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Courthouse Prints & Notecards Enjoy these beautifully rendered watercolors of Nebraska Courthouses in your office. Prints are available in two sizes, 16” x 20” and 20” x 24”, and are printed on highquality art stock and ready to be framed. Notecards are available as a boxed set of 25 blank cards with envelopes included. See individual pictures of the County Courthouses available on the NSBA website www.nebar.com. Courthouse Print Order Form

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The

Nebraska Lawyer Official Publication of the Nebraska State Bar Association • September 2011 • Vol. 14 No. 8

Features

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Departments 17 Practice Tip Effective Written Advocacy Before Generalist Judges

President’s Message A Lawyer’s Best Friend .................................................... Robert

F. Bartle

Robert F. Bartle

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21 Professional Responsibility Who’s Going to Know?

All Inventors! - The Race is About to Begin. On Your Mark! Get Set! Go...... .........................................................Ryan

by Douglas E. Abrams

by Dennis G. Carlson

Copy 24 Ethics Advisory Opinion 11-04

T. Grace

30 NSBA Calendar The Uniform Power of Attorney Act: The Need to Update Nebraska Statutory Law ..............................................Ronald

31 NSBA News 32 Clerk’s Corner

R. Volkmer

34 Legal Community News 35 NCLE Calendar 36 Transitions 39 In Memoriam 41 Classified Ads 43 Legal Marketplace

About the Cover This month’s cover photo is a view of a small pond at Big Springs, Nebraska The photographer, Max E. Carlson is an attorney and the County Judge of Sedgwick County, in northeast Colorado. His website is www.photographytothemax.com, if you would like to see more of his work.

www.nebar.com The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A 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

issue editors M. Therese Bollerup is the Chief Deputy Clerk of the U.S. District Court. She is a 1981 graduate of the University of Nebraska College of Law. She was formerly the law clerk for U.S. District Judge Joseph Bataillon in Omaha. She also was an adjunct professor at the UN-L Colleges of Law and Journalism and at Nebraska Wesleyan University, as well as a publications editor for NCLE.

President: Robert F. Bartle, Lincoln President-Elect: Warren R. Whitted Jr., Omaha President-Elect Designate: Marsha E. Fangmeyer, Kearney House of Delegates Chair: G. Michael Fenner, Omaha House of Delegates Chair-Elect: James E. Gordon, Lincoln Past President: Michael F. Kinney, Omaha First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: Nancy A. Svoboda, Omaha Third District Rep.: Thomas M. Maul, Columbus Fourth District Rep.: Jill Robb Ackerman, Omaha Fifth District Rep.: Robert M. Schafer, Beatrice Sixth District Rep.: R. Kevin O’Donnell, Ogallala

ABA State Delegate: ABA Association Delegate:

Amie C. Martinez, Lincoln Daniel E. Fullner, Madison

Bar Foundation President: NLTAF: Supreme Court Liaison:

Kile W. Johnson, Lincoln Jerald L. Ostdiek, Scottsbluff Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: NCLE Section Chair:

Jarrod P. Crouse, Lincoln Susan J. Spahn, Omaha

Executive Director:

Jane L. Schoenike, Lincoln

M. Therese Bollerup 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.

EDITORIAL BOARD Chair: James C. Bocott, North Platte Thomas F. Ackley, Omaha Jeanelle R. Lust, Lincoln Kelly L. Anders, Omaha Sandra L. Maass, Omaha P. Brian Bartels, Omaha Amie C. Martinez, Lincoln M. Therese Bollerup, Omaha Michael W. Meister, Scottsbluff Elizabeth S. Borchers, Omaha Gregory B. Minter, Omaha Thalia L. Downing Carroll, Omaha Luke H. Paladino, Omaha Kent E. Endacott, Lincoln David J. Partsch, Nebraska City Christopher M. Ferdico, Lincoln Edward F. Pohren, Omaha Vanessa J. Gorden, Lincoln Kathleen Koenig Rockey, Norfolk Joseph W. Grant, Omaha Monte L Schatz, Omaha Carla Heathershaw Risko, Omaha Ronald J. Sedlacek, Lincoln Andrea M. Jahn, Omaha Colleen E. Timm, Omaha Brandy R. Johnson, Lincoln Joseph C. Vitek, Chicago, IL

James C. Bocott

Executive Council Liaison: Warren R. Whitted Jr., 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 Email: 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

Robert F. Bartle & Chloe

A Lawyer’s Best Friend Groucho Marx said it first. “Outside of a dog, a book is a man’s best friend. Inside of a dog, it’s too dark to read.” With an opening like that, you might expect me to expound upon legal texts and case law. Or you could anticipate my review of interesting summer reading material. You would be wrong. With the “dog days” of summer soon behind us, what better time to consider our canine companions. Actually, the reference to “dog days” comes from the dog star Sirius, a part of the constellation Canis Major. Each summer, between late July and early September, the constellation appears in the northern hemisphere during the hottest time of the summer. Hence, “dog days”. “If you want a friend in Washington”, Harry Truman observed, “get a dog”. And after all, consider how many of the politicians in Washington, lawyers and lay persons alike, are looking for any understanding companionship today, given the difficulties of the budget compromise of the last few weeks. In fact, every United States President since Herbert Hoover kept a dog in the White House, beginning with Hoover’s King Tut, a sentry bred for protecting the President. And a dog, known as Checkers, saved Richard Nixon’s political career, in his famous “Checker’s speech” where Nixon deflected criticism that he was taking illegal campaign donations by illustrating that the only thing anyone ever gave him was a Cocker Spaniel, which his daughter named Checkers. Or consider the dog who did not make the trip to the White House. Abraham Lincoln’s pet, a mongrel named Fido, best friend next to his favorite horse, “old Bob”, was left with family friends in Springfield, rather than making the trip to Washington. Fido was afraid of trains and loud noises, and Washington presented problems with both. Which leads me to recognize the current canine-in-chief THE NEBRASKA LAWYER

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occupying the White House. He was a gift to the Obamas from the late Senator Edward Kennedy – a Portuguese water dog – named “Bo”. And on the verge of the Huskers’ inaugural gridiron season in the Big Ten, who can argue with “Bo”. In continuing the fine tradition of our Presidents, I proudly take my dog to work. My law firm is guarded by a 10-year old Wheaten Terrier, known as Chloe. I am reminded by my colleagues that my absence is rarely missed, but they always ask about Chloe. Chloe attends client conferences, keeping all matters confidential. Chloe participates in depositions, although no court reporter has yet entered her appearance on the record. Clients have confided to me that the only reason I was retained as their lawyer was a result of their meeting my Wheaten Terrier in the lobby. What more can I say? There is profit and reward in maintaining a dog-friendly law firm. One thing about keeping a dog at your law office. No matter how difficult the day, no matter how misunderstood you remain to a judge, opposing counsel, or client, you will retain one friend ready to accept you, along with the ride home, and a square meal before the evening walk. Is the dog the perfect pet for any lawyer? I will not go that far, recognizing that the matter of pets is always one of personal preference. Consequently, I close by simply letting “sleeping dogs lie”.

Robert F. Bartle, President Telephone: (402) 476-2847 Fax: (402) 476-2853 E-Mail: rfbartle@bartlegeierlaw.com se p te m ber 2 0 1 1


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feature article

All Inventors! - The Race is About to Begin. On Your Mark! Get Set! Go...... by Ryan T. Grace

Inventors - if you are not practicing your sprint drills…you should be. General Counsel - if you are not exploring internal speed tactics for your research and development groups…you ought to. General practice firms - if you are not coaching your technology clients for the 40 yard dash…you might want to 2 start. The race to the Patent Office is about to begin and there 3 will no longer be any ribbon when you come in second place.

I. The Current “Lazy Stroll” of our Firstto-Invent System The United States is currently a first-to-invent country. In fact, the United States is the only remaining country in the 4 world that still has first-to-invent laws. Although there can be exceptions to the rule, the date of invention in the United States is determined upon execution of a two-step process that includes:

Ryan T. Grace Ryan T. Grace is a founding partner of ADVENT – an intellectual property law firm in Omaha, Nebraska. Ryan’s practice primarily relates to US and international patent strategy. He has prosecuted and issued several hundred patents. Ryan is an adjunct professor of Intellectual Property Law at Creighton Law School and he is an inventor on around a dozen US and international patent applications. You can find more information on Ryan’s practice at www.linkedin.com/in/ryantgrace. THE NEBRASKA LAWYER

1. Conception; and 2. Reduction to practice. Conception is the touchstone of inventorship and represents the completion of the “mental” part of invention.5 Conception is “the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is…to be applied in practice.”6 Conception is complete only when the idea is so clearly defined in the inventor’s mind that the invention can be reduced to practice without extensive research or experimentation.7 The reduction to practice step can either be an “actual” reduction to practice or a “constructive” reduction to practice. Actual reduction to practice “requires that the claimed invention work for its intended purpose.”8 Depending on the character of the invention and the problem it solves, determining that the invention will work for its intended purpose may require testing.9 For example, if the conception is a microwavable food container that facilitates steaming, actual reduction to practice could include actually making a microwavable food container and testing the container in a microwave to determine that it facilitates steaming. Slightly different than an actual reduction to practice, constructive reduction to practice “occurs upon the filing of a patent application on the claimed invention.”10 There is no requirement that an invention actually be constructed.11 Yet, for the filed U.S. patent application to constructively reduce the invention to practice, it must teach one of ordinary skill in the art how to make and use the invention.12 For example, if the concept is a microwavable food container that facilitates steaming, constructive reduction to practice could include describing the microwavable food container in a patent application in

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all inventors! such a manner to enable a person of skill in the art to make the microwavable food container and cause it to facilitate steaming as conceived. If there is “diligence” between the date of conception and the reduction to practice (regardless of whether the reduction to practice is “actual” or “constructive”), the priority date of the invention in the patent application will flow back to the date of conception. An objective standard does not exist for showing that an applicant was diligent in reducing an invention to practice. The specific facts and circumstances of each case dictate 13 whether diligence has been fulfilled. Given that the inventor is diligent in the reduction to practice, the inventor will be granted protection as of the date of conception even if another person files a patent application constructively reducing the invention to practice before the 14 inventor. However, the first inventor to file an application has the prima facie right to the patent grant. If a second patent application is filed for the same invention, the second inventor will have to institute interference proceedings to determine the identity of the first inventor. Interference proceeding are time consuming and extremely expensive. As an example illustrating the above-mentioned points, assume that Peter conceives of the new microwave container on January 1, 2011. Peter works diligently from January 1, 2011, until February 1, 2011, to prepare a patent application. Peter

ultimately files his patent application on February 1, 2011. In such a situation, Peter constructively reduced his invention to practice on February 1, 2011. Further assume that Marie independently conceived of the same microwave container on January 15, 2011. Marie also diligently files a patent application. Yet, Marie files before Peter on January 28, 2011. Under our current first-to-invent system, Peter is entitled to the patent on the microwave container because he conceived of the container before Marie and worked diligently to reduce it to practice by filing – even though he filed the patent application after Marie. As a further extension to the above example, assume David also conceived of the same microwave container as Peter and Marie. Yet, David conceived of the microwave container on January 1, 1999. David did not tell anyone about his conception of the microwave container and David did not work on reducing the microwave container to practice until June 1, 2011. Since David did not diligently work to reduce the conception of the microwave container to practice in the period before Peter and Marie conceived of the same microwave container, David is not entitled to a patent over Peter or Marie. As the above examples indicate, our current system protects the true original inventor, unless the original inventor has suppressed the conception in some manner. Yet, in that the America Invents Act is about to become law, this protection is likely to change….

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all inventors!

II. The Upcoming “Sprint” to the Proposed First-to-File System The America Invents Act (S. 23 & H.R. 1249) was introduced in the 112th United States Senate on January 25, 2011, by Senator Patrick Leahy. The bill was referred to the Senate Judiciary Committee, which unanimously approved it, and was passed by the United States Senate on March 8, 2011, by a vote of 95-5.15 The House Judiciary Committee passed the bill on April 14, 2011, by a vote of 32-3 and on June 23, 2011, the House of Representatives passed its version of the Act by a vote of 304-117.16 The bill is currently set for reconciliation of changes and the President has indicated that once it is received, he will sign it into law.17 The Act includes many proposed changes to our current patent system.18 Yet, one of the most controversial changes is the movement of the United States from a first-to-invent country to a first-to-file country. The change finds it roots in the definition of “effective filing date” recited in the Act.19 The Act indicates that the “effective filing date” of a claimed invention in a patent or application for patent means: “(A) if subparagraph (B) does not apply, the actual filing date of the patent or the application for the patent containing a claim to the invention; or (B) the filing date of the earliest application for which the patent or application is entitled, as to such invention, to a right of priority under section 119, 365(a), or 365(b) or to the benefit of an ear20 lier filing date under section 120, 121, or 365(c)”.

Succinctly stated, the above definition, along with other portions of the Act, indicates that a patent will be awarded to the first inventor to file on his or her conceived invention. Yet, the Act does not allow someone to steal or derive an invention from the true inventor and hurry up and file to win the race.21 The Act requires that the filing is by an inventor.22 In continuing with the above example under a first-to-file system, assume again that Peter conceives of the new microwave container on January 1, 2011. Peter works diligently from January 1, 2011, until February 1, 2011, to prepare a patent application. Peter ultimately files his patent application on February 1, 2011. Further assume that Marie independently conceived of the same microwave container on January 15, 2011, 15 days after Peter. Marie also diligently files a patent application. Yet, Marie files before Peter on January 28, 2011. Under the proposed first-to-file system, Peter is out of luck. There is no ribbon for second place - Marie is entitled to the patent even though Peter conceived of the idea first. Proponents of the first-to-file system argue that the changes will make our patent system more efficient and bring the United States into conformity with the rest of the world. As more businesses become global in nature, such harmony proTHE NEBRASKA LAWYER

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vides patent protection uniformity across a company’s markets. A company would not need to be as concerned with different invention priority in the U.S. as opposed to other countries in the world. During an interview with Mr. Chris Hamer, partner at European Intellectual Property Law Firm Mathys Squire in London, he stated: “We have several clients in Europe that file patent applications in the United States in order to protect their ideas there. The US shift from a first-to-file country brings the US more in-line with Europe and the rest of the world. I believe that this move will provide better certainties for invention priority dates and create consistencies for companies that have an international business 23 reach.”

