April Journal 2020 • Vol. 89, No. 4

Your Partner in the Profession | April 2020 • Vol. 89 • No. 4

KBA COVID-19

Response and Help Center www.ksbar.org/COVID19

COVID-19 and the New Normal Lawyers Don’t Shut Down:

You are Essential to the Survival of Our Country

by Mira Mdivani, President of the KBA P8

Serving in Time of Crisis

by Karla Whitaker, Interim Executive Director, KBA/KBF P7

Top 10 Tips for Lawyers “Zoom”ing into Remote Work During the Pandemic

by Susan Berson P 10

Now more than ever, we need to stay connected.

Celebrating April as National Poetry Month

8 | Lawyers Don’t Shut Down: You are Essential to the

Survival of Our Country

by Mira Mdivani

7 | Serving in Time of Crisis

by Karla Whitaker

10| Top 10 Tips for Lawyers “Zoom”ing into Remote Work During the Pandemic

by Susan Berson Cover Design by Ryan Purcell

April Substantive Article 20 | Professor Prufrock Revisited: Poetry and the Law........................... Robert W. Parnacott

Special Features 16 | Lucky Number Seven: Kansas Bar Foundation Scholarships 30 | Sestina and Compassion Fatigue.......................................................Elizabeth L. Oliver 36 | Poetry and the Law: Members’ Poetry

Regular Features 14 | April and May CLEs

Don’t Duck Out of Your CLEs

41 | Substance and Style

Mind Your virtual Manners: A Brief Guide to Social .

Graces in Online Writing .................... Joyce Rosenberg

44 | The Diversity Corner

Fighting Lawyer Loneliness?.................. Diana Stanley

49 | Members in the News 51 | Obituaries 55 | Appellate Decisions 64 | Advertising Directory NEW 65 | Classified Advertisements

47 | Law Students’ Corner

Overcoming Imposter Syndrome One Docket at a ...

Time.................................................. Zach Palominor

www.ksbar.org | April 2020 3

THE

JOURNAL

OF THE KANSAS BAR ASSOCIATION

2019-20

Journal Board of Editors Emily Grant (Topeka), chair, emily.grant@washburn.edu Sarah G. Briley (Wichita), sbriley@morrislaing.com Hon. David E. Bruns (Topeka), brunsd@kscourts.org Richard L. Budden (Kansas City), rbudden@sjblaw.com Boyd A. Byers (Wichita), bbyers@foulston.com Jennifer Cocking (Topeka), jcocking@capfed.com Connie S. Hamilton (Manhattan), jcham999@gmail.com Michael T. Jilka (Lawrence), mjilka@jilkalaw.com Lisa R. Jones (Ft. Myers, FL), ljones@fgcu.edu Casey R. Law (McPherson), claw@bwisecounsel.com Hon. Robert E. Nugent (Wichita), judge_nugent@ksb.uscourts.gov Professor John C. Peck (Lawrence), jpeck@ku.edu Rachael K. Pirner (Wichita), rkpirner@twgfirm.com Richard D. Ralls (Overland Park), rallslaw@turnkeymail.com Karen Renwick (Kansas City), krenwick@wrrsvlaw.com Jennifer Salva (Kansas City), jenniferhsalva@gmail.com Teresa M. Schreffler (Wichita), tschreffler@gmail.com Richard H. Seaton Sr. (Manhattan), seatonlaw@sbcglobal.com Sarah B. Shattuck (Ashland), bootes@ucom.net Richard D. Smith (Topeka), rich.smith@ag.ks.gov Marty M. Snyder (Topeka), marty.snyder@ag.ks.gov Patti Van Slyke, Journal Editor & Staff Liaison, pvanslyke@ksbar.org Catherine A. Walter (Topeka), cwalter@topeka.org Meg Wickham, Dir. of Communications & Member Svcs., mwickham@ksbar.org Issaku Yamaashi (Overland Park), iyamaashi@foulston.com Natalie Yoza (Topeka), nyoza@ksbar.org The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association.

The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Patti Van Slyke, Journal Editor at editor@ksbar.org.

Ryan Purcell, graphic designer, rpurcell@ksbar.org The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year.

President Mira Mdivani, MMdivani@uslegalimmigration.com President-elect Charles E. Branson, cbranson@douglas-county.com Vice President Cheryl Whelan, cwhelan@ksbar.org Secretary-Treasurer Nancy Morales Gonzalez, nancy.gonzalez@ssa.gov Immediate Past President Hon. Sarah E. Warner, warners@kscourts.org Young Lawyers Section President Mitch Biebighauser, mitch_biebighauser@fd.org District 1 Michael J. Fleming, mike@kapkewillerth.com Katie A. McClaflin, kmcclaflin@mkmlawkc.com Diana Toman, dianatoman@gmail.com District 2 Bethany Roberts, broberts@barberemerson.com District 3 Angela M. Meyer, angela@angelameyerlaw.com District 4 Brian L. Williams, bwilliams.lawoffice@gmail.com District 5 Vincent Cox, vcox@cavlem.com Terri J. Pemberton, tpemberton@cox.net District 6 Tish S. Morrical, tish.morrical@hamptonlaw.com District 7 Gary L. Ayers, gayers@foulston.com Hon. Jeffrey E. Goering, jgoering@dc18.org Megan S. Monsour, mmonsour@hinklaw.com District 8 Gaye B. Tibbets, tibbets@hitefanning.com District 9 Aaron L. Kite, aaron@rbr3.com District 10 Gregory A. Schwartz, gaschwartz@schwartzparklaw.com District 11 Mark Dupree, mdupree@wycokck.org District 12 Alexander P. Aguilera, alex@sbhlaw.com Bruce A. Ney, bruce.ney@att.com John M. Shoemaker, johnshoemaker@butlersnow.com At-Large Governor Eunice Peters, peterse28@gmail.com KDJA Representative Hon. James R. Fleetwood, jfleetwo@dc19.org KBA Delegate to ABA House Natalie G. Haag, nhaag@capfed.com Eric Rosenblad, rosenblade@klsinc.org

The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association.

Copyright Š 2017 Kansas Bar Association, Topeka, Kan.

ABA State Delegate Linda S. Parks, parks@hitefanning.com

For display advertising information, contact: Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or email bill@innovativemediasolutions.com

Interim Executive Director Karla Whitaker, kwhitaker@ksbar.org

For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email editor@ksbar.org.

Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated.

POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.

4

Let your VOICE 2019-20 be Heard!

KBA Officers & Board of Governors

The Journal of the Kansas Bar Association

YL Delegate to ABA House Joslyn Kusiak, jkusiak@kellykusiaklaw.com

Our Mission The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.

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The Journal of the Kansas Bar Association

JosephHollander.com

from the interim executive director

Serving in Time of Crisis

by Karla Whitaker, KBA/KBF Interim Executive Director

A

s the COVID-19 crisis has arrived in Kansas, one thing is clear: the delivery of legal services has never been more important. In fact, the statewide Stay Home directive specifically cites “Preserving Constitutional or Legal Rights” as an essential service in Kansas. Kansas lawyers and judges have always had great stamina, strength and the stability to serve those in need. Those services are now being provided from a distance greater than six feet away, by telephone, text, email or video “Zoom.” Despite the COVID-19 restrictions, the judicial system is adapting in its continuing work to maximize access to justice for all Kansans.

The Kansas Bar Association is prepared to help. We have established the KBA COVID-19 Response and Help Center to serve as a source of the most current information during this pandemic.

This new resource guide provides lawyer-specific links, videos and related sources for professional and personal success in this new and very trying time. Go to ksbar.org for direct access to this information.

As live events have been postponed or canceled, a growing number of online resources are being made available to KBA members. The first Town Hall Webinar focusing on technology and practicing remotely drew nearly 200 lawyers from across the state. These webinars will provide a forum for sharing information and will continue throughout the crisis.

The Association is also providing a growing number of webinars for CLE credit, to help you meet your annual CLE requirements. I encourage you to continue checking the KBA website for more CLE offerings.

The KBA will also continue to provide resources for managing your practice and for encouraging health and wellness.

We will advocate for emerging issues during these trying times. The Association is dedicated to serving you in new and developing ways as we face the COVID-19 challenge together. n

kba president’s column

Lawyers: Don’t Shut Down, You Are Essential to the Survival of Our Country

by Mira Mdivani

Dear Colleagues: Don’t Shut Down I live next to a beautiful park. It is spring. As I run in the park early in the morning, while keeping six feet away from runners, the park delights me with its luscious green grass and gorgeous magnolias, cherries, and mulberry trees in bloom.

While I run, I feel free and happy. I am happy that so far, my family, friends, and colleagues, many of whom are also close friends, are all alive, and I am still able to practice law.

I also feel terrified because my daughter is a physician whose surgery practice has been shifted to ICU where she is risking her life treating patients with coronavirus. I am afraid that someone I know may die. Our lives and practices have been upended because of a deadly epidemic. There are so many hurdles to overcome and so many difficult decisions to make.

Sheltering in place, practicing from home, dealing with remote access, learning how to videoconference, how to run a paperless office, inability to see clients in person, struggling 8

The Journal of the Kansas Bar Association

with completing work on a client’s will because the law didn’t allow for virtual notaries, or finishing an I-9 audit that normally requires face-to-face interaction for an employer under COVID-19 lockdown, clients cancelling work while you have to meet payroll at our own firms, isolation and cabin fever, and this is just the beginning. So what do we do? One option is to shut down, lay off our staff, close our doors, wait until it gets better. The other? Stay open, find a new way to practice virtually, help each other to adapt, innovate and evolve while continuously serving our communities.

Lawyers Are Essential Providers As state and local governments issue orders to shelter in place, they designate lawyers as essential providers, in the same category as physicians, nurses, food distributors, air traffic control, abused women shelters, police and firefighters.

This is because lawyers are enablers of essential functions of society, as well as providers of services that allow other essential businesses to stay open to take care of our health, civil order and wellbeing.

kba president’s column

Everyone says we are in this together, and it is so true. KBA members are essential providers of support to businesses and infrastructure. And we are not only each other’s keepers, we are keepers of due process and civil society. Let’s work very hard to help each other to stay open, so when the pandemic is over, we can get back to a sense of normal, thank each other for doing our part in keeping our country functioning, and enjoy gorgeous parks in each other’s delightful company again.

How to Stay Virtually Open: Help for Lawyers Among many sources of help, there are two that are available to lawyers: KBA Resources Kansas Bar Association has resources available to our members at KBA COVID-19 Help Center at https://www.ksbar. org/ . The COVID-19 taskforce, KBA lawyer volunteers and staff are providing vital information and help with moving virtual practice-related legislation forward, addressing virtual practice IT, employment, financial, emotional and other practical issues, through online posts, a townhall webinar meeting (available to watch), online CLEs, and personal calls and emails between KBA members, staff, and volunteers.

Legislation Helpful to Our Clients and to Lawyers/Law Firms Legislation is on the way to help our clients and businesses, including lawyers, with tax relief and SBA loans. It is going to be really tough, and KBA will provide information and resources to weather the storm.

SIGN UP TODAY!

About the KBA President Mira Mdivani is current KBA President. She practices business immigration law at Mdivani Corporate Immigration Law Firm. She loves her KBA friends and colleagues, many of whom are her friends and the reason why she loves practicing law. mmdivani@uslegalimmigration.com

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www.ksbar.org | April 2020 9

feature

Top Ten Tips for Lawyers “Zoom”ing Into Remote Work During the Pandemic

To Maintain Confidentiality, Privacy and Productivity

by Susan Berson

S

eemingly overnight, people have switched to remote work environments, and with the transition, learning to conduct videoconference calls. Tools such as Zoom have become a very popular platform in the pandemic for lawyers to communicate with staff and even clients. Below are a few considerations for maximizing safeguards to protect confidentiality and privacy, along with short cuts that can save time.

1. Be Aware of Ethical Rules and Confidentiality for Purposes of Data Privacy While everyone should be aware of the importance of protecting and safeguarding their personal information, lawyers have a duty governing confidentiality when implementing platforms such as Zoom or other virtual service providers when practicing in the virtual world. Lawyers have an ethical duty to safeguard confidential information and must take reasonable efforts to do so. This means that with any tool that is used to communicate with clients or others about confidential or sensitive information, a lawyer must evaluate the product first to make sure it can work for the purpose for which it is to serve.

Briefly, the Rules a lawyer should review before implement10

The Journal of the Kansas Bar Association

ing any technology are set forth, in pertinent part, below.

ABA Rule 1.6 (c): “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

Comment 8 of ABA Rule 1.1 says, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Encryption and password protection must go hand-in-hand with any and all technology. Rules of thumb applying to use of any technology: 1. Create strong passwords.1 2. Have at a minimum, two-factor authentication enabled for all accounts.2 3. For a Virtual Privacy Network, carefully evaluate who will be accessing and disseminating information when finding a communication platform, and choosing a VPN.3 When vetting a technology—whether a product, vendor or service—ensure that it only allows authorized users, is secure and has a system of monitoring in place to prevent acciden-

feature

tal or malicious breaches. All staff should be appropriately trained about the technology and privacy policies. In the event that, despite reasonable efforts, a data breach happens to occur, lawyers may have obligations to discuss or otherwise disclose the breach under certain circumstances to clients.4

2. Review Privacy Policies and Terms of Service Generally, service providers must post their privacy policies and terms of service on their websites. Zoom is no different in that regard, and it posts its Privacy Policies and Terms of Services for a User to review on its website. Attorneys should review the policies and terms of service before signing up and implementing any product or vendor providing service(s). Attorneys have a responsibility to take the appropriate safeguards to protect client confidential and sensitive information.

A highlight of a few of the features and policies to be aware of when deciding to use Zoom includes: Real-time User Activity: Information such as a participant’s IP address, location data, and device information (e.g. PC, Mac, Linux, mobile), and even specs on the model of a peripheral audiovisual device like cameras or speakers that might be in use can possibly be seen by an administrator.

Administrators Can Log-In: For firms with multiple partners or staff with administrator approval, be aware that Zoom allows for anyone who is an “administrator” to have the ability to log in and attend a call.

Shared Data with Third Party Services: Zoom’s privacy policy also states: “our third-party service providers, and advertising partners (e.g., Google Ads and Google Analytics) automatically collect some information about you when you use our Products…”5

3. Confidentiality is Key: Password Protecting Meetings and Changing Default Settings First, the “Secure a Meeting with End to End Encryption” should be selected in settings to maximize confidentiality.6 Second, have users connect by computer instead of phone.

When everyone connects in a Zoom meeting using “computer audio”, the meeting can be secured with Zoom’s featured “end-to-end” encryption technology.7 Connecting with a phone (audio) option does not offer the same level of security capabilities according to security analysts,8 and users should be aware of the pre-meeting settings that are necessary to utilize the Zoom end-to-end encryption features.9 Likewise, stop a hack before it starts by password protecting each meeting scheduled on Zoom.10 Cryptography is used by Zoom to identify a host so it is difficult for a potential hacker to determine the identity of a Zoom host or call that is scheduled. The host can password protect each meeting to allow

access to only individuals invited and specified for attending.

Heard of Zoombombing? It’s when an unauthorized user joins a meeting. From your end, the way to avoid this from happening is to never post a link to any meeting on Zoom with public forums (e.g. Twitter, Facebook). Even if you think it is an innocent social gathering, the opportunity for a troll to access the meeting with the link exists, and should documentation be shared, plant malware. So, to maximize security protections, make sure that the default setting under Screen Sharing is changed so that you control whether access occurs. (It is common to have the settings set to “default” when the Zoom account is first opened.) When your screen setting is set on default, this means that the ability for both the host and participants to share their screens or content during meetings is turned on.

To get out of Default, go to Settings (on the left side of the Zoom website). Scroll down to Screen Sharing. There is a toggle, slide the toggle to the left to disable. The color of the toggle should change from blue to gray to show that it is in disabled mode. Once disabled, this setting will block participants from sharing content.

To prevent others from sharing files, go to Settings. Scroll down to the File Transfer section. Slide the toggle to the left of the statement: “Hosts and participants can send files through the in-meeting chat”. Again, once it is disabled, the color of the toggle will go from blue to gray.

Finally, it should be mentioned that as of this writing, Zoom has not yet filed a transparency report which is the industry standard for technology companies to, among other things, disclose statistics concerning collection of user data, records, content and requests for government agencies for the same. The Access Now organization has called upon Zoom to file such a report.11

4. Attention Tracking12 If you are a participant with interruptions, don’t click away for longer 29 seconds. Why? There is a built-in tool in versions of Zoom 4.0 and higher, that allows a host to determine whether the participants have been away from the active Zoom window that kicks in after 30 seconds. “Hosts can see an indicator in the participant panel of a meeting or webinar if an attendee does not have Zoom Desktop Client or Mobile App in focus for more than 30 seconds while someone is sharing a screen. ‘In focus’ means the user has the Zoom meeting view open and active.”13 There is an option in a user’s account settings to disable the tracking feature. However, as the administrator of the Zoom call, clicking on the lock icon in the (administrator’s) settings, makes it mandatory that all users are subject to the attention tracking abilities. So, as a host who is in screen-sharing mode, when an attendee of a meeting does not have the Zoom video window in focus during the call, after 30 seconds, there will www.ksbar.org | April 2020 11

be an indicator next to the name of the attendee/participant which shows the host that the Zoom window is not active.

Note that the tracking is not enabling audio or video, so, it “…only tracks attention while someone is sharing a screen.”14

9. Filters

5. Dual Monitors

10. Keyboard Hacks

Two monitors—in some offices three monitors-is incredibly efficient for getting work done. There is a setting that allows for customizing to “dual monitors”.15 In a Zoom call, this function can be helpful because it allows a user to view meeting attendees/participants on one separate screen, and then, the content that is being shared on the other screen. By leaving the setting off, the attendees/participants and the shared content will be appearing on the same screen.

A few shortcuts using the keyboard:18 Invite: “I” is for invite. Press Cmd+I (macOS) or Alt+I (Windows) which brings the Invite window.

Mute: “M” is for mute. Press Cmd+Ctrl+M (macOS) or Alt+M (Windows) which allows the meeting host to mute attendees/participants on the call.

Pause: “P” is for pause. Press Cmd+Shift+P (macOS) or Alt+P (Windows) to pause/resume recording the call.

Share: “S” is for share. Press Cmd+Shift+S (macOS) or Alt+Shift+S (Windows) which allows the sharing of your screen.

6. Customizing the Space Bar As A Mute Tool Ever try to review a document on a call with a colleague, and you have to fumble around to find the Zoom window to unmute? When using a phone, there is a mute button and push it, the microphone doesn’t pick anything up and a discussion can ensue to talk or grab a document needed without the other party hearing. In Zoom, a user can also mute, and then, when it’s time to speak, unmute. It is possible to customize the space bar as a hack for quickly shifting into unmute in Zoom. You’ll see that the space bar only works when Zoom is in the main window. To create the shortcut, just go into the Zoom settings. Set up a customized shortcut allowing the ability to mute and unmute when in another window.

7. The Zoom “Waiting Room” Ever have colleagues or clients show up early at the reception desk for an in-person meeting, and bump into to each other before you happen to arrive? The receptionist might take each one to a different room to wait. In Zoom, there is also a way to have individuals stay in a “Waiting Room”. In fact, it is called the “Waiting Room” feature, and it works similar to a conference call line. A single email can be sent with a single Zoom link. When the individual logs in, the individual “enters” into a room until the host’s arrival. A waiting room screen appears which allows the attendee/participant to know that he or she will be admitted soon. The waiting room screen can be customized with a logo and/or title and description of a meeting or presentation. The host can see when an attendee/ participant enters the waiting room. The host can admit all attendees/participants when ready.

8. Backgrounds Zoom allows a user to change the background that appears for the virtual call or meeting.16 Whether it works properly is dependent upon a user’s computer processor. Otherwise, it is simply going to the settings and the user can adjust accordingly.

In everyday life, beauty is the eye of the beholder. However, in the virtual world of Zoom, there is filter tool that can allow adjustments to lighting for presenting a “polished” look.17

CONCLUSION For legal professionals, the priorities of maintaining our clients’ confidences and satisfying their expectations remains the focus of practicing in the virtual world. Whatever platform is chosen for communicating with clients in the virtual world, make certain that it is properly vetted before implementing and using with clients and their information. Once chosen, there are shortcuts and uses that can enhance our practices and the service we provide to our clients and each other, as colleagues. n Late note from the author, in response to a colleague’s question: Another option to Zoom to consider is GoToMeeting (https://www.gotomeeting.com).While there are no free plans (unlike Zoom basic) being offered, there is a 14-free trial period. For fees, the minimum is a $12 a month payment for video calls with up to 150 participants. Skype, Slack and Facebook Messenger are not recommended options because they do not have encryption, discussed further under heading 3.

About the Author Susan Berson advises on the substantive law matters of data privacy, tax and other regulatory matters. She helps clients in various industries and professions, including other legal professionals. Susan is also the author of several books published by Law Journal Press and the American Bar Association, and has written many articles as well. Susan and her husband, Dave, practice law together in Berson Law Group LLP. Experienced working in remote environments, and maximizing technology and applicable safeguards for confidentiality and protecting privacy, Susan has helped colleagues transition and adjust to working remotely in the pandemic. sberson@banktaxlaw.com.

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The Journal of the Kansas Bar Association

1. See “Creating Strong Passwords Using Password Managers,” Surveillance Self-Defense, available online at https://ssd.eff.org/en/module/ creating-strong-passwords.

2. See “How to Enable Two-Factor Authentication,” Surveillance SelfDefense, available online at https://ssd.eff.org/en/module/how-enabletwo-factor-authentication.

3. “Choosing A VPN That’s Right for You,” Surveillance Self-Defense, available online at https://ssd.eff.org/en/module/choosing-vpn-thatsright-you.

4. See Formal Opinion 483 October 17, 2018, Lawyers Obligations After an Electronic Data Breach or Cyberattack.

5. If you were using Zoom prior to March 27, 2020, be aware that certain non-sensitive information may have been shared with Facebook.

See https://www.vice.com/en_us/article/z3b745/zoom-removes-codethat-sends-data-to-facebook. Prior to March 27, the iOS version of the Zoom app had been found to possibly be sending certain data to Facebook—even if a user does not have a Facebook account. Is this an uncommon practice in its industry? No. There are many apps that use the software developments kits from Facebook because they offer an easier method for quickly implementing features that Facebook uses in their apps. Prior to March 27, Zoom had disclosed that it may collect user’s “Facebook profile information (when you use Facebook to log-in to our Products or to create an account for our Products)…” For users who do not have a Facebook account, be aware that includes you, too.

6. Since the writing of this article, Zoom has announced changes to the encryption features. See https://blog.zoom.us/wordpress/2020/04/01/amessage-to-our-users/.

