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PRSRT STD US POSTAGE PAID LINCOLN, NE PERMIT NO. 220

Parenting Time & Shared Residential Custody: Ten Common Myths Dr. Linda Nielsen

Nebraska State Bar Association 635 South 14th Street P.O. Box 81809 Lincoln, NE 68501-1809

Innocent in Prison? Yes, Even in Nebraska Tracy Hightower-Henne

Coaches’ Corner - A Lawyer’s Winter - Part 4 of 4

Susan Ann Koenig


The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • January/February 2013 • Vol. 16 No. 1

Features

3 5

..................................... Marsha

9 13

by Kim Yesis

23 Professional Responsibility Latin 101

by Dennis G. Carlson

25 Coaches’ Corner Copy Celebrating the Seasons of Our Life: A Lawyer’s Winter

Linda Nielsen

Innocent in Prison? Yes, Even in Nebraska ............................... Tracy

E. Fangmeyer

Parenting Time & Shared Residential Custody: Ten Common Myths ................................................. Dr.

21 Practice Tip Practice Efficiency Speaks to Clients

Getting to Know You

Marsha E. Fangmeyer

Departments

by Susan Ann Koenig

28 NSBA Calendar 29 Court News

Hightower-Henne

Winter Reading Section

30 Legal Community News

Judicial Memoirs

32 NSBA News

........................................... Thomas

E. Simmons

34 NCLE Calendar

Business and Commercial Litigation in the Federal Courts

35 Transitions

..... Andre

37 In Memoriam

R. Barry & Megan S. Wright

The Lawyer’s Lawyer ....................................................Kathryn

40 Classified Ads

Bellman

41 Legal Marketplace

www.nebar.com The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A bi-monthly publication, The Nebraska Lawyer is published for the purpose of educating and informing Nebraska lawyers about current issues and concerns relating to their practice of law. THE NEBRASKA LAWYER

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Nebraska State Bar Association 635 South 14th St., Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 • www.nebar.com

EXECUTIVE COUNCIL

President: Marsha E. Fangmeyer, Kearney President-Elect: G. Michael Fenner, Omaha President-Elect Designate: Amie C. Martinez, Lincoln House of Delegates Chair: Steven F. Mattoon, Sidney House of Delegates Chair-Elect: Joel M. Carney, Omaha House of Delegates Chair-Elect Designate: Timothy R. Engler, Lincoln Past President: Warren R. Whitted Jr., Omaha Past House of Delegates Chair: James E. Gordon, Lincoln First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: J. Scott Paul, Omaha Third District Rep.: Todd B. Vetter, Norfolk Fourth District Rep.: Jill Robb Ackerman, Omaha Fifth District Rep.: Michael R. Dunn, Falls City Sixth District Rep.: Michael J. McCarthy, North Platte

ABA State Delegate: Supreme Court Liaison:

Robert M. Hillis, Fremont Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Executive Director:

Andrea D. Miller, Scottsbluff Jane L. Schoenike, Lincoln

issue editor James C. Bocott is a graduate of the University of Nebraska College of Law and is a principal of the Law Office of James C. Bocott, PC LLO. James practices in the areas of: Debtor/Creditor Bankruptcy; Civil Litigation; Personal Injury; Workers Compensation; and Domestic Relations matters. James is a member of the Nebraska Association of Trial Attorneys and the National Association of Consumer Bankruptcy Attorneys.

James C. Bocott

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Thomas F. Ackley, Omaha Kelly L. Anders, Omaha James C. Bocott, North Platte M. Therese Bollerup, Omaha Elizabeth S. Borchers, Omaha Thalia L. Downing Carroll, Omaha Kent E. Endacott, Lincoln Christopher M. Ferdico, Lincoln Vanessa J. Gorden, Lincoln Joseph W. Grant, Omaha Carla Heathershaw Risko, Omaha Andrea M. Jahn, Omaha Jeanelle R. Lust, Lincoln

Sandra L. Maass, Omaha Amie C. Martinez, Lincoln Michael W. Meister, Scottsbluff Gregory B. Minter, Omaha Luke H. Paladino, Omaha David J. Partsch, Nebraska City Edward F. Pohren, Omaha Kathleen Koenig Rockey, Norfolk Monte L Schatz, Omaha Ronald J. Sedlacek, Lincoln Colleen E. Timm, Omaha Joseph C. Vitek, Houston, TX

Executive Council Liaison: G. Michael Fenner, Omaha Executive Editor: Kathryn A. Bellman kbellman@nebar.com Layout and Design: Sarah Ludvik sludvik@nebar.com Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934 ADVERTISING SALES: Sam Clinch NSBA 635 S. 14th Street Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125 Fax: (402) 475-7098 sclinch@nebar.com www.nebar.com CLASSIFIED ADVERTISING: Sarah Ludvik Nebraska State Bar Association (402) 475-7091, ext. 138 • sludvik@nebar.com

THE NEBRASKA LAWYER

The Nebraska Lawyer The Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine.

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president’s page

Getting to Know You

Marsha E. Fangmeyer

Several years ago I decided to pursue the goal of my partner, Jim Knapp. He was on track to become President of the Nebraska State Bar Association in 1989. Unfortunately, he became ill and died before he was able to take office. The President-Elect, Judge Lyle Strom had to quickly step in and at that time did so without any backup, because we did not have the office of President-Elect Designate at the time. We do now. Creating the position was a wise decision, for it gives us “budding presidents” a chance to learn about the role of the president and grow into the office. Jim Knapp was an avid supporter of the NSBA and insisted that everyone in the law firm become involved in some way. He pushed us to serve on a committee, join a section, participate in pro bono activities and always attend the Annual Meeting. I was an easy one to convince. When I joined the firm of Knapp, Mues, Beavers and Luther in 1985, I was already involved with the NSBA. I was especially involved with the Women and the Law Section, which was created in 1982, with lots of encouragement from Past President and my hero, Robert Spire. Many of you have thanked me for my willingness to serve as NSBA President. However, many have also asked, in all sincerity, “Why?” For me it seemed to be the right next step in my involvement with the NSBA, but why become involved in the first place? My hope during the next year, through this President’s page, will be to answer the question, “Why?” First, and in general, there are great benefits to becoming active in the NSBA. I have found great personal satisfaction, learning and professional development. There is also the opportunity to create great friendships. We have all heard hundreds of lawyer jokes. Lawyers THE NEBRASKA LAWYER

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are not at the top of the most trusted profession list, though lawyers are also not at the bottom of that list. I happen to like lawyers. We come from all walks of life and have a myriad of different interests, both personally and professionally. Involvement with the NSBA provides a chance to get out of your own little practice bubble and listen and learn from other lawyers in other areas of practice. Involvement with the NSBA leads to an opportunity to have input into certain areas of law. Serving on a committee or becoming involved with a Section, writing an article for the magazine or teaching a seminar has impact on our profession. It has impact on what the legislature does or what the Supreme Court decides is an appropriate rule. For instance, I have learned that one of the most active groups in our organization is the Real Estate, Probate and Trust Law Section. This section, currently chaired by Andrew Loudon, has a long history of providing programming for its members and for the wider bar. The description of this Section states: “It provides a common forum for exchanging ideas. It promotes and provides continuing education in the field of real estate, probate and trust law and fosters excellence professionalism in the practice. The Section monitors, reviews and recommends legislation in these areas of the law and informs and educates Section numbers with respect to new developments and ethical considerations. The Section also educates the general public on various real estate, probate and trust law issues.” At the annual meeting in October of 2012, I attended the Section’s meeting. A major topic of discussion was the Guardianship/Conservatorship process. The Section discussed

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president’s page and made recommendations to be included in the NSBA vetting of legislation. Certain members of this Section including Bill Lindsay, Tom Maul, Susan Spahn, Lisa Line and others (my apologies for leaving out your names) have worked hard to review the current rules and provide input to the Legislative Committee, Executive Council and House of Delegates. As a result of their interest and efforts, a group of us were able to meet with Chief Justice Heavican, Judge Susan Bazis and members of the Court staff to discuss some changes that could be made immediately through Court Rules. Several meetings provided a forum for discussing long term study and possible changes through Court Rules or legislation. This has been a cooperative effort between the NSBA and the Supreme Court. I want to thank all of those who have been involved. Potential long term changes will come through the Court’s establishment of the Supreme Court Commission on Guardianships and Conservatorships. The commission will be comprised of lawyers, Judges, guardians/conservators, accountants, representatives from HHS (such as Adult Protective Services) Legislators, parents, those work with the elderly and those who work with persons with developmental disabilities. The work of this Commission will likely begin in January 2013. The commission will continue the work of the Supreme Court Task Force on adult guardianships which was appointed in 2010. I think I speak for those of us who met with the Court when we say we look forward to continuing this work together. This is just one example of the power of involvement with the NSBA.

Reading Notes I am an avid reader, and so expect me to occasionally share my thoughts on something I have read. I recently picked up a book by Harold Baer Jr. entitled Judges Under Fire, Human Rights, Independent Judges and the Rule of Law. The author’s goal is to illustrate what can happen when the judiciary is stripped of its independence and prevented from following the Rule of Law. The book includes chapters entitled “The People’s Court in Nazi Germany;” “The Bench and The Bar in the Peoples Republic of China;” “Destabilized Pakistan’s Independent Judiciary;” and A Serbian Judge Fights For The Rule of Law.” The author also brings the issue home to the United States in a chapter entitled “The Face of an Independent Judiciary.” Judge Baer describes the destabilization of Pakistan’s independent judiciary and the ongoing struggle existing there. In this country we tend to take for granted the independence of our judiciary. Many people do not bother to vote for or against retention or automatically vote NO. The NO VOTE is a “knee jerk” reaction, a kind of “throw the bums out” reaction. However, sometimes it is based upon one particular decision highly offensive to what is usually a small group of people. We have seen this happen in Nebraska and most recently saw it THE NEBRASKA LAWYER

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happen in Iowa. In Pakistan it was not just a small group of people attacking one Judge or one Court. The Rule of Law and the independent judiciary was attacked by those in power, such as General Perez Musharraf. For instance, in October of 1999, then President Musharraf issued a provisional constitutional order which barred the courts of Pakistan not only from challenging the constitutionality of an executive action but from issuing any order against the President or anyone in his administration. Musharraf also used his emergency power to demand that Judges swear a loyalty oath to him and his provisional constitution. Judges who refused were deemed to be unqualified to sit on the bench and were forced out of office. Judges were put under house arrest. The Judges and the public fought back. Musharraf was forced out of office in part due to the activist Judges and the public who supported them. But it was not and is not easy. The Judiciary’s resistance to Musharraf’s plans was not universally popular and went against the interests of the people in power. As Judge Baer states: “Paradoxically, hope for the Rule of Law in Pakistan lies in the fact that Pakistani Judges are managing to offend every political party and continually find themselves in the unenviable position of government pariahs. The Judges garnering the most criticism are often the ones that refuse to play political games and insist on following the Rule of Law in their Courtrooms” (pp. 77-78). I trust we will never see the day when Judges are put under house arrest or are expected to swear an oath to the President or Governor. But we do see challenges to the independence of the judiciary with the successful efforts to unseat Judges based on just one decision or the label of “activist Judge” thrown out by any politician who doesn’t like a decision. So we, as lawyers, and as the unified Bar, must continue our role watch dogs of the Rule of Law and guardians of an independent Judiciary.

Personal Notes My thank you to all of my friends and colleagues who have said to me “put me on a committee and tell me what I can do to help.” I thank you for your support. If you have not been placed on a committee, you probably will be. I invite anyone who is interested in serving to please step up to the plate, give me a call, send me an e-mail and tell me how you would like to be involved. I especially send this invitation to younger members of the Bar, whether or not they have participated in a leadership academy. We lawyers are not shy and should not wait to be asked. Give me a call.

Marsha E. Fangmeyer, President Phone: (308) 236-6441 • Fax: (308) 234-3747 E-Mail: mefangmeyer@frontiernet.net j an u ary / f ebr u ary 2 0 1 3


feature article

Parenting Time & Shared Residential Custody: Ten Common Myths by Dr. Linda Nielsen

What is the best parenting plan for most children of divorce? Should infants and toddlers spend overnight time with their nonresidential parent? If not, why not? If so, how much time? Is shared residential custody better for children than living with one parent and varying amounts of time living with their other parent – mainly on weekends? Isn’t shared residential custody only successful for a small group of well educated, higher income parents who have very cooperative, conflict free relationships – and who mutually agree to share without mediation, litigation or lawyers’ negotiations? Since most married mothers do 80% of the childcare, after a divorce shouldn’t the children live that same proportion of time with her?

