Issuu on Google+

~

" y" v路

---",

~

....

-

.. .


Other Arkansas CD·RO~I publishers give you unedited "raw law." WEST'S EXCLUSIVE TOPIC AND KEY NUMBER SYSTEM.

Word searches are great-if you're searching for words. .~'rAlESl,

f(?\ WFSr LEGAL q RF.'lEARCH SYSfEM

But when you're searching for poinls oflaw, there's a problem: different coul1S use different words for the sanle legal concepts and relationships!

Yet, surprisingly, you pay not a penny more for the premium sertJice that gives you so much more, In an era of "me-too"products. it's mre that a product stands head and shoulders above all others in its category, Arkansas Cases~ and IVIlItS-Arkansas C()de~ is such a product. In accumcy, organization, searchability and sUPPOl1, no competitor can touch this remarkable Arkansas CD·ROM,

Most remarkable? You get all thiS excellence at no extra cost! Look at all the extra research power you get with Arkansas Cases and \fIes/s Arkansas Code plus \fIes/s Arkansas Diges/ CD·RO,II Edi/ioll~ for just $75 per month! THE ONLY ARKANSAS CD.ROM OFFERING YOU OPINIONS EDITED FOR ACCURACY.

Even a small typographical error in an opinion can cause a big problem for youa time-wasting "'ild·goose chase after an inaccurately cited statute..."" improper case citation written into an impol1ant brief... 111a1'S why West checks all opinions it publishes. When lie find errors, lie conect tl1em.

\Vitll our competitors, better hope that your problems happen dUring "nonmal" business hours. ONLINE UPDATING AS CURRENT AS WESTLAW"I

~

No other Arkansas CD-ROM comes close to matching the case-finding power you get with Arkansas Cases and Wests Arkansas Code.

No matter when you're working, West customer service can help you with hardware or software questions that might otllerwise stop your research in its tracks.

When you KeySearch, you retrieve cases containing the legal concepts you needno matler wha/ words the coul1S used in their opinions. Arkansas Cases (md Wests Arkansas Code is the only CD·ROM service to offer you "The Master Index of American Law."

r------, INTRODUCTORY OFFERI

One of our Arkansas competitors offers you weekly online updates. Not bad. BU/llo/ good ellough! Suppose your "silver bullet" opinion was issued justyes/erday! With Arkansas Cases and West's Arkansas Code, you get daily online updating. (U.S. Supreme Coul1 cases involVing Arkansas are added in minules/) Your subscription includes unlimited access to online updates. SEE THE SUPERIORITY WITH YOUR OWN EYES.

Arkansas Cases and IVesis Arkallsas Code can give you a signijicrml advalliage in legal research. You'll find on-point cases you otherwise might have missed. You'll save time. You'll avoid errors.

I 90 days for $751 I Get 90 days of ArktnlStlS Cases and I Let us prove it, in your own otTice-I Wests Arktmsas Code, plus Wests Arkansas at your own convenience--witll a CD-ROM Etti/ion for just $75 total- I free 1I0-ohligatioll demollslralion. I Diglllt including unlimited online updatesa no-obligation demonstration, I with a new one-year subscription Call I orTo forschedule anS\lers to your questions about I

L

I·BOO·255·2549, EXT. 231, FOR DnAILS.

------

.J

EXPERT SEARCH ASSISTANCE FROM REFERENCE ATTORNEYS.

Not sure how to stal1your search? Not finding what you're looking for? With a subscription to Arkansas Cases and West's Arkansas Code, unlimited expel1 help is a phone call away. At no extra charge! Call a toll-free number, 24 hours per day, se'en days per week. Talk to a licensed attorney, exhausti,ely trained in legal research and the West research system. You'll get expel1 help fonnulating searches. No other publisher of Arkansas CD·ROM offers a comparable service. CUSTOMER SERVICE 24 HOURS PER DAY, SEVEN DAYS PER WEEKI

Ever work at night' On a weekend' Or on a holiday' Of course you dOl

Arkansas Cases and Wesls Arkansas Code, please call I·BOO·255·2549, EXT. 231.

When you call, don't forget to ask about our remarkable90 da)ls Jor $75 introductory offer! AVAILABLE NOWI

Arkansas Digest on CD:ROM! Everything you like about the books + everything you like about CD-ROM! For more infonmation, call '·800·255·2549, EXT. 231.

WEST

CD-ROM LIBRARIES~

C=> C 1996 Well PvbI,ohing 7-9323-1/8-96 16A6545

I

1·33'9·440·7


Editor's Report

VOLUME 31, NUMBER 2 PUBLISHER

Arkansas Bar Association

Bring Me A Little Good News

Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail arkbar@pita.com

By Stacey DeWin

ARKANSAS BAR ASSOCIATION ~OO

IV. Markham Lillie Rock, Arkansas i2201

EDITOR

Stacey DeWitt ASSOCIATE EDITOR, LAYOUT & DESIGN

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

OFFICERS President Harry Truman Moore President-Elect Jack A. McNulty Immediate Past President Carolyn Witherspoon Secretary -Treasurer Daniel R. Carter Executive Council Chair J. Thomas Ray Young L.:1wyers路 Section Chair Denzil P. Marshall, Jr. Executive Director William A. Martin Assistant Executive Director Judith Gray

As well as being obnoxious, tooting your own horn has always seemed a little suspect to me; but, with all the bad publicity lawyers receive these days I have decided we might need to push individual attorneys to share their accomplishments and give them a vehicle to sound ofr.

Therefore, I offer this column as a place to share the good news. I am issuing an invitation to staff, friends, and individuals who want a little publicity for their own good deeds, or anyone else who is interested to send information which we will evaluate and print for the cause. A recent letter received by the Arkansas Bar Association from a client sat.isfied by the performance of her allorney made me feel good, gave an example to follow and shored up my faith in those

who are doing the job well. I hope it has the same effect on you:

Arkansas Bar Association Membership Committee Chairperson

400 W. Markham Little Rock, AR

72201

Dear Sir or Madam: I am writing in order to commend one of your attorneys, Bryan Hosto, for the excellent job

he did representing me in a domestic matter. Until Mr. Hosto began representing me last

year, I had a difficult time ... EXECUTIVE COUNCIL J. Ray Baxter A. Glenn Vasser R. Scott Morgan Steve Shults Charles L. Carpenter, Jr.

Mr. Hosto on the contrary, was consistently attentive to my case and rendered quality, professional legal service. He persevered toward the equitable resolution of our issues. Mr. Hosto investigated several issues and

Stanley D. Rauls Thomas D. Ledbetter

expended effort beyond that which I would have expended on my own behalf. He always returned

Robert R. Estes

phone calls in a reasonable length of time and

Louis B. Jones, Jr. Tom Donaldson Mike Everett Michael E. Irwin Lynn Manning Flynn Mark Cambiano Lynn Williams TIre ArktlllStls Lawyer (USPS 546-0(0) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to Till' Arklllrs/ls Lawyer, 400 West Markham, Little Rock, Arkans.1S 72201. Subscription price to non-members of the Arkano;;.ls Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not nccess..1rily that of the Arkans.1S Bar Association or 11rl' ArklltrSlls Lawyer. Contributions to 11u' Arkansas Lawyer arc welcome and should be sent in two copies to EDlmR, 1111~ Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries n..'garding advcrtising should be sent to TI,e Arka/ISiIS Lawyer al the a~)\'c address. Copyright 1996, Arkansas 13M Association. All rights reserved.

his billing was fair. Sincerely,

(Client's name withheld) Printing more letters like this would be a pleasure. But. I need a source. By the way, Bryan had no idea this letter existed until he was notified by the Bar. Confidentiality of the sender will be maiJ1lained and nothing will be printed without permission. Maybe if it gets interesting enough. we can influence readers to nip 10 the front pages of the magazine first instead of the back pages 10 peruse the disciplinary actions. If we want others to see the good in us, we probably

ought to make an effon to recognize il ourselves, so please, bring me a little more good news.


Activity

AetMty Code

Time

Description

Six minutes?

Okay, we padded our time.

Arkansas CaseBasf Piali/llllll is so powerful,

yOlI

can confidently locate every

Arkansas casc, statute and rule relevant to your point in just seconds.

Our CD-ROM based legal research system combines the speed of Folio technology with the breadth of Arkansas law, including Arkansas Supreme Court Reports, Arkansas Appellate Reports, Arkansas Code and Acts, Arkansas Court Rules, Judicial Ethics Opinions, and the Arkansas and US Constitutions.

Once your search is exhausted (YOII ",ight hav, ti"" Jar a sip oj coJJee), you'll enjoy the ease and flexibility of preparing your case with

OUf

user-friendly functions.

With internal linking, you'll jump instantly from case to casc, case to statute,

and more. And with external cross-linking, you'll have direct access to ALR", AmJur Legal Forms, and the rest of the LawDesk library! We'd love to show you our product -

on Windows N , DOS or Macintosh.

Arkansas CaseBas(' Plali,l1llfl. If you have a second.

1111., Lawyers Cooperative Publishing Where Lawyers Go For Answers 1-800-762-5272

Total


----- -- -

,

-

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

Features PAGE WHAT'S WRONG WITH ApPELLATE LAW IN ARKANSAS by Gerry Schultze

On the Cover: Original Drawing done for The Arkansas Lawyer by Arkansas Bar Association member Chris Barrier.

10

THE UNIFORM PROBATE CODE: PRO/CON WHY ARKANSAS SHouwADOPT TflE UNIFORM

18

PROBATE CODE

by Judge Ellen B. Brantley UNIFORM (MISNOMER) PROBATE CODE

19

by James B. Sharp

HUCKABEE TAKES HIS PLACE As THE STATE'S 44TH

22

GOVER OR by Jim Harris

DRUG & ALCOHOL TESTING by Shawn D. Twing

By PRIVATE EMPLOYERS

30

In Every Issue by Stacey DeWitt LIFESTYLE SECTION - DEPRESSION, by Elizabeth Emmett LAW OFFICE TECHNOLOGIES, by Margaret M. Newton LAW, LITERATURE AND LAUGHTER, by Vic Fleming EXECUTIVE DIRECTOR'S REPORT, by William A. Martin PRESIDENT'S REPORT, by Harry Truman Moore YOUNG LAWYERS SECTION REPORT, by D. P. Marshall, Jr. CLE DIRECTOR'S REPORT, by Charlotte Morrison Greer EDITOR'S REI'ORT,

1 4

6

8 26 28 41

DIscn'LINARY ACTIONS/ADVISORY O"INIONS

42 43

[N MEMORJAM

47


Lifestyle

Depression Research Sheds Light on a Dark Illness by Elizabeth Emmell Lifestyles is a new column lhat deals with lifestyle issues of the professional. Most people experience periods in Ihcir lives when Ihey feel "blue." Maybe a particular event has left them with a diminished zest for life, or a difficult boss makes gelling up and going to work each day a chore. But when the blues stay for months or years, when activities thai formerly brought pleasure hold no appeal, when getting up off Ihe couch on weekends is too much of an effort, clinical depression may be the cause. And although more than 17 million Americans each year suffer from clinical depression, according to the National Institute of Mental Health. it remains one of the most misunderstood illnesses known. Being depressed is quite different from being sad; the emotional symptoms and physical manifestations of depression pervade every aspeci of a person's life. For people with depression. the world is shrouded in gray. Sufferers describe feeling hopeless, numb or suicidal. One of several on路line computer support groups, Walkers in Darkness. offers chat rooms, poetry anthologies and testimonials that reveal people on the edge of. as they describe it. a "madness." For years people who suffered from depression did so in shame; often they were seen as mentally weak. In recent years researchers have stressed more and more that depression is a serious, diagnosable medical illness. People can no more easily "snap out or' cancer or a cold. It is, however, a highly Lrt:atablc illness. With professional super\'i~ sian, up to 90 percent of depression sufferers respond dramatically to a combination of psychotherapy and medication. WII \'1' CAUSES DEPRESSION AND WI-IO GETS IT? The current thinking in the medical community is that depression is the result of specific brain chemistry. Normal hormone nuctuations can go awry; neurOlransminers in the brain cease to function normally. A pre-disposition 10 these chemical imbalances can be inherited. thus the tendency for depression to "run" in families. Imbalances can be triggered by specific events, by changes in the seasons or by no apparent reason at all. Generally, women suffer from depression about twice as frequently as men. Although the reasons are unknown. the theories are many. Some researchers say that depression in men is more likely to manifest itself in alcohol or drug abuse, while others say women have marc biological and hormonal factors that could trigger depression. Still others say women have higher incidences of social situations, such as abuse or "superwoman" syndrome, that serve as precursors. WII \T ARE Til. SY\II~路O\IS OF CU\IC\L DEI'RESSJO\?

Depression is identified in three broad cmegories. While all are marked by a general sadness and malaise. each has specific symptoms that differentiate it frol1lthc others.

Tbr

\r~;tnSlS

I,III)路,r

l'all1996

Major depressive disorder (MOD) is marked by a severe feeling of hopelessness that lasts from (wo weeks to years. Sufferers frequently do not enjoy socializing; gain or lose weight without trying 10; feel exhausted; have sleep disorders; have trouble making decisions; and feel cui off emotionally from the rest of Ihe world. Frequently, those suffering from major depression repon not that they feel "sad:' but that they don't feel anything at all. This reduced capacity to participate in one's own emotional life frequenlly leads 10 thoughts of suicide. MOD is most often seen in women of childbearing years. Dysthymic disorder (DO) is milder than MOD. While it does not necessarily interfere wilh a person's everyday lire, it usually lasts for at least two years. A person with DO might have a pessimistic mood all the time: a poor appetite or the len路 dency to overeat; trouble sleeping or a need to sleep all the time; low self-esteem: trouble concentrating; and a feeling of hopelessness. Women, again, are the most common sufferers - in this case. ages 25 to 64. Bipolar disorder, also called manicdepressive illness, strikes men and women equally, the only depressive category that shows such democratic tendencies. With bipolar disorder, a person's mood swings wildly between manic highs, with periods of framic physical and mental activity. and depressive lows. The periods can last for days or weeks. HOll IS DEPRESSIO\ TRE.ITf:Il?

_

Being depressed is quite different from being sad; the emotional symptoms and physical manifestations of depression pervade every aspect of a persoll's life,

Because of the combination of physical and emotional implications of depression, it orten takes a combination of both psychotherapy and medication to combat it. Electroconvulsive therapy, or shock treatment, is a controversialmethod; even its proponents cannot fully explain why it seems 10 help people with depression. Some who have had ECT. as il is called. give it full credit for alleviating their depressive symptoms. On the other side. many experts condemn the practice. citing side effects such as long-term memory loss and instances where ECT has precipitated heart auacks or other medical emergencies. A person who is depressed is often not in the posilion 10 make thoughlful, carefully considered decisions about his or her treatment. In those cases a trusted family member or friend might work wilh a professional to help evaluate the pros and cons of each treatment option. Medications for depression are grouped into two basic types. antidepressants and mood stabilizers. Antidepressants, such as Prozac. Paxil or Elavil, serve to treat the brain chemical imbalances that trigger


and support major depressive disorder and dys路 thymic disorder. Mood stabilizers, such as lithium, are used to even out the mood swings associated with bipolar disorder. Generally, psyehotherapy for people with depression will explore cognitive behavior, focusing on a person's distortions in thinking about herself and the world, or interpersonal rclationships, focusing on the person's stress and conflict in those relationships. H(m DOES A PERSO\ \VtTll DEt'RESSIO~ GET HELP? Beeause il can manifesl ilself in physical symptoms such as stomach problems or anxiety or lllask itself in other disorders such as alcoholism, depression is often difficult to diagnose. A person who SUSpeCIS she may have depression should be specific about symptoms and moods to help her primary physician make a diagnosis and refer her to a specialist. Many menial health special iSIS, including psychiatrists, psychologists, social workers and counselors are trained to treat depression.

JONES, JACKSON & MOLL, PLC

jones, jackson & Moll, PLC is pleased to announce that

40 I NORTH 7TH STREIT W. BOX 2023

FORT SMITli. ARKANSAS 72902 SOI7B2-7203

JAY KUTCHKA has joined the firm as an associate. jay is a 1995 graduate of the University of Arkansas at little Rock

FAX 501 782-9460 School of Law. Since gFaduation he has served as law clerk to ROBERT l. JONES, jR. RANDOLPH C. JACKSON

U.S. District judge Susan Webber Wright.

KENDALL B. JONES MARKA. MOlL j. SCOTT HARDIN

August 1996

HOll LO'G DOES IT TAKE To TREAT DErRf~'iStO\?

Just as people don't become depressed overnight, they don't recover from depression overnight. either. Professionals usually ask patients to give antidepressant mcdication a trial of at least six weeks before judging its effecliveness. Psychotherapy can begin 10 help immediately. or it could take weeks for a depressed person to recognize how his or her own perceptions of the world are contributing to the illness. Frequently, various symptoms will respond to treatment at varying paces. For example, a person may be able to sleep through lhe night long before he will enjoy resuming his routine of jogging three miles a day. Experts agree that catching depression early, diagnosing it correctly and treating it wilh the proper combination of medication and therapy offer mil路 lions of Americans a good chance of recovering from depression and emerging from the darkness.

Originally published in A,kallsas Hospitals, Summer 1996 edilion. Reprinted with permission from Arkallsas Hospitals.

Plaintiff's Trial Lawyer

.

ine Bluff personal injury firm is

D

seeking trial lawyer with a min-

.. ...

imurn of 3 years experience.

Jury trial experience required. Response Being a judge is filled with stressors such as overloaded dockets. personnel/management issues, and media requests. If you are a judge. and you are concerned about how to cope with stress on and ofT the bench. you should purchase a copy of Judicial Welllless: A Stress Ma/lagemem Guide For alit! By

Judges, published by The National Judicial College. This guide will help you replace anxicty.prooucing alliludes with stress

management skills. Through a self examination test. you can learn to identify the stessors in your professional dUlies and how to deal with them. "Judging is stressful, Judges must resolve connie! and resolving conflict is stressful, especially with increasing dockets and fewer resources. This guide is of significant value because it helps identify stressors. gives the lools to cope and helps replace anxiety-producing attitudes with poSitive views," said Judge Kenneth A. Rohrs. dean of The National Judicial College. The cost of the book is $12 for a soft corer edition. To order, or to obtain more information cnIl800125-JUDGE (8001255-8343).

strictly confidential. Send resume to Pine Bluff, c/o Arkansas Bar Association, Attn: Sara Landis, 400 West Markham, Little Rock, AR 72201.

fl, Irhos'IIJIIJ,r

1',11 1991


Law Office Technology

Random Notes Redux by Margaret M. Newtoll

WII/\T "OULI) YOl I'/\\, FOR FRU: E\IAIL?

HoTMaiL, "The World's Only Web-based Free Email", is betting that you will gladly accept their offer for free email by allowing advenisements to be attached to your message. lt's not the advertisement I mind so much as trying to find a free Internet connection! View their

web page at http://www.hotmail.com. HAIL! H,\IL! TilE GJ\NC'S ALL HERE!

Most, if not all, of the staid publishers of legal tomes are on the Net these days. (Hmmmm. Seems like the "If you can't beat

'em, join 'em!" approach.) Take a look at West Publishing (http://www.westpub.com). Martindale-Hubbell (at both http://www.martindale.com and http://www.martindalehubbell.com). and Shepard's (http://www.shepards.com). Also on the Web, Arkansas' own LOIS (http://www.pita.com). Lexis-Nexis (http://www.lexis-nexis.com). Defense Research InstilUte (hup://ww.dri.org), For Counsel, the gift

catalog for lawyers (http://www.forcounsel.com). and the anti路altorney Nolo Press

(http://www.nolo.com). Joining in the fray are literally hundreds of new outfits. each clamoring to be your one-stop'net-connection for legal info, etc. Be sure to

(http://www.eff.org). EPIC, the Electronic Privacy Information Center (http://epic.org), CDT, The Center for Democracy and Technology (http://www.cdLorg), VTW, Voters

cific search engines like LawCrawler

Telecommunications Watch

Always one to keep up the with the anti-technology counter-culture, this reporter investigaled a tome entitled Millutes of the Lead Pencil Club:

(http://www.vtw.org), and Ihe old stand-by, ACLU, American Civil Liberties Union (http://www.aclu.org). Be sure to keep your eye out for Ihe Blue Ribbon "seal of approval", explained at http://www.eff.orglblueribbon.html#graphics. Go FETCtt! Don't have time to web-surf, you say? With some new software products, called "omine web access technology." these gizmos will retrieve the customized info you seek and deliver it to your

desktop. Two of the hottest products are Milklruck and PointCasL Milktruck will bring you web sites that you can browse at your leisure, instead of being at the mercy of your modem speed. Read all about it at either http://www.milktruck.com or hup:llwww.travsofLcom. Don't care to wait ;tillthe 6:00 news for sports scores and info? Want only financial news? To get up-to-the-minute news-that-youchoose. check out PointCast at http://www.paintcaSI.com. TAKING TilE Pll;~GE

When you are ready to declare your presence

visit The Legal Pad (http:tnegal-pad.com), Court TV Law Center (http://www.cOurtlv.com). The

on the Web, be sure to do it right. Get your own

Seamless WEBsite, which takes its name from Judge Learned Hand's remark that "the law is a

domain name from InterNIC (http://www.internic.net), the entity that doles out names for cash.

seamless web" (http://seamless.com). HyperLaw. Ine. (http://www.hyperlaw.com). The Law Source (http://thelawsource.com), The 'Lectric Law Library (http://www.lectlaw.com). LawSight (http://www.LawSighLcom), Counsel Connect Web (http://www.counsel.com). LEGAL dot NET, the Legal Network for Everyone (http://www.legal.net). and Hieros Gamos, from the Greek meaning "harmonization of seeming

opposites, e.g. sun and moon, earth and sky, mercury and sulfur and, in the case of the Internet, electronic and wriuen infomlation"

But be aware of the group's policy on trademark domain names in case someone stole your first choice, discussed at hup:/Iwww.patents.comlnsi.sht. Some thoughts on web page content: avoid using too-large or numerous graphics; be careful

about giving 100 much info or stale info; check your links periodically to avoid error messages and dead links; be sure to include direct contact info; and, remember thai repeat surfers will come back only if you conlinue to updale your site. Bur I STILI. IlA\'E'J'T FOU'l1) 'Ht\T 1'~1 tOOKING

(http://www.hg.org).

FOR (11m. APOLOGtl:~ TO

WATCHDOG WATCH

Net freedom of speech. Check out EFF, The

Searching the Net is an inexact science, and becomes more so with its exponential growth. Complicaling the lask is the disparate nature of search engine methodology. Some solutions: CINet's Search.Com. acompilation of search

Electronic Frontier Foundation

engines (http://www.search.com); and legal-spe-

Although the CDA (Communications Decency Act) was quashed, several groups don't intend to let their guard down when it comes to

U2)

(hnp://www.lawcrawler.coml) and FindLaw (http://www.findlaw.coml). ANTI-TECH TALK

Pulling the Plug all the Electronic Rel'olwia", edited by Bill Henderson (Pushcan Press, 1996). The Club's manifeslo states, in pan, ';We will avoid fax and hang up on voice mail. We will receive no E-mail and send none. If our computers develop a virus, we will seek no cure." I guess I'll just wait until the book comes out on

CD-Rom. Be sure to check out the HOIl-lille version of Popillar Lllddite Magazine" at

http://members.gnn.com/RadioGuylluddite.htm. What more can I say? E~IAIL SIGNATURES, PART A According to a recent posting I saw, netiquette dictates that email signatures should be ;'4

lines or less." Such slringent standards don't allow for much creativity, such as (and I am not

making this up) a one-half page graphic representation of a dolphin leaping out of the water, or statements summing up the sender's philosophy. One of my favorites comes from a fellow who

posts to the Net-lawyers listserv. David 1. Loundy's signature includes the quote by Douglas Adams,"1 love deadlines. I like the whooshing sound they make as they Oy by", and his professed avocation, "Researching car-jackings, drive by shootings and other over-used metaphors on the Information SuperHighway."