7. See Zoom Security page, available online at https://zoom.us/security 8. See Zoom Security White Paper, available online at https://zoom. us/docs/doc/Zoom-Security-White-Paper.pdf 9. See “Zoom Meeting Encryption”, available online at https://theintercept.com/2020/03/31/zoom-meeting-encryption/ (“In Zoom’s white paper, there is a list of ‘pre-meeting security capabilities’ that are available to the meeting host that starts with “Enable an end-to-end (E2E) encrypted meeting.” Later in the white paper, it lists ‘Secure a meeting with E2E encryption’ as an ‘in-meeting security capability’ that’s available to

meeting hosts. When a host starts a meeting with the ‘Require Encryption for 3rd Party Endpoints’ setting enabled, participants see a green padlock that says, ‘Zoom is using an end to end encrypted connection’ when they mouse over it. But when reached for comment about whether video meetings are actually end-to-end encrypted, a Zoom spokesperson wrote, ‘Currently, it is not possible to enable E2E encryption for Zoom video meetings. Zoom video meetings use a combination of TCP and UDP. TCP connections are made using TLS and UDP connections are encrypted with AES using a key negotiated over a TLS connection.’”)

10. See Zoom, “Meeting and Webinar Passwords,” Zoom Support, available online at https://support.zoom.us/hc/en-us/articles/360033559832Meeting-and-Webinar-Passwords.

11. See Access Now, Public Letter to Zoom (March 18, 2020), available online at https://www.accessnow.org/cms/assets/uploads/2020/03/Letterto-Zoom-.pdf 12. Since the writing of this article, Zoom has announced changes to the attention tracking feature. See https://blog.zoom.us/ wordpress/2020/04/01/a-message-to-our-users/.”

13. See Zoom, “Tips for Educators: Attendee Attention Tracking,” (January 26, 2018), available online at https://blog.zoom.us/wordpress/2018/01/26/zoom-tips-for-educators-attendee-attention-tracking/ 14. Id. 15. See Zoom, “Using Dual Monitors with the Zoom Desktop Client.” Zoom Support, available online at https://support.zoom.us/hc/enus/articles/201362583-Using-Dual-Monitors-with-the-Zoom-DesktopClient .

16. See Zoom, “Virtual Backgrounds”, Zoom Support, available online at https://support.zoom.us/hc/en-us/articles/210707503-VirtualBackground.

17. See Zoom, “Touch Up My Appearance,” Zoom Support available online at https://support.zoom.us/hc/en-us/articles/115002595343Touch-Up-My-Appearance.

18. See Zoom, “Hot Keys and Keyboard Short Cuts for Zoom,” Zoom Support, available online at https://support.zoom.us/hc/en-us/ articles/205683899-Hot-Keys-and-Keyboard-Shortcuts-for-Zoom.

Solo and Small Firm CLE Conference April 17 Salina, Kansas

Tony’s Pizza Convention Center Topics include Employment, Water Law, Immigration, Family Law, Practice Management tools and more!

REGISTER TODAY ONLINE www.ksbar.org/event/20SoloandSmall Questions?

www.ksbar.org/CLE

Contact Amanda Wright, CLE Director awright@ksbar.org (785) 861-8815 www.ksbar.org | April 2020 13

To Register: www.ksbar.org/CLE

April & May CLEs Don ’ t Duck O ut of Your CLEs! ALL LIVE ONLINE!

Tuesday April 14 at Noon

Staying Ethical During a Pandemic with Stephanie Goodenow (approved for 1.0 Ethics credit)

Wednesday April 15 at Noon

Deal or No Deal: Ethics on Trial (pending 1.0 Ethics credit)

Wednesday April 15 at Noon

May it Displease the Court? Keeping Your Head (and Your Law License) in Court (pending 1.0 Ethics credit)

Thursday April 16 at Noon

YLS Sponsors “Blurred Lines: Setting Boundaries to Improve Your Work and Well-Being” with Danielle Hall (pending 1.0 Ethics credit)

Friday April 17 at Noon

8 Mistakes Experienced Contract Drafters Usually Make

Tuesday April 21, 12 – 2 PM

IP Series: Expert Views on Hot U.S. Patent Law Topics with Kathleen Daley, Mike Jakes, Amanda Murphy, and Tom Irving

Wednesday April 22 at Noon

Yakety Yak! Do Call Back! The Ethical Need for Prompt Client Communication (pending 1.0 Ethics credit)

Thursday April 23 at Noon

Me Too: Sexism, Bias, and Sexual Misconduct in the Legal Profession

Tuesday, April 28 at Noon

501(c)(3) Organizations: Formation, Governance & Best Practices

Wednesday April 29 at Noon

Technical Fouls: Even Minor Ethics Violations Can Have Major Consequences (pending 1.0 Ethics credit)

Tuesday May 5 at Noon

Legal Ethics is No Laughing Matter: What Lawyer Jokes Say About Our Ethical Foibles (pending 1.0 Ethics credit)

Wednesday May 6 at Noon

The Accidental Lawyer: Terms of Engagement (pending 1.0 Ethics credit)

Thursday May 7 at Noon

The Passion of the Barrister: An Ethical Lawyer is a Happy Lawyer (pending 1.0 Ethics Credit)

Tuesday May 12 at Noon

From Competence to Excellence: The Ethical Imperative for Excellent Client Service (pending 1.0 Ethics credit)

Tuesday May 19 at 11:00 AM

It’s Not the Fruit, it’s the Root: Getting to the Bottom of Our Ethical Ills (pending 1.0 Ethics credit)

Wednesday May 20 at Noon

If You Can’t Say Something Nice, Shut Up!: The Ethical Imperative for Civility (pending 1.0 Ethics credit)

Wednesday May 27 at Noon

The Paperless Law Firm – A Digital Dream

Wednesday May 27 at 11 AM

Ethical Jeopardy: A CLE Game Show! (pending 1.0 Ethics CLE)

Thursday, May 28 at Noon

How to Lose an Appeal with One Simple Brief with Lyndon Vix

14

More dates are being added all the time – Keep up to date at www.ksbar.org/cle or Follow us on Twitter @KansasBarCLE

The Journal of the Kansas Bar Association

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www.ksbar.org | April 2020 15

kbf

Lucky Number 7: Seven law students receive recognition and financial

P

erhaps you know someone who has benefitted from the generosity of a KBF donor who has established a scholarship. Since 2007, with the creation of the scholarship program, 76 scholarships have been awarded. The KBF Scholarship Committee has been overseeing the award process and has worked with the KBF Investment Committee to make sure the recipients of the awards meet with the wishes and requirements established by the donors.

It is with pleasure that the Board of Trustees presents the 2020 scholarship award recipients.

The Justice Alex M. Fromme Memorial Scholarship Award $1,000 • The award is provided to a law student attending the University of Kansas School of Law or Washburn University Law School who is committed to practicing law in Kansas.

Paige E. Hungate / Washburn University School of Law Born and raised in Wichita, Hungate is a proud Kansan. After graduating from Wichita State University with a B.S. in Computer Science and a B.A. in Political Science, she proceeded to Washburn University School of Law. She hopes to practice patent prosecution — working with the United States Patent & Trademark Office to obtain patents for clients. During her first summer of law school, she clerked at Morris, Laing, Evans, Brock, & Kennedy, Chtd. in Wichita. This summer, she will be clerking at Erise IP in Overland Park, KS, and Patterson + Sheridan LLP in Houston. Her ultimate goal is to work in Kansas and eventually develop a patent practice in Wichita, an area lacking patent attorneys.

“I am honored to have been selected as the recipient of The Justice Alex M. Fromme Memorial Scholarship Award. I am passionate about Kansas and keeping people in the state to make it better. This has led to my interest in working with entrepreneurial Kansans to receive intellectual property protection without having to go out-of-state for legal assistance. Kansas has invested in me, and I would like to invest back in the state. Thank you, Kansas Bar Foundation, for providing me with this opportunity. Ad Astra Per Aspera!”

Hinkle Law Firm Student Scholarship $3,000 • This scholarship is given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Because community service is extremely important to the Hinkle Law Firm, applicants must also demonstrate a history of community involvement to be considered.

Emily Reed / University of Kansas School of Law Originally from Pomona, Reed graduated with a B.S. in Political Science from Emporia State University. Reed is a 2L at the University of Kansas School of Law, where she is a Lawyering Skills teaching assistant, research assistant to Lou Mulligan, and co-founder and vice president of the Midwest Innocence Project Student Organization.

Reed spent last summer at Spencer Fane, LLP in Kansas City, MO and will be returning this summer. Emily’s favorite part of law school so far has been participating in the National Moot Court Competition and participating in KU’s Project for Innocence and Post-Conviction Remedies, where she assists clients with a student practice permit.

“I am so honored to be awarded the Hinkle Law Firm Student Scholarship. This support from the Kansas Bar Foundation will help me continue my educational pursuits with less financial burdens. I look forward to getting more involved with the KBF throughout the years, and one day helping future law students as the KBF has so generously helped me.”

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The Journal of the Kansas Bar Association

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assistance through KBF Scholarships Lathrop Gage Student Scholarship $2,000 • This scholarship shall be given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Applicants must demonstrate a history of community involvement to be considered.

Jake Schmidt /University of Kansas School of Law Jake Schmidt is a 2L at the University of Kansas School of Law. Originally from Overland Park, his family moved to Atchison in 2003. Jake grew up Catholic and attended Catholic school for all twelve years of his early education. This culminated in four years of high school at Maur Hill – Mount Academy. While in school, he spent most of his time playing football, basketball, and baseball. When it became clear he wasn’t going to play tight end for the Kansas City Chiefs, Jake decided to move on to his back-up plan; he began undergraduate coursework at the University of Kansas in 2015. Schmidt majored in economics and completed his degree in three years, graduating with highest distinction.

However, he couldn’t fathom leaving Lawrence after only three years, so naturally he began law school.

During his first summer, he was employed as a summer associate at Foulston Siefkin LLP in Wichita.

He has subsequently interned for two federal judges on the United States District Court for the District of Kansas: the Hon. Carlos Murguia and the Hon. Holly L. Teeter. Schmidt was recently selected to be an Articles Editor for the Kansas Law Review. Next summer, he plans to return to Foulston Siefkin LLP. “It is a true honor to receive a scholarship from the Kansas Bar Foundation. In my short time as a member of the legal community, it has become abundantly clear to me that Kansas lawyers are among the best in the country. Not only do Kansas lawyers excel at their craft, but they also are genuinely caring people. I thank the Kansas Bar Foundation and contributing lawyers for caring about me and my fellow law students. I look forward to joining you in serving our great State.”

The Frank M. Rice Scholarship $5,000 • The Frank M. Rice Scholarship promotes the practice of law in the state of Kansas by annually awarding funds to a student attending the University of Kansas School of Law or Washburn University School of Law to assist with the costs of tuition. The scholarship is intended to help law students become lawyers in the mold of Frank M. Rice who was “among the finest…in the Bar. He was at the top of his class…and always applied the highest level of legal scholarship to any legal matter in which he was involved.” The recipient must have been admitted to law school and must be a Kansas resident.

Suzie Locke / Washburn University School of Law Originally from Idaho Falls, ID, Locke moved to Kansas to work on a master’s degree in Leadership. She met her spouse and now lives on a cattle ranch outside El Dorado with her husband and three sons. While in law school, she has participated in Moot Court, Trial Team and in several student organizations. In the Summer of 2019, she interned with Hinkle Law in Wichita and currently works as an extern for Hon. Eric F. Melgren, District Judge, United States District Court for the District of Kansas. After graduation, she plans to work for Adams Jones Law Firm, splitting time between the El Dorado and Wichita offices.

When not in Topeka attending classes, she enjoys spending time outdoors with her family.

“I am honored to be the 2020 recipient of the Frank M. Rice Scholarship and to be among the class of past recipients. The Kansas Bar Foundation Scholarships have been a blessing during my tenure at Washburn University School of Law. I look forward to joining a legal community that cares significantly about student success and education. I hope I am able to reciprocate the generosity and support in the future.”

kbf poetry and the law

Frank C. and Jeanne M. Norton Scholarship Award $2,000 • This scholarship is available exclusively to Washburn University School of Law students in their second or third year of study who are not receiving any other scholarship support.

Carissa Leffler / Washburn University School of Law Leffler, a 3L at Washburn University School of Law, grew up in Bellevue, NE. She attended Missouri State University, earning a B.S in Criminology with a minor in Public Law. She enjoys honing her advocacy skills by being a member of Washburn Law’s Moot Court Council, ABA Trial Competition Team, and Voir Dire Competition Team. Throughout law school, she has interned at the Shawnee County District Attorney’s Office. Leffler plans to pursue a career in criminal law or civil litigation upon graduation.

“I am humbled and grateful to be selected as the recipient of the Frank C. and Jeanne M. Norton Scholarship. I want to thank all of the generous donors who make the Kansas Bar Foundation scholarships possible for law students faced with financial stress. I look forward to being a practicing member of the Kansas Bar Association and Foundation and hope to contribute to Kansas’s future law students.”

Case, Moses, & Zimmerman P.A. Law Student Scholarship $1,000 • This scholarship is intended to go to a future Kansas lawyer attending a Kansas law school, Creighton University School of Law or Oklahoma City University School of Law. This award is specifically given to a second-year student who intends to practice law in the state of Kansas.

Emily Brandt / Washburn University School of Law Brandt grew up in Beloit and is a 2L. Prior to law school she graduated summa cum laude from Fort Hays State University with a B.A. in Political Science. Brandt was selected to participate in the Dane G. Hansen Foundation Rural Externship Program at Washburn Law and spent her first summer working at Dreiling, Bieker & Hoffman in Hays. Brandt serves as an executive board member for the Rural Practice Organization and Women’s Legal Forum. She is also a junior staff writer for the Washburn Law Journal and a member of the AAJ Trial Competition Team. After graduation, Brandt intends to return to rural Kansas to practice law.

“I am honored to have been selected as the recipient of the Case Moses & Zimmerman, P.A. Law Student Scholarship. I am thankful for the support and generosity of the Kansas Bar Foundation while I pursue my legal education. Thank you, Kansas Bar Foundation, for supporting future Kansas lawyers like me.”

Hon. Richard D. and Cindy Rogers Scholarship $1,000 • The scholarship promotes the practice of law in the state of Kansas by annually awarding funds to a student attending Washburn University School of Law to assist with the costs of tuition. The student must have been admitted to law school and must be a Kansas resident, preferably from a rural community. Preference is given to applicants who have displayed perseverance in the pursuit of a legal education, and who share the passion for the law with the late Judge Rogers, a passion as exemplified in community or pro bono service.

Darby VanHoutan / Washburn University School of Law VanHoutan, originally from Rose Hill, is in her second year at Washburn University School of Law. Before law school, she attended the University of Kansas and earned a B.A. in Political Science and a B.S. in Journalism. In 2019, after her first year of law school, VanHoutan participated in the Dane G. Hansen Rural Externship Program where she was selected to work in Sharon Springs for Etta L. Walker, Attorney at Law. Currently, VanHoutan serves as secretary of the Women’s Legal Forum, an ambassador for the law school, and a member of the AAJ Trial Competition Team. After graduation, VanHoutan plans to remain in Kansas and practice criminal defense and family law.

18

The Journal of the Kansas Bar Association

kbf poetry and the law

“I am incredibly grateful to have been chosen as the recipient of the Hon. Richard D. and Cindy Rogers Scholarship. I cannot put into words how much the financial support means to me. I will continue to pursue the justice that Judge Rogers and other passionate Kansans have fought for and protected for so long. Thank you to the Kansas Bar Foundation for helping to support students like me as we strive to be the next great lawyers of Kansas.”

There have been years that the applicants for scholarships did not meet the criteria outlined for the scholarship. This year, three scholarships did not have applicants that met the criteria established or there was not an applicant for that scholarship. The following were not awarded this year: • Capitol Federal Foundation Diversity Scholarship, • John E. Shamberg Memorial Law Student Scholarship • Maxine S. Thompson Memorial Scholarship Award.

You can help us reach students who might qualify for these awards next year.

We appreciate your suggestions.

Descriptions of each scholarship can be found here: https://www.ksbar.org/mpage/scholarships

Congratulations to the 2020 recipients!

Testimonial from

Past Scholarship Winner Michael T. Crabb Receiving the inaugural Case Moses Scholarship in 2007 made a big difference to me as a non-traditional student. At the time, I was a 2L, married with a toddler at home and another on the way. I had left the workforce to pursue a legal career and I hoped against hope that I hadn’t made a big mistake. The looming Great Recession made it all the more nerve-rattling. But the Case Moses scholarship helped us pay the bills so I could focus on schoolwork. I ended up landing a great job at Husch Blackwell. I’m now a partner with Kuckelman Torline Kirkland, focusing on personal injury and civil rights litigation. I’ve made it a priority to pay it forward through pro bono legal work and giving financially to worthy causes.

Michael T. Crabb Attorney

www.ksbar.org | April 2020 19

poetry and the law

Professor Prufrock, Revisited:

Poetry and the Law

1

Robert W. Parnacott 20

The Journal of the Kansas Bar Association

poetry and the law

2

“Even as there are laws of poetry, so there is poetry in law.”

What does the practice of law have to do with poetry?3 “Law is not typically viewed as being related to poetry.”4 It has been said: “[t]here is little poetry in a lawyer’s life...”5 It is also said: “[i]n the bright light of day, the work of a lawyer seems to have absolutely nothing to do with that of the poet.”6 However, “[t]hough Mr. Justice Holmes properly said the law is not the place for the poet, there are affinities between the lawyer and the poet not visible to the undiscerning eye.”7 Others have said: “[l]aw and poetry have a curious but intriguing relationship with one another.”8 Jacob Grimm, who while perhaps better known as a compiler of fairy tales, also a philosopher of jurisprudence, commented: “‘poetry and law have risen from the same bed.’”9 Early law was often expressed poetically.10 One commentator notes that historical roots of legal writing may have arisen out of the oral tradition which allowed easier memorization and recitation.11 A variety of schools of thought in jurisprudence coalesce “around the idea that lawyers and judges are or should be more like poets, storytellers and interpreters rather than like scientists or engineers.”12 The primary benefit for the lawyer to read or write poetry is that it can improve the lawyer’s ability to read and write in general. Judge Richard Posner wrote: “[t]o be a good lawyer one must be a careful and resourceful reader, and immersion in poetry and other difficult imaginative literature is therefore not the worst preparation for the study and practice of law.”13 Bryan Garner, in his book on legal writing style, notes Lord Macmillan’s observation: “‘no advocate can be a great pleader who has not a sense of literary form

and whose mind is not stored with the treasures of our great literary inheritance...’”14 Reading outside the law, whether it be nonfiction, fiction, drama, or poetry, is recommended to benefit the lawyer’s ability to read, think, and write in their practice: “[g]o, then, and read—in the law and out.”15 Professor Harold Bloom, from a non-legal perspective, said: “[i]t matters, if individuals are to retain any capacity to form their own judgments and opinions, that they continue to read for themselves.”16 After a brief review of law as literature, as well as law and literature, this article will focus on two primary topics: comparing the writing of poetry and the writing of legal materials and then comparing the reading and search for meaning in poems and legal texts. The article will then address examples of judicial opinions that use poetry to make points, followed by examples of poems touching either directly or indirectly on the practice of law. The article will continue with mention of attorneys (including Kansas attorneys) who are also poets of varying degrees of renown, and then finish with some related matters. For those so interested, a list of further reading suggestions will be provided at the end of the article. But, as Professor Prufrock says: “[o]h do not ask ‘what is it?’ / Let us go and make our visit.”17 Law as Literature, Law and Literature Many legal commentators consider legal writing to be literature.18 Literary both in the broader sense regarding our written output, but also in the more particular sense legal writing can “acquaint us with the forces which motivate [people] and the place of [people] in society.”19 Often, lawyers and judges are at their core “storytellers.”20 Justice Ruth www.ksbar.org | April 2020 21

poetry and the law

Bader Ginsburg also considers our calling as literary.21 Another commentator has said: “[l]egislation is a form of literary composition.”22 Professor James Boyd White opined that: “law can be regarded as an imaginative activity and its art a literary one ...”23 It has also been said that “like storytelling, appellate advocacy is an art form.”24 Professor William Prosser found law to be one of the “principal literary professions.”25 However, Justice Felix Frankfurter believed: “‘[l]aw as literature is restrained by responsibility.’”26 Justice Benjamin Cardozo noted: “I am told at times by friends that a judicial opinion has no business to be literature.”27 Law and Literature is a discipline which seeks to view law through the prism of literature.28 Law and Literature came under fire in the late 1980s with Judge Posner’s criticism in the first edition of Law and Literature: A Misunderstood Relation. Therein, Judge Posner, among other points, noted that many of the literary critics writing about law lacked legal training and many of the legal commentators writing about literature lacked sufficient background in literature.29 Professor White, a contemporary reviewing that first edition, pushed back, however, against Judge Posner’s position: “[b]ut in another sense I agree with virtually nothing that is said” in Posner’s book.30 Judge Posner later walked back from this criticism in later editions of his work.31 Modern examination of this relationship can be traced to the 1960s.32 However, the genesis of this movement may be traced to an essay by Justice Benjamin Cardozo published in the 1920s.33 Writers in the Law and Literature movement more often focus on prose literary works, such as novels, short stories, and plays, rather than poetry. It is certainly easier to compare the functions of legal writing, i.e. opinions or briefs, to the usual arts of storytelling, e.g. plays and fiction, whether novels or short stories. Law as subject of the novel or play yields a rich and varied field to draw from, ranging from Shakespeare to Dickens to Grisham with so many stops in between. There are, of course, poems that tell a story, sometimes in great detail and length.34 And there are poems, as noted later in this article, that address law and legal issues.

Writing Poetry and Writing in the Law In Bryan Garner’s interviews of Chief Justice John Roberts and Justice Anthony Kennedy, both Justices noted that a writer can develop through increased reading, with Kennedy advocating for more reading of literary works in particular.35 No matter how long one has practiced law, it is always helpful to stop and think; take a break; refresh; focus on what is good legal writing. Good writing, whether law or on other subjects, share certain common attributes: “[g]ood writing is . . . good writing. It does not matter whether it is a newspaper story, a novel, a song, or a legal memorandum. . . .”36 As Judge Jerry Elliott would often say to this author, there are generally two things wrong with legal writing: style and substance.

