Page 1


28” x 32” oil on panel

Jay Michelsen

Adams County Public Defender’s Office, Hastings, NE Winner of The Nebraska Lawyer’s Second Annual Cover Art Competition

Growing Diversity in the Workforce, with a Focus on Form I-9 Compliance Clete Samson

Guidelines for Avoiding Employment Discrimination Based on National Origin Ben Watson

How to Prepare for Heightened Immigration Enforcement and Compliance in the Trump Era Jessica Feinstein and Amy Peck

Nebraska State Bar Association 635 South 14th Street #200 Lincoln, NE 68508



Nebraska Lawyer Official Publication of the Nebraska State Bar Association • May/June 2017 • Vol. 20 No. 3


3 Hon. Joseph F. Bataillon


President’s Page: The NLAP Legacy


..................................Hon. Joseph


Growing Diversity in the Workforce, with a Focus on Form I-9 Compliance .............................................................. Clete

45 Plain Language Indemnification: Banish the Word!

F. Bataillon

49 Coach’s Corner How Smart Lawyers Squander Talent, and How to Get It Back Again


Guidelines for Avoiding Employment Discrimination Based on National Origin

17 25 31 37

by Josh Headley

54 NSBA News

57 Court News

............... Jessica

61 Volunteer Lawyers Project

58 Legal Community News

Feinstein and Amy Peck

65 Young Lawyers Section Page

A Primer on the Current Interpretation of Workplace Laws

66 NSBA Section Connection 69 Manual Maven


70 NSBA Member Spotlights

Un-Alternative Facts: Why “Where” Matters in Factual Presentation When Moving or Opposing Summary Judgment ............................................................... Robert

How to Prepare for Heightened Immigration Enforcement and Compliance in the Trump Era

....................................................................... Jon

by Susan Ann Koenig

53 Technology Tip When Data Trumps Documents as Evidence

.................................................................. Ben Watson

by Jeffrey S. Ammon

72 Upcoming CLE Programs 75 CLE Faculty Recognition 77 Transitions


80 In Memoriam

“Innocent” Is Not Enough: Barriers to Compensation for the Wrongfully-Prosecuted and -Convicted

86 Legal Marketplace 87 Classified Ads 88 Crossword


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



Nebraska State Bar Association 635 S 14th St. #200, Lincoln, NE 68508 (402) 475-7091 • Fax (402) 475-7098 (800) 927-0117 •

EXECUTIVE COUNCIL President: Hon. Joseph F. Bataillon, Omaha President-Elect: Timothy R. Engler, Lincoln President-Elect Designate: J. Scott Paul, Omaha House of Delegates Chair: Melany S. O’Brien, Omaha House of Delegates Chair-Elect: Jane Langan Mach, Lincoln House of Delegates Chair-Elect Designate: Michael J. McCarthy, North Platte Past President: Thomas M. Maul, Columbus Past House of Delegates Chair: Robert J. Parker, Jr., Hastings First District Rep.: Kim M. Robak, Lincoln Second District Rep.: Kenneth W. Hartman, Omaha Third District Rep.: Jason S. Doele, Norfolk Fourth District Rep.: Hon. Robert F. Rossiter, Jr., Omaha Fifth District Rep.: Julie E. Bear, Plattsmouth Sixth District Rep.: Jon S. Schroeder, Curtis ABA State Delegate: Warren R. Whitted, Jr., Omaha Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln Young Lawyers Section Chair: Geoffrey Thomas, Omaha Executive Director: Liz Neeley, Lincoln

issue editors Allison D. Balus is a partner at Baird Holm in Omaha. She primarily represents management clients in federal and state court employment litigation and arbitration. She earned her Bachelor of Arts Degree in English and French from the University of Nebraska at Lincoln in 1999 and her J.D. from the Georgetown University Law Center in 2002. She is the co-chair of the NSBA Labor Relations & Employment Law Section.

Allison D. Balus Tanya Hansen is a partner at Leininger, Smith, Johnson, Baack, Placzek & Allen in Grand Island. She practices employment law and civil litigation. She earned her M.A. in Political Science in 2003 and J.D. in 2005 from the University of Iowa. In 2012, she was appointed to the Nebraska State Bar Commission. She is the co-chair of the Labor Relations and Employment Law Section.

EDITORIAL BOARD Chair: P. Brian Bartels, Omaha Thomas F. Ackley, Omaha Melodie Turner Bellamy, Minden James C. Bocott, North Platte Elizabeth Stuht Borchers, Omaha Edward E. Brink, Omaha Joel M. Carney, Omaha Daniel E. Cummings, Bellevue Kent E. Endacott, Lincoln Elizabeth Eynon-Kokrda, Omaha Joseph W. Grant, Omaha Andrea M. Jahn, Omaha Brandy R. Johnson, Lincoln

Justin J. Knight, Lincoln John A. Lentz, Lincoln Jeanelle R. Lust, Lincoln Michael W. Meister, Scottsbluff Luke H. Paladino, Omaha David J. Partsch, Nebraska City Edward F. Pohren, Omaha Kathleen Koenig Rockey, Norfolk Monte L. Schatz, Omaha Ronald J. Sedlacek, Lincoln Carol Anderson Svolos, Omaha Colleen E. Timm, Omaha

Executive Council Liaison: Kenneth W. Hartman, Omaha

Tanya Hansen

publications chair

Executive Editor: Sara H. Weber Layout and Design: Sarah Ludvik Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934 ADVERTISING SALES: Sam Clinch NSBA 635 S 14th St. #200 Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125 Fax: (402) 475-7098 CLASSIFIED ADVERTISING: Sarah Ludvik Nebraska State Bar Association (402) 475-7091, ext. 138 •


P. Brian Bartels

P. Brian Bartels is a partner in the Omaha office of Kutak Rock LLP. Brian’s practice includes advising governmental, tax-exempt, and for-profit employers on health and welfare benefit plans, the Patient Protection and Affordable Care Act, and HIPAA compliance. He also advises clients on employee benefit issues in the context of mergers, acquisitions, and divestitures. Brian graduated summa cum laude from Creighton University School of Law. He earned a master of arts degree in political science from Indiana University and a bachelor of arts degree, summa cum laude, from Creighton University.

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.



president’s page

The NLAP Legacy Last issue I promised a good news edition. This is it. The Nebraska Supreme Court has agreed to increase its assistance to the Nebraska Lawyers Assistance Program (NLAP). This support, along with the NSBA’s contribution, ensures the success and continued growth of a program that dates back to the 1990s, when then-President John Brownrigg proposed a formal lawyers’ assistance program to augment the volunteer work of the NSBA Drug and Assistance Committee. An ABA study was conducted, followed by NSBA committee examinations. During the year-long examination, there was some sentiment that impaired lawyers should take care of themselves. Why should the profession be responsible for lawyers who have an addiction problem? There were government programs, and the criminal justice system, if necessary, to provide help. After all, isn’t this a private matter for each lawyer? Then there were others who did not believe the legal profession had an addiction problem. There was some debate about the cost, which by today’s standards was a pittance. It included a qualified part-time director, office space, administrative staff, and travel expenses. This extended examination enlightened many of us to the breadth and perniciousness of addiction in our profession. We came to understand how important it was for the Association to provide a modicum of protection for the public, our clients and our colleagues. In the end, we created a program that has withstood the test of time. NLAP is one of the best services that the NSBA provides (with financial support from the Nebraska Judicial Branch), and it is available to every Nebraska lawyer and law student in need of assistance. To our good fortune twenty-plus years ago, there was a Nebraska lawyer who was already providing addiction assistance to fellow lawyers as a member of the NSBA Drug and Alcoholism Committee. He fully appreciated addiction and the recovery process. He was one of us, a practicing attorney who understood what it was to be a lawyer. He understood the deadlines, the pressure, and the professional responsibility to provide services to a client. He was someone who could personally and credibly relate to a fellow lawyer. Most importantly, he was willing to make room in his practice to head a lawyers’ assistance program. I recall the final House of Delegates vote and the praise heaped upon Rick Allan that day. THE NEBRASKA LAWYER


Hon. Joseph F. Bataillon I doubt we appreciated it then, but our words of praise continue to echo the truth. In the following pages of this magazine you will read about this legal hero. He made NLAP one of the finest lawyers’ assistance programs in the country. He recruited a core cadre of lawyers who assist our impaired sisters and brothers, their families, clients, the courts and the public. He expanded NLAP to provide assistance to lawyers facing any type of issue that impairs their ability to practice, including cognitive decline, stress, depression, and more. Now, after more than 20 years of service, Rick has decided that it is time for him to scale back his work. Therefore, it is time for us to find a new director. A committee composed of members and staff from the NSBA, the Nebraska Supreme Court and NLAP is working diligently to find a suitable replacement for Rick. It is imperative we continue to build this program. It must continue to provide confidential assistance to help lawyers recover from problems that impair their ability to responsibly practice law. With the court’s continued financial assistance, I have no doubt a future president will be singing NLAP’s praise another 20 years from now. Today, however, we need to thank Rick for his service and his continuing efforts to help those of us in need. Please join the NSBA in wishing Rick well at the Lincoln Country Club on June 29, 2017, from 3:00 pm - 6:00 pm.

Hon. Joseph F. Bataillon, President Phone: (402) 661-7302 Email: MAY/JUNE 2017

2017 NSBA Member Benefits & Programs Please take a moment to make sure you’re taking full advantage of your NSBA member benefits. To learn more about these benefits, visit

Core Member Benefits

Support the Public

Casemaker: Unlimited access to a vast online legal research

Volunteer Lawyers Project: Provides pro bono opportu-

engine including legal authorities for all 50 states and the federal government and a mobile application. Casemaker premium services also vaailable for free: Casecheck+, Citecheck+, and Casemaker Digest. Access to Casemaker is valued at $450 per year.

nities to Nebraska lawyers to serve low income Nebraskans through case placement, online legal assistance through Nebraska Free Legal Answers (, and Self-Help Desks for pro se litigants.

Client Assistance Fund: Provides financial assistance to cli-

Free and Reduced-Cost CLE: Receive two free hours of eth-

ents who have suffered financial loss due to dishonest acts by a Nebraska attorney.

ics credit at certain NSBA-produced seminars and webinars (a $130 value) as well as a significant discount on all NSBA-produced CLE seminars and webinars, including our On-Demand webinars at

Rural Practice Initiative: Expands access to legal services by helping to facilitate the placement of attorneys in underserved communities.

Child Support Calculator: Unlimited free access to the Ne-

Professional Growth & Support

braska Child Support Calculator, a state-of-the-art platform for calculating child support in all Nebraska courts, valued at $109 per year.

through Section events, seminars and listservs. Access resources developed specifically for your area of practice.

Nebraska Lawyers Assistance Program (NLAP): Provides confidential assistance to lawyers, judges, and law students for substance abuse, stress, depression, and other issues negatively impacting their professional and personal lives. NLAP also assists Nebraska lawyers suffering from any kind of injury or illness that leaves them unable to work and assists attorneys transitioning out of practice.

NebDocs: NebDocs is a document assembly system on a Hot-

The Nebraska Lawyer Magazine: Published bi-monthly,

NSBA Library: Access past NSBA seminar materials, manuals,

forms, and videos, all categorized by practice area.

Sections: Connect with other attorneys in your areas of practice

Docs platform that covers most practice areas. NebDocs templates automatically create customized documents based on the answers given—saving members time, effort, and money in the production of documents and forms (available for an additional fee).

the magazine provides information on legal topics, practice tips, and ethics, as well as information and news from the NSBA, the courts, and your colleagues.

Leadership Academy: Nurtures effective leadership with respect to ethical, professional, and community service issues; builds relationships among legal leaders across the state and disciplines; raises awareness regarding issues facing the profession; and enhances the diversity of leaders within the profession.

Find-A-Lawyer: Let the NSBA help connect you with potential clients through its new Lawyer Referral Program (available at a discount). NetWORKS!: Join the NSBA’s Professional Networking Group to be matched with six lawyers for coffee or lunch at your mutual convenience throughout the year. Join groups in Omaha, Lincoln and/or Greater Nebraska.

SOLACE: A mechanism to request support for anyone within the legal community who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury through the help of a statewide volunteer attorney group.

SoFi: SoFi consolidates and refinances federal and private student loans to offer rates customized to you, creating meaningful savings. For more information and to qualify for a $300 welcome bonus, visit or call Michael Phillips at (855) 456-7634.

Strengthen the Courts Judicial Resources Committee: The NSBA proposes, considers, and comments on the creation, reduction, and relocation of judicial vacancies in the state courts.

Insurance: Through its partnership with Mercer Health & Ben-

efits Administration, the NSBA offers a full range of insurance options, including health, life, disability, and employment practice liability. Our most popular option is our professional liability coverage. Mercer is the exclusive provider of professional liability insurance to members of the NSBA. For additional information on insurance products, call 1-866-236-6582 or visit For professional liability inquires, contact John Collentine at (800) 328-4671

Legislative Program: The NSBA supports the court system

and represents the professional interests of attorneys before the Nebraska legislature through the introduction of legislation and the review of bills introduced each session.

Self-Help Desks: Provides assistance to Courts across the state as they face an increasing number of pro se litigants.

Room Rental: Free rental of the NSBA’s conference rooms. Call the NSBA at (402) 475-7091 to reserve. THE NEBRASKA LAWYER



feature article

Growing Diversity in the Workforce, with a Focus on Form I-9 Compliance by Clete Samson

It was former President George H.W. Bush who famously said, “[w]e’re a nation of community … a brilliant diversity spreads like stars, like a thousand points of light in a broad and peaceful sky.”1 And it was Cesar Chavez who said, “[p]reservation of one’s own culture does not require contempt or disrespect for other cultures.”2 And Mahatma Gandhi who said, “[n]o culture can live if it attempts to be exclusive.”3 Yet, as a federal trial attorney for U.S. Immigration and Customs Enforcement (“ICE”), the most common statement I heard from U.S. employers was, “Why does ICE care about us; we only have American citizens working here.” This statement

Clete Samson Clete Samson, of Kutak Rock in Omaha, focuses his practice in immigration law, worksite compliance, employment law, and litigation. Having previously served for seven years as a federal trial attorney for the U.S. Department of Homeland Security, Mr. Samson has extensive knowledge of the Immigration and Nationality Act and the Immigration Reform and Control Act of 1986, including the proper preparation and maintenance of the Form I-9, the civil penalties for improper compliance, the civil and criminal penalties for hiring and employing individuals without employment authorization, worksite enforcement and other related issues. He has been a frequent presenter on a variety of immigration and worksite compliance issues. THE NEBRASKA LAWYER

was typically later followed by an exclamatory, “ICE is fining us over $1,000 per I-9 for our paperwork mistakes!” In a time when the U.S. workforce is growing more diverse and an individual’s immigration status is more highly scrutinized, employers must educate themselves on the various ways in which individuals can establish work authorization in the United States. In 1986, Congress passed the Immigration Reform and Control Act (“IRCA”), through a bipartisan effort, in an attempt to restrict and deter illegal immigration to the United States by, among other things, implementing the requirement that employers verify identity and employment authorization for all individuals seeking employment in the United States.4 Viewing employment as a “magnet” that attracts individuals to enter and reside in the United States illegally, IRCA’s purpose was essentially to force employers to hire only individuals who may legally work in the United States, which would include U.S. citizens, noncitizen nationals, lawful permanent residents (green card holders), and aliens authorized to work through a visa or some other immigration application, program, or benefit.5 IRCA’s passage eventually led to the creation of the Form I-9 requirement.6 Ironically, even though the purpose of the employer sanctions law was to restrict employment in the United States to only work-eligible individuals, the law at the same time prohibited employment discrimination based on citizenship, immigration status, and national origin.7 So, while an employer may honestly believe hiring only American citizens makes it immune from immigration penalties, doing so actually constitutes unlawful discrimination and provides no shield to liability for improper I-9 compliance. In reality, employers are better advised to learn the different immigrant statuses that allow an individual to lawfully work in the United States and to under-



GROWING DIVERSITY IN THE WORKPLACE stand the importance of avoiding hiring practices that may discriminate against individuals on account of their national origin or immigration status. Even more importantly, as a result of heightened immigration enforcement under President Trump’s administration, companies should immediately review their I-9 compliance and begin to focus on diversifying their workforce. After all, businesses that fail to see the importance of diversity in their workforces lose advantages in the areas of language, market insight, innovation, and global understanding. This article will discuss ways U.S. employers can avoid discriminating against foreign-born individuals in their hiring practices, the anticipated increased employment verification enforcement under President Trump, the new fine structure for Form I-9 verification violations, the most common errors employers make in completing the Form I-9, and other recent changes in the world of worksite enforcement.