Proponents further argue that priority determinations are easier because they are the date that an application was filed and not the potentially amorphous date of conception in a person’s head that must be proved up during a trial or interference proceeding. Proponents argue that, under the current system, the luxury of priority certainty could only be afforded by the largest of corporations since trial and interference proceedings are so expensive. In this regard, large corporations could “bleed out” small businesses and independent inventors with interference proceedings or assertions at trial, because those inventors typically do not have the financial backing or procedural infrastructure to combat an interference proceeding or priority assertions at trial. Opponents of the first-to-file system argue that any change to conform to a first-to-file system is contrary to the plain language of the United States Constitution. Article I, Section 8, of the Constitution recites: “To promote the Progress of… useful Arts, by securing for limited Times to…Inventors the exclusive Right to their respective…Discoveries.” Opponents argue that the term “inventors” means “the first to invent” and movement to a first-to-file system may disregard the first inventor if the first inventor loses the race to the Patent Office. Beyond the Constitutional arguments, opponents also assert that the change to a first-to-file system would have a detrimental effect on small businesses and independent inventors. In a letter to Senator Barbara Boxer, an ex Microsoft VP and inventor on over 200 patents and patent applications stated that: “[u]nder first to file…all parties, regardless of their resources, must adhere to ‘race to the patent office’. This places small entities at an enormous disadvantage to large entities. Indeed, it is a key reason why no other nation has anything close to the number of startups as the US.”

Stated another way, opponents argue that only corporations with internal counsel and patent departments can implement procedures and secure financial resources to implement procedures to file quickly. In addition, since more companies will

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all inventors! be filing quickly and more often to ensure that they do not lose their patent rights, opponents contend that attorney fees will 25 increase, that patent backlogs at the United States Patent and 26 Trademark Office will increase and that the average quality of 27 patents will dwindle.

“We are always trying to be proactive in our business. With regard to the US shift to first-to-file, we are currently reviewing our internal procedures and working with our patent counsel to develop a structure and game plan that fits our business model. Although every company’s strategy will be different depending on the business model, I believe that being proactive is important to put our corporation in the best position when the first-to-file change occurs and to help manage 28 legal fees under the new system.”

Regardless of the various ideological perspectives between a first-to-invent system and a first-to-file system, it appears that the race will begin. As Louis Pasteur stated, “luck favors the prepared”….

III. Preparing for the Race Even though it may take several months from the date of this article for the America Invents Act to be signed into law, inventors and businesses should prepare now for the race. Inventors and businesses should consider the following: 1. Do Not Wait If you or your business currently have an idea that you want protected, do not sit on the idea. If you wait, you risk completely losing your rights. If the America Invents Act passes, conception will no longer be a potential date for invention priority. You should contact a patent attorney as soon as possible to make sure your idea is in the patent attorney’s queue for drafting. Furthermore, given that patent applications can take weeks to months to draft, the disclosure to the patent attorney should begin sooner rather than later in order to obtain the earliest filing date possible once the Act passes. 2. Educate Your Business Groups During the patent drafting process, patent attorneys need to extract the invention from the inventor so they can describe the invention in writing. A high-quality patent attorney also endeavors to extract proof data, example data and other nuances regarding the invention to help the patent attorney combat anticipation and obviousness arguments from the Patent Office. When inventors do not understand patent rules, which have gone through significant changes within the last few years, patent drafting can be thrown off course months, even years, as proper data is collected. The cost investment for having a patent attorney educate your business in a proactive manner could be significantly less than the reactionary costs for your business, and the patent attorney, when data is insufficient. Once educated regarding patent rules, inventors can better understand what to consider as they invent. This information can be proactively conveyed to the patent attorney, saving attorney time, research time, and resource utilization.

Given that time and speed are of the essence under firstto-file, invention disclosure procedures for businesses should be turn-key for the most efficient operation. If the business is educated with regard to patent rules and procedures as indicated above, inventors can develop in-depth invention disclosure forms that substantially meet the needs of the patent attorney to file a patent application. Such procedures can help manage attorney fees and speed up the patent drafting process to facilitate an earlier filing date. 4. Consider Provisional Application Strategies Inventors and businesses may also want to consider a provisional patent application strategy. Provisional patent applications allow inventors to file information regarding their invention in an informal manner and the provisional filing provides a one year window before a regular utility patent application is required to be filed. The filing fees for provisional patent applications are relatively inexpensive. Generally, the applications themselves can be drafted fairly quickly. Also, provisional patent applications have very few formalistic requirements. A strategy might include chaining provisional patent applications together for the one year period from first filing. Such a strategy may quickly help obtain a priority date for each concept of an invention as development occurs. Along with the above potential business considerations, other business structuring strategies can be relevant depending on a company’s business model and technology arena. Such considerations and strategies ought to be vetted now, prior to ratification of the America Invents Act. Proactive strategies, as opposed to reactionary strategies, will save companies time, money, and resources when the first-to-file system is implemented.

Endnotes Ryan T. Grace is a founding partner of ADVENT – an intellectual property law firm in Omaha, Nebraska. Ryan’s practice primarily relates to US and international patent strategy. He has prosecuted and issued several hundred patents. Ryan is an adjunct professor of intellectual property law at Creighton Law School and he is an inventor on around a dozen US and international patent applications.

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3. Develop Internal Procedures With the help of a patent attorney, businesses can structure their internal procedures to account for first-to-file. During an interview with Mrs. Rebecca A. Bortolotti, Vice President and Chief Technology Counsel at ConAgra Foods, Inc, she stated: THE NEBRASKA LAWYER

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The America Invents Act (S. 23 & H.R. 1249) was passed by the Senate March 8, 2011, by a vote of 95-5. The House version of the bill passed on June 23, 2011, by a vote of 304-177. The bill is now set to undergo reconciliation and the President has indicated that he will sign the bill into law once it reaches him. David Goldman (June 24, 2011), “Patent reform is finally on its

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all inventors! way” CNNMoney.com. (retrieved 2011-7-11)

given to show diligence. Charles W. Rivise & Abraham David Caesar, Interference Law and Practice §188 (1940).

If the America Invents Act passes, there may be some fine exceptions to the “no prize for second place” rule, but the exceptions are beyond the scope of this article.

3

See Manual of Patent Examining Procedure § 2138.05 “Reduction to Practice”.

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At one point in time, other countries had first-to-invent systems, but their laws have changed to better conform to what is becoming the international standard of first-to-file. For example, Canada and the Philippines had versions of first-to-invent systems in 1989 and 1998, respectively.

4

“The Patent Reform Bill”, Govtrack.us (retrieved 2011-7-11)

15

“Mark-up of HR 1249 with Managers and Committee Amendments as Reported out of House Judiciary Committee (retrieved 2011-7-11)

16

Sewall v. Walters, 21 F.3d 411, 415, 30 USPQ2d 1356, 1359 (Fed. Cir. 1994).

5

David Goldman (June 24, 2011), “Patent reform is finally on its way” CNNMoney.com. (retrieved 2011-7-11)

17

Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376, 231 USPQ 81, 87 (Fed. Cir. 1986), cert. denied, 480 U.S. 847 (1987).

6

S. 23 & H.R. 1249.

18

S. 23 & H.R. 1249 § 3, “First Inventor to File”.

19

S. 23 & H.R. 1249 § 3, “First Inventor to File”.

20

1 ERNEST BAINBRIDGE LIPSCOMB III, WALKER ON PATENTS 406 (3d ed. 1984).

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Id.

21

Steinberg v. Seitz, 517 F.2d 1359, 1363, 186 USPQ 209, 212 (C.C.P.A. 1975)

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Id.

22

Interview, Ryan T. Grace and Chris Hamer (July 14, 2011).

23

Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1578, 38 USPQ2d 1288, 1291 (Fed. Cir. 1996).

9

Letter, Steve Perlman to Senator Boxer, (February 28, 2011). theventureedge.com (retrieved on 2011-7-11)

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Id.

10

Id.

Pfaff v. Wells Elecs., Inc., 525 U.S. 55 (1998).

25

Kawai v. Metlesics, 480 F.2d 880, 178 USPQ 158, 163 (C.C.P.A. 1973).

26

Some considerations which may be used to determine the question of diligence include: (1) The complexity and nature of the invention; (2) The amount of money and effort required during development; (3) Any difficulties and obstacles in development; (4) Individual inventor factors such as financials, health, skill and availability; (5) The inventor’s efforts to surpass difficulties and obstacles; (6) The length of time to reduce the invention to practice; and (7) The reasonableness and character of the evidence

27

11

“Patent Office Backlog” inventionstatistics.com (retrieved 20117-11)

12

Brad Pedersen et al. “The Rush to a First-to-File Patent System in the United States - is a Globally Standardized Patent Reward System Really Beneficial to Patent Quality and Administrative Efficiency?” MINN. JOURNAL OF LAW, SCIENCE & TECHNOLOGY, Vol. 7, Issue 2 (May 2006).

13

Interview, Ryan T. Grace and Rebecca A. Bortolotti (July 14, 2011).

28

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feature article

The Uniform Power of Attorney Act: The Need to Update Nebraska Statutory Law

by Ronald R. Volkmer*

A feature article in the April 2009 issue of this magazine, entitled “Abuse of Powers of Attorney in Nebraska,” was authored by Cassidy Chapman.1 In this informative four and one-half page article, Ms. Chapman not only discussed the article’s main topic – “abuse of powers of attorney” – but also gave a short history of powers of attorney in Nebraska. In the main section of this article, Ms. Chapman addressed “Deficiencies in the Current Statute, “ particularly in light of recent Nebraska case law regarding powers of attorney.2 Toward the end of this article, in a section entitled “What’s Next,” the author briefly discussed the Uniform Power of Attorney Act, adopted by the Uniform Law Commission in 2006. The article concluded by stating:

Ronald R. Volkmer Ronald R. Volkmer is Of Counsel with McGill Gotsdiner Workman and Lepp and a Professor at Creighton University School of Law. His areas of expertise include property law with special emphasis on wealth transfer and trust and estate law including fiduciary administration. Mr. Volkmer is on the Editorial Board of Estate Planning magazine and writes a bi-monthly column entitled “New Fiduciary Decisions.” He has become one of the state’s leading advocates for mediation after chairing the Nebraska Supreme Court Advisory Council on Dispute Resolution for six years and currently serves on the Board for the Concord Center, a community mediation center in Omaha. THE NEBRASKA LAWYER

Based upon the current state of affairs, the growing elderly population and the number of power of attorney abuse cases, it would be prudent for the State of Nebraska to consider updating the current power of attorney statutes. The UPOAA creates a comprehensive statute that encourages the use of powers of attorney and does not affect the existence of previously enacted powers of attorney, 3 while creating clear guidelines and standards.

The purpose of this article is to update Ms. Cassidy’s article by focusing upon the developments that have taken place in Nebraska since Ms. Cassidy’s article was published with particular focus upon the activities of the Nebraska State Bar Association’s Real Property, Probate and Trust Law Section (hereinafter the “Section”). Like Ms. Cassidy I will offer my own conclusion with regard to the what “prudent” step the Nebraska State Bar Association might take in updating the Nebraska statutes relating to powers of attorney.

The Real Property, Probate and Trust Law Section Study Committee In October of 2008 the Section authorized the formation of a special committee to study the Uniform Power of Attorney Act (“UPOAA”).4 Subsequent thereto the Study Committee was appointed, consisting of: Alan Wood; James Fehringer; William J. Lindsay, Jr.; Jeffrey Peetz; Jan Krotter Chvala; Cassidy Chapman; Dennis Collins; Neil Williams. I was appointed the Chair of the Study Committee. During the summer of 2009 I assembled, with the aid of a student research assistant (Martha Lemar), a 78 page “Study Guide” for the members of the Committee which contained not only the text and comments of the Uniform Act, but also detailed the changes that other states had made in enacting the

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the uniform power of attorney act UPOAA. The Study Committee met four times in the fall of 2009 and finished its deliberations at meetings held in March and June of 2010. The Study Committee report only made recommended changes to the Official Text of the UPOAA, but also made recommendations for changes in the Nebraska Probate Code and for repeal for existing legislation. The Report of the Special Committee was considered at the Section’s legislative forum meeting in July of 2010. At that meeting the recommendation was made to have the Study Report made available to the members of the Section and for the Section to consider the Study Committee’s report at its annual meeting in October. The October 2010 meeting of the Section neither endorsed nor rejected the Study Committee Report; it did however, vote to have the “proposed legislation . . .presented at the next summer legislative forum and that the proposed legislation not provide for automatic revocation and that [the] legislation also require the acknowledgment of powers of attorney.” In June of 2011, pursuant the Section’s directive of October 2010, the Study Committee Report was amended to “not provide for automatic revocation” and to require an acknowledgment for all powers of attorney. This amended Study Committee Report was submitted to the Section’s legislative forum meeting in early July of 2011. The amended Study Committee Report will again be considered by the Section at its annual meeting in October of 2011.

National Developments; 2010 Change to Nebraska Statutes This update would not be complete without mentioning two other developments that have occurred since the April 2009 publication of Ms. Cassidy’s article. In her article Ms. Cassidy noted that “only two states have adopted the UPOAA.” As of 5 July 2011, ten states have now adopted the UPOAA. In the 2010 legislative session of the Nebraska Unicameral a bill was introduced (LB 703) to add one section to Nebraska’s Durable Power of Attorney Act and the Nebraska Short Form Act. This act was later incorporated into another bill (LB 712) 6 and passed without controversy. (The effect of these changes is require explicit language in a power of attorney authorizing the creation or change of “rights of survivorship” or “beneficiary designation.”)

