for filing by the Clerk:' 4. For Arkan~..s rules governing the length of the argument. see Ark. S. Cl. R. 4-I(b) (civil) and 4-3(e) (criminal). For fedcr:tl appeals. see Fed. R. App. P.28(8). 5. Su Ark. R. S. Cl. 4-2(a)(6).

6. See Ark. R. S. Ct. 4-I(a): "The margin [ltthe top. allier edge. and bottom of each page shall not be less than one inch ... :' The feds make you subtr:tct fractions 10 figure out the 1113rgins: "[Briefs) shall be bound in volumes hllving pages not exceeding 8 1/2 by II inches and typed mailer not exceeding 6 1/2 by 9 1/2 inches ... :' Fed. R. App. P. 32(a).

36

The Arkansas Lawyer

Spring 1996

7. See JOlles v. 101l,.S, 320 Ark. 157, 896 S. W.2d 431 (1995). After deciding lones, the Arkansas Supreme Court amended Rule 4- l(a) to read: 'The style of print shall be either mono-spaced. measured in characters l)Cr inch. not 10 exceed 10 chamctcrs per inch. or produced in a proponional serif font, measured in point sizes. nOi to be less than 12 poinls.. 8. See Hellry I'. Eberhard. 309 Ark. :nn. R12 S W 2d 467 (1992) (striking all p3ges in the brief that contained language offensive and disrespectfUl to the trial judge).

9. See McLemore \'. Elliott. 272 Ark, 306. 614 S.W.2d 226 (1981) (striking brief in its entirety). 10. Your opponent's brief will probably respond thllt in such inSlances. the stand3rd of review is abuse of discretion. but this just means thai he or shc had to put in SOllle research time to find out whal the heck Ihe correct

standard was. The coun gCt.. the right information. and you gel to avoid a trip to thc library. II. The Federal Rules of Appellate Procedure suggest that you use namcs or descriptive nouns in~tcad of the potentially confusing Icnns "appellant" and "appellee:' See Fed. R. App. P. 28(e). But don't give in. 12. The quot3tion comeo: from the Commenl to Rule 3.3 of the Arkansas Model Rules of Professional Conduct. 13. I have absolutely no authority for the foregoing statistic, but you get the idea. 14. Rumor has it that !>Oftr/! courts aClu:llly put these goofs on II hI/linin board for the amusement of llll coun personnel.


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Spring 1996


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NonPartisan Judicial Elections Continued from Page I ill name ollly. that panies still suppon certain candidates over others on a formal endorsement or informal endorsement basis. True nonpartisan elections may exacerbate the campaign financing problems of the candidates because contributions may be more difficult to obtain and campaign costs higher because of the greater difficulty candidates will have in getting their message across. Some contend that the electorate is actually more in the dark about nonpartisan judicial elections than in partisan ones. At least in partisan elections the electorate has some reference points for the electorate such as party identification and its normal philosophical meanings. In addition. nonpartisan elections draw lower voter interest and participation. voter decisions are made on the bases of incumbency or ballot labels. such as judge. or district allomey.5 These resuhs are hardly all endorsement of the nonpartisan election system. It seems to me that Arkansas would be better off retaining its current system than to go to nonpartisan elections. It is not the type of reform that is needed and I fear that if adopted. the legislature will think it has properly reformed the system. 6 I have heard three general critici ms of merit seleClion. I will brieny address them. First. merit selection substitutes one political system for another. This complaint goes both too far and too little. Indeed. in a democratically based republic. all systems for selecting our representatives, including members of executive. legislative and judicial branches. involve some element of politics. Unless we selected these persons by some ulliversallollery. politics will affect the selection is some way or other. My salient point here is that the evils of the "politics" of merit selection plans pale in significance when compared to the evils of the "politics" of contested elections. Isolated examples of abuse (and I believe the record proves that they have been isolated) of a merit selection plan have been elevated by some to condemn a system that has worked efficiently. fairly and effectively in the overwhelming vast majority of situations. The second objection expressed to me by severnl current and want-to-be judges is that they resist merit selection because

"they would not be able to become judge under such a system:' I don't understand this. If these people are saying they are not qualified to be a judge then they should not be one even under an election system. In practice. however. merit selection will not only cull out incompetent and unethical lawyers it will encourage a greater number of lawyers to seek judicial office. These atlributes are hardly valid criticisms of a merit selection system. learly an inference of personal incompetence is not what these judges and lawyers mean. None of the current or want-to-be judges mean they are not competent or lack merit. This leaves the inference. or more accurately the perception. that merit selection has an unwritten criteria which excludes a vast number of lawyers from consideration. My observation of the experience in Wyoming is that this is not true. Merit selection committees decisions are based on ability and performance; all characteristics that the nay-sayers apparently possess. The only difference is that the field of potential lawyers is bigger and the competition greatcr. Rcmember, also. the election system clearly excludes lawyers who are patently qualified to be judge but who do not want to go through economic debilitating and ethically and personally embarrassing election processes. A merit selection system may and should discourage attorneys from participating who do not have a good professional reputation or who have had ethical difficulties. Unfortunately. election systems have sometimes had the opposite result. Candidates having undistinguished careers and even ethical committee reprimands have been elected because of the electorate's interests in nonqualification criteria. The third argument against merit selection is that a contested election system is better because such elections are open. public events. incorporate our republican tradition. produce a voter selected representative and accountable judiciary. provide a means to educate the public about judicial candidates. and as elected officials. the judges possess greater political stature and credibility. Unfonunately. the election system does not deliver what it promises. Under every circumstance that can arise, the contested election systems for judicial selection and retention has disadvantages 7

A major problem of a nonpartisan contested election system is the election process itself. Campaigns take time. money and personnel. The monetary costs of the election systems are too high. unnecessary. ethically corruptible and impose serious adverse harm on the entire judicial system. The monetary costs to the candidate in an election system is pure economic dead weight. Other than the financial support provided to printers. the postal services. the advertising media. and campaign workers, if any are paid, the pay back to the judicial system for the expenditures is nil or even results in a negative balance. Whereas contributions to the campaign of legislative and executive candidates may result in the contributor gaining a supponer in the panicular office if that candidate wins. support for a winning judicial candidate must ethically be ignored by the judge or a serious connict of interest may arise either in particular litigation or by a desired rule of law or procedure. Lawyers and the bar should continue the struggle to gain merit selection for the Arkansas judiciary, Being diverted by a proposal to merely change 10 an inferior system than we currently have is not reform and needs to be resisted. Endnotes I Su 1995 Ark. Acts 901 (Setting up Slale primary eleclions) and 1995 Ark. Acts 1211 (Funding primary elections with stale funds). These acls may remove or at least reduce some of the opposition to judicial seleclion refonn. See Lawrence H. A\-erill. Obsen'mimls 011 tire \~'omi"g 拢:rperiellCl' witlr Merit Selection of Judge:.: A ModelforArkllll.ms. 17 UALR L.J. 281. 325 (1995) (Footnotes omitted). 2 See Averill. supra nOle I (Footnotcs omitted). 3./d .