Drop David a nOle at David@lnierAccess.com. Other good quotes to use in your signature: "I think there is a world market for maybe five

computers", by Thomas Watson, chairman of IBM, in 1943; and "There is no reason for any individual to have a computer in their home", by Ken Olsen, president, chairman and founder of

Digital Equipment Corp., in 1977. E:\IAIL SIG'J\TURF.s, PART

2

Washington State legislators have passed a "digital signature" bill which will govern the use of such signatures in electronic transactions. The

bill becomes effective on January I, 1998. According to a news release from Washington

Secretary of State Ralph Munro, the Washington Electronic Authentication Act, S.B. 6423 "pro-


vides a secure and convenient way for businesses to electronically transfer contracts, leuers of credit. payments and other formal documents which in the past have required a written signature." (Do ya' suppose that will include legal pleadings?) How does it work? "Under the law, digital signature codes will be issued by private companies licensed by the Office of the Secretary of State. The privale vendors will also serve 10 verify the codes once they are in use." Read a copy of the bill and its history at http://legi nfo.leg.wa.govIpublbi IIinfo/senate/64oo-6424/. E'IAIL

v. NEWSGROUPS

A philosophical difference of opinion reared its ugly head at the Pulaski County Bar Association's "A Lawyer's Guide to the Internet" CLE this past Spring. One presenter noted his fondness for newsgroups. where one must seek out info (and Judge Bogard, you know who you are). By the by, be sure to check out the Judge's tribute to The Fayetteville & Eastern Railroad Company at hltp://www.intellinel.com/-mustangl. Utilizing links to other railroad web sites, this polished homepage is definitely a "Glamour Do". On the other hand, another CLE presenter (yours truly) prefers emaillistservs, a god-send to the overworked masses who can', seem to find the time 10 surf. Some of this intrepid reporter's fav listservs: net-lawyers (To:

"Now I acflwlly /ook!orfmrd to preparing btmknlptcies - if is so easy."

listserv@lawlib.wuacc.edu; Message: subscribe net-lawyers <first and last name»; legalethics (To: listserv@lawlib.wuacc.edu; Message: subscribe legalethics-I <first and last name»; L11 Bulletin (U.S. Supreme Coun cases) (To: listserv@lii.law.comell.edu: Message: subscribe liibulletin<first name><last namexemail»; legaltech (To: listserver@abanel.org; Message: subscribe legaltech <email address»; The Squib from Counsel Connect (To: listprocrequest@counsel.com; Message: subscribe thesquib <full name»; A Word A Day (To: wsmith@wordsmith.org; Subject: subscribe <full name», and Laugh of lhe Day (not for the easily offended, lots of tech talk) (To: rnajordomo@world.sld.com; Message: subscribe lotd <email address». A quick correction for those wanting 10 sign up for the Arkansas Lawyers listserv (To: listproc@citabra.uark.edu; Message: subscribe <full name». PLUGGI:oI' TilE I'LUG-IJ'liS

First Java, and now Shockwave and RealAudio, etc. Where will it stop? And I thought frames were the end-alJl Margaret M. Newton is all at/omey with Matthews, Sanders & Sayes ill Little Rock. Phone (501-378-07/7), write (825 West Third, 72201), fiu (50/-375-2924) or email (mmn@aristotle.llet) her wirh commenrs, sllgges t;ons or prayers for finding a sense ofhumor.

COMING SOON••• Tile Arkansas Environmental Reporter, published monthly by the Arkansas Bar Association Environmental Law Committee beginning January, 1997.

Tile Arkallsas Envirolllllental Reporter wil.l col.lect and report on Orders of the Administrative Hearing Officer of the Arkansas Commission on Pollution Control and Ecology, Minute Orders of the Arkansas Commission on Pollution Control and Ecology, Administrative Orders issued by the Director of The Arkansas Department of Pollution Control and Ecology and rule-making and policy guidance by the Arkansas Department of Pollution Control and Ecology. Subscription for one year (12 issues) is $35 for Arkansas Bar Association members, $50 for non-members.

Medical Record Review

..5lf. ,1larioIl. OH

NEW WINDOWS VERSION Poi'lt, Click & File

JD/RN experienced in personal injury and medical malpractice will review medical records, evaluate cases, set up files, and provide both substantive and procedurallitigation support. Don't miss hidden discovery opportunities, call Judy King Bishop at Wilder, Crone, Johnston, Mason & Goodwin, PLC, Attorneys at 200 Jefferson Ave, Suite 125, Memphis, TN 38103 or call 901-527-5522.

Toll Free Customer SlIpportlJollinc PrilllS IUglJ QllfllU), 7)1>esel Forms

70110', 7& 13, 7·1I-12-13 & Network Packages 60 Dc')' MOlley-Back C'uflranlee

DOS Versioll Also Avai/t,ble

CALL Now & SWITCII To Til' 8oo!

1.800.492.8037 Call For Free I)cmo

Disk, References & Information Or Reach Us On

The World Wide Web at www.beslcase.com BEST C.""E SoWTlOSS, b,t, 635 Chicago Asenue Suite 110

E\'"JJISlon, illinois 60202

Expert Witness - Trust & Bank Investments 19 years Trust Investment experience. Formerly Vice President & Portfolio Manager Chase Manhattan, Sun Bank, United Jersey Bank. Chartered Financial Analyst (1979)_ Cum Laude Graduate-Wharton School, University of Pennsylvania, B5Economics with dual major in Finance & Economics. S.E.c. registered Investment Advisor. Four years stand-up performer in Philadelphia, PA. Experienced in facing tough rooms. Steven D. Stern, CFA, 161 Crandon Blvd. r Ste. 325 Key Biscayne, FL 33149 (305) 361-9772


Law Laughter & Literature

Did They Really Say That? Copyright 1996

by Vic Fleming

LaSI issue, for Ihe firsl and only time since ilS inception in 1984, LLL occupied more Ihan one full page, I wanl 10 take Ihis opponunily 10 !hank Ihe editor for allowing me thai license, which she has now agreed to permil me 10 do once every twelve years. As many of you know, this issue of Arkansas Lawyer finds the LLL columnist in Ihe midsl of a political campaign; therefore, with but a minimum of creativity. I am going to rcprim a variety of Real Life Humor, trusting that you can do the rest for yourselves. David Dinkins, NYC Mayor. responding to an allegation Ihat he failed to pay his taxes, stated: "I haven'l commilled a crime, What I did was fail 10 comply with !he law," John Hogan, Commonwealth Edison spokesman. responding to an allegation that nuclear plant operators were dis路 covered to be sleeping on the job, stated: "II depends on your definilion of asleep, They were nol slrelched out. They had their eyes closed, They were seated al their desks with their heads in a nodding position:' Brooke Shields, imerviewing 10 become Ihe spokesperson for a federal ami-smoking campaign, Slated: "Smoking kills, If you're killed, you've losl a very important parI of your life." WinSion Bennell, a college basketball player al the University of Kentucky, commenting on his physical condilion, slated: "I've never had

liiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiijiiiiiiiiiiiiiiiiiiiiiiill1lajor knee surgery on any other part of my body," Dan Quayle, laking a posilion on lerm limilS, Slated: "I suppon efTons 10 limil the term of members of Congress. especially members of Ihe House and mem, bers of Ihe Senate,"

BEST BUYS IN TERM LIFE Male Non-Smoker Annual Premiums Annual 10 Year 20 Year Age Increase Level Level 35 $ 370 $ 400 $ 575 40 395 575 775 45 470 800 1,225 50 670 1,200 1,925 55 970 1,785 2,825 60 1,545 2,775 4,475 65 3,120 4,815 N/A 70 6,420 9,160 NJA These premiums are drawn from a market survey of 550 policies from 175 insurers rated Excellent or better by A.M, Best.

Call today for a no-obligation quote!

:

,,

Leon Wood, New Je""y NelS baskel' ball player, asked TV commemator Steve Alben: "Are you any relation 10 your brother Marv'!' Dizzy Dean, Ihe Hall of Fame base, ball pilcher. describing his trealmenl fol, lowing being hil in the head with a ball during lhe 1934 World Series, stated: "The doclors x-rayed my head and found nothing:' And then there was my friend

Wilhelm, who, in attempting 10 explain why he and his spouse had not been seen out and about in the neighborhood much during the winter, stated: "In the winter lime we lend to be real refugees."


For Small Law Firms The most affordable online legal research service for small law firms, offering case law, statutes, law reviews, the LEXSEEfJ/LEXSTArfeatures and moreFlexible Choices for your practice. LEXIS~

MVP is now LEXIS-NEXIS ADVANTAGE For Small Law Firms with more features, more flexibility and more affordability for solo practitioners and small law firms on a budget. Consider the ADVANTAGE: • LOW; FLAT MONTHLY RATES .., affotdable, predictable pricing, for as little as $110 per month',

• COMPREHENSIVE .., state and specialty libraries, statutes, administrative materials, law reviews and more,

• UNLIMITED ACCESS .., search as much as you want and as often as you need - at home or in the office,

• FLEXIBLE CHOICES .., select any combination of Flat-Rate libraries to meet the individual information needs of every attorney in your firm, • CURRENT .., case law always up-to-date,

• THE LEXSEP/LEXSTAT FEATURES .. , an easy and convenient way to retrieve individual cases or statute sections from virtually any jurisdiction simply by using the citation,

• ONLINE EXPERTISE .., allows you to compete with even the largest firms,

Give yourself the ADVANTAGE you need

to

compete - and win!

LEXIS', NEXIS'

For more information, call

1-800-356-6548 LEXIS" NEXIS' a..._~

..--- . . -

ADVANTAGE FOR SMALL LAW FIRMS

UNIVERSITY OF ARKANSAS AT LITTLE ROCK

•All pncing Illdudrs ~ subicnpaoo f«.1'licts in Cillami&, Midupn, ~ Jmt)I Nrw York and 0Iu0 begin at S150 per month. !'lice quottd is fOI ont alIomt): AddIOorW dIarF appIia for ach 1lUlm:J m dlt linn. Note: :Il;lle and Io:x:aJ lUeS llOIlIldudtd. Some tesmcnom iIpp/y. Pncz:s llIb,ta 1Ochqe. LEX1S, NEXIS, L£XSEE and lEXSTAT ire ~ tr.Jdrrnuklal P=l EIscvJcr ~ lnc.,llled under bcmlr. The INfORM,mON ARRAY IoF lSi lI'alIrnwkol RmI f'.IscvICf!'topmJes Inc" lIlCd urodct IKcnst. el996 LEXlS-NEXIS. adMsionalRml E1kvler Inc. All rigbl$ rame:!.

I

ARml.

I


What's Wrong With Appellate Law In Arkansas Anyone who reads the Arkansas Advance Sheets can see that far too many appeals are resolved on procedural, rather than substantive grounds. The number of times that even talented and respected litigators in this state fall victim to procedural defects on appeal is disturbing. I feel that the most serious problems in appellate procedure arise in three areas: 1) timing of filing the notice of appeal, 2) timing of filing the record, and 3) abstracting. One solution is that alllitigators who hope to go beyond the trial court familiarize themselves with these problems. But I also feel that the rules themselves are in need of change.

by Gerry Schultze 10 Th, Irlm'l I."J"

1',111996


I.

TIMING OF FlUNG NOTICE OF AI)PEAI ..

of after the 30th day, it's no good 5 You can

dare on which a timely post-judgment motion

John J. Watkins's article, "Notice of Appeal:

never be sure what type of motion will be

under Rule 4(b) is deemed to have been dis-

Timing is Everything"l deals with timing issues

deemed the equivalent of one of those

posed of undcr Rule 4(c), whichever is

in detail. I don't want to repeat whm he said so

post-trial motions. 6

later." 11

There are a number of cases in which the

To see how dangerous this is, see Pennington v. Harvest Foods. 12 In that case,

some of the problems he discussed in his article

Court has dismissed appeals for problems relal-

judgment was entered against defendants on

to point out the reason for my concern.

ed to motions for new trial. The Coun has. on a

October 25, 1994. Dcfendants Penninglon, Annslrong, and Service Brokerage filed post-

tutes a final order. This is usually a problem in

number of occasions, resolved questions of first impression against the party filing the appeal. J

judgment motions on November 4, 1994. Other

connection with a final order that does not

The number of traps in this area is truly astound-

defendants filed their posl-judgment motions on

release all the parties or resolve all the claims.

November 7, 1994. On December J, 1994, the

Ark. R. Civ. P.54(b). It is sometimes a problem

ing. Consider, for example, some of the ways Ihat a valid notice of appeal can be dislodged 8

trial court entered an order denying all the post-

when there is a question whether a particular

A subsequent motion for a new trial may dis-

judgment mOlions. Pennington filed a notice of

order is collaleral. 2

lodge an otherwise effective notice of appeal. In

appeal on December

NEGOTIATL'lG TilE SER80NIAN BOG.

dicta in (mig v. Traylor,9 recently, the

15, 1994. Armstrong and Service Brokerage

Arkansas Supreme Court suggested that a post-

filed their notice on December 19.

recently and so well. I would like 10 use

There is some uncenainty about what consti-

Justice Hickman said it best: I have come to the conclusion that it is hazardous for a lawyer to file any motion for post-judgment relief. He will enter a maze of our rules and our decisions which qualifies

for Ihe legal "Serbonian Bog" award (which, no doubl, Justice Cardozo intended 10 establish by his dissenl in the case of Lalldress v. Phoellix MUllIal Life IllS. Co., 291 U.S. 491 (1934)3 Frankly, Ihe bog has only gOllen more Serbonian since Justice Hickman graced us with

judgment mOlion filed by one defendant would

The coun reporter was unable to prepare the

serve to invalidate a timely notice of appeal filed

record in 90 days, so, on February 22, 1995, the

by another defendant. Fortunately, in that

appellants asked for an extension to file the

case, one technical snafu deserved another, and

record until what they believed was the last

since the subsequent motion for new trial was

possible day, July 7, 1995. The record was filed

not in the record, it did not dislodge the notice.

on July 7, 1995.

It used to be that filing

(00

early even on the

In a 4路3 decision, in acase of first impres-

same day the judgment was entered would inval-

sion, the ArkansasSupreme Coun dismissed the

idate a notice of appeal. 10 Dismissing an

appeals of Pennington, Armstrong, and Service

appeal because a notice was filed too early is

Brokerage because the record was filed too late

that quote. See also, State Farm v. Mobley,4 in which Judge Mayfield,

concurrillg, noted, "The filing of a motion for new trial is fraught with great procedural danger- unneces-

"The Court has changed the rules since those cases, but rather than drain the swamp, they have merely repositioned the alligators."

sarily so - it seems to me."

To be sure, the Court has changed the rules since those cases, but rather than drain the swamp, they have mere-

ly repositioned Ihe alligators. The basic rule is that you have 30 days from the entry of judgment to appeal. If you file one of several

post~lrial

motions, including a motion

for a new trial (Rule 59), a mOlion for judgmenl notwithstanding the verdici (Rule 50), or a motion to amend findings of faci (Rule 52), then the trial coun must rule on the motion within 30

days. If the trial court does not rule, Ihe motion is deemed denied, the trial judge loses jurisdiction, and a nOlice of appeal must be filed after

thai day. If you filed an early notice, it's no

particularly harsh. Everyone knows whallhe

as to those appellants. The Court reasoned:

intent of the appellant was. There is no way a

litigant could be prejudiced because his opponent acted too early. To dismiss an appeal because a nOlice was filed too early serves no

legitimale purpose and prolects nobody's rights. 2. TtMING OF FILING RECORD.

The record must be filed within 90 days of the filing of the first notice of appeal. If you designated any testimony

(0

be typed, you can

get an extension for up to seven months. "In no

In this case, the motions filed by Mr. Pennington, Mr. Armstrong. and Service Brokerage on November 7, 1994, are Iisled

in Rule 4(b). However, according to Rule 4(c), they were "deemed denied" on December 4, 1994. Therefore, each of these parties had until July 5,1995 in which to file their record. Although Mr. Armstrong and Service Brokerage filed Motions for Remittitur, they cannot claim December 7,

1994, as the starting dale for their seven-

event shall the time be extended more than

month extension because such a motion is

seven (7) months from the date of the enlry of

not contemplated by Rule 4(b). Id. at 823.

the judgment, decree or order, or from the

good. If you file on the 30th day, instead II lhr \rlanml,,,)rr

fall 1996


It is difficult to explain to the public why an

and it slows down the wheels of justice. The

the kind of rulings we see in Pellnington.

appellate court would fail

Court's tendency to avoid the merits because of

Sometimes records get thrown out because the order extending time is "entered,, 13 1ate. even

because of an abstracting error. It's especially

materials left out of the abslract or appendix is

bad in high-profile cases like the Jocelyn Elders case 14 The Boren 15 case is also a good recent

probably what doomed the appendix

There are enough traps in the system without

though the motion is made and the order signed within the 90 days. If there is nothing to tran-

10

reach Ihe issue

example of what a mghtmare abstracting ineffi-

experiment ix years ago. 17

Another problem is that the Court will raise technicalities on its own mOlion.

My best personal example occurred during the appendix

"The Court has said tilDe and tilDe again that it is the lawyer's responsibility to see to it that the record is prepared on tilDe. But, in fact, we don't pay the court reporters' salary and we can't fire thelD. In the not-too-uncolDlDon event that the court reporter tells us that he or she silDply can't get the record ready in tilDe, the law is insufficiently clear on what to do about it."

experiment. In Egg City of Arlwnsas v. Rushing lS , the Court refused to consider an appeal of a

refusal to impose sanctions for a frivolou motion on the ground

that the appellee had not crossappealed.

either appellant had

raised that issue, not the appellant Egg City, who did nOI abstract plaintiff's notice of cross-appeal, nor appellant Raby, who did include the notice of cross-appeal in his appendix. Appellee and cross-appellanl did not abstract his notice of cross-appeal because

scribe. an order extending the time 10 file

more than 90 days is invalid. The Court has said time and time again that

plain! led to one case remaining undecided while acompanion case was decided in such a way

as

the Court came down, appellee instructed his lawyers not to petition rehearing on the cross-

it is the lawyers responsibility to see to it that

to make whatever might have been in the com路

appeal. After all, he had just had a $450,000

the record is prepared on time. BUI, in fact, we

plaint immaterial).

judgment affirmed in his favor and he didn't

don't pay the court reporters' salary and we

Abstracts are too damn long because we have

wanl to take any chances. But the lesson

can't fire (hem. In the nOHQO-uncommon event

to abstract everything that has marginal rele-

here is that the Court raised a procedural issue

that the court reporter tells us that he or she sim-

vance to the issues or the validity of the appeal.

on its own motion.

ply can't get the record ready in time, the law is

The plain language of the rules suggests

The Court just happened to have its facts

insufficienrly clear on what to do about it. The

otherwise. The appellant's abstract or abridge-

wrong. The Court's error on the facts was easily

Motion for Certiorari to complete the record is

ment of the record should consist of an impartial

understandable. Appendixes were bulky.

fraught with peril.

condensation. without comment or emphasis, of

unwieldy, and it was hard to find things in them.

3. AIlSI'RACIlNG.

only such material parts of the pleadings,

But the point is that if the Court would depend

proceedings, facts, documents, and other matters

on the panies to raise technicalities, in order (0

abstracting. or failing to abstract infonnal.ion

in the record as are necessary to an understand路

give the other pany notice of the issue and a

from the record that the Court would like to

ing of all questions presented to the Court for

chance to respond, this type of error would not

have. will doom an appeal. To me, the obvious

decision.. 16 In fact, the only italicized word in

occur.

thing to do with a bad abstract is to send the

these rules is "only." But, in practice, the Court

brief back to the lawyer and tell the lawyer to

often refuses 10 consider an issue because some路

improvement of the law, the administration of

return the brief properly abstracted along

thing wasn't abstracted. To play it safe, the

justice and Ihe quality of service rendered by Ihe

Abstracting is a major problem. Insufficient

It

it was in Raby's appendix. After Ihe opinion of

ciencies can cause (failure 10 abstract a com路

Anyone can complain. But my duty to "seek

with an affidavit that there was no charge to the

lawyer must abstract everything that might be

legal profession" 19 requires that I do more than

client for the extra work. To the Court, the obvi-

marginally relevant. It creates more billable

complain. The Supreme Court is the body

ous thing to do is refuse to consider the issues.

hours for attorneys, but more work for the Court

which, in the first instance, has the right and the

n, \r~lOlIll~"!u

1',11 1996


But it seems (0 me that procedural defects pre-

of this state. Please consider revising the rules

the administration of justice. Quite frankly, I'm

vent the appellate courts from reaching the mer-

in order 10 achieve substantial justice.

duty 10 amend the rules as needed 10 improve

not sure that anyone has ever asked the Coun to

its far too often in Arkansas. I believe that reso-

consider revising the rules. I believe the rules

lution of cases on the merits is in the best inter-

need to be "humanized" to sharply cunail the number of appeals which are never decided on

ests of the law, the litigants, and the legal system. I agree with the sentiment in Rule I of the

Gerry Schulze Gerry Schulze is an auomey with the firm of Gary Eubanks and Associates. He was the

the merits. I'm asking Ihe COUl110 do so now.

Inslitute Chair of the Arkansas Bar Association's

propose amendments to the rules 20 to remedy

1996 Appellate Advocacy Institute and is a member of the Appellate Practice Commiuee of

the problems I believe cause the most trouble. I invite others to suggest other improvements.

Every time the Coun avoids the merits on a procedural technicality justice is denied. It creates dissatisfaction and disrespect for the legal system and a potential malpractice claim against

the auomey. If these in tance were rare, perhaps my complaint would be ill-founded. But you can hardly pick up an advance sheet without finding an abstracting error here, a 54(b)21 or 4(c)22 ruling there, and two or three procedural

"I believe the rules need to be "humanized" to sharply curtail the number of appeals which are never decided on the merits."

snafus in criminal cases referred 10 the Commiuee on Professional CondUCI.

I have no quarrel with the concept that lawyers ought to read and follow the rules. I am cenainly aware that failure to follow the rules

Arkansas Rules of Civil Procedure that the rules should "be construed to secure the just, speedy,

makes the already difficult job of our appellate

and inexpensive delermination of every action."

courts even harder. I recognize that in many

Too many cases tum on procedural problems.

areas, in particular the speed with which cases

That suggests to me that something is wrong

are decided after submi ion, Arkansas litigants

with the rules. I address thi petition for redress of grievances to the justices, judges, and lawyers

are among the most fonunate in the nation 23

the Arkansas Bar Association. He has handled over 50 cases at the Arkansas Appellate Coun level. He is the host of "Law Talk," on KAR , and performs the "Legal Briefs" commentaries on the Arkansas Radio Network. End 'ote I. 31 Ark. Lawyer 12 (Spring 1996). 2. Some examples of collateral orders are: a motion for attorney's fees, Marsh &: McLennan ofArkansas v. Herget, 321 Ark. 180, 900 s.w. 2d 195 (1995); a motion for sanctions, Spring Creek Living Ctr. v. Sarrell, 3I8 Ark. 173, 883 S.w. 2d 820 (1994); a motion to tax interest, Smith v. Smith, 5I Ark. App. 20, 907 S. W. 2d 755 (1995). 3. Poale v. Poole, 298 Ark. 550, 551-52, 768 S. W. 2d 544 (1989). 4. 5 Ark. App. 293, 296, 636 S.w. 2d 299 (1982).

See Appellate Law on Page 27

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

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

n, ,lrlu\Il Li~W

Fall 1111


Arkansas Bar Foundation Announces 1996-97 Officers, Board Members The Arkansas Bar Foundation announces

SPECIAL PROJECT GRANTS

Arkansas Bar Foundation Special Projects Committee Chair Steve Sharum invites the submission of grant applications for legally related special projects.

the Officers, Board of Directors and Committee Chairs for the 1996-97 Bar Foundation year. rr W. Russell Meeks, III, Little Rock PRESIDE

VICE PRESIDENT

A. Glenn Vasser, Prescott

DEADLI E FOR SUBMISSIO, : 4:00 P.M., FRIDAY,

OVEMBER 22, 1996.

The applications will be circulated to the Special Projects Committee immediately and the committee will meet for its fir t interview in December. Arkansas Bar Association and Foundation Committees and Sections and other entities and individuals having worthy, legally related projects may submit grant applications.

SECRETARY-TREASURER

James D. Sprott, Harrison

No grant money will be approved finally or be available until after the Trust Committee meets in January, 1997 before the Foundation's Mid-Year dinner.