Avoiding Unlawful Discrimination at the Time of Hire The U.S. Department of Homeland Security (“DHS”) was created as part of the Homeland Security Act of 2002. Two of its agencies, U.S. Citizenship and Immigration Services (“USCIS”) and ICE, are responsible for overseeing alien employment authorization and verification. More specifically, USCIS is responsible for creating and revising the Form I-9, determining which documents establish employment authorization, and overseeing the E-Verify employment eligibility verification program. ICE, on the other hand, is responsible for enforcing the penalty provisions of section 274A of the Immigration and Nationality Act (“INA”).8 Importantly, the U.S. Department of Justice (“DOJ”) also plays a role in alien employment authorization and verification. DOJ is responsible for the enforcement of the anti-discrimination provisions in section 274B of the INA and also for the administrative adjudication of cases filed under INA sections 274A, 274B, and 274C. With that background, the INA prohibits four basic types of unlawful discriminatory conduct: (1) unfair documentary practices during the Form I-9 process; (2) citizenship or immigration status discrimination; (3) national origin discrimination; and (4) retaliation or intimidation.9 Some employers, operating under the mistaken belief they are allowed to go beyond what the law requires in the employment verification process, may request certain individuals to produce more documentation than is required to establish that individual’s identity and/or employment authorization based only on perceived national origin or immigration status. For example, USCIS publishes a List of Acceptable Documents that applicants may choose from to provide to employers to establish identity and employment eligibility within the first THE NEBRASKA LAWYER


three days of starting employment.10 While employers must accept a List A or List B and List C document approved by USCIS, some employers may attempt to require a specific document from specific groups of individuals because of the way they look or speak during the hiring process. Or, some employers may think it is wise to make copies of the documents presented at the time of hire for only those individuals that appear foreign born. Or, finally, some employers may attempt to require employees to provide their social security numbers on the Form I-9 at the time of hire because of the way they look or sound despite the fact doing so is strictly voluntary on the part of employees (unless the employer participates in E-Verify). The above examples constitute hiring practices that likely violate the INA’s anti-discrimination provisions. The advice I most often give human resources personnel is to adopt an almost robotic method when verifying identity and employment authorization during the Form I-9 process. Employers should not look beyond the documentation that an employee provides at the start of employment. Employers must understand they are required and expected to correctly complete the Form I-9; they are not required to become document fraud experts or quasi-federal agents during the hiring process. Employers must avoid making presumptions as to an applicant’s immigration status or inquiries such as “are you a U.S. citizen?” during the hiring process. To summarize, an employer should not: (1) limit jobs to U.S. citizens; (2) refuse to hire someone based on his or her national origin; (3) have different requirements for individuals based on their perceived national origin, citizenship, or immigration status; (4) request specific documents other than those allowed from USCIS’s List of Acceptable Documents; (5) refuse to accept allowable documents simply because they have a future expiration date tied to an individual’s current immigration status; or (6) retaliate against any employee who attempts to assert his or her rights under the INA’s anti-discrimination provision.11

President Trump’s Executive Orders Unless you have lived in a cave since January, you understand we are living in unprecedented times in the world of immigration. To recap, since taking office, President Trump has, among other things, issued several executive orders which: (1) imposed a travel ban against anyone arriving from any of seven Muslimmajority countries suspended refugee processing for 120 days, and placed an indefinite ban on Syrian refugees (all of which was later halted by federal judges across the country);12 (2) declared the United States would build “a contiguous, physical wall or other similarly secure, contiguous, and impassable physical barrier” along its southern border;13 (3) rescinded President Obama’s administration’s attempt to prioritize removal for only those aliens with significant criminal history;14 (4) expanded MAY/JUNE 2017

GROWING DIVERSITY IN THE WORKPLACE those aliens who will be considered priorities for arrest and deportation to any removable aliens who have been convicted of or charged with any criminal offense;15 and (5) reissued a second travel ban in attempt to remedy the legal pitfalls of the first travel ban discussed above.16 U.S. employers, watching the action from afar, should be particularly concerned with two directives that were included as part of President Trump’s Executive Order entitled “Enhancing Public Safety in the Interior of the United States,” which provided guidance to all DHS agencies regarding the enforcement of the immigration laws of the United States.17 To implement this Executive Order, DHS Secretary John Kelly issued a memorandum on February 20, 2017, which directed ICE to, among other things, expeditiously hire 10,000 agents and officers as a means to enforce the immigration laws more effectively.18 This same memorandum also directed ICE to ensure the assessment and collection of all fines and penalties which DHS was authorized under the law to assess and collect from those who facilitate the unlawful presence of undocumented individuals.19 The combination of these two directives can lead to only one conclusion: employers must be ready for ICE to conduct more I-9 audits and levy more civil penalties for poor I-9 compliance. To put this in perspective, ICE was already aggressive in levying civil fines against employers for knowing employment of unauthorized workers and I-9 violations during



President Obama’s administration. In fact, from 2009 to 2014, ICE imposed about $63 million in civil fines against employers as part of its worksite enforcement program.20 With President Trump expected to increase the government’s immigration enforcement against companies, employers literally cannot afford to wait to get their I-9 houses in order. In addition to reviewing their I-9 compliance, employers in certain industries would be wise to perhaps create raid response plans to minimize and prepare for the impact to their company if large numbers of employees are arrested by ICE and pulled off jobs. Industries such as agriculture, construction, and hospitality are especially prone to large-scale enforcement actions as those industries typically employ the largest share of all unauthorized workers.21 Prior to 2009, ICE conducted large-scale “raids” or “operations” at worksites in a manner that allowed ICE to arrest a large number of unauthorized workers in one large sweep. The two that come to mind quickly for Nebraska attorneys are those raids that occurred at the Swift plant in Grand Island in 200622 and the Agriprocessors plants in Postville, Iowa, in 2008.23 These so-called “workplace raids” were essentially nonexistent during President Obama’s two terms in office. In fact, ICE revised its worksite enforcement strategy in 2009 to prioritize identifying employers who knowingly hire illegal workers and


GROWING DIVERSITY IN THE WORKPLACE to create a culture of compliance by using all available civil and administrative tools to penalize and deter illegal employment.24 While it remains to be seen whether ICE will return to large-scale workplace raids under President Trump’s administration, ICE did already conduct a large-scale operation in February in which more than fifty undocumented individuals were arrested at a string of restaurants in Mississippi.25 Given the current political climate and President Trump’s promise to aggressively enforce the nation’s immigration laws, employers must prepare themselves for possible immigration enforcement that reaches company property. And, again, the best way for a company to prepare for a visit from ICE is to ensure it is properly completing a Form I-9 for each and every employee.

DHS Also Recently Doubled Its Fine Amounts In addition to its plans to increase its immigration workforce by 10,000 workers, DHS also recently doubled the amount it can fine employers “per I-9” for substantive and uncorrected technical I-9 violations. Section 701 of the Bipartisan Budget Act of 2015 (also known as the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015”) requires all federal agencies to annually update “each civil monetary penalty provided by law within the jurisdiction of the federal agency.”26 As a result of Section 701, DOJ, DHS, and the Department of Labor (“DOL”) increased the civil fines for employers that commit immigration-related offenses, including Form I-9 and E-Verify violations, H-1B and H-2B program violations, knowingly employing unauthorized workers, and other unfair immigration employment practices. The new penalties, which went into effect on August 1, 2016, apply only to violations occurring after November 2, 2015.27 The most substantial increases in civil fines involve I-9 paperwork violations. The penalties for I-9 violations were increased by 96% with a new range of $216 to $2,156 per I-9 violation.28 It is important for employers to understand an I-9 paperwork violation can be as minimal as a missing signature, document title, or expiration date on a valid List A, B, or C document. It is essential that employers are filling out the I-9 entirely and correctly, regardless of whether the employee is a U.S. citizen, to avoid these potential serious fines levied by DHS.

A Focus on I-9 Compliance With the substantial increase in potential fines and the heightened scrutiny on immigration, employers should be regularly conducting internal audits and correcting Form I-9 mistakes pursuant to DHS’s accepted practices.29 A regular self-audit can help mitigate possible fines if, and when, DHS comes knocking at the company door. THE NEBRASKA LAWYER


The New Form I-9 Importantly, employers must now be using the newest version of the Form I-9 (marked 11/14/2016), which became effective January 22, 2017.30 Although the core requirements of the new Form I-9 did not change, there are some notable changes for employers to incorporate into their I-9 practices. For example, in Section 1, employees may no longer leave certain information blank, but should rather enter N/A in those fields that were previously left blank, such as the middle initial, apartment number, email address, or social security number. Moreover, if a new hire attests to being a foreign national authorized to work in the United States, he or she can now provide either an alien registration number, a Form I-94 admission number, or a foreign passport number, rather than providing both an I-94 number and foreign passport information as was required on previous versions of the Form I-9. In Section 2, a new field was added which asks the employer to indicate the new hire’s citizenship or immigration status. As a result, employers must now enter the corresponding numeral (1, 2, 3, 4) from the employee’s attestation in Section 1. Also, a new large box was added in Section 2 to allow employers to enter additional information, such as employment authorization extensions for H-1B, CAP-GAP, or F-1 OPT or any additional comments or notations necessary for the employer’s business process, including E-Verify results. No changes were made to Section 3 on the new form.

The Most Common I-9 Mistakes Made by Employers For years, I handled cases on behalf of ICE in which employers made the same mistakes over and over on their Forms I-9, costing their companies thousands of dollars in civil fines. Most I-9 errors can be avoided through attention to detail during those five minutes that an HR representative is sitting across from a new hire as he or she fills out his or her Form I-9. With regard to Section 1, the most common mistakes an employer will make are failing to ensure the employee (1) attests to an immigration status by checking the appropriate box, and (2) includes his or her alien registration number, Form I-94 admission number, or foreign passport number on the appropriate line. With regard to Section 2, the most common mistakes employers make are (1) failing to sign and provide the authorized representative’s printed name below the attestation, (2) failing to include the employee’s first date of employment under the attestation, and (3) failing to include the correct document title, issuing authority, and document number of the documents they reviewed in Section 2. As for Section 3, the most common mistake is a wholesale failure on the part of the employer to reverify an employee’s employment authorization document that has expired. This MAY/JUNE 2017

GROWING DIVERSITY IN THE WORKPLACE is perhaps the most serious violation of all because it can lead to a charge of knowingly continued employment of an unauthorized alien in violation of INA section 274A(a)(2), which carries an even greater penalty than an I-9 paperwork violation. Because of the seriousness of an employer’s failure to reverify employment authorization, employers should utilize a calendar notification system that alerts them approximately ninety days before an employee’s work authorization is set to expire to remind them to meet with the employee to reverify employment authorization. Moreover, employers would be well-advised to use a separate file for any Forms I-9 that will need reverification at some later date, so they can be easily accessed and monitored.

I-9 Retention An employer must retain a Form I-9 for every employee’s length of employment plus one additional year following termination, or three years from the date of hire, whichever is later.31 It is highly recommended that employers utilize a calendar notification system and purging policy that alerts them whenever they are no longer required to retain a former employee’s Form I-9. By doing so, the employer effectively minimizes its exposure to liability as part of an audit by purging all I-9s it is no longer required to retain. It is also a best practice for employers to retain their Forms I-9 in separate files or folders for current employees and terminated employees. Finally, Forms I-9 should be retained in a manner that allows a company to quickly access the forms in the event of an ICE audit. If ICE does serve a company with a Notice of Inspection, the company will have only three business days’ notice to provide all of its original Forms I-9 to ICE.


Endnotes 1

Former President George H.W. Bush, Address Accepting the Presidential Nomination at the Republican National Convention in New Orleans, (August 18, 1988), http://www.presidency.ucsb. edu/ws/?pid=25955.


Educ. of the Heart - Quotes by Cesar Chavez, United Farm Workers, history/09.html.


No Culture Isolation for Me, Bombay Sarvodaya Mandal, http:// (last updated Feb. 26, 2011).


The Immigration Reform and Control Act (IRCA), Pub. L. No 99–603, 100 Stat. 3445 (1986).

5 United

States Citizenship and Immigration Services, Form M-274: Handbook for Employers: Instructions for Completing Form I-9 (Employment Eligibility Form) (Jan. 22, 2017).




INA § 274B.


The Homeland Security Act (HSA) of 2002, Pub. L. No. 107–296, 116 Stat. 2135 (2002).


INA § 274B.

10 United

States Citizenship and Immigration Services, Form M-274: Handbook for Employers: Instructions for Completing Form I-9 (Employment Eligibility Form) (Jan. 22, 2017).

11 INA

§ 274B.

12 Protecting

the Nation from Foreign Terrorist Entry into the United States, Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

13 Border

Security and Immigration Enforcement Improvements, Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017).

14 Enhancing

Public Safety in the Interior of the United States, Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017).

15 Id. 16 Protecting

the Nation from Foreign Terrorist Entry into the United States, Exec. Order No. 13780, 82 Fed. Reg. 13,209 (March 6, 2017).

17 Enhancing

Public Safety in the Interior of the United States, Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017).

18 Sec.

J. Kelly, Enforcement of the Immigration Laws to Serve the National Interest Memorandum, Washington D.C.: Department of Homeland Security (Feb. 20, 2017).

Although it is often proclaimed that America is a nation of immigrants, the fear and paranoia of immigrants overtaking the United States is nothing new in American history. In fact, as early as the 1750s, Benjamin Franklin remarked about German immigrants coming to America, “[w]hy should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion.”

19 Id.

American employers must resist such baseless fear of hiring non-citizen workers and enjoy the advantages of diversity in their workforces by adopting hiring practices that not only comply with the INA, but also avoid discriminating against prospective employees on the basis of their immigration statuses or national origins. By complying with IRCA’s Form I-9 requirement, American employers may rest assured they have met their obligation to ensure the employment eligibility of their workforces.

23 Spencer



20 Jessica

Vaughan, ICE Records Reveal Steep Drop in Worksite Enforcement Since 2013, Center for Immigration Studies (June 2015),

21 Jeffrey

Passel and D’Vera Cohn, Industries of Unauthorized Immigrant Workers, (Nov. 3, 2016), http://www.pewhispanic. org/2016/11/03/industries-of-unauthorized-immigrant-workers/.

22 Jerry

Kammer, The 2006 Swift Raids: Assessing the Impact of Immigration Enforcement Actions at Six Facilities, Center for Immigration Studies (March 2009), http://cis. org/2006SwiftRaids.

S. Hsu, Immigration Raid Jars a Small Town (May 18, 2008), article/2008/05/17/AR2008051702474.html.

24 Office

of Inspector General, OIG-14-33, U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process 1 (2014).

25 Sarah

Fowler, 55 Detained in Miss. Rest. Immigration Raids (Feb 23, 2017), news/local/2017/02/23/mississippi-restaurant-immigrationraid-detainees/98294230.

26 Federal

Civil Penalties Inflation Adjustment Act Improvements

➡ MAY/JUNE 2017

GROWING DIVERSITY IN THE WORKPLACE Act of 2015, Public Law 114-74, 701 (2015), quote found in 28 U.S.C. 2461, sec. 4(1).

30 I-9

Central, U.S. Citizenship and Immigration Services, https:// (last updated Feb. 13, 2017).

27 Id.

31 United

States Citizenship and Immigration Services, Form M-274: Handbook for Employers: Instructions for Completing Form I-9 (Employment Eligibility Form) 31, (Jan. 22, 2017).

28 Penalties,

U.S. Citizenship and Immigration Services, https:// (last updated Feb. 15, 2017).

32 Benjamin

Franklin, America as a Land of Opportunity, Digital History, cfm?sm+ID=3&psid=85.

29 Correcting

Form I-9, U.S. Citizenship and Immigration Services, correcting-form-i-9 (last updated Feb. 15, 2017).

How to Appeal to Your New Audience, The Appellate Court Friday, July 14, 2017 • 1:30 pm - 3:30 pm CST Lunch (optional) to be served at 12:30 pm

Scott Conference Center • 6450 Pine St, Omaha, NE 68106 *Nebraska MCLE #140102. Iowa MCLE #258530. 2 CLE hours. (Regular/Live credit) On appeal, the audience changes. Appellate courts care about appellate jurisdiction, preservation, and standards of review. They confine themselves to the appellate record, and they require that the record reveal that any error was prejudicial before they will grant relief. Appellate courts are concerned with how their decisions will affect future cases, not just with the best result in your case. To be most effective on appeal, attorneys should address all of the unique concerns of the unique appellate audience. This CLE addresses how to do that.

The CLE will be preceded by a lunch, open to everyone and sponsored by the NSBA and the Appellate Practice Section. Troy Booher’s professional career is devoted to appellate practice. He has handled more than 80 appeals and delivered more than 30 oral arguments. He also enjoys his work as a clinical professor at the S.J. Quinney College of Law. He currently serves on the Utah Supreme Court Advisory Committee on the Rules of Appellate Procedure.