Dr. Linda Nielsen Dr. Linda Nielsen has been a Professor of Adolescent & Educational Psychology at Wake Forest University in Winston Salem, NC for 36 years. She is the author of five books and dozens of peer reviewed journal articles. Her areas of expertise are shared residential parenting for children of divorce and father-daughter relationships. Her reviews of 30 years of research on shared residential custody have been presented at the Association of Conciliation and Family Courts national conference and the Midwestern Family Law Conference, and published in the American Journal of Family Law and the Journal of Divorce and Remarriage. She is frequently called upon to provide summaries of this research to legislators in America and abroad. THE NEBRASKA LAWYER

Questions such as these generate a great deal of debate among the judiciary, policy makers and mental health professionals. Unfortunately they also generate myths and misconceptions that are frequently presented as “the research” at conferences and seminars, on the web, or in non-academic articles. At best, these myths far over-reach and exaggerate the findings from only a few of the existing studies. At worst, they have virtually no grounding whatsoever in current research. Either way, misconceptions that are not grounded on a broad spectrum of recent, methodologically sound, statistically significant empirical data have an impact on custody decisions and custody laws. By empirical data I mean research studies where quantitative data has been statistically analyzed and published in peer reviewed academic journals – in contrast to articles where opinions or theories are being presented, often without benefit of peer review. Regrettably we social scientists have done a poor job sharing the empirical research with other professionals or with divorcing parents. As a result, a handful of studies – often outdated or seriously flawed methodologically - are widely disseminated as “the research”. In that spirit, this abbreviated overview presents recent research that refutes ten of the most common beliefs related to child custody. It is better for the children if parenting time is allocated according to the amount of time each parent spent in childcare during the marriage. Since most married mothers do at least 80% of the childcare, the parenting time should be allocated accordingly. This perspective, referred to as the approximation rule, is not based on empirical research. This is a debatable opinion - a controversial point of view that has been widely discussed in peer reviewed journals. A full discussion of this debate is provided in Richard Warshak’s article in the Baltimore Law Review 1. Several facts must be kept in regard

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Parenting time to the approximation proposal. First, most married couples are more equally sharing the parenting time. Employed fathers spend roughly 60 minutes on weekdays with the children while employed moms spend 90 minutes. This would be the equivalent of 120 overnights with a father after divorce.2* Fathers under the age of 30 do only 45 minutes less childcare on workdays than mothers do. In two national surveys with 2000 parents, dads spent 33 hours a week with the children and mothers spent 50. Children under the age of 6 require 3 times as much parenting time as older children. And whichever parent gets home from work first or works the fewest hours generally does more of the childcare. The more time the mother works outside the home, the more time the father spends with the children. But the mothers who are most likely to stay home full time with preschoolers are the most poorly educated women who could not earn enough, if working, to pay for child care. Second, married parents’ arrangements for their young children are temporary – they are not intended, as are custody orders, to remain in place until the children turn 18. Third, childcare hours are not synonymous with parenting. The fact that one parent spends more time with the children does not mean that the other parent is doing less parenting or that his or her daily presence is any less beneficial and essential. Infants and toddlers have one primary “attachment figure” to whom they bond more strongly and at an earlier age than they do with their other parent. Given this, they should not be separated from their primary parent for long periods of time –especially not to spend overnight time with their father, except on rare occasion for short periods of time. The prevailing view among most contemporary attachment researchers and child development experts is that there is not one “primary” attachment figure. Instead, infants form strong attachments to both parents and at roughly the same time. Whatever initial preferences infants might have for one parent disappears by 18 months of age. This is not to say that all researchers agree on this point. Nevertheless, recent empirical research is undermining the traditional beliefs about primary and secondary parents – the belief that an infant’s relationship with the mother is more vital than with the fathers.3, 4* Most infants and toddlers become more irritable or show other signs of maladjustment when they spend overnight time with their fathers. Given this, there should be little or no overnighting for infants and toddlers. There are only seven studies that have assessed overnighting and non-overnighting infants and preschoolers. None of them found statistically significant differences in irritability or other measures of maladjustment related to overnighting per se. Given the confusion and debate on this issue, it is worth providing more details of these studies. Four studies were conducted 15 to 21 years ago. The first assessed 25 one to five year olds who lived half time with THE NEBRASKA LAWYER

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each parent. At the end of one year, those children whose behavior and developmental progress had gotten worse were the ones who had violent, alcoholic, inattentive, or otherwise very dysfunctional parents. The researchers also noted: “The most surprising find was that children below the age of three were able to handle the many transitions in their overnight joint custody arrangements.”5 The second study included 25 children under the age of two and 120 ages two to five when their parents separated. Four years later, those who had lived 30% time with their fathers were better off on all measures of emotional, psychological and behavioral well-being. Moreover 40% of those who had not spent overnight time before the age of three with their fathers no longer had any contact with him – a loss that occurred for only 1.5% of the overnighting children.6 The third study compared infants 12 to 20 months old: those who spent any overnight time with their fathers, those who spent none, and those who lived with married parents. The infants were classified as having a secure, avoidant, ambivalent or disorganized attachment to their mother. A year later 85% of them were assessed again. Regardless of family type, the less securely attached infants had mothers who were unresponsive to their needs. And there were no significant differences in attachment classifications between those who overnighted and those who did not.7 The fourth study included 18 three to five year olds. At the end of two years, those who had lived with their fathers ten days a month were more well adjusted emotionally and no different on social or behavioral adjustment. Moreover, the number living this often with their fathers increased from 25% to 38% over the two years.8 Two studies have been conducted more recently. Interestingly, the one that was not peer reviewed or published in an academic journal before being released by the Australian government has generated considerable attention among mental health practitioners, the legal profession and policy makers. Indeed, it is widely cited as evidence that overnighting is bad for young children.9 The limitations of this report have been enumerated by a number of internationally renowned researchers.10* For example, the sample sizes in several groups were very small and the vast majority of parents had never been married to each other. Leaving aside its limitations, for children from infancy to age five, there were very few differences between those who never overnighted and those who overnighted. The mean scores were similar on measures of irritability, global health, monitoring their mother, negative response to strangers, developmental concerns, behavioral problems, emotional functioning and persistence. The four to five years olds who overnighted more than nine nights a month had more attention deficit disorders according the their mothers. But this may very well be linked more to gender than to overnighting. That is, boys were more likely than girls to be overnighting frequently – and boys in the general population are more likely than girls to have attention deficit disorders.11 j an u ary / f ebr u ary 2 0 1 3


Parenting time The most methodologically sound study at Yale University is part of an ongoing project. This study assessed 132 children ages two to six whose divorced and never married parents had separated. Of these, 31% spent one overnight a week with their fathers, 44% more than one and 25% none. For the two to four years olds, the overnighters were no different from nonovernighters in respect to sleep problems, anxiety, aggression or social withdrawal. They were, however, less persistent in completing tasks. According to their fathers, but not their mothers, the overnighters were more irritable. Overall then, the differences were small. For the four to six year olds, however, the overnighters had fewer problems than the other children – especially the girls. As the researchers conclude “Overnights did not benefit or cause distress to the toddlers and benefited the 4 to 6 year olds” (p. 135).12 The final study assessed 24 children ages one to six who overnighted an average of eight nights a month. Almost 55% were classified as having an insecure attachment to their mother, which is higher than the average of 33% in the general population. Age when the overnights began and parent conflict were not related to the classifications, but mothers’ attentiveness or inattentiveness were.13 Taken together, these seven studies do not support the assertion that overnighting has a negative impact on infants or preschoolers. Most children want to live with only one parent and to have only one home. Shared residential parenting is not worth the hassle, according to most children. The vast majority of children who lived with their mothers after their parents’ divorce disliked having so little time with their fathers.14* In contrast, the vast majority who have lived in shared residential parenting families say the inconvenience of living in two homes was worth it – primarily because they were able to maintain strong relationships with both parents.15* When there is high verbal conflict between the parents, children do better when their time with their father is limited. Because more time with their father increases parents’ conflicts, children in shared residential custody are more often caught in the middle of conflicts. With the exception of an ongoing pattern of physical conflict or violence, the vast majority of studies do not support these beliefs.16-18* In married and in divorced families, parent conflict is generally related to worse outcomes for the children. However, in regard to custody and conflict, three findings stand out. First, conflict generally remains higher in sole than in shared custody families – especially if the residential parenting time is not shared. Second, most children are not exposed to more conflict or put in the middle more often in shared parenting families. Third, most children in shared residential custody and those who see their fathers frequently are better off on measures of well-being even when their parents have ongoing conflict. In other words, maintaining strong relationships with both parents helps THE NEBRASKA LAWYER

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diminish the negative impact of the parents’ conflicts. The amount of conflict should be a primary factor when deciding how to allocate the parenting time. Unless there is a history of physical abuse or violence, for the reasons just presented, high verbal conflict should not be used as a reason to limit parenting time. Not only can much of this conflict be reduced through parenting programs, but the conflict generally declines by the end of the first year or so after separation. Especially during custody negotiations, conflict is not a reliable predictor of future conflict. Moreover, verbal conflict is associated with fewer negative outcomes for children than having too little fathering time.19, 20* Both parents have to mutually agree to share the residential parenting, otherwise these families will fail. Shared parenting agreements fail if they result from mediation, litigation or legal negotiations. It only succeeds for a small, self-selected group who are very cooperative and have little or no conflict. In the studies that have examined how parents arrived at their shared residential parenting plan, from 20% - 85% of the parents had not initially wanted to share. For many families where the children were successfully living in two homes, the shared parenting plan was a compromise brought about through mediation, litigation, or lawyers’ negotiations.21* Most shared residential families fail. The children end up living with one parent anyway. Measured anywhere from 2 to 4 years after divorce, 65%-90% of these families were still sharing the residential custody.22* The quality of children’s relationships with their fathers is not related to how much time they spend together after the divorce. Fathering time, especially time that is not limited mainly to weekends or to other small parcels of time, is closely associated with the quality and the endurance of the fatherchildren relationship. This kind of fathering time is highly correlated with positive outcomes for children of divorce.23, 24* In considering the large body of recent empirical research that refutes these ten myths, it is worth remembering that people can always find some study that will support each of these beliefs. Some may be based on very old data. Others are methodologically unsound. Sometimes differences that are not statistically significant are reported as “a trend”, or “a difference” or “suggestive of”. To be sure, all studies have certain limitations, including those cited in this review. But by using the social science search engines at university libraries to find the recent peer reviewed articles in academic journals, we maximize our chances of finding the general consensus among the most respected researchers. By sharing more of this research with legislators, mental health workers, judges and lawyers, children and their divorced parents will be better served.

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Parenting time * This article is based on 64 articles published in peer reviewed journals. Given the constraints of space, fewer than a third of these references are listed in this article. Please email me for the complete list of references. Linda Nielsen, Wake Forest University, nielsen@ wfu.edu, www.wfu.edu/~nielsen

Endnotes Warshak, R. (2011) Parenting by the clock: The best interst of the child standard and the approximation rule. Baltimore Law Review 41, 85-163.

13

Altenhofen, S., Sutherland, K., and Biringen, Z. (2010) Families experiencing divorce: Age at onset of overnight stays as predictors of child attachment. Journal of Divorce and Remarriage 51, 141-156.

14

Kelly, J. (2012) Risk and protective factors for children of divorce. In Parenting plan evaluations: Applied research for the family court (Kuehnle, K., and Drozd, L., Eds.) pp 145-173, Oxford University Press, New York.

15

Nielsen, L. (2013) Shared Residential Custody: A recent research review. American Journal of Family Law (forthcoming issue).

16

Lamb, M., and Kelly, J. (2009) Improving the quality of parent child contact in separating families with infants and young children. In The scientific basis of child custody decisions (Levy, R., kraus, L., and Levy, J., Eds.) pp 187-214, John Wiley & Sons, Hoboken, NJ.

17

Deutsch, R., and Pruett, M. (2009) Child adjustment and high conflict divorce. In The scientific basis of child custody decisions (Levy, R., kraus, L., and Levy, J., Eds.) pp 353-375, Wiley, New York.

18

Johnston, J., Roseby, V., and Kuehnle, K. In the name of the child: Understanding and helping children of conflicted and violent divorce (2009) Springer, New York.

19

Lamb, M. (2012) Critical analysis of research on parenting plans and children’s well-being. In Parenting plan evaluations: Applied research for the family court (Kuehnle, K., and Drozd, L., Eds.) pp 214-246, Oxford University Press, New York.

20

Birnbaum, R., and Bala, N. (2010) Toward the differentiation of high conflict families: An analysis of social science research and Canadian case law. Family Court Review 48, 403-416.

21

Nielsen, L. (2011) Shared parenting after divorce: A review of shared residential parenting research. Journal of Divorce and Remarriage 52, 586-609.

22

Melli, M., and Brown, P. (2008) Exploring a new family formthe shared time family. International Journal of Law, Policy and Family 22, 231-269.

23

Amato, P., and Dorius, C. (2012) Fathers, children and divorce. In The Role of the Father in Child Development (Lamb, M., Ed.) pp 177-201, John Wiley & Sons, New York.

24

Aquilino, W. (2010) Noncustodial father child relationship from adolescence into young adulthood. Journal of Marriage and Family 68, 929-945.

1

Bianchi, S., Robinson, J., and Milkie, M. Changing rythyms of the American family (2006) Sage, New York.

2

Special issue on attachment and divorce (July, 2012). Family Court Review.

3

Newland, L., Freeman, H., and Coyle, D. Emerging Topics on Father Attachment (2011) Routledge, New York.

4

McKinnon, R., and Wallerstein, J. (1987) Joint custody and the preschool child. Conciliation Courts Review 25, 39-47.

5

Maccoby, E., and Mnookin, R. Dividing the child (1992) Harvard University Press, Cambridge, Mass.

6

Solomon, J., and George, L. (1999) The effects on attachment of overnight visitation on divorced and separated families: A longitudinal follow up. In Attachment Disorganization in Atypical Populations (Solomon, J. G. L., Ed.) pp 243-264, Guilford, New York.

7

Kline, M., Tschann, J., Johnston, J., and Wallerstein, J. (1989) Children’s adjustment in joint and sole physical custody families. Developmental Psychology 25, 430-438.

8

McIntosh, J., Smyth, B., Kelaher, M., and Wells, Y. L. C. (2010) Post separation parenting arrangements: outcomes for infants and children. Australian Government, Sydney, Australia.

9

Parkinson, P., and Cashmore, J. (2011) Parenting arrangements for young children: Messages for research. Australian Journal of Family Law 25, 236-257.

10

Kerns, S., and Prinz, R. (2012) Coparenting children with attention deficit disorders and disruptive behavior disorders. In Parenting plan evaluations: applied research for the family court (Kuehnle, K., and Drozd, L., Eds.) pp 330-369.

11

Pruett, M., Ebling, R., and Insabella, G. (2004) Critical aspects of parenting plans for young children. Family Court Review 42, 39-59.