BOARD OF D,RECTORS EASTERN BAR DISTRICT

1997 Mike Everett, Marked Tree 1998 Donis Hamilton, Paragould 1999 Bobby McDaniel, Jonesboro

To request an application, or to ask questions, write the Arkansas Bar Foundation, 400 West Markham, Little Rock, AR 72201 or call Ann Dixon Pyle at the Arkansas Bar Foundation by dialing (501) 375-4606 or (800) 6095668.

WESTERN BAR D,STRICT

1997 Eddie H. Walker, Jr., Fort Smith 1998 Martha Miller Harriman, Van Buren 1999 David K. Harp, Fort Smith

Arkansas Bar Foundation Committee Chairs

CENTRAL BAR D,STRICT

AWARD

1997 Paula J. Casey, Little Rock 199 Richard A. Williams, Little Rock 1999 W. Russell Meeks, Ul, Little Rock

W. Russell Meeks, III TRUST

SOUTHERN BAR DISTRICT

Paul B. Young

1997 A. Glenn Vasser, Prescott 1998 Worth Camp, EI Dorado 1999 Ed McCorkle, Arkadelphia

SPECIAL PROJECTS

NORTHER

SELECTION OF FELLOWS A '0 MEMBERSHIP

Richard L. Ramsay

Paul B. Young, Chair, Trust Committee

BUILOING

David Solomon SCHOLARSHIPS & MEMORIALS

Frederick S. Ursery

Harry Truman Moore, President, Arkansas Bar Association

II

ne \r~lISll tlll)/r

rill 1996

I

Recognized in "Best Lawyers in America" Publication

I

Eleven Lawyers be Large Support Siaff

I

Flexible Referral Arrangements

I

Frequent Reporting be Updating

WRITING AWARDS

Victor A. Fleming

Full lime In路House Investigative

Staff

OIT

Thomas L. Overbey

Charles B. Roscopf, Immediate Past President, Arkansas Bar Foundation

AV Martindal..Hubbel Rating

I

A EX-OFFICIO

I

Stephen M. Sharum

BAR D,STR,CT

1997 Morton Gitelman, Fayetteville 199 James D. Sprott, Harrison 1999 David Matthews, Rogers

NEED LOUISIANA PERSONAL INJURY COUNSEL?

I

Maritime. FELA, Aviation,

Automobile, Products Liability, Highway Design Nationwide Toll Free 1-800-256-1050 NEBLETT, BEARD

& ARSENAULT Alexandria, Louisiana Attorneys


Arkansas Attorneys Helping the Poor in Civil Matters Through Pro Bono Representation and Financial Contributions. VOCALS serves 32 counties in central and south Arkansas.

Volunteers Organization, Center for Arkansas Legal Services

For more information. contact Mary Henry at 800-950-5817 (501-376-3423 in Pulaski County) or complete and mail the membership form on the reverse side of this page. (The Center for Arkansas Legal Services is a recent merger of Central Arkansas Legal Services and Legal Services of Arkansas.)


Membership Form VOCAlS---------------------""-------/\!'7\ .....,'-aJl Volunteers' Organization, Center for Arkansas Legal Services 209 West Capitol, Suite 36 I Little Rock, Arkansas 72201-3678 Phone: 501-376-3423 I Fax: 501-376-3664 I Toll Free: 8OD-95O-5817

NAME: FIRM NAME: BUSINESS ADDRESS: CITY:

I ARREGISTRATION SUPREME COURT I:

OFFICE PHONE:

IZIP:

(Check Option A or B, and Sign Where Indicated)

I hereby join VOCALS by agreeing to represent up to three clients of the Center for Arkansas Legal Services each year free of charge except for the payment of necessary court costs which cannot be waived by a Pauper's Oath. I am willing to represent VOCALS clients in the following counties as indicated by a check mark:

Little Rock Office

ConwaY Faulkner Lonoke Perry PraIrIe Pulaski Whlte

DID

El Dorado Office

Ashlev Bradley Calhoun Columbia Dallas Nevada Ouachita Union

Hot Sprlnl!s Offic.

Pine Bluff Office

Clark Garland HotSprtng Howard Montgomery Pike Polk Sallne Sevier

Arkansas Chlcot Cleveland Desha Drew Grant Jefferson Lincoln

I hereby join VOCALS by the payment of annual dues in the amount of $350. Enclosed is my check made payable to the Center forArkansas Legal Services, Inc. (Contributions to the Center are tax-deductible if one itemizes deductions, and these funds are used to further legal assistance to the poor.)

Signature of Attorney

Optional Panels

Check Panel(s) Desired

D fee-generating Fee-Generating Cases. In addition to A or B above, I agree to consider referrals of the Center's clients who have potential cases, and if I decide to handle the case, my attomey's fee will be contingent upon the outcome of the case. The client can be required to pay necessary court costs if they are not waived by a

D Social Security Disability Cases.

Paupe~s

Oath.

In addition to A or B above, I agree to consider referrals of the Cente~s clients who have

SSD cases.

Return this form to VOCALS at the above address.


,...-------------------------- --

-

-

--

The ABA Members Retirement Program was designed by lawyers, for lawyers. That's why it provides the options that today's law Finns need. The Program features a wide selection of investment offerings, plus comprehensive services that can eliminate administrative headaches and free up valuable, billable time. These are just a few of the reasons why we currently service over 5,000 plans in ule ABA Members Retirement Program.

OFFICIALLY ENDORSED BY

-

-

-- -

----------,

The Program offers comprehensive services and features including: Investments

• Core Funds • Structured Portfol ios • Self-Managed Brokerage Accounts Plan Sponsor Services And Assistance • Plan Design And Compliance • Complete Recordkeeping • Required Reporting • Plan Testing Participant Services • Account Acce s Through An Automated Phone System • Ongoing Participant Communication

Programs ABA MEMBERS RETIREMENT PROGRAM

• IRA Rollover Accounts If you're interested in a retirement program

designed around your fiml's requirements, call: 1-800-826-8901.

To obtain a prospectus obout the Progrlllll, learn about charges and expenses or sl>eak with a Plan Consultant, call 1-800-826-8901. Head the prospectus carerully before }OU forward or invest funds. 111e AHA Members Iletirement Progrum is offcrt-'<Ithrough Slate Street Bank and TllIsl Compully. AIlA Members Retirement Program • PO Box 2236 • Boston. MA 02107


The Uniform Probate Code: PRO/CON

Why Arkansas Should Adopt the Uniform Probate Code "If it ain't broke, don't fix it" has been the response I've heard from Arkansas lawyers opposed to the Unirorm Probate Code. So, just as I was preparing to write this article, I was interested to hear a speaker say in response to the same quip, "JuSl because you have a functioning syslem doesn't mean it is the besl one for your circumstances." Granted, this phrase isn't as catchy, but it is closer to the truth of our current situation. We have an adequately functioning probate system. The delays and costs that have led to the rush to "avoid probate" don't really exisl in Arkansas. On the other hand, ir you think a Probate Code enacted in 1949 is modem and well-adapted 10 current circumslances, take a look at a 1949 car. Even ir it ain't broke, it may be time 10 lrade. I could cite a number of reasons I support Ihe efforts to enact the Unirorm Probate Code, but I don't want to be overly lechnical or too lenglhy. So I am going to limit myself to a few points thai

I! lb' \r~m" I."y,r rail 1196

I think go to the heart or the mailer. SOME PARTS OF OUR CODE ARE BROKE.

Although almost all wills that are written by married people leave all or at least a substantial amount of the leslalor's property to a surviving spouse. In Arkansas. a surviving spouse will take one third or less of an intestate estate if the decedent also leaves children. I don't think that squares with most people's idea or what they want or what they expect. You could argue that the people who don't leave wills are satisfied with the intestate scheme. but I think most of us know intuitively that this isn't true. My hunch is that people who don't leave wills want about the same thing as those who write wills. The Unifonn Probate Code provides a surviving spouse with the decedent spouse's entire estate, if the decedent is survived by descendants who are all the descedants of the surviving spouse. t Where the decedent is survived by children of a prior marriage, the surviving spouse takes the first $100.000 or the estate and one hair uf the remainder. 2 Joint accounts aI banks and brokerage houses are continual sources of litigation in Arkansas. Muhi路party accounts are handled in the Code3. and while financial institutions are fully protected, the Code would change existing law which has an irrebuttable presumption that the surviving pany on a joint bank account receives the balance at the decedent's death. 4 This is so even when there is overwhelming and uncontrovened evidence that the decedent did not intend this result. For example. I have seen wills in which the decedent divided a bank account among his heirs. Onen this is a joint account (and was a joint account when the will was written) because many elderly people want to have another person who can help them with bill paying and other business. Under current law, the friend or rela-

tive who was named on the account only for convenience, takes all the money remaining in the account after the depositor's death. Experience tells me that in many estates. the multi-party account frequently results in injustice by frustrating the decedent's intent. THE COOE'S Ft.EXIBt.E ADMtNtSTRATtO' IS A NEEDEO CHANGE

Beyond these improvements in substantive law, the Code will bring a simplified procedure for the administration of decedents estates. The idea behind this administrative procedure is that court supervision ought to be available where it is needed - i.e. where there are complex assets or issues with creditors or where there is family dis路 agreement, but should not be required ir the parties don't need it. My own experience as a Probate judge tells me that lawyers and judges spend a fair amount of time filing routine papers in probate administration, for example 10 gain court approval of sale of real estate. Now I am aware that a great many routine maLLers may be waived, but I have signed enough of these papers to believe that a system which will concentrate legal and judicial resources on the issues that arc in dispute makes more sense. Inevitably when the subjeci of reducing coun involvement with probate administration is discussed, the issue of dishonesty by personal representatives comes up. Would the Code provide more opponunity for dishonesty? I can't honest路 Iy answer, except 10 say that I am not aware of any or the states which have adopted the Code reporting such an increase. I can say that dishonesty occurs today, and I sometimes wonder if the belief that the Court is supervising the personal representative lulls beneficiaries into a false See UPC/PRO Page 20


The Uniform Probate Code: PRO/CON

Uniform (Misnomer) Probate Code In stating my opposition to the enactment of the misnamed, Unifonn Probale Code. il seems a wasle of the readers' time to give another chapler by chapler analysis of that misnamed, Uniform Probate Code.

Associalion of Relired Persons (A.A.R.P.) Do you Ihink any of them appear 10 be prac· ticing lawyers who are experts in Probate prac·

tice of the law in Arkansas? I think not. A couple of them have been my dear friends for many, many years, bur in my humble opinion. I don't think that eilher their type

The first reason

that nobody wanlS another analysis, is that we already have had

dent, does not exceed fifty Ihousand dollars

( 50.(00): I Ihen told her Ihal she needed no regular. full probate proceedings and thai with the use of that small estate provision in the present.

Arkansas Probale Code, there absolutely would have been no waste of her time or money. I did·

n'l say everything that I thought aboulthe ignorance and/or ethics of that lawyer.

I venlure to say that al least 90% of the per·

several in circulation,

of law practice or being

sons whose names appear in the obituary section

and, I dare say, Ihose have been read by very

some of my oldest friends qualifies them to tell the

of the Arkansas Democrat-Gazene never need

Center one afternoon, and. when she got through.

anything more than Ihat short fonn of probale and most of them don'I need any probate at all. When, in 1949, ACI 140 was passed, our Probate Code came into existence. In 1949 thai comparable section of the Probale Code was Section 66(c), and Ihe amounl Ihen was $1,000 instead of lhe current $50,000. If you have this Misnomer Probate Code, do

I told all of those presenlthat in all of my life I had not heard anyone, in such a short period of

for the nexl 43 years? If you don't Ihen you will

few Arkansas lawyers and by even fewer mem·

probate lawyers of Arkansas what the Arkansas

bers of the Arkansas General Assembly. The second reason is thaI it is not unifoml.

difference who attempts to pass ii, a three dollar

Probale Code should be. It doesn't make any

Over the past several years. the Commissioners

bill is still a Ihree dollar bill, no matter who tries

on Uniform Slate Laws have changed and amended that proposed code on several occa· sions. Therefore. if Slate "B" adopled thai proposal len years ago, it would nOI be the same code thaI those Commissioners would propose today. Who cares whether Arkansas has the same probale laws as those of California. New York, Tennessee, Louisiana, or Illinois? Any Arkansas

to pass it.

lawyer who represents an estate that required

probale proceedings in Louisiana would be an --I Dot" if he thinks Ihat he is qualified 10 properly handle Ihe probale proceedings in another state with Ihe Misnomer Probate Code. Certainly I wouldn't want to characterize such a lawyer with

the derogatory tenn "idiol:' Have you ever looked 10 see who is pushing in the House of Delegates of the Arkansas Bar Association or who appeared before the Judiciary Comminee of the House of Representatives, for the adoplion of Ihe Misnomer Probale Code? A couple of well known experts in trial practice. a

I heard Ihat lady give her spiel in the Bar

you want all of the provisions to remain the same

time, give as much misinformation on the

have no alleged uniform act. If in fact it is nOI

Arkansas Probale Code as she had. and I assumed thai because she was nOI a lawyer, she

now uniform. how can anyone think that it will

might have some excuse.

not really uniform and if no one can believe that

Before thai House Judiciary Committee. she had some person tell a long and involved story of her trials and lribulalions in Arkansas Probate procedure and how some unscrupulous lawyer

had really "done her in:' When I asked the size of her estale, her

be unifonn 43 years from now? If in faci il is il will remain

the same for Ihe neXI 43 years. why do we need such monstrosi-

ty? When I had

answer clearly indicated that it was well under

Ihe limits conlained in Section 28-41- 101 of the Arkansas Code Annotaled (1987) as amended. Paragraph (aj (3) of that Section provides: The value, less encumbrances. of all property owned by Ihe decedenl al Ihe time of dealh. excluding Ihe homestead of and Ihe

couple of law professors and some woman who

statutory allowances for the benefit of a

says she appears on behalf of the American

spouse or minor children, if any, of (he

dece~

the honor to serve as the

Presidenl of the Arkansas Bar Association.

abour 20 years ago, we had a very able See UPC/CON Page 21

by James B. Sharp Il Thr ,Irllllal La')11 rail 1m


The Uniform Probate Code: PRO/CON

........................................................................................................................................ UPC/PRO COlltilllled From Poge /8

Code was introduced in the Stale

lively recent trend for older people to relire away

from where they spent their working life, unifor-

sense of confidence. Under the Code, beneficia-

Legislatures LB354, the membership of NSBA (Nebraska State Bar Association),

ries would be expected to prutecl their own inter-

through an initiative procedure, got up in

"When a somewhat modified version of the

mity has some appeal. I wouldn', argue that we

supervision were before the Court. Many

Association actively oppose the adoption of

Arkansas attorneys have some experience with the Independent Administrator under Texas law,

the Uniform Probate Code by the Legislature of Nebraska (LB354, 83rd Leg. 1st Sess.) or

should adopt bad law just to be consistent with other states, but where the law is itself an improvement over existing law, unifomlity is an additional benefit. The widespread adoption of the Code has another benefit When an issue of probate law comes up, there afe often few if any Arkansas cases. The Code has been studied and written

and I understand that the Code's provisions for

any other legislation providing for "infonnal

about extensively. Professors Lawrence Averill

unsupervised administration are quite similar.

probate" or "infonnal administration" of

and Robert R. Wright of the UALR School of

estates without notices to heirs and creditors;

Law have each written a leading work on the

supervision as it now exists, I believe we need to

and actively cmbark upon a campaign to

Code. 9 There is an ample body of law review

consider the prevalence of living trust arrange-

infoml the citizcns of Nebraska concerning

and treatise discussion of most issues likely to

ests, and would have to seek court supervision if

arms and adopted a resolution opposing

they believed they needed it. I would assume

enactment of the Code in the following language: Resolved that the Nebraska State Bar

that Court supervision might be more meaningful

if only those cases in which a party had sought

In evaluating arguments for continuing court

ments in estate planning today. If probate super-

the protections afforded the citizen, creditors,

arise. In addition, case law from other states

vision is so desirable, why are these trusts, which

and individual property rights by the normal

could be very helpful to us. Charles Wright stated that the forms and manuals promulgated in Nebraska after the passage of the UPC there save

virtually eliminate any court supervision, so pop-

Nebraska systcm of probate and administra-

ular? Under the Code, unlike the situation today

tion of estates.

with a living trust, Court supervision at least as any case in which a credilOr or beneficiary wants

This was the basic aUitude of Nebraska lawyers and I was at the forefront of the opposition. I thought what we had at the

it. It simply won't be required in the many cases

time was not broke and shared most

PROBATE REFORM WILL E'H"CE THE BARS

Nebraskans' perception of the Committee on

IMAGE

stringent as what we now have can be sought in

in which it is not needed.

Uniform State Laws and the joint Editorial

allomeys and judges countless hours of time in estate administration,lO

I referred earlier to the declining importance of thc formal probate process and the increasing

THE Ul\lI;ORM PROBATE CODE IS THE BEST WAY TO

Board that they were probably a bunch of ivy

REVISE ARKANSAS LA\\'

league professors who were educated beyond

importance of the living trust. Certainly there

their intellect and knew nothing about the

are a number of reasons behind this switch, auu

If our Probate Code needs some revision, Why shouldn't we just amend it whcre necessary

Code in recent modifications to our Probate

realities of daily life on the plains. After all, we had the Big Red, two National Championships and Bob Devaney, and why should they try to foist off the UPC, with its ill conceived concept of "infonnal probate"

Code - see our provisions on leaving a writing

and a whole new set of statutory definitions

disposing of tangible personalty or advancements

that we would all have to learn 6 " After this opening, Mr. Wright went on to

instead of adopting a wholesale change? The Code is a comprehensive and integrated body of

law. While we have liberally borrowed from the

for examples - and while we could adopt certain provisions on their own, it makes sense to adopt

to

nature of American life today, especially the rela-

describe what he sees as the essential elements of

it, with whatever changes we believe are needed

the Code and to share his experience with its

for Arkansas, as a package. The experience of Nebraska. which adopted the Code in 1977,5 could be instructive. At the

implemenlation in Nebraska, a state whose similarities with Arkansas are apparent in his remarks. He concluded with this remark: "If

Mid- Year meeting of the Bar in Memphis last

your Legislature adopts the UPC, you will have

January, Charles Wright, a practitioner from

an excellent comprehensive probate code that

Lincoln, Nebraska, described his own experi路 ence. He began as a doubter, but is now a vigor-

will be widely accepted and extremely useful.") Some portions of the Uniform Probate Code

ous supporter of the Code. I enjoyed his presen-

have been adopted in almosl every state, The

tation so much that I wam to quote from his

Code, in more or less its complete form, has

malerials.

been adopted in 16 states,S With the transicnt

Th' IrkaRla! I,all),r

Fill 1996

J

am not going 10 discount pure faddishness as one of them, but a real dissatisfaction with the cost

and delay of probate has to be recognized as a major impetus for the public's desire to Slay oul

See UPC/PRO Page 4t


The Uniform Probate Code: PRO/CON

........................................................................................................................................ UPc/CON Continued From Page /9 Probate Law Commiuee chaired by Gaston

Williamson, a Rhodes Scholar and former President of this Association. He was awarded the Golden Gavel for the work in bringing the Arkansas Probate Code up to date. The update of the code has been a conlinuing thing through the years. We don't need a revolution to amend whatever parts need amending.

Some of these changes have been necessitated by changes in the lax laws of the United States and the tax laws of Arkansas. Numerous other changes and improvements have been

made through the years - and that is as it should be. "Uniform" is a good word to describe many military things, but to have the laws of fifty very different states, all have the same laws is not best for those states nor for their citizens. The United States of America wasn't established to be uniform and the straight jacket of uniformity did not serve us well in 1776, and the straight jacket of uniformity does not serve our probate needs well in 1996. In 1949, the Probate Code, Act 140, began on the bottom of page 304 and ended near the top of page 431 of the 1949 Acts of Arkansas. The idea that the American Association of Retired Persons (A.A.R.P.) will get the Misnomer Probate Code passed unless the Arkansas Bar Association has something to offer the Legislature in its place, is nothing more than a pry pole to get this Bar Association to undertake a project for which there is no need. I would guess that well over 90% of the lawyers of Arkansas have never read the Misnomer Probate Code and probably close to that number will never read it. Under those conditions, how can it be said lhat this Bar Association has endorsed the Misnomer Probate Code as what the law of Arkansas should be? Two of the worst parts of the Misnomer Probate Code have to do with dower and homestead and the other with almost total lack of

supervision by the probate courts of any estates in probate. There is absolutely no need to upset many of the land titles in Arkansas by trading our perfectly clear and unambiguous provisions for the cumbersome and unnecessary provisions proposed. I don't think Ihat anyone can read these proposed provisions and see anything but massive amounts of litigation. Ialso don't think that anyone can read these proposed provisions and

even halfway understand what is being proposed. If there is one thing that our probate clients don't need, it is unnecessary and expensive litigation. Yet that is exactly what the Misnomer Probate Code would make mandatory. Only rather large estates in Arkansas require the supervision of Probate Courts, if advantage is taken of the provisions of Chapter 41 of our Probate Code, entitled, "Distribll1;ol/ Withom Administration", Sections 28-41101 through 104. However, larger estates invite the unscrupu路 lous lawyer or the unscrupulous client to take advantage of people who may be demenled or bereaved. Consequently, those are the estates that most need the supervision of a Probate Judge. Yet it is those very large estates that the Misnomer Probate Code fails thus to regulate. Unless someone happens to learn in some way that it is his or her ox that is being gored, nothing will ever happen. The unscrupulous lawyer or the unscrupulous personal representative will be able to rob the estate beneficiaries blind. Maybe that kind of lawyer can then afford 10 surrender his or her license and move to Philadelphia. The Probate Judges of Arkansas take their positions as supervisors of probate proceedings and should not now try to rid themselves of those supervisory duties by the adoption of the Misnomer Probate Code. One of the provisions of the Misnomer Probate Code requires that the jurisdiction over trusts be transferred to the exclusive jurisdiction of the Probate Court. This requirement was noted in Leonard Scott's article appearing at page 41 of the Fall, 1995 issue of The Arkimsas

Lawyer. The late, Mr. Justice Frank Holt, writing for a unanimous coull on this subject stated in Smith v. Whitmire, 273 Ark. 120, 617, S.W. 2d 845 (1981), at page 122: Art. 7, Section I and 15, Arkansas Constitution (1874), authorizes the legislalure to create courts of chancery and vest

them with jurisdiction "'in matters of equity," although the legislature cannot add to

nor reduce thal jurisdiction. Hester v. Bourland, 80 Ark. 145, 95 S.W. 992 (1906); Gladish v. Lovewell, 95 Ark. 618,130 S.W 579 (1910); and Nelhereut! v. Pulaski Co. Sp/. Seh. DiSl., 248 Ark. 143,450 S.W 2d 777 (1970). Jurisdiction "'in all manners of equity" is vested in the chancery courts. Ark. Stat. Ann. Section 22-404 (Rep. 1961). Even if courts of law are given jurisdiction

of a case of which equity originally had jurisdiction, this does not divest equity of

jurisdiction but the two have "concurrent jurisdiction." 'lira/! Oi/and Gas v. Shipley, 257 Ark. 278, 517 S.W. 2d 210 (1974); Vaughan v. Hill, 154 Ark. 528, 242 S.w. 826 (1932); and German National Bonk v. Moore, 116 Ark. 490,173 S.W 401 (1915).

This is true even though the remedy given at law might be adequate. Hempslead & Conway v. Watkins, Adm 'r oj Byrd, 6 Ark. 317 (1845). An action to enforce an equitable lien is certainly an action cognizable in equity." Certainly, trusts are matters within the jurisdiction of chancery; therefore, if Article VII of the Misnomer Probate Code gives the Probate Court exclusive jurisdiction over trusts, then a constjtulional amendmenllo the Constitution of

Arkansas would have to be adopted by the people of Arkansas. not by the Bar Association and nOI by the General Assembly. However, a part of Article XV of the Constitution of the Arkansas Bar Association provides: "Proposing Amending U.S. or Arkansas Constitution: Before any amendment to the Constitution of

See UPC/CON, Page 4/

tl H, ,Ir~a,\all,a\\)rt

rail 1m


Huckabee Takes His Place As the State's 44th Governor by Jim Harris While other candidates were spending

Huckabee's friends thought Bumpers' words

ket." Huckabee said. Arkansas' natural beauty is something other

money on campaign paraphernalia, a fireman's

might be prophetic, but when Huckabee

son from Hope was OUt shaking hands and

became a Baptist minister, they thought his

states can't build. People who live surrounded

life was on a different course.

by concrete, steel and glass have an instinctive

Huckabee graduated from Hope High School and wenl on to Ouachila Baplist niversity in Arkadelphia, where he graduated degree in just more than two years.

the Arkansas economy.