Are the Existing Nebraska Statutes Relating to Powers of Attorney Adequate? Perhaps the most typical questions raised about enacting the UPOAA in Nebraska go along these lines: “Do we need this?” and “What problem are we trying to solve?” I would respectfully suggest that Ms. Chapman’s article

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the uniform power of attorney act quite directly responded to those questions in a thoughtful and respectful manner, particularly in the portion of her article entitled “Deficiencies in the Current Statute.” I will attempt, like Ms. Chapman, to respond to the questions raised about the “need for the statute” and the “problem we are trying to solve.” I would begin by re-phrasing the questions as follows: “Are the Nebraska statutes relating to power of attorney adequate?” “Would updating the Nebraska statutory power of attorney law along the lines outlined in the Study Committee represent an improvement over existing statutory law? My answer to both questions is “yes.” In that regard I concur with the view expressed by Cassidy Chapman that the “existing statutes . . . are insufficient in dealing with the various deficiencies in the statutes.” The Nebraska statutory law regarding powers of attorney goes back to 1977, when the Nebraska Uniform Probate Code became effective. One of the UPC sections enacted (§5-501) authorized a durable power. The 1985 Unicameral enacted the Uniform Durable Power of Attorney Act, which replaced the existing UPC sections on this topic.7 In 1988 Nebraska enacted the Short Form Act, which, as Ms. Chapman has noted, allowed the document to be crafted in a “check the box” format.8 The 2010 amendments to the existing Nebraska powers of attorney statutes were the product of the efforts of the banking industry to gain clarity on a point of law left unclear in the existing statutory scheme. It is fair, I believe, to state the Nebraska State Bar Association has played a leadership role in endorsing and supporting powers of attorney statutes over the years. (The NSBA did not take a position on the 2010 amendments). A group of well respected lawyers over a period of two years have exhaustively studied the UPOAA with the specific goal of making changes to existing law that would benefit the public. Although the Study Committee was not unanimous as to all its recommendations, the Study Committee did achieve broad consensus as a result of its discussion and deliberation.

What the UPOAA Will Not Do It is easy to over-hype proposed legislation with lofty predictions and promises. The drafters of the UPOAA have not done so nor do I. As thoughtful writers have pointed out repeatedly, there is no simple and easy solution to deal with the feckless agent who absconds with the principal’s fund. While judicious selection of the agent can never be guaranteed by a legislative act, a well drafted power of attorney statute can: (a) facilitate thoughtful selection of the agent; (b) facilitate review of the agent’s actions: (c) require explicit authorization for certain acts of the agent that would dissipate the principal’s estate. The thoughtful, competent, and conscientious Nebraska attorney will not have to revise his or her preferred format for the power of attorney he or she drafts. Much like the Uniform THE NEBRASKA LAWYER

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Trust Code, the UPOAA has very few “mandatory” rules that cannot be drafted around.9 Powers that were drafted prior to the effective date the UPOAA takes effect in Nebraska would not be affected.10 The only prediction that I can make with some degree of confidence is that whatever version of the UPOAA is proposed by the Study Committee and accepted by the Section, not everyone will be totally pleased. There is no perfect power of attorney statute that I’m aware of.11

What the UPOAA Will (or Attempts) to Do and How It is Accomplished The UPOAA was drafted with the goals of (a) improving portability and acceptance of powers; (b) better protecting incapacitated principals; (c) delineating context-specific liability standards for agents. To get the complete picture of how the UPOAA attempts to implement these goals, and to get a sense of the scope of the UPOAA, I would commend to the reader the Report of the Study Committee, which is a thirty-eight page document.12 The Uniform Law Commission lists these reasons why the UPOAA should be enacted: • Preserves the effectiveness of durable powers as a lowcost, flexible, and private form of surrogate decision-making. • Provides mandatory provisions that provide safeguards for the protection of the principal, the agent, and persons who are asked to rely on the agent’s authority. • Modernizes the various areas of authority that can be granted to an agent and requires express language authorization by the principal where certain authority could dissipate the principal’s property or alter the principal’s estate plan. • Provides step by step prompts are given for designation of agent, successor agents, and the grant of authority through an optional statutory form. • Offers clearer guidelines for the Agent, who is often a trusted family members such as: – Recognizes that an agent who acts with care, competence and diligence for the best interest of the principal is not liable solely because he or she also benefits from the act or has conflicting interests – Permits a Principal to include in the power of attorney an exoneration provision for the benefit of the agent. – Provides ways for the Agent to give notice of resignation if the Principal is incapacitated.

• Encourages acceptance of a power of attorney by third parties by: –Provides broad protections for the good faith acceptance or refusal of an acknowledged power of attorney.

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the uniform power of attorney act

Study Committee Specific Recommendations Regarding Implementation

– Recognizes portability of powers of attorney validly created in other states. – Offers an additional protective measure for the Principal by providing that third persons may refuse the power if they have the belief that “the principal may be subject to physical or financial abuse, neglect, exploitation or abandonment by the Agent or person acting for or with the agent, make a report to the appropriate adult protective service agency.

The Study Committee recommends that the operative date of the UPOAA be delayed for some period of time (6 months to a year). This would allow the NSBA to: (a) educate Nebraska lawyers, through CLE programs, about the various aspects of the UPOAA; (b) offer any curative amendments that might be deemed appropriate.

Specific Provisions Changing Nebraska Law: • Under Section 104, a power would be presumed to be durable without the need to have specific language to that effect. (Under Section 109, the “springing” durable power of attorney is authorized.). • Under Section 105, the power of attorney would need to be acknowledged, although under Section 103 of the Act, governmental forms would be exempted from that requirement. Note that this requirement is not in the Uniform Law Commission’s version of Section 105. (The requirement of an acknowledgment is a controversial one, both nationally and locally. Pursuant to the Section’s direction in its October 2010 meeting, the Study Report now contains a requirement that a power of attorney under the Act be acknowledged. [There was a division on this point in the Study Committee during its deliberative process.])13

The Statutory Form The Study Committee Report includes UPOAA Section 301 – the statutory form. This topic is controversial as well as brings up the hotly debated topics of statutory forms and doit-yourself estate planning.14

The Study Committee Report includes recommendations for harmonizing Nebraska statutory law with regard to the definitions of “incapacity” contained in the Nebraska Probate Code (relative to guardianship and conservatorship provisions) and the UPOAA.

Conclusion Like Cassidy Chapman I believe that the existing Nebraska statutes are “insufficient” in addressing the “deficiencies” that Ms. Chapman has identified in her article. I also believe that, in the words of a scholar who has written on the UPOAA, that: The UPOAA does an admirable job of modernizing power of attorney law to reflect legislative trends and collective best practices. The enhancements should facilitate the acceptance of durable powers and make it more difficult for devious individuals to abuse the powers. The Act, however, is not the ‘end all’ of power of attorney practice, and thus the practitioner must be vigilant to ascertain the principal’s needs, consider the applicable law and facts, and then customize the 15 power to meet the client’s needs.

Warren Buffet famously characterized derivatives as “financial weapons of mass destruction, carrying dangers that, while now latent, are potentially lethal.” Powers of attorney can be

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the uniform power of attorney act “weapons of mass [financial] destruction,” and there is no doubt that their extensive utilization will continue. In my opinion, the Nebraska State Bar Association should take a leadership role in supporting the reform of Nebraska’s power of attorney statutes. Whether that reform should take the specific form of the recommendations contained in the Report of the Study Committee is a question to be resolved through the usual methods prescribed by the NSBA bylaws and operating procedures. My own view is that change is inevitable and that this principle applies to power of attorney legislation. The only question is whether the Nebraska State Bar Association will do the leading or the following. *Frank J. Kellegher Professor of Trusts and Estates, Creighton University School of Law. The author acknowledges the assistance of William J. Lindsay, Jr., Dennis W. Collins, and Kathryn Bellman in the preparation of this article. The views expressed are solely those of the author.

lowing jurisdictions: Alabama, Arkansas, Colorado, Idaho, Maine, Montana, New Mexico, U.S. Virgin Islands, Virginia, Wisconsin. Other states have revised their power of attorney statutes using the UPOAA as the model. Sections 22 and 42 of LB 712 added the following sections to the Nebraska Durable Power of Attorney Act and the Short Form Act: Neb. Rev. Stat. §30-2665.01; Neb. Rev. Stat. §49-1562 (Cum. Supp. 2010).

6

Neb. Rev. Stat. §§30-2664 to -2672 (Reissue 2008).

7

The Nebraska Short Form Act is contained in Article 15 of Chapter 49, Revised Statutes of Nebraska (Reissue 2008).

8

For a discussion of the mandatory and default duties, see: “Power of Attorney Summary” at: http://www.nccusl.org/ActSummary. aspx?title=Power of Attorney

9

Section 106 of the UPOAA addresses this issue.

10

I am reminded of the aphorism that “the perfect is the enemy of the good.”

11

As the Chair of the Study Committee, I will be reviewing the Study Committee Report that was last revised in June of 2011 to make sure that it is up to date. It the intention of the Study Committee and the Real Property, Probate and Trust Law Section to have the Study Committee Report available on the Nebraska State Bar Association web site.

12

Endnotes Cassidy Chapman, “Abuse of Powers of Attorney in Nebraska,” 12 The Nebraska Lawyer 13 (April 2009).

1

The Maine version of Section 105 of the UPOAA does have the requirement of acknowledgment. A scattering of non-UPOAA states also require an acknowledgment.

13

Id. at 14-16.

2

Id. at 16.

3

Nebraska’s Short Form Act (Neb. Rev. Stat. §49-1522) contains a “statutory short form.”

14

The Uniform Power of Attorney Act can be accessed at: http:// www.nccusl.org/Act.aspx?title=Power of Attorney

4

Gerry W. Beyer, “The Uniform Power of Attorney Act: New Solutions to Old Problems,” Estate Planning Studies 7-8 (April 2009).

15

Id. The Uniform Law Commission’s “legislative fact sheet” indicates that the UPOAA has been enacted in the fol-

5

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E Credits L C r u o Y Get ALL total Up to 23.0 11.5 ethics up to includinNgebraska Activity #61156 MCLE

Wednesday, October 19 nsba association lunch

Join NSBA members at this celebration lunch, from Noon to 1:30 pm, where we recognize public service award winners and pass the gavel to the incoming President. Mike Rubin will entertain with a light-hearted look at lawyers and judges - Nebraska lawyers and judges share a common interest in the fair administration of justice, but what about the humorous side of the legal profession in Nebraska and around the country? You won’t need caffeine to stay awake for Mike Rubin’s presentation. judges’ reception: in honor of your honors

Join us from 5:00 - 7:00 pm at this special reception honoring Nebraska judges.

Thursday, October 20

president’s reception

Celebrate 2011 with outgoing President Robert F. Bartle and incoming President Warren R. Whitted. The reception will be from 5:00 - 7:30 pm. Attendees will receive two free drink tickets. late night reception

Join the NSBA Young Lawyers Section starting at 8:00 pm. All lawyers, spouses and guests are invited to attend this fun and spirited event at red9.

Friday, October 21 nsba legacy lunch

Join fellow bar members on Friday to honor 25 and 50-year members from Noon - 1:30 pm. nsba has gone green

You may download seminar materials from the NSBA website and print them off before the conference. You will also receive a CD of materials in your registration packet. A link to download materials will be included in your confirmation email and will be available two weeks after the meeting as well. social media

New thi s year

To better serve our members, the NSBA has created a mobile app called eventmobi. Once you’re registered, a link will be sent to you where you can view the Annual Meeting agenda, exhibitors and floorplans from your cell phone or iPad. The link is: http://www.eventmobi.com/nsbaam2011 THE NEBRASKA LAWYER

2011 NSBA Annual Meeting Wanted - Justice for All October 19 - 21, 2011 Cornhusker Hotel • Lincoln, NE Featured Speakers Thursday, October 20 - 3:00 pm - 5:00 pm Barry C. Scheck, is a Professor of Law at the Benjamin N. Car-

dozo School of Law in New York City. Mr. Scheck and his colleague Peter Neufeld, Co-Founded and Co-Direct the Innocence Project, an independent nonprofit organization closely affiliated with Cardozo Law School, which uses DNA evidence to exonerate the wrongly convicted. In its nineteen years of existence, 271 individuals have been exonerated in the United States through post-conviction DNA testing. Mr. Scheck has done extensive trial and appellate litigation in significant civil rights and criminal defense cases. He has published extensively in these areas, including a book with Jim Dwyer and Peter Neufeld entitled, Actual Innocence: When Justice Goes Wrong And How To Make It Right.

Wednesday, October 19 - 9:00 am - 11:00 am Mike Rubin, from Baton Rouge, Louisiana, heads the Appellate

Practice Team of the multi-state law firm of McGlinchey Stafford PLLC. In addition to the full-time practice of law, for more than three decades he also has served as an Adjunct Professor teaching finance, real estate and advanced legal ethics at the law schools at Louisiana State University, Tulane, and Southern University. Mike has presented hundreds of major lectures and papers throughout the U.S., Canada, and England and is an author or co-author and contributing writer of twelve books and over thirty articles. His publications are regularly cited as authoritative by state and federal courts, including state supreme courts and federal appellate courts. With the increase in annual meeting attendance, it is recommended that you register early. Space is limited and when capacity for each seminar has been reached, the seminar will be closed to walk-in registrants. A ticket will be required at the door for each seminar you registered for and attend. Tickets will be in your packet you pick up at the NSBA registration desk. You MUST register even if you only attend the complimentary events. Tickets will be required for entrance to all CLE seminars. You can register online at: https://m360.nebar.com/event. aspx?eventID=29311&instance=0 or go to www.nebar.com and click on “Calendar” at the top of the page.

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practice tip

Effective Written Advocacy Before Generalist Judges: Advice From Recent Decisions

by Douglas E. Abrams Note: This article originally appeared in Precedent, a publication of the Missouri Bar Association. Reprinted with permission.