REGISTRATION FORM: How to Appeal to Your New Audience, The Appellate Court - July 14, 2017 c $130 - Regular Registration c $100 - NSBA dues-paying member (discounted price for NSBA dues-paying members) c $7 - Lunch at 12:30 pm (optional) c Free - Law Students

* Please note any dietary requirements/restrictions:_____________________________________________________________ Name:_____________________________________________________________________Bar #_________________________ 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:________________________________________________________________________________________________ Make checks payable to NSBA and return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or email to Staci Williams at You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA. THE NEBRASKA LAWYER






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• Tabs3 - Save up to 20% on Tabs3 and PracticeMaster Software through the end of 2016! Tabs3 Software is extending a 10% discount (with no dollar limit) on all new licenses and upgrades of Tabs3 and PracticeMaster software in 2016 to all members of the NSBA, with an additional 10% discount on the Platinum version of Tabs3 software! The Tabs3 software suite ranges from billing to practice management, check writing to general ledger, and document management to trust accounting. Call us at (402) 419-2200 or visit nsba for more information and to download a free trial!



feature article

Guidelines for Avoiding Employment Discrimination Based on National Origin by Ben Watson

The Equal Employment Opportunity Commission (EEOC) is a fairly small federal agency (with around 2,500 employees),1 and yet its work affects nearly every employer operating in, and even some operating outside of, the United States. The EEOC was created by Title VII of the Civil Rights Act of 1964, which also makes discrimination in employment because of race, color, national origin, sex or religion illegal. Newly released guidance2 from the EEOC on one of those protected classes, national origin, was released this past November and is the subject of this article. Keeping up with guidance from federal agencies can be daunting. Sometimes lost in this process is the fact that there are state-equivalent laws and agencies that are also being steered and molded by this constant flow of guidance. The Nebraska Equal Opportunity Commission (NEOC) and Nebraska’s Fair Employment Practices Act (FEPA), Neb. Rev. Stat. §§ 48-1101-1126, are two such equivalent agencies/

Ben Watson Ben Watson is honored to serve as the Unit Director of Housing Investigations, Education and Outreach at the Nebraska Equal Opportunity Commission. In that role he offers free training in employment and housing discrimination laws and enforcement throughout the state. Ben has been investigating Title VII, VIII and IX cases for the past decade. Prior to his work at the NEOC, he specialized in investigating college sexual assaults and harassment, as well as educating faculty, staff and students in the same. THE NEBRASKA LAWYER


laws. The NEOC and Federal EEOC and our comparable laws are so equivalent that we are referred to as “substantially equivalent,” which has allowed the creation of a workshare agreement between the two agencies where the grand majority of our employment cases are dual-filed. Under that agreement, investigation results by the NEOC are adopted by the EEOC, and vice-versa, within jurisdictional limits. In addition, the NEOC is in constant contact with the EEOC, and partners on training, education and outreach. As the Unit Director of Education and Outreach, I am often asked to speak on both the relationship between the NEOC and the EEOC and the effect the EEOC’s guidance has on Nebraska FEPA cases. Most Nebraska employers know that they are much more likely to encounter the NEOC, or the municipal equivalent agencies in Omaha (the Omaha Human Rights and Relations Department, or OHRRD) and Lincoln (the Lincoln Commission on Human Rights, or LCHR), than the EEOC should an employee file against them. Our workshare agreement means that, except where a case is especially groundbreaking in one of the EEOC’s current areas of focus, the EEOC is more often than not going to refer the case to the NEOC, OHRRD or LCHR for primary investigation per our workshare, even if a complainant originally contacts and files with the EEOC. Before I get into the actual substance of the new guidance, I wanted to clarify something I have been asked several times recently: what effect does a new federal administration have on guidance like this? My answer: pretty much none thus far. Unlike other federal agencies, the EEOC is set up in a way that minimizes the effect that a change in administration has, at least in the short term. The federal Commission is made up of five Commissioners who are nominated by the President and serve out set terms. Currently there are four Commissioners


EMPLOYMENT DISCRIMINATION BASED ON NATIONAL ORIGIN and one vacancy.3 Three of the current Commissioners are Democrats, and one Republican, as the vacant spot was a Republican who was not reappointed last year. Besides the power to nominate a new Commissioner, the President also has the power to appoint a new Chair, which he did in January by naming the only remaining Republican acting chair. The previous Democratic-affiliated chair is now serving as a demoted Commissioner.4 Due to the way the Commission works, even after the President nominates and the Senate confirms a new Commissioner, Democrats will still hold a three-to-two majority until July, when the first Democrat Commissioner’s term is up and is eligible for replacement.5 The President can also appoint a General Counsel to the Commission, a position which is also currently vacant.6 As a result of these factors, the politics of the EEOC are much more stable and slow to change than other cabinet-level agencies such as HUD, which does similar anti-discrimination work in housing, but serves at the whim of a single cabinet-level Secretary. In other words, don’t expect this guidance to immediately or even possibly ever be scrapped due to a change in philosophy in Washington. The most likely change is budgetary. A more conservative government can mean a reduction or freeze in resources, which would mean the EEOC would have to back off from any number of projects or cases that it would no longer have the ability to see to completion. This, however, does not affect the EEOC’s overall stance or position on topics such as National Origin guidance. Enough said on politics. Let’s get into the points the EEOC is endeavoring to make with its guidance. Like all such documents, this new release is considered to be sub-regulatory guidance. The main purpose of such guidance is to update the public, and EEOC internally, on the Commissioners’ position on select topics. This national origin guidance was first released in June 2016, asking for public input in a 30 day window.7 The EEOC then utilized the public input they received to draft the final version of the guidance, which was released in November. The most central issue the new guidance addresses is the definition of National Origin. The definition of this protected class was most recently addressed in the EEOC’s compliance manual in 2002, where it was described as “treating someone less favorably because that individual (or his or her ancestors) is from a certain place or belongs to a particular national origin group.”8 In this new guidance the EEOC expands upon that meaning by specifying what it means to “belong” to a particular national origin group by specifying physical, cultural or linguistic characteristics as a way to tell if a person is from “a particular national origin group.” This is not so much a redefining of the term, but more a clarification of what it can mean to “belong.” In most national origin cases we see at the NEOC differing THE NEBRASKA LAWYER


treatment because of characteristics stands out, so this clarification is welcome. Often complainants are treated differently because of an accent or other characteristic that sets them apart from their coworkers. These are the things that often signal to us that somebody might belong to a particular national origin. The new guidance also takes care to specify that place of origin does not have to be a nation or country, but can be a geographic region tied to a particular national origin group that isn’t and never has been an actual nation. We, of course, see this most often as Hispanic or Latino national origin, where such people share characteristics despite being from a wide variety of actual nation states. The EEOC also clarifies that United States is an acceptable national origin in and of itself to qualify for protection, should a complainant be able to show evidence they were discriminated against for originating from our own country. The guidance additionally makes sure to include Native American as a protected national origin. This has long been a practice at the NEOC and other enforcement agencies, but as always it is good to see such things inserted into official guidance. Although Native Americans are from here, their culture and customs are not the dominant culture and customs that have shaped the majority of United States society, and thus are best protected as a separate and distinct national origin. The NEOC does see several complaints filed on Native American national origin each year, often originating from smaller towns in the eastern half or middle of the state, so this area is something to watch out for in your practice. Another thing to look out for that is highlighted in the guidance is intersectional discrimination. Intersectional discrimination is where the differing treatment is due to a combination of factors. Most often we see this when people file on a combination of either race and religion or national origin and religion. These combinations are seen at a pretty steady clip at the NEOC in employment, housing, and public accommodations cases. People we see targeted for a combination of such characteristics are often new immigrants or refugees from areas such as the Sudan or various parts of Asia. Color is another intersectional area to look out for, as the NEOC has seen a few cases in the past where discrimination based on an intersection of national origin and color would be alleged coming from, for instance, lighter-skinned people of the same race but differing national origin. The guidance does draw a distinction between intersectional discrimination, where discrimination occurs because of combined protected classes, and cases that merely involve multiple protected bases. In a case involving multiple protected bases a person might allege discrimination because they are Somali and separately because they are Muslim, where derogatory harassment was experienced involving both race and religion, but separately. This is contrasted with an intersectional situation where the person experienced discrimination for being a Somali Muslim and the harassment cannot be disMAY/JUNE 2017

EMPLOYMENT DISCRIMINATION BASED ON NATIONAL ORIGIN tinguished between the two because it was about the combination. The NEOC would accept either type of complaint, but the investigation’s focus would differ slightly per complainant’s initial theory as to exactly why he or she was treated differently in the first place. The guidance also covers a number of other topics briefly that are either difficult to summarize due to the briefness of the original information, or largely repetitive in nature from either past guidance or just normal established employment law. Human trafficking is covered in the context of compelled or forced labor. Harassment is covered, although if you are familiar with the basics of hostile work environment harassment there are not really any new or interesting revelations to be had. Retaliation is covered, as it typically is in most EEOC guidance due to retaliation overlapping, generally, with the other protected classes. The guidance does touch on both foreign employers operating in the U.S. and U.S. employers operating on foreign soil. The EEOC claims authority and jurisdiction over both, except where a foreign treaty would make a foreign employer immune, or where a U.S. company operating abroad would risk violating the laws of the state they are in if they followed Title VII. One final important section the EEOC does give us covers citizenship issues as they relate to National Origin discrimination. The EEOC strongly warns against citizenship tests, as they believe that such tests are pretextual and/or have the



“purpose or effect” of discriminating based on National Origin. In my role as Unit Director of Housing Investigations at the NEOC, I see a lot of housing providers who have policies requiring proof of citizenship to rent. One particularly brazen apartment complex required proof of citizenship unless a $50.00 fee was paid, in which case an applicant could be approved without providing proof. The EEOC warns of similar policies in employment, as there are many workers in the country who can work legally but who are not citizens. Additionally, the EEOC reminds us that a U.S. birth certificate is not the same as citizenship or legal work status, as plenty of U.S. citizens were naturalized and not born here. The EEOC helpfully concludes its guidance, as it usually does, with a list of best practices (which they more neutrally label “promising practices,” perhaps not wanting to deal in absolutes) that can keep employers out of trouble when dealing with aspects of National Origin. The EEOC’s comments on recruitment, hiring, promotion and assignment, discipline, demotion, discharge, and harassment are worth reading in full. Most are common sense and would apply to many, if not all, of the protected classes covered by Title VII and FEPA. Picking and choosing the most vital based on what we see most often at the NEOC, I’d highlight the following: 1. The EEOC suggests employers use a variety of recruiting methods to attract diverse applicants. If


EMPLOYMENT DISCRIMINATION BASED ON NATIONAL ORIGIN The NEOC is not just an administrative law enforcement agency, but also has a mission and duty to educate the public and provide outreach. We conduct frequent training sessions on a variety of subjects in the areas of employment, housing, and public accommodations discrimination law. These typically are to satisfy settlements and conciliation agreements, but we are more than happy to conduct training prior to any complaint having occurred. The NEOC also provides technical assistance during business hours, where we are happy to answer questions to the best of our ability via phone or email. We cannot provide legal advice, but we can discuss the laws, previous example cases, or guidance such as I have done here. As always, I would suggest you consult an attorney if you need actual legal advice. Since you are reading the Nebraska State Bar Association’s magazine, chances are that means you can just consult yourself. Regardless, the NEOC is here to assist you and the other denizens of this state in any way we are allowed, so make use of us.

the employer is in a non-diverse part of an otherwise diverse city, it should expand its recruitment to other parts of town, or take part in the numerous job fairs and the like put on by municipalities and organizations, or advertise in publications with a different circulation. 2. The EEOC suggests keeping records. Most practicing attorneys and larger employers would chuckle a bit at this advice, but you’d be surprised at the number of employment discrimination complaints the NEOC gets where the respondent doesn’t have records despite the complainant employee having (allegedly) a long history of being “written up.” If you are “writing up” employees without actually writing, you should rethink your approach. Good disciplinary (and general) record-keeping is the number one suggestion I make during every training presentation I give, both to employers and housing providers. It is also the number one and easiest way for a Respondent employer to defeat a bogus discrimination complaint, should one be filed against you or your client. Investigations become much clearer once the NEOC receives a pile of well-organized non-discriminatory reasons why complainant was actually terminated.


3. If the employer has a diverse workforce that speaks multiple languages, the EEOC suggests disseminating communications effectively to all employees, even if that means some work translating. There is, of course, no requirement to translate to another language. However, if the goal is to make sure all employees understand and can follow the policies, it is likely in the employer’s best interest to communicate as effectively as possible, even if that does mean providing a few Spanish-language versions of announcements or employee handbooks.


Profiles for Selected Federal Agencies. (n.d.). Retrieved April 1, 2017, from profiles.cfm


U.S. Equal Employment Opportunity Commission. Enforcement Guidance on National Origin Discrimination. Office of Legal Counsel, November 2016. (EEOC Notice Number 915.005)


The Commission and General Counsel. (n.d.). Retrieved March 28, 2017, from


Victoria A. Lipnic Acting Chair bio. (n.d.). Retrieved March 28, 2017, from

5 McGowan,

Kevin. “No Third Term Likely for Republican EEOC Commissioner.” Bloomberg BNA, 12 Dec. 2016. Web. 28 Mar. 2017.

The guidance is worth a full read if you deal at all with employers in your practice. If this is your area of focus I presume you’ve read the guidance already. I would also suggest the other more recent guidance on Retaliation,9 Pregnancy Discrimination,10 and Arrest and Conviction Records.11 These are hot topics and are especially relevant to Nebraska attorneys given that the legislature very recently passed the Nebraska Pregnant Workers Fairness Act (integrated into FEPA, Neb. Rev. Stat. §§ 48-1101-1126) and is currently this session debating “banning the box” regarding criminal background checks during hiring for private employers (Neb. L.B. 420).


The Commission and General Counsel. (n.d.). Retrieved March 28, 2017, from


U.S. Equal Employment Opportunity Commission. (June 2016). EEOC Seeks Public Input on Proposed Enforcement Guidance on National Origin Discrimination [press release]. Retrieved from


U.S. Equal Employment Opportunity Commission. Compliance Manual Section 13: National Origin Discrimination. Office of Legal Counsel, December 2002. (EEOC Notice Number 915.003)


U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Retaliation and Related Issues. Office of Legal Counsel, August 2016. (EEOC Notice Number 915.004)

10 U.S.

Equal Employment Opportunity Commission. Enforcement Guidance on Pregnancy Discrimination and Related Issues. Office of Legal Counsel, June 2015. (EEOC Notice Number 915.003)

11 U.S.

Equal Employment Opportunity Commission. Enforcement Guidance on Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. Office of Legal Counsel, April 2012. (EEOC Notice Number 915.002)




feature article

How to Prepare for Heightened Immigration Enforcement and Compliance in the Trump Era by Jessica Feinstein and Amy Peck

When Donald Trump announced he would be running for President of the United States in June 2015, immigration became a hotter topic. Throughout his campaign, Trump made many statements about immigration. He focused primarily on undocumented aliens who enter the country illegally and on investigating abuses of visa programs that he believes disadvantage American workers. After his inauguration, Trump signed Executive Orders to keep some of the promises he made. Those set the tone for a heightened emphasis on compliance and enforcement in the workplace and constitute a blueprint for agency action and possible legislation in furtherance of the President’s goals. In this article, we will: 1) review what has been done so far in terms of orders, guidance and proposed legislation to set the scene for what may be on the horizon; 2) discuss how these

Jessica Feinstein

What Has Been Done So Far? Executive Orders on Enforcement January 25th Orders On January 25, President Trump signed two Executive Orders aimed at border security and immigration law enforcement. These two Orders deal primarily with individuals who are undocumented: 1) how to stop them from entering the country illegally, and 2) how to detain and deport those already in the country (many have been here for decades) who threaten public safety.

Amy Peck

Jessica Feinstein is a Principal in the Omaha office of Jackson Lewis. She specializes in representing U.S. and multinational companies in employment-based immigration, preparing nonimmigrant and immigrant petitions. She also represents clients in I-9 worksite compliance and worksite investigations. This includes representing companies through an Immigration Customs Enforcement I-9 audit and conducting internal I-9 reviews to ensure compliance. Prior to joining Jackson Lewis, she worked at the law offices of Krieger & Krieger. She attended college at the University of Colorado, Boulder and law school at the University of Nebraska College of Law. THE NEBRASKA LAWYER

actions are relevant to all employers—even those who do not realize that they may be affected; and 3) set out strategies to meet the expected enforcement and compliance challenges ahead.

Amy Peck is a Shareholder in the Omaha office of Jackson Lewis. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm’s Immigration practice group. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council. Ms. Peck is a frequent speaker on worksite enforcement issues, and has recently been quoted in The New York Times and The Wall Street Journal on employment and immigration enforcement issues. 17


HEIGHTENED IMMIGRATION ENFORCEMENT AND COMPLIANCE The “Border Security and Immigration Enforcement Improvements” order1 directed the Department of Homeland Security (DHS) to start the process of constructing the border wall between the U.S. and Mexico immediately. It also directed, among other things: • Ending the “catch and release” policy that had allowed “captured” aliens to enter the U.S. while awaiting deportation proceedings;

• 15 years of travel history; • 15 years of address and work history; • 5 years of phone numbers, email addresses, and social media handles; and

• Creation of more detention space at the border to hold those aliens and to facilitate their return to their home countries;

• Names of siblings, children, or former spouses not listed elsewhere on immigration applications.

• Hiring of 5,000 more Border Patrol agents to help with enforcement at the borders; and • The promotion of agreements with state and local law enforcement to enforce immigration laws to further expand the government’s ability to expedite immigration investigations and deportations.

The second order, “Enhancing Public Safety in the Interior of the United States,”2 focuses on enforcement beyond the border areas. Some of the directives order the federal government to: • Withhold federal funds from “sanctuary cities”; • Add 10,000 immigration officers to perform immigration law enforcement functions; • Make public on a quarterly basis a comprehensive list of criminal actions committed by aliens; • Establish an Office for Victims of Crimes Committed by Removable Aliens to provide support for family members; and

In addition to new vetting procedures, in response to intelligence reports the DHS and the Transportation Security Administration (TSA) have instituted new travel restrictions. Until further notice, no personal electronic devices (PEDs) larger than a cellphone or smartphone, such as a laptop computer, tablet, or e-reader, can be carried into the cabin of airplanes flying directly to the U.S. from ten airports in the Middle East, North Africa, and Turkey.6 All passengers will be subject to these restrictions, including U.S. citizens, regardless of Trusted Traveler Status. The United Kingdom also has put similar restrictions in place. In addition to the new PED policy, all travelers to the U.S. should be prepared for the possibility that their electronic devices might be “detained” for examination and inspection upon arrival in the United States and that they may be asked to “unlock” their devices for inspection – even if those devices contain confidential business information.7 Draft Executive Order on Business Immigration

• Reinstate the Secure Communities Program that focuses on deportation of those who generally “pose threats to public safety.” This replaces and broadens the Obama Administration’s Priority Enforcement Program that focused on deporting more hardened criminals including criminal gang members and those who pose a danger to national security.3

January 27th (and March 6th) Orders On January 27, President Trump signed the “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order, which had an immediate effect on individuals from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. Known as the “Travel Ban,” the Executive Order included a 90-day ban on entry of individuals from the seven selected countries to the United States, halted refugee programs for 120 days, and halted the Syrian refugee program indefinitely. The immediate implementation of this Executive Order by the Department of Homeland Security led to chaos, protests, and, ultimately, an injunction blocking the Order. On March 6, 2017, the Administration adjusted and reissued the Order.4 That, too, was blocked by the courts.5 Meanwhile, directives have been sent to Consulates abroad by Secretary of State Rex Tillerson setting out procedures for “extreme vetting.” Consular Chiefs have been asked to deterTHE NEBRASKA LAWYER

mine which populations of visa applicants should be subject to additional vetting and put appropriate protocols in place to “vigorously enforce all existing grounds of inadmissibility.” Secretary Tillerson suggested the following new areas of inquiry for visa applicants:


A draft Executive Order focusing on business immigration was leaked in January 2017 although, as of this writing, it has not yet been signed. “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs”8 suggests the Administration’s belief that current immigration programs and policies go beyond Congressional intent and that previous administrations have created unauthorized workarounds and loopholes that have hurt American workers. The draft Executive Order sets out a vast review process that would be followed by rulemaking, as well as new enforcement policies, to “restore the integrity of the employmentbased nonimmigrant worker programs.” The Order would immediately lead to more fraud assessments for all immigration benefits and categories and expand on-site investigations to eventually include all work visa categories. (Although the draft Order has not been signed, on April 3, 2017, the USCIS announced that more targeted investigations of H-1B dependent employers would nevertheless begin.) Other expected changes (many of which would require rulemaking or legislation) could include: • Expansion of the use of the government’s E-Verify database for checking employment authorization by MAY/JUNE 2017

HEIGHTENED IMMIGRATION ENFORCEMENT AND COMPLIANCE Below are some of the primary areas of cross-over among the pending legislation, the draft Executive Order, and President Trump’s policies as expressed during his campaign.

providing additional incentives to employers, including conditioning additional immigration benefits on participation. • Increases in wage requirements for temporary work visas (H-1B) and greater limitations on employers who use large numbers of H-1B workers.