He would later pastor churches in Pine

Huckabee's vision of the state's future

Bluff and Texarkana before challenging U.S.

includes what he calls the "retirement indus-

Sen. Dale Bumpers in 1992.

try." During the nexl 10 years, the Baby

to plan for what could be a tremendous oppor-

Guy Tucker to governor. and a special election for lieutenant governor was called in 1993.

auraet people who are in a position to spend

Huckabee won wilh 50.9 percent of the

their money on goods and services yel not put

vote, becoming the fourth Republican to hold

strained demands upon the state's infraslrUc-

statewide office since Reconstruction. In

ture," Huckabee said. and tax slructure will be aurnctive to many

received by a Republican.

who rClire in other slates. These new resi-

As lieutenant governor he had two duties:

Huckabee beat those who had oUlspent him.

Legislature was in session and to serve as governor if something happened to the governor.

spem 25 cents for his filing fee to run for gov-

Earlier this year. Tucker was convicted in fed-

ernor," said Lesler Sites 111. a Hope dentist

eral coun. He resigned and on July 15, Mike

and close friend of Arkansas new governor.

Huckabee became the SlaleS 44th governor.

"These other boys had cards prinled and poslers made. You couldn'l go anywhere for them. But Mike met people. He absolutely demolished the competition with his speaking abilily and Ihe sincerity of it." It was Huckabees first taste of politics.

This change has left many wondering what direction Huckabee wants for the state. One of his basic goals is to attract tourists and retirees to the state. "We will put a major emphasis on tourism in this state, believing that the future of the

His friends remember then-Gov. Dale

travel industry is crucial

Bumpers suggested Huckabee might one day

Arkansas economically. The natural beauty of

be governor of Arkansas. Many of

Arkansas gives

" Tbl IrLaam LI'llr

I'all 1996

The slate's climate and price of real estate

percent â&#x20AC;˘â&#x20AC;˘ the largest statewide vote ever

to preside over the Senate when the

Boys' State together, and Mike

"Now more than ever it becomes important

tunity to bring jobs 10 Arkansas as well as to

Boys' State gubernatorial eleclion, Mike 10

Boomers will reach retirement age.

president that year. That elevated Lt. Gov. Jim

1994, Huckabee won re-eleclion with 58.5

"We went

Tourists come to the state expecting to spend money. Every dollar they leave helps

another Hope native, Bill Clinton. was elected

When the votes were counted in the 1972

is still unspoiled, the governor said.

magna cum laude after receiving a four-year

Huckabee was unsuccessful in that race, but

communicating his message.

urge 10 spend their leisure lime where nature

LIS

10

the development of

a genuine product to mar-


il fbr

\r~lI!as

Lall}rr

I'all 1191


paper scavenger hunt every car owner mUSl go through each year to renew a car license. The governor worked in Monticello in a Department of Human Services office and discovered people applying for public assistance must fill out up to six sets of paperwork with almost identical information on each. Huckabee is working on ideas to reduce that paperwork maze. The governor has some clear directions for the state's regulatory agencies. "Our overall philosophy is not to see how many people it can put out of business, but to see how many people in business it can keep in business," Huckabee said. He wants to work with businesses to help them follow the law. dents will have retirement incomes that translate into money that will be spent in local stores.

Judicial candidates already seek election based on their background and experience

They will need doctors and hospitals, which will bring a growth in the state's medical community. This will improve medicine for all Arkansans, Huckabee said. One of the governor's powers is that of

rather than their beliefs concerning such hot button topics as the death penalty. "The judicial process is not well-served by the inclusion of partisan issues. Ajudicial officer should be one carefully removed from

appointment. Huckabee has made several

the often brutal world of partisanship,"

appointments to state boards and commis-

Huckabee said.

sions. He has also made judicial appointments.

Huckabee's approach to finding solutions for problems in government is to talk with the

"We hope judicial appoinllncnls in our administralion will be reflective of the stale of Arkansas and its diversity. We will do our

from Little Rock. The governor and others involved with making policy work

graphically as well as balance as it relates to

in government offices every two

gender, race and party," Huckabee said.

months.

OUI

this goal with the

Huckabee worked in the revenue

recenl appointments of Associate Justice

office in Marion, handling car tags

Andree Roaf of Pine Bluff, Judge Terry

and drivers' licenses. From that

Crabtree of Bentonville and Margaret Meads

experience, he came away deter-

of Searcy to the Arkansas Court of Appeals.

mined to simplify the lenghthy

"Our prime responsibility is to find candi-

Feb. 1977 -- Four generations

dates who come to the bench with an under-

of Huckabees. From left to

standing that the focus is to interpret law. not to make it," the governor said. Huckabee would like to see the state go to non-partisan election of judges. The Judicial Code of Ethics prevents judicial candidates from discussing their stands on issues likely to

np !rtaBsal tall!"

fill 199i

"Our goal in regulation is to correct that which exceeds the boundaries of the law, but never to close down the operation of any busi路 ness if it can be helped to compliance," the governor said. Huckabee has announced plans to provide a rebate on the state's regressive tax on food. In the coming months, he plans to announce plans to refonn other taxes. "We hope to change the tax code by indexing the standard deduction against inllation, eliminating the current penalty for marriage

people who carry out the policies that come

best to maintain some sense of balance geo-

Huckabee carried

~I

come before their court.

right: Mike Huckabee, Dorsey Huckabee (Mike's father), Virgil Huckabee (Mike's grandfather); and John Mark Huckabee (Mike's infant son).

and by giving some incentives for savings and


Summer 1978: Left to Right: Jim Harris, Ray Thornton's press secretary; Pat (Huckabee) Harris, Mike's sister; Mae Huckabee, Mike's

"

mother; U.S. Rep. Ray Thornton; and Mike Huckabee.

other forms of economic growth for families,"

Huckabee said. Beyond his legislative agenda. Huckabee wants to make it easier for Arkansans 10 com-

municate with his office. He has a web page on the Internet and his e-mail address is

mike.huckabee@state.ar.us. So that he and his staff can remember they work for the 2.5 million people of the state, he posts pictures of Arkansans in his office.

Under those pictures is a plaque that simply says, "Our bosses."

July 4, 1996 - Huckabee fishing on Lake Greeson (Photo by Jim Harris)

Early 1960s: Mike Huckabee and his father, Dorsey, take an afternoon nap.


Executive Director's Report

An Increasingly Difficult Occupation by William A. Martill

"Something ;5 making the practice of law (111 increasingly difficult occupation." These words open Dr. Amiram Elwork's extremely readable and realistic book, Stress MlUwgementjor Lawyers.- At this summer's American Bar meeting. after enduring the stress of representing our Association at an unnecessarily long meeting. J arrived part way

Ihrough his presenlation on slress management. By Ihe end of the program I knew I must have his book and share my distillation of some of the insights of this psychologist who plainly speaks common sense and acknowledges changing ourselves will be very difficult Lawyers are beset with occupational Slressors from relentless time pressures and fierce economic competition in an adversarial environ-

ment. These breed hostility. cynicism. and connicl leading to distress in the fann of career dissatisfaction. addictive behaviors, deterioration of relationships. and physical and mental ailmenls. To cope we must learn stress managemenl skills. Siress is composed of stimulus producing tllo/lglu which evokes emotion leading to behl/vior. Usually things happen so fast that we are nOI aware of these separate elemenls. Stimulus comes from outside and the other three elements are internal and subjeci 10 being interrupled or changed if we learn how. Some stress is beneficial, bul when it lends 10 negative emotions such as fear, anxiety, shame, guilt. and anger it becomes destructive dislress.

Lawyers tend to consider lhemselves to be thinkers, separating and downplaying feelings or emotions. Dr. Elwork emphasizes thoughts and emotions are part of Ihe same continuum of experience. "Emotions are what make us tick." "Viewing Ihoughts and emotions as if they are distinct enlities is like breaking down a golf swing into parts...Emotions always reneel our thoughts and energize our bodily

behaviors." Both humans and animals reacllo Ihreats - to stress - in one of three ways - surrender, nee. or fight - or in lerms seemingly more related to the practice of law: passively accepl, leave. or confront. Accepting or leaving usually are not realistic oplions which leave Ihe lawyer needing to confronllhe causes of dislresS by eilher improving Ihe work environmenl or improving the way they perceive it and interact with il - very hard to implement bullhe ultimate long lenn solulion. Reforming working conditions will require the understanding and

cise the will 10 unlearn some of our habil . We must be clear about our goals and whal we really value. Understanding ourselves requires time and searching self cross examinalion. The book conlains IwO logs to assist in this evaluation - one 10 list over a period of time eaeh slimulus that produced stress. Ihe

negative thoughts that resulted. the emolions created and the resulting behaviors followed by idenlification of distoned perceplions and dysfunctional rules we applied. Then we are to predict or describe our emolions and our behaviors under a revised line of reasoning. The discipline of writing these Ihings down increases our awareness so we can interrupt the automalic now of stress

producing thoughls. evalualc and challenge Iheir validity and replace them, when appropriate, wilh more positive thoughts. Then we can focus on generating solulions to what

appear to be problems. The book's Ihree major headings following this panion address specific ways 10 improve our Ihinking, heed our emotions, and manage our time. lis other chart is a listing of acth-ities, with lime consumed and whether they are imponant or unimponant and urgent or not urgent If we eliminate lime wasters we then must gh'e ourselves permission 10

work less ralher Ihan follow Ihe Iypical workaholic approach of filling lime saved with more work. Dr. Elwork cautions us: "Beware of easy sounding prescriplions. Reslructuring life's

major priorities is a difficuh lask...The kind

Both humalls alld allimals react to

threats路 to stress - ill olle of three ways surrellder, flee, or fight - or ill terms seemillgly more related to the practice of law: passively accept, leave, or cOllfrollt.

of change that is required often involves delv. ing into one's core and breaking Ihrough much denial, resistance, shame, fear and social pressure. It is not easy and require a great deal of courage, Howewr, it i worthwhile:'

active efforts of law finn managing panners and leaders in the bar. judicial. and legal educational arenas to adapl the whole system more 10 the human aspects of praclicing law. For the long lenn good of c1iems. lawyers. and the public generally, this needs 10 be done. Individually we can urge and assist in refonns and express expecta路 lions which will PUi pressure on finns and the system. However. in the near tenn. lhe most produclive efforts likely will be for each of us to work to improve our own selves. Dr. Elwork in both his book and programs tells us how in practical ways if we exer~i

H,

\r~lllll

1.1"fre Fill IIii

* I02 pages paperback.

Available for $17 (volume discounts available) from the Vorkell Group, P.O. Box 447. Gwyncdd, PA 19436. and wonh the cost 10 any lawyer who will read and heed it.


Appellate Law COIl/iI/lied from Page 13 5. Kimble 1'. Gray, 313 Ark. 373, 853 S.W. 2d 890 (1993). 6. For example, a mOlion to vacate judgment mayor may not be jacksoll 1'. AP & L, 309 Ark. 572. 832 S.w. 2d 224 (1992) (it was); Faller 1'. Stale, 316 Ark. 341, 872 S.W. 2d 54 (1994) (it was nOI); motion to reconsider order granting summary judgment, Williams II. Hudsoll, 320 Ark. 635, 898, S.W. 2d 465 (1995); Glllhrie 1'. Twill City Balik, 51 Ark. App. 201 (1995); Petition for Rehearing, Schaeffer 1'. City oJ Rasselllille, 52 Ark. App. 184,916 S.w. 2d 134 (1996). 7. Two examples are Poole, supra, and PellllillglOa 1'. Harvesl Foods, 322 Ark. 820,913 S.W. 2d 758 (1995). 8. Mildtellv. Mitdtell, 40 Ark. App. 81,842 SW. 2d 66 (1992). 9. 323 Ark. 363, 915 S.w. 2d 257 (1996). 10. wwrellC:e Bros., Illc. II. R.J. "Bob" Jones Excal'alillg COlllracto~ IlIc., 318 Ark. 328, 884 s.w. 2d 620 (1994) (per curiam), and Kelly 1'. Kelly, 310 Ark. 244, 835 S.W. 2d 869 (1992). At least the Supreme Court has fixed Ihat rule as 10 notices of appeal filed on Ihe same day but at an earlier hour Ihan Ihe order being appealed. Rule 4 (I) (1995). In spile of language in Ihe

comment, however, I don't think the amendmcnt to the rule neccssarily fixed Kimble II. Gray, 313 Ark. 373, 853 S.W. 2d 890 (1993), an only slightly more frightening decision. II. Ark. R. App. P., Civil, Rule 5. 12. 322 Ark. 820, 913 S.w. 2d 758 (1995). 13. "Enlered" means filed with the clerk of Ihe lrial court. Ark. R. App. P.4(e). If Ihe order granting the extcnsion is not "entered" within 90 days, it's too late. 14. lVillters 1'. Elders, 324 Ark. 246, _ S.w. 2d _(1996). 15. Borell v. Worthen National Blink, 324 Ark. 416, _ S.w. 2d _ (1996). 16. Ark. R. S. CI. 4-2. 17. The Court experimenled wilh Ihe "appendix" method instead of abstracting severa] years ago. On June 10, 1991, the Court ended Ihe experiment. Appendices were too long for the same reason abstracts are too long. Litigants were afraid of leaving anything out and having a defective appeal. 18. 304 Ark. 562, 803 S.w. 2d 920 (1991). 19. Model Rules of Professional Conduct, Preamble: A Lawyer's Responsibilities. 20. My proposed amendments: Rules of Appellate Procedure -- Civil, Rule I (b). No appeal shall be dismissed because a notice of appeal was filed too early. No appeal shall be dismissed for failure to make a timely filing of a

notice of appeal or for failure to file the record in a timely manner except upon motion by the appellee. The appellee must show prejudice in order to prevail. There will be a rebUllable presumption of prejudice if no nOlice of appeal has been filed within 30 days of the enlry of judgment and service of the judgment on the parties. Rules of the Supreme Court and Court of Appeals, Rule 4-1 (b). In the eventlhe court finds that a party's abstract or supplemental abstraci is or may be deficienl, the court shall direclthe allomey for the party 10 file a supplemental abstract at his or her own expense, and shall fJle therewilh an affldavitlhal he or she has not charged his or her client any additional fee for Ihe preparation of Ihe supplemenlal abstract. If after Ihe filing of the opening briefs eilher party feels that relevant material has been omitted from the abstract, he or she may supplement the abstrael wilhin ten days of filing of the last opening brief. The opposing party may supplement the abstract within ten days of receipt of the supplemental abstracl. 21. Ark. R. Civ. P. 54(b) 22. Ark. R. App. Pro. 4 (c) 23. In spile of. rather overwhelming c.seload, the Court still hands down decisions soon after submission. The most recent statistics I could find indicated thai civil cases are decided, on average, 19 days after submjssion and criminal cases are decided 17 days after submission. See http://www.state.ar.us/supremecourtlarksct.htm.

MEDICAL RECORDS TM

Real Estate Settlement System "The Nation's Most Widely Used" ./ HUD 1 Automatic Calculallons ./ Checks & Escrow Accountin!l ./ Word Processor - Spell Check ./ Policies & Commitments ./ Deeds & Mortgages ./ Data Base Reporting ./ On-site Training Available ./10995 Reporting ./ Regulation Z APR's

M.D., J.D. with experience in PI and medical malpractice. Will evaluate cases, locate experts, and provide litigation support. Call 376-0747.

Tax Research Associates, Ltd. Helping the Legal Professionallhrough:

'Exhaustive Tax Research â&#x20AC;˘ Client representation before the Internal Revenue Service

$1,495.00

LANDTECH

REVIEW

(800) 9]7-29]8

DATA CORPORATION

303 Guaranty Building¡ 120 South Olive Avenue West Palm Beach, FL 33401

412 Arlington Court Jonesboro, Arkansas 72401-4053 Telephone: 501-931-7719 Fax: 501-931-4540 Ron Shelton, President Accredited Tax Advisor Admitted to Practice before the Internal Revenue Sel'Vice

~7

Thr ,Irkanm l,allTrr fall 1996


President's Report

On Taking Time for Reflection by Hany Truman Moore Phones, faxes, Federal Express. UPS, personal pagers, beepers. Car phones, flip phones, call waiting. Conference caJls, couriers, E-mail. Reply, respond, reacl. Reneel. Reflection? Now thai'S a refreshing idea, but who takes time for it? You'll be glad 10 know Ihat for the pasl len eonseculive years your bar leadership has made time for reflective planning. As Dick Hatfield finished his lerm as president in 1987 and passed the gavel to Judge John Stroud, they decided thaI it would be beneficial for an outgoing president 10 join with the incoming president. senior slaff members, executive council chair, and YLS, section and commillee leaders to a "get away" from their offices for a retreat on one of the weekends immediately following the annual meeting. John offered his cabin on Lake Greeson for the !irst such session. We've been back every year since. The accommodations, bunk beds and all, including Ihe his and her bmhrooms, aren't fancy, but the selling is conducive to provocalive, productive, and reflective discussions. A retreal - and Ihe reflections which go wilh one - can be a worthwhile exercise for any organization. especially a law firm. Having been involved in similar retreats as both a participant and a facilitator, either with our law linn. church boards. national fratemily slaffs, or chambers of commerce, there are a few tips (hat can be offered to you or your law firm, or any group which would benefit from a retreat. 1. Gel away from the office. Otherwise someone is tempted to let that "important"' client know that they can knock on the back door, call the "secret" num-

ber. or otherwise get ahold of them, which interrupts the meeting 10 the detriment of everyone else. 2. Identify your participants and be certain they gel the dale on their calendars. If you are planning a law firm retreat, make participation mandatory. Pick the dale well in advance so that a trial, a trip, or a ballgame can 'I be used as an excuse to nm attend. 3. Lawyers (or staff) only. Although iI'S fun 10 spend your weekends Wilh them, for this trip, leave your spouses at home. OUf firm does this about sevemy¡five percent of the lime. and frankly. gets more done. Involving spouses also complicates planning, logistics, elc. Your bar leaders have done it this way because of space concerns. It also keeps expenses down. 4. Prepare an agenda. Circulme it in advance so Ihal attendees can Ihink aboul proposed lopies before Ihey gather. BUI don'l be controlled by the agenda's chronology. Cover Ihe "hot" topics first. If ~~

Thr Ir\"\1\ I.â&#x20AC;˘"W

r,1I ISSi

you run out of time before you run out of topics, you want to be certain that those most important have been covered. 5. Pick a moderator. If you have a really large group, consider an outside facilitator. Someone has to be in charge to be certain that the discussions don't bog down. A good moderator can be certain Ihat topics are adequately covered without beating dead horses. 6. Lance the festering sores. Every firm or group has them. You can't get them healed without some unpleasantness. A quieter meeting such as a retreat will generally allow yOll to bener deal with sticky problems than you can at a weekly firm or partners' meeting. 7. Schedule free time along with the work. "Captain John" is always good al knowing when enough has been said for the dny and when its time to hend for the waler. You'll be surprised how much infonnation can be exchanged before, during and after the evening meal. The same is true for the next morning's "coffee talk." 8. Consider going 10 the water. Even if you don't own a boat, skis, a rod and reel, or anything other Ihan a swimsuil. you'll find that just being around the water i.lO relaxing ilnd conducive 10 reflection. There are numerous facilities suitable for retreats on lakes and rivers in all parts of the stale. And they're available in all price ranges. Thanks to John Stroud, your bar association has a perfectly priced facility - free. As previously slated, it's not palatial, and Ihe quarters can be a liltle close. That's why a bnr presidenl with a propensity for snoring too loudly may be banished to the wicker couch on Ihe back porch come bed time. Actually, that can be a real treat. Close your eyes. Listen to the ceiling fan singing in hamlony with Ihe crickets and frogs. Feel the breeze, Grab the quilt you didn'llhink you'd need. Was Ihat splash you heard someone going for a midnight dip. or just a really big fish celebrating having avoided an angler for another day? The shaded morning sun is not harsh, but it still wakes you up early enough for some private reflection and planning. The view of the lake is also piclllresque in the dawn's early light. The waler is still. That's whv the reflections off the water are perfect. Where's the camera? Think how reflection would help your practice. Wouldl1"1 a little more reflection promote a lot more civility? And think about all of the letters you wouldn't have written or pleadings you wouldn't have filed had yOll reflected about a situation rather than simply reacting to it.

I

)


THOUSANDS OF LAWYERS JUDGES USE l£J[S,

&

HERE'S

WHY ...

Coverage: State and federal caselaw statutes, regulations and more that are all hyper-linked.

Currency: With our exclusive weekly electronic updates, you will be searching the full text of cases within hours of their release.

Performance: LOIS is powerful software that is a snap to use.

Ownership: When you purchase a LOIS disc you're investing in a library that's yours to keep.

Price: $600 a year is a.ll you pay for your state library. • • • •

NO NO NO NO

initial start up cost network license charges on-line charges Illulti-user charges

Put the power of LOIS to work for you. Call 1-800-364-2512 to place your order, request a free in-house demonstration or inquire about our circuit products and our U.S. Reports product. r-----------------------------------------------, FOR YOUR FREE 30 DAY TRIAL CD MAIL OR FAX BACK

Name

_

Addre" City

_ Slale_Zip,

Phone Please send me _lslote) product fOI

Fox Q

_

_

30 day trio I. No risk, no obligation.

Send To: lOIS, Inr•• 105 North 28th Street· Von Buren, Arkonsos 72956 Fox: (501) 471·5635 AD.ARJ02

_______________________________________________ J


DRUG

&

ALCOHOL

Testing by Private Elllployers ... and its relationship to Workers' Compensation Practice in Arkansas

by Shawn D. Twing 10

nr ,Irkmal Laww

fall 1996


I. INTROOUCf'ON The problem of substance abuse in the workplace is unquestionably costly to bolh employers and their employees. For example. in a review on private sector drug路lcsting, Jeffery Olsen. observed that: Is]ubstance abuse reponedly costs employers close to 100 billion annually due (0 lost productivity. increased absenteeism. and dmg related injuries. A recent Bureau of Labor Statistics survey of private sec'or employers in a variety of industries who tested their employees and applicants for drugs showed some frightening results: of the 950.000 eurrem employees tes'ed, abou, 9% 'eSled positive: of the nearly 3.9 million job applicants tested, 12% had posi'ive test

results from drug-testing. For example, according to a 1990 study. 77% of drug-testing employers repon that drug testing has improved the quality of their applicants. 63% repon that

results. I (emphasi added) In 1993. the Secretary of Health and Human Services reponed that losses in produetivi,y caused by alcohol abuse alone may have been as high as 527 billion in 1985 equating to 39 pereem of the total economic cost of alcohol abuse which was estimated to be approximately 570 billion annually2 Likewise, productivity lost in 1988 as a result of drug abuse has been eSlimated at approximately 57.2 billion annually and 533 billion for alcohol abuse 3 Recoupmenlof these losses would undoubtedly be beneficial, resulting in lower prices for products caused by

work-place, Arkansas employers have proved to be no exception to the general trend of implementing drug/alcohol free workplace policies which are enforced in pan by drug/alcohol test-

they have asafer work environment, 56% repon that they have fewer drug problems in the work-

place and 54% repon improl'ed employee morale.6 On the other hand, less than one-founh of drug-testing employers repon problems with having implemented a drug-testing program. Of

the problems reponed, Union challenges were the most prevalent (23%). followed by problems caused by connieting interpretations of company policy (21%) followed by employee resentmem (20%)7

In the environment of increased awareness of the costs extracted by substance abuse in the

relationship and effect it has with workers' compensation practice in Arkansas. DRUG & Al.C0I10l. Tf:snNG BY PRtl'ATE

and employee benefits. However, even lhese

benefits pale when compared 10 savings which would be realized in tenns of employee health, safety and enterprise which would be gained by

Currently, no statute or set of regulations exists in Arkansas which governs the implemen-

Moreover, there exist few reponed Arkansas

with the company. The employer's policy prohibited the employee from possessing or being under the innuenee of alcohol or drugs while at work. '3 The policy defined "under the innuence" as meaning "impaired" or "having a

detectable level" of alcohol or drugs in one's

'0

at the time the program was implemented,

employees were given the oplion of signing an

reported cases concern unemployment insurance

of employment or being diseharged. In upholding the employer's policy. the Coun found thaI: Idlue to the dangerous nalUre of the drilling

has made progress. Thi progress has been espe-

claims. The Coun of Appeals has reviewed one workers' compensation case. but this opinion

the pan of the public about the risks and costs

was not designated for publication 9 Therefore, in the interest of clarity and in an anempl 10 avoid confusion, the following di.scussion is lim-

fray by implcmenting drug/alcohol free workplace policies. The "prime mover" for this movement was the Drug-Free Workplace Act of 19884 which applied to federal contractors.

ited to published opinions of Arkansas Appellate Couns. Funhennore, thi inquiry is necessarily

Though the act did not require employers to implement drug/alcohol testing, the potential

implied, to implement drug/alcohol free workplace policies or to implement drug/alcohol 'esting. 10 However. the general implications of

Though specific experiences vary, priva'e employers generally repon overall positive

icy as a condition of his continued employment

cases which address the issue of drug/alcohol testing in the work-place. In fact. all of the

cially realized in an increased awareness on

sanctions contained within the act led many employers to conclude that such testing was necessary for their protection. S

abide by the employer's drug free workplace pol-

ensure the safety of drilling crews:' I5 Moreover.