“The Law Is Made By The Bar” “The best job I ever had.”1 That is how retired Congress member, federal Circuit Judge, and White House Counsel Abner J. Mikva remembers the judicial clerkship that began his career 60 years ago. Fresh out of law school and eager to make their mark, clerks are fortunate indeed for the opportunity to learn from a judge with knowledge drawn from years of experience. But clerks are equally fortunate to learn how much judges in our adversary system of justice do not know. Recognizing the limits of one’s knowledge is key to success in any professional pursuit, so lessons in these limits are perhaps the most valuable mentoring of all for clerks destined to spend their careers at the Bar. From the commencement of a civil or criminal case, the limits of the judge’s knowledge reach both facts and law. Judges

Douglas E. Abrams

receiving papers typically lack the familiarity with the case that the lawyers may enjoy from having lived with it before filing. Time spent interviewing clients and witnesses, researching and writing the pleadings, and engaging on other pretrial give-andtake provides counsel a head start on factfinding before the judge enters the picture. Judges in general jurisdiction courts also may not initially be as familiar as counsel with the substantive law that will decide the case. As American law has grown increasingly intricate and diverse in recent decades, more and more lawyers have opted 2 for specialty practices. Specialization means that judges may come from private or public sector careers that exposed them regularly to only some of the substantive law that now fills their dockets. Relatively few lawyers practice civil and criminal law simultaneously, and intricate administrative rules and regulations often create doctrine most familiar to specialists. With these institutional constraints grounded in experience and the complex legal fabric, says the U.S. Court of Appeals for the Seventh Circuit, “courts rely on lawyers to identify the 3 pertinent facts and law.” Because trial and appellate courts often severely limit oral argument or eliminate it altogether, identification and persuasion may depend heavily or entirely on counsel’s written submissions. The reliance cited by the Seventh Circuit is a national tradition that actually predates the recent trend toward specialized practice. Trial and appellate judges have long maintained 4 a“symbiotic” relationship with counsel who “educate the 5 Court” with argument tailored to the judge’s circumstances, needs and expectations. “The law is made by the Bar, even more than by the Bench,” said then-Judge Oliver Wendell 6 Holmes in 1885. Justice Louis D. Brandeis concurred as he

Douglas E. Abrams, a law professor at the University of Missouri, has written or co-authored five books. Four U.S. Supreme Court decisions have cited his law review articles.

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practice tip ascended to the Supreme Court bench in 1916: “A judge rarely performs his functions adequately unless the case before him is 7 adequately presented.” Justice Felix Frankfurter wrote later that “the judicial process [is] at its best” when courts receive 8 “comprehensive briefs and powerful arguments on both sides.”

Two Strategies for Effective Written Advocacy Treatises capably explore written trial and appellate advo9 cacy, and this article makes no effort to duplicate their depth. In recent reported trial and appellate decisions, however, judges themselves highlight two core strategies of written advocacy that bear discussion here. First, advocates should orient the judge who is a newcomer to the case’s facts, and perhaps also its relevant law; and second, advocates should avoid jargon best understood by specialists, which may initially confound the court and frustrate the bond of communication between writer and reader.

Orienting the Court The judge may not initially be as conversant in the applicable law as lawyers who have specialized in the field for years. “It is unhelpful,” says one district court, “when attorneys write briefs that presuppose specialized knowledge on the part of 10 their readers.” The facts too may initially disorient the trial judge who did not pore over drafts of preliminary papers or attend the depositions, and the appellate judges who did not preside at the trial or create and assemble the record step by step. Discussion of the facts – the bedrock of most cases, even before application of the law – should not assume the judge’s familiarity with the case. When a brief or other written submission cites to depositions, the trial transcript, or other papers in the record, advocates serve their cause best by explaining the point they mean to explain or support. Unless the court does its own independent review of the facts and the law, counsel who fail to provide a comprehensible pathway risk forfeiting the opportunity to persuade, and may also risk forfeiting valuable time during oral argument with avoidable questions from the bench. “Dropping a judge in the middle of an alien landscape without a map and expecting him to get his bearings from fragments of testimony couched in occupational jargon to which he has not previously been exposed,” explained one federal district court, “is not conducive 11 to informed decisionmaking.”

Avoiding Jargon “[T]he realm of the conflicts of laws,” wrote Dean William J. Prosser in 1953, “is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in strange and incomprehensible jargon. The ordinary court . . . is quite lost when engulfed THE NEBRASKA LAWYER

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12 and entangled in it.” Reminders like these about the law’s frequent complexity remain valuable for 21st-century advocates.

Unadorned jargon may serve a legal writer’s purpose, or at least may not detract much from it, when the audience consists solely of lawyers trained in the writer’s specialty. But without this foundation of common understanding, warns Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit, “much legal jargon can obscure rather than illuminate a particular case.”13 In 2008, in Indiana Lumbermens Mutual Insurance Co. v. Reinsurance Results, Inc., the Seventh Circuit held that the parties’ contract did not require the plaintiff insurer to pay commissions to the company it had retained to review the insurer’s reinsurance claims.14 Writing for the panel, Judge Posner reported that the parties’ briefs “were difficult for us judges to understand because of the density of the reinsurance jargon in them.”15 “There is nothing wrong with a specialized vocabulary – for use by specialists,” Judge Posner explained. “Federal district and circuit judges, however, . . . are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English.”16 Judge Posner’s commonsense advice – to write with an eye for the judges’ needs and expectations – is not judicial pettiness. In trial and appellate courts alike, the advice relates directly to the client’s best interests, but also to the sound administration of justice. In an age of swelled dockets and often-intricate law, counsel’s unnecessary reliance on jargon forces the court to waste valuable time demystifying avoidable obscurity. By enhancing the risk that the court will misapprehend counsel’s key points, jargon also enhances the risk that the court will “get it wrong.” Counsel in Indiana Lumbermens Mutual Insurance Co., Judge Posner concluded, “could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.”17 In New Medium LLC v. Barco N.V., Judge Posner again urged counsel to consider the needs of their audience before writing.18 Sitting by designation as a trial judge, he instructed the parties that “[a]ll submissions must be brief and non-technical and eschew patent-law jargon. Since I am neither an electrical engineer nor a patent lawyer, . . . the parties’ lawyers must translate technical and legal jargon into ordinary language.”19 Plain English may warrant counsel’s particular attention when the court reviews an agency decision because, according to the U.S. Court of Appeals for the Fifth Circuit, veteran agency personnel may acquire “insights and experience denied S e p te m ber 2 0 1 1


practice tip judges. The subtleties . . . encased in jargon and tucked into interstices of the administrative scheme, may escape us.”20 “It is the responsibilities of the parties to properly educate the court,” explain a federal district judge, “not of the court to improperly defer to an agency decision.”21

Conclusion: Persuading and Assisting the Court

Shoshone-Bannock Tribes v. Shalala, 988 F. Supp. 1306, 1318 (D. Or. 1997), on reconsideration, 999 F. Supp. 1395 (D. Or. 1998); Rabin v. Concord Assets Group, Inc., No. 89 Civ. 6130, 1995 WL 645441 *6 (S.D.N.Y. Nov. 2, 1995).

5

Oliver Wendell Holmes, The Law, in Speeches by Oliver Wendell Holmes 16, 16 (1934) (speech delivered Feb. 5, 1885).

6

Louis D. Brandeis, The Living Law, 10 Ill. L. Rev. 461, 470 (1916).

7

Adamson v. California, 332 U.S. 46, 59 (1947) (Frankfurter, J., concurring).

8

The Fifth Circuit may have exaggerated when it likened judges sometimes to “sophisticated uninitiates” when they read or hear adversary argument. Advocates convey no condescension, however, when they write in a respectful professional tone using, as one federal district court recommends, language “intelligible to everyday speakers of English.”23 As “a representative of clients [and] an officer of the legal system” under the ABA Model Code of Professional Conduct,24 advocates write with dual goals. “First,” said Judge Hugh R. Jones of the New York Court of Appeals, “you seek to persuade the court of the merit of the client’s case, to create an emotional empathy for your position. Then you assist the court to reach a conclusion favorable to the client’s interest in terms of the analysis of the law and the procedural posture of the case.”25 Advocates persuade and assist most effectively with the familiar quartet that marks any legal writing that strives to connect with the anticipated audience – precision, conciseness, simplicity and clarity.26

See, e.g., Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008); Edward D. Re, Brief Writing and Oral Argument (7th ed. 1993); Bryan A. Garner, The Winning Brief (2d ed. 2004); Girvan Peck, Writing Persuasive Briefs (1984).

9

Waddy v. Globus Medical, Inc., No. 407CV075, 2008 WL 3861994 *2 n.4 (S.D. Ga. Aug. 18, 2008).

10

Langston v. Illinois Bell Telep. Co., No. 88 C 3578, 1990 WL 129567 * 6 n.8 (N.D. Ill. Sept. 3, 1990) (magistrate judge’s opinion).

11

William J. Prosser, Interstate Publication, 51 Mich. L. Rev. 959, 971 (1953).

12

Miller v. Illinois Cent. R.R. Co., 474 F.3d 951, 955 (7th Cir. 2007).

13

513 F.3d 652 (7th Cir. 2008).

14

Id. at 658.

15

Id.

16

Id.

17

No. 05 C 5620, 2009 WL 1098864 (N.D. Ill. Apr. 15, 2009).

18

Id. * 1.

19

Watts v. Missouri-Kan.-Tex. R.R. Co., 383 F.2d 571, 583 (5th Cir. 1967).

20

Shoshone-Bannock Tribes v. Shalala, 988 F. Supp. 1306, 1318 (D. Or. 1997).

21

Dallas Typographical Union v. A.H. Belo Corp., 372 F.2d 577, 579 (5th Cir. 1967).

22

Endnotes

Silicon Graphics, Inc. v. ATI Technologies, Inc., No. 3:06-cv00611-bbc, 2008 WL 4200359 (W.D. Wis. Jan. 30, 2008).

23

Abner Mikva, One Case At a Time, Wash. Monthly, May 1, 1999, at 52 (reviewing Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999)).

1

ABA Model Rules of Professional Conduct, Preamble [1].

24

Sol Linowitz, The Betrayed Profession, ch. 5 (1994).

2

Judge Hugh R. Jones, Appellate Advocacy, Written and Oral, 47 J. Mo. Bar. 297, 298 (June 1991).

25

In re Cont’l Cas. Co., 29 F.3d 292, 295 (7th Cir. 1994).

3

Henry Weihofen, Legal Writing Style 8-104 (2d ed. 1980) (discussing the four fundamentals).

Walter Oil & Gas Corp. v. Teekay Shipping, 270 F. Supp.2d 855, 865 (S.D. Tex. 2003).

26

4

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Wish you could take a recess?

If you are doubting your decision to join the legal profession, Nebraska Lawyers Assistance Program (NLAP) can help. We understand the competition, constant stress, and high expectations you face as a lawyer. Dealing with these demands and other issues can be overwhelming. NLAP offers free and confidential support because sometimes the most difficult trials happen outside the court. Nebraska Lawyers Assistance Program

Helping you win life’s trials. 24 hours • 7days (888) 584-NLAP (6527)

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professional responsibility

STORY

Who’s Going to Know?

by Dennis G. Carlson

“Do not do what you would undo if caught.” —Leah Arendt

Sometimes it is hard to do the right thing. Perhaps you have faced the temptation in your practice. By taking an ethical shortcut or ignoring your professional standards for just a few short moments, you can (choose one):

1. Cover-up a mistake;

2. Save the client money;

3. Prevent a lot of unnecessary work;

4. Keep the client happy; or

5. Make a good fee.

Assume that you are an experienced estate planning attorney who has prepared a number of documents for a client’s signature. The client is gravely ill and, when you arrive at the hospital for execution of the documents, it is clear that the client is incapacitated. Aware that the documents could save the estate thousands of dollars, the client’s family pressures you to let them forge the client’s signature on the documents. After all, who’s going to find out? Who will ever know? A Maryland attorney, John Michael Coppola, found that gambling a law license on the promise of a co-conspirator to remain silent is a risky venture. You can read about it in Attorney Grievance Commission of Maryland v. Coppola, 2011 WL 1602048 (April 29, 2011). Mr. Coppola was admitted to the practice of law in 1989. Since 1997, his law practice was devoted primarily to estates and trusts. He had no prior disciplinary history and estimated that he had represented 950 to 1,000 clients. Attorney Coppola prepared an estate plan for Jeanne and Richard Swink in 2001. Ms. Swink at that time mentioned that her mother, Elizabeth West, also needed an estate plan. Mr. Coppola suggested that Ms. Swink have her mother contact him, but Ms. West did not do so.

After all, who’s going to find out? Who will ever know?

Dennis G. Carlson

In June 2008, Ms. Swink contacted Mr. Coppola regarding an estate plan for Ms. West. Since Ms. West was ill, Attorney Coppola spoke with her only by telephone. Their conversation lasted approximately fifteen minutes. Ms. Swink also participated in the telephone conversation.

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.

Ms. West’s primary asset was a house that she wanted to pass equally to her four children with a minimum of fees and expenses. Attorney Coppola recommended an estate plan consisting of a new Will, a Trust Declaration, an Assignment of

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professional responsibility property to the trust, and a Deed transferring the house to the trust. Under the plan, a “Living Trust” would be created during Ms. West’s lifetime. Mr. Coppola would also prepare a General Durable Power of Attorney and related Medical Powers of Attorney. Ms. West, however, did not request Attorney Coppola to prepare the documents at that time. Attorney Coppola had no further conversations with Ms. West. On August 25, 2008, Ms. Swink asked Attorney Coppola to meet with her family at a hospital where Ms. West was a patient. Later on the same day, Ms. Swink called and said that Ms. West wanted to proceed with the previously discussed estate plan. Attorney Coppola then prepared the documents. The estate plan was later determined by the Court to be reasonable and appropriate for Ms. West’s situation. Attorney Coppola took the estate planning documents to the hospital on August 26, 2008 and anticipated that he would review the documents with Ms. West and have them executed. When he arrived at the hospital, he was advised that Ms. West’s condition had worsened and that she was not capable of reviewing or executing the various documents. Ms. West was near death from colon cancer and was unlikely to return consciousness. All four of Ms. West’s children were present at the hospital and some were openly crying. Attorney Coppola explained to Ms. West’s family why he had come to the hospital and what the estate planning documents were designed to do. He advised them that the documents could save the estate approximately $10,000 in probate fees and expenses. Since Ms. West was not capable of doing so, her children asked Attorney Coppola if they could sign the estate planning documents in order to save the estimated $10,000 in costs. Mr. Coppola advised them that it was not legal for them to sign the documents and that some of the documents needed to be witnessed and certified. According to the Court: Notwithstanding these explanations, the children pleaded with Mr. Coppola to certify Ms. Swink’s execution of the documents in her mother’s name. He explained that if the children were not in agreement with the provisions of the estate plan, then it would be counter-productive to sign Ms. West’s name to the documents. He told the children that such a course would be improper and, if anyone of the children objected, the documents would not be honored. The children indicated to

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Mr. Coppola that they were, in fact, in agreement. Mr. Coppola, to his regret, agreed to have them sign the documents and that he would certify that they were signed by Ms. West. Ms. Swink then signed her mother’s name to the 2008 Will, the Trust Declaration, the Deed, the Assignment, and the General Durable Power of Attorney. All four children were present in the hospital room and witnessed Ms. Swink’s execution of her mother’s name on the documents. Mr. Coppola hand-wrote the change to the Trust Declaration (naming all four children as successor Trustees) and Ms. Swink initialed the change.