• Restarting fraud assessments for all immigration benefits and categories. • The expansion of on-site visa investigations eventually to include all work visa categories.

• A reform of training programs that currently allow some highly skilled foreign students to work in the United States post-graduation for up to three years (OPT and STEM OPT).

• Increases in wage requirements for temporary work visas (H-1B) and greater limitations on employers who use large numbers of H-1B workers.

• Rules clarifying what individuals entering the United States as business visitors or tourists are allowed to do while in the country to ensure that U.S. workers are not being displaced.

• Rules clarifying what individuals entering the United States as business visitors or tourists are allowed to do while in the country to ensure that U.S. workers are not being displaced.

• Reforms in the Summer Work Travel Program (J-1) that allows foreign students to work in the United States during their summer breaks.

• Instituting merit-based visa allocation systems.

Basically, the draft Executive Order focuses on expanding enforcement and making it more difficult to hire foreign nationals. Perhaps in response to President Trump’s campaign promises and his draft Executive Order, a number of bills have been introduced and re-introduced in Congress to reform business immigration processes. Most of the bills9 focus on limiting fraud and outsourcing (and fraud in outsourcing), raising wages, and compliance.



• Imposing salary requirements on outsourcers. • Raising wage requirements for visa holders. • Providing more authority for DHS and Department of Labor (DOL) to investigate fraud and abuse by sharing information and instituting higher penalties. • Requiring employers to provide petition or visa beneficiaries with all documentation filed on their behalf with the DHS and DOL (only redacting sensitive financial or proprietary information).


HEIGHTENED IMMIGRATION ENFORCEMENT AND COMPLIANCE • Requiring the U.S. Citizenship and Immigration Services (USCIS) and Consulates to provide beneficiaries with brochures outlining employers’ obligations and employees’ rights under the visa programs.

While these bills raise all sorts of issues and possibilities, what they have in common is an emphasis on fraud investigations, sharing of information between agencies regarding potential violations, and workplace enforcement.

Who Is Affected? All employers are affected by at least some of the new emphasis on compliance because all employers must verify work authorization by completing Forms I-9 Employment Eligibility Verification. Given the Administration’s emphasis on unauthorized workers, Immigration and Customs Enforcement (ICE) is expected to conduct more I-9 audits. And all employers who have employees who travel abroad, even if the travelers are U.S. citizens, could be affected by the new travel restrictions on PEDs and possible inspections of PEDs, including cell phones and smart phones at ports of entry. Other employers who hire foreign nationals on visas, including international companies who regularly transfer individuals from abroad, will be affected by the new emphasis on compliance, strict scrutiny of visa petitions and possible new regulations limiting visa options, raising wage requirements, and curbing outsourcing. These companies will also be affected by “extreme vetting” of foreign nationals for national security purposes. Foreign nationals transferring employment to the US or foreign nationals coming to the United States to do business with U.S. companies could be quite delayed as consulates evaluate documentation and possibly request Security Advisory Opinions (SAOs) from Department of State headquarters in Washington, D.C. There are still other employers who may not think that the orders regarding border security and deportation are relevant to their businesses, but it is important to remember that employers may not know they have undocumented workers on their payroll and they may not know that they have employees who are subject to deportation. Employers are not usually experts in conducting forensic evaluations of work authorization documents—nor are they expected to be. Employers are expected to follow the rules, review documentation to the best of their ability, and complete I-9 Employment Eligibility Verification forms completely and correctly within specific timeframes. Even having followed all of the correct procedures, employers can sometimes end up withholding taxes and Social Security based upon documentation of work authorization that went unrecognized as false. Beyond that, employers may have immigrants on their payroll who are subject to possible deportation and possible ICE raids on company premises for committing what might seem to be minor infractions. Immigrants could be subject to deportaTHE NEBRASKA LAWYER


tion if they simply have been charged with criminal offenses (not convicted) or if they have committed acts that constitute chargeable criminal offenses, defrauded government agencies, or abused programs related to public benefits.10 Under this broad standard, anything from driving under the influence, to misrepresenting status to an immigration officer, to presenting a false Social Security card, to “turnstile jumping” (a minor criminal offense in New York) could result in deportation.

How Can Employers Prepare for the Anticipated Changes? Audit I-9 Compliance As mentioned above, Immigration and Customs Enforcement (ICE) is expected to prioritize prosecuting employers and company officials who knowingly hire illegal workers. To do this, ICE has deployed a variety of tools to uncover noncompliance including confidential informants, undercover agents, and Form I-9 audits affecting employers both large and small. During an I-9 audit, ICE not only reviews I-9 and E-Verify records for substantive and technical errors that can generate fines, but also scrutinizes the employer’s hiring policies and procedures, staff training, payroll records, and records of 1099 subcontractors in seeking indications of possible violations that can be referred to other government agencies, such as the Department of Labor. Steep fines and administrative penalties including the threat of debarment from all federal contracts are possible outcomes.11 ICE also makes use of its ultimate deterrent against the employment of undocumented aliens—asset forfeiture and criminal prosecution of employers’ property with increasing frequency. ICE, however, has been known to be more lenient with employers who have taken steps to review and, when necessary, update their compliance programs by implementing procedures to correct inadvertent errors and prevent future violations. Monetary penalties may be reduced where ICE finds technical violations, but recognizes an employer’s good faith compliance efforts. Preventive action may be the best way to reduce the chances of financial risk and public relations exposure with a comprehensive internal audit. Conducting a comprehensive audit involves more than a simple review of I-9 documentation for errors. It also includes: • A review of the company’s entire I-9 or E-Verify profile including recruiting, hiring, and employment eligibility verification policies and procedures; • Subject-matter testing of responsible staff members; • Instituting best practices on record retention; • Correcting errors appropriately; • Ensuring that non-discrimination principles are followed to avoid Civil Rights Act violations; MAY/JUNE 2017

HEIGHTENED IMMIGRATION ENFORCEMENT AND COMPLIANCE • Considering process management tools such as electronic I-9 software platforms; and • Considering the pros and cons of using E-Verify.

ICE generally provides a three-day notice before an I-9 compliance review, but three days may not be enough time to prepare if an employer has not already conducted a comprehensive audit.

Prepare for Unannounced Worksite Visits If a company has employees working in H-1B or L-1 status, they should prepare for unannounced worksite visits by the Office of Fraud Detection and National Security (FDNS). USCIS created the FDNS in 2004 to “ensure that immigration benefits are not granted to individuals who pose a threat to national security of public safety, or who seek to defraud our immigration system.” Its mission continues to be relevant today. The FDNS generally conducts its investigations by arriving on site without advance notice and asking to speak with the individual who signed the employer’s petition and to the beneficiary to determine if everything in the petition is accurate. It will focus on job descriptions, job locations, salary, education requirements, and the like. The investigator may want to tour the premises, take photographs, and ask for a broad range of documents to verify the accuracy of all statements, including financial documentation and even information that may go beyond the petition itself, to information about immigrant visa



applications, other office locations, layoffs, and hiring policies. If the FDNS is seeking more documents or information than can easily be compiled during the visit, the employer should explain that they will forward the documents within a reasonable time. The FDNS and the USCIS take the position that by submitting petitions, the employer consents to on-site visits and that no subpoena or warrant is necessary for the visits themselves or for requests for information and documents. While site visit cooperation is not mandatory and may be refused, the refusal of a site visit may result in negative information being sent to the USCIS in connection with the visit that could result in a revocation of the case in question and other possible consequences or scrutiny. The employer and employee are not required to answer every question asked. An employer should ask to consult with counsel prior to answering questions if the questions do not seem relevant. To prepare for an FDNS visit, employers should: • Determine who will interact with the investigator, i.e., who the “first responder” should be and who will be the “back-up” responder. • Make sure that the receptionist(s) know who to call if an investigator arrives. • Provide training and instructions to the responders.


HEIGHTENED IMMIGRATION ENFORCEMENT AND COMPLIANCE specific documents for the investigator.

• Make sure in-house counsel is aware of the possibility of an FDNS visit.

• After the interviews are completed, call counsel to debrief and consider whether there should be any next steps.

• Audit LCA Public Access Files and PERM Audit files to ensure the company is prepared and in compliance and that records are not being kept longer than required.

Prepare for Possible ICE Raids

• Audit the job duties, salaries, and locations of H-1B and L employees to ensure the filed petitions are still accurate. If there are inconsistencies, counsel should be notified to determine next steps.

While employers may not think their premises would be subject to an ICE raid, as discussed above, companies nevertheless should be prepared. ICE raids can lead to potential civil and criminal charges and each situation is different. It is therefore essential to consult with counsel on these matters. The general overview below provides employers with basic things to consider in advance of a possible ICE raid.

• Make sure that beneficiaries have reviewed the petitions filed on their behalf. • Decide how and when to notify H-1B and L-1 employees about the possibility of an FDNS visit. If any foreign nationals in H-1B or L status work remotely at a third party location or at home, make sure they are aware of the possibility of an FDNS visit—even at a home office.

• As with the unannounced FDNS worksite visits, identify a first responder and a back-up who initially will interact with the ICE officer(s) and accompany the officer(s) while they are on the premises.

• Sometimes, the FDNS or the Department of Labor might reach out directly to foreign national employees by mail, email, or phone. Let employees know that if they are contacted directly, they are free to respond and they are free to reach out to their employer for advice.

• Advise employees that if a raid occurs, they should not block, interfere, or engage in any hostilities with the ICE officers as they conduct their activities. • Inform employees that they have a right to talk, and not talk, with ICE officers if they like. However, do not direct employees not to speak to agents when questioned. Suggest they can contact the American Civil Liberties Union (ACLU) if they have any questions about their rights.

Do’s and Don’ts for interactions with the FDNS: • Ask for the investigator’s card and write down all of his or her contact information. • Ask for and write down the purpose of the visit, including the name of the employee(s) the investigator wants to interview and what evidence or records the investigator wants to see.

If a raid occurs, remember: • ICE needs a search warrant. Be sure to ask to see the warrant, examine it to see if it grants entry to the premises and that it is properly signed.

• Do not have the interviews in open office areas or allow the investigator to wander through the office unaccompanied.

• Contact counsel immediately, but ICE will not delay the raid to wait for the attorney to arrive.

• The designated responder should ask the investigator to wait while he or she privately calls counsel for advice, notifies the beneficiary to see if the beneficiary is onsite and prepared, and calls the office number on the investigator’s business card for verification purposes.

• Do not engage in any activities that could support a harboring charge, such as hiding employees, aiding in their escape from the premises, providing false or misleading information, denying the presence of specific named employees, or shredding documents.

• A company may inform the investigator that they would like to have their attorney present during the visit. While the FDNS likely will not delay the interviews for that purpose alone, if it is not possible for the attorney to be on site, request audio or video conferencing if that is feasible.

• After the raid, contact the families of any detained employee, debrief staff, and make notes for counsel marked “Confidential Attorney Client Communication - Prepared at Request of Counsel.”

Strategize for Possible Travel and Global Mobility Issues

• If there is not an appropriate first responder on site, if the beneficiary is not on site when the Investigator arrives, or if the visit would cause an unreasonable disruption at that particular time, the responder should explain that and ask to reschedule.

As new forms of vetting become the norm and as policies around immigration benefits tighten, employers need to think about how their overall business strategies might be affected. If a company employs foreign nationals on visas, they need to think about the following:

• Ensure that there is a witness to take detailed notes in every interview—even the interview with the first responder. Mark all notes as “Confidential Attorney Client Communication - Prepared at Request of Counsel.”

• Prepare strategies to deal with travel restrictions, extreme vetting, and strict scrutiny of visa petitions that might slow the pace of business travel for foreign nationals and interfere with talent acquisition, as well as contractual obligations and business expansion goals.

• If the investigator asks for documents, ask for specifics about what the investigator wants to see. Then the responder should retrieve and make copies of those THE NEBRASKA LAWYER

• Review staffing goals in light of possible higher wages 22


HEIGHTENED IMMIGRATION ENFORCEMENT AND COMPLIANCE for H visas and the possible implementation of wage requirements for L visas.


As of April 1, 2017, the Administration has filed appeals to both the 4th Circuit Court of Appeals and the 9th Circuit Court of Appeals regarding these injunctions.

• Focus on hiring foreign nationals who might be at the top of merit-based visa allocation system.

6 For

• Prepare for the possibility of more limited outsourcing opportunities.


For additional information, see ACLU publication Know Your Rights booklet at pdf . Also see “Restriction on Personal Electronic Devices, including Laptops, on Flights from 10 Airports, Meredith K. Stewart, March 20, 2017, at source=feedburner&utm_medium=feed&utm_campaign=Feed %3A+GlobalImmigrationBlog+%28Immigration+Blog%29


For full text of draft order, see documents/national/draft-executive-orders-on-immigration/2315/


For information on various bills that have been introduced in Congress, see Congress Considers Visa Bill Ahead of Expected Immigration Executive Order, Amy L. Peck, February 1, 2017 (High Skilled Worker Integrity and Fairness Act of 2017 introduced by Representative Zoe Lofgren (D-CA)) at ; Congress Considers Halting Job Flexibility Rule, Bill to Change Employer H-1B exemption Eligibility, Forrest G. Read IV, January 9, 2017 (The Protect and Grown American Jobs Act introduced by Representative Darrell Issa (R-CA) and Scott Peters (D-CA)), at ; The Fairness for High Skilled Immigrants Act introduced by Senator Jason Chaffetz (R. Utah), January 2017 at https://www.congress. gov/bill/115th-congress/house-bill/392 ; Gear Up for H-1B, L-1 Reforms by Otieno B. Ombok, March 13, 2017 (The H-1B and L-1 Visa Reform Act introduced by Senators Chuck Grassley (R. IA) and Dick Durbin (D. Ill) with co-sponsors Bill Nelson (D. FL), Richard Blumenthal (D. CT) and Sherrod Brown (D. OH) in the Senate, January 2017 and its companion in the House introduced by Representative Bill Pascrell, Jr. (D. NJ) with co-sponsors Dave Brat (R. VA), Ro Khanna (D. CA) and Paul Gosar (R-AZ)) at http://www.globalimmigrationblog. com/2017/03/gear-up-for-h-1b-l-1-reforms/


In Section 2 of the Border Security and Immigration Enforcement Improvements Order it states:

Q&A on PED Restrictions, see news/2017/03/21/qa-aviation-security-enhancements-selectlast-point-departure-airports-commercial

• Prepare for possible changes in trade agreements that could affect hiring and employment, particularly of TN nationals. • Put in place electronic device policies to deal with possible border inspections of PEDs, including cellphones and smartphones.

Conclusion With the heightened focus on immigration enforcement and compliance in the Trump era, it is important for employers to think about changes that may be on the horizon and prepare their companies to meet the new challenges. That old adage, “the best offense is a good defense” is particularly apt if employers want to try to reduce their immigration risks and liabilities as the government plans for more inspections and raids. Moreover, to remain competitive, especially in terms of staffing, talent acquisition, and collaboration with subsidiaries, affiliates or partners abroad, employers will need to adjust their business strategies around what the future may hold in terms of changes in business immigration law and the establishment of new vetting procedures to enhance national security.

Endnotes 1

For text of the Order, see


For text of the Order, see


For information about Secure Communities and Priority Enforcement Programs see


For text of the reissued Order, see the-press-office/2017/03/06/executive-order-protecting-nationforeign-terrorist-entry-united-states.


It is the policy of the executive branch to . . . (b) detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations . . . . 11 For

information on fines and penalties, see https://www.uscis. gov/i-9-central/penalties



The Importance of Stress Management and Sleep for Lawyers Wednesday, May 31, 2017 • 2:00 pm - 4:00 pm CST Scott Conference Center • 6450 Pine St, Omaha, NE 68106 **Also available for viewing via live webcast.**

*Nebraska MCLE #140052. Iowa MCLE #258418. 2 CLE ethics hours. (Regular/Live credit) *Nebraska MCLE #140077. Iowa MCLE #258419. 2 CLE ethics hours. (Distance learning credit) A vast majority of lawyers in all settings report that pressure and tension on the job is considerable. Stress and sleep deprivation among lawyers often cause job dissatisfaction, burnout, depression, and substance abuse which, in turn, cause ethical violations, malpractice, and various types of unprofessional behaviors. It hurts lawyers and their families, diminishes their ability to serve clients, and reduces the respect that people have for our entire system of justice. The core values contained in the Nebraska Rules of Professional Conduct, such as integrity and civility, require lawyers to manage their stress levels by reducing their dysfunctional negative thoughts and emotions (e.g., anger). Furthermore, ABA Formal Opinion 03-429 (June 11, 2003) imposes an ethical obligation on law firms to assist lawyers who are mentally impaired.