12

If you are aware of anyone within the Nebraska legal community (lawyers, law office personnel, judges, courthouse employees or law students) who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury, the NSBA’s SOLACE Program can likely assist that person in some meaningful way. Contact Mike Kinney at mkinney@ctagd.com and/or Jane Schoenike at jschoenike@nebar.com. We have a statewide and beyond network of generous Nebraska attorneys willing to get involved. We do not solicit cash, but can assist with contributions of clothing, housing, transportation, medical community contacts, and a myriad of other possible solutions through the thousands of contacts available to us through the NSBA and its membership. THE NEBRASKA LAWYER

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feature article

Innocent in Prison? Yes, Even in Nebraska by Tracy Hightower-Henne

As of October 15, 2012, there have been 300 postconviction DNA exonerations in the United States. These stories are becoming more familiar as more innocent people gain their freedom through post-conviction testing. They are not proof, however, that our system is righting itself. The common themes that run through these cases—from underlying problems like poverty and racial issues to criminal justice issues like eyewitness misidentification, invalid or improper forensic science, overzealous police and prosecutors and unequal defense counsel—cannot be ignored and continue to plague our criminal defense system. Of those national statistics, Nebraska is the state with the largest single set of exonerations in one case. The Beatrice Six were proven innocent by DNA testing and all were fully pardoned in 2009. Just recently, Gage County District Court Judge Daniel E. Bryan, Jr. awarded James Dean $300,000 and JoAnn Taylor $500,000 for the approximately 25 combined years spent in prison for a crime they did not commit. The

Tracy Hightower-Henne Tracy Hightower-Henne is on the Nebraska Innocence Project Board of Directors and currently represents two of the Project’s clients in District Court and the Court of Appeals. She is partner of Hightower-Reff Law in Omaha practicing in the areas of family law and criminal defense with Partner Susan Reff. THE NEBRASKA LAWYER

Attorney General’s office apparently intends to appeal this judgment. Joseph White was awarded $500,000 in 2010 and Thomas Winslow settled his case. The Nebraska Innocence Project reviews individual cases of Nebraska prisoners while advocating for legislative reform to prevent future wrongful convictions. Protecting and supporting those who have been proven innocent and released from prison is also part of our work. We receive approximately 2-4 requests for help per month from people who are currently incarcerated. We have four active cases pending in court. All the screening and in-court representation is done by volunteers—we have no paid staff. We do not charge inmates for our services, and we pay for the DNA testing through the donations we receive. You can join us in our efforts to ensure reform to protect the innocent. We need volunteer attorneys willing to review case files to identify meritorious issues. Here is the roadmap of how our daily work is done: almost every case starts with a letter from a prisoner or the inmate’s family. A screening team from Nebraska Innocence Project studies the information provided by the inmate in order to determine first and foremost whether this is a DNA case. If there is testable DNA evidence, we complete our investigation by reviewing the court documents, which is the role most needing qualified volunteer help. At this time, Nebraska Innocence Project is limiting representation to DNA cases. We recognize there are other examples of innocent people who have been convicted and exonerated without DNA, but as a fledgling non-profit without any paid staff, we had to start somewhere. When the review is complete, we may either provide direct representation with a volunteer attorney who files a motion

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innocent in prison? for DNA testing, or assist the inmate in filing his or her own motion. When the DNA motion is granted, Nebraska statute provides for an attorney from the Public Advocacy Commission to be appointed and take over the case. If the motion is denied, we appeal for the inmate. Volunteer assistance is needed even to review those requests from inmates where there is no DNA testable evidence. While we cannot yet take non-DNA cases, there are some sister organizations which meritorious cases could be referred to if

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our volunteers identify the case is worthy of review. When you went to law school, you knew you had to pay the bills. But you also wanted to save the world, and volunteering with the Nebraska Innocence Project is one of the most direct, satisfying ways to do so. If you’d like to sign up as a case review volunteer, please visit our website at www. nebraskainnocenceproject.org or email the volunteers directly at neinnocenceproject@gmail.com

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At the end of the day...

Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you?

YES

NO

Does your firm’s 401(k) feature no out-of-pocket fees? Does your firm’s 401(k) include professional investment fiduciary services? Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors? If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email joinus@abaretirement.com to learn how we keep a close watch over your 401(k).

The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, by visiting the website of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Nebraska State Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C12-0201-010 (2/12)

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THE NEBRASKA LAWYER

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j an u ary / f ebr u ary 2 0 1 3


winter reading section

Judicial Memoirs Ipse Dixit: How the World Looks to a Federal Judge, by Hon. William L. Dwyer Called to Justice: The Life of a Federal Trial Judge, by Hon. Warren K. Urbom

Review by Thomas E. Simmons

Lawyers and the drama of the courtroom are popular subjects in print and film. But the decision-maker at the heart of these narratives is seldom examined.1 The judge’s perspective is largely absent in our stories about trials. Lawyers and their clients are the protagonists in the dozens of television series (Law and Order, L.A. Law, Ally McBeal, The Practice, Boston Legal, Harvey Birdman, Murdock, Perry Mason – with only the partial exception of Night Court and the actual exception of Judging Amy), in the score of movies (Devil’s Advocate, My Cousin Vinny, And Justice for All, Erin Brockovich, Kramer vs. Kramer, A Few Good Men, Inherit the Wind, Judgment at Nuremberg, Miracle on 34th Street, To Kill a Mockingbird), and in the hundreds of paperbacks lining the shelves (including nearly all of the books by John Grisham and Scott Turow). Judges may be characters in a courtroom narrative, but we seldom see a trial from their point of view. Nebraska Judge Warren Urbom’s judicial memoirs, “Called to Justice: The Life of a Federal Trial Judge”2, published last

Thomas E. Simmons Thomas E. Simmons is an attorney with the Rapid City, South Dakota law firm of Gunderson, Palmer, Nelson & Ashmore, LLP. He is a member of the Nebraska Bar, lived in Nebraska from 1968-1971, and also attended the University of Nebraska at Lincoln as an undergraduate. He clerked for the late Andrew W. Bogue, senior federal district judge, who is mentioned repeatedly in Judge Urbom’s book. THE NEBRASKA LAWYER

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year, joins a smattering of books written by judges3 about the challenges of the robe and the bench, one of the more recent being “Ipse Dixit: How the World Looks to a Federal Judge”4 by the late Judge William Dwyer who presided over the federal district court in Washington State. Judge Urbom’s memoirs are accessible to both lawyers and nonlawyers and provide an insight into the excitement, troubles, and rewards of a judge’s life. Judge Urbom’s book is bracketed by two tragedies, the first when he was shot with a BB gun, losing the sight in his left eye as a young boy, the second when Judge Urbom, then age 80, caused a car accident at the intersection of 13th and J streets in Lincoln, resulting in the tragic death of a motorcyclist (probably caused, in part, by the Judge’s limited vision from his childhood accident). In between these tragic bookends, an Arapahoe, Nebraska boy grows up, considers seminary, chooses law school, marries, becomes a respected Lincoln trial attorney, and, as a judge, oversees a number of cases, many of which would be familiar to any law student’s study of constitutional law such as Marsh v. Chambers 5 (on the constitutionality of a legislative opening prayer) and several high profile abortion cases.6 Once appointed to the federal bench in Lincoln by President Nixon, Judge Urbom implements several innovations. His surprising creativity appears in the narrative upon his federal appointment. He parses the solemn declaration of intention that opened the court: All rise! The United States District Judge for the District of Nebraska. Hear ye, Hear ye! The United States District Court for the District of Nebraska is now open, pursuant to adjournment. God save the United States and this honorable court.7

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judicial memoirs He observes: First, the words introduced a judge, but not by name. “Even with the words, it must have been apparent that the person facing the other people, wearing a black robe, and standing on a raised dais was probably the judge.”8 The words didn’t seem to say anything that wasn’t already obvious. Second, what did “pursuant to adjournment mean?” Since pursuant means “because of” or “in pursuit of”, it could mean “’The court is open because it was closed’ or ‘The court is open so it can be closed.’ Surely the court was here for a better reason than either of those,” he opines. Finally, the plea that “God save the United States and this honorable court” was earnestly asking for protection, but “What I found lacking was any sign of interest by the court in anything but the safety of itself and the United States.”9 Since Judge Urbom concluded that the opening declaration failed to articulate why the attorneys, the witnesses, and the parties were in his courtroom, he instructed his bailiff to instead call out: “The United States District Court for the State of Nebraska is now in session. May all who come find justice in this place.”10 The reworked declaration, like “Called to Justice” itself, is straightforward, with a simple prairie elegance about it. *

*

*

The centerpiece of both Judge Urbom’s career as a federal district judge and of his book is unquestionably the Wounded Knee trials in the early 1970s. The trials originated out of the occupation of the village of Wounded Knee, South Dakota by some one hundred activists for seventy-one days. During the occupation, gunfire was exchanged with federal Marshals, three Native Americans were killed and one U.S. Marshall was shot and permanently disabled. Numerous complex and interconnected prosecutions resulted, stretching the capacity of the neighboring South Dakota federal trial courts. Judge Urbom was asked to assist. “I could have avoided it, I suppose, but I didn’t see it coming, and when I did see it, I was already deeply involved. I accepted the invitation with the expectation that I’d spend a week trying Native Americans. I stayed a year.”11 “Called to Justice” strikes a tone rare among memoirs, offering self-examination without handwringing. Judge Urbom’s writing is clear and straightforward – like, the reader senses, the man himself. Except for a single rather awkward use of in media res where the chronology of the Judge’s wrestling with a motion to dismiss in the Wounded Knee trials is interposed to open the book on a dramatic note then concluded halfway through, the sequencing of events is brisk and matter-of-fact from birth to the Judge today, at age 88. Judge Urbom’s orderly prose may lack the luxurious polish with which readers of the memoirs of Winston Churchill or Frank McCourt are familiar, but it communicates, in the THE NEBRASKA LAWYER

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course of the book, recollections and insights that ring true. There’s no boasting, and no shirking from difficult episodes. Judge Urbom doesn’t omit his shortcomings - reversals by the Eighth Circuit Court of Appeals, being short-tempered with a lawyer, or his tragic car accident in 2006. The reader grows to trust the man as writer, as, the reader suspects, his courtroom litigants have as a judge. Judge Urbom observes: To a trial judge a courtroom is like a honeycomb to a bee or an inferno to a firefighter or a sanctuary to a preacher. There is an instant challenge, an invitation, a dare, an opportunity for doing good things. It is a temple where justice can live.12

A similar passage from Judge Dwyer’s book of speeches echoes this sentiment and reminds us that our courtrooms are so much more than a popular setting for television dramas: Litigation is one sign of the robustness of American Society – of our sense that legal rights are real, that each of us is an individual, that justice can be received by the weak against the strong. And it is important to remember that a civil trial is not just a matter of deciding who owes what to whom. It is also a kind of ritual and a way of restoring peace and reconciling conflicting values.13

Judge Urbom faced the crisis of whether his courtroom would actually be respected as a “temple where justice can live” during the Wounded Knee trials. Beyond the everyday difficulties of managing a courtroom and making fair rulings, he was confronted with the challenge of somehow bringing criminal defendants and courtroom observers to believe that the federal district court was, in fact, a place that deserved their respect. One Wounded Knee criminal defendant explained to the Judge that she and other Native Americans in the courtroom did not intend to stand when the bailiff commanded all to rise. The Judge, clearly not a victim of his own ego, responded he didn’t know why people were expected to stand when a judge entered a courtroom, but guessed that it suggested “we are all in this together, and each one of us wants to get what we call justice.”14 But, the Judge said, if it meant something different to her, she could stay seated. He then instructed the bailiff to leave out the words “all rise” when opening the court. A deputy federal marshal questioned Judge Urbom’s flexibility on something as fundamental and time-honored15 as standing when the Judge appears. When asked where he intended to draw the line, the Judge responded, “Whenever what they do keep us from having a fair trial. Not before. And not standing up isn’t keeping us from having a fair trial.”16 Later, the Judge also allowed Native American witnesses to take the oath on the sacred pipe, to testify in Lakota (even though fluent in English), and for a prayer service preceding j an u ary / f ebr u ary 2 0 1 3


judicial memoirs the opening of court. “These accommodations,” he observed, “were afforded as appropriate to the societal background of the requesting defendants.”17 When the second Wounded Knee trial began, a noise erupted when Judge Urbom entered the courtroom. The entire audience was standing. A defense lawyer asked one of the Native American leaders what had happened and was told, “We just decided this man was entitled to our standing when he came into the court.”18 By contrast, South Dakota state court Judge Joseph Bottum19 had serious trouble overseeing prosecutions just down the street from Judge Urbom’s temporary federal courtroom in Sioux Falls. Judge Bottum was overseeing trials there arising out of the Custer Courthouse riots involving Native Americans occurring a few months before the Wounded Knee occupation. At the beginning of the trial, Native American defendants refused to rise. Judge Bottum had them carried out of the courtroom and ordered the court closed for one week. When court reopened, the defendants again refused to stand. Judge Bottum brought in a SWAT team. Fighting, broken windows, and injuries resulted. Judge Urbom and his staff were put on alert when it seemed that Native Americans were headed down the street in the direction of the nearby federal courthouse, but calm prevailed.

Almost chillingly, the Judge recalls touring a federal prison where the warden boasted: “We know how to make a good prisoner.” But then, “We don’t know the first thing about making a good citizen.”24 Judge Dwyer shares this skepticism about the effectiveness of lengthier mandated prison time. The Guidelines, he notes, “take away the discretion that a sentencing judge needs to exercise in order to do justice.”25 Judge Dwyer characterizes the Guidelines as “a step backward toward more primitive notions of justice, based on rigid categories of offense and retribution, such as those found in the Code of Hammurabi of about 1800 B.C.”26 Judicial memoirs such as these are too rare. Whatever the reason for the near-total absence of judicial focal points in our popular culture, Judge Urbom’s inspiring memoirs and Judge Dwyer’s clever speeches refute any argument that the judge’s perspective lacks drama or emotional content.

Endnotes But see the film “12 Angry Men” (1957) starring Henry Fonda and its worthy 1997 remake which examine the drama of a jury’s decision-making.