For writing in general, Jonathan Swift’s observation was style 22

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is the “‘proper word in proper places.’”37 Similarly, poetry is described as “the best words in their best order.”38 Judge Thomas Marten noted “[g]ood writing is . . . knowing and following the rules (or violating them deliberately and with a purpose)....”39 All writers must work with the same general rules.40 For those interested in further exploring the rules of poetry writing, particularly as to form, I would recommend Miller Williams Patterns of Poetry: An Encyclopedia of Forms (1986). As an example, the type of poem known as a sestina has very specific rules. It is thirty-nine lines, broken into six stanzas of six lines and a concluding stanza of three lines.41 The degree of difficulty is increased by requiring that the same six words be used for ending each line in each stanza, in a rotating order, and then all six words must appear in the final segment, three used to end a line and then the remaining three included somewhere in the three ending lines.42 Be clear and precise in writing.43 “The language of good poetry” is both “active” and “exact.”44 So, too, with legal writing.45 Garner provides the example of the precise distinction between masterly and masterful.46 The former he notes indicates the person is acting as a master, the latter relates to a person acting in a “domineering” manner. Mark Twain said “[t]he difference between the right word and the almost right word . . . is the difference between lightning and the lightning bug.”47 In writing poetry, as in legal writing, it is better to avoid general statements when concrete facts can be used.48 “Good writing tends to present evidence.”49 “Show, don’t tell” is a mantra for both poets and legal writers.50 Avoid wordiness.51 Strike out pomposity, jargon, and doubling or tripling up word combinations such as “due and payable” where due works just fine.52 Professor White says: “[t]he proper poem formed a complex and organic whole in which all parts belonged, nothing was missing, and everything counted somehow...”53 Judge Irving Kaufman, former Chief Judge of the Second Circuit, in comparing writing poetry to appellate briefing, noted Edgar Allen Poe’s advice to aspiring poets: “a poem should be so disciplined that every word, every sound, led to a single, predetermined effect.”54 Brevity, of course, should be highly prized. The shortest judicial opinion award likely goes to Chief Justice John Marshall, who once wrote an opinion that only said: “The United States never pays costs.”55 The shortest poem may be Lines on the Antiquity of Microbes, by Strickland Gillian: “Adam / Had ‘em.”56 A bit longer, but still pretty short and to the point, from Robert Frost, The Span of Life: “The old dog barks backward without getting up. / I can remember when he was a pup.”57 Poets, and legal writers can be “like a Sherlock Holmes, assembling a phalanx of data from which to draw [an] editorial conclusion.”58 “[T]he form of a poem, the plot of a poem, the argument of a poem, the narrative of a poem—would

poetry and the law

correspond to the sequence of perceptions.”59 “‘[O]ne perception must move instanter on another...’”60 To me, this passage could equally be read with the phrase “judicial opinion” substituted for “poem.”

Both writing poetry and legal materials, i.e. good poetry and good legal writing, are really extensive rewriting. “[T]he mystery of the creative process itself, what we call poesis— the ongoing kinetics of writing...” is largely “tied up with the tricky and endless activity of rewriting...”61 Justice Antonin Scalia and Bryan Garner also emphasize the need to edit and revise your work.62 One recommendation for both poets and lawyers is to put the work aside for a day or so, then come back to it with fresh eyes for editing.63 Reading Poetry and Reading the Law Judge Posner posits that we might read literature to: “improve our . . . reading skills.”64 Professor White commented: “[t]here is a sense in which my own literary education could almost be reduced to ‘how to read a poem,’ and my legal education to ‘how to read a judicial opinion.’”65 How to interpret the text, whether legal or literary, is subject to various schools of thought.66 Rather than delve into the intricacies of originalism, textualism, and other methods, this article will focus on a more general take on interpreting written materials. For example, regarding judicial opinions, Professor White says: “[w]e start by comparing what the judge does and what the poet does, and ask: is the judge really a poet, his opinion really a poem?”67 Both law and poetry must be read closely to fully comprehend the material.68 The meaning of a poem arises out of a mix of the elements of the poem: images, rhythms, rhyme, and the poet’s diction.69 All parts must be considered: the title, first lines, the body of the poem, and how they all work together to create a meaning.70 Sometimes, the meaning of a poem arises out of the movement of the poem from the general to the specific, or the specific to the general, or back and forth.71 Carl Sandburg wrote: “[p]oetry is a projection across silences of cadences arranged to breach that silence with definite intentions of echoes, syllables, wave lengths.”72 Again, regarding judicial opinions specifically, Professor White also suggests “the movement of the [judicial] opinion, like that of a poem, ought to be one of education: expressing a change from one attitude, one way of seeing things, to another, by expansion of understanding.”73 The movement can be between the unique and the universal. Both poems and judicial opinions “unite the unique with the universal.”74 Professor White notes: “poets merge the universal in the particular, the precept in the example, just as good common-law judges do ...”75 Much like writing, there are accepted rules for interpretation of text. The legislature itself sets certain rules for interpreting statutes.76 Garner and Justice Scalia have categorized the canons of interpreting legal texts, but they note: “[n]o

canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions.”77 On the other hand, there are differences between interpreting legal texts and poetry. Poetry and legal writing have different goals.78 Unlike poems, which may have more limited purposes, legal texts, particularly judicial opinions, perform a variety of functions, including settling the rights of competing parties, directing the parties (and in the case of appellate opinions, directing the lower courts) to take certain actions, and commenting on the law as it is or should be understood.79 Holmes drew a distinction between what the legislature, and legislators, may have intended, and what the words used meant.80 Somewhat in contrast, Archibald MacLeish wrote: “A poem should not mean/but be.”81 But, in reading the law, as well as reading poetry, understanding of the writing often requires context by going behind the words to understand the history and surrounding circumstances. As an example, Yeats’ An Irish Airman Foresees His Death, set in the First World War, is illuminated with an understanding of the relationship between Ireland and Great Britain at that time.82 Understanding any written material cannot be done without at least some context. “‘A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself as an architect.’”83 Judge Learned Hand said: I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with books that have been specifically written about the subject.84 The primary canon of statutory construction is that if plain meaning can be determined solely from the text of a statute, the judge should go no further. First, however, that canon is contradicted by several competing canons. Further, a judge does not read a statute in a vacuum; he or she reads a statute within the universe of his or her training, and understanding of the meaning of the words and style of the statute.85 Vagueness and ambiguity can be reduced by context.86 There is also a larger context to consider in reading and interpreting law and poetry. Professor Bloom contends any poem is “about,” or even a “response” to another poem.87 Wallace Stevens, a lawyer/businessman and a noted poet, in The Man with a Blue Guitar wrote: “Poetry is the subject of the poem/From this the poem issues and/To this return...”88 The meaning of a poem, much like the meaning of statutes or judicial opinions, requires examining how it is like or dis-

www.ksbar.org | April 2020 23

poetry and the law

similar to other poems.89 Judicial opinions are also about how other judicial opinions, or statutes and regulations, affect the case at hand, and may even be direct responses to other judicial opinions, particularly with dissents and concurrences.

Professor Bloom also offers: “a poem necessarily is always an interpretation of that poem’s interpretation of other poems.”90 Much the same, obviously, with legal writing. “[T]here’s no such thing as a wholly original work of literature.”91 Just as one judicial opinion springs from other judicial opinions and other legal texts, “poems [grow] out of other poems.”92 Poems and judicial opinions are alike in that they both, within their respective spheres, form a body that continues to grow with each new poem or opinion.93 “Every poet is a being caught up in a dialectical relationship . . . with other poets.”94 Similarly, each judge, and attorney, through their writing and practice, are way stations between those that came before, and those to come after.

Poetry in Law It has been said that: “[p]oetical reports of law cases are not very common, yet it appears to me desirable that they should be so.”95 The case of In re Rome96 provides some cautionary guidance on going too far with the judicial opinion and poetry connection. A magistrate judge had presided over a criminal case regarding prostitution.97 After sentencing, the judge filed a memorandum decision, in verse, regarding the “saga of” the defendant, whose name was left out by the Kansas Supreme Court in its opinion.98 The memorandum decision’s last of six verses ended: “If from all this a moral doth unfurl / It is that Pimps do not protect the working girl!”99 Perhaps, then, it is better to use poetry sparingly?

Justice Cardozo, writing in the 1920s, commented that “[i]n days not far remote, judges were not unwilling to embellish their deliverances with quotations from the poets.”100 That practice continues. “[T]he use of poetry in judicial opinions illustrates how judges, too, utilize the full range of human emotion and understanding to communicate the points of law.”101 For example, Justice Harry Blackmun’s opinion in Flood v. Kuhn, regarding free agency in baseball, cited famous baseball poetry such as “Casey at the Bat” and “Tinkers to Evers to Chance.”102 Judge Posner offers an example of the different uses of the same poem by Justices Stephen Breyer and Scalia from Frost’s poem Mending Wall.103 The case was Plaut v. Spendthrift Farm, Inc.104 Scalia simply quoted Frost’s famous line from this poem: “Good fences make good neighbors.”105 That line is often taken out of context, when the user fails to also read Frost’s following lines from the poem: “‘[w]hy do they make good neighbors? / Before I built a wall I’d ask to know / What I was walling in or walling out, . . . “ Breyer, in his dissent, points out the larger context of the quote.106 Kansas Supreme Court Justice Rousseau Burch was partial to Shakespeare and Robert Browning107 and he used the “fa24

The Journal of the Kansas Bar Association

mous fight between the gingham dog and the calico cat” to make a point in a case about whether a share of stock in a bank is tangible or intangible for tax purposes.108 He analogized the poem,109 which resulted in the two pets fighting each other so fiercely that nothing remained of both at the end, with competing legal and taxation theories that “might eat each other up” resulting in “no money to run the government...”110 Not surprisingly, another quoted poet in the Kansas Reports is our favorite son Eugene Ware, aka Ironquill, quoted by Justice John Dawson to buttress the point that courts should let the legislature legislate: “‘We -- don’t make – law. We are bound / To interpret it as found.’”111 Much farther back, the Kansas Supreme Court had occasion to quote a rhyme from Mother Goose: See-saw, Margery Daw Sold her bed and lay upon straw; Was not she a dirty slut, To sell her bed and lie in the dirt?112 This is not necessarily the version I read to my daughters when they were children, but was part of the original Mother Goose rhymes. The Kansas Supreme Court used the poem to address whether the assertion a woman was a “dirty slut” was actionable as slander.113 Although the court principally relied on the Century Dictionary definition of slut as being careless, lazy or unclean, which was accompanied by several literary examples, Justice Burch used Mother Goose to further make the point that being called a slut did not necessarily imply promiscuity.114 Other examples of Kansas Supreme Court opinions citing poetry include: Whitmore v. Jewell115 and American General Financial Services, Inc. v. Carter.116 In the former, Justice Perry Owsley quoted a poem, included in a Colorado Supreme Court opinion,117 to further illustrate that stare decisis should not be considered a “frozen compass of the ancient past.. .”118 The poem began with noting a meandering trail started by a wandering calf, later followed by a series of succeeding animals, and men, resulting in it becoming a “village street,” then a city “thoroughfare,” which remained an unchanged path of travel centuries later.119 The latter opinion reached back to the Greek poet Hesiod and his epic poem on the origin of the gods, Theogony, quoting: “‘right timing is in all things the most important factor.’”120 The issue of the case, appropriately, being priority of liens.121 Kansas judges still occasionally quote poetry in appellate decisions, most recently, perhaps, in Justice Stegall’s concurrence in State v. Riffe.122 Therein, Justice Stegall noted the Kansas Supreme Court had not “expressly” recognized its constitutional interpretation model as “originalism” although it had “repeatedly and regularly affirmed originalist principles;” those being that the law does not change but remains “‘an ever-fixed mark.’”123

poetry and the law

Law in Poetry Poetry, being an examination of the entire human experience, must include law as a subject. The earliest English language reference to lawyers may be in a poem about a fourteenth century practitioner in the Canterbury Tales.124 This work tells the story of pilgrims, traveling to and from Canterbury, charged with telling stories to pass the time.125 The lawyer of the group tells a story “of justice at work in this world,” regarding the maiden Constance and her travails.126 This part of the article will provide some examples of poems which involve legal themes. These examples are far from exhaustive, and more examples can be found in the poetry anthologies listed at the end of this article.

The Lawyers Know Too Much127 Karl Llewellyn included the full text of this poem in his book on legal education, Bramble Bush: The lawyers, Bob, know too much They are chums of the books of old John Marshall, ....

The lawyers, tell me why a hearse horse snickers hauling a lawyer’s bones.128 Llewellyn himself wrote at least one poem, Song of the Law Review: Oh, I was a bright law student, My grades were good and high.

They said I’d make the Law Review, And now I’d like to die ...129 Poor Richard’s Opinion Benjamin Franklin, writing as Poor Richard in his Almanack, wrote of lawyers: I know you lawyers can with ease Twist words and meanings as you please; That language, by your skill made pliant, Will bend, to favor every client; ...130 Law Like Love This W. H. Auden poem, not titled but generally known as Law Like Love, looks at law from various viewpoints, including that of the judge: Law, says the judge as he looks down his nose Speaking clearly and most severely, Law is as I told you before, Law is as you know I suppose Law is but let me explain it once more Law is the Law...131

You Are Old, Father William Although the examples of law in poetry above are more or less serious in nature, law does figure in some humorous verse. For example, this Lewis Carroll poem has this verse following the impertinent question of the youth as to how William, at his age, was able to “finish[] the goose, with the bones and beak” and William replied: “In my youth,” said his father, “I took to the law, And argued each case with my wife; And the muscular strength which it gave to my jaw, Has lasted the rest of my life.”132 An Ill-read Lawyer And, then there is this short poem by John G. Saxe, a practicing attorney in the nineteenth century, included here in its entirety: An idle attorney beseeching a brother For “something to read—some novel or other, That was really fresh and new.”

“Take Chitty! replied his legal friend “There isn’t a book that I could lend Would prove more ‘novel’ to you!”133 Chitty, of course, was a well-known author of legal treatises, at the time this poem was written.

Nemo Repente Turpissimus Saxe also wrote another humorous short poem.

BOB SAWYER to a man of law Repeating once the Roman saw “Nemo repente” and the rest, Was answered thus, “Well, I protest, However classic your quotation, I do not see the application.” “‘Tis plain enough,” responded Sawyer: “It takes three years to make a lawyer!”134 The Latin title phrase, abbreviated in the poem, translates: “no one ever becomes extremely wicked suddenly.”135 Ballad of Reading Gaol On a more serious note, there is Oscar Wilde’s work from his time in jail: I know not whether Laws be right, Or whether Laws be wrong; All that we know who lie in gaol Is that the wall is strong; And that each day is like a year, A year whose days are long.136

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poetry and the law

There is also poetry that does not expressly involve law, but may provide a parallel between the two genres. For example, in learning of the necessity defense in first year criminal law, it is likely the case of R. v. Dudley and Stephens was brought up.137 The facts of that case are that in 1884 a ship sank and the crew ended up in a lifeboat.138 After exhausting their meager rations, the shipmates decided they would need to sacrifice one member to provide food for the rest.139 After rescue, Dudley and Stephens admitted they had killed one of the crew for food, believing they were protected from prosecution by custom of the sea.140 They were not, eventually were convicted, sentenced to death with a recommendation of mercy, and the sentence was then reduced to six months.141 To illustrate the custom as understood by the surviving crew members, one can look to W.S. Gilbert, of Gilbert and Sullivan fame, for his poem The Yarn of the Nancy Bell, published almost two decades before the events above. A shipwrecked survivor is found, and he says: “Oh, I am a cook and a captain bold, And the mate of the Nancy brig, And a bo’sun tight, and a midshipmite, And the crew of the captain’s gig.”142 Initially skeptical of how a single person could fill so many roles, the rescuer learns how after the ship sank, the survivors, one by one, ate nine of the ten surviving shipmates (the mentioned crewmembers), leaving the one to be rescued.

The Lawyer as Poet Justice Oliver Wendell Holmes, as noted earlier, remarked: “the law is not the place for the artist or poet.”143 But there are many lawyers who were poets, sometimes of some renown and many poets who while perhaps not practicing attorneys, nonetheless either were trained in the law, or somehow otherwise associated with legal practice.144 Judge Posner comments that while there are many lawyers who then become writers, there do not appear to be any writers that then become lawyers.145 It may be beyond peradventure that Wallace Stevens was the pre-eminent attorney-poet, and one of the premier American poets of all time.146 There is some disagreement, even by Stevens himself, whether he was a practicing attorney or simply a business executive.147 Stevens admitted, however, that ‘“[o]ne is not a lawyer one minute and a poet the next...’”148 Nonetheless, the considered view is that Stevens’ prolific output of poetry was not really law related.149 In a survey between 1982 and 1989, a legal database search of opinions indicated Stevens and poet W.H. Auden were tied for the most citations in law reviews, “slightly ahead” of poets T.S. Eliot and Robert Frost.150 There are too many lawyer-poets to recognize in this article, but a few bear mention. The previously mentioned W.S. Gilbert, seeing less success in the law, turned his attention to the more creative arts and we are better off for it.151 Another 26

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lawyer-poet would be Albert Pike, a Confederate general who was an Arkansas lawyer and poet.152 He is the only Confederate military figure with an outdoor statue in his honor in Washington, D.C., although a bill has been introduced in the House of Representatives to remove the statue. The website http://lawlit.net/lp-2001/intro/ provides a fairly comprehensive index of lawyer-poets, including Kansas lawyer-poets, with options to look at the list from an alphabetical and state listing. Perhaps bridging the gap between the rest of the nation and Kansas, Edgar Lee Masters, the author of the Spoon River Anthology, was born in Garnett, Kansas, and later practiced as an attorney in Chicago, Illinois.153 Brian Moline and Professor Michael Hoeflich published an article on Kansas lawyer-poets.154 Most of the article is focused on the previously mentioned Kansas lawyer-poet, Eugene Ware.155 Ware was himself a regular practitioner in the Kansas Supreme Court, and he wrote a poem for a newspaper reducing the Kansas Supreme Court decision in State v. Lewis156 to verse. The Reporter in Kansas later included the poem as an addendum to the decision in the Kansas Reports.157 That poem, and another titled: An Agreed Statement of Facts [As to the Admission of Mr. Hic Jones to the Paint Creek Bar, Kansas], were included in The Lawyer’s Alcove, a collection of law-related poetry from the early twentieth century.158 Paint Creek, Kansas, was not a real jurisdiction, but instead a location made up by the author.159 Brian Moline and Professor Hoeflich note a handful of lesser-known Kansas lawyer-poets in their article, but recognized their list was incomplete.160 Other Kansas lawyer-poets they omitted include Senator John James Ingalls, who was known more for his political career than his legal practice. The Senator’s poetical career started in his college days.161 Judge Spencer Gard, besides being an author of the noted work on civil procedure,162 can claim some fame for poetry, having published a poem in the ABA Journal.163 Justice John Fontron apparently also had a poetical bent: upon Earl Hatcher’s retirement as a Commissioner of the Kansas Supreme Court, Justice Fontron penned an eight stanza work for the occasion.164 Professor David Ryan of Washburn Law School published a poem as a tribute to Professor Ray Spring.165 Judge Deanell Reece Tacha once presented a lecture as poetry at a law review banquet.166 Other Benefits for Lawyers Reading and Writing Poetry Reading poetry can illuminate ethical issues by addressing basic moral concerns that inform ethical issues in the practice of law. One of the core ethical problems for attorneys is the tension between zealously representing a client167 and the duties towards the tribunal,168 the opposing counsel and parties,169 and persons not represented by counsel.170 Professor Charles Ogletree placed this tension in the criminal defense context171 and contends the lawyer cannot be a friend to the

poetry and the law

client; instead he or she must be “more like a mercenary, using . . . specialized skill and training to battle [the] client’s opponents and achieve [the] client’s objectives.”172 When I read this, I immediately thought of Yeats in his line from An Irish Airman Foresees His Death: “those that I fight I do not hate/ Those that I guard I do not love.”173 Burnout, of course, is a concern for the practitioner.

Chauncy M. Depew said “[l]aw is a jealous mistress, and yet great lawyers have found rest and recreation in literature.”174 Judge Posner also said: “[m]ight not the reading of poetry be a relief from practicing or writing about law rather than a source of professional guidance?”175 Yeats, perhaps, offers his non-legal perspective: “The intellect of the man is forced to choose / Perfection of the life, or of the work...”176 I would disagree with Yeats, and argue that there is a balance to be struck between the perfection of life and work.

In writing “The Fascination of What’s Difficult,” Yeats was bemoaning the impact of managing a playhouse: “The fascination of what’s difficult / Has dried the sap out of my veins, and rent / Spontaneous joy and natural content / Out of my heart...” He goes on: “My curse on plays / That have to be set up in fifty ways, / On the day’s war with every knave and dolt, / Theatre business, management of men.”177 He ends by throwing up his hands and exclaiming: “I swear before the dawn comes around again/I’ll find the stable and pull out the bolt.”178 This references his earlier metaphor in the poem of his heart, as a colt, that has to “[s]hiver under the lash, strain, sweat and jolt/As though it dragged road-metal.”179 The well-being of persons in our profession is a key concern. Poetry can perhaps help with burnout, and keep practitioners from having to choose between perfection of life over the work, or of having to: “throw[] poor words away/And be[] content to live.”180 Judge Posner, citing a different Yeats poem, notes that those doing public interest law, whether legal aid or indigent defense, given the subject matter of the practice and the workload, may find, as Yeats writes, “Too long a sacrifice/ Can make a stone of the heart.”181 One thought would be to keep a book of poetry at your desk, or on your legal tablet, or even bookmarked on your computer. Take a break and read some poetry before you get back to the grind.

Lawyers, in a sense, are fortune-tellers, attempting to predict the future.182 If a client does this, or does not do that, and the client ends up in the legal system, what is the likely result?

Professor Bloom, similarly opines: “[p]oetry is the crown of imaginative literature, in my judgment, because it is a prophetic mode...”183 In Inferno, the Italian poet Dante crafted a sentencing scheme for various crimes, e.g. sins, committed by those incarcerated in that sulfurous realm, Hell. In particular, for fortune-tellers, the punishment assigned was to have their heads turned one hundred-eighty degrees, so that as they walked, all they could see was what was behind them, i.e., the past, not the future. Perhaps that is why “a hearsehorse snickers, hauling a lawyer’s bones.”184

Conclusion Poetry and the law have much to share with, and contribute to, each other. Reading and writing poetry can help a lawyer improve reading and writing skills, offer insight, or simply provide a break. Kansas has a great tradition of lawyer-poets, from its inception in the 1800s to the present day. I take my reader’s leave with Judge Marten’s, perhaps, probably, possibly, rhetorical question: “How many of you read poetry? Or better yet, write it?”185 Further Reading These additional books of poetry anthologies are worth reading for those interested: Anthology of Nineteenth Century American Legal Poetry, ed.

Michael H. Hoeflich (2018) Justice and the Law: An Anthology of Legal Poetry and Verse, ed. Percival Jackson (1960) Lawyer Poets and That World We Call Law, ed. James R. Elkin (2013) Lawyer’s Alcove, ed. Ima Russelle Warren (1900) Poetry of the Law: From Chaucer to Present, ed. David Kader and Michael Stanford (2010) About the Author Robert W. Parnacott retired and received the Kansas Bar Association Distinguished Government Service award in 2016 after serving 16 years in the Office of the County Counselor for Sedgwick County, Kansas. He graduated in 1991 from Washburn School of Law with Dean’s Honors. This is his tenth article published in the Journal of the Kansas Bar Association, including a two-part article on summary judgment. robertwparnacott@yahoo.com 1. Ali Khan, Professor Prufrock, 35 J. Legal Educ. 117 (1986).

2. Anonymous, A Treasury of Jewish Quotations (Joseph L. Baron ed.)

(1956), quoted in The Quotable Lawyer 163 (David Shrayer and Elizabeth Frost eds.) (1986).

3. James M. Haughey, The Arts and the Lawyer, 28 U. Kan. L. Rev. 589, 589 (1980) (“What relevance if any has art to the law?”).