4. Meril ~elcclion. generally. refcr.!> to "A permanent nonpanisnn commission of lawycrs and non lawyers that inilially and independently generales. screens and ~ublllits a list of judicial nominees to an official \\ ho i~ legally or volunlarily bound to make a final ~Iection from Ihe Ii,.... ALLA 'ASHMAN & JAMES J. ALFlNI. THE KEY TO JUDtCIAL MERIT SELECTtON: THE NDMI ATt 'G PROCESS t2 (191~). Excluded from this definition are systems that use a strict appoinlmem or popular contesled elections as the selection s)slcm. Id The "merit'路 part of Ihe namc refers to the supposition thai the cOlllmission will select its nominees on the basis of the members' JX:rceptions of good qualities for judges including aspech of character. experience. and abililY. 5.ld. at 322~23 (FoolnOlcs omiued). 6 See id. 1.ld. at 297路301 (Footnotes omitted).

39

The Arkansas Lawyer

Spring 1996


order. Upton 827 (1992).

Continued from Page 35 (molion for stay pending appeal); Phillips Construction Co. v. Cook. 34 Ark. App. 224, 808 S.W.2d 792 (1991) (motion under Rule 60{b) to set aside award of anomey's fees). See also £"os v. Slate. 313 Ark. 683, 858 S.W.2d 72 (1993) (motion to set aside judgment in criminal case is not analo· gous to any of the motions listed in Rule 4(b».

Compare Scherz v. M/lIldaca Inveslmem Corp.. 318 Ark. 595, 886 S.W.2d 631 (1994) (motion to vacate couched in terms of a mmion for new trial will be treated as such); Guthrie l'. Twin City Bank, 51 Ark. App. 201. 913 S.\V.2d 792 (1995) (motion to sel aside summary judgment characterized as a motion for new trial).

32, Williams v, Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995). 33. 308 Ark. 260. 822 S.IV.2d 389 (1992). 34. The coun did note, however. that the trial judge "should have entered a formal order" denying the motions. 308 Ark. aI 261, 822 S.\V.2d at 390.

35. Eddings v. Lippe. 304 Ark. 309, 802 S.W,2d 139 (1991).

I~

estate of UplOlI. 308 Ark. 677, 828 S.W.2d

38. See. e.g.. McCraw I'. McCraw. 46 Ark. App. 236. 878 S.W.2d 3 (1994) (record was nOllendered until 116 days after appellant's notice of appeal and did not indicate that an extension had been obtained). The trial court's order grunting an eJltension of time must be entered prior to !.he expiration of the otherwise applicable period for filing the record. See, e.". Willis ,~ Sw/c, 323 Ark. 41, 912 S.W.2d 430 (1996) (extension order signed on the last day of the 9O-day period was ineffective. since it was not actually entered until the following day). 39. Sl!e e.g.. Sw.IOI.d EllIerprises, Inc.

1'. Andrews. 314 Ark. 229, 861 S.W.2d 311 (1993) (clerk properly refused to accept record tendered tWO weeks after expir.ttion of the seven month period measured from date that motion for new trial was deemed denied). To obtain an extension longer than seven months. the appellant must file a panial record in the appellate coun and show a compelling reason. such as unavoidable casually, why more lime should be granted. Morris II. Stroud. 317 Ark. 628. 883 S.W.2d [(1994): In re ESI(l/e of \Vilkinson. 311 Ark. 311, 843 S.W.2d 316 (1992).

40. See Poole (1989).

I(

Poole, 298 Ark. 550, 768 S.W.2d 544

41. 322 Ark. 820. 913 S.W.2d 758 (1995).

36. An illustrative case is Reis v. Yt'l1es, 313 Ark. 300. 854 S.W,2d 335 (1993). Judgment on a jury verdici was entered for the plaintiff, who, dissatisfied with the amount of damages, filed a timely motion for a new trial on June 29. 1992. That same day. the circuit judge mailed the panies a notice thut a hearing would be held on September 8. The judge heard the motion as scheduled and ten days Ialer entered an order granting it. 1lle defendant appealed, and the supreme coun reversed. Under Rule 4(c), !.he motion had been "deemed denied" on July 29, and under Rule 4(d) the period for filing a notice of appeal had expired on August 28, thirty days Ialer. 37. The leading case is Phillips I'. Jacobs. 305 Ark. 365, 807 S.W.2d 923 (1991). Accord, Reis I'. flues. 313 Ark. 300.854 S.W.2d 335 (1993): Arkansas Slare Highway Comm'n I'. Ayres, 3tt Ark. 212. 842 S.W.2d 853 (1992): Wal-Mars Stores. Inc. II. Isely, 308 Ark. 342. 823 S.W.2d 902 (1992). The thiny-day limit set out in Rule 4(c) applies only to motions listed in Rule 4(b) and does not apply (0 a request under Ark. R. Civ. P. 6O(a) to correci an

42. Id. at 822-23. 913 S.W.2d al 759-60. Chief Juslice Brodley Jesson. wriling for !.he three dissenters. argued that in this situation the deadline for filing the record "should be the latest date it is due for anyone appellant, rather than the earliest:' Such an approach. he added. would be consi~tent with !.he fact th,1t "there is only one record in a case.... not a separ.tte record for each appellant:' /(/. at 824. 913 S.W.2d at 760.

43. This is the rule in the feder.tl courts. £.g., Pagl' I'. Preiss"" 585 F.2d 336. 338 (81h Cir. 1978). Although there are apparently no Arkansas cases directly on point, this result is clearly consiSlenl with Rule 4(0). 44. See City of Marianna I'. Arkansas MlIIlicipal Le08/f~, 289 Ark. 473. 474A. 712 S.W.2d 305, 306 (1986) (absenl certification complying with Rule 54(bl. "no final judgment has been entered and no appeal may be taken at this stage of the proceeding"). In Corr/ell I( NadeOiI. 321 Ark. 300, 900 S.\V.2d 556 (1995), the trial coun's Rule 54(b) certification wos made more !.han a year afler!.he entry of summary judgment in favor of one of the two defendants. An appe:11 Wl\~

taken after the certificalion. long afler expirulion of the thirty-day period for filing the notice a§ to the summary judgment. The supreme coun held that it had jurisdiction and accepted the appeal. Id. at 302. 900 S. W.2d at 558. However, two other cases suggest, without squarely holding. th3lthe relcVlIm date for notice of appeal purposes is the entry ofJudgment. even if the certification comes later. ~ Albmy I'. Wideman. 312 Ark. 434, 850 S.W.2d 314 (1993): Tillio I'. Arkansas Blue Cross & BIlle Shidd. Inc.. 283 Ark. 278.675 S.W.2d 369 (1984). 45. Mllrry I'. SIlI/e Farm MUI/wl AWomobile Ins. Co .. 291 Ark. 445. 725 S.W.2d 571 (1987). This result follows from the gencmJ rule that the trial coun loses jurisdiclion when the record is filed. £orl~ I'. Bennett. 289 Ark. 448. 711 S.W,2d 829 (1986): Andrews I'. ulIIener. 229 Ark. 894. 318 S.W.2d 805 (1958). Although there is an exception for "matters that are collateral or supplernenlalto the trial court's judgment," Alexander I'. fjrst National Btmk. 278 Ark. 406, 408.646 S.W.2d 684. 686 (1983), a Rule 54(b) certification does nOt qualify in light of Mllrr)'.