Attendees will walk away from this program with an understanding of the effects of stress and sleep deprivation on the body and mind and how proper management of stress improves mental health, which allows attorneys to better serve their clients, the justice system, and the public. Attendees will learn effective ways to reduce stress through higher quality and quantity of sleep and through simple relaxation techniques. Elise McHatton, MA, ACSM EP-C, NSCA-CSCS is Director of Account Management at SimplyWell and has more than 18 years of experience in individual and group wellness programming. Elise has a bachelor’s degree in Exercise Science and a master’s degree in Organizational Leadership. She also holds certifications from the American College of Sports Medicine and the National Strength and Conditioning Association.

REGISTRATION FORM: Importance of Stress Management and Sleep for Lawyers - May 31, 2017 c I will attend the live seminar at the Scott Conference Center. c I will attend the seminar via live webcast. c $130 - Regular Registration c FREE - I paid 2017 NSBA dues and would like to claim my 2 free ethics credits c $100 - NSBA dues-paying member (I have already claimed my 2 free ethics credits) c Free - Law Students

Name:_____________________________________________________________________Bar #_________________________ 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:________________________________________________________________________________________________ Make checks payable to NSBA and return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or email to Staci Williams at You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA.




feature article

A Primer on the Current Interpretation of Workplace Laws by Jon Rehm

Employers and their attorneys are widely haling the recent confirmation of 10th Circuit Court of Appeals Judge Neil Gorsuch to the United States Supreme Court. Part of the reason that management-side attorneys are praising Gorsuch is his position on Chevron deference.1 Gorsuch’s views on Chevron could impact how workplace laws are interpreted. “Chevron deference” is a legal principle that a court will give the benefit of the doubt about the interpretation of the law to the executive agency charged with enforcing that law. Gorsuch drew attention in the appellate world for his concurring opinion in Gutierez-Brizuela v. Lynch,2 where he directly criticized the concept of Chevron deference. Readers looking for a summary version of the opinion can also read the excellent summary and analysis of the opinion provided in the Washington Post’s Volokh Conspiracy Blog. That summary provides this excerpt that I believe most succinctly states Gorsuch’s opinion on Chevron:

Jon Rehm Jon Rehm is partner at Rehm Bennett and Moore, PC, LLO, in Lincoln, where he concentrates in representing plaintiff’s in workers’ compensation, employment and personal injury cases. He writes regularly about workers’ compensation and employment law issues at www.workerscompensationwatch. com. He is the current Workers’ Compensation and Workplace Injury Section Chair for the American Association of Justice. THE NEBRASKA LAWYER


But de novo judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law. It would avoid the due process and equal protection problems of the kind documented in our decisions. It would promote reliance interests by allowing citizens to organize their affairs with some assurance that the rug will not be pulled from under them tomorrow, the next day, or after the next election.

Nebraska law also subjects properly-enacted administrative rules to de novo judicial review similar to the type proposed by Gorsuch in Gutierez-Brizuela.3 4 During the Obama administration, government agencies interpreted employment laws in a way that was more favorable toward employees. Chevron was widely viewed as a thumb on the scale of justice for employee advocates looking to broaden the protections of fair employment laws. Changes or even elimination of the Chevron doctrine could change substantive areas of law including the Americans with Disabilities Act (ADA), the enforceability of arbitration clauses and laws enforced by the Occupational Safety and Health Administration (OSHA).

EEOC and the ADA The new Equal Employment Opportunity Commission (EEOC) regulations interpreting the Americans with Disabilities Act Amendments Act of 2008 not only expand, or restore, the definition of disability, they also make it easier for plaintiffs who are disabled to win cases. The new EEOC regulations outlaw 100 percent healed policies or policies that require plaintiffs to return to work without restrictions.5 In the EEOC guidance on the issue, the EEOC cites to Kaufman v. Peterson Health Care VII, LLC6 as an example of policies that it believes to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated

➡ MAY/JUNE 2017

CURRENT INTERPRETATION OF WORKPLACE LAWS in Fjellestad v. Pizza Hut of America,7 where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of their job with or without reasonable accommodation. But as indicated by Kaufman, courts may be less likely to grant summary judgment on the issue of whether a plaintiff could perform the essential functions of his or her job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions. Using the EEOC regulations in a 100 percent healed case essentially gives plaintiffs license to cite to a strongly written and well-reasoned opinion from Judge Posner in Kaufman and force trial judges to view the opinion as something more than persuasive authority through the doctrine of Chevron deference. Nonetheless the new EEOC regulations are not an unalloyed benefit for plaintiffs. EEOC regulatory guidance that obesity could constitute disability under the ADA was rejected by the 8th Circuit in Morriss v. BNSF Ry. Co.8 While the 8th Circuit agreed that the analysis of whether an impairment was disability was not meant to be difficult, the 8th Circuit read EEOC regulations9 to mean that since Congress didn’t change the definition of impairment, obesity was not an impairment. The plaintiff in Morriss relied on the Montana Supreme Court’s decision in BNSF Ry. Co v. Feit10 that interpreted EEOC regulations and guidance to determine that in some situations obesity could be a disability under the Montana Human Rights Act. Unless the Nebraska Supreme Court reverses another 2016 decision, Nebraska state courts likely will not follow EEOC’s regulations in regards to the ADA. In Marshall v. Eye Specialties, PC,11 the Nebraska Supreme Court held that since the Legislature did not adopt the ADA Amendments Act of 2008, that the Nebraska Supreme Court will still use pre-2008 federal cases to interpret the disability provisions of Nebraska Fair Employment Practice Act (NFEPA). It would likely follow that Nebraska state courts will be unlikely to follow EEOC regulations and guidance on NFEPA. This development should force plaintiffs’ lawyers in Nebraska to question the conventional wisdom that plaintiffs are better off in state court.12

The NLRB, Mandatory Arbitration and Chevron In D.R. Horton, Inc,13 the National Labor Relations Board (NLRB) ruled that mandatory arbitration clauses prohibiting Fair Labor Standards Act (FLSA) collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. §158. In Lewis v. Epic Systems,14 the 7th Circuit struck down a mandatory arbitration clause partly THE NEBRASKA LAWYER


based on giving Chevron deference to the NLRB’s decision in D.R. Horton. Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care.15 Epic has been scheduled for oral argument in the United States Supreme Court in October. Epic could be the first indication of how the confirmation of Neil Gorsuch to replace Antonin Scalia impacts the ongoing validity of Chevron deference. Because of Owen, a plaintiff pursuing a federal cause of action in a federal court in Nebraska will be forced to arbitrate if there is an otherwise enforceable arbitration clause. If a plaintiff is bringing a state law action in state court, then a plaintiff will have a better chance of beating arbitration. When it comes to arbitration clauses, the conventional wisdom that state court is more favorable than federal court for plaintiffs still holds true. Under Nebraska law, arbitration agreements that fall within the exceptions enumerated in Neb. Rev. Stat. §25-2602.01 are presumed to be invalid unless they are preempted by federal law.16 Cases brought under the NFEPA are exempted by arbitration by Neb. Rev. Stat. §25-2602.01(f)(2) and claims for personal injury based on the public policy exception to employment at will for employees who exercise their rights are exempted under §25-2602.01(f)(1).17 Beating an arbitration agreement is still a difficult task in state court. I recently was unable to beat a motion to compel arbitration in an employment case in the District Court based on the decision of Cornhusker International Trucks, Inc. v. Thomas Built Buses.18 Under the Federal Arbitration Act, an agreement to arbitrate will not be enforced if it is found to be illegal.19 At least in state court, a plaintiff can cite the Epic and Morris decisions that defer to the NLRB’s decision that arbitration clauses violate the National Labor Relations Act in an effort to defeat arbitration clauses. Nebraska has no reported case law regarding the NFEPA and personal injury exceptions to Nebraska’s arbitration act. If I were to argue another arbitration clause case, I would frame the facts around a protected concerted activity framework. In other words, why do the facts of the case show that my client was disciplined or terminated for engaging in an activity that concerned his coworkers. By doing so, I believe a plaintiff would stand a better chance of having a trial judge see the case as a protected concerted activity case and giving deference to the opinion of the NLRB in D.R. Horton. So long as Chevron deference is still a valid legal concept, Chevron can help a plaintiff argue that the laws about the enforceability of arbitration clauses are at the very least unsettled and not subject to a motion to dismiss.

Chevron and the United States Department of Labor In Home Care Ass’n of America v. Weil,20 the D.C. Circuit deferred to the DOL’s interpretation of the Fair Labor MAY/JUNE 2017

CURRENT INTERPRETATION OF WORKPLACE LAWS Standards Act that home health aides were employees under the FLSA. This ruling expanded FLSA protections to anywhere from one million to two million workers.21 Ironically, in 2007, the United States Supreme Court in Long Island Care at Home Ltd. v. Coke22 used Chevron deference to exclude home health aides from coverage under the FLSA. The Weil and Coke decisions highlight the pitfalls of laws that rely on Chevron for enactment and give some credence to Associate Justice Gorsuch’s concerns about Chevron. Courts will apply Chevron deference to regulations made by progressive Democratic regulators and conservative Republican regulators. In theory, President Trump’s Labor Department could use Chevron to re-exclude home health aides from the FLSA. Another wage and hour administrative issue is the expansion of the salary threshold from $23,660 annually to $47,476 to be considered exempt from FLSA overtime requirements. The salary-basis test is an internal regulation and not an interpretation of a statute. However, the salary test is entitled to a deferential interpretation from courts under so-called Auer23 deference, which is similar to Chevron deference. Challenges to the FLSA salary exception will likely involve challenges to the concept of administrative deference. Finally, employee advocates should not assume that all federal rulemaking spawned by Democratic administrations is automatically helpful to employees. The American Association

Bring your

of Retired Persons (AARP) has launched a court challenge to new employee wellness regulations drafted by EEOC on the basis they violate the Age Discrimination in Employment Act (ADEA) and ADA.24 The issue of whether Uber drivers and other sharing economy workers are employees or independent contractors is a hotly disputed topic.25 Given the broad deference that courts give to the Department of Labor’s interpretations of the FLSA, regulations from a Trump DOL that Uber drivers and other sharing economy workers are not employees for the purpose of the FLSA would have a good chance of being upheld. Such rules may have bipartisan support. Former Obama campaign manager David Plouffe worked as a lobbyist for Uber until he was hired away by Mark Zuckerberg of Facebook.26 Plaintiff side attorneys tend to be Democrats, but they would be naïve to assume that the Democratic Party is a reliable ally when it comes to expanding and protecting the rights of employees.

In Defense of Administrative Deference For now, Chevron deference remains the law of the land. Besides stare decisis, there are other legal doctrines that support the ongoing applicability of Chevron. Even though Nebraska doesn’t have an equivalent to Chevron deference, Nebraska courts have expressed concerns that too little deference to administrative decisions creates separation of powers issues.27


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CURRENT INTERPRETATION OF WORKPLACE LAWS Management-side proponents of rolling back Chevron also might have a bit of judicial personnel issue: former Supreme Court nominee and current D.C. Circuit Court of Appeals Chief Judge Merrick Garland.28 Most challenges to administrative regulations come through the D.C. Circuit. Garland is a strong proponent of Chevron deference and can reasonably be expected to defend Chevron both through substantive and procedural methods.

A Few Words about the Congressional Review Act Management-side attorneys and their clients will not have to wait for the United States Supreme Court decisions to be relieved from some of what they consider the regulatory burden of the Obama era. President Trump recently signed a Congressional resolution revoking an Obama administration OSHA rule that required employers to retain records of work injuries for five years and that prohibited retaliation against workers for reporting injuries.29 The revoked OSHA rule would have also limited drug testing of employees who reported injuries.30 Congress and President Trump have also revoked an executive order that would have prevented employers who violated fair employment laws from obtaining federal contracts.31 President Trump was acting pursuant to the Congressional Review Act, which provides Congress a way to disapprove any regulation within 60 days of it being deemed final.32 But as pointed out in an explainer piece from the conservative Heritage Foundation, Congress has 60 legislative days to disapprove legislation.33 Sixty legislative days could be 6-7 months in real time because of frequent Congressional recesses. The Act also restarts the 60 day clock for final rules that are implemented within the last 60 days of the previous legislative session. Heritage estimates that rules finalized back to June 3, 2016, could be subject to review. Supporters of Obama-era workplace safety rules cannot rely on Senate Democrats to filibuster resolutions under the Congressional Review Act because the legislation does not allow for filibuster and has streamlined procedures for allowing legislation to be pulled out of committee. Fortunately or unfortunately, depending on your perspective, the Congressional Review Act doesn’t allow rules to be bundled together. Congress must consider killing each regulation with a single piece of legislation. Nebraska has anti-retaliation laws that protect employees who claim workers’ compensation benefits that would cover many cases where an employer would have to record an injury for OSHA.34 My opinion is that the OSHA General Duty clause35 which states that employers have a duty to provide a workplace free of recognizable hazards provides additional anti-retaliation protections to Nebraska employees through the state whistleblower statute, but the revocation of the OSHA anti-retaliation rule may weaken those protections. THE NEBRASKA LAWYER


Endnotes 1



834 F. 3d 1142 (7th Cir. 2016)


328 N.W. 2d 285 (1995)


See Slack Nursing Home v. Dept. of Soc. Serv.


29 CFR §1630.2(h)1


769 F. 3d 958 (7th Cir. 2014)


188 F. 3d 949, 951-952 (8th Cir. 1999)


817 F. 3d 1104. (8th Cir. 2016)


29 CFR §1630.2(h)1

10 281

P. 225, 2012 MT 147, 365 Mont. 359 (2012)

11 876

N.W 2d 372 (Neb. 2016)

12 In

the unpublished O’Brien v. Bellevue Public Schools (A-12-843, April 29, 2014) a panel on the Nebraska Court of Appeals found that federal asbestos safety laws did not create an exception to employment at-will. This decision contrasts with Bussing v. COR Clearing, 20 F. Supp. 3d. 719 (2014) where Judge Gerrard hinted on a motion to dismiss that federal law could provide a basis for a clear public policy for an exception to the employment at will doctrine in Nebraska.

13 357

N.L.R.B. No 184

14 823

F. 3d 1147, 1154 (7th Cir. 2016) The Ninth Circuit agreed with the Seventh Circuit’s decision in Epic in Morris v. Ernst and Young, LLP, No 13-16599 (August 22, 2016)

15 702

F. 3d 1050 (8th Cir. 2013)

16 Kremer

v. Rural Community Ins. Co., 788 NW 2d 538, 550 (2010)

17 Wendeln


18 263 19 9

v. The Beatrice Manor, 712 NW 2d 226; 271 Neb. 373

Neb. 10, 15, 637 N.W. 2d, 881 (Neb. 2002)

U.S.C. §2

20 799

F. 3d 1084 ( D.C. Cir. 2015) cert denied



22 551

U.S. 158 (2007)

23 Auer

v. Robbins, 519 U.S. 452 (1997)







27 Department

of Health v. Columbia West Corp., 227 Neb. 836, 420 N.W.2d 314 (1988).













34 See

Note XV and Neb. Rev. Stat. §48-1114(3)

35 See

29 U.S.C §654(a) MAY/JUNE 2017

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The GAL’s Guide to Immigration Law and GAL Practice Standards Thursday, June 15, 2017 • 1:00 pm - 4:15 pm CST

Doane University, Perry Campus Center Boardroom, 1014 Boswell Ave., Crete, NE **Also available for viewing via live webcast.**

*Nebraska MCLE #140033. Iowa MCLE #258371. 3 CLE hours. (Regular/Live credit) *Nebraska MCLE #140050. Iowa MCLE #258370. 3 CLE hours. (Distance learning credit)

*Approved for 3 hours of Guardian ad Litem CLE credit. 1:00 pm Immigration Basics for Attorneys in Juvenile Court

3:00 pm Break 3:15 pm View from the Bench

This presentation will cover the different types of immigration statuses, as well as the forms of immigration relief currently available to children who are not U.S. Citizens. Examples of the complexity of the U.S. immigration legal system will be shared and immigration legal terms will be defined.

Judge Linda Bauer will address Practice Standards for Guardians ad Litem for Juveniles in Juvenile Court Proceedings and the GAL Reports. 4:15 pm Adjourn

2:00 pm The GAL’s Role in Special Immigrant Juvenile Status (SIJS) Cases

Speakers: Judge Linda Bauer, County Court Judge, 1st Judicial District of Nebraska

Unfortunately, many undocumented children in Nebraska are aging out of the juvenile court’s jurisdiction without applying for SIJS, which creates a path to U.S. citizenship, as it is an immigration legal option that is not widely known about. Learn about this particular form of immigration relief that may be available to children involved in juvenile court that have been abused, abandoned and/or neglected.