4. Robert F. Blomquist, The Poetry of Law, 45 Val. U. L. Rev. 107, 107 (2010).

5. The Lawyer’s Alcove: Poems by the Lawyer, for the Lawyer and about the Lawyer v (Ina Russelle Warren ed.) (1900).

6. Lawyer Poets and That World We Call Law 11 (James R. Elkins ed.)

(2013).

7. Justice and the Law: An Anthology of Legal Poetry and Verse xxi (Percival Jackson ed.) (1960).

8. Edward J. Eberle and Bernhard Grossfield, Law and Poetry, 11 Roger Williams U. L. Review 353, 353 (2006).

9. Id. at 361 (quoting Jacob Grimm, Von der Posie im Recht, 2 Zeitschrift Für Geschichtliche Rechtswissenschaft 25 (1916)).

10. Id. at 363.

11. Michael Frost, Brief Rhetoric—A Note on Classical and Modern Themes of Forensic Discourse, 38 U. Kan. L. Rev. 411, 427 (1990). www.ksbar.org | April 2020 27

12. Thomas C. Grey, The Wallace Stevens Case 39 (1991).

13. Richard Posner, Law and Literature: A Misunderstood Relation 194 (3d. ed. 2009) [hereinafter Posner].

14. Bryan Garner, The Elements of Legal Style 147 (1991) (quoting Lord Birkett, Six Great Advocates, 108 (1961)) [hereinafter Elements].

15. Karl Llewellyn, Bramble Bush 153 (9th prtg. 1991).

16. Harold Bloom, How to Read and Why 21 (2000).

17. T.S. Eliot, The Love Song of Alfred J. Prufrock, reprinted in John Ciardi, How Does a Poem Mean 757 (1959) [hereinafter Ciardi].

18. Elements, supra note 14, at 3 (“Law is a literary profession.”).

19. Karl Beckson and Arthur Ganz, Literary Terms: A Dictionary, 146 (3d ed. 10th prtg. 1999).

20. Sandra Craig McKenzie, Storytelling: A Different Voice for Legal Education, 41 U. Kan. L. Rev. 251 (1992).

21. 13 The Scribes Journal of Legal Writing 10, 133 (2010).

22. Felix Frankfurter, Some Reflections on the Reading of Statutes, reprinted in Essays on Jurisprudence from the Columbia Law Review 53 (1964).

23. James Boyd White, The Legal Imagination 211 (abridged ed. 1985).

24. Laurie A. Lewis, Winning the Game of the Appellate Musical Shoes When the Appeals Band Plays, Jump from the Client’s to the Judge’s Shoes to Write the Statement of Facts Ballad, 46 Wake Forest L. Rev. 983, 986 n.14 (2011).

25. William L. Prosser, English as She is Wrote, 7 J. Legal. Educ. 155, 156 (1954).

26. Henry Weihofen, Legal Writing Style 9 (1961).

27. Benjamin Cardozo, Law and Literature, reprinted in Essays on Jurisprudence from the Columbia Law Review 313, 313 (1964)[hereinafter Cardozo].

28. See, e.g., James Boyd White, Law and Literature: A Misunderstood Relation, 102 Harv. L. Rev. 2014, 2015 n. 3 (1989) (book review).

29. Posner, at 6.

30. White, 102 Harv. L. Rev. at 2014.

31. Posner, 6 (noting the “negative and even defensive character” of the first edition was gone by the second edition).

32. Alexander J. Roberts, Constructing a Canon of Law and Poetry, 90 Tex. L. Rev. 1507, 1507 (2012) (book review: Poetry of the Law: From Chaucer to Present (David Kader and Michael Stanford eds.) (2010)).

33. Cardozo, supra n. 27.

34. William Packard, The Art of Writing Poetry 60 (1992) (noting that three major categories of poetry are narrative, dramatic and lyrical works).

35. 13 The Scribes Journal of Legal Writing 10, 82 (2010).

36. J. Thomas Marten, A Few Questions and Thoughts on Writing, 50 Washburn L.J. vii, vii (2011).

37. Elements, supra note 14, at 5.

38. Samuel Taylor Coleridge, Bartlett’s Familiar Quotations 404 (17th ed. 2002).

39. Marten, supra n. 36, at vii.

40. McKenzie, supra n. 20, at 267-68.

41. Miller Williams, Patterns of Poetry 93 (1986).

42. Id. 43. Bryan A. Garner, Legal Writing in Plain English 37 (2001).

44. Ciardi, supra n. 17, at 785, 788.

45. Legal Writing in Plain English, supra n. 43, at 24.

46. 13 Scribes Journal of Legal Writing 62.

47. Weihofen, supra n. 26, at 11.

48. Allen Ginsberg, Meditation and Poetics, in Spiritual Quests: The Art and Craft of Religious Writing, 145, 154 (William Zinnser ed., 1988).

49. Ciardi, supra n. 17, at 793.

50. Id. at 672; Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 333 (3d ed., 1999).

51. Legal Writing in Plain English, supra n. 43, at 17.

52. Id. at 34, 43.

53. James Boyd White, The Judicial Opinion and the Poem, Ways of Reading, Ways of Life, 82 Mich. L. Rev. 1669, 1676 (1984).

54. Irving R. Kaufman, Appellate Advocacy in the Federal Courts, 79 F.R.D. 165, 169 (1979).

55. United States v. Barker, 15 U.S. (2 Wheat) 395, 395 (1817).

56. Bartlett’s Familiar Quotations, supra n. 38, at 651.

57. Reprinted in Ciardi, supra n. 17, at 994.

58. Ginsberg, supra n. 48, at 154.

59. Id. at 160.

60. Id. at 161.

61. Packard, supra n. 34, at 123.

62. Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 80-81 (2008).

63. Id. at 81.

64. Posner, supra n. 13, at 485.

65. White, supra n. 53, at 1670.

66. W. Probert, Interpretation: Its Relevance in Courts, Criticism and Jurisprudence, 25 Washburn L.J. 1 (1985) (hereinafter Interpretation).

67. The Legal Imagination, supra n. 23, at 211.

68. Cf. How to Read and Why, supra n. 16, at 71 (“[A] first principle for how to read poems: closely . . . .”); Professor Orin Kerr also said, in his advice to law students, “You have to read [judicial opinions] carefully...”

How to Read an Opinion: A Guide for New Law Students, 11 Green Bag 2d 51, 61 (2007).

69. Ciardi, supra note 17, at 663.

70. Packard, supra n. 34, at 104.

71. White, supra n. 53, at 1681.

72. Carl Sandburg, Complete Poems 317 (1950).

73. The Legal Imagination, supra n. 23, at 238.

74. Grey, supra n. 12, at 39.

75. The Legal Imagination, supra n. 23, at 761-62.

76. K.S.A. 2018 Supp. 77-201.

77. Bryan A. Garner and Antonin Scalia, Reading Law: The Interpretation of Legal Texts, 59 (2012). (Canon #3: Principle of Interrelated Canons).

78. See, e.g., Posner, supra n. 13, at 29 (noting Aristotle’s observation that history, which to some extent is what law is, focuses on “what actually happened” versus poetry, which more often looks to “probabilities”).

79. Interpretation, supra n. 66, at 16.

80. “‘We do not inquire what the legislature meant, we only ask what that statute means.’” Id. at 29 (quoting Oliver Wendell Holmes, Jr.).

81. Ars Poetica, in The Oxford Dictionary of Modern Quotations 143 (1991). MacLeish graduated from Harvard Law School in 1919. Archibald MacLeish, Apologia, 85 Harv. L. Rev. 1505 (1972).

82. See also Posner, supra n. 13, at 295-99 (discussing capital punishment and Yeats poem of the Irish Rebellion Easter 1916).

83. Elements, supra n. 14, at 211.

84. Learned Hand, Sources of Tolerance, 79 U. Pa. L. Rev. 1, 12 (1930).

85. See, e.g. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, Appendix C, Canons on Statutes 524 (1960) (the rule that the plain language of the statute controls is overridden when it would lead to absurd results).

86. Reading Law, supra n. 77, at 33.

87. Harold Bloom, A Map of Misreading 18 (1975).

88. Wallace Stevens, The Collected Poems of Wallace Stevens 176 (1982).

89. Map of Misreading, supra n. 87 ,at 75.

90. Id. 91. Thomas C. Foster, How to Read Literature Like a Professor 29 (2003).

92. Id. at 33.

93. Harold Bloom, The Anxiety of Influence 19 (1973) (“[Percy Bysshe] Shelley speculated that poets of all ages contributed to one Great Poem perpetually in progress.”).

94. Id. at 91.

95. 2000 Famous Legal Quotations 498-99 (Frances McNamara ed.)

(1967).

96. 218 Kan. 198, 542 P.2d 676 (1975).

97. Id. at 199.

98. Id. at 200.

99. Id. at 201.

100. Cardozo, supra n. 27, at 325.

101. Eberle and Grossfield, supra n. 8, at 386.

102. 407 U.S. 258, 32 L. Ed 2d 728, 733, 92 S. Ct. 2099 (1972).

103. Posner, supra n. 13, at 5. See also Robert Frost, Poetry of Robert Frost, 33 (1969).

104. 514 U.S. 211, 131 L. Ed 2d 328, 115 S. Ct. 1447 (1995).

105. Poetry of Robert Frost, supra n. 103, at 33.

106. 131 L. Ed. 2d at 328.

107. Jalen O-Neil and Curtis J. Waugh, Note, Style and Substance: Kansas Supreme Court Justice Rousseau Angelus Burch, 26 Washburn L.J. 297, 318 (1987).

108. Id.. at 334 (citing Stevens v. Metsker, 130 Kan. 251, 253 (1930), and drawing a rebuke from Justice Harvey in dissent: “ for I have a firm conviction that such acrobatic intellectual feats have no place in a judicial opinion,”130 Kan. at 263).

109. The Duel, by Eugene Field.

110. 130 Kan. at 253.

111. Jones v. State Board of Medical Registration, 111 Kan. 813, 818 (1922) (Dawson, dissenting). The Ware poem is discussed in the text accompanying endnote 141.

112. Cooper v. Seaverns, 81 Kan. 267, 269 (1909).

113. Id. at 268.

114. Id., Syl. ¶ 1.

115. 223 Kan. 67, 69-70, 573 P.2d 573, 575 (1977) (Justice Owsley, dissenting).

116. 39 Kan. App. 2d 683, 688, 184 P.3d 273 (2008).

117. Van Kleeck v. Ramer, 62 Colo. 4, 44-46, 156 P. 1108 (1916).

118. 223 Kan. at 69.

119. Id. at 70.

120. 39 Kan. App. 2d at 688.

121. Id. at 684.

122. 308 Kan. 103, 113, 418 P.3d 1278 (2018).

123. Id., quoting William Shakespeare, Sonnet 116.

124. The Lawyer’s Alcove, supra n.5, at 267; Geoffrey Chaucer, The Canterbury Tales, The Man of Law’s Tale 122 (Penguin Classics ed. 1977).

125. Id., at xvi.

126. Donald R. Howard, Chaucer: His Life His Works His World 419 (1987).

127. Reprinted in Llewellyn, The Bramble Bush, supra n. 15, at 170.

128. Sandburg, Complete Poems, supra n. 70, at 189.

129. Karl N. Llewellyn & William L. Prosser, The Song of the Law Review, in The Judicial Humorist: A Collection of Judicial Opinions and Other Frivolities, 42 (William L. Prosser, ed. 1952).

130. Reprinted in Law: A Treasury of Art and Literature, 151 (Sara Robbins, ed. 1990).

131. W.H. Auden, Selected Poems 89-90 (1st Vintage Ed. 1989).

132. Ciardi, supra n.17, at 680.

133. The Lawyer’s Alcove, supra n. 5, at 249.

134. Reprinted in Michael H. Hoeflich, Anthology of Nineteenth Century American Legal Poetry, 233 (2018).

135. Eugene Ehrlich, Amo, Amas, Amat and More: How to Use Latin to Your Own Advantage and to the Astonishment of Others 193 (1985) (using the alternative formation from Juvenal, Satires: nemo repente fuit turpissimus).

136. The Portable Oscar Wilde 606 (Richard Aldington ed.) (1966).

137. https://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens. 14 QBD 273 DC (1884).

138. Neil Hanson, The Custom of the Sea, 91-92 (1999).

139. Id. at 117.

140. Id. at 148-49.

141. Id. at 280, 286. Cf. Lon Fuller, The Case of the Speluncean Explorers, 62 Harvard L. Rev. 616 (1949).

142. Reprinted in Ciardi, supra n. 17, at 702-03.

143. The full quote is “Of course, the law is not the place for the artist or the poet. The law is the calling of thinkers.” Oliver Wendell Holmes, The Profession of the Law, Speeches 22 (1913) reprinted in The Common Law & Other Writings, Collected Legal Papers, The Profession of the Law 29, 30 (The Legal Classics Library 1982). For a listing of various poets who were trained in the law, or somehow associated with the practice of law, see Walter R. Arnold, The Law and Poetry, 1 Notre Dame L. Rev. 77, 78-80 (1926) (noting attorney-poet connections back to Roman times).

144. See, e.g., Eberle and Grossfield, supra n. 8, at 354 (noting various lawyer-poets).

145. Posner, supra n. 13, at 5.

146. Bloom, How to Read and Why, supra n. 16, at 138 (commenting that Stevens belonged in the pantheon of American poets that includes

Robert Frost, T.S. Eliot, and Hart Crane).

147. Grey, supra n. 12, at 12. Posner, supra n. 13, at 191, singles out Stevens for extended discussion, although mostly through commentary on Grey’s work.

148. Id. at 39.

149. Id. at 2 (quoting Law and Literature, supra n. 13, at 179).

150. Id. at 115, n.3.

151. Robert E. Rains, Of Cantos and Clerihews, 13 Green Bag 2d 453, 457 (reviewing Poetry of the Law, supra n. 30).

152. https://en.wikipedia.org/wiki/Albert_Pike.

153. The Penguin Anthology of 20th Century American Poetry 1 (Rita Dove, ed.) (2011).

154. Brian Moline and Michael H. Hoeflich, Some Kansas LawyerPoets, 55 U. Kan. L. Rev. 971 (2007).

155. Some consider him the “unofficial poet laureate of Kansas.” James C. Malin, Ironquill—Paint Creek Essays 7 (1971).

156. 19 Kan. 260 (1877). As for the unofficial poet laureate of lawyers in general, it could be John Godfrey Saxe. The Lawyer’s Alcove, supra n. 5, at 268.

157. The Lawyer’s Alcove, supra n. 5, at 266.

158. Eugene F. Ware, The Rhymes of Ironquill (1939).

159. Malin, Ironquill—The Paint Creek Essays, supra n. 155, at 8.

160. Some Kansas Lawyer-Poets, supra n. 154, at 978 (discussing, e.g.

Solomon Levy Long, who “was as strange as they come”).

161. Burton J. Williams, Senator John James Ingalls, Kansas’ Iridescent Republican 67 (1972). A contemporary also wrote about Ingalls life, including his literary work. William E. Connelly, Ingalls of Kansas (1909).

162. Kansas Law and Practice: Vol. 4, Kansas Code of Civil Procedure Annotated (5th ed.2012).

163. Spencer Gard, On the Office Wall, 60 American Bar Association 988 (1974).

164. The poem, in part, is quoted in James M. Concannon, “The Ideal Place . . . for the Establishment of a Great Law School: History of Washburn Law School, 1903-2003, 216 (2012). The full text of the poem is reprinted at 11 Washburn L.J. iv, viii-ix (1971).

165. 40 Washburn L.J. xiv, xiv (2001).

166. Deanell Reece Tacha, Lecture: Oh the Faces You’ll See, 49 Kan. L. Rev. 1149 (2001).

167. Preamble, Rule 226, Kansas Rules of Professional Conduct 2 (hereinafter KRPC) (“As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”) (emphasis added).

168. KRPC 3.3.

169. KRPC 3.4.

170. KRPC 3.4.3.

171. C.J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sustain Public Defenders, 106 Harv. L. Rev. 1239 (1993).

172. Id. at 1253.

173. W.B. Yeats, The Collected Poems of W.B. Yeats 133 (1967).

174. The Lawyer’s Alcove, supra n. 5, at vi.

175. Posner, supra n. 13, at 194.

176. The Collected Poems of W.B. Yeats, supra n. 152, at 242.

177. Id. at 91.

178. Id. at 92.

179. Id. 180. Id. 181. Posner, supra n. 13, at 483 (quoting Yeats, Easter 1916).

182. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy and Style, 52 (3d ed., 1998). See also John H. Crabb, The Law the Lawyer Predicts, 7 Kan. L. Rev. 457, 457 (1959).

183. How to Read and Why, supra n. 16, at 69 (“Poetry is the crown of imaginative literature, in my judgment, because it is a prophetic mode . . . .”).

184. Sandburg, The Lawyers Know Too Much, supra n. 72, 189.

185. Marten, supra n. 36, at xii.

poetry and the law

Sestina and Compassion Fatigue

by Elizabeth Oliver

A

ttorneys are inundated with excruciating stories, and consequently, are impacted by secondary trauma stress.

This stress manifests itself differently, including compassion fatigue or burnout. While the legal community has developed ways to combat these manifestations, the reality is that this problem does not have a “one size fits all” solution.

One way the legal community can combat these manifestations is to encourage lawyers to engage in therapeutic writing to cope with secondary stress. But before any conversation occurs on coping with secondary stress trauma, compassion fatigue, and burnout these conditions must be defined.

Andrew P. Levin, M.D. conducted a study in 2003 to determine if attorneys dealing with victims of domestic violence experienced secondary trauma and burnout. Dr. Levin discovered that attorneys experienced more burnout and secondary trauma than mental health care providers or social service workers.1 He identified that attorneys had higher levels of recollection of the trauma and experienced diminished pleasure in activities; they also developed “difficulties with sleeping, irritability, and concentration.”2 The symptoms of burnout include: • depression, • hopelessness, • headaches,

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• anxiety, • agitation, • irritability, • self- doubt, • loss of confidence, • apathy, • and avoidance of clients.3 While compassion fatigue is typically self-evolved, burnout is not. Burnout is a combination of one’s personality traits and their organizational culture.4 Since compassion fatigue is self- evolved, it develops from one’s responses to the exposure to client’s injustices and other pains. Charles Figley stated that it is the “cost of caring,” and professionals exposed to clients’ stories of fear, pain, and suffering may begin to experience the same feelings due to their empathy for their client.5 Compassion fatigue manifests in three ways: cognitive, emotional and physical.6 Cognitive manifestations include: • difficulty concentrating, • confusion and memory loss, • loss of sense and direction,

poetry and the law

• an inability to recognize cause and effect, • minimization of problems, consequences or conditions, • and preoccupation with current stressors that cannot be externally changed or controlled.7 Emotional manifestations include: • chronic fear and anxiety, • inexplicable guilt and shame, • self- doubt, • withdrawal • and isolation.8 Finally, physical manifestations of compassion fatigue include: • musculoskeletal pains, • immune system issues, • digestion and appetite issues, • shortness of breath, • chest pain, • trouble sleeping, • and headaches.9 Since secondary trauma stress, burnout, and compassion fatigue are interrelated conditions, the symptoms may overlap. One way to combat these conditions is to engage in therapeutic writing.

The definition of therapeutic writing is writing about a stressful event in order to process the event. There are many forms of poetry that one can write, but I believe firmly that the sestina and the villanelle are the most useful for attorneys.

The sestina has been disvalued by some English scholars for its reliance on circular reasoning and repeating words. Despite being disvalued by some, this 12th century form provides a way for lawyers to write poetry concerning legal matters that explores the emotional turmoil found in legal matters.

The sestina is composed of six elements. The Elements are as follows: 1. Six stanzas of six lines each and three- line envoi or congedo (Spanos 546).

2. The stanzas do not have to rhyme within itself (Spanos 546).

3. Six words are repeated according to their order in the first stanza (Spanos 546).

4. The ending words will repeat going downward (Druce 295).

5. There are 39 lines in total, and there is no rhyming (Druce 295).

The best illustration of these elements and their usefulness for a lawyer is in analyzing a poem. Following is “Where are you death?”

Some say he wears black, but I know better as I wait for death But, I know better, I have faith.

I know his company will bring me peace.

If I could only feel his touch.

I don’t know why he hides.

Death, why do you hide?

I know you’re there in the light, death.

I see your white suit glistening as I wait for your company.

Why can’t I touch you?

Why won’t you share your peace I yearn for peace.

I’ve watched from afar as you’ve brought peace to others with your touch.

Why death?

Why do you hide?

I know there’s peace in your company.

While others run from your company, I long for it, I long for peace I know I will find it in your presence. I have faith.

I long for you death.

Why do you hide as I long for your touch.

If I didn’t know better, I would lose hope in ever feeling your touch.

I imagine your touch bringing waves and waves of peace.

Waves that engulf one in your company.

Why do you hide?

Why death?

I fear that I am losing faith.

Faith, I am losing faith death, do you dread my company?

I’ve watched you touch Others who were unworthy of your company, others undeserving of your peace, others who fear you, others who don’t see your white glistening suit.

Some say he wears black, but I know better as I wait for death.

Death, why do you hide?

The repetition and the circular reasoning of the sestina creates an emotional connection with the reader. The tension builds using the words against the reader’s own frame of reference.

Its use of repeating six words throughout the work create a tension between the reader’s own concept of death and the www.ksbar.org | April 2020 31

poetry and the law – sestina and compassion fatigue

proposed patient in the poem while the refrains at the beginning and end of the sestina do not resolve the tension; they purposefully leave the reader pondering if their pre-conceived notion of death is wrong.

In “Where are you death?,” I explore the frustration of an individual who may become the proposed patient in a Care and Treatment case. This area of law is hidden from sight as they are typically closed cases. Only people who have been involuntarily committed or have friends and family who have been through the Care and Treatment process will understand the legal process. Despite modifying the sestina’s format, I maintain the six repeating words: death, faith, company, peace, touch, and hides (hide). These words allow the reader a glimpse into what the mindset of a proposed patient is and allows the reader to experience what a defense lawyer experiences in communicating with his client.

To write your own sestina, identify the six words you want to repeat. Then follow the pattern diagram of A B

F A

C F

E C

D E

B D

AB or BA CD or DC

C E D B A F EF or FE D B A F C E E D B A F C F C E D B A 10

1. Andrew P. Levin, M.D, Symposium: Syndromes, Framework and Expert Testimony: What Jurists Need to Know: Pace Women’s Justice Center The Second Annual Domestic Violence Think Tank: Introductory Remarks: Vicarious Trauma in Attorneys, 24 Pace L. Rev. 249. (2003).

2. Id. at 249.

3. Portnoy, Dennis, M.F.T. “Burnout, and Compassion Fatigue: Watch for Signs.” Journal of the Catholic Health Association of the United States, 2011, pp. 47–50., compassionfatigue.org/pages/healthprogress;pdf.; Lee Norton, Ph.D, M.S.W., Jennifer Johnson, Esq., & George Woods, MD. Burnout and Compassion Fatigue: What Lawyers Need to Know, 84 UMKC L. Rev. 987. (2016).