46.

Kelly

I',

Kelly. 310 Ark. 244. 835 S.W.2d 869 (1992).

47. Albert)' \'. iV/deman, 312 Ark. 434. 436, 850 SW.2d 314,315 (1993). 48. £.g.. Martillez I'. Arrow Truck Sales. fnc., 865 F.2d 160 (8th Cir. 1988): mdell FillGl.cilll Corp. 1'. Palo TIre Sen/iel', Inc.. 596 F.2d 604 (3d Cir. 1979).

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The Arkansas

Lawyer

Spring

1996


Appellate Procedure

On Appeal: Resources for Arkansas Advocates by D.P. Marshall, Jr. You know the old joke: Lawyer #1: What's the best way to win on appeal? Lawyer #2: Win at trial. True enough. But what is the next best way to win on

appeal? By recognizing and then taking advantage of the unique opportunities for advocacy offered by the appellate process.

With this issue of The Arkansas Lawyer, the editorial board presents a smorgasbord of appellate practice. I've been invited Lo continue that meal in coming issues with a column about handling cases on appeal. Here are some of

the things I plan on writing about: taming the abstracting dragon; meet your best friend on appeal; the standard of review; the uses and abuses of amicus curiae briefs, and

when not to appeal. Differing opinions are welcome. So are suggestions for

appeal. This practice guide is designed for those handling their first appeal - and for those handling their first appeal in the last couple of years. The guiding tests for the handbook are the newly recodified Arkansas Rules of Appellate Procedure - Civil, Arkan as Rules of Appellate Procedure - Criminal, and the Arkansas Supreme Court Rules. Handling Appeals will not replace careful study of those rules. Rather, the book integrates the Court's rules with practical suggestions for handling cases on appeal. My friend, Clint Miller, the Senior Appellate Advocate for the Attorney General, is fond of saying that a good lawyer can never have too

columns and question. I look forward to hearing from you,

many tools in his tool box. Those of

and to exploring the opportunities for effective and creative

us working on Handling Appeals in

advocacy on appeal in Arkansas. For now, though, put your napkin in your lap. Here's the first serving of On Appeal. Lawyers appealing cases in Arkansas already have an important reference book on their shelves. Sixteen years

ago, Jacqueline Wright (the Arkansas Supreme Court Librarian) wrote the Arkansas Appellate Advocacy Handbook. The Handbook was sponsored by the Arkansas Bar Association and the Arkansas Judicial Department. Wright supplemented the guide in 1984. You probably have the Handbook in your law library. If you don't, you need it. Call the Arkansas Sar Center and you can get a copy for $25. Though changes in the Court Rules and sixteen years of cases have overtaken some of the Handbook's practical advice. because of its thoroughness and learning, the

Handbook remains a valuable reference for appellate advocates.

Another resource is in the mill: Handling Appeals in Arkansas. The new Arkansas Bar Association Appellate Practice Committee (appointed by President Witherspoon and chaired by Job Serebrov of the Washington County Bar) and the Young Lawyers Section have joined hands to create this new practice guide. Handling Appeals in Arkansas aims to guide lawyers through filing their notice

of appeal, filing the record, filing the briefs, oral argument, and, if necessary, petitioning for rehearing. The book will also cover motion practice and extraordinary writs on

"What is the next best way to win on appeal? By recognizing and then taking advantage of the unique opportunities for advocacy offered by the appellate process.

"

Arkansas want to create a new tool for appellate advocates.

We hope to have it in your toolbox by June 1997. What is the best way to win on appeal? Win at trial. What is the next best way? Stay tuned. Price Marshall practices law at Barrett & Deacon in Jonesboro. After graduating with honors from Harvard Law School, he clerked for Ihe Han. Richard S. Arnold, Chief JlIdge, U.S. COllrl ofAppealfor Ihe Eighlh Circllil.

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The Arkansas Lawyer

Spring 1996


Law Laughter & Literature

Truth is Stronger Than Fiction Copyright 1995 Sam Clemens. aIkIa Mark Twain, once remarked. "Why shouldn"t lfUlh be stranger than fiction? Fiction, after all, has to make sense:' For almost 12 years now. this column has operated out

of the philosophy that what goes on in the real world of business. law and politics is far morc humor-intensive than jokes. or other forms of legal fiction. including. without limitation. the works of the Great John Grisham.

This is Irue (in keeping with Ihe appellate theme of this

by Vic Fleming

and gentlemen of the jury...:" only be interrupled by Ihe voice of one of Ihe judges: "Mr. MilicI'. il is genlle10

men of the Court:'

Walter Paulson of Lillie Rock has also shared the experience of his first appellate argument" II was a compJicaled case before Ihe Eighth Circuil Court of Appeals. Being a very recenl

issue of the magazine) at the couns of appeals in This

graduate of law school. Walter was

World.

actually sworn in by the panel. and in

Peler MacDonald's book. Court Jeslers (1985), relates a

from of his client. before the argu-

couple of examples involving a nOled Canadian barrister.

ment began: else. he would not have

George Walsh. Walsh is described as a brilliant and willy

been ad milled

gentleman who ultil11alcly sal all Lhe Supreme Court of

court.

Ol1lurio.

10

practice before the

"Why shouldll't truth

Walter had drawn a large graphic

An appellate judge once asked him, as court was open-

ing for the day: "Mr. Walsh. do you appeal all of your cases

map 10 assist Ihe Court in ils under-

be stranger thall

standing of the fact situation. Walter

fiction.? FictiOIl,

to Ihis coun?"

modestly recall hi art work a "a

To which the quick-willed Walsh replied. almosl spontaneously.路' 0, My Lord, only Ihe ones I lose:' MacDonald reports thaI. in Ihe I 930s, Walsh came to

rather magnificent four-color portrayal

of an otherwise nondescript [area]."

represent a man who was din poor. So much so that, at the

counsel took the podium and. explain-

time of his divorce. his eSlranged wife signed a separation

iug ht:r \'t:rsion of lhc facts. began making reference to Walter's chan. It - - - - - - - - - - - -

agreement calling for him

(0

pay her 25 per mOlllh. Years

after all, has to

Walter sal ncrvously, as appellant's

ma ke sense,"

later. during the Depression. the defendant husband became

was an area that had not been

very wealthy. prompling an action for an increase in alimo-

addressed in law school: whether or nol to objecl to appellant's counsel having the audacity to do this. Walter, in a combination of fear and courtesy, made no

ny. Mr. Walsh and his client successfully resisled the increase at lrial. primarily on the evidenliary slrength of the

objection and "did not point out that it was actually

separation contract. The ex-wife's counsel then pursued an

appellees exhibit" Appellanl's counsel sat down. It was Walter's lum. "I began by explaining the fact situation.