When Attorney Coppola returned to his office, he notarized the falsely-executed documents and directed two of his employees to falsely attest that they witnessed the signing of the Will. The next day Mr. Coppola delivered the documents to Ms. Swink at the hospital and certified the Deed. He then directed his employee to record the falsely-executed Deed at the courthouse. Ms. West died on August 30, 2008. Ms. Swink filed the 2008 Will with the Register of Wills on September 12, 2008, but did not retain Attorney Coppola concerning the probate proceedings. In December 2008 or January 2009, Attorney Coppola received a phone call that had to shake him to his core. He was notified by Mr. Swink that one of Ms. West’s children wanted to continue to live in his mother’s house and was going to contest the sale of the house by raising the issue of the false signatures. Ms. Swink’s attorney later filed a disciplinary grievance against Mr. Coppola. Attorney Coppola did not contest the primary factual accusations against him in the disciplinary prosecution, but requested the Court to consider mitigating factors. The Court found that Attorney Coppola cooperated with Bar Counsel, had no disciplinary record, did not have a selfish motive, and had genuine remorse for his conduct. The Court, however, (with two dissents) entered an order of disbarment against Mr. Coppola and concluded that “attorneys are not permitted to discard their ethical obligations when it becomes difficult or stressful to maintain them”. Attorneys, said the Court, “are not and cannot be hired guns for individuals who seek to subvert the administration of justice.” _______________________________________________ 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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At the end of the day...

Who’s Really Watching Your Firm’s 401(k)? And, what is it costing you? • 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 to learn how to keep a close watch over your 401(k). Phone: (800) 826-8901 email: contactus@abaretirement.com Web: www.abaretirement.com

• Does your firm’s 401(k) feature no out-of-pocket fees?

Please visit the ABA Retirement Funds Booth at the upcoming Nebraska State Bar Association Annual Meeting, for a free cost comparison and plan evaluation. October 19-21, 2011 • Cornhusker Hotel, Lincoln, NE

Who’s Watching Your Firm’s 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 (800) 826-8901, 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. C11-0318-012 (3/11)

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Nebraska Ethics Advisory Opinion for Lawyers

2. What, if any, disclosures or consents would be required for the agency’s legal department to represent the agency?

Facts

No. 11-04

The Nebraska Department of Health and Human Services (“DHHS”) employs lawyers in its legal services unit. These lawyers represent DHHS in administrative hearings. One of the lawyers for DHHS volunteers as an officer on the Board of Directors of a public advocacy organization (“PAO”) that employs lawyers who occasionally represent members of the public in administrative hearings before DHHS. As an officer of the Board, the DHHS lawyer has no authority to direct the day to day operations of the staff. Nor does he provide legal services to the public advocacy organization or its clients.

other attorneys in a state agency’s legal department are not automatically disqualified from representing the agency in a hearing because one member of the agency’s legal department is on the board of directors of a public advocacy organization that has retained counsel to represent a member of the public at the same hearing. while any conflict the attorney board member may have is not imputed to other members of the agency’s legal department, ordinarily it would be prudent to screen such lawyers.

Applicable Rules of Professional Conduct

whenever a potential conflict occurs the affected attorney should promptly disclose it to the agency so that the agency can provide notice of, and imple-

the attorney who is the member of the board of the

Rule § 3-501.11. SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES

public advocacy organization should be careful not

...

ment, any necessary screening procedures.

to disclose to the organization any information

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:

acquired from his representation of the agency that might be relevant to the case at issue, and may prop-

(1) is subject to Rules 1.7 and 1.9; and

erly choose to recuse himself from any discussions involving such cases.

(2) shall not:

Questions Presented

(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing;

1. Can an attorney in a state agency’s legal department represent the agency in an administrative hearing when another attorney in the legal department is on the board of a public advocacy organization which is providing legal representation in that same hearing to a member of the public opposing the agency?

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...

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(e) As used in this Rule, the term “matter” includes:

RULE § 3-501.6. INFORMATION

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and

OF

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Discussion

COMMENT:

The primary issue here is whether a DHHS lawyer’s service on a Public Advocacy Organization Board presents a conflict of interest which disqualifies other DHHS lawyers from representing the agency when one of the PAO’s lawyers represents a member of the public in an administrative hearing before DHHS. This is not a case where the lawyer involved is representing two clients with potentially conflicting interests. Rather, the question is whether the attorney’s position on the board of directors for the PAO creates a conflict which disqualifies other DHHS counsel.

... [2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the government toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (b) sets forth a special imputation rule for former government lawyers that provides for screening and notice. Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.

Under the Rules of Professional Conduct, Rule § 3-501.7(a)(2) a “current conflict of interest exists if . . . there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” (Emphasis added). In this instance, if a potential conflict of interest exists, it is because of the DHHS attorney’s responsibility to the PAO as a member of the board and his personal interest in the mission of the organization. In the instant case, however, the attorney on the board will not be representing the interests of DHHS when one of the PAO’s attorneys is representing a member of the public before the agency. Furthermore, he does not act as legal counsel for the PAO and is not involved in the day to day operations of the organization’s staff, including its legal counsel. There therefore appears to be no direct conflict of interest created.

... [7] Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. RULE § 3-501.0. TERMINOLOGY (k) “Screened” denotes the isolation of a lawyer or support person from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer or support person is obligated to protect under these rules or other law.

However, even if his role on the board of directors, and his duty to its mission creates a potential conflict of interest for him in his role as counsel for DHHS, this conflict is not imputed to the other members of the DHHS legal staff. The Rules of Professional Conduct make it clear that any such conflict of interest in a government setting is not imputed to other government counsel for the same agency. Rule § 3-501.11 addresses this issue specifically for government officers and employees. Under Subsection (d)(2) the DHHS attorney personally would be prohibited from participating as a lawyer for the agency in a matter in which he had personally and substantially been involved in his non-governmental capacity, unless the government agency gave its informed consent. That is not the case here, since the attorney will not participate in the hearing in question. Moreover, § 3-501.11 does not impute any such conflict to other government lawyers as made clear by comment [2] to that rule which states:

RULE § 3-501.7. CONFLICT OF INTEREST; CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: ... (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. RULE § 3-501.8. CONFLICT OF INTEREST; CURRENT CLIENTS; SPECIFIC RULES ...

“Because of the special problems raised by imputation within a government agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. THE NEBRASKA LAWYER

CONFIDENTIALITY

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employees, although ordinarily it will be prudent to screen such lawyers.”

The Nebraska Supreme Court has given special recognition to this rule in the case of State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008). In the Kinkennon case error was raised on appeal in the conviction of the defendant because a member of the County Attorney’s Office, who was not involved in prosecuting the case, had previously been employed as an associate attorney by the firm representing the defendant, during the representation by that firm of the defendant. Because of this alleged conflict of interest, the defendant on appeal argued that a special prosecutor should have been appointed to handle the prosecution of the case.

The Lincoln Community Foundation team of professionals is ready to assist you and your clients with tax or estate plans to achieve philanthropic goals.

In upholding the lower court’s refusal to name a special prosecutor the Nebraska Supreme Court stated in deciding not to adopt a per se disqualification rule affecting all members of the prosecutor’s office:

Barbara Bartle

“[T]he overwhelming majority of courts to have considered this issue have rejected this type of per se rule. Instead, most courts have adopted a less stringent rule, pursuant to which the trial court evaluates the circumstances of a particular case and then determines whether disqualification of the entire office is appropriate. Under this approach, courts consider, among other things, whether the attorney divulged any confidential information to other prosecutors or participated in some way in the prosecution of the defendant. The prosecuting office need not be disqualified from prosecuting the defendant if the attorney who had a prior relationship with the defendant is effectively isolated from any participation or discussion of matters concerning which the attorney is disqualified.”

President

Paula Metcalf, J.D. Vice President Gift Planning and General Counsel

Scott Lawson Vice President Finance and CFO

275 Neb at 576. The court then went on to recognize that “we recently endorsed a more flexible rule by adopting the Nebraska Rules of Professional Conduct.” The court then quoted from the official Comment 2 to Rule 1.11, which we have quoted above, and added that “[t]his rule recognizes the distinction between lawyers engaged in the private practice of law, who have common financial interests, and lawyers in a prosecutor’s office, who have a public duty to seek justice, not profits.” 275 Neb. at 577. Absent some unusual circumstances where unfairness or impropriety might be so great that it would affect confidence in the judicial system, the court noted that effective screening would be sufficient.

Sarah Peetz, J.D. Vice President Community Outreach

215 Centennial Mall South Suite 100 Lincoln, NE 68508

Comment 2 to § 3-501.11 does recognize that when a potential conflict exists, while that conflict would not be imputed to other government counsel, “ordinarily it will be prudent to screen such lawyers.” Section 3-501.0(k) defines what is meant by “screened” as follows:

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BAILEY LAUERMAN Lincoln Community Foundation Nebraska Lawyer Ad 2011 Lcomfo111842 Pub: Color: bw Size: 2.312" x 8.5"

“’Screened’ denotes the isolation of a lawyer or support person from any participation in a matter through the timely imposition of procedures THE NEBRASKA LAWYER

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8/1/11 11:12 AM

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Conclusion

within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer or support person is obligated to protect under these rules or other law.”

Other attorneys in a state agency’s legal department are not automatically disqualified from representing the agency in a hearing because one member of the agency’s legal department is on the Board of Directors of a public advocacy organization that has retained counsel to represent a member of the public at the same hearing. While any conflict the attorney board member may have is not imputed to other members of the agency’s legal department, ordinarily it would be prudent to screen such lawyers.

Comment [7] of § 3-501.11 further admonishes that “[n]otice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.” The Rules of Professional Conduct prohibit a lawyer from revealing confidential information involving the representation of a client without informed consent. In the instant case, DHHS counsel should not only be screened from other DHHS counsel in connection with the representation at issue, but he should be careful not to disclose to the PAO any information he may have learned as counsel for DHHS that might be relevant to the case at issue. In that regard, the Committee believes it would be prudent for DHHS counsel to recuse himself from any discussions that may come before the board of the PAO relating specifically to cases the organization’s counsel may be handling before DHHS.

Whenever a potential conflict occurs the affected attorney should promptly disclose it to the agency so that the agency can provide notice of, and implement, any necessary screening procedures. The attorney who is the member of the board of the public advocacy organization should be careful not to disclose to the organization any information acquired from his representation of the agency that might be relevant to the case at issue, and may properly choose to recuse himself from any discussions involving such cases.

Winthrop and Frances Lane Foundation Professional Responsibility Lectures Show Me the Money: The Ethics of Billing and Collecting Fees and Expenses featuring Douglas Richmond, J.D. 12:30 pm

Introduction and overview of the ethical issues in today’s practice environment

12:45 pm

Applicable ethics rules and judging the reasonableness of fees and expenses

1:30 pm

Special problems in hourly billing

1:50 pm

Understanding retainers and flat fees

2:10 pm

Contingent fee concerns

2:30 pm

Adjourn

douglas r. richmond is the Senior Vice President, Global Professions Practice, Aon Risk Services, Chicago, Illinois. He received his J.D. from the University of Kansas; his M.Ed., University of Nebraska; and his B.S., Fort Hays State University. He is the author of three significant articles on ethics and billing, and speaks frequently at CLE events.

This free lecture is supported by a grant from the Winthrop and Frances Lane Foundation of Omaha. There is no cost to attend but you must register below for the location you plan to attend.