4. Lee Norton, Ph.D, M.S.W., Jennifer Johnson, Esq., & George Woods, MD. Burnout and Compassion Fatigue: What Lawyers Need to Know, 84 UMKC L. Rev. 987. (2016).

5. Charles R. Figley, Compassion, Compassion Fatigue as Secondary Traumatic Stress Disorder: An Overview in Compassion Fatigue: Secondary Traumatic Stress Disorder in Those who Treat the Traumatized 1 (Charles R. Figley ed. 1995).

6. Lee Norton, Ph.D, M.S.W., Jennifer Johnson, Esq., & George Woods, MD. Burnout and Compassion Fatigue: What Lawyers Need to Know, 84 UMKC L. Rev. 987. (2016).

7. Id. at 989.

8. Id. 9. Id. 10. Druce, Robert. “Information control and making: the pragmatics of a sestina.” Word & Image, vol. 5, no. 3, 1989, pp. 295.

About the Author Elizabeth L. Oliver is a dedicated public servant having worked as a public defender, staff attorney at Kansas Legal Services, in private practice, and currently, as an Assistant County Attorney at the Montgomery County Attorney’s Office. She teaches as an adjunct instructor at Ottawa University.

For legal subject matters in poetry, the sestina builds the tension that exists in any case or fact pattern while allowing the poem to communicate on a deeper level with the reader than mere circular reasoning. Legal subject matters never find peace, but each matter does have a resolution. Therapeutic writing in the form of the sestina can help lawyers process the eoliverlaw@gmail.com stress of practicing law. n

Poetry and the Law: Member’ Poetry continued on Page 36

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poetry and the law – members’ poetry

Ed. Note: We asked our member readers to submit poems they had written that they would like to share. Although not many chose to share, we certainly appreciate those who did. Enjoy their words and consider whether poetry—in any of its forms—might be a way for you to express yourself in this unsettling, unprecedented time in our lives. Sometimes, putting one’s fears, frustrations, gratitude or any other emotion down on paper (or on a screen) makes it easier to handle. Makes it tangiable, and therefore, manageable. Read these submissions...and think about it. pVs (Editor, The Journal of the KBA)

36

Heart Song I have a song in my heart, Whenever I think of you.

I soar like an eagle in the sky Upward into unending blue.

It’s just a matter of time Before you are here with me,

To be touched and loved anew.

It has been so long, I can’t stand the wait!

How sweet it will be to have you here with me.

I am anxious to hold you, and gaze into your eyes.

The time is fast coming, soon you will be here!

I will gaze upon your face, and hold you so dear!

I have so much to tell you, Where shall I begin?

I will say I love you, Over and over again!

I must be patient; I must be strong Even if time us slow and the days are long!

Time is finally flying, The wait is almost done.

Such a journey we’ve been on, Now it’s time to see the sun!

As the time passes, will we remember these Days, or will it become just a distant haze?

I can feel your touch; the beating of your heart, I know you are with me and we will never part!

I have a song in my heart, Whenever I think of you.

The Journal of the Kansas Bar Association

Robert L. Heath

poetry and the law – members’ poetry

CINC to a four year old Gather your things, it is time to go.

I scrambled to grab an outfit, a toy as arms reach out to pick me up.

Wait, I need one more thing.

My siblings are already in the social worker’s van. I scream to no avail.

They didn’t let me get my buzz lightyear. “Your fine”, my brother says.

Gather your things, it is time to go.

I’ve been placed at Grandma Judy’s house with MJ. Ecstasy and Star are at Uncle Don and Aunt Lyndsey’s house.

Wait, I need one more thing.

And, I don’t even know where mom’s been placed.

I haven’t seen mom in a long time.

Gather your things, it is time to go.

Grandma Judy took me to court.

My lawyer came and talked to me.

Wait, I need one more thing.

She asked if I needed anything. “Yes, I need my buzz lightyear.”

My lawyer stinks; she didn’t get me my buzz lightyear.

Gather your things, it is time to go.

She hasn’t gotten me home, and I only see my siblings once in a while.

I haven’t seen mom since court.

Wait, I need one more thing.

She was in the ugliest orange outfit with the ugliest bracelet.

And, the guards yelled at her when she tried to hug me.

Gather your things, it is time to go.

Today, the social worker came.

She took MJ and me away from Grandma Judy.

Wait, I need one more thing.

“You’ll be placed with your dad.” The social worker said.

“Who’s that?” I ask. “The man you meet with twice a week.”

Gather your things, it is time to go.

“You’ve been doing overnight visits for the last month” says the social worker.

I can’t believe I’m stuck living with this guy.

Wait, I need one more thing.

Are they sure he’s my dad? I thought he was an uncle.

And, I’ve told him about my buzz lightyear too, and I still don’t have my buzz lightyear.

Gather your things, it is time to go.

12 months have come and gone since the social worker took us away in that van.

Wait, I need one more thing.

It’s been at least that long since I last saw mom at court.

My lawyer called and told me that I am staying with my dad.

Gather your things, it is time to go.

At least, my siblings are happy and live with me and dad.

But, I still haven’t got my buzz lightyear.

Gather your things, it is time to go.

Wait, I need one more thing.

Elizabeth Lee Oliver www.ksbar.org | April 2020 37

poetry and the law – members’ poetry

The Pursuit You come to the river early, with the mist still resisting the rays of the sun.

You step gingerly along the bank, looking for the perfect Place to enter the the water’s edge.

A bed of smooth stones show the way; water rushes over your boots.

You turn down stream, squinting at the sun.

You see a deep pool, covered in dappled shade.

Just in front, a shelf funnels the current into the pool.

The water swirls, cascading downward; you move to the bend, And steady yourself against the water’s rush.

You search for a shadow in the hole; then you spot him, A beautiful fish, majestic and still, waiting patiently, To see what the water might bring. Your mind races; You blow on your fingers numbed by the cold.

Suddenly you see a cloud of tiny glistening wings ascending from the water, pushing toward the sun…a May fly hatch!

You reach for your fly box, with fingers fumbling at the clasp.

The chosen fly resists coming out, but finally it is in your hand You lower the rod butt and reel to rest against your boot, And you thread the tippet through the eye of the #18 pale dun.

You smile as it passes through on the third try, and the knot Cinches down, and you trim down the tag against the fly.

Raising the rod, you pull off just the right amount of line, And cast into the water, with great anticipation.

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poetry and the law – members’ poetry

The current pulls the line on its path, the strike indicator Showing the way. You tighten your grip, and mend the line.

And you wait with bated breath as your ruse is about to be tested.

You feel a downward tug, instinctively you raise your rod; It all happens in an instant; the hook is set and The pool explodes as you pull back hard.

A magnificent rainbow breaks forth into the swift current; Line whirs off the reel; you struggle against his power!

Your mind spins -how do I hold him, how do I get down stream?

The battle is on! Do I have a chance to land him?

Suddenly the line goes slack; he has reversed course and you struggle To keep the line tight, lifting the rod high, the tip bends.

He is still on! More line is lost; you marvel at his strength!

He dances on the water, flashing a brilliant iridescence, Shining in the brightness of the morning sun. More line is Recovered and for the first time, you have hope of landing him.

He is tiring now, still he pulls but you are winning the battle.

You reach for your net, and at that moment he makes one last run.

Line peels off and he heads for a logjam! You do your best to follow.

Rod held high, net in hand, you are so close!

Your heart is racing… but then there is one last tug, the line goes slack… you have lost him, the battle is over – he has won and he is free!

Disappointment reigns for the moment but what a thrill!

You pause, salute the victor, and begin looking for the next hole.

Robert L. Heath

www.ksbar.org | April 2020 39

poetry and the law – members’ poetry

Autumn’s Splendor (A Homecoming) As the air cools, the moisture rises in the grasses with the morning light.

The crimson of the creeping vines highlights the woods growing dormant.

The subtle wind brings a rustling chime to the sugared leaves.

And the hedge apples fall to the ground with great commotion.

The chill and fog of the dawn break in the morning sun.

Where the sweat still gathers in a long day’s labor.

Skies are christened by the drifting flocks.

And insects folly wildly in their last plea before the frosts.

Amidst the harmonious sounds our kind cries out.

Pruning and planting, harvesting and tilling.

A mortal attempt to contour what is beyond control.

As chainsaws buzz and blades spin below the diesel plumes.

Yet the fire of the dance is consumed by stadium lights.

As the cheerleaders prance in unison before the painted fans.

And while the present is all consuming, some wonder exists.

As youth in its prime serves no notice to the memories created in this time.

The harvest brings homecoming to gather the fruits and grain.

And dawn the diversion of the gridiron and a season of diamonds battled.

For many it is a time of new passions and undaunted expectations.

Still most gather to immortalize their youthful visions recanting dreams stilled.

The reminder of our communal need draws us closer to the hearth.

As the days grow shorter and the night draws upon its time.

A festival of seasons changed with the dearth of winter kept at bay.

A grateful pause to remember and lust in Autumn’s splendor Henry R. Cox

Bird Dog Lament There is a small reason Why bird dogs don’t sing.

Their voices are too low For the sweet notes of Spring.

Robert L. Heath 40

The Journal of the Kansas Bar Association

substance and style

Mind Your Virtual Manners: A Brief Guide to Social Graces in Online Writing

by Joyce Rosenberg

In legal writing, we often discuss “ethos,” the notion of credibility underlying everything we write. Alongside our professional reputations and the care we take with our work, ethos comes from our ability to relate to our audience appropriately—our manners.

We know that when we’re writing to a court, we are expected to use the most formal language and indicate deference to the judge. That formality is in contrast to writing to a client or colleague, when a more conversational and friendly tone is more effective. When writing to an opponent, we may change our approach and tone yet again, working within the bounds of professionalism to convey a position of strength.

All of these shifts are connected to our sense of manners— what’s appropriate “behavior” in a particular situation.

Online writing comes with its own set of manners. As more electronic communication moves into the short forms of texts, instant messages, and social media posts, readers form impressions based on the writers’ use of “good digital etiquette.”1 Most notorious, perhaps, are etiquette lapses relating to email “reply all” (or not understanding how email listservs work). Additionally, online manners have come to incorporate “writing the way we talk.”2 Online readers form a judgment about the writer’s credibility and tone within seconds.3 In the absence of facial expressions and body language, those judgments are based on writers’ word choice and grammar, but also on the visual presentation of the words—in short, the tools we have to convey tone and nuance online.4 Listening to Punctuation In texts and social media posts, writers use punctuation to convey tone and voice. The most significant example is the absence of a period at the end of a sentence. In texting and instant messages, each sentence or idea is commonly a new

post.5 As a result, inclusion of a period to break up sentences in those media has become unnecessary. If the writer includes a period, the reader may perceive it as a stern or serious tone, or even as anger.6 By contrast, using an exclamation point conveys enthusiasm and sincerity.7 Consider the contrast in the following text exchange between two people discussing plans for later: Example A: Joe: I need to work late, let’s move back our dinner reservation Sam: Totally fine Example B: Joe: I need to work late, let’s move back our dinner reservation Sam: Totally fine.

In example B, Joe is likely to perceive that Sam is annoyed.

That period at the end of the sentence conveys “a slight deepening of the voice,” sometimes associated with displeasure, especially for younger readers.8 That implication is absent from the unpunctuated, and thus more neutral, Example A. Consider a third example: Example C: Joe: I need to work late, let’s move back our dinner reservation Sam: Totally fine!

Sam’s exclamation point reflects friendliness and enthusiasm. In an in-person or phone conversation, Joe would pick up how Sam felt about the changed plans by looking at Sam’s facial expression or hearing Sam’s voice. In writing, that’s impossible. So “it’s socially useful to be able to convey a nuanced level of reluctance”9 or enthusiasm—and punctuation can do that. www.ksbar.org | April 2020 41

substance and style

Visual Voice Cues Another common way to convey tone is through visual prompts. The most common visual prompt for voice is irregular capitalization. Most people understand that ALL CAPS MEANS THE WRITER IS YELLING. Use of no capital letters at all, even where they’d be expected, conveys a quiet, flat, or deadpan tone of voice.10 And capitalizing words at random has become a common way for online writers to express irony and sarcasm. For example, these three sentences have three different tones of voice, and thus convey three different meanings: Example A: I LOVE LEGAL WRITING SO MUCH! This writer is sincere and enthusiastic. The writer loves legal writing, either the class or the discipline generally, so much that this text, tweet, or post is shouting it to the rooftops.

That exclamation point signals excitement; without it, the tone shifts to extreme exasperation.

Example B: i love legal writing so much The lack of a capital letter at the beginning, especially the i, combined with the lack of ending punctuation, suggests this writer feels stressed out or worried. Something bad might have happened in connection with a document, or the writer might be experiencing writer’s block. If a friend or a student texted this to me, I would check on them.11 Example C: I lOve LeGal WRitiNG sO MucH or I Love legal writing So Much The irregular capitalizations in Example C indicate the writer means the opposite of what the words say.12 The first version is more flamboyant, used more commonly by younger writers to convey sarcasm; depending on context, it could also be mocking someone who genuinely loves legal writing. The second version, capitalizing the words the writer means ironically, achieves a similar result with a little less keyboard effort.

A similar technique to convey emphasis is to elongate the word the writer wants to emphasize. Writers can elongate using extra spacing to s t r e t c h the word the writer wants to emphasize. Or they can add extra letters, especially vowels, to stress the word: Nooooooo! Physically lengthening the word on the screen or page is equivalent to the same technique in spoken language.13 A Little Respect Finally, an important, often-overlooked component of online manners is simply showing respect for the people we are 42

The Journal of the Kansas Bar Association

communicating with. One way to do so is to use individuals’ preferred pronouns. Another way to show respect and inclusiveness for all people is by avoiding gendered pronouns or by using singular they14 when referring to a singular person whose gender is unknown, as in the example above.15 Singular they, in the sense of a nonbinary pronoun, was Merriam-Webster‘s word of the year for 2019.16 Following that endorsement, in October 2019, the American Psychological Association amended its publication style manual to recommend the use of they as the preferred third-person singular pronoun when gender is unknown or irrelevant to the context.17 It specifically disfavors use of he, she, he or she, and similar forms (such as s/he) as generic third-person singular pronouns.18 The reason for the change boils down to simple manners: “When readers see a gendered pronoun, they make assumptions about the gender of the person being described. . . . APA advocates for the singular ‘they’ because it is inclusive of all people and helps writers avoid making assumptions about gender.”19 Of course, writers should always use singular they when it is the subject’s preferred pronoun. In legal documents, it is prudent to use a footnote to alert the reader that use of singular they conforms to a party’s preference.

It might be tough to relate lawyers’ work to the tone of texts and social media posts. We don’t close deals or write motions on Twitter. Nevertheless, lawyers need to be aware of the ways online etiquette affects readers’ perceptions. Lawyers may text with clients and use social media as part of business development. Moreover, as people communicate with each other electronically, those communications affect negotiations and become evidence in disputes.20 So it’s imperative that lawyers understand the etiquette of online communications: How to read those communications correctly for tone and meaning, and how to achieve appropriate manners in our own online writing. n

About the Author Joyce R. Rosenberg is a clinical professor at KU Law School, where she teaches Lawyering Skills. She is a 1996 graduate of KU Law. She served as editor in chief of the Kansas Law Review. jrosenberg@ku.edu

substance and style

1. Victoria Turk, How to Ensure A Good Impression, New York Times, Dec. 16, 2019, at B6 (available at https://www.nytimes.com/2019/12/09/ smarter-living/digital-etiquette-manners-online.html).

2. Gretchen McCulloch, We Learned to Write the Way We Talk, New York Times, Dec. 27, 2019 (available at https://www.nytimes.com/interactive/2019/12/27/opinion/sunday/internet-writing-text-emotion.html).

3. Id. 4. Jen Doll, Why Drag It Out? The Atlantic (March 2013) (available at https://www.theatlantic.com/magazine/archive/2013/03/dragging-itout/309220/).

5. McCulloch, supra note 2.

6. Id. 7. Id. 8. Id. 9. Id. 10. Gretchen McCulloch, A Linguist Explains How We Write Sarcasm on the Internet, The Toast, June 22, 2015, https://the-toast.net/2015/06/22/alinguist-explains-how-we-write-sarcasm-on-the-internet/.

11. “The use of they, their, them, and themselves as pronouns of indefinite gender and indefinite number is well established in speech and writing . . . .” Definition of They, Merriam-Webster, https://www.merriam-webster. com/dictionary/they.

12. See McCulloch, supra note 2.

13. Doll, supra note 4.

14. For a more comprehensive discussion of singular they, its acceptability, and its modern usage, see Joyce Rosenberg, A Singular Understanding of They, J. Kan. Bar Ass’n 20 (April 2016).

15. See supra note 11.

16. Merriam-Webster’s Words of the Year 2019, Merriam-Webster, https:// www.merriam-webster.com/words-at-play/word-of-the-year/they.

17. American Psychological Assoc., Singular They, APA Style, https:// apastyle.apa.org/style-grammar-guidelines/grammar/singular-they.

18. Id. 19. Chelsea Lee, Welcome, Singular They, APA Style Blog (Oct. 31, 2019), https://apastyle.apa.org/blog/singular-they.

20. See, e.g., Matter of Hodge, 307 Kan. 170, 407 P.3d 613 (2017) (using text exchanges between attorney and client as part of evidence of attorney’s misconduct); Doe v. Western New England Univ., 228 F. Supp. 3d 154, 164 (D. Mass, 2017) (referencing Magistrate Judge’s report considering text messages, including emojis, in the context of a Title IX complaint).

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www.ksbar.org | April 2020 43

the diversity corner

Fighting Lawyer Loneliness?

by Diana Stanley

A

t the time I am writing this, KU is shifting to online classes and the World Health Organization (WHO) has declared COVID-19 a pandemic. So if you are reading this—congratulations, we made it. Hopefully, you are enjoying a public gathering and I am headed off to my very in-person hooding ceremony. But in case we are still practicing social distancing, let’s talk about loneliness.

Even without Centers for Disease Control (CDC) suggested isolation, lawyers are a lonely bunch. In fact, a 2018 survey by the Harvard Business Review found that law is the loneliest profession.1 Sixty percent of lawyer respondents were above the study’s average on the loneliness scale.2 In addition, millennials,3 rural residents,4 and minorities5 face higher rates of loneliness than their working cohorts.

All this loneliness has a cost. Lonely people are more likely to experience problems with their “immune and cardiovascular systems.”6 At work, loneliness affects performance.

“Lonelier workers perform more poorly, quit more often, and

44

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feel less satisfied with their jobs—costing employers upwards of £2.5 billion ($3.5 billion U.S.) in the United Kingdom alone.”7 Enter COVID-19. It is common sense that withdrawing from avenues of social contact and tele-commuting for safety purposes can increase loneliness. Less obvious is how it can pose particular challenges for those with mental health diagnoses. As one law student told me: Loneliness can hit especially hard when you are dealing with mental illness. Granted, mental illness presents differently in everyone, so these are just my experiences, but depression and anxiety make my feelings of social isolation and loneliness multiply exponentially. When you are dealing with mental illness, sometimes the last thing you want is social contact, even though it’s the thing you need the most. Mental illnesses can also make it so hard to interact with people, leading to further self-

the diversity corner

isolation. For example, I am an extrovert and get my energy from other people. When I don’t have that social contact, the first thing to take a hit is my mental state.

Mental illness also presents a different kind of loneliness, a kind of situational loneliness. Not only do you feel different form everyone else, like you can’t relate to them, but it’s absolutely exhausting correcting ableist comments and ideals in others. The coronavirus pandemic will certainly test my ability to cope with social loneliness and situational loneliness.8 So what do we do to combat loneliness—with or without a pandemic?

Take care of yourself. In addition to the usual suggestions of exercising at home and remembering to eat, consider trying meditation. As one of KU Law’s resident mindfulness champions told me:

Meditation can be a great way to ground yourself in times of anxiety and uncertainty. My tips on getting started are:

1. Find a good app. Both Headspace and Calm are extremely popular but really a simple timer is all you need.

2. Keep it short. At least when first starting, 5-10 minutes is all you need. Once sitting for 10 minutes is easy, try adding time.

3. Set a regular time of day. Tie your meditation to an already existing activity that you perform like waking up, going to bed, or even eating. This will make the habit stick better.

4. Do it regularly. You are better off doing a short-five minute meditation every day than a ½ hour mediation every once in a while.9 To stay refreshed, open a window and prioritize proper hydration.10 “Sometimes just having a glass of cold water can center you and put you in a better mood.”11 Maintain your social networks. WHO’s official advice to those limiting physical social contact is to “stay connected via e-mail, social media, video conference[,] and telephone.”12 And for the extraverts out there, don’t just wait for the call.

If you have not heard from a friend or a family member in a while, reach out and see how they are doing.

Finally, rejoice in the small things. Even at this early stage of virtual school, pets are quickly becoming the stars of classes and meetings. We are getting to see a side of each other that we had not before. The other day I wrote a snail mail letter to an old friend because I knew she would get a kick out of it.

Stay healthy and take of yourself. n

About the Author Diana Stanley is a third-year law student at the University of Kansas. After she graduates, she plans to practice in her home town of Wichita. She is an Articles Editor for the Kansas Law Review, Articles Chair of the KBA Diversity Committee, and was a runner up at this year’s National Environmental Law Moot Court Competition. dianastanleyjd@gmail.com

1. Shawn Achor et. al, America’s Loneliest Workers, According to Research, Harv. Bus. Rev. (Mar. 19, 2018), https://hbr.org/2018/03/ americas-loneliest-workers-according-to-research.

2. Id.; Kathryn Rubino, New Survey Proves Lawyer Is The Loneliest Profession Of All, Above the L. (Apr. 3, 2018, 4:26 PM), https://abovethelaw. com/2018/04/new-survey-proves-lawyer-is-the-loneliest-profession-ofall/.

3. Jamie Ballard, Millennials are the Loneliest Generation, YOUGOV (July 30, 2019, 2:45 PM), https://today.yougov.com/topics/lifestyle/articles-reports/2019/07/30/loneliness-friendship-new-friends-poll-survey (study finding thirty percent of millennials report feeling “always or often [] lonely” and over twenty percent reporting they had “no friends”).

4. Kay Miller Temple, The Rural-ness of Social Isolation: Information from Recent Public Health Research, Rural Monitor (July 19, 2019), https://www.ruralhealthinfo.org/rural-monitor/social-isolation-research/.

5. Jo Griffin, The Lonely Society?, Mental Health Found. 6 (2010) (“People from minority groups are also more apt to suffer from loneliness.”); Mary Caffrey, Studies Reveal Loneliness, Trauma Effects Among Minority Urban Women, AM. J. Managed Care (May 20, 2019), https:// www.ajmc.com/conferences/apa-2019/studies-reveal-loneliness-traumaeffects-among-minority-urban-women.

6. Griffen, supra note 5, at 6.

7. Achor, supra note 1.

8. Email from Ariel Rhines to Diana Stanley (Mar. 17, 2020, 12:27 PM CST) (on file with author).

9. Email from W. Blake Wilson, Assistant Dir. Instructional & Faculty Servs., Uni. Kan. Wheat Law Library, to Diana Stanley (Mar. 19, 2020, 10:19 AM CST) (on file on author).