Mindy Rush Chipman, Senior Managing Attorney, Justice for Our Neighbors-Nebraska Dearra Godinez, Rural Capacity Building Attorney, Justice for Our Neighbors-Nebraska

REGISTRATION FORM: GAL’s Guide to Immigration Law - June 15, 2017 c I will attend the live seminar at Doane University. c I will attend the seminar via live webcast. c $195 - Regular Registration c $150 - NSBA dues-paying member (discounted price for NSBA dues-paying members) c Free - Law Students

Name:_____________________________________________________________________Bar #_________________________ 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:________________________________________________________________________________________________ Make checks payable to NSBA and return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or email to Staci Williams at You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA. THE NEBRASKA LAWYER



feature article

Un-Alternative Facts:

Why “Where” Matters in Factual Presentation When Moving or Opposing Summary Judgment by Robert Stark

Summary judgment in employment cases is nearly as ubiquitous as an SEC team in the College World Series. In the last 20 years, a party filed a motion for summary judgment in more than half of all employment discrimination cases in the United States District Court for the District of Nebraska. Thus, many employment litigators will have to navigate the ins and outs of presenting and/or defending summary judgment on a regular basis. The Federal Rules of Civil Procedure state that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”1 Similarly, Nebraska courts must enter summary judgment where “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”2

Facts considered at the summary judgment stage can also impact proceedings beyond the motion. Although Nebraska rules do not explicitly require courts to state their reasons for granting or denying a motion, if summary judgment does not dispose of the case entirely and trial is needed, Nebraska courts are required to “make an order specifying the facts that appear without substantial controversy.”5 This is because, at trial, “the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”6 Similarly, where a court does not grant all relief requested by a motion for summary judgment, Federal Rule of Civil Procedure 56(g) permits the court to “enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treating the fact as established in the case.”

The first element of summary judgment, therefore, is that there can be no dispute as to any “material fact.” The Local Rules for the District of Nebraska define “material facts” as facts “pertinent to the outcome of the issues identified in the summary judgment motion.”3 When confronted with a motion for summary judgment, federal courts are required to examine the material facts and legal arguments of the parties and “state on the record the reasons for granting or denying the motion.”4 Because courts must make these conclusions based upon the parties’ positions in the matter, the parties’ presentation of the facts bears significant weight in the outcome of such a motion.

The Eighth Circuit has held that courts are not required, by rule or otherwise, to search the record to identify the material facts of a case.7 Thus, it is the responsibility of the moving party to identify the undisputed material facts to the court to succeed on summary judgment. Conversely, it is the burden of the nonmoving party to point out genuine issues of material fact that preclude summary judgment.8 This responsibility is so important and unique to summary judgment that the Federal Rules of Civil Procedure even include specific instructions regarding how parties support their factual assertions9 and details the consequences of failing to properly support or address a factual assertion.10

Robert Stark

Because the stakes are so high, presenting facts supporting or opposing summary judgment can appear to be a daunting task. Thankfully, many courts have promulgated specific, local rules that “assist”11 litigants in knowing how best to present their assertions of fact. Both the Nebraska Supreme Court12 and the Federal Rules of Civil Procedure13 permit individual

Robert Stark is a judicial attorney with the United States District Court for the District of Nebraska. He also teaches courses in federal courts and legal writing at the Creighton University School of Law and teaches pre-law courses at Bellevue University. THE NEBRASKA LAWYER



UN-ALTERNATIVE FACTS districts to establish local rules that are consistent but not duplicative of the applicable general rules of civil procedure. The United States Supreme Court has long held that valid local court rules have the force of law.14 Litigants “are charged with knowledge of the district court’s rules the same as with knowledge of the Federal Rules and all federal law.”15 The purpose of this article is to review several of those local rules and discuss the ways courts have enforced those rules in ruling on motions for summary judgment. This article first reviews the factual presentation rules of Nebraska Judicial Districts. Second, this article examines the summary judgment rule of the District of Nebraska and the rules of its sister districts in the Eighth Circuit. Finally, the court discusses potential legal and practical consequences of failing to comply with local rules on summary judgment fact presentation.

Nebraska Rules Nebraska State Court Rules Although the Nebraska summary judgment statute provides some guidance as to the type of facts that support summary judgment, many of Nebraska’s Judicial Districts have promulgated specific rules regarding how facts must be presented to their respective courts. The First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Tenth Judicial Districts each require parties to submit briefs supporting or opposing summary judgment.16 The Fourth, Sixth, Eleventh, and Twelfth Judicial Districts do not have local rules specific to summary judgment. Each of the Judicial Districts with specific summary judgment rules require the moving party to include “a separate statement of each material fact supporting the contention that there is no genuine issue to be tried” and require pinpoint citation to the specific evidence in the record establishing the fact.17 The Second, Third, Fifth, Eighth, and Ninth Judicial Districts also require the party opposing summary judgment to include a “separate statement of each material fact as to which it is contended there exists a genuine issue to be tried” and that the opposing party specifically identify the evidence establishing the dispute.18 Specificity regarding fact presentation is common among each of the rules. Although the fact presentation rules differ slightly, each requires the moving party to “identify the specific document, discovery response, or deposition testimony (by page and line) which is claimed to establish the fact.”19 Each of the rules with specific requirements for the nonmoving party’s response require the same specificity, though with slightly different wording. While specificity remains constant, one admittedly minute difference may be worth noting to practitioners. The Third and Fifth Judicial Districts require nonmoving parties to set forth “each material fact as to which it is contended there exists a genuine issue to be tried” and provide pinpoint THE NEBRASKA LAWYER


citation to evidence “claimed to establish the fact.”20 The Second, Eighth, and Ninth Judicial Districts require that the nonmoving party provide pinpoint citation to the evidence that establishes the “genuine issue” or “factual issue.”21 The wording of the rules, though only slightly different and likely meant solely to add clarity, could be read to require the nonmoving party to establish facts that create a material dispute, but also to specify how the cited fact creates a genuine issue.

Nebraska State Courts’ Enforcement of Local Rules The Nebraska Supreme Court and Court of Appeals do not appear to have touched upon the enforceability of specific summary judgment rules of any of the Judicial Districts. However, both courts have recognized the enforceability of local Judicial District rules where applicable.22 The Nebraska Court of Appeals has referenced an instance where, at a hearing on a motion for summary judgment, a district court judge declined to consider the defendants’ motion for summary judgment “because they failed to comply with [Neb. Rev. Stat.] § 25–1332, Local Court Rule 8–10.”23 The Supreme Court of Nebraska has also recognized that trial courts “may exercise [their] inherent power to waive its own rules in appropriate circumstances where no injustice would result.”24

Federal Rules District of Nebraska Local Rule If the Judicial District Rules and Local Rules for the District of Nebraska governing summary judgment are one in purpose, they are not one in form. The federal local rule specific to summary judgment first notes to parties that, unless otherwise stated, parties must comply with the federal local rule applicable to all civil motions.25 The local rule also highlights one of the key differences between the federal local rule and the state Judicial District rules, which is that, in general, “the court does not hear oral argument on summary judgment motions.”26 Thus, although the Nebraska statutes and local Judicial District Rules all contemplate a hearing on summary judgment, parties should not expect a hearing in federal court. Regardless of the propriety of such a rule, parties must pay particular attention to factual presentation rules in federal court because they likely will not be able to explain their assertions at a hearing. The federal local rule governing all civil motions requires that civil motions include a brief where the motion raises a substantial issue of law.27 The federal local rule regarding summary judgment requires the moving party to include a brief with “a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.”28 The rule warns that “[f]ailure to submit a statement of facts may be grounds to deny the motion.”29 MAY/JUNE 2017

UN-ALTERNATIVE FACTS The federal local rule separately outlines the precise form of the statement of facts. First, the statement of facts should consist of short numbered paragraphs.30 Next, each numbered paragraph must provide pinpoint citations to the evidence supporting the assertion in the paragraph.31 The rule specifically advises that failure to provide pinpoint citations may be grounds to deny the motion.32 The statement of facts additionally must describe the parties and provide a factual basis for the court’s jurisdiction and venue.33 In addition to outlining what the statement of facts must include, the rule specifies that the statement of facts must not include legal conclusions.34 The federal local rule requires that parties opposing summary judgment respond to the moving party’s statement of facts.35 The rule mandates that the response be “concise” and that the response be set forth in individual, numbered paragraphs.36 The rule also requires that each material fact in the response include pinpoint citations to evidence supporting the response.37 Finally, the rule warns that the moving party’s properly-referenced facts are deemed admitted unless the nonmoving party properly controverts those facts.

Comparison to Summary Judgment Rules in the Eighth Circuit District Courts Although the federal rule is more extensive than any of the local Judicial District rules, such rules are not uncommon in other federal districts in the Eighth Circuit. The Northern and Southern Districts of Iowa, the District of South Dakota, and the Eastern and Western Districts of Missouri all require summary judgment movants to submit a statement of facts in separately numbered paragraphs, with pinpoint citations to the evidentiary record.38 Each of those districts also require the opposing party to respond in individually numbered paragraphs and/or specifically reference the moving party’s paragraph number.39 Each of those districts also state that facts not properly resisted will be deemed admitted. The District of North Dakota’s rule goes so far as to warn that “failure to comply with these requirements may result in a motion for summary judgment being granted.”40 Some districts have rules even more specific and extensive than the District of Nebraska. For example, the rule governing summary judgment in both the Northern and Southern Districts of Iowa is nearly three pages long, and contains several detailed subsections.41 Meanwhile, other districts have rules that are less detailed, requiring statements of fact but without any requirement that the statements be made in separate paragraphs.42 Further, the District of Minnesota does not have a local rule specific to summary judgment, and specifically recognizes in its Advisory Committee Notes the District’s “long-established practice in this district of holding hearings for important civil motions, such as motions for summary judgment.”43 An examination of the rules of its sister districts THE NEBRASKA LAWYER


may help practitioners in the District of Nebraska to interpret the Nebraska local rule in particularly confusing circumstances.

Form of the Response The local rule in the District of Nebraska requires separately numbered paragraphs in the response, “and, if applicable, must state the number of the paragraph in the movant’s statement of material facts that is disputed.”44 Practitioners may note some confusion as to whether the individually numbered paragraphs of an opposing party’s response must correlate with the numbered paragraphs in the moving party’s statement of facts. The addition of the phrase “if applicable” suggests that the Nebraska local rule may not require that the numbered paragraphs of the response correlate with the numbered paragraphs in the movant’s statement. When confronted with language similar to Nebraska’s rule, the Eighth Circuit has held that an opposing party’s response should be considered. In Jenkins v. Winter, a civilian employee sued the Navy for harassment and retaliation.45 In ruling on summary judgment, the district court deemed the Navy’s statement of material facts admitted in its entirety because the employee “failed to specifically controvert in numbered paragraphs the Defendant’s statement of facts in her response to the pending motion for summary judgment.”46 Instead, the employee set forth her own statement of facts which the district court concluded were unsupported by competent evidence.47 In reviewing the district court’s conclusion, the Eighth Circuit noted the language of the district court’s local rule which required that “[e]ach fact in dispute shall be set forth in a separate paragraph, shall refer specifically to those portions of the record upon which the opposing party relies, and, if applicable, shall state the paragraph number in movant’s listing of facts that is disputed.”48 The Eighth Circuit concluded that the employee’s statement of facts complied with the local rule.49 The court noted that each of the employee’s facts was set forth in numbered paragraphs as required, and all but one asserted fact were supported by competent evidence.50 Further, the Eighth Circuit noted that even though fewer than half of the employee’s facts referenced the specific paragraph number in the Navy’s statement of facts, the local rule only required such a reference “if applicable.”51 Interpreting the local rule, the court concluded that it “does not require [the employee] to specifically controvert in numbered paragraphs the Navy’s statement of facts (contrary to the district court’s conclusion).”52

Responding to the Response Responding to the nonmoving party’s response presents additional issues. As noted above, the nonmoving party carries a burden to “to point out genuine issues of material fact that

➡ MAY/JUNE 2017

UN-ALTERNATIVE FACTS would preclude judgment as a matter of law.”53 In response to this requirement, several courts have specific rules regarding the nonmoving party’s response. Few courts, however, specifically address how to respond to the response. Parties may be left unsure of how to respond and whether their response must follow the same form as the original presentation of facts. This problem is further complicated when the nonmoving party presents its own facts in support of its position. Some districts have attempted to resolve this issue by specifically permitting and detailing the form and content of an “additional statement of material facts.” For example, the Northern and Southern Districts of Iowa require both (a) a response to the statement of material facts, and (b) a statement of additional material facts.54 The rule further requires a reply to the “statement of additional facts” and details the form and content of the reply.55 The Western District of Missouri also specifically permits a party opposing summary judgment to set forth an additional statement of facts if the opposing party relies on facts not contained in the moving party’s statement of facts.56 In its reply, the moving party is required to respond to each fact in the additional statement of facts.57 It is unclear how courts without such rules would treat “additional statements of fact” submitted by the party opposing summary judgment.

Consequences for Failing to Follow the Local Rules With rules that, at times, can seem complicated and convoluted, litigators may wonder about the consequences for failing to comply with the rules. In some cases, the answer is that there is no consequence. For example, the District of Nebraska recently found that even where a statement of facts failed to comply with the court’s local rules by failing to reference evidentiary materials, the court still made findings based on what it could discern from the assertions of fact and its own review of the record.58 In other cases, however, failure to follow the local rules has impacted the outcome of the case. In Huckins v. Hollingsworth, the plaintiffs responded to the defendant’s statement of material facts by paragraph number, as required by the District of South Dakota’s local rules, but plaintiffs failed to submit their own concise statement of material facts as to which they contend there existed a genuine issue.59 Instead, the plaintiffs merely provided affidavits in which they described their assertions.60 The District of South Dakota, applying its rule, recounted the defendant’s version of the facts, and noted where the plaintiffs had properly disputed a fact.61 On appeal, the plaintiffs argued that the district court erred by failing to accept the facts alleged in the affidavits, but not included in their statement of facts.62 The Eighth Circuit upheld the district court, reasoning that the plaintiffs failed to show how the district court erred in applying its own rule and THE NEBRASKA LAWYER


did not explain “why their counsel failed to properly present their version of the facts.”63 The Eighth Circuit’s reasoning in Huckins demonstrates that perhaps the key factor in the consequence for violating local rules is whether the violation prejudiced the other party.64 Specific to factual presentation in summary judgment, a party is prejudiced when the party can identify “specific fact[s] to which [the party] was unable to respond because of alleged shortcomings.”65 In other words, if a party is aware of the facts and has an opportunity to respond, courts will be less likely to impose consequences for defective factual presentations.66 As a practical matter, litigants should keep in mind that courts, both at the state and federal level, promulgate their own local rules. As noted in this article, several courts have promulgated such rules specific to summary judgment proceedings. Litigants can likely assume that those rules represent the court’s preferred format for evaluating motions for summary judgment, and compliance with local rules will add clarity and efficiency to the court’s analysis.

Conclusion Summary judgment is granted when it has been shown that (1) that there is no genuine issue of material fact and (2) the moving party is entitled to judgment as a matter of law. Thus, with respect to the first element, the presentation of a party’s factual assertions is key to determining whether the party succeeds in obtaining or defeating summary judgment. Because local rules in both state and federal courts often dictate how material facts are to be presented, litigators should be familiar with such rules when moving or opposing summary judgment.

Endnotes 1

Fed. R. Civ. P. 56(a) (emphasis added).


Neb. Rev. Stat. § 25-1332 (Reissue 2008) (emphasis added).


NECivR 56.1(a)(2).


Fed. R. Civ. P. 56(a).


Neb. Rev. Stat. § 25-1333 (Reissue 2008).




Bennett v. Dr Pepper/Seven Up, Inc., 295 F.3d 805, 808-09 (8th Cir. 2002).


Id. at 808.


Fed. R. Civ. P. 56(c).

10 Fed.

R. Civ. P. 56(e).

11 The

reader can decide whether the local rules actually assist in the presentation of factual assertions.

12 Nebraska

Supreme Court Rules § 6-1501.

13 Fed.

R. Civ. P. 83(a).

14 Weil

v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 148 (1929).

15 Jetton

v. McDonnell Douglas Corp., 121 F.3d 423, 426 (8th Cir. 1997).

16 Rules

of Dist. Ct. of First Jud. Dist. 1-14 (1995); Rules of Dist. Ct. of Second Jud. Dist. 2-8 (rev. 2005); Rules of Dist. Ct. of Third Jud. Dist. 3-6 (rev. 2015); Rules of Dist. Ct. of Fifth Jud. Dist. 5-13 (2001); Rules of Dist. Ct. of Seventh Jud. Dist. 7-11 MAY/JUNE 2017

UN-ALTERNATIVE FACTS (2002); Rules of Dist. Ct. of Eighth Jud. Dist. 8-10 (1999); Rules of Dist. Ct. of Ninth Jud. Dist. 9-12 (2010); Rules of Dist. Ct. of Tenth Jud. Dist. 10-14 (2000 & rev. 2010). 17 See

50 Id. 51 Id. 52 Id.


53 Bennett,

18 Rules

of Dist. Ct. of Second Jud. Dist. 2-8(B); Rules of Dist. Ct. of Third Jud. Dist. 3-6(B); Rules of Dist. Ct. of Fifth Jud. Dist. 5-13; Rules of Dist. Ct. of Eighth Jud. Dist. 8-10 (B); Rules of Dist. Ct. of Ninth Jud. Dist. 9-12 (C).

19 See

note 9, supra.

20 See

Rules of Dist. Ct. of Third Jud. Dist. 3-6(B); Rules of Dist. Ct. of Fifth Jud. Dist. 5-13.

Iowa LR 56(b); S.D. Iowa LR 56(b).

55 N.D.

Iowa LR 56(d); S.D. Iowa LR 56(d).

56 W.D.Mo.

L.R. 56.1(b)(2).

57 W.D.Mo.

L.R. 56.1(c).