appeal. Walsh's argumenl before the Onlario Court of Appeal was simple: The man had never missed a payment and

using a pointer and my now-prominent map. The senior

never would. The woman signed a contract and must live by

judge on the panel Slopped me. lumed 10 lappellanr's counsell. and asked, '00 you have any objection 10 Mr.

her word as stated therein. And then there was this

Paulson's using your map?'"

exchange:

Mr. Justice Fisher. Oh. Mr. Walsh, would you ask your wife to live on 25 a monthT

Mr. Walsh. I'd prefer if Your. Lordship could ask her. Peler Miller. of lillie Rock. recalls his Very First appellate argument to the Arkansas Supreme Court:

"I took a deep breath and addressed Ihe court: 'Ladies 42

The Arkansas

La\\

yer

Spring 1996

Vic Fleming is a lau路yel;mediator. and professional speaker. Send Vic true stories about humorous occurrences i" busi路 lIess. politics, olld lolV - 3801 TCBY Towel: Lillie Rock AR 72201: FAX (501) 372-3359; e-II/oil slVeor88@ool.colI/.


disciplinary actions Clinton Scott Clark A letter of reprimand was issued to

Clinton SCOll Clark for violation of Model Rules 1.1. 1.3 and 8.4 <d) upon the complailll of Betty Shivey. These rules slale. in pan. that a lawyer shall provide competent representation (0 a client. Competent representation requires the legal knowl-

edge. skill. thoroughness and preparation reasonably necessary for the representation: shall act with reasonable diligence and promptness in representing a client:

and shaJl not engage in conducl that is prejudicial to the administration of justice. Shivey explained lhe occurances following her hiring Clark 10 appeal a divorce decree for her. Shivey paid Clark 52000.00 on July 5. 1994 as his fee to handle lhe mailer. A Notice of Appeal was filed by Clark on thaI date as well. Clark informed Shivey that as soon as he received the transcript from her he would file it with lhe Supreme Court Clerk. On November 2. 1994. Clark oblained an Order Extending Time To File Transcript but this was oLitside the 90 day time period for such an Order to be timely. On December 30, 1994. a second invalid Order was obtained by Clark. The opposing counsel filed a Motion To Dismiss the appeal with the Supreme Court Clerk on December 5. 1994. Clark filed no response to that Motion with the Clerk. The mandate dismissing the appeal was issued January 9. 1995. Clark told Shivey he would ask the Court to reconsider the dismissal bUI he did nol do so. Further. after Clark's services were terminated, he failed 10 forward information 10 Shivey that he had received in connection with anOlher Chancery Court proceeding. In his response. Clark asserted that Shivey actually hired him on June 22. 1994 and paid him 52000.00 of a tOlal 5000.00 quoted fee. According to Clark, Shivey was confused and vague as to what had occurred at trial. Clark explained that he defended a Motion To Dismiss filed in lhe proceeding which was filed in Pulaski County before enlry of the Conway County Decree. which as the Decree from which the appeal was 10 be laken. A hearing was held on the Motion To Dismiss and the COLIrt deferred any action until the matter had been decided by lhe Court of Appe,lIs. Clark also represenled Shivey in the Conway County proceeding on a Motion For Contempt. as well as anOlher collateral matter. Clark asserted lhat he filed a Response 10 a MOlion To Dismiss The Appeal with lhe Conway County

Chancery Clerk. afler opposing counsel filed a Motion to Dismiss with that Court. lark further acknowledged an Order For Extension Of lime To File The Transcript was signed on ovember 2. 1994, and that another Order was signed on December 30. 1994. When the opposing counsel filed his Motion To Dismiss with the Court of Appeals. Clark was under the belief lhal jurisdiction was still with Conway County Chancery Court so he elected to wait until the mailer was heard by lhe Conway Counly Chancellor and did nothing further. On the date the mandate was issued. he was informed by the Conway Coul1lY Clerk lhal she had just received the transcript. When he advised Shivey of this, she tOld him she did nOI want to pay lhe reSI of lhe money for the transcript. Clark continued his response by asserting that lhe major problem in lhis appeal was thaI he could not get the transcript. He also slaled that he believed the correspondence he received concerning the other Chancery Court matter was informational only since he had already advised the Court's Clerk that he no longer represented Shivey. This was the reason given for not forwarding the correspondence the Shivey or the attorney she hired after terminated his services.

Andrew L. Clark A letter of reprimand was issued to Andrew L. Clark for violation of Model Rules 1.1. 8.4 <c) and 8.4 <d) upon the Complaint By Judicial Officer. These rules stale. in part. that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge. skill. thoroughness and preparation reasonably necessary for the representation: shall not engage in conduct involving dishonesty. fraud. deceit or misrepresentation: and. shall not engage in conduct lhal i prejudicial to lhe administration of justice. Honorable Mary Davies Scott provided information to the Committee concerning Clark's representation of Erica Fields in a bankruptcy matter. Judge SCOlt filed lhis complainl following a Section 341 <aJ meeting in Ms. Fields' bankruptcy matter. Various pleadings and schedules were filed in Ms. Fields' bankruptcy proceeding which appeared to have her signature on them. During her sworn testimony at the 341 (a) meeling. Ms. Fields lestified that she had not signed any of the documenls. She also testified that her name was affixed on the Petition For Attorney's Fees without her authorization. Ms. Fields tes-

lified further lhal all hough she provided Clark with correct up-lo-date information for her bankruptcy documents, he included incorrect infom13tion.

The information

was false and misleading. In a Motion To Withdraw. Clark admilled signing Ms. Fields' name and also making errors while preparing the various pleadings. Clark's response explained thaI the bankruptcy proceeding from which this Complaint arose was the second bankruplcy proceeding filed by his firm on Ms. Fields' behalf. The first was dismissed for failure to make limely payments to the Trustee. Upon learning that Ms. Fields' automobile was in danger of being repossessed, Clark hurried to get M . Fields' bankruplcy re-filed. The information in the second bankruptcy filing was an exact duplicate of the firsl filing. Because of the rush and lhe inabilily 10 reach Ms. Fields by lelephone, Clark signed her name to the bankruplcy documents. He acknowledged having signed clients' names to documents on more than one occasion under certain

circumstances. Ms. Fields never contacted him about any errors nor about signing her name after he provided her copies of these documents. Ms. Fields advised him lhal she became scared at the 341 <a) meeling and so she did not know what to say. According to Clark. he did nol have the new employment information on Ms. Fields prior 10 the second bankruptcy filing. After learning of lhe problems that arose at lhe 341 <a) meeting, he filed corrected schedules and a Motion to Withdraw his Application for Anomey's Fee. Clark also asserted that is was Ms. Fields' decision 10 voluntarily dismiss her bankruptcy not the Court路s. tn conclusion. Clark set out thaI no one has been prejudiced or harmed and that when protecting a client's interests. he does not always play by lhe rules. However. Clark averred 10 never sign another client's name 10 a bankruptcy pleading.