10. Tara Roslin, COVID-19: A Law Student’s Guide to Self Care & Healthy Remote Work Habits 5 (Mar. 15. 2020) (unpublished manuscript) (on file with author).

11. Id. 12. Mental Health Considerations during COVID-19 Outbreak, World Health Organization 4 (Mar. 6, 2020), https://www.who. int/docs/default-source/coronaviruse/mental-health-considerations. pdf?sfvrsn=6d3578af_2.

www.ksbar.org | April 2020 45

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46

The Journal of the Kansas Bar Association

law students’ corner

substance and style

Overcoming Imposter Syndrome One Docket at a Time

by Zach Palomino

W

ell before I came to law school I knew I eventually wanted to practice criminal law, and I knew I most likely wanted to be a prosecutor. I spent a semester in undergrad as an intern for the Pima County Attorney’s Office in my hometown of Tucson. Most of that time was spent making copies and getting coffee, but it did allow me to see what a trial is like in the real world with real consequences for everyone involved for the first time.

Fast forward a few years and I was in the grind of 1L year.

On top of just trying to get by, I was trying to build a resume that would hopefully land me an internship in a District Attorney’s Office somewhere. Luckily, the hard work paid off during my 2L Fall semester and I earned an internship with the Douglas County District Attorney’s Office for my 3L summer and school year. It was everything I had worked for up to that point: an internship that not only offered the potential to get real world criminal law experience, but also would be within walking distance to any of my favorite estab-

lishments on Mass Street for lunch. For the first time in law school, it actually felt like I was getting somewhere.

I made sure to build my schedule around the internship.

I knew I needed to wrap up required classes before 3L year came so that I could focus on my internship. Most importantly, I signed up to take Professor Phillips’ Criminal Practice in Kansas course during the spring semester of 2L. I didn’t know it when I enrolled, but what I learned in that course would allow me to survive the difficult learning curve that would come with my internship. Without Professor Phillips, I’m not sure I would have even deciphered the Kansas sentencing grid. She used that course to break down a complex criminal case and show us how it all worked. Without the knowledge and skills I got from that class, I would have been even more shell shocked when I first stepped into the court room during my internship. However, there was nothing that could have prepared me for the first day I would be calling a busy docket. www.ksbar.org | April 2020 47

law students’ corner

I can’t remember anything more unsettling than being surrounded by almost the entire Douglas County Defense Bar with almost no backup. Every single one of them knew it was my first time in a courtroom, and they saw the opportunity.

I lost count of the surprise bond arguments that were made on the fly, but I do remember one of them scolding me for not calling his client’s case early enough. I was so shocked that had happened in open court I almost apologized to him.

Luckily, my supervising attorney caught me and stepped in herself to help finish calling the docket. I remember feeling like despite all the work I had done to get there, I didn’t belong. I had a few weeks of real world experience, and the Defense bar probably had a combined century of experience.

As unpleasant as that morning was, my ability to speak in court and think on my feet is all the better for it today. For as much as KU Law has given me, character building experience like that is unmatched.

Since then, I have had the opportunity to write and argue motions and perform bench trials, as well as handling countless pleas and other dockets. During all of those experiences, I have the lingering feeling that no matter what I’ve done to prepare, I don’t really know enough to be worthy of being there. When the stakes are high, who am I to play the role of a prosecutor and be sure to see that “justice may be done”?1 In time, I figured out that the secret is I’m not the only one who feels that way. I believe that most people in this profession suffer from some level of imposter syndrome, but there are ways to get over it.

For me, I have found that falling back on the basics I learned at KU Law is a good place to go when I need to find my base. When I felt out of my depth researching and writing a response to a motion to dismiss, I remembered all the motions I had to write for Professor Phillips when I took her Criminal Practice in Kansas class. When I looked back at those, I found her comments and feedback useful even a year later.

I also found that it’s best to just swallow your pride and ask for help when you need it. I work under the supervision of

many excellent prosecutors at the Douglas County District Attorney’s Office, and they have proven to be a great resource.

Every time I have struggled during my internship, I have always been able to seek help from one of my supervisors and learn from them.

As I continue my internship and finish out law school, I have fewer moments where I feel like an imposter. Every setback is a learning experience, and every victory is a confidence booster. As long as I am diligent and never make the same mistake twice, there will be a day when imposter syndrome is completely a thing of the past. n About the Author Zach Palomino is a first-generation college and law student. He is currently a 3L who is originally from Tucson, Arizona. He plans to return there after graduation and take the Arizona Bar Exam in July. He hopes to continue his career in prosecution with either the Tucson City Attorney’s Office or the Pima County Attorney’s Office.

1. See KRPC 3.8, Comment 1.

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48

The Journal of the Kansas Bar Association

Members in the News NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service.

If there are questions or concerns regarding information printed here, please feel free to inquire through the following email: editor@ksbar.org

N

E

W

New Positions Clifford K. Cate, Jr., is Of Counsel for Barber Emerson, L.C., in Lawrence. His practice is focused in the areas of Civil Litigation, Real Estate, and Oil & Gas law. Cate is licensed in Kansas, Oklahoma and Wyoming.

John J. Gillett was temporarily appointed to serve as Wilson County attorney, filling the post being vacated by Kenley Thompson. Gillett has a law office in Chanute, but lives in Fredonia and has previously served as Wilson County attorney (Sept. 1983 – Jan. 1994). He received his law degree from the Washburn University School of Law, and he is licensed to practice in Kansas and Nebraska, as well as by the U.S. Federal 10th Circuit Court of Appeals and the U.S. Federal Court, District of Kansas.

Victoria Gordon has been added to the family law practice group of MannTuckerMuir, LLC. She received her J.D. from Washburn University School of Law, and was one of only four people in her class to obtain a Family Law Certificate.

She is licensed to practice in Kansas and Missouri. She was a child support enforcement attorney for the State of Kansas through her previous position with YoungWilliams.

S

!!!

Allison Greenfield has been promoted to member status in the Knight NiCastro MacKay LLC. Her practice focuses on business and commercial litigation, insurance premises, product liability and arson-fraud litigation. Greenfield is licensed to practice in Kansas and Missouri.

John McNish was unanimously appointed Marysville city attorney in early March. McNish previously held that position from 2004 to 2015. He now succeeds Craig Olsen of the Manhattan firm of Morrison, Frost, Olsen, Irvine & Schartz.

McNish earned his juris doctor from the University of Kansas School of Law. He has operated out of Marysville for more than 40 years. McNish also serves as Clay Center’s municipal court judge.

H. Kirstin Munson was unanimously approved to serve as city attorney by Arkansas City Commissioners. Munson is an attorney with the Ark City firm of Wilson, Brewer & Munson; she will represent the city in municipal court cases.

Ashley Repp was introduced by Linn County Attorney to the Linn County Commissioners in February as the new assistant prosecutor. Repp is qualified to handle off-grid felonies of which the county has found itself prosecuting several.

www.ksbar.org | April 2020 49

members in the news

Colby L. Rieke has joined McDowell Rice Smith & Buchanan in Kansas City as a shareholder. He will work as part of the firm’s family law and divorce group. Rieke was named to the 2019 Super Lawyers list in the area of Family Law in Kansas and Missouri, and was named to the Rising Star list from 2014-2018. Reike received his J.D. from the University of Missouri—Kansas City School of Law. Steve Stockard, a partner at Wilber & Towner, P.A., has been appointed to succeed retired Judge Jeffry L. Jack as the Eleventh District Labette County Judge. Stockard earned his juris doctor from Washburn University School of Law. His experience includes eight years as a Crawford County Assistant County attorney and a stint with the Kansas Department of Revenue. Most recently, Stockard has represented clients in matters including personal injury, bankruptcy, family law and juvenile justice.

Kenley Thompson, Wilson County Attorney, resigned from that position, effective March 12, in order to accept a position as an Immigration Judge with the U.S. Department of Justice.

Keynen “KJ” Wall was appointed to the Kansas Supreme Court by Gov. Laura Kelly in March. Wall will fill the seat of former Justice Lawton Nuss. Wall’s experience in health care litigation— representing rural hospitals, community mental health centers and behavioral health providers—was key in his selection. He is a graduate of the University of Kansas School of Law.

New Locations MannTuckerMuir is located across the street from the Ward Parkway Shopping Center at 8700 State Line Road, Suite 395, Leawood, Kansas 66206

Notables Ty Cobb, Great Bend Native and former White House attorney spoke in January to the Lyons Chamber of Commerce.

Cobb, who still has family in Great Bend, served as an assistant to the president and special counsel in 2017-2018. He was recognized as one of the top 100 lawyers in Washington, D.C. in 2017. Cobb spoke about his time in the White House, calling it “a horrible place to work.” He indicated “Partisanship and hypocrisy are at an all-time high.”

Dan W. Forker, Jr., senior partner of Forker Suter LLC in Hutchinson, was inducted as a fellow in the American College of Bankruptcy as part of its 31st class. Forker is one of two 2020 nominees selected from the 10th Federal Judicial District which includes Colorado, New Mexico, Oklahoma, Utah and Wyoming. Nominees are recognized on the basis of their professional excellence and exceptional contributions to 50

The Journal of the Kansas Bar Association

the fields of bankruptcy and insolvency within the U.S. and internationally. Forker is a past chairperson for the KBA Real Estate, Probate, and Tax Section and also a past chairperson of the KBA’s Bankruptcy Section. He is a contributing author to the KBA’s Bankruptcy Handbook. Forker graduated from the Washburn University School of Law. JoAn Lindfors of Marquette was celebrated by her local paper, the Marquette Tribune, in recognition of the 100th anniversary of women winning the right to vote. The article made the point that Lindfors could be included on a list of Kansas women who have made a difference in the lives of others. Lindfors, now recently retired at 69, practiced criminal law for 45 years. She graduated from Washburn University School of Law; her class of 160 had 15 women. The in-depth article was published on Feb. 26th.

Ralston, Pope, and Diehl, LLC, was recognized as Two Year 10 Best Personal Injury Law Firm for Client Satisfaction by the American Institute of Personal Injury Attorneys. The AIOPIA places the highest emphasis on lawyers and firms that have achieved significant success in personal injury law without sacrificing the service and support they provide.

Angel Zimmerman is the 2020 recipient of the International J. Reuben Clark Law Society Women in Law Public Service Award which was awarded to her at the Sandra Day O’Connor Law School in Phoenix. Zimmerman has served on the JRCLS Women in Law Committee since 2009, including as chair from 2016 to 2018. She helped to host the BYU Management Society and JRCLS project of 11 webinars for Women in Law (WIL) and Women in Business (WIB).

She also helped to host the first joint WIB/WIL conference at BYU. An active member of the KBA, Zimmerman has served on several committees, including as inaugural chair for the Law Practice Management section. She is a recipient of the Kansas Young Lawyer award and a nominee for the ABA Young Lawyer Award. Zimmerman is a former president of the Women Attorney Association of Topeka, Kansas, the Women Attorneys Association, and the National Conference of Women’s Bar Associations. Zimmerman is also active in the 2020 celebrations commemorating 100 years of the 19th amendment, which gave women nationally the right to vote.

Christel Marquardt—A Tribute

by Linda S. Parks and Rachael Pirner

L

eader, innovator, trailblazer. Resilient, formidable, strong.

Supportive, loyal, inspiring. Friend.

All words that describe Hon. Christel Elisabeth Trolenberg Marquardt, who passed away on March 8, 2020.

Christel became a lawyer in the non-traditional way. She had been in the work force for almost 20 years.

Honorable Christel Marquardt She was a wife and the mother of four boys.

And when those boys were at ages ranging from five to 12, she decided to go to law school. She graduated, with honors, from Washburn University School of Law in Topeka, Kansas in 1974, in the upper seven percent of her class. Of the 189 students in the class, only six were women.

On graduation from law school, Christel joined the firm of Cosgrove, Webb and Omen in Topeka. She became a partner in that firm at a time when few women achieved such success. In 1986, she left the firm and started Palmer, Marquardt and Snyder. In 1991, she joined the Kansas City firm Levy & Craig, P.C. and then formed Marquardt & Associates, LLC with her son. In 1995, she was appointed to the Kansas Court of Appeals as the third woman to be appointed to that court.

She retired in January 2013.

When Christel began her law practice in 1974, there were very few women lawyers in the Topeka legal community. Indeed, women were not generally accepted as practicing lawyers. And she was dealt some blows along the way. She was divorced not long after graduating from law school. In 1981, her son, Eric, passed away after losing his battle with cancer.

Measured against these obstacles, her professional achievements are especially significant.

Christel enjoyed her time on the Court of Appeals. Chief Justice Kay McFarland touted Christel’s opinions as “insightful, well-reasoned and masterfully crafted.” As one of three women on the thirteen-member Kansas Court of Appeals, Christel led the charge as a voice supporting women. Just two years after her appointment to the Court of Appeals, Judge Marquardt sat with the Kansas Supreme Court and dissented from the majority opinion in Heiman v. Parrish, 262 Kan. 926 (1997), which held that an engagement ring is a conditional gift given in contemplation of marriage. Judge Marquardt opined that not only is an engagement ring an irrevocable gift, but a donor who breaks the engagement should not be rewarded for breaching the marriage contract.

Christel had many passions. Her family was first and foremost. But she was devoted to her church, and she was a huge supporter of Washburn Law School. And she was a bar association junkie. She was active in the Topeka Bar Association, the Kansas Bar Association (KBA) and the American Bar Association (ABA). She took many “firsts” within these organizations, blazing the trail for other women attorneys in Kansas. In 1987, she was elected to serve as the first female president of the KBA. She was then elected to serve as a member of the ABA’s House of Delegates; she served from 1988 to 2018 as a KBA delegate, state delegate and delegate at large.

As another female “first” for Kansas, Christel also served as a member of the ABA’s Board of Governors.

It was through the KBA and the ABA that the authors of this article came to know Christel. And we also were delighted to get to know her son Joel, who accompanied her on many a bar association adventure. He was a terrific sport and Christel knew it.

At the ABA, Christel introduced us to everyone and anyone. She was widely loved and respected in that organization.

She knew all the hitters. With her help and guidance, we were able to experience the ABA by making immediate connections. She was also very nice about Randy Brown accompanying Linda to all the events. She made him feel so welcome and included, and the three of us had many dinners, and a few cocktails, together. You could always count on Christel to be direct, which sometimes was not well received. But you knew where you stood with her, which is not all that common these days.

Christel’s professional awards are plentiful, and include the KBA’s highest award—the Phil Lewis Medal of Distinction, and now her namesake award—the Christel Marquardt Trailblazer Award, an award named in her honor to recognize exceptional KBA members who break new ground, shatter glass ceilings or pave new paths for others. In 1999, the Kansas Women Attorneys Association recognized Christel’s steadfast efforts on behalf of women practitioners, making her the first awardee to receive its prestigious Attorney of Achievement Award. Washburn University School of Law has also recognized her tireless efforts on its behalf, awarding her its Distinguished Service Award in 2002 and 2004. In 2014, The American Business Women’s Association also selected her to receive the Woman of Distinction Award.

Christel was also a wise and unselfish mentor, guiding other women through the challenges of the legal profession and encouraging young women to pursue the field of law. She was a prolific speaker at many junior high and high school events and provided many words of wisdom to encourage young women, and young men, to become lawyers.

Yes, she was strong, and she will be missed.

www.ksbar.org | April 2020 51

Obituaries

Christel Elisabeth Trolenberg Marquardt (8/26/1939 – 3/8/2020) Christel (Elisabeth) Trolenberg Marquardt, age 84, passed away on March 8, 2020 after a courageous battle with cancer.

She was very thankful of the many friends who helped her through this time.

She was preceded in death by her son, Eric, in 1981. Survivors include Phil, Andrew (Jackie), and Joel (Gyalsten), and grandchildren Charlie, Ben, Grace, Sarah, Andrew, Maddie, and Tashi.

Christel was born August 26, 1935 in Chicago, Illinois. She attended a Lutheran grade school and her family later moved to a chicken farm. She worked at the horse track across from the farm peeling potatoes to make money in junior high. She attended Crete-Monee High school where she played piano, clarinet saxophone, baritone sax, flute and won several competitions. Following high school she worked at ACME steel as a secretary until she had enough money to attend Concordia Teacher’s College. After two years of teaching at a two-room schoolhouse, she married and had four boys, moving from Chicago to California to Minnesota, and finally settling in Topeka. While raising her children, she attended Missouri Western, and graduated with honors from Washburn Law School in 1974 where she was a managing editor of the Law Journal. She was later celebrated as a distinguished alum at both schools.

Following law school, she worked for Cosgrove, Webb, and Omen in Topeka, becoming a partner, and then started the law firm Palmer, Marquardt and Snyder. In 1985, she was named one of the Top Ten Business Women in America by the by American Business Women’s Association. In 1986 she became the first woman President of the Kansas Bar Associa52

The Journal of the Kansas Bar Association

tion. She continued to practice law in Topeka, but when her kids settled in Kansas City and Chicago in the early 1990s, she moved to Lenexa and started a law practice with her son Andrew. After eighteen months, she was appointed to the Kansas Court of Appeals where she served as a judge for 17 years.

Christel’s civic and community involvement and awards are too numerous to mention. Anyone that knew her understood besides her family, her passions were Washburn University, Washburn Law School, Topeka Symphony and equal rights for women. She was a Chair of the Washburn University Board of Regents and Chair of the Washburn University School of Law Board of Governors. She much enjoyed the fact that her birthday coincided with the historical date when women won the right to vote. Christel’s legacy of helping women in law and business will surely live on and be remembered for a very long time.

She was proud of her German heritage and loved doing crossword puzzles, playing Bridge (among other games later in life) and watching Jeopardy. Those who knew her could see daily her personal discipline of hard work and a drive to do her best in whatever she needed to do. As she used to say, raising children was no walk in the park. Doing so while earning top awards in law school and being a “young lawyer” in her late 30’s and early 40’s was proof of her drive and work ethic.

She will be remembered for her fierce loyalty and love for her friends and family.

Services will be at Faith Lutheran Church, Topeka, KS Saturday March 14, 2020, visitation at 9:30am, service at 11am followed by reception at Faith and private family interment at 1pm. In lieu of flowers, please make a donation to the Christel Marquardt Scholarship at Washburn Law School, Topeka Symphony, or Faith Lutheran Church.

obituaries

Nathan Daniel Leadstrom (4/20/76 - 2/26/2020) Nathan Daniel Leadstrom, 43, made his last of many inappropriate jokes he never lived long enough to regret on February 26th, 2020.

Known as “that Leadstrom kid” to those who knew his other wreck-hellion siblings, Nathan learned from an early age that troublemakers were only the ones who got caught ringing the church bells in Savonburg, Kansas rather than the instigator who, upon closer inspection, was never actually seen entering or exiting said establishment.

Despite years of successfully never attempting to talk others out of their terrible ideas, he surprised his 1994 graduating class at Marmaton Valley High School in Moran, Kansas by not only graduating with honors, but without any arrests.

That can hardly be considered surprising as flying under the radar was much easier back then before the internet, smart phones and social media stole everyone’s privacy.

He married his high school sweetheart, Traci, after two years of living in sin in Fort Scott, Kansas while he attended Fort Scott Community College (’96, Summa Cum Laude) and Pittsburg State University (’98, Summa Cum Laude) and, most importantly, graduated without any student loan debt (a feat not likely to be accomplished today without the make-someone-else-pay-for-it plan).

As special penance for his misspent youth, Nathan convinced Traci to move to Topeka, Kansas in 1998 with the sole intention of obtaining a law degree before they wanted to move back to Southeast Kansas. The fickle finger of fate intervened with the birth of their first son at the start of the second year of law school before Nathan earned his JD from Washburn University School of Law (’01, Magna Cum Laude). During law school, Nathan started as a law clerk for Goodell, Stratton, Edmonds & Palmer, LLP, established in 1881 (the oldest law firm in Topeka), where he has practiced ever since and was later elected as managing partner (’14). He went on to have three more children in his time, never leaving Topeka as once was planned.

With his family by his side, he died at The House of Midland Hospice in Topeka, Kansas after laughing at the diagnosis of stage IV pancreatic cancer – for it was not the smoking he was going to die from anyway!

Nathan is survived by his immediate family: wife, Traci (43); son, LCpl Tyler Leadstrom (20); daughter, Kayleigh (14); son, Liam (11), and their lab pointer mix Buddy (3) and fat and sassy cat Abigail (6); his siblings: sister, Carrie Smith (50); brother, Gary Leadstrom (48); sister, Melissa Meyer (45); brother, Steven Leadstrom (38); and brother, Jonathan Leadstrom (36) and more nieces and nephews than you can shake a stick at. His father, Leonard, preceded him in death, along with his precious second born son, Landon, who died in 2004.

“Loved ones, Out of all of the tough times, bumps and bruises felt along the way, I never lost my sense of humor even though it was greatly challenged in losing my son Landon and having to tell my children I was dying from pancreatic cancer. But, for every loss, there is at least three joys to celebrate and I give to my wife and children all the love, respect and humor I have still in me to carry with them through the rest of their journey. I love you all. Thank you for such a great life together. Love, Nathan” Services began with a Ji Jang Bosal Ceremony, Tuesday, March 3, 2020 at 6:00 pm, at The First Congregational Church at 17th and Collins Ave in Topeka, KS. A Memorial Service followed on Wednesday, March 4, 2020 at 10:00 am also at the church. Burial took place privately on another date. Everyone was welcome to join the family for a short reception following the Memorial Service.

In lieu of flowers the family asked that donations in Nathan’s name be made to The Ronald McDonald House Charities of Northeast Kansas. You may donate by visiting their website at https://www.rmhcneks.org/donate/ or leave in care of the Davidson Funeral Home. davidsonfuneral.com.

Donald Patterson (8/1/1924 – 2/10/2020) Donald Patterson, 95, of Topeka, passed away Monday, February 10, 2020.

He was born August 1, 1924, in College View, Nebraska, the son of Charles and Ruth (Swingle) Patterson. He graduated with his A.B. (Political Science) from the University of Nebraska in 1947 where he held Scholastic Honors with Phi Beta Kappa. He received his Juris Doctor degree from the University of Michigan in 1950.

He served with the United States Army. He served overseas for six months in the European Theatre. He was a member of a medium tank crew, serving as driver and gunner.

As a founder and senior partner for Fisher, Patterson, Sayler and Smith, he had many areas of practice: Product Liability Litigation, Drug and Medical Device Litigation, Employment and Civil Rights Litigation and Business Litigation.

He was a member of many professional activities including a member of the Kansas Bar Association, Litigator’s Master Roundtable 1990 (faculty of Kansas College of Trial Advocacy and faculty of NITA Advocacy Program), American Bar Association, Topeka Bar Association (President from 197475), Kansas Association of Defense Counsel (Charter Member, Secretary (1966-73), President (1973-74), International Association of Defense Counsel (faculty, International Association of Defense Counsel Trial, Academy, Boulder, CO (1984), Defense Research Institute (subcommittee Chairman, Currents Trends in Judicial Decisions, Product Liability Committee), American Judicature Society, member and State www.ksbar.org | April 2020 53

obituaries

Chairman, U.S. Supreme Court Historical Society (1989-91), American Arbitration Association, Fellow, American College of Trial Lawyers (1975- ), Listed in “Best Lawyers in America” (1983- )(Personal Injury Litigation), Product Liability Advisory Council (PLAC), Kansas Bench Book Committee (1975-84), Kansas Supreme Court Nominating Commission (1979-1989), and Kansas Board of Discipline Attorneys (1980-83).