1

Warren K. Urbom, Called to Justice: The Life of a Federal Trial Judge (Lincoln: University of Nebraska Press, 2012).

2

Other recent books about federal judges by the judges themselves include Frederic Block, Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge (New York: Thomson Reuters Westlaw, 2012); John Paul Stevens, Five Chiefs: A Supreme Court Memoir (Boston: Little, Brown and Company, 2011); Frank Morey Coffin, The Ways of a Judge: Reflections from the Federal Appellate Bench (Boston: Houghton Mifflin, 1980). Also recommended is Polly J. Price, Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench (New York: Prometheus Books, 2009).

3

Judge Urbom recalled his own “no standing” incident and felt satisfied with its outcome, especially in contrast to the violence Judge Bottum had witnessed. “But,” Judge Urbom notes, “uneasiness remained, and my staff and I were relieved to be returning to Lincoln for the weekend.”20 *

*

Judge Dwyer’s “Ipse Dixit” is perhaps an unfair point of comparison to Judge Urbom’s wonderful book, comprising n ot an autobiography, but a set of writings published posthumously, collected from his speeches from 1978 to 2002. “Ipse Dixit” is humorous, witty, and entertaining. There’s little sense of the man or the challenges in the life of a federal judge. But Judge Dwyer does offer his views on the functionality of the judiciary, Voltaire, Lincoln, and Federal Sentencing Guidelines, which were first introduced in the 1980s.21 Judge Urbom’s memoirs examine his own views on the Federal Sentencing Guidelines and the considerations that underpin a fair criminal sentence. He discusses the different theories and objectives in handing down a sentence: “deterrence, incapacitation, just punishment, and rehabilitation.”22 He points out that although the Guidelines were intended to codify existing sentencing practices, for a crime committed one day after the Guidelines’ effective date, the prison sentence more than doubled. “The boost has the feel of a PR scam,” he writes.23 THE NEBRASKA LAWYER

Warren L. Dwyer, Ipse Dixit: How the World Looks to a Federal Judge (Seattle: University of Washington Press, 2007) (hereinafter, Dwyer). Judge Dwyer is also the author of “The Goldmark Case” and “In the Hands of the People.” William L. Dwyer, The Goldmark Case: An American Libel Trial (Seattle: University of Washington Press, 1984); William L. Dwyer, In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy (New York: Thomas Dunne Books, St. Martin’s Press, 2002).

4

*

15

Marsh v. Chambers, 453 U.S., 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (reversing the Eighth Circuit decision and reinstating Judge Urbom’s opinion upholding the unicameral legislative’s opening prayer, although Judge Urbom had also held that public payment of the chaplain who recited the prayer violated the Establishment Clause, a holding not adopted by the Supreme Court).

5

E.g., Thornburn v. Austin, 39 F.Supp.2d 1199 (D.Neb. 1999) (abortion protesters’ Free Speech rights) (subsequent history omitted); Stenberg v. Carhart, 11 F.Supp.2d 1022 (D.Neb. 1998) (partial birth abortion ban) (subsequent history omitted); Women’s Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb. 1979) (48-hour waiting period requirement for abortions) (subsequent history omitted).

6

Urbom, supra note ii at 96.

7

Id.

8

Id. at 97.

9

10

Id.

➡ j an u ary / f ebr u ary 2 0 1 3


judicial memoirs Id. at 128.

19

In 1962, Joseph H. Bottum, South Dakota’s lieutenant governor, was appointed by Governor Archie M. Gubbrud to the United States Senate to fill the vacancy caused by the death of Francis H. Case. A few months later, Bottum was a candidate for election to a full term in the Senate, but was defeated by George S. McGovern (who also defeated Archie Gubbrud in 1968). Later, Bottum served as a circuit judge of Seventh Judicial Circuit, Rapid City, South Dakota.

20

Urbom, supra note ii at 142.

21

The United States Supreme Court later ruled that the mandatory commands of the Federal Sentencing Guidelines are unconstitutional under the Sixth Amendment. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

22

Urbom, supra note ii at 250-51.

23

Id. at 246.

24

Id. at 248.

Urbom, supra note ii at 133.

25

Dwyer, supra note iv at 119.

Id. at 179.

26

Id. The Code of Hammurabi consisted of 282 laws with scaled punishments.

11

Id. at 190.

12

Dwyer, supra note iv at 121.

13

Urbom, supra note ii at 133.

14

An analogy might be drawn to the Marsh v. Chambers case. See supra note v. Although the Supreme Court was willing to allow public funds to be used to pay the legislative chaplain essentially because it had such long-standing historical precedent (which may be questionable reasoning for a First Amendment case), Judge Urbom was not. He had concluded that the First Amendment’s Establishment Clause took precedence over history, much like he concluded that simply because observers and parties had historically risen respectfully upon the Judge entering the courtroom didn’t mean justice could not be delivered in its absence. In Judge Urbom’s worldview, it seems, the law and the aims of the courtroom prevail over custom and habit.

15

16 17

Id. at 146.

18

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Client- Nebraska Lawyer 2010


winter reading section

Business and Commercial Litigation in the Federal Courts, Third Edition by Robert L. Haig

Review by Andre R. Barry and Megan S. Wright

“The life of the law has not been logic; it has been experience.” — Oliver Wendell Holmes Countless treatises and research tools explain the law as stated and applied in courts, but most leave practical judgment to the reader. These publications are often rich in logic but rarely contribute the lessons of personal experience. In this sense, Business and Commercial Litigation in Federal Courts stands apart. With a foundation of thorough treatment of procedure in federal courts and substance in commercial litigation, BCL builds on its authors’ centuries of combined experience to explain both the practical and strategic components of the issues facing commercial litigants every day. First published in 1998 with a second edition out in 2005, BCL has become a leading treatise in business and commercial

Andre R. Barry

Contents: Process and Substance Within its eleven volumes, BCL combines a detailed treatment of federal procedure with a look at the substantive issues arising in business and commercial law. Not only does BCL provide a comprehensive view of relevant law, the authors then fill in the gaps the law does not directly address with experience.

Megan S. Wright

Andre R. Barry’s trial practice with Cline Williams Wright Johnson & Oldfather, LLP includes complex commercial, intellectual property, insurance, securities, agribusiness and commodities litigation and arbitration, including FINRA arbitrations. In addition, he has provided representation on water law and environmental and regulatory matters. He also represents clients in connection with professional complaints and investigations. He is admitted to practice in Nebraska and Illinois and is a graduate of Harvard Law THE NEBRASKA LAWYER

law. Now in its third edition, BCL is the result of the combined efforts of 22 federal judges and 251 distinguished commercial litigators, not to mention the contributions of its editor-inchief, Robert J. Haig, who also assembled the first two editions. This expanded edition adds 34 new chapters and substantially expands the pre-existing 96 chapters, thereby keeping current on the major and emerging issues in commercial litigation.

Megan S. Wright’s practice with Cline Williams Wright Johnson & Oldfather, LLP focuses on complex commercial cases, securities, energy, trademark and intellectual property disputes. Megan has also represented clients in real estate disputes, including eminent domain and partition proceedings and cases involving internet defamation. She is admitted to practice in Nebraska and Iowa and received her J.D. from the University of Iowa with high distinction. 17

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BCL The first five volumes of BCL delve into federal civil procedure, walking logically through the chronological progression of a case, first examining jurisdiction and pretrial matters, then discovery and the trial itself, and finally covering post-trial issues like collection of judgment and appeals. Here, BCL expands beyond just the process in federal courts, including several chapters on alternative dispute resolution and the inter-relationship of state and federal courts. The authors do not confine the discussion to traditional legal practices, but extend their reach to the technological realities of modern litigation. In Chapter 61, for example, BCL provides an overview of litigation technologies, discussing topics such as electronic filing; digitized document storage and review; evidence generated or modified by computers; technologies in brief writing; and the ethical considerations involved in using these technologies. In its last six volumes, BCL addresses multiple substantive areas frequently encountered by commercial litigators, including securities and broker-dealer issues and regulations; banking and credit; insurance; intellectual property; sales contracts and their related warranties and tort issues; white collar criminal law and its interplay with civil commercial litigation; employment; and construction and commercial real estate. The authors added new chapters on emerging or growing areas of the law, such as immigration; reinsurance; sports and entertainment; licensing; and information technologies. In all, BCL devotes 63 chapters to addressing substantive issues, providing a head start to commercial litigators beginning their research in a new case. BCL is not comprehensive in the sense that it can replace thorough independent research. But the best lawyering views specific questions with a perspective of larger themes. By focusing on business and commercial litigation but working broadly within that area, BCL enables readers to see how related topics tie together, how making one argument may affect another, and gives its readers a sense of the bigger picture as they continue more pointed research.

What Sets BCL Apart: Practical and Strategic Content Where BCL really distinguishes itself is by utilizing the personal experiences of its 273 contributing authors. Strategic and practical considerations feature prominently throughout the chapters. Each of BCL’s chapters elaborates to some extent on pertinent strategic considerations, and many chapters devote entire sections to these issues. In the chapter on derivatives, for example, BCL includes eleven sections on strategic considerations regarding issues like forum selection, the sophistication of parties, and the use of motion practice in derivatives actions. Each chapter also includes practical tools for dealing with the legal issues discussed therein. In “Practice Aids” sections throughout the series, the authors have included THE NEBRASKA LAWYER

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issue checklists, model jury instructions, and document forms. Several chapters of the series are almost entirely devoted to strategic or practical issues in commercial litigation. In three successive chapters—“Investigation of the Case,” “Internal Investigations,” and “Case Evaluations”—the authors lay out considerations and techniques for pre-filing investigation, and for evaluating and planning a case. BCL provides practical advice for planning and beginning the litigation process, and (just as important) for determining when not to litigate. Similarly, BCL offers sections on communicating recommendations to clients or potential clients so as to temper their expectations and explain the recommendations in a way they can appreciate. Indeed, these techniques serve both in-house and outside counsel. BCL’s discussions of these issues give guidance to attorneys inexperienced in commercial litigation but also may lend new ideas to those who have spent many years in the field. In another volume, BCL includes several chapters on dealing with the litigation itself, including: “Litigation Avoidance and Prevention,” “Crisis Management,” “Techniques for Expediting and Streamlining Litigation,” “Litigation Management by Law Firms,” and “Litigation Management by Corporations.” As is evident from their titles, these chapters again aid both in-house and outside counsel with reducing costs and making litigation more efficient and effective. Most of these chapters appeared in previous editions of BCL, so the authors have fine-tuned and modernized the techniques described in former editions. A new chapter, “Crisis Management,” provides advice for situations where people need it most. When facing environmental disasters, large-scale products liability issues, and personal scandals, the stakes may be high and public relations are often sensitive. These are situations for which few can easily prepare, and for which experience is invaluable. BCL offers solid, practical, objective advice for dealing with clients, customers, interviews, and communications. In addition to these chapters, the series also includes practical chapters on dealing with overlapping federal and state litigation; maintaining civility; addressing pro bono work; and techniques for argument and presentation in trial. BCL is not just about business and commercial law but also about how to practice business and commercial law.

Conclusion The third edition of BCL expands upon the work of its predecessors, offering an effective guide to the substantive, procedural, and practical aspects of commercial litigation. Whether for experienced or inexperienced attorneys, whether for in-house or outside counsel, BCL is an invaluable resource to any attorney involved in commercial litigation. j an u ary / f ebr u ary 2 0 1 3


winter reading section

The Lawyer’s Lawyer

by James Sheehan Review by Kathryn Bellman

Jack Tobin, the main character of The Mayor of Lexington Avenue and The Law of Second Chances returns in this legal thriller novel that combines complex plot twists with some of the realistic and exciting coutroom drama. Tobin is a retired trial lawyer who once had a large insurance defense practice. He is known as the “lawyer’s lawyer” -- the one lawyer who the best lawyers say they’d want to have represent them in a courtroom battle. After leaving his practice, he volunteers for an organization called Exoneration, that provides representation for convicts it believes to be innocent. (The description of the organization sounds a little like the well-known Innocence Project.) The story is set in a fictional city called Oakville, home of the University of North Florida (actually located in Jacksonville). As a part of his volunteer commitment, Tobin undertakes the representation of a convicted murderer who may also be a serial killer, but who Tobin is persuaded might be innocent. When he undertakes to obtain a new trial or even the release of the prisoner, the Chief of Police is outraged, the citizens of Oakville where the murders occurred, erupt, and the State Attorney is out for blood as Jack challenges the criminal justice system once again. Sheehan weaves stories of love and friendship into one man’s uncompromising search for truth within the four corners of a courtroom where it is often spoken about but seldom seen. Jack is in a fight for his life and the outcome is in doubt right up to the turn of the final page. The plot takes many

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twists and turns and in the final scenes Jack himself is on trial. Some memorable characters include Danni, a retired homicide detective and Jack’s best friend and investigator, Henry Wilson, who served seventeen years for a murder he didn’t commit. Also memorable is Tom Wylie, who represents Jack Tobin at the climax of the novel, and who might be termed, “the lawyer’s lawyer’s lawyer.” A trial lawyer himself, James Sheehan is also a top-notch thriller writer. His courtroom knowledge adds a layer of realism to a plot full of twists and turns. He is an adjunct faculty member at Stetson University College of Law. James A. Sheehan is an alumnus of Stetson University College of Law, having graduated with honors in 1977. Since that time, he has been in private practice in the Tampa Bay area. James Sheehan began his legal career with the City of Tampa where he served as an assistant city attorney from 1977-1981. After that, he was an insurance defense litigator for a couple of years before going to work doing general litigation for his old boss, Warren Cason, the former city attorney of the City of Tampa. In 1984, he started his own firm and has been a sole practitioner ever since, doing a variety of civil litigation, administrative law and appellate work in both state and federal courts. Several years ago, he began a second career as a fiction writer. He has published two legal thrillers, The Mayor of Lexington Avenue and The Law of Second Chances, both featuring Jack Tobin.