58 Brown 59 138

21 See

Rules of Dist. Ct. of Second Jud. Dist. 2-8(B); Rules of Dist. Ct. of Eighth Jud. Dist. 8-10 (B); Rules of Dist. Ct. of Ninth Jud. Dist. 9-12 (C).

22 See,

295 F.3d at 808.

54 N.D.

v. Strong, Case No. 8:14CV298 (D. Neb. May 4, 2016).

F. App’x 860, 861 (8th Cir. 2005)

60 Id.

at 861-62.

61 Id.

at 862.

62 Id.

e.g., State ex rel. Counsel for Discipline of Neb. Supreme Court v. Lisonbee, 285 Neb. 379, 381, 826 N.W.2d 874, 876 (2013); Mann v. Rich, 16 Neb. App. 848, 853, 755 N.W.2d 410, 415 (2008). But see State v. Vaughan, 227 Neb. 753, 754, 419 N.W.2d 876, 877 (1988) (refusing to enforce the local rule because it was “repugnant to law, because it imposes terms more onerous than those fixed by statute.”).

63 Id. 64 See,

e.g., Hearing v. Minnesota Life Ins. Co., 793 F.3d 888, 893 (8th Cir. 2015) (“A procedural defect under the rules constitutes reversible error only if the defect is prejudicial.”).

65 Id.

23 Moon

Lake Ranch, LLC v. Gambill, No. A-15-785, 2017 WL 676985, at *3 (Neb. Ct. App. Feb. 21, 2017) (unpublished).

66 See


24 Woodmen

of the World Life Ins. Soc. v. Kight, 246 Neb. 619, 624, 522 N.W.2d 155, 158 (1994).

25 NECivR

56.1 (2016); see also NECivR 7.1 (2016).

26 NECivR


27 NECivR


28 NECivR


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29 Id.

This section of the rule represents one of the other noticeable differences between the local Judicial District rules and the local federal rule: several warnings in the federal rule are underlined for emphasis.

30 NECivR

the rule.

56.1(a)(2). Note that the word “short” is underlined in

31 Id. 32 Id. 33 Id.

NECivR 56.1(a)(2) also defines a “material” fact as being “pertinent to the outcome of a the issues” in the motion for summary judgment.

34 Id. 35 NECivR


36 Id. 37 Id. 38 See

N.D. Iowa LR 56(a),(b); S.D. Iowa LR 56(a),(b); D.S.D. Civ. L.R. 56.1(A)(2)-(3); E.D.Mo. L.R. 7-4.01; W.D. Mo. L.R. 56.1(a).

39 See


40 D.N.D. 41 See

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Civ. L.R. 7.1(A)(3)

N.D. Iowa LR 56; S.D. Iowa LR 56.

42 See,

e.g., D.N.D. Civ. L.R. 7.1(A)(2)-(3); E.D.Ark. LR56.1; W.D.Ark. LR56.1. The local rule for the District of North Dakota specifically permits facts to be presented in a narrative form.

43 D.

Minn. LR 7.1, 2012 Advisory Committee’s Note to LR 7.1.

44 NECivR

56.1(b)(1). The local rule for the Eastern District of Missouri is even more vague, requiring the response to “note for all disputed facts the paragraph number from movant’s listing of facts.” E.D.Mo. L.R. 7-4.01(E).

45 Jenkins 46 Id.


v. Winter, 540 F.3d 742, 745 (8th Cir. 2008).

at 746.

47 Id. 48 Id.

at 747 (quoting W.D. Mo. L.R. 56.1(a)).

49 Id.




Better Lawyering Through Better Listening In partnership with the International Listening Association Wednesday, June 7, 2017 • 12:15 pm - 4:30 pm CST Hilton Omaha, 1001 Cass St., Omaha, NE 68102

*Nebraska MCLE #131652. *Iowa MCLE #248097. 4 CLE hours, including 1 hour ethics. (Regular/live)

This program will cover the following topics:

Panelists: Jennifer Murphy Romig, Emory University School of Law Dr. Anita Dorczak, Westbrook Law Office, Alberta, Canada Jennie Grau, Grau Interpersonal Communication

1. W  hat Do Lawyers Know About Listening?: A Rapid Overview and Introduction to Listening 2.  What Kind of Listener Are You?: Understanding Your Current Listening Style 3.  How and Why to Listen: Overcoming Barriers and Beginning to Reap the Benefits of Improving Listening 4.  Becoming Better Listeners: Ongoing Skill Development

REGISTRATION FORM: Better Lawyering Through Better Listening - June 7, 2017 c $200 - NSBA dues-paying member or member of ILA (discounted price for NSBA dues-paying members and ILA

members) c $260 - Regular registration c $80 - Non-lawyers who are not members of ILA c $60 - Non-lawyers who are members of ILA (25% discounted price for ILA members) c FREE - Law student

Name:_____________________________________________________________________Bar #_________________________ 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:________________________________________________________________________________________________ Make checks payable to NSBA and return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or email to Staci Williams at

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA.




feature article

“Innocent” Is Not Enough: Barriers to Compensation for the Wrongfully-Prosecuted and -Convicted

by Maren Lynn Chaloupka and Jeffry D. Patterson

In the 1980s, John Wilson,1 a young and innocent AfricanAmerican man, was wrongly convicted of murder. Wilson, who stands 6 feet tall and has dark skin, was falsely implicated in spite of eyewitnesses who saw a much shorter perpetrator with light skin. The only evidence implicating Wilson in the murder came from witnesses who, much later, admitted that their testimony against Wilson was false. Those witnesses were recruited by the police investigators, who fed them information about the trial that they did not independently know. Wilson was sentenced to serve life in prison. He appealed and lost; he sought post-conviction relief and lost. Finally, in response to a habeas corpus petition, a trial court granted Wilson a hearing. The evidence presented at that hearing showed that one of the eyewitnesses who testified at Wilson’s trial had recanted and admitted perjury and the other eyewitness’s credibility was decimated by evidence that it was physically impossible for him to have seen the crime. The state court found that Wilson’s trial had been fundamentally unfair and ordered his release from prison. He had, by this time, lost decades of his life. Wilson sued the police investigators under 42 U.S.C. § 1983. He asserted that the police withheld exculpatory mate-

Maren Lynn Chaloupka & Jeffry D. Patterson Maren Lynn Chaloupka and Jeffry D. Patterson served as lead counsel for the plaintiffs in the so-called “Beatrice 6” wrongful conviction cases against Gage County and its deputies. They have been friends since both served as judicial clerks for the Nebraska Supreme Court in its 199596 term. Maren is a partner in the Scottsbluff law firm of Chaloupka Holyoke Snyder Chaloupka & Longoria; Jeff is a sole practitioner in Lincoln. THE NEBRASKA LAWYER


rial, conducted improper lineups and otherwise manipulated the evidence against Wilson. By the time Wilson filed his civil rights action, there was no serious dispute as to his innocence, and the defendants did not assert that Wilson actually was guilty. Yet the district court dismissed his wrongful conviction case, and the appellate court upheld its dismissal. Thereafter, his state-law claims for compensation were also dismissed. How does that happen? How can it be that a man who spent years in prison, despite that all now acknowledge his innocence, is left with no recourse for the devastation wrought by his wrongful conviction and incarceration? How can it be that the law enforcement officers who drive an investigation that yields the wrong suspect can escape any accountability whatsoever for their role in an innocent man’s unfathomable suffering? Contrary to popular belief, the fact that your innocent client was criminally charged, and even convicted and incarcerated, absolutely does not translate into a slam-dunk case in which the only question is “How much money?” There are too many ways that an innocent victim of abuses of the criminal justice system can suffer insult upon injury. There are too many ways that an innocent person can not only experience the torture of criminal investigation, conviction and incarceration, but can thereafter also suffer the blow of qualified immunity or a negative finding under state-law claims. The goal of this article is to highlight potential hazards that can destroy an innocent man or woman’s righteous claim for compensation and accountability. Wrongful conviction cases are not for the weak of heart. If counsel does not know from the start what standards must be met, and what evidence must be developed, in order to survive the predictable motions for dismissal, the case will be doomed. We encourage lawyers

➡ MAY/JUNE 2017

“INNOCENT” IS NOT ENOUGH reviewing a potential wrongful arrest or wrongful conviction case to tread carefully and to seek help. Whether your client’s claim is in state or federal court (or both), the risk of error is substantial, and the stakes are too high for a lawyer to learn this body of the law as he or she goes along.

The Nebraska Claims for Wrongful Conviction & Imprisonment Act The Nebraska Claims for Wrongful Conviction & Imprisonment Act (“NCWCIA”) was signed into law in 2009. It was a reaction to the discovery that, in 1989, six innocent individuals were wrongly convicted in Gage County for a murder and rape that they did not commit. Under NCWCIA, the State of Nebraska will pay up to $500,000.00 in compensation to a wrongfully-convicted person who satisfies the requirements of the Act. A case brought under NCWCIA is not a tort case, but a gratuitous undertaking by the State notwithstanding the fact that the State is not at fault for the conviction. The case proceeds in the manner of a State Tort Claims Act case, however, in a Nebraska district court by the wrongfullyconvicted person2 against the State of Nebraska. Like all civil plaintiffs, the plaintiff of a NCWCIA claim shoulders the burden of proof. That burden, however, is greater for a NCWCIA plaintiff than for a plaintiff with an “ordinary” tort claim. The Act requires proof by clear and convincing evidence of all of these elements: 1. That he or she was convicted of one or more felony crimes and subsequently sentenced to a term of imprisonment for such felony crime or crimes and has served all or any part of the sentence; 2. With respect to the crime or crimes under subdivision (1) of this section, that the Board of Pardons has pardoned the claimant, that the court has vacated the conviction of the claimant, or that the conviction was reversed and remanded for a new trial and no subsequent conviction was obtained;

Relief Available Only If Actually Convicted, Sentenced and Incarcerated The fact that an individual was arrested and spent time in jail does not, itself, qualify that individual to recover under NCWCIA. If charges were dismissed before trial, or if the individual proceeded to trial and was acquitted, he or she has no cause of action under NCWCIA. The NCWCIA requires that a plaintiff have actually been convicted and incarcerated— not detained pretrial, but incarcerated after conviction. “Jail” and “prison” are not the same. Jails are run by counties; prisons are run by the State of Nebraska. The fact that a person spent months or even years in a county jail awaiting trial (or dismissal of charges) does not satisfy the requirements of a NCWCIA claim against the State. There must be a conviction and an order of commitment to the Nebraska Department of Correctional Services, and your client must have actually been admitted to prison.

Relief Available Only for Clear and Convincing Evidence of Actual Innocence Not every person who has been criminally charged, and against whom those charges were dismissed, can win his or her NCWCIA claim. It is not enough for a prospective NCWCIA client who serves time on a narcotics conviction to show that an appellate court determined the search was illegal and charges were thereafter dismissed, if the evidence supporting the conviction was a baggie of cocaine in the prospective client’s rectum. The client must show by clear and convincing evidence that charges were dismissed or pardoned, and that he or she is actually innocent. “Legal innocence,” or “procedural innocence,” is demonstrated by evidence that the plaintiff was pardoned, that his or her conviction was vacated, or that after reversal of conviction and remand for a new trial, no subsequent conviction was obtained (whether through acquittal at the new trial or dismissal of charges). “Actual innocence” refers to “the absence of facts that are prerequisites for the sentence given to a defendant.”4 It means that you must prove, by clear and convincing evidence, that your client did not commit the crime.

3. That he or she was innocent of the crime or crimes under subdivision (1) of this section; and 4. That he or she did not commit or suborn perjury, fabricate evidence, or otherwise make a false statement to cause or bring about such conviction or the conviction of another, with respect to the crime or crimes under subdivision (1) of this section, except that a guilty plea, a confession, or an admission, coerced by law enforcement and later found to be false, does not constitute bringing about his or her own conviction of such crime or crimes.3

Look at all of the “ands” in this statute. Each “and” represents a way to lose a NCWCIA case. Not every person who spent time behind some type of bars and later walked free can receive compensation. And, a deserving NCWCIA plaintiff THE NEBRASKA LAWYER

will lose his or her case unless his or her attorney navigates every hazard of the Act with perfect accuracy.


The presumption of innocence accorded to criminal defendants does not apply when that criminal defendant becomes a plaintiff with a NCWCIA claim. If anything, the NCWCIA flips the presumption to one of “not innocent” unless and until established by clear and convincing evidence. Any litigation requires the proponent to go first and prove his or her claim, but NCWCIA cases make that challenge unique by the confluence of civil and criminal law within one case. If your NCWCIA case proceeds to trial,5 you will be in the unique MAY/JUNE 2017

“INNOCENT” IS NOT ENOUGH posture of trying a criminal case against the State:

prison—but that is what the judge must find in order for the NCWCIA plaintiff to recover. Needless to say, this factor presents a special challenge of persuasion for the lawyer representing a NCWCIA plaintiff.

• on behalf of the former criminal defendant; • carrying the burden of proof; • with zero presumption that your client is innocent; and

Relief Available Only If Plaintiff Did Not Knowingly Make a False Statement

• instead of picking apart the prosecution’s case just enough to show reasonable doubt of the client’s guilt, you must build a case with enough evidence to constitute clear and convincing proof of the client’s innocence.

Building and proving a case for criminal innocence in the civil setting requires a unique skill set, and equal familiarity with both criminal and civil procedure. Do not assume that because you have expertise in civil cases, that expertise alone will serve your client in a NCWCIA trial. Similarly, nor should a criminal defense lawyer assume that that body of expertise alone is enough. The NCWCIA was not enacted to make it easy for a claimant to recover compensation, and the unusual challenge of trying a criminal case civilly adds to the built-in barriers of the NCWCIA. A further complication is presented by the requirement that the NCWCIA plaintiff try his or her case to a district court that presided over the original wrongful conviction. It is only human for a judge to not want to admit that she, or her colleague, presided over a trial that sent an innocent person to



If, in the course of his or her prosecution, the plaintiff made a false statement to cause or bring about his or her conviction, the plaintiff is barred from recovery. Nor may a plaintiff recover if he or she made a false statement to cause or bring about the conviction of another. In other words, if he or she became a witness for the State in order to obtain a more favorable outcome, and provided testimony that he or she knew was false, that false testimony is a complete bar to recovery. This provision is qualified by the allowance that “[a] guilty plea, a confession or an admission, coerced by law enforcement and later found to be false, does not constitute bringing about his or her own conviction.”6 But not every false confession is a coerced confession. If you wish to bring a NCWCIA claim for a plaintiff who falsely confessed, it is absolutely essential that you first thoroughly and accurately understand the science of false confessions. False confessions can occur in the absence of any improper


“INNOCENT” IS NOT ENOUGH interrogation tactics. In 2006, Jon-Mark Karr delivered a richly-detailed confession to the 1996 murder of child “beauty queen” Jon-Benet Ramsey. This confession was regarded as voluntary; it was also determined to be completely false. The Karr confession is included as an example of voluntary false confessions, in which individuals seeking fame or notoriety approach law enforcement to offer their claimed culpability.

This complex presentation of evidence was necessary to overcome the presumption inherent in NCWCIA, and in most people’s minds, that there is no reason to confess to a crime you did not commit.

An individual who knows his confession is false at the time he makes such confession cannot recover under NCWCIA in the absence of coercion. An individual who knows his confession is false but confesses anyway due to law enforcement coercion, however, remains eligible to recover compensation. But just as not all false confessions are coerced confessions, nor are all interrogations unlawfully coercive. Interrogation methods that are designed to encourage confessions can still fall within the ambit of constitutionality. It takes legal research, study of interrogation methods and thorough familiarity with the known facts of the crime in question to identify whether tactics used in a prospective client’s interrogation transgress into coercion.

Gathering evidence to clear these evidentiary hurdles makes no difference if the lawyer for an NCWCIA plaintiff overlooks the administrative compliance requirements, which are jurisdictional prerequisites to a NCWCIA action. A NCWCIA action requires compliance with the procedures of the Nebraska State Tort Claims Act.9 This means that the plaintiff must submit a written claim to the Nebraska State Claims Board within two years, and then wait six months for the State Claims Board to do (or not do) anything with the claim. One misstep in these jurisdictional requirements, and the NCWCIA case will fail.

The Nebraska Supreme Court has observed that the Legislature’s inclusion in NEB. REV. STAT. § 29-4603 of “false statement” in the same phrase as “commit or suborn perjury” and “fabricate evidence,” all of which are intent-based actions, effectively creates a requirement of intent and/or knowledge that the person was not telling the truth when he or she made a false statement. Where law enforcement misuses psychological interrogation tactics to induce a NCWCIA plaintiff to truly believe, at the time of her incriminating statement, that she committed the crimes to which she falsely confessed, that incriminating statement does not disqualify the plaintiff from compensation.7 But proof of this contingency is not easy. It requires evidence regarding proper and improper interrogation methods. It requires evidence of the plaintiff’s psychological structure and intellectual function at the time of her incriminating statement. It requires extensive connecting of metaphoric dots to clarify what the plaintiff could reasonably understand at the time, whether and how her will was overborne and why she should not be held accountable for her false confession. It is not enough to simply have the plaintiff testify, “I thought it was true at the time” without further evidentiary support and explanation. This provision of NCWCIA was included as a reaction to what was incorrectly perceived, at the time of its enactment, to be the cause of the wrongful convictions of the “Beatrice 6”: three of the six wrongly convicted individuals had falsely confessed and incriminated others. The confessors were able to recover NCWCIA compensation because, as expert testimony established, they did not understand that their confessions were false and were the product of improper interrogation tactics.8 THE NEBRASKA LAWYER


Relief Available Only If Plaintiff Complies with Administrative Requirements

Civil Rights Challenges to Wrongful Arrest, Prosecution and Conviction The other avenue to possible relief for a person who has been falsely accused of a crime is a federal civil rights action, to be brought under 42 U.S.C. § 1983. If it seems like a state-law NCWCIA action is filled with improvised explosive devices waiting to detonate your client’s case, be aware that the barriers to recovery in a § 1983 are even more numerous and more difficult. Like NCWCIA, 42 U.S.C. § 1983 was not enacted to make it easy for a claimant to recover compensation. Section 1983 actions are available for (among other myriad types of civil rights violations) an innocent person who: • was arrested; or • was arrested and detained in jail until charges were dismissed; or • was convicted.