Donald was a primary author of Defense Research Monograph “Expert Testimony” and The Defense Litigation. He also was the co-author of numerous books. He was the winner of the 1996 Yancey Memorial Award, IADC and winner of the first annual DRI Award for Lifetime Contribution to the Professions, DRI (1997).

He was on the board of directors for the YMCA of the Rockies in Estes Park, Colorado for over 25 years.

Donald was a member of First Presbyterian Church since 1950 serving as Elder, Trustee, Deacon and a part of the choir.

He was one of the founding members of the men’s Wednesday bible study.

He was an avid Nebraska Husker Fan his whole life. He also loved spending time with family and will be greatly missed.

Donald married Mary Verink on August 10, 1947 in Lincoln, NE, she survives. Other survivors include daughter, Nancy (Bruce) Chapman; sister, Marilyn Baer, six grandchildren; eight great-grandchildren and numerous nieces and nephews. He was preceded in death by his parents and son, Bruce Donald Patterson.

A Funeral Ceremony was held at 2:00 p.m., Monday, February 17, 2020 at the First Presbyterian Church, 817 SW Harrison St., Topeka. The family greeted friends an hour prior to service time. Private burial took place at Mount Hope Cemetery.

Memorial contributions may be made to First Presbyterian Church 817 SW Harrison St. Topeka, KS 66612, or Brewster Place 1205 SW 29th Topeka, KS 66611.

Penwell-Gabel Funeral Home assisted the family with arrangements. To leave a message for the family online, please visit www.PenwellGabelTopeka.com.

Floy Shaeffer (11/19/1947 - 2/17/2020) Floy Shaeffer (nee Lambertson), died on February 17, 2020 in Lawrence, Kansas. Floy was born on November 19, 1947, the youngest child and only daughter of Ruth and Alonzo Lambertson of Fairview, KS. Floy was a member of the Delaware Baptist Church in Fairview, and of its choir. She attended Fairview schools, graduating from FHS in 1965, and from the University of Kansas in 1969. She spent her junior year at the University of Bristol in England.

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Floy worked as an examiner for the Kansas Securities Commission from 1969 to 1972. In 1972, Floy enrolled in the KU School of Law, graduating with a JD in 1974. She was admitted to the Kansas and Illinois bars, as well as appearing in several federal courts. In 1976, after clerking for several law firms, Floy moved to Chicago and started her career with the U.S. Securities and Exchange Commission as an attorney in the enforcement section of the Chicago Regional Office.

At the SEC, she investigated violations of the federal securities laws and brought fraud and other enforcement actions in federal court and in administrative proceedings. She had a reputation for thorough preparation and effective written and oral presentations.

In 1984, Floy married Peter Shaeffer, a fellow SEC attorney who later opened a private practice in Chicago. Since 1986, they have made their home in Barrington. Floy was active in her community and her church, the Presbyterian Church of Barrington, where she served in a variety of leadership roles.

She was a proud member of the PEO, and a life-long Democrat. Floy resigned from the SEC shortly after the birth of their second son, Peter, because she wanted to be a full-time mother. And she was a wonderful one, encouraging and supporting her sons in their school and athletic activities, keeping closely in touch with them as they grew older, and remaining an integral and very important part of their lives until her death. Floy and Peter provided a loving home for her mother, Ruth Lambertson, in the final years of Ruth’s life.

Floy is survived by her devoted husband, Peter; their three sons, Bill (Anne) of Barrington, Peter (Molly) of Oak Park, Illinois, and David (Emily) of Brooklyn, N.Y.; and three grandchildren in Barrington, Will, Elizabeth, and Charlie. She is also survived by her three brothers, Bill, David and Giles; and by numerous cousins, nieces and nephews. Floy’s family and friends remember her as an exceptionally bright and talented woman, always fun to be around, selfless, and filled with empathy, generosity, and love. Her home was always open to family and friends. She could always be counted on when family or friends needed support. She was a fine lawyer, a lively conversationalist, an excellent singer (especially of duets with her father), and a wonderful host. Floy was always at the center of her extended family; indeed she was its center. She was a lovely person.

A memorial service for Floy was to be held at a later date.

Arrangements were entrusted to Davenport Family Funeral Home and Crematory, Barrington. For information, please call the funeral home at 847-381-3411 or visit www.davenportfamily.com where friends may leave an online condolence message for the family.

Appellate Decisions All opinion digests are available on the KBA website at www.ksbar.org/digests. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and communication services at info@ksbar.org or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org

Kansas State Supreme Court Attorney Discipline TWO-YEAR SUSPENSION IN RE LAUREL R. KUPKA NO. 122,053—FEBRUARY 28, 2020

FACTS: A hearing panel determined that Kupka violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law). The charges arose after Kupka expanded her law practice to include domestic cases while also taking on extra duties after other attorneys at the firm resigned. Kupka’s workload grew even heavier around the time her first child was born, and she lost administrative support. The heavy workload, combined with a lack of any support, resulted in Kupka feeling anxious and depressed. As those conditions worsened, Kupka failed to adequately represent clients. She did not file things despite saying that she did, she altered documents in an attempt to make them look file-stamped, and she falsified judge’s signatures. Kupka also failed to communicate with clients, and when she did speak with them, she lied about the status of their cases.

HEARING PANEL: Kupka self-reported her misconduct, in addition to another complaint being filed. She fully cooperated and admitted to the misconduct. The hearing panel acknowledged that Kupka engaged in dishonest conduct by cutting and pasting file stamps onto documents and forging clerk and judge signatures. But her actions were driven by an overwhelming workload, a lack of supervision or assistance, and depression. She fully admitted her misconduct and cooperated with the disciplinary process. The disciplinary administrator asked for a two-year suspension, and that the suspension be suspended after one year so that Kupka could complete a one-year term of probation. Kupka asked that she be allowed to continue practicing under the terms of a probation plan. The hearing panel, however, reiterated its position

that dishonesty cannot be corrected by probation alone. The hearing panel recommended that Kupka be suspended for two years, but that she be returned to active practice after serving six months of the suspension, with a two-year term of probation to follow.

HELD: The panel’s factual findings and conclusions of law were deemed admitted. The court agreed that a two-year suspension was the appropriate discipline. Kupka will be allowed to apply for reinstatement after completing nine months of the suspension. A minority of the court would have required a longer period of suspension before applying for reinstatement.

ORDER OF DISBARMENT IN RE BRENT E. MAYES NO. 27,058—MARCH 18, 2020

FACTS: In a letter submitted to the Clerk of the Appellate Courts, Brent E. Mayes voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was pending. Mr. Mayes self-reported violations of KRPC 1.1 (competence), 1.4(a) (communication), 1.8(e) (conflict of interest), and 8.4(c) (misconduct).

HELD: The court accepted Mr. Mayes’s surrender and he is ordered disbarred.

TWO-YEAR SUSPENSION IN RE DANIEL VINCENT SAVILLE NO. 121,050—MARCH 6, 2020

FACTS: Saville stipulated that he violated KRPC 1.7(a) (2) (conflict of interest). A hearing panel found that Saville also violated KRPC 1.8(e) (providing financial assistance to client); 3.4(c) (fairness to opposing party and counsel); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Saville engaged in a sexual relationship with a client for over eight years; during the relationship Saville took nude photographs and videos of the client. He also provided her with financial assistance. When the client was charged with a felony, Saville wrote a fee agreement which contemplated that he would represent her for free as long as she did not get back together with a boyfriend. www.ksbar.org | April 2020 55

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HEARING PANEL: The hearing panel found numerous conflicts of interest in Saville’s representation of his client.

He had a prior disciplinary history after being convicted of possession of drug paraphernalia, and there was a lengthy, on-going pattern of misconduct. The panel did acknowledge mitigating factors, including Saville’s history of drug use and emotional problems, and his cooperation with the disciplinary process. The disciplinary administrator’s office suggested discipline of a one-year suspension. Saville requested that he be allowed to continue to practice, subject to the terms of his proposed probation plan. The hearing panel believed that probation was not appropriate for the rule violations in this case. Ultimately, the hearing panel recommended a sixmonth term of suspension with the requirement that Saville undergo a reinstatement hearing before being allowed to practice again.

HELD: Because it was not properly preserved, the Court makes no finding as to whether an attorney’s payment of bail for a client is a per se violation of Rule 1.8(e). In this case, the undisputed facts show that Saville violated Rule 1.8(e). There was also sufficient evidence that Saville violated Rules 3.4(c) and 8.4(d) by speaking with a sequestered witness. After considering the recommended discipline and noting that Saville refused to accept responsibility of some of the disciplinary counts, a majority of the Court imposed discipline of a twoyear suspension from the practice of law. Saville must undergo a reinstatement hearing before returning to practice. A minority of the Court would have imposed the one-year suspension requested by the disciplinary administrator’s office.

CRIMINAL CONSTITUTIONAL LAW—CRIMINAL LAW— CRIMINAL PROCEDURE—JURY INSTRUCTIONS— PROSECUTORS—SENTENCES STATE V. BECKER FORD DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART NO. 118,235—FEBRUARY 28, 2020

FACTS: On evidence—including Becker’s confession, jury found him guilty of first-degree premeditated murder.

Sentence included a Hard 25 life prison term and lifetime postrelease supervision. On appeal, he claimed prosecutor’s comments during closing argument regarding plea deals taken by codefendants was error. Becker also claimed the district court erred in failing to instruct jury on lesser included crimes, and on voluntary intoxication. He also claimed for first time that failure to instruct on lesser included crimes violated his constitutional rights to due process and jury trial. He claimed cumulative error denied him a fair trial, and claimed the district court erred in ordering lifetime postrelease supervision.

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ISSUES: (1) Prosecutorial error; (2) jury instructions— lesser included offenses; (3) Constitutional claims; (4) jury instruction—voluntary intoxication; (5) cumulative error; (6) sentencing HELD: Prosecutor’s comments did not fall outside wide latitude afforded prosecutors, and was not an attempt to obtain a conviction in a manner that offended Becker’s right to a fair trial. Taken in context, prosecutor’s comments did not direct jury to ignore the plea agreements or to give them no weight in determining witness credibility. Instead, prosecutor was rebutting attacks in defense counsel’s closing argument regarding a codefendant’s favorable plea agreement.

District court did not commit reversible error under K.S.A. 2018 Supp. 22-3414 by failing to instruct jury on lesser included offenses of second-degree murder and voluntary manslaughter. Both instructions would have been legally appropriate. Even if error is assumed —without deciding—that a second-degree intentional murder instruction was factually appropriate, the error was harmless under facts in this case.

And no sudden quarrel factually supported an instruction for voluntary manslaughter.

Court considers Becker’s newly raised constitutional claims.

Consistent with Beck v. Alabama, 447 U.S. 625 (1980), and State v. Love, 305 Kan. 716 (2017), no merit to Becker’s claim that the lack of a lesser included alternative required jury to render an all-or-nothing verdict in violation of Becker’s due process rights. Also, based on Love and a 6th Circuit Court of Appeals case, district court did not preempt function of jury in violation of Becker’s right to a jury trial.

Under facts in this case, district court did not err in failing to instruct jury on voluntary intoxication. Evidence viewed in light most favorable to Becker establishes methamphetamine consumption but not intoxication to impair his ability to form the requisite intent. Nor did parents’ unsworn statements at sentencing hearing establish a level of impairment at time of the crime that would have warranted a voluntary intoxication instruction.

No cumulative error in trial having only one assumed harmless error.

Sentencing court’s order of lifetime postrelease supervision is vacated. District court has no authority to order a term of postrelase supervision in conjunction with an off-grid, indeterminate life sentence.

STATUTES: K.S.A. 2018 SUPP. 21-5202(H), 5402(A), -6620(C)(2)(A), 22-3414, -3414(3), -3504, 3504(1), -3601(B) (3), -3601(B)(4); K.S.A. 2015 SUPP. 21-5109(B)(1); K.S.A. 2014 SUPP. 21-5205(B); K.S.A. 60-2106(C)

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APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW— SENTENCES—STATUTES STATE V. CARTER SEDGWICK DISTRICT COURT—AFFIRMED; COURT OF APPEALS—REVERSED NO. 116,223—MARCH 6, 2020

FACTS: Carter robbed a store using a Taser. Jury convicted her of aggravated robbery. At sentencing, district court found Carter had used a dangerous weapon to commit the crime, and marked the box on the journal entry that a deadly weapon had been used to commit a person felony. Sentence included registration under the Kansas Offender Registration Act (KORA). Carter appealed her conviction and the registration requirement. Court of Appeals affirmed the conviction but reversed the registration requirement, finding Carter did not use a deadly weapon during the robbery. 55 Kan. App. 2d 511 (2018). State’s petition granted for review of the panel’s registration requirement ruling.

ISSUES: (1) Appellate jurisdiction; (2) “deadly weapon”— K.S.A. 2019 Supp. 22-4902(e)(2) HELD: Court has appellate jurisdiction over the registration issue under K.S.A. 2019 Supp. 22-3602(a).

Phrase “deadly weapon” in K.S.A. 2019 Supp. 22-4902(e) (2) is interpreted. “Deadly weapon” when used as element of a crime is distinguished from use of that phrase in a nonpunitive civil regulatory scheme. Under plain meaning of clear statutory language, substantial competent evidence supported district court’s finding that Carter used a deadly weapon in committing the robbery. No departure from majority of Court’s consistent holdings that a district judge’s deadly weapon finding under K.S.A. 2019 Supp. 22-4902(e)(2) does not constitute impermissible judicial fact-finding prohibited

by Apprendi.

DISSENT: (Rosen, J.)(joined by Beier, J.): Would hold the district court erred in ordering Carter to register under KORA. He first disagrees with majority’s underlying premise that KORA is not a sentencing statute that increases the punishment for certain convictions, and believes State v. PetersenBeard, 304 Kan. 192 (2016), was wrongly decided for reasons stated in J. Johnson’s dissent in Doe v. Thompson, 304 Kan. 291 (2016). Second, analyzing KORA as sentencing statute, district court’s sentencing pronouncement of “dangerous” weapon did not satisfy KORA, and journal entry box for “deadly” weapon had no effect. Third, a deadly weapon finding at sentencing would have violated Apprendi. And fourth, regardless of whether KORA is punitive or not, State did not produce evidence showing Tasers to be deadly. Majority’s reliance instead on “weight of growing common knowledge of Tasers’ danger” is criticized.

STATUTES: K.S.A. 2019 SUPP. 22-3602(A), -4902(E) (2); K.S.A. 2011 SUPP. 21-5420, -5420(B)(1)

CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS—STATUTES—VENUE STATE V. GALLOWAY CHEROKEE DISTRICT COURT—AFFIRMED IN PART, VACATED IN PART, REMANDED NO. 117,941—MARCH 13, 2020

FACTS: Galloway sentenced to hard 50 life sentence for conviction on charges of: premeditated first-degree murder, arson, and interference with law enforcement. Prior to trial she moved for change of venue, arguing she could not receive a fair trial due to extensive pretrial publicity and the relatively small pool of jurors. She also filed motion to suppress statements she made during interrogation, arguing her lack of sleep, low blood sugar, hunger, and pregnancy accompanied by gestational diabetes deprived her of the mental capacity to make voluntary statements. District court denied both motions,: On appeal she claimed district court erred by:: (1) denying motion for change of venue without addressing and applying all nine caselaw factors set forth in State v. Longeria, 301 Kan. 489 (2015), for assessing prejudice under the venue statute; (2) denying motion to suppress; (3) discussing with counsel and Galloway the answer to a jury question in a closed rather than open court; (4) instructing jury it should find her guilty if the facts supported such a finding; and (5) announcing it would not consider the absence of a criminal history as a mitigating factor because Legislature had rejected that as grounds for mitigation.

ISSUES: (1) Change of venue; (2) suppression of interrogation; (3) jury question; (4) jury’s duty instruction; (5) mitigating sentencing factors HELD: District court’s omission of findings with regard to some of the caselaw factors was not error. Galloway did not argue all factors to the district court, or for their application. Nor did she make a sufficient showing of prejudice for a change of venue.

Substantial competent evidence supports district court’s finding that Galloway’s statements were voluntary and made without coercion, and Galloway makes no showing warranting reversal of the denial of her motion to suppress.

No error found on Galloway’s unsubstantiated speculation that discussion of the jury question was not conducted in open court.

Galloway’s claim of impermissible interference with jury’s power of nullification is rejected. Same instruction was upheld in State v. Patterson, 311 Kan. __ (2020).

District court’s statement incorrectly stated the law, and his open refusal to consider a mitigating factor listed in K.S.A. 2019 Supp. 21-6625(a) was not harmless error. Sentence vacated and case remanded for resentencing.

STATUTES:: K.S.A. 2019 Supp. 21-6625(a),: 22-3420(d), 60-460(f), K.S.A. 22-2616, -2616(1) www.ksbar.org | April 2020 57

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APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURIES— JURY INSTRUCTION—STATUTES STATE V. GONZALEZ WYANDOTTE DISTRICT COURT—AFFIRMED NO. 119,492—MARCH 27, 2020

FACTS: Passenger (Espinoza) in car driven by Gonzalez shot and killed a man outside a bar. Gonzalez convicted of felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. During trial, district court refused to compel testimony of Espinoza who had already pleaded guilty and been sentenced for his participation. On appeal Gonzalez argued: (1) insufficient evidence supported the convictions; (2) the attempt and conspiracy convictions were multiplicitous; (3) district court’s aiding and abetting jury instruction erroneously lowered the State’s burden of proof on specific intent crimes; (4) district court erroneously permitted Espinoza to invoke Fifth Amendment privilege; (5) State’s peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence; (2) multiplicitous offenses; (3) jury instruction—aiding and abetting; (4) Fifth Amendment—failure to compel testimony, (5) Batson challenge, (6) cumulative error HELD: Evidence in this case established the pair’s intent to rob the victim and an agreement to commit aggravated robbery. Evidence included detective’s testimony, without objection, that provided a concrete context to ambiguous text messages.

District court’s instruction accurately reflected Kansas’ aiding and abetting statute, but did not accurately state applicable caselaw limiting the statute’s use when defendants are charged with aiding and abetting specific intent crimes. In this case the legal error was harmless under the clear error standard.

Multiplicity claim, raised for first time on appeal, is considered. Gonzalez’ conspiracy and the aiding and abetting attempted aggravated robbery convictions are not multiplicitous—each requires proof of an element not required by the other.

Gonzalez’ failure to make an adequate proffer of what Espinoza would have testified about provides no basis for appellate review of whether trial court abused its discretion in not compelling the testimony.

Jury selection in this case is examined. No abuse of district court’s discretion in finding Gonzalez failed to show purposeful discrimination given the State’s race-neutral reasons for its peremptory strikes.

The single error found in this case does not support application of the cumulative error doctrine.

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STATUTES: K.S.A. 2018 Supp. 21-5210, -5210(a), -5301, -5301(a), -5302(a), -5402(a)(2), -5402(c)(1)(D), -5420, 223414(3), -3601(b)(3), -3601(b)(4); K.S.A. 60-405 APPEALS—CRIMINAL LAW—CRIMINAL PROCEDURE— EVIDENCE—JURY INSTRUCTIONS STATE V. GRAY SEDGWICK DISTRICT COURT—AFFIRMED NO. 117,747—FEBRUARY 28, 2020

FACTS: Jury convicted Gray of first-degree premeditated murder, rape, and aggravated burglary. During trial, he unsuccessfully challenged district court’s admission under K.S.A. 60-455 of evidence of a previous rape. On appeal, argued for first time that under the identical offense doctrine, the district court should have sentenced him for intentional second-degree murder. Gray next argued the district court abused its discretion in finding evidence of the prior rape was more probative than prejudicial because no juror would have been able to follow the limiting instruction. Gray further claimed the district erred in failing to instruct jury on intentional second-degree murder as a lesser included offense of first-degree murder.

ISSUES: (1) Newly raised claim; (2) K.S.A. 60-455 evidence; (3) jury instruction—lesser included offense HELD: Gray’s identical offense doctrine claim is not considered. K.S.A. 2019 Supp. 21-6820(e)(3) does not support review because Gray does not challenge the classification of his crime or conviction, and no exception to the preservation rule is utilized.

Jury members are presumed to follow instructions, including limiting instructions regarding the admission and use of prior crimes evidence. Gray failed to offer any facts or legal authority to suggest otherwise.

Absence of an instruction on second-degree intentional murder as a lesser included offense of premeditated first-degree murder was not clear error. The instruction would have been legally appropriate, but even if factual appropriateness is assumed, the error was harmless in light of overwhelming evidence of premeditation.

STATUTES: K.S.A. 2019 Supp. 21-6820(e)(3), 60-455(a), -455(b), -455(d); K.S.A. 2015 Supp. 21- 5402(a)(1), -5403(a) (1); K.S.A. 60-455 CONSTITUTIONAL LAW CONSTITUTIONAL LAW— CRIMINAL PROCEDURE—EVIDENCE STATE V. SESMAS SEDGWICK DISTRICT COURT—AFFIRMED NO. 119,862—MARCH 13, 2020

FACTS: Sesmas convicted of first-degree murder, kidnapping, and aggravated interference with parental custody for

appellate decisions

the killing of her friend and the kidnapping of her friends newborn daughter. A police certified interpreter assisted Sesmas during her interrogation. On the Miranda form Sesmas indicated “no” to talking to the police, but after asking questions about her children and husband, marked “yes” on a second Miranda form and confessed to the crimes charged. At a pretrial hearing under Jackson v. Denno, 378 U.S 368 (1964), district court found Sesmas voluntarily waived her Miranda rights and concluded the confession was voluntary, notwithstanding court’s concern with the interpreter’s dual role and statement that “it could take quite a while for a lawyer to arrive from Wichita.”: On appeal Sesma argued her post-arrest confession was involuntary because law enforcement was unfair in conducting the interview and Sesmas was handicapped by her lack of English fluency,: She also claimed the State violated her due process rights at trial by mentioning her invocation on the first Miranda form of her right to remain silent.

ISSUES: (1) Voluntary confession; (2) reference to invocation of rights HELD:: Under totality of circumstances, Sesmas voluntarily confessed to detectives, and her incriminating statements were admissible at trial. Use of an interpreter who was not also an interrogator would have been better practice, but in this case the interpreter’s dual role and statement was not a factor in forcing a confession.

The state is not permitted to impeach a defendant’s version of events at trial with the defendant’s post-Miranda silence.

The fleeting violation of Doyle v. Ohio, 426 U.S. 610 (1976), this case was harmless error because Sesmas’ credibility was already throughly impeached by State’s evidence.