REGISTRATION FORM: Professional Responsibility Lectures - Scottsbluff & North Platte Name:______________________________________________________________Bar #_______________________ Address:_______________________________________ City:__________________ State:_____ Zip:_________ Telephone:____________________________________ E-Mail:__________________________________________

c Thursday, September 22, 2011 - Gering

c Friday, September 23, 2011 - North Platte

12:30pm - 2:30pm Gering Civic Center 1050 M Street • Gering, NE 69341-2821 *Nebraska MCLE Activity #62019 - 2.0 professional responsibility or regular CLE hours THE NEBRASKA LAWYER

12:30pm - 2:30pm Sandhills Convention Center 2102 South Jeffers Street • North Platte, NE 69101-9694 *Nebraska MCLE Activity #62020 - 2.0 professional responsibility or regular CLE hours 27

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Nebraska State Bar Association Statements of Financial Position Assets

2010

2009

Current Assets Cash and cash equivalents (note A) $ 2,371,300 $ 2,404,312 Accounts receivable (note A) 55,557 21,022 Accounts receivable from related organizations (note F) 20,620 11,626 Prepaid expenses 47,512 15,896 Certificates of Deposit 700,000 700,000 Total current assets

3,194,989

3,152,856

Property AND equipment, net of accumulated depreciation (notes A and B)

236,403

230,361

Total assets

$ 3,431,392

$ 3,383,217

liabilities and net assets Current liabilities Accounts payable $ 30,830 $ 17,849 Assessments payable 389,260 476,990 Current maturity of long-term liability - 2,491 Accrued liabilities 144,064 126,927 Deferred income (note A) 1,652,104 1,452,140 Total current liabilities

2,216,258

2,076,397

Unrestricted - Board designated (note C) Temporarily restricted (Note D)

935,326 279,808

1,059,705 247,115

Total net assets

1,215,134

1,306,820

net assets

Total liabilities and net assets

$ 3,431,392

$ 3,383,217

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Nebraska State Bar Association Statements of activities

2010

2009

CHANGES IN unrestricted net assets Revenue & support Membership dues $ 1,834,554 $ 1,844,256 Publications and label sales 85,551 71,309 Registration Fees 502,778 282,203 Advertising 75,909 71,447 Recovery of costs (note F) 88,643 101,370 Contributions (note F) 479,780 480,207 Interest income 13,314 18,276 Loss on disposal of assets - (4,798) Other income 69,809 50,585

Total revenue and support 3,150,338 2,914,855

Net assets released from restrictions

46,245

44,039

Total unrestricted revenue and support 3,196,583 2,958,894

Expenses (note A) Program services Administration of justice Professional & practice development Supporting services Administration of the Association

700,655 1,259,710

592,883 1,077,811

1,360,597

1,332,422

Total expenses 3,320,962 3,003,116

Decrease in unrestricted assets

(124,379)

(44,222)

changes in temporarily restricted net assets Legislative checkoff dues 2,103 2,498 Other income 13,605 14,730 Section dues 38,230 37,580 Grants 25,000 Net assets released from restrictions (46,245) (44,039) Increase in temporarily restricted assets 32,693 10,769

Decrease in Net Assets (91,686) (33,453)

Net assets, beginning of year 1,306,820 1,340,273 Net assets, end of year

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$ 1,215,134

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$ 1,306,820

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NSBA calendar

NSBA Events Calendar September 2011 1 9 22 23 30

November 2011

Quashing Hunger Food Drive Ends 4 NCLE Real Estate Institute Embassy Suites, La Vista 9 Lane Foundation Ethics Lecture featuring Douglas R. Richmond 11 Gering Civic Center, Gering Lane Foundation Ethics Lecture featuring Douglas R. Richmond Sandhills Convention Center, North Platte 2 NCLE Labor & Employment Law Annual Seminar Embassy Suites, La Vista

NCLE Workers’ Compensation Law Seminar Embassy Suites, La Vista Time Mastery with Frank Sanitate Scott Conference Center, Omaha Guardianship & Conservatorship Update Scott Conference Center, Omaha

December 2011 Negotiation with Martin Latz Scott Conference Center, Omaha

October 2011

March 2012

19-21

9

2010 Estate Planning & Probate Institute

Cornhusker Hotel, Lincoln

NSBA Annual Meeting Cornhusker Hotel, Lincoln

It’s Monday, the First Day of the Rest of Your Life.

Too bad last Friday was the last day to file the Bergstrom motion.

Did you know that missing deadlines continues to be one of the most common mistakes leading to malpractice claims? The failure to file a document is the second most common alleged error and the failure to calendar properly was the fifth most common mistake leading to a malpractice claim*. A dual calendaring system which includes a firm or team networked calendar should be used by every member of your firm.

At Minnesota Lawyers Mutual we don’t just sell you a policy. We work hard to give you the tools and knowledge necessary to reduce your risk of a malpractice claim. We invite you to give us a call at 800-422-1370 or go online at www.mlmins.com and find out for yourself what we mean when we say, “Protecting your practice is our policy.”

* American Bar Association Standing Committee on Lawyers’ Professional Liability. (2008). Profile of Legal Malpractice Claims, 2004-2007. Chicago, IL: Haskins, Paul and Ewins, Kathleen Marie.

800.422.1370 THE NEBRASKA LAWYER

R

Protecting Your Practice is Our Policy.

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www.mlmins.com e p te m ber Life- Nebraska LawyerS2011 1/3page

2011


NSBA news Leadership Academy Class of 2011 David A. Yudelson The Leadership Academy class of 2011 began with a weekend retreat in Lincoln, Nebraska, which focused on becoming “servant leaders.” Servant leaders get things done as a service to themselves and to others. In all, 27 lawyers were part of the class and their practice areas were as diverse and their geography and experience. As a result of the retreat, the class embarked on a community service project designed to support the Backpack for Kids Program through the Food Bank for the Heartland. The Backpack Program provides supplemental food for children who have been identified throughout Nebraska as requiring additional food to take home on the weekends beyond the free or reduced food provided through their school district. Sadly, the need for food simply outweighs the supply at this time. Members of the Leadership Academy helped Food Bank for the Heartland by delivering food throughout the last two months of the school year to various school districts in and around Omaha. In all, Leadership Academy members delivered 803 cases of food, which is 6,424 backpacks, for a total of 23,287 pounds worth of food. According to the Food Bank, thanks in part to the deliveries, 6,424 kids had something to eat on the weekends. In addition to delivering food and to reach a broader segment Nebraska children, the Academy also embarked on a fund-raising project with the help of Sam Clinch and the Nebraska Lawyers Foundation. In total, through the generosity of all of the members of the State Bar Association, the Academy raised over $2,700.00. Because one mission of the Nebraska State Bar Association and the Leadership Academy is to build relationships across Nebraska, the funds raised will be donated to the Food Bank to sponsor the Back Pack Program for an entire year at Madison Elementary in Madison, Nebraska. There are no other food services or pantries in Madison and the need is very high. The children of Madison Elementary will now have weekend food for an entire year, thanks to the generosity of everyone who contributed. Throughout the year, the class also assembled monthly for day-long sessions of continuing legal education that focused on different aspects of practicing law in Nebraska and on becoming active contributors within their communities. For example, in one session, the class met with members of the NSBA and learned about bar governance issues and attended both a unicameral debate and a Judicial Committee hearing. In another

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session, class members met with members of the state and federal judiciary, and discussed the many challenging issues facing the courts and litigants as technology changes, budgets shrink, and civil and criminal case-loads continue to mount. There was even a “life-coaching” session where members learned how to better manage the stress that comes from time to time in the practice of law and how to consider the best ways to leave a lasting mark in the lives of others through the conduct of their own lives. On July 8, 2011, the Academy had a graduation dinner at the Yankee Hill Country Club in Lincoln, Nebraska, which was attended also by Warren and Nancy Whitted, Morgan Kelly and Denise Frost, Linda and Gene Crump, Bill and Crystal Kutilek, Neleigh Korth and Mark Boyer, Steve Mattoon and, of course, Sam Clinch. Bob Bartle and Linda Crump addressed the graduates, and provided each graduate with a heartfelt thanks, a commemorative award, and of course, a request for committee involvement. In exchange for the award, each graduate had to state one thing he or she learned during the course of the Academy, as a display of impromptu speech making ability, or as further testament to the importance of the program in carrying on the tradition of generosity in community service embodied by the Nebraska State Bar Association. Though many of us commented on skills we learned, friendships we made and memories we had of informative sessions both in and outside of the classroom, the most poignant comment came from class member Jason Denman, who stated that among other things, “I learned there are too many hungry kids.” The members of the Class of the NSBA Leadership Academy for 2011 are Abigail Moland; Adam Astley; Bilal Khaleeq; Corey Stull; David A. Yudelson; Desirae Solomon; Garner Girthoffer; Greg Ariza; Janice Holmes; Jason Demman; Jeff Davis; Jennifer Racine; Jerrod Jaeger; JoAnn Abt; Lori Thomas; Lynelle Homolka; Mark Porto; Michael DiLorenzo; Nicholas Wurth; Nicole O’Keefe; Randy Fair; Ryan Sewell; Scott Hahn; Sean Conway; Stephanie Mattoon; Susan Reff; Theresa Koller. They wish to express their sincere gratitude to all of the members of the NSBA who contributed their time, funds and energies toward providing an exceptional experience which left all those who participated with many lasting memories and friendships.

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clerk’s corner

John Friend, Clerk, Douglas County District Court

Watch for this logo to learn about important updates from the Clerk regarding civil practice and procedure in the District Court of Douglas County, Nebraska.

E-filing Proposed orders are now being accepted on e-filing. Proposed orders will be printed and forwarded to the Court Administrator’s Office on a daily basis. Please remember that a proposed order must be submitted on e-filing as a separate document by itself, not included at the end of your motion or stipulation. If the proposed order is submitted with an accompanying motion, the proposed order will be printed, and then deleted. If the proposed order is submitted by itself or without an accompanying motion, the proposed order will be printed, and then deleted or declined. Either way, an email confirmation

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will be generated confirming that the proposed order has been declined but forwarded to the Court Administrator’s Office for submission to the Judge. An email confirmation will also be generated upon acceptance of any motions. An entry will be made to the Register of Actions screen on Justice that a proposed order has been forwarded to the Court Administrator. Proposed orders will not be “accepted” on e-filing and will not be “filed” and receive a dated file-stamp until they are signed by the Judge. For questions related to a specific e-filing, call the contact person at the phone number provided in the confirming email. For general questions, please call Case Processing at 402.444.7018.

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Support

The Nebraska Lawyers Foundation A young woman needs to escape an abusive relationship The Volunteer Lawyers Project is there to help with the legal issues. The accused acts as interpreter for the accuser The Minority Justice Committee has worked to change that in Nebraska. A sole practitioner is injured and her clients are not receiving service The Nebraska Lawyers Assistance Program steps in by providing attorneys to help with the practice until the injured attorney is back on her feet. The Volunteer Lawyers Project, the Minority Justice Committee and the Nebraska Lawyers Assistance Program are all programs funded by the Nebraska Lawyers Foundation. All of the programs of the Nebraska Lawyers Foundation need your support. If not you, then who? Please consider a donation today.

I would like to contribute $_________________ total to: r The Minority Justice Committee r The Nebraska Lawyers Assistance Program r The Volunteer Lawyers Project r Please contact me about including the Nebraska Lawyers Foundation in my estate plans. r I have included the Nebraska Lawyers Foundation in my estate plans. Contributor Name:___________________________________________________________________________________________ (Please print your name as you wish it to appear on recognition lists) r

Check here if you do NOT want to be publicly recognized.

Address:______________________________________________ City:______________________ State:_____ Zip:___________ Telephone:____________________________________ E-Mail:__________________________________________ ______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX Amount enclosed or to be charged $______________ Card number: __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | __ | Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr Please print name on credit card:________________________________________________________________________________ Credit card billing address (if different from above):________________________________________________________________ City:__________________________________________________________ State:_______________ Zip:___________________ Signature:_____________________________________________________________________________________ Please send contributions to: Nebraska Lawyers Foundation, Attn: Greg Fox, PO Box 81809, Lincoln, NE 68501-1809 THE NEBRASKA LAWYER

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legal community news Justice Clarence Thomas to Headline the 2011 Roman L. Hruska Institute Doris Huffman, Nebraska State Bar Foundation Justice Clarence Thomas, United States Supreme Court, is the 2011 Roman L. Hruska Institute distinguished speaker. At noon on Thursday, September 15, Justice Thomas will deliver a lecture at the University of Nebraska – Lincoln College of Law. The public is invited to attend. Thomas was born in the Pin Point community of Georgia near Savannah June 23, 1948. He married Virginia Lamp, a Nebraska native, in 1987; he is the father of one child, Jamal Adeen. Thomas attended Conception Seminary and received an A.B., cum laude, from Holy Cross College, and a J.D. from Yale Law School in 1974. He was admitted to practice in Missouri in 1974 and served as an Assistant Attorney General of Missouri from 1974-1977, an attorney with the Monsanto Company from 1977-1979, and Legislative Assistant to Senator John Danforth from 1979-1981. From 1981-1982, he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission from 1982-1990.

Thomas became Judge of the United States Court of Appeals for the District of Columbia Circuit in 1990. President George H.W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat October 23, 1991. On Friday, September 16, Thomas will observe Constitution Day with students at Lincoln High School and at Northwest High School’s Law, Government, and International Diplomacy Academy in Omaha. He will also participate in the unveiling ceremony of a bronze bust of Chief Standing Bear at the Roman L. Hruska U.S. Courthouse that afternoon. The Hruska Institute recognizes the career of the late Senator Roman L. Hruska who served as United States Senator for Nebraska from 1954 to 1977. He participated prominently in efforts to enhance the administration of justice in the Federal Court. His contributions to the law include many of the crime control reform activities of the 1970. The Hruska Institute is a joint effort of the Nebraska State Bar Foundation, the University of Nebraska College of Law, and the Federal Bar.

The Nebraska State Bar Foundation and United States District Court for the District of Nebraska Cordially invite you to the Unveiling Ceremony of the Standing Bear Bust Friday, September 16th at 3:30 p.m. Roman L. Hruska U.S. Courthouse 4th Floor - Courtroom 1 111 S. 18th Plaza Omaha, Nebraska Reception to follow Please RSVP by Wednesday, September 7th to Cindy McGroarty at cindym@nebarfnd.org or (402) 475-1042.