Alvin Leonard Simes Alvin Leonard Simes was issued a letter of caution for violation of Model Rules 01.3 and 1.4 <a) upon the complail1l of Sheila D. Jarrett. These Rules stale. in part. lhal a lawyer shall act with reasonable diligence and promptness in representing a client and a lawyer shall keep a cliem reasonably informed about the staIuS of a mailer and promptly comply with reasonable requests for information. Ms. Jarrell Slated that in July 1993, Simes was retained to represent her in 43

The Arkansas Lawyer

Spring 1996


disciplinary actions legal matters involving her employer. In December, 1993, the EEOC sent Ms. Jarrell a Notice of Right to Sue. The otice indicated that a copy was also sent Simes. When Ms. Jarrett received the Olice she discussed with Simes the

[Q

grounds on which she wanted to sue her employer. Simes filed a lawsuit on March 14. 1994. however, this not within the

discuss other matters. Among them was

An Answer was

tha' she was told that Simes would "sell her and her case out," She believed that and advised him to drop her lawsuit. This fact. he stated, coupled with her other per-

filed which pointed out the late nalUre of

sonal matters and her state of mind made it

ninety-day time limit. the lawsuit.

Simes filed no responsive

impossible for him to "zealously represent

pleading. An Order was entered on July 13.. 1994 directing him to serve one of the defendant and tile proof of service. Simes did not and the case against that defendant was dismissed for failure to

her."

prosecute. Simes did not advise his client

ever lost if a federal lawsuit was not filed

of this dismi sal.

within ninety days from the day she received the Right to Sue Leller, however,

Five months later he

filed a Motion for COlllinuance wherein he admitted an inability to serve a defendant and requested a continuance to investigate

his whereabouts. A Pre-Trail Conference Sheet was tiled on January 23, 1995, wherein he mentioned having filed a Mo'ion 10 Compel and an Amended Complaint. Neither of these pleadings are on the District Court's docke' sheet. Ms. Jarrett stated that she tried, unsuccessfully,

He averred that these issues also

made it difficult for him to plan strategy and proceed with discovery. Further, he had advi cd M . Jarrell that her sexual harassment claim would be for-

he was of the impression she wished to

drop the case. Subsequently, in March 1994. she contacted Simes and advised tha' she was ready to proceed and advised that 'he Right 10 Sue leller was received on December 19, 1993. It was with that information he tiled the complaint on March 14, 1994. He stated with regard to service on one

to contact Simes on several occasions.

of the defendants 'ha' his specific where-

Then on May I, 1995, he explained to Ms. Jarrell that the lawsuit was not timely filed

abouts were unknown, but that he was in a

because of some erroneous information

was going to contact Simes regarding a private investigator. she never did.

regarding the receipt date of the Notice of Right to Sue. However, Ms. Jarrell averred that there was no misunderstanding and he was told the correct date. Also he received his own copy as attorney of record. Ms. Jarrett terminated his services

and requested her file. Simes would not release her file without her signing a note

which he prepared.

She then retained

counsel who did receive a portion of the

file. He filed a Motion to Withdraw, but never served Ms. Jarrett with a copy.

Upon learning of the Motion, Ms. Jarrett did file a Respon e. The Motion was granted and Ms. Jarrell has been unable to retain another attorney. For his response, Simes stated that Ms. Jarrett had everal claims against her

employer. A complaint was tiled in Federal District Court alleging sexual harassment: 'he assault. battery and false imprisonment allegations were pendant state claims. Since the ba is for the wrongful discharge was race, it was filed

mental institution. Although Ms. Jarrell

her desire not to pursue her claims of unlawful termination. false imprisonment

against her. Subsequently, Fink sent a letter to the Judgt: with a MOlion to Amend

and assault and battery, but in May 1995. she changed her mind. After May I. 1995. she refused to keep any appointments. Sime promptly complied with Ms. Jarrell'S request for her file and filed a

Default Judgment for Clerical Error. The MOlion omits to say that Mrs. James'

Motion to Withdraw. The Motion was granted and a new trial date seL In conclusion. he asserted that if any of Ms. Jarrett's claims were lost it was due to her own misrepresentation.

Answer was on file. Approximately Lhree weeks later, Fink agreed that a Order dismi sing the garnishment should be entered. Mrs. James alleged that Finks failure to thoroughly check the records and properly supervise this file set a chain of events in motion that prejudi cd her. She testified that, in addition to the expense of

John W. Fink

hiring an attorney. as a consequence of the aforementioned facts she lost her job, suf-

John W. Fink was issued a leller of caution for violation of Model Rule 8.4 (d) upon the complaint of Ruth L. James. This rule states, 'ha' a lawyer shall not

medical problems. From Fink's affidavi' of response and testimony it was learned that. although

engage in conduct that is prejudiciallO the administration of justice.

Mrs. James filed an Answer to the Complaint. she did not serve him with a

The allegations by Mrs. James involved a lawsui, Fink filed on behalf of

copy as required by 'he Arkansas Rules of Civil Procedure. It was his belief tha', had he received her Answer, none of the ensuing events would have occurred. He admitted that the Default Judgment was erroneous in that it referenced only ajudg-

his client, Independent Service Finance.

against Mrs. James and her brother, John

during which he explained her claims. He

Shelman. As a result of three hospitalizations. Mr. Shelman incurred a sizeable

Spring 1996

lhat without notice to her Fink contacted

the Judge abou, amending 'he Default Judgment to reflect a judgment 'aken

pursuant to 42 U.S.c. ยง198J. Simes stat-

The Arkansas Lawyer

debt. Mrs. James signed the hospital admission forms for the first hospitalization causing her to be liable for the amount of tha' bill. When Mr. Sherman ceased payment of the bills, Fink filed a lawsuit 10 collect the debt. Mr. James was served on November 18, 1992. and filed an Answer on ovember 19, 1992. On November 23, 1992, the Judge signed a Default Judgement which was not entered until January I I, 1993. The Default Judgement stated that the defendants had been served for more that twenry days and had failed to appear and defend. It omilled any reference to the amount of Mrs. James' liability. if any. On the date the Judgment was signed, Mrs. James had only been served for five days and her Answer had been on file for four days. Mrs. James was never served with the Default Judgment. Based on the Default Judgment Fink caused a Writ of Garnishment to i sue against Mrs. James on August 26, 1994. Mrs. James stated in her affidavit that she was never served with a copy of 'he Writ. Her employer informed her that they received the Writ and Mrs. James then obtained a copy form the Clerk's office. She then learned that she was being held responsible for the entire judgment amount. Mrs. James filed a Motion to Quash the Writ. She averred