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practice tip

Practice Efficiency Speaks to Clients by Kim Yesis

Lawyers need not look far, particularly since the economic downturn, to find an article advocating the advantages of law firm cost reduction. There is intrinsic value in trimming fat, but clients have provided a second motivation. Businesses tightening their own belts are naturally expecting law firms to share the pain. In response, law firms hoping to retain a competitive edge are taking measure of their operations and looking for ways to demonstrate their responsiveness to client concerns about legal expenses. The legal industry as a whole has spent the last several years implementing significant reductions in force and otherwise curbing expenses. That clients want a share in this savings is not unexpected, but that clients expect savings without a degradation of service is a particular challenge for law firms. To maintain quality and responsiveness with diminished resources, law firms need to sharpen their self-assessment tools and carve below the surface. It is not surprising, in this climate, that “process” is a buzz word in law firm cost containment. Some law firm consultants

advocate the tenets of a 1980’s Motorola manufacturing process efficiency strategy known as Six Sigma, and its companion, Lean Six Sigma. Together, these strategies emphasize organizational commitment to value, quality, streamlined processes, elimination of waste and regular measurement of production. While some lawyers have difficulty conceiving how manufacturing strategy can be adapted to a professional service environment, others embrace the concept fully. The Seyfarth Shaw firm, for example, has published its own “Seyfarth Lean”, a statement of its process efficiency methods based upon Six Sigma. Not all firms can or will go the length of Seyfarth Shaw, but the pressure for leaner legal services is on. Larger firms, with specialized departments, are better structured for the application of volume process management theories such as the Sigmas. Small to medium-sized firms tend to have infrastructures not wholly suited to such methods. They can, however, achieve process efficiencies proportionate to their business size and fitted to their business structure. The primary ingredient for greater process efficiency is organizational commitment. A sustainable efficiency initiative requires full participation by staff and attorneys, regardless of firm size. Efficiency’s far-reaching implications for quality assurance and client service require firm-wide collaboration and accountability. Organizational commitment is best obtained by means of open communication, continuous employee engagement and clearly articulated efficiency goals. Involvement of both attorneys and staff will assure firm-wide ownership of the business transformation process.

Kim Yesis Kim Yesis is the current President of the Nebraska Chapter of the Association of Legal Administrators. She is the Firm Administrator at McGill, Gotsdiner, Workman & Lepp, PC, LLO in Omaha and has over 18 years of experience in legal management.

Governance and communication styles of a firm will also affect business transformation. A centrally governed firm

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practice tip may make speedier decisions than a loose partnership or a firm managed by committees. Conversely, decentralized management can minimize the resistance to change that often accompanies top-down initiatives. Whatever the firm type, the challenge will be to maximize participation, clarify expectations and execute the plan uniformly so that the organization can achieve both quality assurance and cost savings. Firm culture is also a determining factor in business transformation. A democratic environment may increase buyin, but dissolve into competing ideas. A profit-orientation may embrace cost reduction measures, but be afflicted with shortsightedness. A service-oriented firm may emphasize quality, but fail to achieve cost savings. Become cognizant of the firm’s cultural strengths and weaknesses and anticipate how these may be catalysts or obstacles to change. Where firm culture itself is an obstacle, appreciate that even worthwhile change may be complicated and prolonged. Efficiency enhancement can be approached from different levels within the firm: organization-wide, cluster by cluster (such as by practice group or work pods), or employee by employee. Choose the approach best suited to the firm and its budget. Consider whether the firm will replace existing processes wholesale with industry best practices or audit current processes and then retrofit in parts. Examine the targeted process from every angle – cost, labor, work distribution, resources, requisite skills, time, logistics, outsourcing and so on. Not only the “who” or “what” of the process, but the “how” is important. Once a concise process efficiency plan is in hand, select an implementation project team. Choose informed, engaged employees who are natural leaders in the firm. Do not underestimate the value of staff in this process. They are often the front-line, the first voice or face the client encounters. Think of the last time you interacted with legal staff at another firm. The impression is lasting. Process improvement is not an event; it is a mindset for the long term which will not manifest overnight and which will require continuous improvement. Begin employee education and involvement early and allow a reasonable period of time for employees to absorb both plans and newly implemented efficiencies. Review the firm’s controls, practices, policies and procedures to make certain they support the new environment

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and do not threaten to obstruct the initiative’s success. Check hiring and evaluation practices as well as training programs. Teamwork, cross-training, time and project management and shared information all contribute to process efficiency, as do skills such as delegation, organization and technology. The final challenge to law firms is to effectively communicate their cost reduction achievements to clients. Clients are, in the final analysis, both a significant incentive and a material beneficiary of law firm efficiency. A firm’s investment in efficiency is as much a boon to its client service and relationships as to its own profitability. Firm management should plan a communication strategy early and make it an integral part of the change process. Start with a simple statement on the firm web site. Make the commitment evident in discourse with clients. Reflect and highlight client savings in realistic, achievable case budgets and in billing statements. Demonstrate efficiency on a personal level through engaged and re-trained attorneys as well as staff, whose attitudes and work products are a firm’s best sales tool. Efficiencies discernible in the firm’s personnel, responsiveness, quality and speed of production and overall matter management will heighten client confidence and retention, which is, after all, the end goal of any efficiency initiative.

References Debra Cassens, Seyfarth Shaw Says Six Sigma Method Has Cut Client Fees by Up to 50%, http://www.abajournal.com/news/ article/seyfarth_shaw_says_six_sigma_has_cut_client_fees_by_ up_to_50_percent/, (September 14, 2009).

Patrick J. Lamb, Business Management Strategies Can Be Applied in Law Practice—Document Review, for Instance, http://www. abajournal.com/legalrebels/article/biz_management_strategies_ can_be_applied_in_law_practice_document_review/, (August 22, 2011).

John Reiling, Lean Versus Six Sigma: What’s the Controversy? What the Difference?, http://johnreiling.articlesbase.com/ business-articles/lean-versus-six-sigma-whats-the-controversywhat-the-difference-595677.html#ixzz1aDl7hbXq , (October 9, 2008). Seyfarth Shaw LLP, Seyfarth Lean, http://www.seyfarth.com/ SeyfarthLean. Steven R. Strahler, Seyfarth Shaw takes a page from the Six Sigma playbook, http://www.chicagorealestatedaily.com/ article/20120915/ISSUE02/309159995/seyfarth-shaw-takes-apage-from-the-six-sigma-playbook#ixzz29IOc2129 (September 17, 2012).

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professional responsibility

STORY

Latin 101

by Dennis G. Carlson

“If the Romans had been obliged to learn Latin they would have never found time to conquer the world.”

—Heinrich Heine

I would be the first to admit that my Latin isn’t what it used to be. Let me rephrase that. My Latin is almost exactly where it has always been, and that’s the problem. Despite occasional delusions of adequacy, I still get lost when I run across “ab inito”, “ex delicto” or “lis alibi pendens” in my legal readings. As with most attorneys, however, “ex parte” remains relatively familiar. Banking on few changes in Latin during the past 45 years, I consulted my trusty 1968 edition of Black’s Law Dictionary for a definition of ex parte. It is (or at least was) defined as “on one side only; by or for one party: done for, in behalf of, or on the

application of, one party only”. With this definition in mind, how does the concept of an ex parte proceeding mesh with our adversarial system of justice? The short answer is, only with some adjustments. Emergency situations may occasionally arise that require immediate and swift judicial action. When this happens, ex parte communication or ex parte proceedings may be authorized by statute or court rule. In ex parte matters, the disciplinary rules require an attorney to step back from the usual role as an advocate for a client and convey all material facts to the court or tribunal, even if those facts are adverse. For example, Neb. Rev. Stat. §42-357 permits ex parte orders regarding the temporary custody of minor children in a divorce case. An attorney seeking custody on behalf of a parent is required by the Rules of Professional Conduct to disclose all material facts to the Court and not just the facts that are in the interests of his or her client. The specific Rule governing ex parte proceedings is Neb. Ct. Rule of Professional Conduct §3-503.3(d): § 3-503.3. Candor toward the tribunal.

Dennis Carlson

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Dennis G. Carlson became the Counsel for Discipline in 1981. Author bio He was a deputy public defender for Lancaster County from 19741981 and is a 1974 graduate of the University of Nebraska College of Law.

Comment [14] understanding:

to

§3-503.3(d)

provides

further

Ex Parte Proceedings [14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is

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professional responsibility expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. Nebraska Judicial Ethics Advisory Opinion 98-1 addresses the issue of whether a judge who enters a protection order after ex parte contact with a petitioner may participate in any ensuing criminal or civil matters regarding the same parties. The Committee concluded that as a general rule, recusal would

not be required in such a situation but added: Obviously, if as a result of the review by a judge of an application/affidavit for a protection order, that judge makes the determination that he or she cannot impartially adjudicate any further proceedings assigned to that judge involving the same applicant, the respondent, or both, then Canon 3 itself would require the recusal. But that decision would be based on the judge’s own examination of his or her judicial conscience, and the application of the entire Code of Judicial Conduct, and such recusal would not be mandated merely by the prior occurrence of the ex parte review of the application/affidavit. __________________________________________________ If you have a question about your ethical responsibilities, contact the Office of the Counsel for Discipline of the Nebraska Supreme Court at 402-471-1040 or 877-504-0967.

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coaches’ corner

Celebrating the Seasons of Our Life: A Lawyer’s Winter Part 4 of a 4 part series on the seasons of our lives as lawyers

by Susan Ann Koenig

You may think you are too far away from the winter of your legal career to read about the final season. Think again. As Stephen Covey, author of 7 Habits of Highly Effective People, recommended, “Begin with the end in mind.” Whether you are a recent grad or drawing on your retirement benefits, pondering and planning how you want the final chapter of your life to read merits attention. Even as a young lawyer, I appreciated the Omaha Bar Association’s memorial service for attorneys who died the preceding year. Back then I knew few of them personally. Three decades later, I know many. This annual ceremony is a time for me to reflect on those in our proud profession made their work and their lives matter. I see the people they impacted and the qualities they lived. Even if one of them gave me heartburn as opposing counsel, I realize now their lives had been much bigger than that single moment when tempers flared in the heat of the courtroom battle.

Susan Ann Koenig

Taking Care of You As we age, we experience more serious illness among our close friends and family. We are also more likely to face these challenges ourselves. We have a more compelling awareness of the impact of stress, eating, and exercise on our well-being. Early in our career, we have the powerful and perennial excuse of not enough time. We may be surprised to discover that even with our children and book of business grown, we still hear ourselves say, “I don’t have time.” The years of living the lawyer life can leave us with unhealthy habits that are hard to shake. We may work, eat, or drink too much. We may exercise, rest, or sleep too little. If we do not develop healthy habits, our body will eventually force us to. We don’t exercise and we find ourselves in physical therapy for a broken hip. We don’t take time to slowly eat whole foods and instead we spend time at doctor appointments managing our stomach problems. Our drinking is more than it should be, and we find ourselves facing a DWI.

Susan Ann Koenig, JD, is an executive coach and speaker who inspires and empowers successful people to make their greatest contribution. She is the author of Divorce in Nebraska and co-author of Success Simplified---Simple Solutions, Measurable Results with Stephen R. Covey. Susan is of counsel with Koenig Dunne Divorce Law in Omaha where she contributes to the blog, Doing Divorce: A Thoughtful Discussion on Divorce at www. nebraskadivorce.com. THE NEBRASKA LAWYER

Dedication. Brilliance. Compassion. Courage. Tenacity. Creativity. I could see them all. Their lives inspire thoughtful consideration of how I might be remembered at the end of my life as a lawyer. We are never too young or too old to begin this reflection.

It’s never too late to start to live a life of better self care. Start small. Start with support. Simply start.

People First The more people we watch leave this earth before us, the more aware we become of how fleeting life can be. We attend the funeral of a fellow lawyer and we leave with the thought,

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coaches’ corner “I wish I had known her better.” Investing in our relationships becomes more important than ever as we become more aware of just how fragile life is.

care of our relationships while we still have the privilege.

Consider how you will look back on your relationships. How will you be described as a parent, a partner, a friend? Is there a relationship you have neglected in the past? Is there a grudge it’s time to release? Do you want to be spending more time with grandchildren?

At this stage you may have completed your succession plan for your practice, be carrying it out, or saying, “Yikes! I better get one!” If you don’t have one, the need is now more urgent.

If we are not mindful, the office will take a real toll on our relationships. Practicing law can be greedy and grueling when it comes to time. Attending your child’s school program, having lunch with an old friend, or cooking dinner with your family can feel like a luxury. Who matters in your life? Are you giving your relationships the time and attention they deserve? Are there conversations with important people in your life that you have been putting off? Are there friendships that you need to let go of? Is it time to plan that long-deferred family vacation? If you are no longer going to the office each day, consider taking the initiative to get together with the people you enjoyed while you were. Just because you no longer put on a suit each day doesn’t mean you can’t continue to enjoy the good company of your favorite colleagues. In the winter of our careers, we realize that we want to take

A Closer Look at Succession

Implementing your succession plan may take longer than you think. Remember that last home improvement project you thought you could wrap up before the football game started that ended up taking a month? I took my first coaching course in 2001 and started coaching in 2003. But it was five years later before I wrapped up my cases and looked at becoming of counsel with my firm. Most of us are not all that crazy about considering, let alone discussing, our mortality. Any estate planning attorney can tell you of the challenges of getting a client to finalize their documents. The desire to postpone succession planning is normal. I hold an intention to be a centenarian, so it’s easy for me to think I have decades before I need to worry about what happens to the firm should death come suddenly. The truth is, a succession plan is not for us. It is for our clients, our co-workers, and our families. After all, depending upon your spiritual beliefs, when we die we will either be dust in

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coaches’ corner the earth, a spirit in heaven, or inhabiting a new physical form. It will be up to others to deal with the unresolved matters we left behind.