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NCLE calendar

NCLE Calendar September 2011 7 Webcast: The Art of Advocacy - What Can Lawyers Learn from Actors? Nebraska Activity #59178 (3.33 hours of CLE credit) 9 NCLE Real Estate Institute Embassy Suites, La Vista Nebraska Activity #62184. (6.0 total hours/1.0 professional

Time Mastery with Frank Sanitate Scott Conference Center, Omaha

11

Guardianship & Conservatorship Update Scott Conference Center, Omaha

16 Webcast: Clarence Darrow: Crimes, Causes and the Courtroom Nebraska Activity #59186 (3.0 hours professional responsibility or

responsibility)

Iowa Activity #81297. (6.5 total hours/1.0 professional responsi-

general CLE credit)

bility)

30 Webcast: Maxims, Monarchy, and Sir Thomas More Nebraska Activity #59185 (3.0 hours professional responsibility or

22 Lane Foundation Ethics Lecture featuring Douglas R. Richmond Gering Civic Center, Gering Nebraska Activity #62019 (2.0 hours professional responsibility or

general CLE credit)

general CLE credit)

December 2011 2 Negotiation with Martin Latz Scott Conference Center, Omaha 7 Webcast: The Art of Advocacy - What Can Lawyers Learn from Actors? Nebraska Activity #59179 (3.33 hours of CLE credit)

23 Lane Foundation Ethics Lecture featuring Douglas R. Richmond Sandhills Convention Center, North Platte Nebraska Activity #62020 (2.0 hours professional responsibility or general CLE credit)

28 Webcast: Impeach Justice Douglas! Nebraska Activity #59180 (3.0 hours professional responsibility or

14 Webcast: Thurgood Marshall’s Coming! Nebraska: Activity #59184 (3.0 hours professional responsibility

general CLE credit)

30

9

or general CLE credit)

Labor & Employment Law Annual Seminar Embassy Suites, La Vista

21 Webcast: Lincoln on Professionalism Nebraska Activity #59188 (1.0 hours professional responsibility or

October 2011

general CLE credit)

19 Webcast: Thurgood Marshall’s Coming! Nebraska: Activity #59183 (3.0 hours professional responsibility

28 Webcast: Clarence Darrow: Crimes, Causes and the Courtroom Nebraska Activity #59187 (3.0 hours professional responsibility or

or general CLE credit)

19-21 NSBA Annual Meeting Cornhusker Hotel, Lincoln

general CLE credit)

November 2011

March 2012 9 2012 Estate Planning and Probate Institute Cornhusker Hotel, Lincoln

4 NCLE Workers’ Compensation Law Seminar Embassy Suites, La Vista

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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transitions

Career Changes.......................... ..........................and Relocations Blankenau Wilmoth LLP is pleased to announce the addition of David A. Jarecke. Dave brings with him years of experience representing utility and agribusiness interests, supplementing the firm’s vibrant environmental and natural resources practice. Dave can be reached at 402.475.7084 and dave@aqualawyers.com. Smith, Gardner, Slusky Law has added Aaron Smeall to the firm practicing in the areas of family/domestic relations law and general civil litigation. Smeall has nine years of experience at his own law firm where he practiced family/domestic relations law, civil litigation, employment law Smeall and civil rights law. He has also acted as claims counsel for Fidelity National Title Group and in 2003 worked at the Douglas County Public Defender’s office. Smeall is licensed to practice law in Nebraska and lowa. He received his undergraduate degree and his Master of Arts from the University of Nebraska at Omaha in 1998 and 2000 respectively. In 2003 Smeall received his law degree from Creighton University School of Law. Advent is pleased to announce the addition of Erik Antonson as a Patent Agent. Antonson previously worked as a Patent Agent and Technical Advisor in Omaha, and as a Mechanical Design Engineer in Waco, Texas. He graduated from Baylor University with a Bachelor’s degree in Engineering with Erik Antonson a Mechanical Specialization, and from the University of Nebraska at Omaha with a Master’s degree in Computer Science. At Advent, Antonson will focus on patent drafting, patent prosecution, and patent searching. Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., L.L.O. is pleased to announce that Michael J. Weaver has joined the firm as a shareholder. Mr. Weaver received his B.S.B.A. with majors in accounting and finance from Creighton University in 1987 and received his Juris Michael J. Doctorate, summa cum laude, from Creighton Weaver University School of Law in 1990. He has over 20 years of experience as counsel to businesses and individuals in the areas of general corporate and business law, federal and state taxation, estate, retirement and financial planning, and trust administration and probate. His practice THE NEBRASKA LAWYER

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includes representation of a wide variety of business interests on tax, employee benefits and corporate matters, including sole proprietorships, partnerships, limited liability companies and corporations of all sizes. In addition to spending over 15 years in private practice in Omaha, Nebraska, Mr. Weaver has served as General Counsel to a start-up organization and has served as President and General Counsel for a family business. In support of his financial planning practice, he has passed the Series 7 General Securities Exam, the Series 66 Uniform Combined State Law Exam, and the Nebraska Life and Health Exam. Mr. Weaver has also passed the Certified Public Accountant exam. He is a member of the Omaha, Nebraska State and American Bar Associations. Udall Law Firm, LLP welcomes Thom K. Cope to partnership. Mr. Cope is an employment lawyer, who is a Fellow of the College of Labor and Employment Lawyers. For over 39 years, his practice has focused mainly on employment and labor law issues, as well as general litigation and has tried Thom K. Cope over 80 jury trials to verdict. Mr. Cope has practiced law in New York City, NY, San Francisco, CA and Lincoln, NE. He is member of the California and Nebraska State Bar Associations as well as the Arizona State Bar. As a trained and experienced mediator, Mr. Cope has brought many cases to successful resolution and is a mediator trainer for Arizona Civil Rights Division of the Arizona Attorney General’s Office. Mr. Cope is frequently sought as a lecturer in the employment law field and teaches Business Law, The U.S. Constitution and Organizational Ethics at the University of Phoenix. In addition, Mr. Cope was a Judge in the area of public employment law and has been listed in The Best Lawyers in America and Arizona’s Finest Lawyers. Myers & Daugherty, PC, LLO, is pleased to announce the addition of attorney Stacie Goding. A native of Cairo, Nebraska, Ms. Goding is a graduate of Hastings College and the University of Nebraska. Her law practice emphasizes the needs of individuals and families, including wills and estate planning, probate, family law, bankruptcy and small business planning. Ms Goding is currently serving as President of the Board of Directors of Head Start Child & Family Development Program, as well as a Director of the Crossroads Center shelter in Hastings. She is an adjunct professor at S e p te m ber 2 0 1 1


transitions/awards and recognition Doane College. Ms. Goding will join attorneys Denise Myers and Rachel Daugherty at the offices located at 611 North Diers Avenue in Grand Island. The Omaha law firm of Gross & Welch is pleased to announce that Governor Heineman has appointed Michael W. Pirtle as a Nebraska Court of Appeals Judge and Sheryl L. Lohaus a County Court Judge. This is the first time in Nebraska history that two judges were appointed on the same day from the same firm. Pirtle earned his law degree from the University of Nebraska College of Law in 1978. He joined the firm as a director in 2006. Prior to that, he was a Senior Staff Attorney for American Family Insurance from 2000 to 2006. Since 2010 he has served as Vice Chair of the Nebraska Supreme Court Dispute Resolutions Advisory Council. Pirtle was Michael W. named a fellow of the Nebraska State Bar Pirtle Foundation and received the Midland University Master Teacher Award in 1993. Lohaus earned her law degree from Creighton University School of Law in 1990. She is active in the Nebraska Volunteer Lawyer Project and has served as a guardian ad litem. She has also served as a school board member for St. James Seton and is currently a board member for Madonna School in Omaha. Lohaus completed mediation training programs in Sheryl L. Lohaus 2005 and 2006. ROB HOTZ has been appointed by Governor Dave Heineman to continue to serve as the First Congressional District Commissioner for the Tax Equalization & Review Commission until January 1, 2016. Hotz was first appointed to the

Commission in 2007 and was reappointed in 2010. He will serve as Vice-Chairman of the Commission. Hotz graduated from the University of Nebraska College of Law in 1994. He serves on the Executive Committee of the Nebraska State Bar Association Government Practice Section and is a member of the National Association of Administrative Law Judiciary.

Awards and Recognition Jackson Lewis LLP Partner Joseph Dreesen has been recognized as a certified specialist in labor and employment law by the Minnesota State Bar Association (MSBA.) The MSBA certifies lawyers in four areas: Criminal Law Specialists, Real Property Law Specialists, Civil Trial Law Joseph Dreesen Specialists and Labor and Employment Law Specialists. Fewer than three percent of all licensed Minnesota attorneys have earned the designation as a certified specialist in one of the applicable areas. The labor and employment law certification program is administered by the MSBA and approved by the State Board of Legal Certification. The program qualifies leading labor and employment lawyers through a rigorous approval process that includes an examination, peer review, and documented experience. Certified specialist lawyers have demonstrated superior knowledge, skill, and integrity in their specific field. Resident in the firm’s Omaha office, Mr. Dreesen works with a number of employers throughout the country on numerous employment and labor law issues. He has successfully negotiated numerous collective bargaining agreements, and advised clients in obtaining successful results in union organizing efforts. Mr. Dreesen also has an extensive employment law practice, including handling numerous OSHA and wage and hour matters. Mr. Dreesen earned his J.D., cum laude, in 1980,

➥

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awards and recognition from the University of Minnesota; and his B.A. with distinction in 1977, from the University of Nebraska-Lincoln. He has published multiple articles and been recognized as one of the nation’s top lawyers by Chambers USA. Wolfe, Snowden, Hurd, Luers & Ahl, LLP, is pleased to announce that Renee Eveland is the recipient of the 2011 Nebraska Defense Counsel Association’s first annual “Rising Star” Award. This award is presented to a Nebraska attorney practicing for ten or fewer years who has exhibited skill in defending Renee Eveland businesses and individuals in civil matters with the highest degree of professionalism and ethics and who has also exhibited leadership, mentoring and community service activities outside the practice of law. Ms. Eveland practices primarily in the areas of civil defense and appellate litigation. She currently serves on the board of directors for the Nebraska Defense Counsel Association (“NDCA”) and is the NDCA’s attorney-liaison to the UNL College of Law’s Student DRI organization. She currently serves as the President of Nebraska CASA (“Court Appointed Special Advocates”), a statewide organization that utilizes trained volunteers to speak on behalf

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of abused and neglected children in court. She has testified before the Judiciary Committee on legislation of interest to attorneys and to CASA. Ms. Eveland also serves as the State of Nebraska’s Vice Liaison for the DRI (“Defense Research Institute”) Women in the Law Committee, a national committee committed to promoting the status of women defending the interests of businesses and individuals in civil litigation. Renee was honored to become a partner at Wolfe, Snowden, Hurd, Luers & Ahl, LLP, in 2011. Martindale Hubbel, the national legal publisher, has announced that David L. Herzog, Omaha attorney with Herzog & Herzog, P.C., has earned the highest possible Peer Review Rating of “AV Preeminent” in 2011. These ratings are achieved through surveys of lawyers and judges with whom and before whom the candidate has appeared and worked in his legal capacity. Mr. Herzog is president of the firm which bears his name and has practiced continuously in the state of Nebraska for 49 years, since his graduation from the University of Nebraska College of Law in 1962. He is married to the former Julianne Dunn, also a lawyer, and has three children and four grandchildren. Mr. Herzog practices in the area of litigation in state and federal courts.

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in memoriam Thomas Brice Blount Jr., 64, was born December 2, 1946 and died August 3, 2011. He graduated from Benson High School in 1965, the University of Nebraska - Lincoln in 1970 and the University of Nebraska College of Law in 1973. He was a member of Nebraska, Iowa and American Bar Associations. Preceded in death by son, Michael Blount and parents, Thomas and Peggy Blount. Survived by wife, Flory; son, Sam and daughter-in-law, Adriana, Blount; daughter, Carly Blount; grandchildren: Isabella and Harry Blount; brothers: Martin Blount (Sandy), John Blount (Barbara) and sisters: Beverly Smith (Gordon), Cary Sharkey (Jerry). Barbara J. Gaskins, 63, passed away on Saturday, July 9, 2011, at sea. She was born on Feb. 9, 1948 in McCook, Nebraska. Barbara graduated with honors from Creighton University Law School in Omaha, Nebraska in 1976. She received the Mary Lucretia Creighton Award in 2000. Barbara J. Barbara remained at Creighton Law as assoGaskins ciate dean and assistant law professor for 28 years. She was an avid golfer at Rancho Mariana Golf Club in Cave Creek and the Field Club of Omaha, Nebraska. She also enjoyed playing bridge and reading fiction. She is survived by her husband, Ken; son, John of Lincoln, Nebraska; mother, Virginia Anderson of McCook; sisters, Rebecca Kinney of Leawood, Kansas, and Mary Dueland of McCook; and her brother, Bob Anderson of San Jose, California. C. J. “Jack” Gatz, 78, died July 17, 2011, at Faith Regional Hospital in Norfolk, Nebraska. Funeral services were at Sacred Heart Church in Norfolk, Nebraska, with military rites by the local Nebraska National Honor Guard, American Legion Post 16 and VFW 1644. Jack was born July 31, 1932 in C. J. “Jack” Gatz O’Neill, Nebraska to Clinton J. “Boy” Gatz and Marie (McLeod) Gatz. Jack graduated from SI. Mary’s Catholic High School in O’Neill in 1950. After starting college at UNL, Jack served in the U.S. Army for three years and finished his undergraduate studies in 1958 at Creighton University. On January 26, 1957, Jack married Katherine “Kay” Riley. Their daughter, Jacqueline, was born while Jack and Kay were living in Omaha and Jack was attending Creighton. Jack graduated from Creighton University School of Law in 1961 and was admitted to the Nebraska State Bar in 1961. After law school, Jack and Kay moved to North Platte, Nebraska where Jack ultimately became a partner in the law firm of Maupin, Dent, Kay, Satterfield & Gatz. Jack launched his trial career in North Platte where he enjoyed trying cases in federal and state courts in central and western Nebraska. In 1970, Jack moved to northeast Nebraska THE NEBRASKA LAWYER

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and joined the law firm of Jewell, Otte & Gatz in Norfolk, Nebraska. While residing in Norfolk, Jack and Kay were blessed with a second daughter, Bridget. Over the years, Jack earned a courtroom reputation as a fearless defense lawyer, but at the same time, a lawyer who could be counted on to be candid with the court and whose word to another lawyer was his bond. Court of Appeals Judge William Cassel, a former trial court judge, observed, “When Jack came into a courtroom, he brought joy and friendship with him. He raised the expectations and level of performance of everyone around him. He did things the right way and expected no less from others.” Friend and colleague, Dave Domina, remembers Jack similarly. He said, “Jack was a gentle giant of the courtroom. He never abused an advantage and never connived to create one. Jack Gatz held the respect of everyone who sat across a courtroom table from him. Jack’s ethics were always as immaculate as his demeanor and dress.” Jack was considered by his peers to be a preeminent jury trial lawyer and was involved in many cases which changed the law in Nebraska, especially in the areas of automobile negligence, personal injury and insurance law. Madison lawyer, George Moyer, said, “Losing Jack is like losing an older brother who always tried to beat you at hoops in the driveway. That was great, because Jack kept me sharp.” Jack served on the Nebraska Bar Association’s Executive Council, was a member and president of the Nebraska Association of Trial Attorneys, a Fellow in the Nebraska State Bar Foundation, and counted his membership in the American College of Trial Lawyers as one of his most prized accomplishments. Jack helped found The Link Halfway House in Norfolk and was one of the founding members of the Bar Association’s Nebraska Lawyer’s Assistance Program. NLAP director, Rick Allan, remembers Jack as a “staunch supporter” of the Program and “someone who could be counted on” to help a lawyer in trouble. When the NLAP asked Jack to make contact with a lawyer having difficulty maintaining his or her sobriety, Jack was always available to render assistance. Jack enjoyed reading, driving his Porsche anywhere in Nebraska, and fly-fishing. Jack had a story for nearly every stretch of road in northeast Nebraska and in the Sand Hills. The opportunity to spend time with his grandchildren was one of the only ways Jack could be lured from his legal practice. Jack died following surgery which occurred exactly 50 years after Jack became a Bar member. Jack had no retirement plans because he still loved his work. Jack is survived by his wife, Kay, of Norfolk; his daughters and sonsin-law, Jacqueline Fitzgerald and Mark Fitzgerald, Norfolk, Bridget and David O’Brien, Norfolk; six grandchildren, Kate Fitzgerald, Grace Fitzgerald, Daniel Fitzgerald, Mary Clare O’Brien, Cecilia O’Brien, and John O’Brien; his sister and brother-in-law, Mary Elizabeth Lavigne and John R. Lavigne, Waterloo, Nebraska, and his first cousin who he loved like