In April 1995. Ms. Jarrett advised of

ed that he had several office conferences requested documentation showing when -44

she received her Right to Sue leller, but no response was received. In December 1993 and January 1994, Ms. Jarrell advised him of her desire to drop her case. Believing she was being stalked, she then wanted to

fered marital discord, and experienced


disciplinary actions ment again t Mr. Shelman and wa ambiguous as to the liability of Mrs. James. You averred that, despite her nonreceipt of the Writ of Garnishment, it was sent to Mrs. James as indicated on the

Writ. Around September 8, 1994, when he learned that the Writ was inaccurate

An investigation of the allegations

Committee the Court accepted the surren-

contained in the complaint concerned four

der of Arkansas Law License of Murray F. Armstrong on February 19. 1996.

incidents. The first dealt with a juvenile who appeared before Judge Brown. After

regarding the amount of Mr . James liability, he sent an Amended Default Judgment to the judge who required Lhat Mrs. James be nOLiced. He did so. Two days later he received the Motion to Quash the WriL and this was the firsL time he saw Mrs. James' answer. Subsequently he agreed to a Dismissal Without Prejudice when he confirmed that Mrs. James had filed an Answer. His te timony explained the procedures used by his suppon taff which led to the events herein. Specifically. the file jacket did not note that there were two defendants named in

threats and using profanity. The judge instructed the juvenile to come before the courtroom bench. When the juvenile

the lawsuit. This resulted in the recorda-

the juvenile's legal guardian. The judge know the legal guardian was repre ented by an attorney and that the attorney was

Lion of only one date of service, that of John Shelman. It wa that date which governed when the Default Judgment was pre-

reached the bench, the judge stood up, reached over the bench and latched onto the juvenile's jacket. A scuffle ensued with the juvenile grabbing the judge's throat. The judge's actions resulted in disorder in the court and a diminution in

counroom decorum. The judge also failed to maintain the expected and required dignity during coun proceedings. The second allegation concerned an ex-parte discussion between the judge and

planning to file a motion requesting the

pared. Because the Court's file was never checked. it was twenty-three months

judge to step aside from funher consider-

before he learned that Mrs. James had filed

met with the legal guardian without her

an Answer and seven months after that

attorney nor the other parties present. The courtroom incident and the attorney's

(May 1995) that the Order of Dismissal was entered. Although he admitted that errors were made as regards the case

against Mrs. James he denied that his conduct in this matter violated any of the Model Rules of Professional Conduct.

Josepf V. Hobson

the juvenile was told he was being sent to

a youth services facility, be became agitated and began cursing the judge. making

ing this matter.

The judge, nevertheless,

request that the judge step aside were discussed by the judge and the legal guardian. Such a discussion was found to be an

impermissible ex-pane communication

A letter of caution was issued to Josepf

V. Hobson for violation of Model Rules 1.3, 1.4 (a) and 8.4 (d) upon the complaint of Margie Lineberry. These Rules state, in pan, that a lawyer shall act with reasonable diligence and promptness in represeoting a client; shall keep a client reason-

able informed about the status of a maller and promptly comply with reasonable requests for information; and shall not engage in condUCl lhat is prejudicial to the administration of juslice,

Lineberry's complaint arose from her having hired Hobson during August 1994 to represent her in relalion to a lawsuit

which was filed again I her in Sebastian County Chancery Court. Ms. Lineberry contacted Hobson immediately after being served with the complaint of August 6. 1994. Hobson did not file an Answer on Ms. Lineberry's behalf until August 31. 1994. Because the Answer was filed past the time allowed by law, a Default Judgment

was

taken

against

Ms.

Lineberry. Ms. Lineberry learned of the Default Judgment through her bank and then notified Hobson. He filed a Motion to Vacate Default Judgment which was denied after he failed to respond to the

and discussion. Another incident investigated as a result of the complaint concerned the

Court's letter requesting information on

Charles O. Pearrow was suspended from the practice of law for a period of three months for violation of Model Rules I. I and 1.3 upon the complaint of Allen W. Wallace.

judge discussing with juveniles, out of the

that the sequence of event in lhis matter

presence of their attorney, matters concerning their guilt of innocence or the facts

John L. Kearney

Lrial was made. The Judicial Discipline & Disability Commission found under the

were as Slated by Ms. Lineberry. He also acknowledged that he failed to file the Answer wilhin the time allowed. He assened that upon learning of the Default Judgment. he immediately filed a Motion in an effon to vacate the Judgment. Since he did not have an acceptable reason for having filed the Answer late, he did not respond to the Coun's request. After determining lhat an appeal would be

Charles O. Pearrow

Upon the petition for reinstatement to

the practice of law, John L. Kearney's petition was granted by the Committee on

December I I, 1995.

Robert D. Britton Upon the petition for voluntary inactive status, Robert D. Britton's petition

was granted by the Committee on December 18. 1995.

underlying the charges. Another incident concerned the judge continuing to discuss a case with a juvenile, after a request for a

circumstances of these cases it was inappropriate for the judge to have a discussion with the juvenile concerning the incident in the absence of the juvenile's attorney, or discussing the matter further after a

request for trial has been made. The Commission found that, under the

The Judicial Discipline & Disability Commission admonished Pine Bluff Circuit/Chancery Judge Thomas Brown for violaLions of the Code of Judicial Conduct.

unsuccessful, he obtained the funds to sat-

isfy the judgment so Ms. Lineberry would not suffer any monetary loss.

circumstances, Judge Brown's actions

John L. Kearney

denigrated public confidence in the judi-

John L. Kearney was issued a letter of caution for violation of Model Rule 1.3 and 1.5 (c) and 8.4 (d) upon the complaint of Carol Inez West. These rules state, in pan, that a lawyer shall act with reason-

ciary and his actions were inconsistent

Judge Thomas Brown

why the Answer was filed late. In responding, Hobson acknowledged

with maintaining the high standards essential in preserving the integrity and impartiality of the judiciary.

Murray F. Armstrong Upon the recommendation of the

able diligence and promptness in representing a client; and, a contingent fee agreement shall be in writing.

45

The Arkansas Lawyer

Spring 1996


disciplinary actions During October 1993. Carole West hired Kearney to represent her minor daughter in a persona) injury maner. His fee agreement with Ms. West was a ol1ethird contingent fee. This fee agreement was never reduced to writing. At the time he was hired, he was provided an executed Medical AUlhorizmion from Ms. West along with her written account of the injury and the idcnrities of witnesses. From the time Ms. West hired him until March 1995 almost nothing was done in this matter 011 her daughter's behalf. Two 1110nths after Ms. West spoke with him in March. Kearney comacted the opposing party by leller dated May 25, 1995. Approximately two weeks later, Ms. West again contacted him to express her dissatisfaction with the lack of work performed by him in the one and a half years since she had hired him. At that time he advised Ms. West that she needed to come and retricve her file which she promptly did. Kearney's response contained his explanation thaI he came into COl1lact with Ms. West through a Business Law class that he taught at the University of Arkansas at Pine Bluff. He acknowledged that Ms. West provided him with a statement relating the facts and witnesses involved in the matter. He denied ever verbally discussing a fee with Ms. West and asserted that she has to have signed an Attorney-Client contracl when she first vi ited hi office. Further. he asserted that he could not slale for certain whether she had done so since she obtained her file in his absence from the office. He stated that the opposing party refused to discuss the matter with him when he contact.ed him so he informed Ms. West that because of her daughter's tender age it would be best to wait and see if the scars would be pennanent and he understood that Ms. West had agreed.