Nebraska Lawyer.

Succession planning is an act of consideration for those you care about. It reduces the confusion and conflict that may arise in your absence. You have spent your entire career taking care of people who mattered to you. Be sure that you have a plan in place so that this does not change upon your death.

Many lawyers spend much of their lives wishing they had more time. As our careers advance, this longing can remain. The limit to the number of hours in a day and now the number of years in our lives come into sharper focus. No matter how much or how little time remains, we want to use it wisely.

Continuing to Make a Contribution

Inventory the way you use the time you have. Whether you work full-time, scaled back, or turned in your keys to the office, pay attention to where the hours of your life are going.

Professionals often have a lot of their identity tied up in their career. For decades people ask you what you do for a living and you reply, “I’m a lawyer.” Despite being the object of a plethora of jokes, there continues to be a certain status that we enjoy by virtue of our vocation.

When we stop being lawyers, who are we? If we no longer practice law, it does not mean we stop making a contribution. Indeed, for many this final season may when many have their greatest impact. We have more experience, knowledge, and skills than ever. Ask yourself how you will continue to make a difference. You might use your legal background by teaching, mentoring, or volunteering. Or perhaps there is a passion you set aside long ago that you would be delighted to undertake now. Whether it is playing the saxophone, growing a garden, or writing your first novel, you still have gifts to share with the world. For a great article on encore careers, revisit Roy Ginsburg’s article on “Second Acts” in the March 2008 issue of The

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Where Does All the Time Go?

How much of your day is spent doing what you love? How much time do you devote to giving to others? How many hours are spent on activities to fill up your day that don’t provide meaning or enjoyment? Ask yourself, “What do I want to have less of in my life? What do I want to have more of?” Once you know these answers, you see more clearly the life you want. This is the first step to setting goals to bring it into reality.

Always in Gratitude As in every season of our life, gratitude is guaranteed to shift our perspective into appreciation. As lawyers, we have been gifted with tremendous education, a chance to use our skills for good, and opportunities to impact lives. No matter what the state of our health, we are still here and able to breathe, take in the beauty around us, and make a difference each day. Here’s wishing a celebration of every season of your life.

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NSBA calendar

NSBA Events Calendar February 2013

July 2013

15

Unauthorized Practice of Law Seminar NSBA Office, Lincoln

11-13

15

Military Law Seminar - Veterans’ Benefits Embassy Suites, Lincoln

August 2013

March 2013 22

NCLE Estate Planning & Probate Institute Embassy Suites, La Vista

14

Greater Nebraska Golf Scramble Awarii Dunes, Axtell

19

2013 Annual Family Law Update Location TBA

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NLF Charity Golf Tournament Firethorn Golf Club, Lincoln

NCLE Annual Real Estate Institute Location TBA

October 2013

June 2013 NSBA Community Service Day

Quashing Hunger Food Drive

27

Barristers’ Ball Embassy Suites, La Vista

7

12-30

September 2013

April 2013 6

Advanced Estate Planning Estes Park, Colorado

2-4

NSBA Annual Meeting Embassy Suites, La Vista

November 2013 8

28

NCLE Workers’ Compensation Seminar Location TBA

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court news

Two Nebraska Judges Presented with Distinguished Judge Awards Two Nebraska Judges were presented with the Supreme Court’s highest honor of the Judicial Branch. Workers’ Compensation Court Judge Laureen Van Norman was given the Service to the Community Award and Red Willow County Court Judge Anne Paine was the given Service to the Judiciary Award by Chief Justice Mike Heavican. The awards, designed to recognize members of the judiciary for meritorious projects and exemplary accomplishments, were presented October 24, 2012, in Omaha. Judge Van Norman was awarded Distinguished Judge for Service to the Community for her extended efforts to provide safe, dignified access to all participants in the Nebraska Workers’ Compensation Court process, in addition to her efforts toward improvement of the entire Nebraska judicial system.

had to navigate narrow doorways and uneven thresholds when trying to conduct business with the Court.” Van Norman currently serves on the Supreme Court’s Implementation Committee on Pro Se Litigation, Technology Committee and Judicial Branch Education Advisory Committee. She is a regular participant in the Chief Justice’s annual judicial branch leadership meetings.

Judge Paine earned the Distinguished Judge for Service to the Judiciary award for her many innovative projects, the most recent being a pilot project to improve compliance with courtordered financial obligations for probationers in criminal cases. Working with Supreme Court staff and the National Center for State Courts, Paine involved the her fellow judges and local court employees in designing an automated text-message Chief Justice Mike Heavican presents Judge Laureen and email system to notify offenders of Van Norman with the Distinguised Judge for Service upcoming payment obligations and court to the Community Award. dates.

As Presiding Judge of the Compensation Court, Van Norman is considered the driving force in identifying, developing, and moving the Lincoln Workers’ Compensation Court into Americans with Disability (ADA) compliant facilities. The courtroom was recently moved from the State Capitol’s tower to its new, permanent home at 1010 Lincoln Mall, across the street to the east of the City-County Building.

Judge Paine’s efforts have been shared throughout the state with a comparable function developed through the Court’s statewide case management system. Previously, just after the start of her judicial career, Judge Paine was presented the 2009 Child Champion Award at the Nebraska Children’s Summit, when she was recognized as an individual with particular dedication and service in improving the court system for children. Paine currently serves on the Supreme Court Commission on Children in the Courts and the Juvenile Chief Justice Mike Heavican presents Judge Anne Case Progression Standards Committee. During the presentation of Paine with the Distinguised Judge for Service to the She is Lead Judge for the 11th Judicial her award, Chief Justice Heavican Judiciary Award. District Eyes of the Child Team – remarked, “Having made hundreds 3, and serves on the “Centralization” of trips in and out of the State Committee of the Nebraska Court System Reengineering Capitol, up and down the elevators, Judge Van Norman knows Committee. all too well that her court was difficult to reach, even under the best of conditions. Workers’ Compensation Court participants were required to park nearly a city block away from the Capitol building, were only able to use one of the four entrances, and THE NEBRASKA LAWYER

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In presenting the awards, Chief Justice Heavican thanked both judges for their dedication to the legal profession and their communities. j an u ary / f ebr u ary 2 0 1 3


legal community news

UNL Law College Commencement Ceremony December 14, 2012 by Judge Michael W. Pirtle, Nebraska Court of Appeals Thank you, Dean Poser, for that kind introduction. On behalf of Chief Judge Everett Inbody, and my four other colleagues on the Nebraska Court of Appeals, I bring you greetings from our court and our sincerest congratulations as you reach another milestone in your journey to become lawyers. According to an ancient Chinese proverb, “A journey of a thousand miles must begin with a single step.” While today is not necessarily your first step, it most certainly marks an important milepost as you continue your venture to become practicing lawyers. I wish I could tell you that you are fully prepared for what lies ahead. But, unfortunately, you are not. While this law college has provided you with an outstanding legal education, only time and experience will make you into seasoned practitioners of the law. You will find that your first five years will be spent learning the “nuts and bolts” of your chosen area of practice. Be patient and willing to learn from your failures. Be open to constructive criticism and seek an experienced mentor to help guide you through the mine fields. One of our modern day poets has suggested that: “Success is liking yourself, liking what you do, and liking how you do it.” I would encourage each of you to seek balance in your personal and professional lives. Work hard but also seek inner peace and get plenty of rest. Remember, life is a marathon, not a sprint. Former North Carolina St. basketball coach, Jimmy Valvano, when he was dying from terminal cancer, told a national audience: “Don’t give up. Don’t EVER give up!” Persistence or perseverance is the one trait I would recommend to you as you pursue your goals in life and in the practice of law. It took me 7 years and 4 applications to become a judge. It took Douglas County District Court Judge Jim Gleason 7 attempts before he was appointed to the bench by then Gov. Mike Johanns. I once asked Judge Gleason why he thought the 7th try was successful. He said: “Mike, I think the Gov. just got tired of seeing me.” Those who know him well call Judge Gleason “The Energizer Bunny” because he just kept on trying and refused to give up. Decorated Olympic athletes, successful recording artists, even the Bill Gates and Warren Buffetts of the world, and really anyone who is living their dream, will tell you that you have to persist, and there really is no other way to achieve the success you desire and deserve. THE NEBRASKA LAWYER

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I am a 1971 alumnus of Creighton Prep High School in Omaha, a four-year, all male, Jesuit high school. Chock full of tradition, it is often referred to as “The Notre Dame of the Midwest.” One of its “core values” is “Leadership” which Prep defines as follows: “We prepare our students to be leaders in service to others. We recognize that leaders will make a difference by their actions, choices, examples and influence, regardless of whether they are in positions of responsibility. We expect our leadership to promote justice.” Prep told parents for many years: “Give us your son and in four years we will turn him into a ‘Man for Others.’” What I wish for each and every one of you graduating from this great institution this afternoon, is that you each become “a lawyer for others.” Now, what do I mean by that? What I mean by that is I would encourage each of you to do your part to make sure all of our citizens have fair and equal access to our system of justice. The need is greater than ever and, at times, can be almost overwhelming. I would encourage each of you to become active in your state and local bar associations. I have benefited greatly from my active participation in the Nebraska State Bar Association and the Omaha Bar Association. Volunteer in your local communities. Serve on charitable boards, church councils, or school boards. Speak on legal topics at schools, churches and civic clubs. Demonstrate to your clients and your fellow citizens that real lawyers care about them and their everyday problems. Help them to solve those problems. A few months ago, Justice Ken Stephan of the Nebraska Supreme Court addressed the graduating seniors from this law school and what follows is a favorite part of mine of what he had to say to them that day. He told them: “There will be times when clients will rely on you to use your counseling and drafting skills to set up a new business or create an estate plan in a manner that will avoid problems in the future. But often, people don’t retain lawyers when life is good. So there will be many times when you will be asked to assist someone who is facing a very real and urgent problem which affects their family, their property, their job or business, their civil liberties, or even their life. Then you will need your skills of negotiation and persuasion to achieve a resolution by agreement. If that is not possible, you will need your advocacy skills to present your client’s position to a judge, jury, or administrative tribunal. “In each of these circumstances, you will feel the heavy weight of responsibility. You will not always be successful, j an u ary / f ebr u ary 2 0 1 3


legal community news despite your best efforts. But if you use your legal tools skillfully, ethically, and professionally -- if you represent your clients zealously within the bounds of the law -- you will experience those moments when a client shakes your hand and says, “Thanks, I couldn’t have gotten through this without you.” Then you will know what it really means to be a lawyer.”

be a guiding light for me over many years. She said: “It is never too late to be what you might have been.”

In closing, I have found the following words from a 19th Century female British author by the name of George Eliot, to

Congratulations and best of luck to each and every one of you from the Nebraska Court of Appeals.

Never forget that with hard work, determination, perseverance and a positive attitude, you can accomplish more than you ever dreamed possible.

1st Annual Inserra & Kelley “Lawyers Against Hunger” Event a HUGE Success Inserra and Kelley, founder of the Nebraska Chapter of “Lawyers Against Hunger”, gave away over 500 turkeys in less than 3 hours to those in need through the associated pantries of the Food Bank for the Heartland on Sunday, November 25, 2012. Next year, the firm plans to spread “Lawyers Against Hunger” across Nebraska, and across the river in to Iowa.

Inserra and Kelley would like to thank all members of the firm with the cooperation of the Food Bank for the Heartland and No Frills Supermarket for making this event so successful!

Inserra and Kelley gave away over 500 turkeys in less than 3 hours on Sunday, November 25, 2012. Inserra and Kelley firm members. Due to the success of the 1st Annual “Lawyers Against Hunger” event, the firm plans to spread the event across Nebraska and into Iowa in 2013.

Save the Date!

2013 Best Practices Seminar Presented by the NSBA Young Lawyers Section Friday, March 22, 2013 8:30 am - 5:00 pm University of Nebraska College of Law THE NEBRASKA LAWYER

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nsba news

1,600 Bar Members Attend 2012 Annual Meeting The old joke says that if you want to start an argument, put two lawyers in the same room - yet the mood was civil and collegial at the 2012 NSBA Annual Meeting, October 24-26. A record 1,600 bar members attended to fulfill CLE requirements, reconnect with colleagues, get a leg up on the latest trends in the legal profession and witness the handoff from old bar leadership to new. Free seminars were the most popular, with attendees spilling into the hall outside of Rick Allan’s Nebraska Lawyers Assistance Program (NLAP) seminar. General Session speakers William C. Hubbard, future president of the ABA, and Talmage Boston, accomplished author and award-winning “Texas Super Lawyer” also drew a full house topping 500. Other notable speakers included Matt Stiner, decorated Iraq war veteran and Director of Justice for Vets; and Speaker of the Legislature, Sen. Mike Flood, who informed and entertained his audience with stories about the sometimes convoluted process of how legislation becomes law and what might happen if both the Governor and Lieutenant Governor are outside of the state. The House of Delegates also gathered for their fourth and final meeting of the year to discuss important issues such as the proposed petition before the Supreme Court to de-unify the State Bar. Supreme Court Chief Justice Michael Heavican also addressed the governing body with judicial concerns, like the new legislation affecting how guardianships and conservatorships are administered in the courts; and advised lawyers and court workers to embrace available technologies in the name of efficiency. Heavican urged all present to, “…learn to use the technology available”. Gavels were also passed at the Association Luncheon on Wednesday to signify the changing of the guard. NSBA President Warren Whitted Jr. handed off leadership duties to Marsha Fangmeyer of Kearney; and James Gordon welcomed his successor, Steven Mattoon of Sidney, as Chair of the House of Delegates. So what did Nebraska lawyers and judges take away from the 2012 NSBA Annual Conference? NSBA Executive Director Jane Schoenike states, “We hope to make this annual event an easy and affordable way for all lawyers to get the information they need to serve their clients well.”

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Practical Ethics for Practical Lawyers, held on Friday, was filled to capacity with over 600 registrants.