Arkansas law with respec' to drug/alcohol testing in the workplace by private employers, and what

EMI'I.OI'F.RS IN ARKANSAS

associated with substance abuse. Moreover. many private employers have entered the

to enforce its nationwide drug-free workplace policy. The employee in that case had agreed to

drug/alcohol tes'ing under such policies.8

following materials is to provide the practitioner with basic infonllation concerning the status of

II

laws, regulations and sanctions coupled with the federal government's call for a "war on drugs"

In Grace Drilling, the Coun of Appeals upheld an employer's use of random drug ,esting

tation of drug/alcohol free workplace policies by private employers or set S1andards for

ous issues raised by private employer drug-testing has been slow to develop. The purpose of the

morc jobs economy-wide, and increased wages

many years. Tougher state and federal

vate employers implement and administer such

testing. The Arkansas Coun of Appeals answered this question in Grace Drilling Co. v. Director. 12

bodyt4 As a result of a random drug sereen, 'he employee tested positive for marijuana and was diseharged pursuant to the employer's drug policy. The employee subsequently applied for and was awarded unemployment benefits by the Arkansas Employment Security Division which found for the employee principally because the employer failed 10 establish that the employee was actually intoxicaled at work. However, on appeal the Coun of Appeals reversed. In its decision. the Coun of Appeals noted that the employer had inSlituted a national safety program which involved drug sereening. According to the testimony in the record, the program was instituted due the "high aecidem rate and risk factors relating to the nature of the loill drilling business and Ifroml a desire to

ing. However, Arkansas law concerning the vari-

lower production COSIS, higher profits resulting in

lowering substance abuse in the work-place. The social and economic coslS associated with substance abuse have been recognized for

practice. I I The first question to be addressed with respect 10 private employer drug/alcoholteSling i whether and under what conditions may pri-

limited to private employers who are not under any governmental compulsion. expressed or

these cases on the fUlUre of drug/alcohol testing, whether initiated by private employers or by government authority, will be substantially the same regarding their effect on workers' compensation

agreement to abide by the policy as a condition

industry it was not unreasonable for the

appellant to implement a drug policy. The issue of drug testing in the work environment presents public policy considerations, the import of which cannot be minimized. 16

Given that the policy itself was found to be reasonable, the Coun denied 'he employee unemployment benefits on the basis that the evidence established that he had failed to abide by the plain tenns of the employer's drug/alcohol policy by failing a random drug test which was a condition of his continued employment. For this

reason. the Coun concluded the employee was discharged for "misconduct" relating to his

II

n, !rluID tao)"

1'.11 199i


employment. In a separate opinion, Rice/mId Foods. I"c. v.

DireClor of u,bor, 17 the Coun of Appeals held that an employee who was discharged for violating an employer's drug/aleohol policy by refusing to submit to a drug/alcohollCSI after consent路

ing to abide by his employer's policy was likewise ineligible for unemployment benefits. The Coun's holding in that case also illustrates the interaction between employment decisions made

under drug/aleohol policies and the State's "atwill" employment doctrine. 18 Specifically, under the Coun's reasoning in Rice/lind Foods employers may require that at-will employees work pursuant to a unilaterally imposed

drug/aleohol policy or be subjCCl to dismissal. 19 More recently, the Coun of Appeals' holding in Grace Drilling was reaffirmed in George's. Inc. v. Director. El1Ip/o)'l1lelll Security Deparrmelll.20 In George's, Inc.. the Court of Appeals, (en banc), reaffirmed its holding in Grace Drilling observing that: Itlhe dangerous nature of the employer's industry or an employee's job dUlies, as well as the existence of risk factors, may justify a drug-free policy as reasonable when the policy is implemented to promote safety.21 Upon reviewing the record in George's. IIlc.,

the Coun found that the employee's job duties included "cleaning machinery" which apparently satisfied the "reasonableness" requirement. 22

More imponantly, the Coun went on to hold that drug testing policies are not rendered unreasonable by requiring the discharge of employees who test positive for trace levels of drugs or can路 trolled substances in the absence of proof of

impairment. On this point, the Coun specifically stated that: laIn employer is n01 required to show that

the employee is actually impaired in his job performance before he may discharge an employee after a drug test indicates trace amounts of illegal drugs 23 (emphasis

added). According to the Coun, "[illiegal drug use brings potential hann to the employer, regardless of the worker's demonstrated impairment, especially when the worker's duties involve exposure

to machinery."24 In addition, the Coun upheld as reasonable the employer's policy of testing

employees after they sustain an on-the-job injury. This holding follows the lead of other jurisdictions which had previously upheld such lesting 25 As a general matter, it is important to note

that, based upon the foregoing cases. the Coun of Appeals has established: (I) drug and aleohol ~~

Tbr Irkmal I.awjrf

fall 1996

free workplace policies, along with employee testing by private employers to enforce such policies, is permissible in Arkansas; (2) a drug/aleohoi testing policy is reasonable even if it provides for the discharge of an employee who tests positive for trace levels of drug or controlled substances whether or not the employee is

actually "impaired"; and (3) a policy which pro-

drug/alcohol testing policies under Arkansas law. However, caution is warranted when evaluating a drug policy in a workers' compensation case. The reasonableness of an employer's drug testing policy may only be relevant in evaluating acompensation claim insofar as the tests acquired from such policies are themselves rea-

vides for testing of an employee who sustains an

sonable (i.e. reliable). As discussed below, test

on-the-job injury is also reasonable regardless of whether there is any proof thai employee was

results from urine, blood or breath samples will

actually "impaired" at the time of the accident.

Compensation Commission at a hearing simply

Additional legal considerations which are beyond the scope of this writing will arise if, for example, a collective bargaining agreement exists26 or the employer is the state or federal government or government contractor. 27 Furthermore. the Americans with Disabilities Act also governs

eenain aspects of employer mandated drug/aleoholtesting of which Ihe practitioner should be aware.28

not be precluded as evidence before the Workers' because they were obtained under a policy which is determined to be unreasonable, even though such a finding would be relevant in other areas of the law. 29 Rather, for purposes of workers' compensation, the dispositive issue is whether the test itself was "reasonable and responsible" and

administered by "properly trained medical or law enforcement personnel.,,30

On the other hand, the Commission has the authority to determine thc admissibility of evi-

Funhennore, drug/aleoholtesting policies take different forms and to date Arkansas appel-

dence and is not bound by technical rules of pro-

late couns have not specified any criteria for

cedure or evidence. Hearings before the Commission are to be conductcd in a manner

such policies. In fact, the Coun of Appeals has not held that such polices have to be in writing nor has it specified any procedure or standards which must be followed in administering tests under such policies. However, in light of the foregoing decisions, some general observations can be made concerning what mayor may not be

permissible (i.e. considered reasonable). Specifically, the Coun upheld as reasonable the drug/alcohol testing policies at issue in Grace Drilling Co. and more recently the one in George路s. Inc. These polices share common characlCristics which shed some light on what

form of drug testing policies will be considered reasonable. First, the policies in both of these cases were wrinen, and employees were given notice of the

that "best ascenains the rights of panics." With this authority. the Commission may determine thai test results obtained under a policy it finds to be unreasonable will not be admissible as evidence. At this lime, it is unclear whether under the Arkansas Workers' Compensation Act the Commission even has the authority to examine

the reasonableness of an employer's drug/aleohol policy. However, il cenainly has the authority to examine the reasonableness of how the tests are administered) I Arguably, so long as the test was reasonable and the test's results can be verified, the Commission's inquiry should cease

leaving the broader public policy questions to other areas of the law.

policy before it was implemented. Second,

III THE ARKANSAS

employees were given the option of working

ACT AND THE INTOXICATION DEFENSE

under the policy or leaving their employment. Third, employees contractually obligated themselves to abide by the employer's policy as a

Since its inception, the Arkansas Workers' Compensation Act has included an "intoxication"

condition of continued employment. Fourth, the policies in question set forth what "triggeri"g el'ellts" would cause an employee to be subjected to a drug test, e.g. pre-employmcnI screening, random testing, reasonable cause or suspicion, or the happening of a work-related accident which required ofT-premises medical attention. Finally. the policies expressly defined what constituted a violation of the policy and the potential penalties

workers. 32 However, this defense was narrowly

for a violation. While the foregoing attributes should 110t be viewed as court mandated requirements, they do provide some guidance to practitioners in evaluating the reasonableness of

WORKERS' COMPENSATION

defense to claims for benefits brought by injured defined by the statute and strictly applied by the Commission and Couns. Specifically, in order to bar to recovery of compensation benefits, an employee's intoxication must have been the sole cause of the accident. Consequently, evidence that an employee who was killed after having consumed approximately two pints or liquor

before falling out of the back end of a truck and being killed was held to be insufficient to preclude an award of benefits 33 Rather, the

employer had the burden of "showing not only


that the employee was intoxicated, but [also) that his death [or injury] was' olely occasioned by intoxication'."34 In Jones TflIck lines, Inc. v. Lersch,35 the Arkansas Supreme Court refused to extend the definition of "intox.ication" to include impair· ment by narcotics, though the Court iodicated that it might include within me lenn narcotics taken "voluntarily ... as by a drug addict:'36 However, the Court refused to hold that "intoxication" included impainnenl caused by an employee's can umption of alcohol a100g with prescription narcotics which according (0 lIle

medical testimony "make some patients 'kind of go out of their minds [and) would potentiate the effect of alcohol ... [which] might cause a person to drop off asleep."'37 In such a case, Court reasoned, the employee's "intoxication" which resuhed in an aUlomobile accident was not solely caused by his consumption of alcohol 38 Eventually, me intoxication defense was

reshaped. Section 11-9-401 provided that: there shall be no liability for compensation under this chapter where the injury was sub· stalllially occasioned by intoxication of the injured employee... (emphasis added) As with the older versions of the compensalion Act, this revised version and new standard provided employers with an affinnative defense on the issue of intoxication for which they bore

the burden of proof. However, section I1-9-707 provided a presumption in favor of employees. Specifically, subsection (4) of section 11-9-707 provided that a prima facie pre umption exists that any alleged injury "did not result from intoxication." This presumption, which has subse· quently been repealed, proved to be the determining factor in cases where intoxication was raised as a defense. 39 Furthennore, the Arkansas Workers' Compensation Act's "substantially occasioned" standard, which persi ts to this day, is unique by nationwide tandards. In fact. Arkansas is the only state to adopt this language.40 This standard lies some where between intoxication being the sole cause of the accident and intoxication being simply a cause. The exact meaning of this standard has never been clearly defined, but a review of the cases in which this standard was applied indicates that the burden of proof, when coupled with the pre umption noted above, requires more than a "preponderance of the evidence", but falls just short of requiring "clear and convincing evidence."41 As with the original version of the intoxication defense, "evidence that the employee was intoxicated is not sufficient standing alone to establish that the injury was substantially occasioned by the intoxica·

rion."42 In order to successfully raise an intoxication defense, employers had the burden of proving (I) that the employee was intoxicated at the time of the accident and (2) that the intoxication was not only a cause but the "substantial" or overriding cause. The Commission's decision in Loyd v. Green Acres Grass Farm ft. al. 43 , illustrates this point. In Loyd, the Commission held that when direct evidence of intoxication exists and it is the only direct evidence relaling to the cause of an acci· denl, uch evidence is sufficient to support an intoxication defense. In successfully raising the intoxication defense, the respondent in that case had to establish not only that the employee was intoxicated at the time of the accident. (BAC 0.21%), but it also had to present evidence which ufficiently eliminated other potential causes.44 Likewise, the Commission in Farris v. Bell Truckillg Co. el. a/ 45 ,round that the respondent had proven the subject accident was substantially caused by the employee's intoxication under cir· cumstances similar 10 Loyd. The Commission's holding was based upon the facts that the employee's BAC immediately [allowing the accident was .09% and the witnesses testified that the employee's vehicle suddenly "veered" from its lane and crossed the center line causing a head-on collision 46 With the many changes instituted under the 1993 revision of the Arkansas Workers' Compensation Act, the intoxication defense was redefined in its basic fonn. Section 11-9- 102 defines what constilutes a "compensable injury." Subsection (5)(B) of section 11-9- 102 specifically excludes from that definition: [any] [i]njury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders. ... In addition, the General Assembly removed the old presumption rule in favor of the employee. Instead, the revised Act now provides that: "[t]he presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician' orders shall create a presIlmption that the injury or accidem was substantially occasioned by {slIch SlIbslances/. .. :,47 (emphasis added) This provision invites the implementation of drug/alcohol policies which engage in drug/alcohol testing, though the statute does not expressly condone or encourage them. Moreover, the Act does not require the existence of an employer ini· tiated drug/alcohol policy in order to require employees to submitlo a drug/alcohol test. However, if there is any doubt concerning the General Assembly's intentions concerning

drug/alcohol testing, one need only to review the following declaration: [elvery employee is deemed by his performance of sen1ices 10 have impliedly consenled to reasonable and re ponsible testing by properly trained medical or law enforcement personnel for the presence of [alcohol. iUegal drugs, or prescription drugs used in contravention of a physician's orders] in the employee's body. 4 What exactly constitutes "reasonable and responible" testing has yet to be determined; however. thi section requires that the test be perfonned by trained medical or law enforcement personnel. Presumably, test resulrs obtained in contradiction to these requirements may not be admissible as evidence before the Commi sion. Beyond that, the act does not dictate or otherwise require any specific standasds be complied with in regasd to the testing process. This faci is significant considering that the Arkansas Department of Health have promulgated regulations concerning alcohol testing and various federal agencies have promul· gated regulations governing drug and alcohol testing 49 Despite the changes in the Arkansas Workers' Compensation ACI, "intoxication" remains an affinnative defense for which the respondent has the burden of proof. Therefore, because the presumption noted above arises if the "presence" of alcohol or illicit drugs are found to be in the claimant's body at the time of the accident, the issue then becomes what proof is necessary to establish "presence" of one or more of the illicit substances in the employee' body. Under rna t circumstances, the best indicator would be the results of a properly administered drug/alcohol test. Any detectable level of illicit substances identified by such a test would be sufficient to raise the evidentiary presumption that the acci· dent was substantially occasioned by intoxication. However. the statute does not explicitly require that the "presence" of these substances be established by a drug/alcohol test. Consequently. substantial questions arise in cases when no drug/alcohol test is perfonned or when the employee refu es to submit to such a test. 50 Because the statute does not specify the man· ner in which the presence of illicit substances must be established, there exists no reasonable basis to limil the application of the stalute's presumption rule strictly to cases in which the results of drug/alcohol tests ase available. Rather, witness testimony that aclaimant consumed an intoxicant prior to the accident giving rise to the compensation claim should be afforded due weight and assuming the evidence of consumption is sufficient to establish the presence of


Ihe substance in the person's body al the lime of the accident the presumption should be raised. Such proof should, under mosl circumstances, include: (I) the idenlily of the substance, (2) Ihe amount or approximate amount consumed and

(3) the lime of consumption. Because merely Ihe "presence" of one or more illicit substance is required to raise the presumption, evidence (hal a claimant consumed such a substance prior to an

accident should be sufficient assuming it was consumed within a time period which would reasonably indicate the "presence" of the sub路 stance(s) in Ihe person's body at Ihe lime of Ihe accident. Secondly, Ihe stalute does not explicitly address the situation where an employee unjustifiably refuses 10 submil to adrug/alcohol test. As noted, the evidentiary presumption concern路 ing intoxication arises if the presence of illicit

INC

substances is detected. Conversely, if the presence of illicit substances is not detected through a lest or otherwise established by witness testimony or circumstantial evidence, an argument exists that the presumption may nOl be raised. If this observation is true, an employee may avoid the evidentiary presumption altogether by simply refusing to submit to a test. However, such a result would be contrary to the established purpose of the General Assembly in re-writing the intoxication provision. While employees cannot be physically compelled 10 submit 10 a drug or alcohol test, their refusal should not be rewarded by the Commission. There are several ways in which 10 address the issue of an employee who unjustifiably refuses 10 submit 10 a drug/alcohol test. First, the Commission could find that such a refusal amounts to a tacit admission that the presence of alcohol or drugs will be detected. Such an admission would raise the presumption despite the lack of either a drug test or other evidence of intoxication. However, the effect this approach will have in discouraging unjustified refusals will be determined largely by Ihe Commission and Court's future holdings on what weight of proof is necessary to rebut the presumption. Second, the Commission could impose sanctions upon the claimant including dismissal of the claim. The Commission could base its sanction on the same tacit admission grounds as above. but go further and conclude that rather than merely admitting 10 the presence of an illicit substance, employee admits that the ace idem was substantially occasioned by intoxication thereby giving the employer a complete defense. Again, depending on the strenglh of the presumption and the weight of proof necessary to rebut it, this approach may be Ihe only effective means of dis-

11 Tbl Ir\anlitll;t\\}lr fall 1!I!Ii

ALTERNATIVE DISPUTE REsOLUTION MEDIATION ARBITRATION MINI-TRIALS SUMMARY TRIALS EVALUATIONS PRIVATE JUDICIAL SERVICES

Sid McCollum, President -;- Over 24 years in a general and varied practice as an attorney -;- 6 years experience as a Circuit Judge in the State of Arkansas -;- Providing full-time ADR services in all fields of law throughout Arkansas and surrounding states.

Little Rock

501-224-1190

Call for more information, or to schedule an initial consultation.

Bentonville

501-271-2237

John T. Bates P.E_ 1-800-299-5950 Specializing in reconstruction of accidents on highways, streets, railroads, highway construction zones and parking lots. All types of vehicles. Computer graphics and video presentations prepared for exhibits. Over 39 years' experiellce.

TRAFFIC ACCIDENT RECONSTRUCTION AND EVALUATION OF HIGHWAY DESIGN


couraging unjustified refusals. Thirdly, lhe Commission could simply refuse to raise the evidentiary presumplion and allow the employee 10 go forward wilh hislher claim. The burden of proof would the remain upon lhe employer to prove the intoxication defense by a preponderance of the evidence without the benefit of test resulls. If so, lhe employer would have the affirmative duty to show by a preponderance of Ihe evidence that the accident was "substantially occasioned" by intoxication, In addition to the employee who refuses to submit to a drug/ alcohol test, Ihere exists Ihe problem of cases in which the employee is unable to consent to such a test after a workrelated accident. Without consent or other legal authority, hospitals and health care providers may prove 10 be reluclant to draw samples and conduci drug/alcohol tests fearing potenlial legal liabilily. Employers may be able to remedy Ihis problem by having their employees sign a separale consent fonn which authorizes the drawing of samples for alcohol or drug lests andlor provide the necessary authorization for the release of medical records which would indicate the existence of alcohol and/or drugs in the person's system in the event they are unable to give consent immediately after an accident. 51 However, hospilals and health care providers may still be unwilling to honor such a consent fonn or written authorization especially if a substantial amount of time had elapsed between the execulion of the form and Ihe accident in question. While documents of test resulls may be obtained by subpena or judicial order, the aclual performance a drug/alcohol test must be done within a relatively short time after the accident if it is to have any probative value. Consequently, a hospital or health care provider's refusal to perfoml a lest would effectively deprive the respondent of a valid intoxication defense assuming the test would have presented a positive result. In order 10 compel tests under such circumstances, one solution may be found in section 11-9 102(5)(B)(iv) which states lhat an employee impliedly consents to any drug or alcohol testing by virtue of the employee- employer relationship.52 This section is comparable to Arkansas Code Annotated 5-65-202 which provides that under numerated circumstances: la]ny person who operates a motor vehicle ... in this state shall be deemed to have given consent ... to a chemical test or tests of his or her blood, brealh, or urine for the purposes of detennining the alcohol or controlled substance contenl of his or her blood ...Ialny person who is dead or unconscious or otherwise in a condition rendering them incapable

of refusal shall be deemed not to have withdrawn consent ... 53 These legislative pronouncements extend 10 hospitals and heallh care providers a legal basis upon which to draw samples for drug/alcohol testing, However, whether section 11-9102(5)(8)(iv) would protectlhem from any legal action instituled by Ihe employee tested withoul consent or by his survivors has not yet been detennined. Given this uncertainty, it is unlikely lhatthey would be willing 10 perform such lests without more legal defense assurances. For the Commission Ihen, Ihe evidentiaty issue cOncerning situations in which the employee was not tested presents a similar yet different problem Ihan Ihat of Ihe employee who simply refuses to undergo a drug/alcohol test. However, Ihe differences in circumstances probably warrant differences in resuhs given that the employee who is unable to consent has not engaged in any intentional act to thwart the employer's rights.

IV

REBUlTING THE PRF..5UMPTION

The weight of proof required by the Commission to rebut the presumption raised by the presence of alcohol and/or illicit substances detected in the claimant's body is conclusive with respect to the intoxication defense. Though the rule concerning evidentiary presumptions has changed, the "subslanlially occasioned" standard has not. Given how this standard has been applied historically by the Commission and Arkansas Appellate Courts, rebulling the presumption should require that Ihe employee prove at minimum that he was not impaired at the time of the accident. Blood-alcohol tests and standard drug tests offer substantially different qualilies of proof. A BAC lest not only detects the exislence of the a!cohol in Ihe person's body, but it also records the concentration of alcohol in the body. As a result, experts, can to a reasonable degree of cer路 tainty, comntent upon the employee's probable impairment at the time of the accident. In fact, under the Arkansas Criminal Code, a person with SAC level of .10% or higher is presumed intoxicated for purposes of operating a mOlor vehicle54 while a person with a BAC level of .05% or less is presumed not intoxicated. 55 On the other hand, standard drug tests, which are usually done through urinalysis, can only detect the presence of the drugs tested. but they do not reveal the concentration of those substances in t.he body. Moreover, the residue of certain drugs will remain in the body for days and weeks after lise, Consequently, a positive drug test will not in and of itself establish that the claimant was impaired at the time of the accident in question. In fact, in most cases, such a

test will not conclusively reveal whether the claimant consumed the drug in question on the day of the accident 56 For this reason, respondents should produce additional evidence to link the presence of the drug in the claimant's body to the cause of accident at issue. Facts concerning but not limited to the claimant's demeanor, physical condition, coordination and behavior before and after the accident should be examined. If the presumption is raised, the claimant has the burden of proving sobriely. How much proof will be necessary to rebut the presumption has nOI been clearly established by the Commission or Courts. They will most likely review Ihis issue on a case by case basis. However, the fact that section 11-9-102(5)(8)(iv) relained Ihe "substantially occasioned" language does provide some guidance, As noted, the evidentiary burden imposed by the substantially occasioned standard when coupled with a presumption requires more than "preponderance of the evidence" but probably falls somewhat short of "clear and convincing" proof57 The presumption raised in section 11-9102(5)(B)(iv) requires the Commission to presume the accident was substantially occasioned by the use of whatever substance the claimant tested positive for. Given the Arkansas Appellate Court's historical treatment of this standard, it should be expecled with a reasonable degree of certainty that claimants will be required to come forward with proof of sobriety which exceeds a mere "preponderance of Ihe evidence." As respondents could not overcome the old presumption that the accident in question was not substantially occasioned by intoxication by merely offering proof Ihat the claimant consumed an intoxicant. claimants presumably should not be able to overcome the presumption in favor of respondents by simply declaring Iheir sobriely if Ihis slandard is 10 be applied consistently. Rather, additional proof will be and should be required.