Robert F. Meurer Robert F. Meurer was issued a leuer of caution for violation of Model Rules 1.3 and 8.4 (d) as a result of a Per Curiam from t.he Arkansas Supreme Court. appellam Johnny Martin. These Rules state. in part. that a lawyer shall act with reasonable diligence and promptness in representing a cI ient; and. shall not engage in conduct that is prejudicial to the administration of justice. On October 30, 1995. a Motion For Rule On The Clerk was filed by Meurcr. In his Motion For Rule On The Clerk, he stated that he failed to calendar the due 46

The Arkansas Lawyer

Spring

1996

date of a transcript and admitted responsibility. On ovember 20. 1995. a Pcr Curiam was granted by the Arkansas Supreme Court. In its Per Curiam. the Arkansas Supreme Court forwarded a copy of the opinion to the Committee on Professional Conduct.

Willard C. Smith, Jr. Willard C. Smith, Jr. was issued a ICIter of caution for violation of Model Rule 7.2 (d) upon a Complaint Before The Committee. This rule states. in part. that any communication made to a prospective client shall include the name of at least one lawyer responsible for its content. It was brought to the Committee's attent.ion that Smith placed advertisements in the 1994 Southwestern Bell Yellow Pages for Fort Smith and Van Buren. Neither advenisement contains the name of the attorney responsible for the advertisements content. For his response. he asserted that the Model Rules of Professional Conduct differentiated between a communication and an advertisement wherein a communication required a lawyer's name due to its nature whereas an advertisement. such as listings in the telephone directory. do not require the lawyer's name.

Charles L. Honey Charles L. Honey was issued a Ieller of caution for violation of Model Rules 1.2 (a). 1.3 and 8.4 (d) upon a Complaint Refore The Committee. These Rules state. in part. that a lawyer shall abide by a client's decisions concerning the objectives of representation: shall act with reasonable diligence and promptness in representing a client: and. shall not engage in conduct that is prejudicial to the administration of justice. Honey represented Johnny Bradley in a jury trial on the charge of rape for which Mr. Bradley was found guilty and sentenced to life imprisonment. There was no appeal taken from the sentence despite Mr. Bradley's request for an appeal. A pro se motion to proceed with a belated appeal was filed on August 23. 1995. A copy of the pro se motion was delivered to him requesting an affidavit regarding the mat路 ter. On October 5. 1995. he provided the Coun his affidavit of response. He did not dispute Mr. Bradley's request for appeal but indicated that there was no reasonable grounds for appeal. On October 23, 1995. the Arkansas Supreme Court delivered an opinion granting Mr. Bradley's pro se

Illotion because Mr. Bradley requested an appeal. Honey was allorney of record. and an appeal was nOI filed. A copy of the Court's opinion was forwarded to the Committee on Professional Conduct. In his response. Honey acknowledged represeming Mr. Bradley. He cxplained that Mr. Bradley paid only $800 of a $2500 quoted fee but that he represented him in a jury trial on the criminal charges anyway. Honey asserted that he told Mr. Bradley what his fee would be for an appeal and also informed him if he could not afford to pay Honey that he would ask to withdraw so someone else could be appointed by the Court to represent him. Further. he averred that he heard nothing else from Mr. Bradley until after the time for filing an appeal had expired.

Charles L. Honey Charles L. Honey was issued a leller of caution for violation of Model Rulcs 1.4 (a) and 1.4 (b) upon the complaint of Rebecca O' Bryant Dye. These rules state. in part, that a lawyer shall keep a client rcasonably informed aboul the status of a matter and promplly comply with reasonable requests for information: and. shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Ms. Dye averred that in 1991 Honey represented her in a divorce action. In 1992. a Petition For Change of Custody was filed and Honey agr~tx1 10 represent Ms. Dye in this mailer. He filed a response and seven months later. Ms. Dye's ex路husband was granted custody and a Temporary Order to that effect was entered. Four months later, in July 1993. a final hearing was held and both Honey and his client appeared. The Judge ordered custody placed with the ex-husband Wilh visitation to his client. No counselling was ordered and the docket sheet stated that no other issues were remaining. Honey advised Ms. Dye not to begin child suppon payments until the Order was entered. She contacted his office several times over the next two years and was told that nothing had been signed. However. during June of 1995. while allempting to get a home loan. Ms. Dye discovered that the Order was signcd September 22, 1994. and child support backdated to August 15. 1993. She then called Honey's office. but was again told that nothing was signed or in her file. Ms. Dye then weJ1l to the Clerk's office and saw that Honey had


disciplinary actions signed this order, but never provided her with a copy. His affidavit of response stated that opposing counsel was to prepare the precedent following the final hearing in July of 1993. He averred receipt from opposing counsel of a precedent with the child SUppOI1 sum left blank. His recollection was that the amount of child support was to be agreed upon following his receipt of Ms. Dye's financial information. Upon receipt of the financial information, Honey stated that he returned a completed precedent which was never returned to him and have heard nothing further. In this connection, he and Ms. Dye have had several conversations and he made several calls to opposing counsel as well as the Judge in an effort to get the Order entered. Additionally. he inquired at the Clerk's office as to whether the Order had been enlered but was told thai it had not. He also stated that he discovered that the Order was finally signed and entered on September 27, 1994, some 14 months following the hearing. In conclusion. neither the Judge, opposing cOllnsel, nor the Clerk's office advised him that the Order was signed and entered but that he took all reasonable steps to insure such was done.

David William Malaby, Jr. David William Malaby, Jr. was disbarred from the practice of law for violation of Model Rules 3.5 (c) and 5.5 (a); and ยง7D of the Procedures of the Arkansas Supreme Coun Regulating Professional Conduct of Attorneys at Law. as a result of complaints of Virginia Fuller and David Bullard.