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in memoriam a brother, Dr. Ed Gatz, and his wife, Jeanne Gatz, Omaha, Nebraska. Jack is preceded in death by his parents. The family requests that memorials be directed to the Nebraska Lawyers Assistance Program ( NLAP) through the Nebraska Lawyers Foundation, 635 South 14th St, Suite 200, Lincoln NE 68508 (PO Box 81809, Lincoln NE 68501-1809). The defense rests. Gary D. Gustafson, 74, of Lincoln, passed away on Tuesday, July 5, 2011, after a courageous year long struggle with cancer. He was born September 5, 1936 to F. George and Effie (Olsen) Gustafson. Gary was a retired attorney and former director of the Nebraska Power Review Board. He graduated from Lincoln Northeast High School in 1954 where he met Janice (Rolofson) Gustafson. They were married on December 29, 1957. He received his BA from Nebraska Wesleyan and a J.D. from the University of Nebraska in 1963. He maintained a private practice and was legal counsel for the State Department of Public Welfare before assuming his position as Executive Director and General Counsel of the Nebraska Power Review Board, retiring in 1998 after 30 years of service. He was a 50 year member of the Nebraska Bar Association, earning Emeritus status. He was a life-long classic car enthusiast and antique collector. Gary was also a member of St. Mark’s United Methodist Church. Gary is survived by his wife of 53 years, Janice; son, Erik, son and daughter-inlaw, Marc and Peggy Gustafson; daughter and son-in-law, Kristin (Gustafson) Decker and Samuel Decker; granddaughters, Atley and Gracelyn Gustafson and Annika Larsen, all of Lincoln; one niece and two nephews. He was preceded in death by parents; sister, R. Arlene Stump; granddaughter, Heather Gustafson; and nephew, Rick Stump. Evelyn Labode, 70, died in Omaha on May 22, 2011. Born in 1940, Evelyn described herself as a “Wife, Mother, Feminist, Sister, and Grandmother.” She leaves her husband of 46 years, Bode Labode; children: Modupe, Ayo, Moyo, Treena Labode and Jim Scott; grandchildren: Hope Evelyn Labode and Malachi Scott-Labode and Madison Shosten; brother, Percy Thomas of Ellicott City, MD. She was preceded in death by her mother, Lillian Sutton. Memorials may be made to Oblate Sisters of Providence, Knowles Mercy Spirituality Center, St Vincent de Paul Parish Outreach, or Omaha Habitat for Humanity. Evelyn was admitted to the bar in 1992. She was active in the ADR section and in the Center for Children, Families and the Law. Evelyn was a long time member of Omaha 229, Toastmasters. In Evelyn’s own words; “Believing and acting on your beliefs makes all our lives better.

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Larry L. Langdale, 69, of Mission, Texas, formerly of Ferndale, Wash, and Beatrice, passed away in McAllen, Texas Tuesday, July 12, 2011. He was born on Oct. 20, 1941, in Beatrice to Clifford and Leota Pearl (Weideman) Langdale. Larry was a graduate of Beatrice High School and a graduate of the University Of Nebraska in Lincoln Law College. He had been married to Margaret Jean Simic and Gloria Jean Baird. He lived in the Ferndale, Wash, area for over 20 years and then moved to Mission, Texas in 2008 to be near his father. Larry was a member of Christ the King in Bellingham, Wash, and had served as a deacon and an elder; member of the NRA, and an active member of the Nebraska Bar Association. Larry donated a lot of his time, money, legal aid and efforts to help his church and to help under privileged persons in the Ferndale area. He especially enjoyed serving those in need around the holiday season volunteering to serve meals at a homeless shelter in Bellingham, Wash, and tried to involve his children. Larry enjoyed studying history, was an avid reader, and being involved in the lives of his family (especially his twin daughters). Survivors include his children, Paul James Langdale of Tucson, Arizona, and twin daughters Tara and Tiffany Langdale of Sarasota, Fla.; step sons Derrick Ames of Ferndale, Wash, and Charles Ames of Ft. Meyers. Fla; one grandson Kody Ames; sister Judith McCuddin and husband Roger of Wilmington, IL.; and many loved nieces and nephews. He was preceded in death by his parents Clifford and Leota Pearl (Weideman) Langdale. Max Earl Meyer, 92, died July 17, 2011. He was born October 31, 1918 in Norfolk, VA to Judge Earl L. Meyer and Winifred K. Spacht. He graduated from Alliance High School, Kemper Military College, University of Nebraska B.A. 1940, University of Nebraska College of Law J.D. 1942. He served as 2nd Lt. to then Major in the 8th Air Force Intelligence and was in England 1942-1945 and six months in Chaleroi, Belgium in 1945. He received the Bronze Star Medal for his service in World War II. He married Betty Maxwell Dodds on September 22, 1945. He was an associate from 1945-1953 with Lord, Bissell & Brook, now Locke, Lord, Bissell and Lidell. He became a partner of the firm as a tax and corporate lawyer in 1953 and retired in 1985 as Of Counsel. He was a member of the Chicago, Illinois, Nebraska and American Bar Associations. He is survived by his wife, Betty; son Scott M. Meyer, Tempe, AZ; daughter Ann Culliford Meyer, Carpinteria, CA. 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. S e p te m ber 2 0 1 1


classified ads

City Attorney (full-time) Fremont, Nebraska (25 miles from Omaha) – Plans, Directs and provides legal services to City, Mayor, City Council and City departments. Drafts contracts and ordinances. Consults on labor issues. Municipal law experience; labor law experience preferred. Jurist Doctorate from accredited law school. Member of the Nebraska State Bar Association. $6,465–$9,097/monthly. Drug screening. Excellent benefit package. Open until filled. City of Fremont, HR Dept, 400 E. Military Ave, Fremont, NE 68025, jobs@ fremontne.gov, or www.fremontne.gov. EOE. (0911) looking to hire Kearney law firm is looking to hire a recent graduate or an associate with some experience for it’s satellite office in Lexington, Nebraska. Contact Kent Schroeder at lawsoft@rsgblaw.com. Lateral Associate Litigation Attorney with current Nebraska license sought for Grand Island, NE law firm www.gilawfirm.com. Ideal candidate will have 2-4 years of litigation experience including motion skills, deposition and district court trial experience. Ideal candidate will be able to handle a full caseload taking cases from inception through trial/ resolution. This position demands driving and overnight travel

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within Nebraska as most venues are outside of Hall County, NE. Send letter of introduction, resume, including ranking in law school class, as well as writing sample to the attention of Steve Leininger at Leininger, Smith, Johnson, Baack, Placzek & Allen, P. O. Box 790, Grand Island, NE, or email all to the firm’s administrator, jruby@gilawfirm.com. (0911) ASSOCIATE OR OFFICE SHARE: We are currently looking for attorneys with an established client base to join our Omaha firm. Position is perfect for a solo practitioner that wants to enjoy the support of a firm. We would also consider an office share arrangement. Rent is negotiable and includes internet, reception, conference room and printer/copier. Please email with any questions: ryan@LandPLaw.com. (UFN) CONTRACT BRIEF WRITING: Licensed practitioner in Nebraska and Kansas with successful record of Kansas Appellate Court criminal reversals available for brief writing in appellate proceedings. If you don’t have the time to help your clients after the final judgment comes down, call or email to learn more. Katie Martens 402-261-3491, or katie@rpc-legal.com. (0911)

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classified ads 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. (UFN) Wanted to purchase - AmJur Pleading and Practice (current), and AmJur Legal Forms 2nd (current). Contact Sarah at 475-7091 or sludvik@nebar.com. (UFN) FINISHED OFFICE SPACE FOR LEASE. Nebraska bar member has first class office space for lease in College View area of S.E. Lincoln. Total area of space is 1454 sq. ft. and was custom finished as a professional office when the building was constructed approx. ten years ago. Space has two principal offices along with a conference space (expandable), space for assistants, and work and storage areas. For more information contact Tom Graf at NAI FMA Realty at (402) 441-5823. Or e-mail at: tgraf@naifmarealty.com. (0911) Beach house for rent: Nebraska bar member has southwest Florida beach house and brand new 3BR/2BA luxury beach condos for rent. See englewoodbeachhouse.com. Attorney discounts. Contact Lee Hollis 913-385-5400 or email leehollis@hollislawfirm.com. (1211)

Office share arrangement: Available in downtown Omaha for up to two attorneys. Includes considerable common space including two large conference rooms, breakroom, receptionist services, copier, fax and phones. Located next to the Douglas County Courthouse and offering upscale amenities, this office sharing arrangement is ideal for a solo practitioner. Cross referrals available. Please contact Matt Higgins or Tara Clay at 402-933-7600 or higgins@matthigginslaw.com or tara@matthigginslaw.com. (UFN) Office space to share, on the second floor of the Keeline Building (directly across 17th Street from the east side of the Douglas County Court House). Roger R. Holthaus; Holthaus Law Offices; Suite 210; 319 South 17th St.; Omaha, NE 68102; phone (402) 341-5095; Fax (402) 341-5378; rholthaus@holthauslaw.com. (UFN) OFFICE SHARE/ATTORNEY ARRANGEMENTAvailable for up to 4 attorneys. Includes parking, large conference room, break room, secretarial area, storage, phone system, high speed internet and other detailed amenities and arrangements including staff possible. Beautiful new office building located just south of 75th and Pacific Streets. Contact Angela Burmeister or Rick Berkshire, 1301 S. 75th St. Omaha, NE 68124 aburmeister@berkshire-law.com. (UFN)

Thank you

to the sponsors of the 2011 Nebraska/Iowa Solo Small Firm Conference Thursday Lunch Sponsor

ABA Retirement Funds速 CompleteLAW速 Marsh US Consumer Tabs3/Practice Master Minnesota Lawyers Mutual BCC Advisers THE NEBRASKA LAWYER

Continuum Worldwide SmartStart of KS/NE/IA ISBA General Practice Section NSBA General Practice Section

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legal marketplace

Gail E. Boliver j.d. m.b.a.

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Malpractice of Stockbrokers & Financial Consultants

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jeffrey A. boehlert

• Arbitration • Suitability • Churning • Stocks • Bonds • Concentration • Pension Investments - ERISA • Annuities • Insurance Products & Others

Personal Injury, Malpractice, Construction, Business Litigation & Employment Law Matters

www.boliverlaw.com

8712 W Dodge Road, #400 • Omaha

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MEDIATION & ARBITRATION SERVICES

Licensed in Nebraska & Iowa

402-392-0107

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(800) 374-6710

Patterson Law Firm, LLP 505 5th St. • 7th Floor Des Moines, IA 50309

Tel: 515-242-7158 Fax: 515-283-1002 jab@pattersonfirm.com

Thank you to our 15th Annual NSBA Golf Tournament Sponsors! (As of press time)

Co-Sponsors

• Lieben, Whitted, Houghton, Slowiaczek & Cavanagh, P.C., LLO • Lincolnland Printing & Specialties, Inc. • Locher Pavelka Dostal Braddy & Hammes LLC • Mueller Robak LLC • NAI FMA Realty • Nebraska Court Reporters Association • Sodoro Daly & Sodoro • Stinson Morrison Hecker, LLP • US Bank Private Client Group • Welsh & Welsh P.C., L.L.O. • Woods & Aitken LLP

• ABA Retirement Funds Program • Cline Williams Wright Johnson & Oldfather LLP • Embassy Suites Omaha - La Vista Hotel & Conference Center • Husch Blackwell Sanders LLP • Inspro Insurance • Lamson Dugan & Murray, LLP • Marsh Affinity Services • McGrath North Mullin & Kratz, PC LLO • Minnesota Lawyers Mutual

Hole Sponsors • Berkshire & Blunk Law Office • Bradford & Coenen LLC • Cassem Tierney Adams Gotch & Douglas • Continuum Worldwide Corporation • The Daily Record • Johnson Flodman Guenzel & Widger Law Firm • JS Wurm & Associates • Kutak Rock LLP • Latimer Reporting THE NEBRASKA LAWYER

Championship Flight Winner • Donated by Fraser Stryker PC LLO

One Round of Golf for Four with Cart • Donated by the Country Club of Lincoln

Hole in One Contest • Sponsored by Marsh Affinity Services

$100 gift card • Donated by Gross & Welch PC LLO 43

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THE NEBRASKA LAWYER

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MEDICAL MALPRACTICE Who are you going to call?

Sooner or later someone is going to call you about a medical negligence case… Medical negligence litigation is not for the faint of heart or the inexperienced. Medical negligence investigations are difficult, complicated, risky, and expensive. Costs often run into the tens-of-thousands of dollars. Gregory Garland www.garlandlawpc.com

Call us and let us help you help your clients!

Garland Law, P. C. 17002 Marcy Street, Suite 130 One Pacific Springs Omaha, NE 68118

402-330-7000

AV® RATED Martindale-Hubbell recognizes Gregory Garland as an AV® rated attorney, the highest such rating available to any individual lawyer.

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Nebraska Lawyer September 2011