V EVJJlENTt,IRI' ISSUES As previously noted, the Commission is not bound by evidentiary and procedural rules applicable in civil and criminal court. 58 Rather, the Commission is to conduct the hearing "in a manner as would best ascertain the rights of the parties."59 This more relaxed approach concerning evidentiary matlers applies with respect to evidence obtained from both drug and alcohol tests. However, reported cases addressing evidentiary concerns relating to the defense of intoxication in workers' compensation cases have dealt exclusively with blood a!coholtesting. In Sr. Pail/IllS. Co. v. TOIl(.ifJ,(IJ the Arkansas Supreme Court held strict compliance with

l'

'1lIe Irtao\llllll\]1f I'all 1!lII


Arkansas Statutes sections 75-1045 and 7510466t along with the relevant regulations was not necessary for the results of blood alcohol tests to be admissible in proceedings before the Compensation Commission. In reaching its decision, the Court observed that: compensation law provides mal the Commission is not bound by

technical rules of evidence or procedure, but may "conduct the hearing in a manner as will

best ascenain the rights of the panies 62 With respect to evidentiary issues in general and the admissibility of BAC test results in particular, the Coun cited Lmon's treatise which concluded that: "the fact finders are expected to adhere to basic rules of fair play, such as recognizing the right of cross-examination and the

necessity of having all the evidence in the record,"63 Funhermore, given that the Commission "undoubtedly has expenise much superior to that of a jury in weighing of testimony". the hearsay nature of testimony such as BAC test results should go to that evidence's probative value rather than its admissibility. This includes proof which would not otherwise be admissible in a court of law. It is important (0 1l0iC (hal while such evidence may be admitted into the record before the Commission even

though it docs not meet the statutory and regulatory standards contained in title 5 of the Arkansas Code, the presumptions of intoxication contained in that title are nonetheless

applicable. 64 In Davis v. C & M TraclOr, C0 65, the claimant was involved in a one-car collision

which left him totally disabled. A blood alcohol test was administered which recorded a SAC of .238%. Also, there was testimony from the investigating officer and tow truck driver that the claimant's vehicle smelled of alcohol and contained a whiskey bottle which was three-<Juaners consumed along with empty beer cans. [n reviewing the record before the Commission, the Coun of Appeals held that the results of a BAC test were admi ible even though neither the technician conducting the blood test nor anyone else, other than the physician who took the sample, were subject to cross-examination. In upholding the admissibility of the BAC test results, the Coun observed that the claimant was afforded the opportunity to cross-examine any person connected with the blood test but elected not to do so.66 According to the Coun's holding, the evidentiary foundation of a BAC test does not require the testimony of each person involved in the testing process, rather the claimant must merely be given the opportunity (0 cross-examine such persons. In Davis, the results of the BAC test were ~ 1~

lrl.u\iIl L.M!tr rail I!I'J

admitted based solely upon the deposition testimony of the physician who drew the sample. Moreover, the physician was permitted to testify that the claimant's blood alcohol content of .238% renected with cenainty the fact that the claimant was intoxic8lcd. AA The physician also opined that the claimant would have manifested signs of impaired depth perception and renex along with sedation and sleep. This expen testimony, coupled with circumstantial proof of intoxication, led to the Commission to find that the claimant's accident was substantially occasioned by hi intoxication. This decision was later affirmed. On the other side of the issue, the Coun of Appeals in Sauth..esl Pipe & Supply Ins. ÂŁIC. v. Hoover 69 upheld the Commission's finding that a BAC test submitted by the respondent was inadmissible or should have been afforded little weight. 70 In Hoover, the claimants were the surviving spouse and children of David Hoover who was killed when his vehicle crossed the center line and collided with an on-coming lIactor. At the request of the state trooper investigating the accident, a blood sample was drawn from Hoover's hean and subjected to a BAC test. The test revealed a BAC of .11% which is .01% in excess of the BAC level at which. under Arkansas law, a driver is presumed intoxicated. 71 The evidence in the record reflected that at the time the sample was drawn, the vacationer tube in which the blood sample was placed had been labeled by the technician who "put tape over the top of Ithe tube] with his signature on the rape and glass combined." 72 The tube was then taken the ChicO! County Jail and from there it was sent to the Arkansas Depanment of Health for testing. However, when the chemist at the Arkansas Depanment of Health received the tube. he did not recall seeing any tape over me lUbe and was "pretty sure it was not there."'73 In light of this break in the chain of evidence, the Commission found that the BAC test results obtained from that sample should have been ruled inadmissible or in the alternative it should have been afforded little weight. In upholding the Commission's findings, the Coun of Appeals observed two basic features in the record. First, the absence of the tape over the lUbe raised serious questions about the sample's purity which by necessity raised doubts as to the reliability of the BAC test result. Second, the Court distinguished this case from Touzin on the basis that the respondent did not offer any additional corresponding proof of intoxication such as the vehicle smelling of alcohol or the existence of empty liquor bottles being present at the accident scene. The Coun observed that:

the Commission received no other testimony which might lead to the conclusion that Hoover was intoxicated when he had the accident. More importantly, there was evidence that the only item tending to show Hoover's intoxication had been tampered with. (Consequently], there was substantial evidence to support the conclusion of the Commission that the blood test was not reliable evidence.74 The foregoing cases illustrate the basic evidentiary parameters in which BAC test results will be admissible in compensation cases. While strict conformance with Depanment of Health regulations will not be required, the pany seeking to introduce such evidence must still lay a proper evidentiary foundation by linking the sample from which the test result was obtained to the claimant. At minimum, this would include either testimony from the person drawing the sample, or testimony establishing the chain of evidence. However, as observed above, me initial foundation does not require testimony from each person involved in the testing process, rather proof which establishes to a reasonable degree of cenainty the reliability of the test and the chain of evidence will, in light of the foregoing cases, be sufficient. These basic requirements should also apply to samples draw or obtained for drug tests. However, as proof of intoxication, the results of drug tests raise separate issues of which the practitioner must be aware. First, unlike blood alcohol tests which reflect specific levels of alcohol in the person's blood stream standard drug screening merely detects the presence of the substance rather than its concentration in the body. Consequen~y, while a positive drug test which has been confirmed will indicate drug use it will not provide conclusive proof of impainnent or intoxication. Moreover, in most instances, a positive drug test will not even reveal the time period in which the person presenting the positive test had consumed the substance. 75 Therefore, in most cases, the positive test re ult standing alone is not proof that the claimant had either consumed the sub tance while at work or was under the influence at the time of the accident in question. 76 Second, drug tests raise the issue of "falsenegatives" and "false-positives". As the term implies, a false-positive test result is one in which a person's sample tests positive for a controlled substance even though the subject had not consumed any controlled substances. Falsepositives are caused by "cross-reactions" which occur during the drug screening process "when another substance in the body tests as if it were


an abused drug.. .',7) For example, use of certain non·prescriplion medications may result in positive test results in a drug screening 78 Though opinions vary, the general consensus is that the instances of false-positives rarely occur and can be virtually eliminated by following proper testing procedures and test follow- up79 For example, the problem of false positives can be eliminated by pre-test evaluations and questionnaires in which the person tested reveals all medications, prescription and non-prescription, taken before the test. After a positive test result is revealed, a follow-up examination is performed to be sure all substances were listed. If none of the medications idemified can explain the positive reading, the positive screen is confirmed. The accuracy and dependability of drug testing will undoubtedly be an issue for the Commission and Appellate Courts to grapple with. The problem is further complicated by the compensation Act's relaxed evidentiary standards and by the fact that no methods or procedures have been prescribed to govern how drug testing should be conducted. There are several sets of standards which have been promulgated at both the federal and state level. For example, the U.S. Department of Health has produced guidelines for federal workplace drug testing in addition to minimum standards for laboratory certificaljon. 80 Generally, these guidelines address the following subjects: (I) Chain-of-custody; (2) Confirmalion of tests; (3) Medical Review ofTest Results; (4) Quality Assurance Procedures 81 Chain of custody requires wriuen assurances that the sample tested was the sample taken from the person submitting to the test and it requires reasonable assurances that the sample had not been tampered Wilh or otherwise adulterated. ConflIlTl3tion may in some circumstances include a second test to verify a positive test. Because a positive drug test does not necessarily mean the person tested has used illegal drugs, a medical examination, i.e. review, of the test results should be perfonned by a licensed physician alkJa Medical Review Officer (MRO). Such a review should confirm the chain of custody and include a medical examination of the specific case to detennine if any alternative medical explanation exists for a positive test. 82 The primary responsibility of the MRO is to determine medically whether any legitimate basis exists to explain a positive test result Quality Assurance Procedures govern the way the laboratory itself conducts its operation to lower if not eliminate the risk of human error or operational error. This includes how tests are documented, how tests are

conducted and routine checks of equipment used in the testing process. 83 Finally, as a practical matter, it is important to note that the end result of drug/alcohol testing will differ depending on lhe particular legal situation involved. At a glance, these resuhs may appear to be inconsistent. Consider: a typical drug/alcohol policy will for instance forbid a person from having trace levels of drugs in their system. An employee may violate such a policy merely by testing positive for a trace level of drugs in their system. Under such circumstances, the employee may be rightfully discharged and will be ineligible for unemployment benefits 84 ; however, a drug test reflecting a trace level of drugs in the employee's system, withom more, may not be sufficient to deny him compensation benefits. On the other hand, test results obtained under a drug/alcohol testing policy found to be unreasonable may nonelheless be admissible in compensation cases, even Ihough violation of such a policy will not preclude the award of unemployment benefits. 85 VI CONCLUStON As the foregoing illustrates, many issues remain unresolved both as to employer drug/alcohoi testing in general and the effect such testing has on the revised workers' compensation act. Consequently, practitioners should not jump to hasty conclusions concerning the future of drug/alcohol testing and the effect it will have on workers' compensation practice. End Notes I. Olsen, A Comprehensive Review of Private Sector Drug Tesling Law, 8 HOFLU 223 (Spring 1991). cil· illg, The Bureau of National Affairs, Alcohol alld Drugs in rhe Workplace: Costs. Comrols, and Conlroversies, at pp. 7, 8 (1986) and The National

Repon on Substance Abuse, January 18, 1989, at 4-5.

2. Eighth Special Report 10 the United States Congress on Alcohol and Health, From the Secretary of Health and Human Services (Sept. 1993); dling, Rice. et. al., infra. 3. Rice. Dorothy P. Unpublished Dala. Institute for Health and Aging; University of California at San Fransisco. 1990; SlibsulIlce Abuse: The Nation's Number aile Health Problem. The Robert Wood Johnson Foundation. PrincelOn N.J., 1993; dried ill, M. Delancy, Does Drug Testing Work? (2nd ed.

t994) 4. 41 U.S.C.A. §701 et. seq. 5. Several federal government agencies also implemenled drug testing of persons working within their organizations. These include: the Department of

Defense 48 CF.R. §252.223-7500 (cXI): Federal Highway Administration Federal Aviation

Administration t4 CF.R. §§61.15-.16, 63.12-.12b, 65.t2, 121.455-457, 135.249.-259, 135.249.-25 t; Federal Railroad Administration 49 C.ER. §219. Substance tesling of federal employees has been

upheld by the United States Supreme Coun. See e.g.. Skinner \~ Railway Lobor Execurives Ass'n., 489 U.S. 602, 109 S.Ct. 1402 (1989); Naliannl Treasury Employees Union v. VOIIRaab, 489 U.S. 656. 109 S.C!.

1384 (1989). 6. See Corporate £tperiellces Willi Drug Testing Programs supra. 7. Id. 8. However, the Arkansas Department of Health has issued regulations which govern blood alcohol testing and various federal agencies have issued regulations concerning drug and alcohol testing under their respective policies. 9. Tyson Foods, Illc. v. Locke)', Arkansas Court of

Appeals CA 91-353 (June 24, 1992). 10. See e.g., Drug-Free Workplace Act of 1988 supra; see also, Department of Transponation Regulations concerning commercial drivers 49 C.F.R. §§ 391.81 et.

seq.; 382.101 et. seq.; 392.1 et. seq. 49 CF.R. §40.t et. seq. II However, important differences do exist. For

BUSINESS VALUATIONS Closely Held Businesses & Professional Practices RICHARD L. SCHWARTZ Certified Public Accountant - Arkansas Certified Business Appraiser - Institute of Business Appraisers CerttfIed Fraud Examiner - Association of Certified Fraud Examiners Court Appointed - Regular Court Appearances National Lecturer Call for our free brochure 11510 Fairview Road Suite 100 Little Rock, AR 72212-2445 (501) 221-9900 Ii

fb, Irklllal 1,111")" I'all 199G


example, the Founh Amendment protection against self-incrimination applies to tests taken by government agencies and/or government contractors. It does not, however. apply to private employers because there exists no state action. See Skinner \'. Railway LAbor Execurh'es Ass 'n, supra. 12. 31 Ark. App. 8I. 790 S.w. 2d 907 (1990). 13. erau Drilling, 790 S.w. 2d i!t908. 14. Id.

15. Id. 16. Id.

aim.

17. 38 Ark. App. 269. 832 5.w. 2d 295 (1992). 18. But see. QUlllls \'. Hickory' Springs Manf Co., Inc.. 994 F. 2d 505 (8th Cir. 1993) (in a diversity action appl) ing Arkansas law, the Coun of Appeals held that a wrinen drug/alcohol policy could modify the "at-will" rule). 19. See Rice/and supra. 20. 900 S.w. 2d 590 (Ark. App. 1995). 21. Id. 22. It is imponant to note that the Arkansas Coon of Appeals has not limited drug/alcohol testing solely to those employers engaged in "dangerous" industries and/or to employee!. who engage in sufficiently "dangerous" jobs. The "dangerousness" element was first raised by the Coun in Grace Drilling which involved a random drug test. Similarly, in George's Inc. the dangerousness element was established in the record by the fact that the employee'sjob included cleaning and working around machinery. These cases illustrate that the reasonableness of an employer's policy will be determined by the specific facts of the concluding the employer's motivation and objectives in initiating a policy. 23. Id. 24. Id. 594. 25. fd.: ciring, McAllister v. Board of Re\'iew. 263 III. App. 3d 207. 200 111. 0..:. 257. 635 .E. 2d 596 (1994); SinglelOn )'. Unemployment Compensarion Board of ReI';ew, 125 Pa. Cmwlth. 397. 558 A.2d 574 (1989); see a150. Rucke,,, P,ice, E94-223 (Arkansas Coun of Appeals 19%) (employee tested as a result of an on-the-job injury: coon upheld Board of Review's decision disqualifying an employee for unemployment benefits after the employee was discharged for testing positive for a non-prescription controlled substance under the emplo)er's drug/alcohol policy), reported in. Arkansas Coun Bulletin. Vol. 6, Issue 22, Page 145 (February 28. 1996). 26. Employer initiated drug/alcohol testing programs are a subject of mandatory bargaining under the National Labor Relations Act. Su 29 U.S. C. § 151 et. seq. Employers who unilaterally implement such a policy risk violating section 8(a) (5) & (I) of the Act. Set Johnson-BaJeman Co., 295 LRB No. 26 (June 15, 1989); 510, Tribune. 295 NLRB No. 63 (J une 15 1989); Wards COI'e Packing Co. and Regia" 37. Inland BOalmens Union, ILWU, AFL-CIO, ational Labor Relations Bd. 19·CA·20983, 1990 NLRB Lexis 636 (December 12, 1990). Collective bargaining agreements will be enforced with respect to drug/alcohol

a'

11 Tbl \rlanmIJ"llr 1'111 1996

testing including terms of Arbitration. For example, in Doe v. Cell/ral Arkl/flsas Transit, 50 Ark. App. 132. _ S.W. 2d _ (1995), a city bus driver who teSl· ed positive for cocaine was reinstated by an Arbitrator selected under a Union contract. The Coun of Appeals upheld the reinstatement after finding that the arbitrator acted within his authority. 27. Moreover, the "ounh Amendment applies to drug/alcoholtesling when administered by the government or by a "private pany actling) as an ins(J1lment or agent of the government:' Su Skinner. 489 U.S. at 614, 109 S. Ct. at 1411. 28. Alcoholism and fonner drug addiction are condilions covered under lhe ADA. With respect to subSlance testing. the EEOC makes an imponant distinction between alcohol and illegal drugs. Alcohol testing is considered a "medical examination" if the tesl is "invasive:' As a result. such tests may nOl be administered during the pre-cmployment stage. However, testing for illegal use of drugs is not considered a "medical examination" and employers may administer such tests at any time during the pre-cmployment process or thereafter. Set generally. Ogletree et. aI., Americans wuh DIsabilities Acl.· Employee Rights &- Employer Obligw;0/15, §§ 3.05 [11: 5.04 [II [gl: 5.04 [61 [al (Mauhew Bender 1995). 29. For example, in George's Illc. \'. Director. I:.i"ploymelll Securily Oepl., supra, the Coun of Appeals nOled that for purposes of unemployment insurance before a finding of "misconduct" for violating an employer's rule could be upheld. the rule or policy, including a drug testing policy. has to be reasonable. 1d 900 S.W. 2d at 593: ciling, 81 C.l.S. Social Security aad Public Welfare § 224 (1977); Pesce \'. Boord of Rn'itw Dep'1. of Employment Secll';0', 161 Ill. App. 3d 879,113111. Dec. 864, 515 .E.2d 849 (1987). 30. Ark. Code Ann. § 11·9·102 (5)(iv)(Michie Supp. 1993). 31. See Discussion Scrtion V infra. 32. See Sec'ion 5 of Act 319 of 1939; Jet alro, Ark. Stats. § 81·1305 (1947). 33. Elm Springs Canning Co. ". Sullins, 180 S.w. 2d 113 (Ark. 1944). 34. AmeriClln Casualty Co. v. Jones. 276 S.W. 2d 41 (Ark. 1955) at pg. 44; citing, Elm Springs Conning Co. "Su((in5, 207 Ark. 257. ISO S.W. 2d 113 (1944): Cox Brorhers Lumber Co. \~ Jones. 220 Ark. 431. 248 S.w. 2d 91 (1952). 35. 436 S.w. 2d 282 (Ark. 1969). 36. Jones TnlCking. 436 S.w. 2d at 284. 37. Id. at 283. 38. /d. at 284. 39. See Discussion infra. 40. Larson. Worbnens' Compensation ww, Vol. IA § 34.31. 41. One possible way to quantify these standards would be to conclude that "preponderance of the evidence" requires 51 % of the weight of evidence while "clear and convincing" requires 75% or more. If the foregoing is accurate then the evidentiary burden

required under the "substantially occasioned" language should fall in at around 66% of the weight of evidence or higher. 42. LAckey \~ Tyson Foods, Inc., Full Workers' Compensation Commission. June 26. 1991. (Claim No. E003431): citing. Dearmon v. John Ham Roofillg Co., Full Workers' Compensation Commission. July 25, 1990. (Claim No. 0811577). 43. Full Workers' Compensation Commission, December 19, 1990. (Claim 0.0914541). 44. Jd.

45_ Full Workers' Compensation Commission. September 18. 1985, (Claim No. 0405536). 46. Jd.

47. Ark. Code Ann. 11·9·102 (5)(B)(Micbie 1993). 48. Ark. Code Ann. § 11·9·102 (5) (B)(iv)(Michie Supp. 1995). 49. See Discussion supra. 50. Such a situation could arise. for example, if the injury at issue was the result of a motor vehicle accident. An employee operating a vehicle in the course of his employment may exercise his Founh Amendment right not to submit 10 a BAC tcst for fear of self-incrimination. 51. Compare (his recommendation with 49 C.F.R. § 391.113 (b) which requires commercial drivers 10 "provide the necessary authori7.ation for obtaining hospital repons and other documents that would indicale whether there were any controlled substances in hislher system." 52. See supra. 53. The Arkansas Supreme Coun in Sreele v. State, 681 s.w. 2d 354 (Ark. 1984) found 'his sec'ion '0 be constilutional and held that the results of tests obtained pursuant to this implied consent provision are admissible in criminal (rials and do not violate the constitution's prohibition of self-incrimination. 54. Ark. Code Ann. § 5-65·103 (Michie 1987). 55. Ark. Code Ann. § 5·65·206 (a) (Michie 1987) 56. See generally. Elkoori et. al.. Resolving Drug Issues (B A 1993): DeCresce tl. 01.. Drug Testing in the Workplace (B A 1989): Banta et. al., Comboring Substance Abuse in the Uorkplace (Lexington 1989). 57. See Discussion supra. 58. Ark. Code Ann. § 11·9·705 (a) (I) (Michie Supp. 1993). 59. /d. 60. 592 S.w. 2d 447 (Ark. 1980). 61. These statutes are currently codified at Ark_ Code Ann. §§ 5·65·201: 202; 205: 207 (Michie 1987). 62. Touzin, 592 S.w. 2d 31449: Citing, Ark. Stat. §811327; now codified at Ark. Code. Ann. § 11·9·705 (a) (M ichie Supp. 1995). 63. Jd. 64. Southwest Pipe &- Supplyet. at. v. Hoo\'er, 680 S.W. 2d 723 (Ark. App. 1984). 65. 627 S.W. 2d 561 (Ark. App. 1982). 66. Do,,;s, 627 S.w. 2d at 563. 67. /d. 68. /d at 562. 69. 680 S,W. 2d 723 (Ark. App. 1984).


70. {d. at 725. 7 J. See supra. 72. fd at 724. 73. Id. 74. Id. 75. See Elkouri, DeCresce & Banta supra. 76. See Supra. 77. Wight. Stote Dnlg Testing SIaIWes: Legis/mire Attempts 10 Balance Pril'ocy. 14 J. Corp. L. 721, 753 (Spr. 1989). 78. Id at n. 125: ciling. K. leese. Dntg Testing Legal Mallual § 3.01 121 Ibl (1988). 79. Set DeLancey supra. 80. Mandatory Guidelines for Federal Workplace

Testing Programs. 81. Another cenifying body is the College of American Pathologists. (CAP). which has also promulgated its own standards.

82. See supra. 83. To ensure accuracy, laboratories are sent "quality control samples" by certifying bodies 10 determine whether the laboratory will produce the expected resuhs. Every aspect of the laboralOry's procedure and

operation are scrutinized.

LABOR LAW, LITIGATION AND PARALEGAL POSITIONS We pay immediate cash for slructured seulements,

Management employment and labor law firm with twenty-four attorneys and expanding national practice seeking two attorneys with high academic credentials, exceptional analytical abilities and strong writing skills. LABOR ATTORNEY

Prefer three or more years experience in management labor law. LITIGATOR

Prefer three to six years of litigation experience with interest in developing employ' ment litigation expertise. Firm is also seeking certified paralegals who possess litigation or employmenl law experience and sound writing skills.

84. Grace Drilling Co. v. Director, supra: George's Illc. v. Director; Employment Security Department, SUlml,

85. See George's, Illc. v, Director, £mp/oymelll Security Dept,. supra.

Please send resume and writing sample to Hiring Partner, McKnight, Hudson, Lewis & Henderson, PLLC, P.O. Box 171375, MemphiS, TN 38187-1375.