Frank E. Shaw A letter of reprimand was issued to Frank E. Shaw for violation of Model Rules 1.2 and 8.4 (d) upon the complaint of Glenn Edmonson. These rules state, in part, that a lawyer shall abide by a c1ient's decisions concerning the objectives of representalion. subject to paragraphs (c), (d) Hnd (e). and shall consult with the client as to the means by which they are to be pursued; and. shall not engage in conduct that is prejudicial to the administration of justice. Shaw was appointed to represent Glenn Edmondson on January 18, 1994 on a first degree battery charge in Faulkner County, where he is a public defender. Edmondson stated Shaw wa difficult to contact from the beginning of his representation of him. Shaw repeatedly asked

for money from his family because he would be unable to defend Edmondson without money. His sisters paid Shaw $5000.00 per his request. Shaw explained he was hiring two (2) investigators to assist with the defense. His family understood the investigators were being paid from the $5000.00 paid to Shaw. Edmondson advised Shaw after trial that he wanted to appeal his conviction. As evidence of this, Edmondson provided a newspaper article wherein Shaw discussed the decision to appeal. A Notice Of Appeal was never filed on Edmondson's Through all the pleadings behalf. Edmondson sent the Trial Court trying to obtain an appeal. Shaw never contacted him, nor provided him with any information. Shaw acknowledged being appointed as counsel initially but Slated that the family requested his status be changed to retained counsel. He asserted his status was changed in open court with everyone present. but no docket entry was made. He averred the record was being reviewed for this change of status proceeding. According to him, everyone was aware who was responsible for the investigative fees and that only $500 of the $5000.00 was for the same. He also stated that Edmondson and his family agreed an appeal was unnecessary after trial. The decision not to appeal was solely the decision of Edmondson. In concluding his response, Shaw asserted it was only after the time for appeal ran that Edmondson requested an appeal of his conviction.

David E. Morris David E. Morris was issued a letter of reprimand for violation of Model Rule 1.15 (b) as a resllit of a complaint from Robel1 E. Sullivan. This rule states, in pal1. that upon receiving funds or other property in which a client or third person has an interest. a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to lhe client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such propelty. Sullivan stated in his affidavit and in his testimony at the heming that during October 1993, he and Morris' client, Anoland Sullivan. were divorced in Washington County, Arkansas. A portion

of the Divorce Decree dealt with the sale of certain marital property. The proceeds of the sale of the marital property were placed in Morris' trust accoul1lto pay certain outstanding marital debts. Beginning in May 1994, Sullivan requested that Morris provide him with an accounting of the funds along with proof of payments made. A Ithough Morris responded to several of Sullivan's letters, he never provided an accounting of the funds. Finally in November 1994, Sullivan requested the Executive Director to intervene on his behalf. Pursuam to that request, a letter was sent requesting that Morris provide an accounting of the funds. Sullivan further testified that Morris did not render a full accounting of the funds pursuant to that letter. During his testimony, Sullivan provided to the Committee the computer breakdown of the use of the funds deposited into his trust account, copies of the cancelled checks and dcposit slips which he finally provided to him on or around November 30, 1995. In his testimony before the Committee Morris provided copies of his trust account statements, cancelled checks, and deposit slips which related to the monies derived from the sale of the Sullivans' real estate. He also provided copies of several letters he wrote to Mrs. Sullivan in response to Mr. Sullivan's requests for an accounting. Morris explained to the Committee that he had provided an accounting to both parties by way of verbal explanation but did not do so in writing. Morris offered no excuse for his failure to respond to the Committee other than he felt he had done nothing in violation of the Rules. In addition, he offered no explanation for the reason why he waited until November 30, 1995 to provide Sullivan with the written documentation he had requested from Morris. Upon their verified petitions for voluntary transfer to inactive status. the following named attorneys were placed on voluntmy inactive status by the Committee during January 1996: John Phillip Cobb, Douglas J. Stanley, Molly D. McKay and James W. Woods. Upon their verified petitions for voluntary transfer to inactive status. the following named attorneys were placed on voluntary inactive status by the Committee during February 1996: Steven D. Townsin, Lynn-Marie Crider, Mike E. O'Neal, Russell A. Hollrah and Andrew J. Reynolds. 47

The Arkansas Lawyer

Spring 1996


In Memorium Terrell Marshall

Judge Osro Cobb

Calvin Joe Hall

A Past President of the Arkansas Bar Association (1951-52), TerreJl Marshall of North Littlc Rock died in March at the age of

Judge Osro Cobb of Lillie Rock died in January at the age of91. Prior to World War n, he was a Senior Partner of the law firm of Cobb, Cazort and Holt. In 1936 he accepted the Republican nomination for Governor, campaigning the entire state and giving out some 250,000 corncob pipes. In 1954 he became the United States Attorney for the Eastern District of Arkansas by appointment by President Eisenhower. As United States Allorney it feJl to his responsibility in 1957 to handle the entire period of integration at Little Rock Central High School. In 1965 he was appointed a supreme court justice, becoming the first Republican to serve upon the highest tate court since I 74. He was active in the Pulaski County Bar Association, the Arkan as Bar A sociation, the American Bar Association. the American Judicalure Society. and was organizing president of the American Chapter of the Federal Bar Association. He is survived by his wife, Martha Jane Dickinson Cobb of Little Rock; one son, John P. Cobb of Conway; one brother; three grandchildren; and two great-grandchildren.

Calvin Joe Hall of Linle Rock died in January at the age of 35. He was a 1978 graduate of Stephens High School, where he wa a valedictorian. a 1982 graduate, Magna Cum Laude, from Ouachita Baptist University and a 1985 graduate, with high honors, from UALR School of Law. Hall was a partncr in the Friday, Eldredge and Clark Law Firm, and was a member of the American, Arkansas, and Pulaski County Bar Associations. He served on the Boards of Directors of Our Way, Inc., Ouachita Baptist niversity Former Students Association, and the Regional AIDS Interfaith etwork. Hall specialized in medical malpractice defense litigation and tried cases all across the state of Arkansas. His sense of humor and personal honor were well recognized and appreciated by the judiciary and both plaintiff and defense bars. He is survived by his parents, Mr. and Mrs. Charles Hall of Stephens; his paternal grandmother, Euna Hall of Stephens; six aunts; one uncle; several cousins; and Lwo special friends - George Prange and Gayle Corley, both of Little Rock.

8 . Mr. MarshaJl engaged in the practice of law in Little Rock, Arkansas from 1931 until his retirement in the early 1980's. He graduated from the Arkansas Law School and was admilled to practice in July 1931, having made the highest score on the Arkansas Bar Exam. He served as a member of the Board of Trustees of the Arkansas Law School from 1949 until it merged with the UALR School of Law in 1967. He was a member of the Old Little Rock Bar Association, the Pulaski County Bar Association, the Arkansas Bar Association, the American Bar Association, and the American Judicature Society. In 1939 he was appointed the first Executive Secretary of the Arkansas Bar Association, and served in that position for three years. Subsequently, Mr. MarshaJl was elected Secretary-Treasurer of the Arkansas Bar Association, serving for seven years. Mr. MarshaJl is survived by one son, Dr. Terrell MarshaJl, Jr. of Roslyn, Pennsylvania; five grandchildren and four great-grandchildren.

RONALD

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BUMPASS,

J.D.

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Private arbitrator and mediator appointments accepted All proceedings held in strict confidence PROFESSIONAL ASSOCIATIO 5

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E. BUMPASS 2241 North Green Acres Road, Fayetteville, AR 72703 (501) 521-3172 or 1-800-400-3172 â&#x20AC;˘ FAX (501) 521-5928 LAW OFFICES OF RONALD

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VOL.30_NO.4_SPRING 1996