General Session speakers William C. Hubbard and Talmage Boston with NSBA President Warren R. Whitted Jr.

2012 Award Winners Award of Special Merit Ron Henningsen (posthumously), Lynda Henningsen, and The Daily Record

Award of Appreciation Honorable Jeffre Cheuvront

President’s Professionalism Award James E. Rembolt

NSBA Diversity Award Baird Holm LLP

Outstanding Contributor to Women in the Law Award Marsha E. Fangmeyer

Outstanding Young Lawyer Award Heidi M. Hayes j an u ary / f ebr u ary 2 0 1 3


nsba news

Thank you to the following sponsors and exhibitors for their support of the 2012 NSBA Annual Meeting! Sponsors Sponsor of President’s Dinner Marsh Sponsor of President’s Reception Minnesota Lawyers Mutual Outgoing House of Delegates Chair James E. Gordon passes the gavel to 2012-2013 House of Delegates Chair Steven F. Mattoon.

Sponsor of General Session US Bank Sponsor of Young Lawyer’s Section Late Night Reception D4 Nebraska Sponsors of “In Honor of Your Honors” Reception Lincoln Bar Association Omaha Bar Association Keith/Perkins County Bar Association Madison County/7th Judicial District Bar Association Nebraska Women’s Bar Association Phelps County Bar Association Tri-County Bar Association

Exhibitors

Outgoing President Warren R. Whitted Jr. and his wife Nancy with the plaque thanking him for his service as NSBA President.

ABA Retirement Funds CoreVault Cozad Nursing Consultant D4 Nebraska Ex-Cel Solutions Konica Minolta Business Solutions Kuhlman & Associates, Legal Nurse Consulting Law Pay Legal Aid of Nebraska Marsh Minnesota Lawyers Mutual Nebraska.gov Office Depot Paychex Smart Start of Nebraska Tabs3/PracticeMaster Thomas & Thomas Court Reporters, Legal Video & Video Conferencing

Speaker of the Legislature Mike Flood speaks at a CLE session. THE NEBRASKA LAWYER

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j an u ary / f ebr u ary 2 0 1 3


NCLE calendar

February 2013

July 2013

14

Unauthorized Practice of Law Seminar NSBA Office, Lincoln

11-13 Advanced Estate Planning Institute Estes Park, Colorado

15

Military Law Seminar - Veterans’ Benefits Embassy Suites, Lincoln

September 2013 27

March 2013 22

October 2013

NCLE Estate Planning & Probate Institute Embassy Suites, La Vista

2-4

June 2013 19

NCLE Annual Real Estate Institute Location TBA 2013 NSBA Annual Meeting Embassy Suites, La Vista

November 2013

2013 Annual Family Law Update Location TBA

8

Nebraska Continuing Legal Education Supported by:

NCLE Workers’ Compensation Seminar Location TBA

The Winthrop & Frances Lane Foundation

NatioNal ExpEriENcE – HomEtowN toucH

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transitions

Career Changes.......................... ..........................and Relocations Berkshire & Bunneister is pleased to announce that attorney KATHRYN J. DERR has joined the firm as Of Counsel. Mrs. Derr entered private practice after graduating with high distinction from the University of Nebraska College of Law in 1990. She has over twenty years of experience in bankruptcy law, business law and civil litigation. Mrs. Derr is a member of the Martindale-Hubble Bar Register of Preeminent Women Lawyers, an honor bestowed on only five percent of all female lawyers across the nation. The firm is also pleased to announce that SARAH J. BROWER, a 2012 graduate of Creighton Law School has joined the firm as an associate attorney. Ms. Brower received an advertising degree from Iowa State University and graduated cum laude in 2009. Sarah was a law clerk for the Honorable Judges Daniel Morris and Jack Anderson of the United States Department of Justice, Executive Office for Immigration review and the Douglas County Attorney’s Office. Her focus of practice will be estate planning, collections and family law. Parsonage Vandenack Williams LLC, Attorneys at Law, is pleased to announce that Joshua A. Diveley has been named as a member of the firm. Josh has been with PVW Law since 2006 and is a tax and business attorney practicing in the areas of trust and estates, ERISA, employee benefits, general business, intellectual property, and tax dispute resolution. Josh received his Bachelor of Science, summa cum laude, in Accounting from Mount Mercy College. He received his Juris Doctorate from the University of Nebraska-Lincoln. He is originally from Center Point, IA. Parsonage Vandenack Williams is located at 5332 S. 138th Street, Suite 100 in Omaha. For more information, please call (402) 504-1300 or visit www.pvwlaw.com. Koenig|Dunne Divorce Law, PC, LLO is pleased to announce the addition of Angela Terry as an associate attorney to the firm. Angela received a Bachelor of Arts degree in both Political Science and Women’s Studies at Vassar College. Additionally, Angela spent a semester studying European Politics at Albert-Ludwigs Universität in Freiburg, Angela Terry Germany. Angela received her Juris Doctor, summa cum laude, from Creighton University School of Law in 2012. Angela is a member of the American Bar Association, Nebraska State Bar Association and the Omaha Bar Association. THE NEBRASKA LAWYER

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Walentine O’Toole McQuillan & Gordon LLP announces the addition of two new associates to the firm. Andrew Biehl was born and raised in an agriculture family in Lexington, Nebraska. He left Lexington to attend the University of Nebraska-Lincoln, where he received his B.A. in 2006. Following his undergraduate studies, Andrew was employed in the banking industry, during which time he worked in various markets including Sioux Falls, Kansas City, Omaha, and Lincoln. Andrew has worked in Andrew Biehl numerous areas within the banking industry, including business development, commercial lending/credit, consumer banking, loan workout, corporate governance, vendor management and technology. Andrew has participated in several bank mergers, drafted bank policies and procedures, acted as corporate secretary and frequently interacted with banking regulators. Andrew has designed, negotiated, and executed multiple complex and unique credit transactions, including lines of credit, construction financing, tax credit financing, factor financing, letters of credit, real estate financing, term loans and others. Prior to embarking on his banking career, Andrew worked in the Consumer Protection Division of the Nebraska Department of Justice. Andrew received his J.D., with distinction, from the University of Nebraska College of Law in 2012 and also received his M.B.A. in 2012. Jon Brown, a South Omaha native, attended Dana College where he played football, double majored in History and English, and graduated magna cum laude in 2009. From there Jon and his wife moved to Madison, Jon Brown WI where Jon received his J.D. from the University of Wisconsin Law School in 2012. From there, Jon moved back to Omaha and joined the firm. Jon’s practice areas include commercial litigation, banking and lending, corporate law, and real estate. In his spare time, Jon enjoys spending time with his family, reading, golfing, and playing basketball. Leininger Smith Johnson Baack Placzek & Allen in Grand Island announces the addition of Tim Malm and Tim Hruza as an associate attorney. Tim Malm received a bachelor of arts from the University of Nebraska at Omaha in 2009, double

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transitions majoring in history and political science. He graduated cum laude from the University of Illinois with his juris doctorate in 2012. Malm is admitted to practice in Nebraska and US. District Court, District of Nebraska. He is a member of the Nebraska Bar Association. He sits on the board of the Central Plains Chapter of the American Red Cross. Tim Hruza graduated from the University of Nebraska at Kearney in 2009, receiving a dual degree in political science and economics, cum laude. Hruza was involved in both the honors program

and student government at UNK, serving as the student body president and student regent during his senior year. Hruza received his law degree from the University of Nebraska-Lincoln in May, graduating with distinction. He also received a certificate of concentrated study in the area of agricultural law, focusing heavily on water law issues and farm program compliance. While in law school, Hruza was a member of the Nebraska Moot Court Board and won awards for his performance in oral advocacy competition.

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in memoriam

Paul L. Douglas, 85, of Lincoln, passed away November 5, 2012. Born September 19, 1927 in Sioux Falls, S.D. to Louis and Victoria (Karavasilis) Douglas. Married to Ardis Hunt. Joined U.S. Marines during WWII and served 2 years in the Pacific and China and was called back for the Korean War. Upon his return, he graduated from Augustana College in Sioux Falls, S.D. and earned a Juris Doctorate degree from the University of Nebraska-Lincoln College of Law. While in law school he was a member of Delta Theta Phi. Paul served as County Attorney for Lancaster County for 15 years and also served as Nebraska Attorney General for 10 years. Past President of the Lincoln Bar Association, member of Nebraska State Bar Association, Past President of the Nebraska County Attorneys Association, a Director of the National Association of District Attorneys, member of the National Association of Attorney Generals, Past Chairman of the Nebraska Crime Commission, served on National Task Force on Crimes Against Big Business and on National Task Force on Private Security. Paul was also a member of the Shrine, Scottish Rite, Masonic Lodge #210, A.F. & A.M. and was a 33rd Degree Mason, Jesters, Green Fez, Eastern Star, Elks Lodge #80, American Legion Post #3, Foot Printers, Sowers Club, Jayceeniles and an avid fan of all University of Nebraska Sports. Paul was a member of the Annunciation Greek Orthodox Church and a member of the church’s A.H.E.P.A. club. Survivors include his wife, Ardis; numerous cousins and godchildren. Preceded in death by parents and one brother. Kenneth Hamilton Elson, 90, died November 3, 2012 at his home in Grand Island, Nebraska. Kenneth was born in Frontier County, Nebraska on April 26, 1922. He was the son of C. and Clara Hamilton Elson who made their home in Curtis and then North Platte, Nebraska. He was the oldest of four children. He graduated from the University of Nebraska School of Agriculture (high school) in Curtis, Nebraska. He was Class A All State in basketball in 1939. He achieved Highly Superior ratings playing the french horn in regional interstate competition, Class A honorable mention in football, and valedictorian. He went to college at the University of Nebraska, where he lettered in basketball for the Huskers. In 1947, he graduated with distinction from the University of Nebraska with a Bachelor of Science degree in Business Administration. In 1949 he received his Juris Doctorate degree from the Nebraska College of Law, cum laude. He was Order of the Coif. His military service included General’s Aide in the 86th Infantry Division while in combat in Europe, 1944-45. He then served as a Captain in the Philippine mop-up operations of the Pacific THE NEBRASKA LAWYER

37

Theater in 1946. He met Jo Duering in the Philippines during World War II, where Jo was serving the Red Cross. After the war they were married in Lincoln, Nebraska. Upon moving to Grand Island, the Elsons were recruited by Dr. James Chubb to join Trinity United Methodist Church. They supported their Church with their gifts and served on many committees, boards and offices in the Church. They also sang in the Chancel Choir for over 50 years. Mr. Elson’s legal profession included practicing with the Luebs firm from 1949 to 1965. He then went into private practice from 1965 until his retirement in 2004. During his career he tried hundreds of jury cases, argued 56 cases in the Nebraska Supreme Court and others in the United States Court of Appeals. He was at the forefront of technology in his law practice. He was an active member of the Nebraska State Bar Association, a fellow of the American College of Trial Lawyers and a member of the International Academy of Trial Lawyers. He was also a President of the Nebraska Association of Trial Attorneys. His hobbies included the enjoyment of classical music, golf, computer technology, and traveling. He and his wife traveled the world together. In their later years they enjoyed visiting destinations in the United States and Canada. Ken enjoyed many golf trips with his sons to Pebble Beach, Myrtle Beach, and to golf’s birthplace, Scotland. At 90, he created masterful multimedia projects of his family’s lives using his iMac computer and stayed in touch with his loved ones using his iPad. He is survived by Josephine D. Elson, wife; Dr. Kenneth H. Elson, Jr., son; Dr Joel D. Elson, son; Debbie Elson and Brenda Elson, daughters-inlaw; and grandchildren Amy Jean Elson Tanksley , Michelle Jo Elson, Joel Scott Elson, and John Christian Elson. He is also survived by his sister, Mary Ann Sibal. He was preceded in death by his parents and brothers, Rod and Jon Elson. Vance Elmore Leininger, died December 13, 2012. Vance was born on Feb. 2, 1916, in Gordon, Sheridan County, the youngest son of George Samuel and Ethel (Burns) Leininger. Shortly after Vance’s birth, the family relocated to Fullerton, Nance County, near the family homestead in rural Sherman County. Vance attended Fullerton High School where he excelled in music, football, and all of his classes. In 1937, he earned his bachelor of fine arts in music at the University of Nebraska at Lincoln (UNL) where he belonged to Alpha Sigma Phi fraternity. He taught public school music in Stanton, Iowa, and on Dec. 25, 1938, married Mary Lucille Davisson of Falls City. Vance was music director of the Stanton public schools, during which time he also studied for a master of fine arts at

j an u ary / f ebr u ary 2 0 1 3


in memoriam the Northwestern University School of Music in Evanston, Ill. They subsequently moved to Shenandoah, Iowa, where Vance taught high school Latin and English as well as music. From 1942 to 1946, Vance served in the U.S. Navy as a Chief Petty Officer teaching radio electronics for the Radio Materiel School at the Naval Research Laboratory, Washington, D.C. After his military service, the family moved back to Nebraska where Vance earned his Bachelor of Law degree at UNL in 1948. He joined the law firm of Walter and Albert in Columbus where his 40-year practice consisted of wills, estates, business contracts, real estate, and public power litigation. He was a member of the American College of Probate Counsel, the American Trial Lawyers Association, and President of the Platte County Bar Association. According to one of his law firm partners, he was a “lawyer’s lawyer whom one could turn to for help with especially difficult legal problems.” In the 1970s, Vance was under consideration as a candidate for justice of the Nebraska Supreme Court but decided to continue as senior partner of his law firm. Vance was president of the Columbus School Board in 1960 when the new Columbus Senior High School opened. He belonged to Rotary, Elks and Masonic Lodge No. 323. The Leininger family belonged to the Federated Church in Columbus. In 1987 Vance and Mary moved to St. Joseph where they joined the First Presbyterian Church, St. Joseph Country Club, Moila Club, and the Benton Club. Vance was also on the Performing Arts Association Board. Vance was preceded in death by his parents and three brothers: Harold of Hemet, Calif., Donald of Grand Island, and Forrest of Beatrice. He is survived by his wife and three sons (Kurt of Malvern, Pa., Joel of Chapel Hill, N.C., and Ralph of Dayton, Ohio); one niece (Linda Anderson of Montesano, Wash.); one nephew (D. Steven Leininger of Grand Island), and four grandsons. Jerre William Moreland, American Cherokee Indian, age 57, of Lincoln, passed away suddenly on Sunday, October 7, 2012. He was born to James & Joanne (Davis) Moreland on September 9, 1955 in Peoria, Ill. Jerre was a High School graduate of Illinois Valley Central HS class of 1973, he received his associates degree in Behavioral Sciences in 1976 from Illinois Central College, and from there he received his B.S. degree in Psychology at Bradley University in Peoria, Ill., and his M.A. in Experimental Clinical Psychology in 1981. In 1989 Jerre received his J.D. Law degree from UNL. He completed his doctoral studies in 1994 in Applied Social Psychology with an emphasis in American Indian Psychology Law. Jerre belonged to many organizations; he had seven manuscripts in preparation for publication dealing with the political and legal aspects of the American Indians. Jerre has also received awards from the American Bar Association, American Indian Law Review, Native American Leadership Foundation, and the Native American Spiritual and Cultural Association. Jerre served as a staff attorney for the Nebraska Unicameral THE NEBRASKA LAWYER