RONALD

E.

annuities, inheritances. louery installments and class action awards. Bach Inveslment Company,

800·457·9922. ITALY· Tuscany - 18th C. farmhouse, end of private road on wine and olive estate. views of San Gimignano's medieval lowers. 30 miles from Aorence, completely furnished. updated. sleeps 6. weekly rental about S700-59OO. For photos: Law

Office of Ken Lawson. fax 206·632·1086. lele· phone 206·632·1085 (Seattle). ALps· German)'/Austria - Apartment in panoramic Bavarian Alps town of Seeg. 10 miles from Ludwig's castle in Fussen/Austrian border. 100 miles from Munich. Magnificent ski. spa, hiking. biking area. Completely furnished, including washer. large balcony with mountain view, garage,

sleeps 2·3. weekly S750. Law Office of Ken Lawson, fax 206-632·1086, lelephone 206-632· 1085 (Seattle). FUNNIEST OF ,\LL LAW BOOKS is the 1997 edition of ''The Lighter Side of Practicing Law" which contains 140 humorous courtroom ancedotes told by I12 judges and lawyers from all fifty states. Arkansas humor from Victor A. Aeming. Little

Rock.

To purchase this 118 page book send a $25 check, payable to "We, the Lawyers" to retired lawyer William F. White at 205 Berwick Road, Lake Oswego, Oregon, 97034. You get by return mail. Nor order form or shipping charges required.

BUMPASS,

J.D.

ARBITRATION AND MEDIATION Labor IManagement arbitration and mediation, EEOC matters, Sales commission disputes, Brokerdealer-manufacturer-representative disputes, Architect-engineer-contractor-developer disputes,Trustee and executor liability, Employee pension and disability entitlements, Discipline, Suspension, Contract and warranty disputes, Malpractice, personal injury and insurance disputes, property settlement valuations and divorce disputes

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

PROFESSIONAL ASSOCIATIONS: Arbitration Panel of the US. Department of Labor's Federal Mediation and Conciliation Service American Arbitration Association's Labor Commercial Panels ational Health Lawyers Association's Alternative Dispute Resolution Service Panel United States Postal Service! ational Association of Letter Carriers, AFL-CIO, CPR Institute for Dispute Resolution, N.Y., N.Y.

E. BUMPASS 2241 North Green Acres Road, Fayetteville, AR 72703 (501) 521-3172 or 1-800-400-3172 • FAX (SOl) 521-5928 LAW OFFICES OF RONALD

For Information Only - Not A Solicitation


Book Review

Comparative Fault - Third Edition By Henry Woods and Beth Deere Clark Boardman Callaghan 1053 pages; $135 Reviewed by Timothy O. Dudley

Judge Henry Woods is the premier scholar on

court in the country.

vival, conflicl of laws, multiple panies, and prod-

lhe subject of comparative Fault. The first IwO

Along with these topics, lhere are separate

editions of this book have been cited byalmosl

chaplers dealing with intentional conduct, last

hints on the trial of ton cases, on submiuing such

every stale supreme court in the country and by

clear chance, wrongful death, statutory viola-

cases to the jury, and on the appellate phase. A

many Federal trial and appellate couns. When

tions, nuisance, persons under disabilities, coun-

full set of instructions and interrogatories is

the first edition was published, only a minority of

terclaims and set-ofTs. and conflict of laws. The

included.

stales had embraced the doctrine of comparative

chapter on conflict of laws is important when

fault. Al present. either the pure or modified ver-

read in conjunction with the state-by-state sum路

itive work in its area. Comparath'e Fallit .. Third

sion has been adopted in Fony-six slates, Guam,

mary where there is a choice in selecting a

EditiOlI can be ordered by calling, loll-Free 1-

Pueno Rico, and the Virgin Islands.

forum.

800-221-9428 or by writing Clark Boardman

In me new edition of Comparat;\'t Falllt,

The state-by-state analysis summarizes Ihe

Judge Woods and Beth Deere have compiled an

law of every staLe, giving first the basis of com-

impressive volume -- over one thousand pages--

parative fault (case law or statute). The law in

which includes the significant cases from every

each state is then summarized under the headings

jurisdiction in the United Stales. Recem changes

of assumption of risk, last clear chance, willFul

in lort law make this new edition of Compararil'e

and wanton conduct, wrongFul death and sur-

Fa"l, timely and indispensable

10

uct liability. There are chapters giving helpful

The book is easy to use and will be the defin-

Callaghan, 155 Pfingsten Road, Deerfield, IL 60015-4998.

lawyers who

practice in the field of ton law. The statutory and case law have been brought

up

10 dale.

There have been significant changes

in the law since the second edition was published in 1987. Because of the tort rerann movement,

in many jurisdictions. nOi only has there been a modification in comparative fault law, but also in

Thank You Advertisers! rhe Arkansas Lawyer' would like to thank our

related areas such as joint and several liability, contribution. assumption of risk, causation, and

product liability.

adver'tiser's fOl' their support of the publication.

In the product liability field, there have been many new developments, all of which are thoroughly discussed in a separate chapter. as well as

\Ve encounge our membel's and reader' colleagues to

in the state路by-state analysis set OUI in Lhe appendix. The discussion on causation includes an exhaustive survey of cases involving the non-use

of seatbelts From vinually every slate and Federal

SUPPOl't 001' advertisers whenever possible.


Young Lawyers Section Report

Your Young Lawyers Section is Busy by D.P. Marshall, Jr.

Are you less than thirty-six years old, or have you been practicing law less than live years? Then you are a YLS member. Pick one of the projects below, then pick up your telephone, and get involved. Are you a not-so-young lawyer? Then support the YLS members in your firm or lawn as they serve the public and the legal profession. Your Young Lawyers SeeLion is busy. Here is a report. BRII)(;I'IG TilE G \p Planning is in full swing for the annual Bridging the Gap Seminar for new lawyers. Two young lawyers -- Gwen Hodge and David Hodges -- and one bwyer who is young at heart -- Dennis Schackleford .- are chairing the event. The seminar is scheduled for November 14 through 16th in Little Rock. The latest crop of law graduates will gel a wide variety of practical instruction by spending several "Days in the Law Office' at thc seminar. Will you help with planning or putting on the seminar? If so. call Gwen at 324-5337. DIs \STER RELIEF PLAt\l\Il\G

Young lawyers in Northwest Arkansas recently put their shoulder 10 the wheel. As we learned in the last Arkallsas Lawyer, they were in the middle of assisting viclims of the recent tornados that devastated the Fort Smith area. Our Bar Association's plans for coordinating free legal services after disasters, however, are out of date. We're going to change that. Led by Baxter Sharp, Jackie Johnston, and David Price, a group of young lawyers is preparing a statewide plan for responding with legal services after disasters. This group is also aiming for new legislation inul1unizing lawyers against malpractice suits over acts of good legal Samaritans. Interested? Call Baxter at 734-4060 and sign on. ST\T!'TE OF Ll\lITATIO\S HAl\I)BOOK UPD.\TE

You used it last week. It's there beside your desk: The Guide to Arkansas Statutes of Limitations. Young lawyers wrote it five years ago. It is lime, however, for an updated book. Jonaon Roosevelt and Mike Shannon are in charge. And they need volunteers. Now, this project is not Return to The Planet of Legal Research Class. A couple of hours work on a few causes of action and you'll be done. Call Jonann al 3762011 and volunteer. ,\It\TOR PROGR \\1

'·Been there. Done that." That's the mOllO of the YLS Mentors. They'll be back at both law schools this fall. When you were in law school, wouldn't you have benefited from professional advice and counsel from a young practicing lawyer? Did a lawyer in facl make time for you? Be a YLS Mentor, and help get law students on the right path to practicing law. If you want to work with Fayelleville students, call Rob Wright at 521-8282. If you want to work with Lillie Rock students, call Kala Rogers at 688-8891. Stuart Miller, past YLS chair, is coordinating the elTort statewide, so call him at 376-9100 too. As I said, your Young Lawyers Section is busy. But that is nOl enough. The important question is: what are we busy about? My answer: serving the public and our profession. Join us.

UPCIPRO COlltiuued From Page 20

UPCICON COlllillued From Page 2/

of probate court. The adoption of the Uniform Probate Code won't stop this change immediately· maybe it can't be stopped. but the bar ought to recognize that the enactment of legislation which is modem, efficient. and offers the public lower costs, is important. To oppose such legislation just because we are used to doing it another way or because we didn'tleam the Uniform Probate Code in law school (although those who have graduated in the last 15 years probably did) is not fair to the public or to ourselves. End Notes I. UPC §2-102. The surviving spouse also takes the entire estate if the decedent is survived by neither descedants nor parents. 2. If the decedent leaves a surviving spouse and descendants, some of whom are from a prior marriage and some of whom are from the current marriage, the surviving spouse takes the first $150,000 and one half of the remainder. UPC §2-102 3. See UPC Article VI. 4. Ark. Code Ann. §23-32-IOO5; see also Hall v. Superior Fed. Bauk, 303 Ark. 156,800 S.W.2d. 611 (1990). 5. The Nebraska legislature passed the UPC in 1974, but provided for it to become elTective on January I, 1977. Arkansas should probably make a similar provision to allow the bar to leam the Code before it becomes effective. 6. Charles Wright, ·'Nebraska's Experience with the Uniform Probate Code - 1974 to the Present." handout prepared for the Mid- Year Meeting of the Arkansas Bar Association, January, 1996, pp. 4-5. 7. Wright, p. 20. 8. SUfl'e)' of Stale un" 1994, Uniform Probale Code, published by the American Association of Retired Persons. 9. Averill, Uniform Probate Code in a Nutshell, 3rd ed.. Wright, UPC Practice Manllal. 10. Wright, p. 6.

the State of Arkansas or of the United States of America may be proposed. sponsored, or approved by the Association it must first be approved by the affimlative vote of a majority of the members of the Association voting on the issue". With no such approval having been had of the Misnomer Probate Code by the members of this Association, the House of Delegates should reject any proposed sponsorship of the Misnomer Probate Code. Since the appointment of the Unifonn Probate Code Review Committee more than a year ago, what has been happening in this Bar Association with regard to thai Misnomer Probate Code reminds me very strongly of a newspaper article that appeared several months ago. The article staled: We hope some lessons were learned from this highway bond program vote. Most importantly, how could voters have been tuned out and mjsread so badly? Tucker, legislators, city officials. county officials and most chambers of commcrcc, among others, need to get back in touch with their con~ stituents. The arrogant "we know what's right for you" altitude simply doesn't work anymore, and there was no reason to think the revolution in Washington against that attitude didn't appl y to Arkansas voters. Let's leam. regroup and move forward." One of our leading probate judges recently sent out inquiries to thirty three of our probate judges. As of August 13. he had received twelve replies. He and nine others were against the adoption of the Misnomer Probate Code, two were neutral and one was for it. It sounds a lot like the lale road bond VOle. It would be my guess that among the probate lawyers of Arkansas. we would have about the same results.

II TIl Irtanlll tall}"

f'all 1996


CLE Director's Report

A Primer for New Attorneys What's In It For You at the Arkansas Bar Association by Charlotte Greer

Congratulations! You have just joined more than 6,O<XJ orner lawyers in the siale of Arkansas. Now what? Here is some imporlant and useful information you should know about your law license and the Arkansas Bar Association: ~I '\J)\TQR' CO\TI\lI\G LEG\!. El>lC\TIO\: Ya' gana have it. To remain licensed in this state, you must accumulate 12 CLE hours a year. However, you are exempt from mandatory CLE during the year of admission. Bul. you may earn credits during thai lime. Arkansas requires 12 total hours, one of which must be ethics. YOLI will first report CLE hours in June 1998, and you can include in that report any hour.; earned during the exempt period. If you have any questions about mandatory CLE requirements, call the Oflice of Professional Programs at (50 I) 374路1855. CU: Snll' IR;: ABA provides about 30 different CLE seminar.; throughout the year and around the state. Seminars cover a wide range of topics, from Family Law to Workers' Compensation Law, and are designed for different levels of experience. The Association, with the aid of an Arkansas Bar Foundation grant, offers an inexpensive skills training program, Bridging the Gap. ideal for the new lawyer. The CLE Division also offers video replay sites in less populated areas to make education more accessible to Arkansas lawyers. Seminar brochures are mailed to all members, and to non-members who have called the Associmion and added their name to our list. These seminars are offered at a discounted price to our members. If you've been licensed for less than two years and arc a mcmber, you qualify for an additional 20% uff the already discounted price. Your contact in the CLE Division is Virginia, (501) 375-3957 or (800) 609-5668. YOL \G L\\\' ERS SEeno~: You are automatically a member of the Young Lawyers Section for thc first five years of practice or until the end of the year in which you tum 36. whichever is longer. YLS is a large section of the bar - about 25% of all members. Special mectings and gatherings are geared toward the new lawyer. If you want to volunteer for an active role in YLS, contact Chair Price Mar.;hall at (501)931-1700. SECTIO\S A]\,J) Cml\lrnEES: Various Scctions and Committees represent specialized legal interests. Meetings. CLE seminars, and infomlal gatherings of like-minded lawyers keep your specialized knowledge up to date. Member.;hip in Sections is by the payment of dues. Dues range from $10 to $20 per year. with the exception of the YLS which is free. For infomlation on Section membership. eall Jeri at (501) 375-4606 or (800) 609-5668. Membership on Committees is by appointment of the Association President. Watch for your Committee Preference Form in February to express your interest. S'STE\'S & H ,\DROOh.S: Our publications will save you time by providing fomls, checklists. text and references on various areas of law. The systems and handbooks cover a wide range of specific topics. from bankruptcy to domcstic relations, and include the Arkansas Form Book that provides a library of forms and serves as

an exceptionally useful research tool on many areas of law. The publications are available in the printed fonn, on computer disk, or on CD-ROM. To get a list of what is available or to place and order, call Diane at (501) 375路4606 or (800) 609- 5668. LA\\ YER REFERRAL SER\,ICE: The Arkansas Bar Association devotes considerable time and effort to public service programs aimed at reinforcing public trust and confidence in lawyers. One such project is the Lawyer Referral Service. This service aJlows the public to contact the Association for the name of a lawyer in their geographical area that handles their type of casco To receive client referrals you need to: be a member of the Association. complete an application, pay an annual membership fee of $50, and prove that you carry malpractice insurance. For more information contact Theresa at (50 I) 3754605 or (800) 482路9406. hSLRA~CE: As a member of the Arkansas Bar Association you are entitled to participate in the Association's group insurance plan. For more information on Lawyers' Professional Liability, Major Medical, Disability Income, Accident Insurance and/or Group Tenn Life Insurance, you may contact Rebsamcn Insurance, Professional Association Group Division, (501) 664-8791. RETIRDIE~T: The Arkansas Bar Association has endorsed the American Bar Association's Retiremcnt Program. Thc program, administered by State Street Bank and Trust Company, provides a wide choice of plans: Profit Sharing Plan, 40 I(k) Plan, Defined Benefit Pension Plan, Money Purchase Pension Plan, Target Benefit Plan, and Rollover IRA. Contact Susan White at (617) 376-4624 for more information. Mnl8ERsllIIJ DIRECroRY: Incidentally, if you change your name/address please contact the Bar Association so that you will receive our mailings. This information will also be printed in our annual Membership Directory that is mailed to all members. For changes or questions about membership at the Arkansas Bar Association. call Barbara at (501) 375-4606 or (800) 609-5668. OTIIER Mf.\IIlERSHII' BE\EFtTS: Members receive several publications that keep them informed on the latest statewide news as it relates to the legal community. These include The Arkansas ullvyer, The Newsbullelill, SUl1Il1Iary!rom the Hill, Tlte UALR UIIV Journal, and The Arka/lsas Law Review. The Association also offers free infomlational booklets and brochures to aid and educate your clients and the general public, like The COllSumer Law Handbook, and The Senior Citi;.ells Halldbook. Discounts on various services are available to members, ranging from hotcl and car rental to cellular and Internet services. If you have questions about the Arkansas Bar Association, membership. or any of the membership benefits, please eallthe Bar Association at (501) 375-4606 or (800) 609-5668.


disciplinary actions F,N, "Buddy" Troxell A letter of caution was issued to FN.

was held in contempt for failure to follow the Court's directives.

"Buddy" Troxell for violation of Model Rules 1.1, 1.3,3.4 (c) and 8.4 (d) upon Ihe Complaint Before the Committee.

Gary R, Sammons

provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. A

A leller of reprimand was issued to Gary R. Sammons for violation of Model Rules 1.1, 1.4 (aJ, 1.4 (b), 1.5 (b) and 1.16 (d) upon the complaint of Vlado & Radmila Jovin. These Rules state, in part, that a lawyer shall

lawyer shall act with reasonable diligence and

provide competent representation to a client; a

promptness in representing a client; shall not

lawyer shall keep a client reasonably informed about the status of a maller and promptly comply

These Rules state, in part, that a lawyer shall

knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; and,

with reasonable requests for information; a lawyer shall explain a mailer to the extent rea-

shall not engage in conduct that is prejudicial to

sonably necessary

the administration of justice.

informed decisions regarding the representation;

On July 17, 1995,Ihe Supreme Court of Arkansas held Troxell in contempt of court and

when the lawyer has not regularly represented a client, the basis or rate of the fee shall be com-

fined him $250 in connection with his represen-

municated to the client, preferably in writing, before or within a reasonable time after commencing the representation; and, upon termination of representation, an altomey shall take steps to the extent reasonably practicable to protect the client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and

tation of Christopher Ray Stone. Troxell and aHomey Frank E.Shaw were Stone's allomeys of record and responsible for his appeal. Subsequent to Ihe tiling of the Notice of Appeal, Troxell and Shaw were granted two extensions of

lime in which to file the record. On February 17, 1994, a Motion To Be Relieved As Counsel was filed. On February 20, 1994, the record was filed late and on March 7, 1994, the Motion To Be Relieved was denied. On March 9, a Motion For Reconsideration was filed and was denied on

March 28. The appellant's first brief was due on April 2, 1994. The brief was not filed on July I and no pleading was filed by either Troxell or Shaw until after the State filed a Motion To Dismiss on September 21, 1994. On September 27, 1994, Troxell filed a Response To The MOlion and requested another extension to file

10

permitlhe client to make

property to wbich the client is entitled and refunding any advanced payment of fee that has not been earned.

In their affidavit of complaint, Vlado and Radmila Jovin, explained that during October of 1994, they met with Sammnns to bire him to represent them in their endeavor to become United States citizens. Sammons wife attended the meeting also because she is a certified inter-

preter. The Jovins paid Sammons $1000, of the total $2400 fee, that day. The Jovins understood that the $2400 was the lotal fee for obtaining cit-

the brief. On October 10, 1994, a final extension was granted. The brief was due December 19, 1994. On December 7, 1994, allomey Ray Hartenstein filed a Motion To Be Substituted. Said Motion was granted, but Troxell was

Jovana. After they hired Sammons, the Jovins

ordered to show cause for failure to file a brief in

Assistance Program in Oklahoma City,

izenship status for them and their daughter, obtained all of their previous immigration documents from Catholic Charities Immigration

the case. No brief was filed on December 19 and

Oklahoma and in tum provided the same to

Troxell failed to present a meritorious defense

Sammons wife for delivery to him. The Jovins believed that Sammons was actively pursuing this mailer because he had all their documents and they were relying on his legal expertise in

for this failure. These findings were made by Ihe Master and adopted by the Court. The Court concluded that although Shaw was primarily responsible for filing the brief, Troxell, too, was legally responsible and neither made substantial efforts to prepare the brief. Ultimately, Troxell

Immigration matters. The Jovins received a let-

ter in early February, 1995 from the Director of

tus. Since they did not understand exactly what the leller meant, they provided a copy to Sammons. He responded on their behalf on February 27, 1995. They received a copy of his response bUlthen heard nothing else from him until October 30, 1995, despite their repeated allempts to contact him. When they met with him on October 30, 1995, they asked for an accounting and an explanation of what was going on with their immigration mallers. Sammons provided neither 10 them. The Jovins said he became angry and told them if they wanted Political Asylum then they would have to start over with a new fee agreement. Jovana explained that they wanted to see their files, Sammons refused their request and sent them away. The Jovins then requested that their friend, Dianne Finzer, assisllhem in communi路 eating with Sammons. Her attempts were also unsuccessful. Despite the Jovins' requests Sammons has not provided them any correspon路

dence about their immigration proceedings nor has he provided them with their files. In his respone, Samntons acknowledged representing lovin but asserted that his representation did not extend 10 assisting him in becoming a United States citizen. Sammons asserts that applications for political asylum were duly filled out and submilled to the Director of the INS in Houston wilt! a hearing date being seL in regard to the applications. According to Sammons, prior to the hearing date, a letter was received

explaining that the Jovins were not eligible for political asylum because they had already received temporary protective status. He also stated that the lovins never told him about previ路

ous immigrations filings on their behalf. He asserted that he explained to the Jovins that the case was closed because they were not candid with him about having temporary protective sta路 tus. Further, he averred that lovin was provided

a copy of his file immediately upon request. He stated that no indication was ever given by him that he would represent them in obtaining United States citizenship. Sammons did acknowledge having been contacted by Dianne Finzer but said

he was reluctant to discuss Ihe mailer with her. Sammons also categorically denied violating any

of the Model Rules as alleged. His response also included an affidavit in support of his position executed by his wife.

the Houston Asylum Office concerning their sta-

.Jl Hr "'h,w 1~'Jtr I'all 1191


disciplinary actions Thomas A. Potter A letter of caution was issued to Thomas A.

POller for violation of Model Rule 1.8 (h) upon the complaint of Clyde D. Reynolds. This rule states, in pan, that a lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless penniltcd by law and the client is independently represented in making the agreement. or senle a claim for such liability with an unrepresented clicllI or former client without first

advising that person in writing that independent representation is appropriate in connection therewith. In his affidavit of complaint, Clyde D. Reynolds, explained that during August of 1994 he came to Potters office to discuss a possible lawsuit againsltwo dentists. Potter was provided with Reynolds' medical records and two x·rays when he visited him. Reynolds believed POller was handling this matter for him until around September II, 1995. On September I J. 1995. Palter sent Reynolds a leller explaining he could not represent him. Reynolds made arrangements to pick up his files, paperwork and x-rays as Potter"s letter directed. He would not release the liles to Reynolds until he signed the Release Potter prepared. By signing the Release, Reynolds agreed to release and hold him hamlless from any liability or claims whatsoevcr relevant to his investigation and for prosecution of the claims in that case file. In his response he acknowledged that Reynolds discussed this possible lawsuit but took issuc with thc dale Reynolds provided for this discussion. Potier asserted that the conversation took place during September of 1994 after the 2 year statute of limitations had expired. According to POller, he explained all of this to Reynolds. Potter stated that he explained various exceptions to the statute of limitation to Reynolds. Following surgery on his stomach. Reynolds advised Potier that no materials such as fragments of teeth, bone, and/or dental material were discovered. Based upon this information as well as Reynolds' failure to provide him with infor· mation as requested, he decided to have him pick up the contents of his filc because no exception to the statute of limitations appeared to exist. Palter averred that the Release he prepared in no way prospectively limits any liability to Reynolds. Funher. he assened that Reynolds

II Thr

\r~,""ll,l\t!rr

1',11 1996

was neither an unrepresented client or former client at the time the Release was signed because his representation was not terminated until the signing of the releasc.

the Motion for Rule on the Clerk he was unable contact his client and filed the Motion for

(0

Rel:ucd Appeal without his knowledge. He

asserted that, were it nOl for the actions of Reverend Womack, this response would not be

necessary.