STATUTES: None CRIMINAL LAW—EVIDENCE—FIFTH AMENDMENT— JURY INSTRUCTIONS STATE V. PARKER WYANDOTTE DISTRICT COURT—AFFIRMED NO. 118,349—MARCH 13, 2020

FACTS:: Parker convicted of premeditated first-degree murder. On appeal, he claimed the district court should have granted motion to suppress self-incriminating statements made during interrogation because investigators failed to take sufficient steps to ensure that Parker understood his Miranda rights. He also claimed district court erred by denying Parker’s request for an instruction on voluntary manslaughter committed upon a sudden quarrel or in the heat of passion.

ISSUES:: (1) Motion to suppress; (2) jury instruction HELD:: Substantial competent evidence supported district court’s factual findings which showed Parker’s voluntary waiver of Miranda rights. Better practice for interrogators to read Miranda summary of rights out loud and make followup inquiries about whether the person being questioned understands those rights, but that protocol was not possible in

this case because Parker refused to allow detectives to explain his rights out loud. Overall tenor of the interrogation showed that Parker knew what crime he had committed and how he had done it; understood the police were trying to obtain incriminating statements from him; played a cat-and-mouse game with interrogators; and understood his rights and how the interrogation process worked. District court did not err when it admitted the interrogation statements.

In line with State v. Campbell, 308 Kan. 763 (2019), and State v. Wade, 295 Kan. 916 (20120, a voluntary manslaughter instruction would not have been factually appropriate in this case with so little evidence of heat of passion at the time of the shooting and so much evidence of calculated decisionmaking.

STATUTE: K.S.A. 2018 Supp. 21-5404(a) CRIMINAL LAW—EVIDENCE—FIFTH AMENDMENT— JURY INSTRUCTIONS STATE V. PARKER WYANDOTTE DISTRICT COURT—AFFIRMED NO. 118,349—MARCH 13, 2020

FACTS: Parker convicted of premeditated first-degree murder. On appeal, he claimed the district court should have granted motion to suppress self-incriminating statements made during interrogation because investigators failed to take sufficient steps to ensure that Parker understood his Miranda rights. He also claimed district court erred by denying Parker’s request for an instruction on voluntary manslaughter committed upon a sudden quarrel or in the heat of passion.

ISSUES: (1) Motion to suppress; (2) jury instruction HELD: Substantial competent evidence supported district court’s factual findings which showed Parker’s voluntary waiver of Miranda rights. Better practice for interrogators to read Miranda summary of rights out loud and make followup inquiries about whether the person being questioned understands those rights, but that protocol was not possible in this case because Parker refused to allow detectives to explain his rights out loud. Overall tenor of the interrogation showed that Parker knew what crime he had committed and how he had done it; understood the police were trying to obtain incriminating statements from him; played a cat-and-mouse game with interrogators; and understood his rights and how the interrogation process worked. District court did not err when it admitted the interrogation statements.

In line with State v. Campbell, 308 Kan. 763 (2019), and State v. Wade, 295 Kan. 916 (20120, a voluntary manslaughter instruction would not have been factually appropriate in this case with so little evidence of heat of passion at the time of the shooting and so much evidence of calculated decisionmaking.

STATUTE: K.S.A. 2018 Supp. 21-5404(a) www.ksbar.org | April 2020 59

appellate decisions

CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— EVIDENCE STATE V. SESMAS SEDGWICK DISTRICT COURT—AFFIRMED NO. 119,862—MARCH 13, 2020

FACTS: Sesmas convicted of first-degree murder, kidnapping, and aggravated interference with parental custody for the killing of her friend and the kidnapping of her friend’s newborn daughter. A police certified interpreter assisted Sesmas during her interrogation. On the Miranda form Sesmas indicated “no” to talking to the police, but after asking questions about her children and husband, marked “yes” on a second Miranda form and confessed to the crimes charged. At a pretrial hearing under Jackson v. Denno, 378 U.S 368 (1964), district court found Sesmas voluntarily waived her Miranda rights and concluded the confession was voluntary, notwithstanding court’s concern with the interpreter’s dual role and statement that “it could take quite a while for a lawyer to arrive from Wichita.” On appeal Sesma argued her post-arrest confession was involuntary because law enforcement was un-

fair in conducting the interview and Sesmas was handicapped by her lack of English fluency, She also claimed the State violated her due process rights at trial by mentioning her invocation on the first Miranda form of her right to remain silent.

ISSUES: (1) Voluntary confession; (2) reference to invocation of rights HELD: Under totality of circumstances, Sesmas voluntarily confessed to detectives, and her incriminating statements were admissible at trial. Use of an interpreter who was not also an interrogator would have been better practice, but in this case the interpreter’s dual role and statement was not a factor in forcing a confession.

The state is not permitted to impeach a defendant’s version of events at trial with the defendant’s post-Miranda silence.

The fleeting violation of Doyle v. Ohio, 426 U.S. 610 (1976), this case was harmless error because Sesmas’ credibility was already throughly impeached by State’s evidence.

STATUTES: None

Kansas Court of Appeals Civil MECHANIC’S LIENS IN RE LIEN AGAINST THE DISTRICT AT CITY CENTER, LLC JOHNSON DISTRICT COURT—REVERSED AND REMANDED NO. 121,184—FEBRUARY 28, 2020

FACTS: The District at City Center, LLC, hired a construction company to build a mixed-use development. The construction company hired Kansas City Steel Werx, Inc. as a steel and labor subcontractor. Change orders from KC Steel to the general contractor added approximately $25,000 to the cost of the contract. To ensure complete payment, KC Steel filed a mechanic’s lien against the development citing unpaid labor and materials of approximately $400,000. The itemizations filed with the lien included documentation but was incomplete. Instead of challenging the lien as a whole or specific items, the contractor filed a motion claiming the lien was “fraudulent” and asking the court to set it aside. Without waiting for a response, the district court granted the motion and removed the lien. KC Steel appealed.

ISSUE: (1) Ability of the district court to find that the lien was “fraudulent” HELD: A party asserting a mechanic’s lien must strictly

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comply with our mechanic’s lien statutes before that lien becomes enforceable. K.S.A. 2019 Supp. 58-4301 allows a district court to quickly review a lien’s status to determine whether it is fraudulent. Legislative history shows this statute was enacted to prevent abuses by militias and common-law groups. The quick review is intended to allow an efficient way to remove an obviously bogus lien that is being used as a tool of harassment. The district court improperly equated an invalid lien with a fraudulent one. The document filed by KC Steel is recognized by Kansas law, and the district court erred by ruling that the lien was fraudulent. The real question is whether KC Steel strictly complied with the mechanic’s lien procedures enough to create a valid lien; that is the issue that must be decided on remand.

STATUTES: K.S.A. 2019 Supp. 58-4301, -4301(a), -4301(b), -4301(c), -4301(e), -4302; K.S.A. 60-1102, -1102(a), -1103(a), -1105, -1106, -1108 WORKERS COMPENSATION AIKINS V. GATES CORPORATION WORKERS COMPENSATION APPEALS BOARD—AFFIRMED NO. 120,905—FEBRUARY 28, 2020

FACTS: Aikins was injured in a car accident while leaving work. In May 2018, an ALJ awarded Aikins compensation for her injuries. One week later, she served Gates with a demand

appellate practice reminders

for compensation based on that award. The next day, Gates filed for review with the Workers Compensation Board of Appeals. Before the Board could decide the appeal, Aikins filed a motion for penalties with the ALJ because Gates had not yet paid out her award. The ALJ held a hearing and ruled that Aikins was entitled to a penalty payment because Gates had not yet paid as required by K.S.A. 44-512a and had not obtained a stay of the judgment. Gates appealed the imposition of the penalty, arguing that compensation was not yet due so no penalty could accrue. The Board agreed, and Aikins appealed.

ISSUE: (1) Whether payment is due such that penalties could attach HELD: K.S.A. 44-512a allows claimants to apply for a civil penalty if payments are overdue. In this case, the only issue to determine is whether Aikins’s award was due. Statutes clarify that payment of an award is not due until at least 30 days after the Board hears the parties’ arguments. There is no statute which requires the employer to seek and receive a stay of judgment; a stay is only required after payment obligations have accrued. Aikins was not due any payment until after the Board ruled on Gates’s appeal, and the Board properly reversed the ALJ’s award of penalties.

STATUTES: K.S.A. 2019 Supp. 44-551, -551(l)(1), -551(l) (2)(A), -551(l)(2)(B), -551(l)(2)(C), -551(p); K.S.A. 44-512a, -512a(a) HABEAS CORPUS—MOOTNESS BURCH V. HOWARD PAWNEE DISTRICT COURT—AFFIRMED NO. 120,704—FEBRUARY 28, 2020

FACTS: Burch was committed to the Sexual Predator Treatment Program in 2002. After more than a decade in the program, Burch filed a K.S.A. 60-1501 petition which raised several concerns. Relevant to this case was his claim that the SPTP does not provide adequate treatment for securing an eventual release from the Program. The SPTP operated on a leveled system where treatment was provided in phases, and participants gained independence by completing levels. At a hearing before the district court, the evidence showed that Burch has not participated in any meaningful treatment since July 2009. Based on this lack of participation, the district court ruled that Burch failed to meet his burden to prove shocking or intolerable conduct and denied the petition. Burch appeals.

ISSUES: (1) Mootness; (2) adequacy of treatment provided in the SPTP HELD: Although the treatment system is different now from when Burch filed his petition, the changes are more style than substance and do not render this appeal moot. Because he declined treatment, Burch does not have standing to

challenge the adequacy of the SPTP. The SPTP is consistent with the statutory criteria of the Sexually Violent Predator Act and does not shock the conscience.

STATUTES: K.S.A. 2019 Supp. 59-29a06, -29a07(a), -29a08(a), -29a08(d), -29a08(f); K.S.A. 60-1501 DRIVERS LICENSE—SEARCH AND SEIZURE STRICKERT V. KANSAS DEPARTMENT OF REVENUE FINNEY DISTRICT COURT—AFFIRMED NO. 120,544—MARCH 13, 2020

FACTS: Officer Meinzer stopped Strickert after he left a bar late at night. While obtaining Strickert’s personal information, Officer Meinzer noticed the smell of alcohol and that Strickert’s eyes were bloodshot and his speech slow. After completing field sobriety tests, Strickert refused to take a preliminary breath test. Based on clues of impairment and Strickert’s refusal, Officer Meinzer arrested Strickert. He later received his notice of driver’s license suspension and timely requested an administrative hearing. Both the hearing officer and the district court affirmed the suspension of Strickert’s driver’s license, and he appealed.

ISSUES: (1) Standard of review; (2) reasonable suspicion; (3) reasonable grounds HELD: The appropriate standard is to review the district court’s order looking for substantial competent evidence that the findings were legally correct. It is not appropriate to use the “negative finding” standard of review. Strickert technically violated a traffic statute by not activating his turn signal 100 feet before turning, and the Supreme Court has already held that such failure provides reasonable suspicion to initiate a traffic stop. Strickert’s bloodshot eyes and the smell of alcohol warranted an extension of the stop. Substantial competent evidence supports the district court’s findings that reasonable grounds existed for Officer Meinzer to arrest Strickert.

STATUTES: K.S.A. 2019 Supp. 8-259(a), -1002(a)(1); K.S.A. 8-1548, 22-2402(1), 77-621(c) DIVORCE—PROPERTY DIVISION IN RE MARRIAGE OF PERALES SALINE DISTRICT COURT—AFFIRMED NO. 120,306—MARCH 27, 2020

FACTS: Gary Perales is serving a life sentence in prison.

At the time of his divorce from Cynthia Perales, Cynthia was supporting herself and the couple’s four children. Gary did not complete a property affidavit, but he has been imprisoned since 2012. The district court held a hearing to consider separation of the couple’s property. At the hearing, Cynthia provided a quitclaim deed showing that Gary had deeded the house to her and testified that she needed Gary’s truck to transport herself and their children. Cynthia also testified that she made payments on both the house and truck after www.ksbar.org | April 2020 61

appellate practice reminders

Gary’s imprisonment. Gary disputed Cynthia’s testimony about the quitclaim deed and claimed that he sold both the house and his truck to his sister. After weighing the evidence, the district court ruled that it would be most equitable to award Cynthia both the house and the truck. Gary appealed.

ISSUES: (1) Award of the house; (2) requirement that Cynthia compensate Gary HELD: There is no evidence that the district court failed to consider the home as marital property subject to division.

To the contrary, the district court appropriately considered the factors established by K.S.A. 2019 Supp. 23-2802(c). A division of marital property need only be equitable, not equal.

There is a statutory requirement that property division may be accomplished by the payment of a “just and proper sum” to one party. In some cases, equity may allow that sum to be zero. The extraordinary facts of this case mean the district court’s award of assets to Cynthia was equitable.

STATUTE: K.S.A. 2019 Supp. 23-2801, -2802(a)(1), -2802(a)(2), -2802(c)

CRIMINAL APPEALS—CRIMINAL LAW—CRIMINAL PROCEDURE— EVIDENCE—JURY INSTRUCTIONS—STATUTES STATE V. HAYES SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,417—MARCH 6, 2020

FACTS: While dark, Hayes used phone to film neighbor A.W. through her window in a state of undress. Jury convicted Hayes of breach of privacy. On appeal he claimed:: (1) insufficient evidence supported the conviction, arguing A.W. did not have a reasonable expectation of privacy because her blinds were not closed, and the phone he used to record A.W. was not concealed; (2) district court erred in admitting evidence of a receipt that Hayes had purchased a spywatch; (3) because he admitted he recorded A.W., identity was not a material fact thus district court erred in admitting testimony of other neighbors that Hayes had been looking in their windows; (4) verdict form erroneously placed “guilty” before “not guilty; (5) district court erred by instructing jury that you “should” find the defendant guilty if you have no reasonable doubt; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Breach of privacy; (2) evidence—watch receipt; (3) evidence - prior bad acts; (4) verdict form; (5) jury nullification; (6) cumulative error HELD: Kansas courts have not addressed the phrase “reasonable expectation of privacy” as used in K.S.A. 2019 Supp.

21-6101(a)(6). Fourth Amendment is distinguished from right to privacy. Fact-specific two pronged test is applied, finding 62

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sufficient evidence for jury to conclude that A.W. had a reasonable expectation of privacy in her bedroom even though the window blinds were up. Also, Hayes was concealed when he recorded A.W., thus the phone he used was concealed as well. Statute does not require any additional concealment of the recording device.

District court did not erroneously admit evidence that Hayes bought a recording device designed to be unobtrusive.

Hayes failed to preserve this issue for appeal, but even if preserved, the purchase of a watch that secretly records people was relevant to whether Hayes secretly recorded A.W.: And even if issue had been properly preserved and even if receipt was not relevant, admission of the watch receipt was harmless.

District court did not erroneously admit prior bad acts evidence. The evidence was admissible to show identity because at time of the rulings Hayes had not admitted that he was the one recording A.W. Following established Kansas Supreme Court holdings, district court did not err by placing “guilty” above “not guilty” on the verdict form.

District court did not err in using PIK instruction to instruct jury that “[i]f you have no reasonable doubt…, you should find the defendant guilty.”: There can be no cumulative error in case with at most one error that was found to be harmless.

STATUTES: K.S.A. 2019 Supp. 21-5222(a), -6101, -6101(a) (6), 60-261, -455; K.S.A. 2014 Supp. 21-6101(a)(6); K.S.A. 2012 Supp. 21-6101(a)(3); K.S.A. 60-401(b), -404 CRIMINAL LAW—CRIMINAL PROCEDURE—RESTITUTION—SENTENCES—STATUTES STATE V. HENRY SEDGWICK DISTRICT COURT—AFFIRMED NO. 119,895—FEBRUARY 28, 2020

FACTS: Henry was charged and convicted on one count of felony theft for stealing money from store deposits on 12 different occasions while employed as armored truck driver.

District court imposed 60 months’ probation and ordered payment of $78,315 in restitution. On appeal Henry claimed insufficient evidence supported his conviction because the single larceny doctrine did not apply to thefts that occurred on 12 separate occasions and each of the individual takings failed to meet the $25,000 threshold of the felony theft charged. He also argued the restitution plan was unworkable because it would take over 43 years to complete, making a multidecade term of probation per se unreasonable.

ISSUES: (1) Single larceny doctrine; (2) restitution HELD: Henry’s theft conviction is affirmed. The single larceny doctrine is a rule of evidence and may be invoked

appellate practice reminders

whenever the facts warrant it. Disagreement stated with legal conclusion in State v. Ameen, 27 Kan.App.2d 181, rev. denied 269 Kan. 934 (2000). The doctrine is not only limited to instances where multiple misdemeanor takings are charged as a single felony but also permits multiple instances of felony takings to be charged as a single higher severity level felony. On evidence in this case, Henry should have been charged in the alternative with a lower severity level theft for each separate taking, and the jury should have been instructed in the alternative on the single larceny doctrine and the elements of each lesser theft for each taking separately, but Henry waived or abandoned any claims of error concerning the charging document or instructions. Sufficient evidence supported the key factual determination that Henry’s acts arose out of a single incriminating impulse or plan.

District court imposed a workable restitution plan. Henry admitted the monthly payments are workable, and K.S.A. 2019 Supp. 21-6608(c)(7) explicitly allows for a term of probation to be extended indefinitely to secure payment of restitution.

STATUTES: K.S.A. 2019 Supp. 21-6604(b)(1), -6608(c) (7); K.S.A. 2016 Supp. 21-5801(a)(1), -5801(b)(2), -5801(b) (3), -5801(b)(4) CRIMINAL LAW—STATUTES STATE V. LUCAS SEDGWICK DISTRICT COURT—AFFIRMED NO. 120,510—MARCH 27, 2020

FACTS: Lucas convicted of being a felon in criminal possession of a “firearm or knife,” K.S.A. 2017 Supp. 216304(c) (2). The weapon in this case was a folding knife 9 inches long when unfolded, 5.5. inches long when closed, with a 4.5 in. blade. Lucas argued the folding knife was not a “knife” as defined by K.S.A. 2017 Supp. 21-6304(c)(1).

ISSUE: Statutory definition of “knife” HELD: District court did not err in concluding the folding knife in this case is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp.

21-6304(c)(1).

STATUTE: K.S.A. 2017 Supp. 21-6304, -6304(a)(2), -6304(c)(1), -6304(c)(2)

pealed. State argued the appeal was not timely filed within 30 days of district court’s ruling.

ISSUES: (1) Appellate jurisdiction; (2) district court’s jurisdiction; (3) postconviction discovery HELD: State’s jurisdictional hurdle is rejected. District court entered its order electronically, with no record in district court’s file that court clerk mailed a copy of the order to Mundo-Parra. After that order had been entered MundoParra made several requests for a court ruling on his discovery request, and filed his notice of appeal well within 30 days of district court’s denial of Mondo-Parra’s last request for a ruling.

District court had jurisdiction to consider Mundo-Parra’s request for postconviction discovery, even though there was no pending motion in the criminal case and no pending civil action challenging his confinement. There is no Kansas statute governing postconviction discovery, and no statutory limit on district court’s general jurisdiction over it.

No provision in Kansas Code of Criminal Procedure covers postconviction discovery. Kansas cases are reviewed and guidance sought from rules and statutes in federal and state jurisdictions. Panel concludes postconviction discovery sought by the defendant should be allowed when the defendant shows it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. Mundo-Parra made no such showing in this case. Instead, his request is a classic fishing expedition with no stated connection to any claim that could lead to setting aside either his no-contest pleas or his convictions.

STATUTES: K.S.A. 2019 Supp. 21-2512, 22-3210(d)(2), -3212, -3213, 60-1507, -2103(a); K.S.A. 20-301

APPEALS—CRIMINAL PROCEDURE—DISCOVERY— EVIDENCE—JURISDICTION STATE V. MUNDO-PARRA SEDGWICK DISTRICT COURT—AFFIRMED NO. 118,875—MARCH 27, 2020

FACTS: Mundo-Parra convicted in 2005 on no contest pleas to kidnapping and rape. In 2017 while still serving his sentence, he asked prosecutors to provide State’s investigatory files in the case, including anything that might show his innocence. District court denied the request. Mundo-Parra ap

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Classified Advertisements

Positions Available Attorney Position Available. Arn, Mullins, Unruh, Kuhn & Wilson LLP, established Wichita law firm seeks associate and/ or lateral hire. Minimum two (2) years’ experience in Civil, Family, Litigation and General Practice. Attractive benefits, including health insurance, 401(k), disability/life insurance. Please forward resume, introductory letter and writing sample(s) to: Kris J. Kuhn (kkuhn@arnmullins.com).

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Office Space Available Manhattan Office Space for Rent. Located in the Colony Square office building in downtown Manhattan. One minute from the Riley County Courthouse. The available space consists of two offices and an area for a secretary/paralegal. Large reception area and kitchen. High speed internet. Open to either office sharing or “Of Counsel” arrangement. For more information, all 785-5399300 or email to office@jrlclaw.com Office Space Available on Ward Parkway in south Kansas City, Missouri. This is a great location for attorneys licensed in MO & KS. Large suite with 12 offices with two conferences rooms. There are 3 available offices. Full services provided, including phones answered, internet, supplies, and copier. Contact Kevin Hoop at 816-5199600 or khoop@kevinhooplaw.com.

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Our office is a great source of referrals for a family or criminal attorney as we only practice immigration. Please reply to: erika.juradograham@gmail.com.

WYCO Office Suite Available at 134 N. Nettleton, Bonner Springs, KS 66012.

1100-2000 sf. Waiting area, receptionist area, break room, conference room, large and small offices, private parking, ADA Accessible. 1.25/sf/mo. Utilities included. For more information, call (913) 422-1620.

Other Due to retirement, will sell complete set of Kansas Reports and Kansas Appellate Reports. Price negotiable. Will deliver in KC area. Call 620-215-0236 or email: danielfmeara2@gmail.com One of a kind walnut 4x8 conference table/desk/Board of Directors table. Four drawers each side and embossed leather top.

Priced to sell $575 by retiring lawyer. Topeka location. 785.766.2084.

Retiring due to injuries. I have a complete set of Kansas Reports and Kansas Appellate Reports—$1000 OBO. Will deliver in the Topeka area. Contact Robert E. Keeshan, Esq., Topeka, KS (785) 554-6187.

REBEIN BROTHERS W YY EE R TT R R II AA LL LL AA W R SS

I am handling serious injury cases across the state, many of which come from other lawyers. I appreciate your confidence and friendship and would be happy to discuss any truck, car or significant injury case. Let’s work together, I pay referral fees where appropriate.

DAVID REBEIN

Kansas Trial Lawyer

www.ksbar.org | April 2020 67

(620) 339 - 4105 • www.rbr3.com • dave@rbr3.com

A TRADITION OF SUCCESS

Scott E. Nutter Matthew E. Birch Lynn R. Johnson

816-474-0004 www.sjblaw.com

Victor A. Bergman

David R. Morantz

OUR EXPERIENCE PAYS We have a long history of success inside and outside

2600 Grand Boulevard, Suite 550 Kansas City, MO 64108

the courtroom. For over 40 years, we have maximized the value of cases referred to our firm and we will continue to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.

The choice of a lawyer is an important decision and should not be based solely on advertisements.