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Legislature from 1989-1990, and from 1990-1991 he served as legal counsel. He had a private practice for the Nebraska Indian Country and served as a Public Defender for the Omaha Tribal Court and General Counsel for the Omaha Tribal Council, and from 1999-2000 as Chief Judge of the Omaha Tribal Court in Macy. Jerre also liked to teach, and taught from 1989-1992 at Southeast Community College in Lincoln, and from 1997-1998 with Mexican lawyers in Guanajuato, Mexico. Jerre was active in government tribal issues from 1992-2000 with the Omaha Tribe of Nebraska, and the Winnebago Tribe of Nebraska from 1991-1992, and the Ponca Tribe of Nebraska from 1990-1992. Jerre was recently involved with immigration issues providing legal services to lower income immigrant families. He was an active member of society, and his skills and knowledge will be a loss to the people he served. Jerre is survived by his father, James Moreland of Lacon, Ill. and his step-mother, Joyce Moreland of Lacon, Ill.; mother, Joanne Moreland of Chillicothe, Ill.; brother, Jim Moreland of St. Louis, Mo.; and his long time companion, Ma. Herlinda Sanchez of Lincoln. James Daniel (Jim) Owens, only son of Daniel E. and Estelle M. Owens, died Nov. 28, 2012, in Longmont United Hospital, Longmont, Colorado. Jim attended school in Benkelman, Nebraska and graduated in 1963. He attended Kearney State College where he earned a Bachelor of Science degree in secondary education in 1967 and attended Creighton University Law School, graduating in May, 1970. He returned to Benkelman and joined the practice of law with his father, Dan, in Owens and Owens, Attorneys at Law. Sister, Judith Owens, joined the firm from 1978 to 1981. She later rejoined Jim with her solo practice in the family firm office building. Jim was nearly retired from his practice when his death occurred. He was a highly respected member of the Nebraska Bar association and the Nebraska Bar Foundation. He served several terms as Dundy County Attorney, serving the last term from 2008 to 2011. He served as City Attorney during that same period of time. Although adept at trial law, during his last 20 years of practice, Jim turned to probates, business practices and served many local and area Boards of Directors as attorney. He provided free services to a number of non-profit organizations when they needed his help. His generosity of free advice to local groups was very well known and appreciated. Prior to entering law school, Jim continued his athletic prowess as a high school football and track star and continued to “put the shot” at Kearney. He was a 4-year member of the Kearney track team where he earned many awards. He set a record for the shot put in his sophomore year at Kearney State College-50’ 81/2”a record which stood many years. Jim was active in Jaycees for many years and continued to provide his legal counsel and services to the organization until his death. He also served on the Dundy County Hospital Foundation Board of Directors, j an u ary / f ebr u ary 2 0 1 3


in memoriam helped organize and create the Benkelman Community Theater Board of Directors, the Benkelman Community foundation and the Dundy County School Foundation. Jim was an avid reader, coin collector, and fisherman and took his sons and grandchildren fishing whenever possible. He enjoyed music, especially classical pieces, loved theater, especially musical performances and enjoyed travel although he had little time in which to do it. In addition to these interests, he was an avid Cornhuskers through and through and attended most of the games for the past ten years. His wardrobe of Husker red seemed unending. Most of all, Jim loved his family and was a doting father, grandfather, and uncle as well as a caring and supportive brother, and friend. His giving nature lasted into death. Being an organ donor, Jim’s generosity will allow at least seven people to benefit from his gift. He is survived by his fiancee, Judy Coffey and her family of Longmont; his son Christopher D. Owens of Benkelman, Nebraska; step-son Jeffrey (Charisia) Raburn of Frederick, Colorado; his sisters, Barbara Moore and family of Ogallala, Nebraska; Judith Owens of Omaha, Nebraska; and Carol Lungrin and Family of Mesquite, Nevada. He be will missed by his entire family and many friends. Raymond Eugene Speer Jr., 57, passed away on December 4, 2012. Ray was born November 22, 1955 in Quincy, IL, and moved to Nebraska at a young age. He was one of the state’s top debaters, graduating at the top of his class from Papillion High School in 1973. A history major, Ray graduated near the top of his class from Creighton University in 1977. He graduated with high honors from Creighton Law School, with a J.D. in 1980. He was member of the Nebraska Bar Association, having

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served on committees with them throughout his career. Ray served 2 stints as a deputy county prosecutor, first in Dakota County, and then later in Douglas County. He also worked in corporate law with Berkshire Hathaway in their Home States Insurance division. He spent the majority of his career in private practice in Omaha. He was preceded in death by his father Raymond Speer, Sr.; his step-father Morris Goy; and a step-brother William Goy. Ray is survived by his mother Nancy Goy, Omaha; brother and sister-in-law, Mark and Pam Speer, niece Katie Speer and nephew Kyle Speer, all of Manhattan, KS; step-sister and her husband, Charis and Jesse Cox; and step-sister-in-law Marcia Goy, St. Jo-seph, MO. Also surviving are several first cousins, and step-nieces and anephews. Ray was a humble man with big heart. He loved his family and friends, and was very generous. Ray was a large powerful man in stature, but a quite sensitive man when it came to the feelings of others. He took funerals and bad news of his loved ones very hard. With that in mind, his final request was to go without a memorial. For those who knew him best, this was pure Ray. The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, PO Box 81809, Lincoln, NE 68501-1809 or to the Nebraska State Bar Foundation P.O. Box 95103 Lincoln, NE 68509-5103. Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact kbellman@nebar.com. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this important information with your colleagues.

j an u ary / f ebr u ary 2 0 1 3


classified ads Scudder Law Firm seeks to hire an attorney with 2-7 years of experience in corporate law, excellent academic credentials, superior writing and interpersonal skills, an interest in sophisticated business transactions, and a desire to live in Lincoln, Nebraska. Our firm offers proactive, results-driven client service for a nationwide client base of publicly traded and large privately held clients. Specific work includes: mergers and acquisitions; public stock offerings for issuers and underwriters; asset-based, revolving, and securitized credit facilities; private equity and venture capital fund formation and maintenance; and board/SOX consultation. We offer a collegial office environment, competitive compensation at all levels of experience (starting 2012 graduates at $100,000). Please send a cover letter, resumé, and writing sample to hhornung@ scudderlaw.com and visit our website at www.scudderlaw.com for a firm profile.

OFFICE SHARE ARRANGEMENT Ideal for solopractitioner. One block east of the courthouse in Lincoln, Nebraska. Access to conference room and high-speed internet. Cross referrals possible. Contact Mark Rappl, Naylor & Rappl Law Office, 1111 Lincoln Mall, Suite 300, Lincoln, Nebraska, 68508. Phone 402-474-5529. Email naylorlaw@hotmail.com. Appellate Brief-Writing: Former appellate attorney from Chicago (Assistant Appellate Defender-State of Illinois) who worked on criminal appeals filed in the Illinois Appellate and Supreme Courts, now working in Omaha. Available as co-counsel for appeals. Contact Michael Wilson at Schaefer Shapiro, LLP (402-341-0700), www.michael-wilson-law.com.

FINANCE ATTORNEY McGrath North seeks a finance attorney having 2 - 5 years of experience representing banks and borrowers in sophisticated finance transactions to join the firm’s Financial Services Group. Ideal candidates will have experience with commercial loans, real estate loans and tax credit / tax exempt financing transactions. Compensation commensurate with experience. Please submit a cover letter, resume and list of representative transactions to Kristopher J. Covi, McGrath North Mullin & Kratz, PC LLO, First National Tower, Suite 3700, Omaha, Nebraska 68102 or kcovi@mcgrathnorth.com.

Commercial Lending/Banking Associate Baird Holm LLP, an 82 attorney Omaha-based law firm, seeks an experienced associate for the firm’s commercial lending and banking section. The ideal candidate will have 2 – 5 years of experience representing banks, credit unions and other financial institutions in all aspects of documenting and closing commercial loan transactions. Experience with commercial real estate lending or agribusiness lending is particularly valuable. The successful candidate will have a track record of excellent client relations, project management and client development. Please forward cover letter and resume to: Miriam Nelson, Director of Human Resources, Baird Holm LLP, 1500 Woodmen Tower, 1700 Farnam St., Omaha, NE 68102 or mnelson@bairdholm.com.

Employee Benefits Attorney McGrath North seeks an employee benefits attorney having at least 5 years of experience with qualified and nonqualified retirement plans and health and welfare plans (including ERISA/COBRA/ HIPAA). Compensation commensurate with experience, flex schedule available. Please submit a cover letter and resume to Kristopher J. Covi, McGrath North Mullin & Kratz, PC LLO, First National Tower, Suite 3700, Omaha, Nebraska 68102 or kcovi@mcgrathnorth.com.

ASSOCIATE POSITION: Angle, Murphy & Campbell, P.C., L.L.O. located in York is accepting applications for an associate position. The position involves civil litigation and general practice. Applicants must have strong academic credentials, excellent research and writing skills, a strong interest in litigation and be community oriented. Send cover letter, resume, law school transcript and writing samples to Charles W. Campbell, 617 Grant Avenue, P.O. Box 584, York, NE 68467 or amvc@windstream.net.

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10th ANNUAL GREATER NEBRASKA GOLF SCRAMBLE FRIDAY, JUNE 14, 2013 Awarii Dunes 592 S Road, Axtell, NE 68924 (308) 743-1111

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THE NEBRASKA LAWYER

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MARCH 22, 2013 – THE 2013 ESTATE PLANNNING INSTITUTE - “Trust Us: Make of It What You Will” – Embassy Suites La Vista Speakers include Susan Spahn, William Lindsay, Rick Damkroger, Jeanelle Lust, Bruce Meister, Kara Ronnau and more addressing estate planning, trusts, business and estate planning issues, nursing home litigation, taxes, and more! More information to come!

JULY 11-13 – ADVANCED ESTATE PLANNING - The Stanley Hotel, Estes Park, Colorado Join us in beautiful Colorado this summer for an in-depth look at important estate planning topics, featuring Nebraska and national-known speakers, and including a return visit from Jeffrey Pennell! More information to come! And as always, check out the other CLE opportunities on the NSBA Calendar January 22, 2013 12:00pm - 1:00pm CST January 23, 2013 12:00pm - 1:00pm CST January 25, 2013 12:00pm - 1:00pm CST January 29, 2013 12:00pm - 1:00pm CST February 5, 2013 12:00pm - 1:00pm CST February 6, 2013 12:00pm - 1:00pm CST February 11, 2013 12:00pm - 1:00pm CST February 12, 2013 12:00pm - 1:00pm CST February 15, 2013 12:00pm - 1:30pm

Telephone Seminar - MCLE Activity #74767 - 1 CLE hour Tax Planning for Maximum Benefit in Real Estate Transactions, Part 1 Telephone Seminar - MCLE Activity #74768 - 1 CLE hour Tax Planning for Maximum Benefit in Real Estate Transactions, Part 2 Telephone Seminar - MCLE Activity #74856 - 1 CLE ethics hour Attorney Ethics in a Digital & Wireless World Telephone Seminar - MCLE Activity #74112 - 1 CLE hour Estate and Gift Tax Audits Telephone Seminar - MCLE Activity #74683 - 1 CLE ethics hour 2013 Ethics Update, Part 1 Telephone Seminar - MCLE Activity #74684 - 1 CLE ethics hour 2013 Ethics Update, Part 2 Telephone Seminar - MCLE Activity #74685 - 1 CLE hour Asset Purchase Deals – Securing Value & Limiting Liability, Part 1 Telephone Seminar - MCLE Activity #74684 - 1 CLE hour Asset Purchase Deals – Securing Value & Limiting Liability, Part 2 NCLE Live Seminar Military Law Section Seminar - Veterans’ Benefits Embassy Suites, Lincoln February 19, 2013 Telephone Seminar 12:00pm - 1:00pm CST S Corp Business Planning & Stockholder Agreements, Part 1 February 20, 2013 Telephone Seminar 12:00pm - 1:00pm CST S Corp Business Planning & Stockholder Agreements, Part 2 THE NEBRASKA LAWYER

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Special Discount for Bar Association Members! Get the best technology in law practice with a discount on registration to Nebraska State Bar Association ABA TECHSHOW for the members of the ___________________________. Register for ABA TECHSHOW under the Event Promoter rate and enter 1309 your Association’s unique code, EP _________________.

www.techshow.com #ABATECHSHOW


The Nebraska Lawywer January/February 2013  

Vol. 16 No. 1

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