Paul Johnson A letter of caution was issued to Paul Johnson for violation of Model Rules 1.3, and 8.4 (d) upon the complaint of Vastie Mayfield. These rules state, in part, that a lawyer shall act with reasonable diligence and promptness in representing a client and, a lawyer shall not engage in conduct that is prejudicial to the administration of justice. On November I. 1994, a judgment of conviction was entered against Mayfield. On November 21. 1994. a otice of Appeal was filed on Mayfields behalf by a "Reverend" Stephen Womack. Two days later Johnson filed a Motion to Set Aside the Judgment of Conviction and a Motion to Set Aside the Notice of Appeal. The trial court took no action within thiny (30) days and no notice of appeal was liled by Mayfield. On March 6. 1995. the trial eoun ruled that the original notice was ineffective and entered an order denying Mayfield's motion to set aside the judgment of conviction. Subsequently, the clerk refused to file the record because it was not time· Iy. On September 18, 1995. a MOlion for Rult:: on the Clerk was denied "without prejudice to filing a motion for belated appeal". Having received none, the clerk sent Johnson a letter dated February 13, 1996, inquiring about the status of the case. Fifteen months after the judgment, on February 21, 1996. Johnson filed a Motion for Belated Appeal. For his response. Johnson added that on March 6.1995, following the trial coun's hearing and denial of his motions. he filed a Notice of Appeal and received an extension of time within which to lodge the record. It was his belief that this Notice of Appeal was timely despite the Clerk's finding to the comrary. Johnson averred that he went far beyond his obligations to protect his client's interests and that he had no control over the third party who filed the original Oliee of Appeal: the trial court's delay in ruling on his Illotion: nor the delay in preparing the transcript. Johnson stated that following the denial of

Dana A. Reece A letter of caution was issued to Dana A. Reece for violation of Model Rule 1.15 (a) (I) upon the complaint of Jewel Diane Johnson. This Rule states, in pan. that a lawyer shall hold propeny of clients or third persons that is in a lawyer's possession in connection with a repre· sentat ion separate from the lawyer's own proper· ty. Funds of a elient shall be deposited and mainwined in one or morc idcmifiable trust accounts in the statc where the lawyer's office is situated, or elsewhere with the consent of the client or third person. The lawyer or law firm may not deposit funds belonging to the lawyer or law finn in any account designated as the trust account, other than the amount necessary to cover bank charges, or comply with the minimum balance required for the waiver of bank charges. The affidavit of complaint executed by Jewel Diane Johnson explains that Reece was hired 011 or about February 21. 1995. to represent Johnson in her divorce proceedings. On that date Johnson paid Reece a $600 retainer fee. Reece did, in fact. represent Johnson through the pendency of her divorce. After the divorce was finalized Johnson requested that Reece provide her wilh an itemized statement explaining the time spent on her case. Reece did provide such a statement. When Johnson requested that Reece review her lime again, she did so and agreed to return $95 to her. During September of 1995, Reece remitted to Johnson $95 in the fonn of a check written on her Arkansas 10LTA Foundation Allomey Account. This check was returned to Johnson because there were insufficient funds in Recce's 10LTA account to pay it. Upon notice of this returned check. Reece reimbursed Johnson this amount alone with a $15 service charge Johnson had incurred because of the returned check. In responding. Reece set forth that it appeared Johnson was looking for a refund when she requested an itcmized statement of services rendered. According to Reece. she had several


disciplinary actions telephone conversations about the maHer with Johnson in which she was able to discern that she was upset Arter reviewing her time. Reece believed that pursuant to her written agreement. she owed

Johnson no rerund rrom the retainer Johnson paid. Reece advised Johnson or Ihis in correspondence bul Johnson still disputed Reece's figures. Reece decided that she merely wanted to resolve the matter so

she agreed 10 rerund 95 to Johnson. Reece did this even though her calculations showed there was only

25.87 aClually owe<llo Johnson. Reece also assened that even Ihough Ihe majority or the money came from her pocket. she considered it Johnson's so she

from a lawyer soliciting professional employment from a prospective client known 10 be in need of legal services in a particular malter. and with whom

the hearing. he acknowledged that he was engaging in direct mail ad\'ertising to accident victims during the time that Bowden received her letter from him.

the lawyer has nOI ramily or prior proressional rela-

Funher. he indicate<lthat when he decided 10 begin direct mail advenising he employed Mr. John Baxler

tionship. shall include the words "Advenising Material" on the outside of the envelope and at the beginning and ending of any recorded communication. Following an automobile accident in June. 1995.

Christy Bov.den. Russelville_ Arkansas. received a leuer rrom Dan 1\ y Law CentelS. The leuer. commonly referred to as a solicitation letter. offered the legal services of Dan Ivy to Bowden in connection

to assist in the preparation of !.he advertising literature: arrangement for printing of the literature and the envelopes; coordination for the acquisition of names and addresses of accident victims; and to

oversee Ihe mailing or the advenisement lenm. Baxter operates a business enterprise in Batesville which engages in various types of advenising, mass mailings. and media related activities. The names and addresses of accident victims were obtained by contracting with an individual or individuals in Little

wrote the check on her IOLTA accounl. Surprisingly

with any advice she mighl seek or any legal aClions

to Reece. the check was insufficient and returned to Johnson. Reece averred she was surprised because

she might choose to take as a result of her involvement in the accident. The outside of the envelope

she Ihoughl she made a deposil to cover Ihe difference but apparently overlooked making such a deposil.

listed Liule Rock. Fayeueville and Fon Smith as ollice localions or the Dan Ivy Law CenlelS. The return address renected a POSI ollice box in Batesville and the bulk rale mailing pennit indicated a pennit number oblained allhe Balesville poSlal racility. However, Ihe outside or Ihe envelope did nol

ing public police records of recent automobile accidents and providing the infonnation to customers.

contain the words "Advertising Material" as required

labeling. envelope "sturfing", bulk mailings, elc. An order ror Ihe prinling or a quantily or Ihe "Dan Ivy Law Centers" envelopes was placed with

Danny Chris Ivy A leiter of caution was issued to Danny Chris

Ivy ror violation or Model Rule 7.3 (c) upon the complainl or Christy Bowden. This Rule states, in part, that every written or recorded communication

by the Arkansas Model Rules or Proressional Conducl. In Ivy's written response and in his testimony at

Rock who. apparenlly. are in the business or check-

The actual addressing or envelopes, insenion or Ihe advertising literature, and the bulk mailing were accomplished by a business entity in Batesville which specialized in marketing activities such as

Brunner Printing. Batesville. in Mayor early June,

Professional MediationArbitration Service • An Arkansas private dispute resolution company providing mediation and arbitration services throughout the State of Arkansas • Serving the legal profession, business community and insurance industry • Mediations are scheduled to occur within 30 days • A referral to mediation or arbitration is at no cost to the parties if the session does not take place • Statewide Arbitration Panel of Retired Judges For further infl)rmati()n, a brochure or to refer a dispute to mediation or ,Hbitration wntact:

Professional Mediation - Arbitration Service Prospect Building • 1501 :\0. Lni\ersity A\'C. • Suite 206 • Little Rock, Arkansas 72207 Telephone: (501) 666-2121 Fax: (501) 666-2122

Frank S. Hamlin Director, Attorney-Mediator On'r 22 Ye,lrs Tort and COIl1ml'rcial Litigation Experience O\'er 150 Mediations and Arbitrations wnducll'd Cr,lduall" The Attorney-Mediators Institute


disciplinary actions 1995. Subsequent to the printing and the delivery of the envelopes to Ivy's agents, it was discovered that the envelopes did not contain lhe notation. "Advenising Material". It appem that when the

sample envelope was presented to the printer that someone had stricken through the printed notation, "Please Forward" and, perhaps, inadvenently stricken through "Advenising Material" immediately below the forwarding request. In any event, the remaining envelopes were returned to

me printer for

addition of the advertising notation. Ivy and Baxter strenuously maintained iliat no envelopes were mailed that did not have the advertising notice on them and funber Slated that all of the misprinted envelopes were returned for correc· tion immediately upon discovery of the error. In

suppon of that contention, Ivy introduced through Baxter a copy of the invoice for the overprint which

showed a quantity of 4,000 envelopes. Baxter teslified Ihat thai was the exact amount of the original printing order. That testimony, however, is refuted

mated 4,000 envelopes without physically counting the relUmed envelopes. Ivy did concede or acknowledge that if a noncomplying envelope was mailed that il may have been occasioned by a very few envelopes having been slUck logether or the printing press having picked up two envelopes al a time during the overbeing overprinted. However, Brunner lestified thai Ihe chance of such an occurance during a second run

mation; upon tennination of representation, an allor·

print run which resulted in one of the envelopes nOI

of previously printed envelopes was almosl non-

ney shall take steps 10 the exlenl reasonably practi-

existent.

cable to protect Ihe client's interests, such as giving reasonable notice to the clienl, aJlowing time for

Baxler averred several limes that, 10 the best of his knowledge and belief, no non-complying envelope could have been used because all mailings were carefully checked. But on funher queslioning, he admiued that he did not pewnally prepare, check or maillhe leuers. Ivy also maintained that the envelope received by Bowden may have been fabricated by or the advenising nOlice surrepliliously removed by his political enemies. A qualified documents examiner

for overprinting Lhe advertising notice, Brunner testi-

rounding Bowden's receipi of a non-complying envelope dictate Ihat al leaS! one of the original

something less than 5,000 envelopes were present.

Based on his knowledge of the appearance of a full box of envelopes and contrasted with the appearance of several of the relumed boxes, Brunner estimaled thai the quantity of returned envelopes was several hundred less Ihan 5,000. In explanation of the overprinting invoice only reflecting 4.000 envelopes, Brunner staled he knew there weren't 5,CXX> envelopes returned and since John Baxter was an acquaintance, he discounted the invoice to an esti-

retained by Ivy was provided the envelope in question for testing. The examiner found no evidence of

lampering or that Ihe questioned envelope differed from the sample of Ihe valid envelopes provided by Ivy. The obvious facts of the circumstances sur-

envelopes was printed without the worul!. "Advertising Material" and was mailed out by one of Ivy's agents, representatives or others working in hjs

behalf.

,II n/lrtlnlllIJw)tr 1'111 199i

employment of olher counsel, surrendering papers and propeny 10 which Ihe client i enlitled and refunding any advanced paymenl of fee that has not been earned; and, a lawyer shall nOI engage in conduci that is prejudicial to the administration of justice.

The basis for the allegations rise out of Long's failure to appear and represenl cenain of his clients

in criminal maUers. Specifically, pre-trial hearings were scheduled on Oclober 2, 1995, in the Second Judicial District. Although a number of his clients appeared he did not. Subsequently, Long failed to appear on the trial date for these clients forcing Judge Fogleman 10 continue the cases and, in many

cases. appoinl new anomeys. All of the clients indicated to Judge Fogleman Ihat Long had been paid at leaS! a pan of his fee. Additionally, another of his clients had a non-jury trial at whIch he failed 10 appear. Thereafter, Judge Fogleman wrole 10 Long and requested thai he lake appropriate aclion 10 withdraw from representation. He requested a

Guy S. Long Upon the complainl by Judicial Officer, Guy S. Long was suspended for a period of six months for violation of Model Rules 1.1, 1.3, 1.4 (a), 1.16 (d)

EEOC Discrimination Consultant Charles Bucher (501) 224·0877

shall provide compelent representation 10 a client. Competent representation requires the legal knowl-

edge, skill, Ihoroughness and preparation reasonably necessary for the representation; a lawyer shall acl with reasonable diligence and promptness in representing a client; a lawyer shall keep a client reasonably informed aboul the Slalus of a mauer and promplly comply with reasonable requests for infor-

by Ivy's own affidavit of response in which he slated that Brunner Printing was contracted to print 5,(X)() envelopes. Funher, Brunner teslified Ihallhe initial order of 5,000 envelopes was printed and delivered 10 Ihe marketing firm which, coincidentally, was located in the same building as his printing shop. When the envelope were relumed several days later fied thai it was noticeable and obvious to him that

and 8.4 (d). These Rules Slate, in pan, a lawyer

Retired from EEOC with 20 years experience

response within len (10) days, bul one month laler he slill had not heard from him. The Complaint was senl to Long by registered, certified, restricted delivery mail on three separale occasions, bul each was returned "unclaimed". A

copy of Ihe Complaint was also senI by regular mail and was nOI relumed. Pursuanlto the Procedures of Ihe Coun Regulaling Professional Conduct of Auomeys at Law §5D the Complaint was provided 10 the comminee for a ballot vote on April II, 1996. A Response was hand-delivered by Long's auorney, Jack Wagoner III, 10 the office of the Executive Director on May 7, 1996, for whatever consideration, if any, they wished to give it. Upon Ihe Executive Direclor's petition for tem· porary transfer to inactive status, the following named allomcy was placed on temporary inactive

slatus (involuntary) by the Commiuee during June 1996: Roben P. Remet.


In Memorium Memorial to William S. Arnold The following is a eulogy Phil Carroll delivered on July 18th, 1996 at the Annual Meeting of the Unifoml Law Conference in San Antonio, Texas. "Bill was a great guy, a wonderful friend, and an outstanding lawyer, and I'd like 10 have olher

lawyers know about him," said Carroll. Commissioner William S. (Bill) Arnold was born in Yonkers, New York on February 5, 1921. AI the age of two he moved with his family to Crossen, Arkansas, acompany town owned by the Crossett Lumber Company. owner of half a million acres of pine timber in Southeasl Arkansas and

Northern Louisiana. Bill's father was employed as general manager of Ihis company. Bill lived in Crossell (today's population 6282) until his death on OClober 14. 1995 atlhe age of74. Bill grew up, practiced law, served his friends and clients. loved and nurtured his family, and enjoyed life among the tall pine trees. He was a country lawyer with sophisticated tastes and urbane manners. He left the country oflen in his many and varied activities as a public citizen, but the country never left him. Bill served in Ihe army air force in World War 1.1. He rose through the enlisted ranks from private to master sergeant. All ex路gi's know that the master sergeants ran the amlY and Ihereby earned much of the credit for winning the war. Bill was one of those, Bill's closest friends will tell you, however, that he was not without fault - he was almost totally lacking in mechanical skills. At one time during the war he was assigned the task of setting the slot machines in an Officer's club. As might be expected, disaster followed with results too complicated to explain. Mercifully, for only a very short time he was an aircraft mechanic. If Hiller had found this out he would quite naturally have concluded that the vaunted air superiority of the Americans was a myth, and an invasion of England would have been launched. Despite the fact that he never successful路 Iy set a VCR, Bill had superior skills as an administrator and a leader. His many friends in this room remember him as an outstanding uniform law commissioner. Bill Arnold received his law degree at the University of Arkansas and his Masters Degree in Law at Columbia in New York. He was appointed a Unifomllaw Commissioner in 1969, and was awarded life membership in 1991. Twice he served as a division chair. He chaired the drafting committee for Article 6 of the Uniform Probate Code dealing with non-probate transfers on death. He was chair of the committee on review of conference acts. We often saw him on his feel in the committee of the whole pointing out naws in acts that

might not cause trouble in Los Angeles but which would never work in Crossett, Arkansas. Obviously, he had read the acts before coming to the Annual Meetings. Bill Arnolds civic and professional activities are too numerous to list in their entirety. Here are a few: President, Arkansas Bar Association. President. Crossett Area Chamber of Commerce. Organizer. Crossett Area United Fund. 30 Year Teacher of the Mens Sunday School Class, First United Methodist Church of Crossett. President, Hamburg Rotary Club. Chairman, Arkansas Code Revision Commission. Chainnan, Arkansas Fellows of the American Bar Foundation. Member, American College of Trial Lawyers and American College of Trust and Estate Lawyers. Winner, Boy Scout Silver Beaver Award. Chairman of Building Committee for the new Ashley County Courthouse. This could go on and on, but there are more personal things you need to know. Bill was aconnoisseur of fine wines and he was a gourmel cook. Sylvia tells l11e Ihal he kept bar stools in their kitchen so his dinner guests could sit and watch as he created from raw materials his famous veal marsala. (It's always a good idea to be seated if you expect to witness a miracle.) I saw Bill lose his temper one time. In 1971 we were dining in Paris, France, and Bill had ordered for himself and those lucky enough 10 be sitting near him a bonle of an exquisite Pinot Noir of a very good year. After his magnificent wine was poured and tasted and while Bill was engaged in conversation, our well meaning but thoughtless tour guide poured vin ordinaire into Bill's partially filled glass. Bill cried out in anguish. This sacrilege sandpapered a very raw nerve in Bill's soul. In his mind, desecration of a fine wine was a serious sin. Fortunately, our chastised and very shaken tour guide survived. I am lold thai Bill Arnold is best remembered by the people of Crossett for his devotion to the elderly and the little people of his town. He kept these as his cliems long after they were no longer of economic benefit to his finn. He was a member of voluntary legal services to the elderly. He never turned down one of these, and much of his work for them was done for no fee al all. For several year we watched as he nursed and prolected his first wife. Mary Ellen, who suffered from crippling diabetes. Bill refused to acknowledge that Mary Ellen was disabled. He pushed her in staying active and in never giving up, all the while showering her with his love and anention. He probably added at least three years to her life. After Mary Ellen's death, Bill courted and won the hand of Ihe beautiful Sylvia Jones of Crossell.

They married and shared five wonderful and exciling years together. Sylvia was an elixir 10 Bill. She brought to his life a founlain of youth. We are honored to have as our guests loday, Sylvia Arnold, as well as Bill's IWO children, Patricia King and Richard Arnold; their spouses, Henry and Cindy; Bill's grandaughter, Slacy Brandl; her husband, Randy; Bill's grandson, Jeff Arnold; and three of Bill's greal grandchildren. Their presence for this lasl hurrah bespeaks their love for Bill, and lells us much about where Ihis conference stood in Bill's heart. This conference was enriched for 26 years by the skills, the warmth, the friendship, and the brilliance of William S. (Bill) Arnold. He will be long remembered. His work as a drafter of uniform state laws will be his monument that will outlast the stone that marks his grave. I know you're listening.

Bill. We wanl you to know thai we miss you; and, thanks, for the memories.

Jacob "Jake" Sharp, Jr, Jacob "Jake" Sharp Jr., LL.B JD., 64 of Lillie Rock, died in July. A native of Jonesboro, he was born August 20, 1931, to Jacob and Vivian Lewis Sharp. He obtained his Bachelor of Law degree, graduating with highest honors from Ihe University of Arkansas School of Law in 1954, where he was editor of the Arkansas Law Review in 1953-54. Following a stint as law clerk to Associate Justice Minor Milwee of the Arkansas Supreme Court, Sharp served from 1954-56 as a U.S. Air Force judge advocate, then entered private law practice in Lillie Rock. One of only eigbt Arkansas lawyers admitted to the select International Society of Barristers, he was Diplomate and past president of the Arkansas Chapler of the American Board of Trial Advocates. Sharp was a member of the state Board of Law Examiners from 1969-74 and the Arkansas Supreme Court Commillee on Jury Instructions from 196265. He was acontributing author to Arkansas Model Jury Instructions, Civil, Vols. 1-3. He was a member of thc American, Pulaski County and Arkansas Bar Associations, and the Blue Key National Honor Society. He is survived by his wife, Libby; a daughter, Bari Nichols of Sterling, VA.; a son, Jacob Sharp IV of Lafayelle, LA.; a stepson, James Mark Carter of Little Rock; two sisters, Mrs. Ormon Simmons and Cecil Gammill; and a grandson, Christopher Douglas of Sterling. VA.


In Memorium

Horace H. McKenzie Horace H. McKenzie, 91, of Prescott, AR, died at his home on September 21. 1996. Mr. McKenzie was a lifelong resident of Nevada County except for four years spent in EI Dorado during the oil boom serving as Chief Deputy Circuit Clerk. He graduated from Prescott High School at the age of fifteen and attended Henderson Brown College. After his father's death, he began managing McKenzie Abstract and Realty Company and studying law. March 6. 1933 he was licensed as an attorney at law.

Much of Mr. McKenzie's time was in support of various civic organizations. He was an organizer of the original Prescott Country Club and the Prescott Hunting and Fishing Club. The law office of Mr. McKenzie was always in Prescott. His original office was a solo practice. In

1949, the law firn, of Tompkins, McKenzie and McRae was formed with W. V. Tompkins. Charles H. Tompkins and Duncan McRae. The law fiml has continued and is now McKenzie. McRae. Vasser and Barber. He was a

Robert Vann (Bob) Light of Little Rock died in May. Mr. Light was a senior member of Friday, Eldredge and Clark law firm since 1965. He was a member of the Pulaski County, Arkansas and American Bar Associations. He was a Fellow of

the International Society of Barristers and a Fellow of the Arkansas Bar Foundation.

He was admitted to the U.S. Supreme Court in 1960 and by age 38 had argued five cases before the high coun. "He was a lawyer's lawyer, a very thorough and

very effective lawyer," said W. H. "Buddy" Sutton. who worked alongside Light at the Friday, Eldredge, and Clark fim, in Little Rock for many years. Sutton, who was hired at the law firm by the same man who hired Light, Pat Mehaffy. said Mehaffy - later chief judge of the 8th U.S. Circuit Court of Appeals in St. Louis - was fond of saying

member of the Arkansas and American Bar

"Light was the smartest lawyer he had hired in his career. I agreed with that. He was a superb lawyer

Associations; Fellow of the American College of Trial Lawyers; and a Fellow of the International Society of Bamsters and a Fellow of the Arkansas Bar Foundation. He served from 1965 to 1968 on the State Board

and had a great analytical mind." He is survived by his wife, Cherry Harkey Light; and one son. Louis (Whit) Light. both of Little Rock. He was preceded in death by his par-

of Law Examiners and for several years on (he

ents, Louis and Geneva Light, and one daughter,

Arkansas Stalute Revision Commission. He was appointed in 1973 as a Special Justice of the

Lynne Ann Light.

Arkansas Supreme Court.

"He was born with a serene spirit and a gentle nature. He was a piclUre book lawyer and gentle¡ man. Since Iwas called (Q the bar in Texarkana in 1965. I have strived to be more like Hornce McKenzie even though I have often fallen far shon. I have never known a more beloved person," said

Judge William R. Wilson. He is survived by his son, James H. McKenzie. his daughter-in-law, BellY McKenziehis granddaugh-

ters. Kris Raub of McKinney, Texas. and Miki Morrow of LillIe Rock. Jeanene McCormack. his

sister of Little Rock, and his great granddaughter, McKenzie Raub.

William A, (Bill) Eldredge, Jr.

Robert Vann (Bob) Light

William A. Eldredge, Jr.â&#x20AC;˘ of Little Rock died in June.

Mr. Eldredge received his law degree in 1949 and was admitted to the Arkansas bar at that time. He was later awarded ajuris doctorate and was selected as an oUlstanding alumni of the School of

Law. His rise to prominence in the state's legal com-

munity began when he joined the law firm of Mehaffy. Smith and Williams in 1953. The firm, now Friday, Eldredge and Clark. grew into the largest law firm in Arkansas. Mr. Eldredge was of counsel there after retiring in 1989. Laura Hensley Smith. a lawyer who worked

with Eldredge at the fim, and whom he hired in 1980 as a law clerk, called him "my mentor. He opened every door there was for me in medical malpractice defense." He was "one of the most loyal people I've ever

known, she said. He was loyal to his faith, his law finn. his friends and the Razorbacks." Mr. Eldredge belonged to the Pulaski County Bar Association and served as its president during

1965-66. He was also a member of the Arkansas and American Bar Associations and was adrlliued to practice in state and federal courts in Arkansas, as

well as the U.S. Supreme Court. He was a Fellow of the Arkansas Bar Foundation. The W.A. Eldredge Jr. Award was established in 1990 with donations from the legal and medical communities to honor an outstanding young trial lawyer who demonstrated exemplary trial conduct. client loyalty and courtesy and candor to opposing counsel. It provides a means for the recipient to continue his or her legal education. It was created to show appreciation to Mr. Eldredge and his many years of service to the law.


'What's in it for my firm?' • a managtng partner might rightly ask. Why theCNA acquisition of Continental Insurance

The CNA Insurance Companies became one of rhe largesr wrirers of lawyers professional liabiliry insurance in rhe narion earlier rhis year wirh rheir acquisirion of Conrinenral Insurance Co. The CNA member companies now insure over 50,000 arrorneys in 49 srares. The Merger makes rhe CNA more valuable borh ro rhe firms we now insure and ro rhose rhar are considering our coverage. · Combined underwriring experriseenables us ro price policies more flexible for small as well as large firms.

• •

is important

· Grearer underwriring resources make ir possible for us ro offer coverage for higher-risk pracrice specialries.

to attorneys

· Enhanced resources will improve responsiveness and service. · Highly focused loss-control services for a broad variery of specialries will conrinue ro be offered and enhanced.

Firms currently insured by CNA can now expecr even more value for rheir premium dollar. For firms nor insured wirh CNA, we can demonsrrare how we will perform for you.

Call Rebsamen for more informarion. Telephone (501) 664-8791 Fax (501) 664-9487

The Arkansas Bar Association endorsed Professional Liability Program is underwrinen by Continental Casualty Company, one of the CNA Insurance Companies. CNA is a registered service mark of the CNA Financial Corporation, CNA Plaza, Chicago.IL 60685.



VOL.31_NO.2_FALL 1996