Officers, investigators, and supervisors who set policy and/ or directly contribute to the harm may be sued, as may be the municipalities whose policies and customs led to the harm. A 42 U.S.C. § 1983 action is not available as a means to collaterally attack a still-valid judgment of conviction, however. To recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.10 More to the point, where a § 1983 plaintiff has pled “guilty” or “no contest” to, or is found guilty of, offenses for which he/she is charged arising MAY/JUNE 2017

“INNOCENT” IS NOT ENOUGH out of an abusive or wrongful arrest, he cannot bring a wrongful conviction claim without obtaining an order that in some manner invalidates the judgment of conviction.

Absolute and Near-Absolute Immunities Judges may almost never be sued, no matter what they are alleged to have done—judicial immunity is nearly absolute. This immunity applies “even when the judge is accused of acting maliciously and corruptly.”11 It applies even where the judge has taken a bribe; it applies even when the judge presides over a case in which there is a clear and undisputed conflict of interest. The only recognized exceptions to judicial immunity are actions not taken in a judicial capacity, and actions taken in the complete absence of all jurisdiction.12 Prosecutors may not be sued for core prosecutorial functions, that is, acts “within the scope of his duties in initiating and pursuing a criminal prosecution.”13 “Core” prosecutorial functions that are immune from liability include filing criminal charges, even when done in bad faith;14 actions taken or statements made in any court proceeding; plea negotiations; and retaining evidence pending a direct appeal.15 The exceptions to prosecutorial immunity are very limited, and include instances when the prosecutor steps out of his prosecutorial role to become a de facto investigator. That said, evidence of a prosecutor’s misconduct may be relevant in some circumstances to prove municipal liability, even if the prosecutor himself or herself is immune—meaning that it is still worthwhile to include the prosecutor’s actions in the discovery plan.

Qualified Immunity One of the easiest and most painful ways to lose a wrongful conviction case is on a finding that the defendant officer or investigator is entitled to qualified immunity. A defendant may assert and renew defenses of qualified immunity at any point in the litigation of a 42 U.S.C. § 1983 case. Denial of qualified immunity is one of the few circumstances in which federal appellate courts allow interlocutory appeals. Before filing suit, it is essential for counsel for a § 1983 plaintiff to do the research necessary to: • identify exactly what constitutional right was ostensibly violated and what conduct by the defendant caused the violation; and • identify decisional authority showing recognition of that constitutional right, and condemnation of the type of misconduct committed in your case, predating the events of your case.

From there, you can prepare a discovery plan that will enable you to develop the evidence needed to support application of favorable decisional authority. The initial inquiry is whether the facts alleged show that the officer’s conduct violated a constitutional right.16 Underlying that inquiry is the question of “what is the specific right that the plaintiff contends was violated?”17 This is often a complex inquiry. For example, pursuant to Brady v. Maryland,18 prosecutors and law enforcement are required to give criminal defendants

ARBITRATION AND MEDIATION SERVICES The Honorable William M. "Bill" Connolly, retired after twenty-two years on the bench with the Nebraska Supreme Court, is now Of Counsel with the firm of Erickson | Sederstrom practicing in Arbitration and Mediation. WWW.ESLAW.COM (402)384-6896 BCONNOLLY@ESLAW.COM THE NEBRASKA LAWYER



“INNOCENT” IS NOT ENOUGH evidence that tends to exculpate the defendant. But if the defendant is not convicted—if charges are dismissed before trial, even after months of pretrial detention—the United States Court of Appeals for the Eighth Circuit has held that the fact that prosecutors and law enforcement violated Brady may not be actionable when that criminal defendant becomes a 42 U.S.C. § 1983 plaintiff.19 It is not enough to vaguely cite “the right to due process” or “freedom from unreasonable seizure.” The right at issue must be framed “in a more particularized, and hence more relevant, sense, in light of the case’s specific context, not as a broad general proposition.”20 Courts regard vague identification of the right ostensibly violated as a trick to avoid qualified immunity. If the facts alleged do show that the officer or investigator violated a constitutional right, then the second, sequential inquiry of qualified immunity analysis is whether that right was clearly established at the time of its violation. Following the previous example of a pretrial Brady violation, if the United States Supreme Court or your circuit has not spoken clearly in identifying a pretrial right to exculpatory evidence, and especially if there is not a consensus among other circuits, then your court may conclude that any such right was not clearly established at the time of its alleged violation.21 It is intensely frustrating to hear from a court that your client’s rights were violated, but that not enough courts had agreed on the existence of such right before your client’s case arose to overcome qualified immunity. Civil rights defendants commonly raise qualified immunity defenses early in the litigation, often accompanied by a motion to stay discovery pending disposition of a qualified immunity defense. If the qualified immunity is a purely legal question— e.g., whether the right in question was clearly-established in the decisional authority as of the date of its alleged violation—then the plaintiff may not be unfairly prejudiced by staying discovery. But some defense counsel believe there is an entitlement under the law to submit evidence in support of a requested factual finding, without allowing the plaintiff (who typically has limited or no access to evidence in law enforcement custody) a fair opportunity to discover and submit evidence in opposition. That troubling trend in civil rights cases has been described as follows: Time after time, individual defendants seek a stay of all discovery until the issue of qualified immunity is resolved. Yet these defendants do not seek a ruling on their immunity defense until they move for summary judgment. Invariably, the summary judgment motion is not limited to the issue of qualified immunity but covers the underlying substantive claims as well. Such maneuvering perverts the purposes of the discovery stay, creates inefficiency and confusion in the resolution of qualified immunity cases, and unfairly blind-sides plaintiffs THE NEBRASKA LAWYER

by forcing them to respond to evidence before they have an opportunity to conduct discovery.22

Defendants employ this tactic because judges let them; judges are more inclined to let them when plaintiffs’ lawyers are not prepared to respond with resistance to the motion to stay, identification of the discovery necessary to respond to the defense’s evidentiary submission and a plan to move develop that evidence. To be sure, a court may grant the motion to stay discovery in spite of that level of preparation by the plaintiff. But one can hope that the court’s response will include the recognition of irony and reality voiced by this Texas federal judge: Defendants themselves recognize the importance of the underlying historical facts because their pending summary judgment motion is supported by the affidavits of six police officers who participated in the events giving rise to this suit. Yet they vigorously oppose plaintiff’s efforts to conduct any discovery until the issue of qualified immunity is decided. The absurdity of this scenario should be plain. The only reason the question of qualified immunity is still unresolved is because defendants chose not to engage it as a threshold matter. Instead, defendants first raised it in a fact-intensive motion for summary judgment. They now hide behind the shield of qualified immunity to deny access to evidence solely within their control while using that same evidence against plaintiffs. Limiting discovery in these circumstances is inherently unfair.23

“Deliberate Indifference” vs. Negligence Knowing how to work up and try a personal injury case, and protect a verdict on appeal, does not translate equally into knowing how to manage a civil rights case. As many ways as there are to lose a NCWCIA case, there are even more ways to lose a 42 U.S.C. § 1983 case—before, during or after trial. To say that the decisional authority on 42 U.S.C. § 1983 liability is complex is an understatement: the web of immunities, the requirement for proof of “deliberate indifference” (worse than negligence, just short of intentional acts), the narrow path to municipal liability for the actions of an individual, and the meaning of “official capacity” versus “individual capacity” are all land mines for the civil rights novice. If possible, do not file suit without first familiarizing yourself with the entire available record—meaning transcript, bill of exceptions, and all available reports and evidence from the proceedings resulting in the wrongful arrest, pretrial detention, conviction and/or incarceration. It is borderline malpractice to file suit without committing yourself to extensive legal research. This is necessary in order to know how the applicable case law bears on the known facts of the prospective § 1983 case, and to identify what facts (if they exist) must be discovered and made



“INNOCENT” IS NOT ENOUGH part of the record in order to overcome motions for qualified immunity. Use the case law to draft jury instructions and develop your discovery plan, and return to your legal research throughout discovery as you learn new information about the course of the investigation. A police officer is entitled to qualified immunity if a reasonable officer possessing the same information would have believed his conduct was lawful.24 Thus, proof that the investigators were negligent (to include negligent failure to investigate other leads)25 will not get a § 1983 case to trial. The plaintiff must show “deliberate indifference” by law enforcement, which courts have likened to a recklessness standard.26 Evidence that a defendant proceeded without heed or concern to the consequences would satisfy that standard. Development of that evidence requires thorough knowledge of the known facts of the underlying crime, and a thorough understanding of law enforcement investigative procedures. Bear in mind that misconduct which, in and of itself, may not arise to a constitutional violation may nonetheless be relevant to show motive and intent.

Municipal and Supervisory Liability There is no such thing as vicarious liability in a wrongful conviction case brought under 42 U.S.C. § 1983. The municipality is not automatically liable for the reckless or even intentional acts of its investigators. To the contrary, § 1983 provides for municipal liability only when action pursuant to official municipal policy—which may be shown by word or by deed—causes a constitutional tort.27 “Policy” is established when the person who causes the violation has final policymaking authority. Policy is also established through longstanding practice or custom; through after-the-fact ratification by a final policymaker of the investigator’s actions; or by the final policymaker’s active deliberate indifference to the constitutional violation. Nor is a supervisor liable for simple failure to supervise his investigator during the investigation. A supervisor incurs liability only when she is personally involved in the constitutional violation, or when the corrective inaction constitutes deliberate indifference toward the violation.28 The plaintiff must show that the supervisor knew about the conduct and facilitated it, approved it, condoned it, or turned a blind eye to it.29

Necessity of Understanding Criminal Procedure/ Law Enforcement Practices Although the text of 42 U.S.C. § 1983 does not require proof of actual innocence, 28 U.S.C. § 2513 (the federal Unjust Conviction and Imprisonment Act) requires a plaintiff who has been convicted of a federal crime30 to show that his conviction is invalid, that he is actually innocent and that his own misconduct did not bring about the prosecution. In such THE NEBRASKA LAWYER


a case, and in § 1983 cases arising from state-law convictions, “this conviction is not wrongful because the plaintiff actually is guilty of the crime for which he was arrested/convicted” is a defense to a § 1983 action. The plaintiff’s lawyer may thus find himself or herself in the same posture required in a NCWCIA trial, e.g., trying a criminal case within a civil trial in order to prove innocence. And the plaintiff’s lawyer must prove that the police misconduct was deliberately indifferent to the plaintiff’s rights—again, meaning worse than mere negligence. And the plaintiff’s lawyer must prove the nature and extent of damages proximately caused by the police misconduct.

And the Law Is Against You News outlets periodically report verdicts and settlements obtained by wrongfully-convicted or wrongfully-prosecuted individuals against law enforcement agents and agencies. These verdicts and settlements are “news” because they are news-worthy: because they are a departure from the norm. Unfortunately, those reports can create a false impression that the law favors allowing the wrongfully-prosecuted individual to receive compensation. The truth is quite the contrary. Commentators have described an exoneree’s overall chance of recovery as slight.31 Law enforcement witnesses tend to protect each other. Sometimes the reasons are understandable: no one wants to feel that his misjudgment caused as much suffering as an innocent woman or man experiences when wrongly prosecuted (much less incarcerated). Other times, the reasons are more sinister, ranging from bullheaded refusal to admit “I was wrong” to an active attempt to cover up misconduct. Courts tend to protect law enforcement, defining “good faith” broadly and the constitutional right in question narrowly. The best chance for a wrongfully-arrested or -convicted plaintiff to survive the multitudinous vehicles for dismissal is for his or her attorney to plan carefully before filing suit, and proceed with a level of care and attention that approaches perfection. It’s not fair that it should be this difficult for an innocent person already grievously harmed by the American legal system to recover fair compensation, but it is what the system demands.

Conclusion It is said that “hard cases make bad law.” It is also true that insufficient records presented to a reviewing court also make bad law. Very good and experienced lawyers have lost very righteous § 1983 cases despite solid work to create an excellent record, such as in John Wilson’s case (mentioned at the outset of this article); but an inexperienced lawyer’s failure to discover and present a complete record practically invites not only an adverse decision ending a wrongfully-arrested or -convicted person’s chances for justice, but also the development of deci-

➡ MAY/JUNE 2017

“INNOCENT” IS NOT ENOUGH sional authority that will harm other § 1983 plaintiffs long into the future. Courts will not fill in the blanks in a § 1983 case in a manner that favors the plaintiff—it is absolutely the burden of the plaintiff to develop and execute a plan to create the type of record that supports a jury question and a jury verdict. These are righteous cases. Our calling, in taking a wrongful conviction or wrongful arrest/prosecution case, is to correct the flaws of a justice system that failed our client the first time around. Our calling is also to strive to prevent the development of poor decisional authority because of inadequate work on the lawyer’s part. Fulfilling these callings requires exacting care, “heavy lifting” for years of litigation and significant expense, but also the opportunity to serve deserving clients and the American justice system is singular. Don’t be afraid to ask for help.

21 See,

e.g., id.

22 Estate

of Sorrells v. City of Dallas, 192 F.R.D. 203, 207 (N.D. Tex. 2000).

23 Id. 24 Shaw

v. Stroud, 13 F.3d 791, 801 (4th Cir.1994).

25 Wilson


v. Lawrence Cty., Mo., 260 F.3d 946, 955-56 (8th Cir.

26 Id. 27 Pembaur 28 Choate 29 Boyd

v. City of Cincinnati, 475 U.S. 469, 479-80 (1986).

v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993).

v. Knox, 47 F.3d 966, 968 (8th Cir. 1995).

30 This

statute would not apply to persons who were arrested, detained, and not convicted (either because of acquittal at trial or because charges were dismissed). Nor would this statute apply to persons who were convicted of state crimes.

31 Garrett,

“Innocence, Harmless Error, and Federal Wrongful Conviction Law,” 2005 Wisc. L. Rev. 35.

Endnotes 1

“John Wilson” is a pseudonym.


Only the wrongly-convicted person himself may be a plaintiff in a NCWCIA case: if he dies (including during the pendency of a timely-filed claim and case), the claim dies with him. See NEB. REV. STAT. § 29-4604(5). Nor is a NCWCIA claim assignable.


NEB. REV. STAT. § 29-4603.


Hess v. State, 843 N.W.2d 648 (Neb. 2014).


Which would be a trial to the bench. State-law tort claims against the State are tried only to the court, without a jury.


NEB. REV. STAT. § 29-4603(4).


Dean v. State, 849 N.W.2d 138, 149 (2014). That said, even proper interrogation tactics can still result in a persuaded and thus non-perjurious false confession and wrongful conviction. In a NCWCIA case, the plaintiff need not prove law enforcement misconduct, but only that the plaintiff did not knowingly and intentionally make a false statement in her confession.


Dean v. State, 849 N.W.2d 138 (2014).


NEB. REV. STAT. §§ 81-8,209 – 81-8,235.

10 Heck

v. Humphrey, 512 U.S. 477, 486-87 (1994).

11 Pierson

v. Ray, 386 U.S. 547, 554 (167).

12 Mireles

v. Waco, 502 U.S. 9, 11 (1991).

13 Imbler

v. Pachtman, 424 U. S. 409, 410 (1976)

14 Id. 15 Parkinson 16 Pearson 17 See,

v. Cozzolino, 238 F.3d 148 (2d Cir. 2001).

v. Callahan, 555 U.S. 223, 232 (2009).

1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-Free: 800-844-6778

e.g., Albright v. Oliver, 510 U.S. 266, 270 (1994).

18 Brady

v. Maryland, 373 U.S. 83 (1963).

19 Livers

v. Schenck, 700 F.3d 340, 359 (8th Cir. 2012).

20 Spady

v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir.





plain language

This article is reprinted with permission from the Michigan Bar Journal’s Plain Language column (Joseph Kimble, editor). All rights reserved.

Indemnification: Banish the Word! And Rebuild Your Indemnity Clause from Scratch by Jeffrey S. Ammon

Clients often ask me what indem­nification means. I tell them the truth: it is legalese for payment, a word they understand. What would your indemnification clause look like if you rewrote it without using the word indemnification or its related terms: indemnify, indemnity, indemnitor, and indemnitee? And what would your clause look like if you also abandoned the tortured, legalistic mumbo-jumbo found in most indemnity clauses? Plainer words are available. Typical indemnity clauses are loaded with ambiguity. For example, is there a difference between indemnify and hold harmless in the typical indemnity phrase indemnify and hold harmless? There should be: Michigan cases uniformly state that we should avoid contract interpretations that render one or more words “mere surplusage.”1 Adding hold harmless to indemnify has caused some courts to struggle over what those additional words might mean.2 So you should not be surprised that commentators uniformly advise drafters to use just the single word indemnify.3 I suggest going one step further by eliminating the word indemnify entirely.

Jeffrey S. Ammon

Besides ambiguity, typical indemnity clauses suffer from unwieldy sentences and other drafting flaws. For example, look at the first sentence of the standard indemnity clause in section 3.18 of the American Institute of Architects Form A201-2007: To the fullest extent permitted by law the Contractor shall indemnify and hold harmless the Owner, Architect, Architect’s consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself ), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.

This 136-word sentence runs on far too long to be easily understood. It contains some apparent doublets (and even a quad): indemnify and hold harmless; from and against; acts or omissions; arising out of or resulting from; claim, damage, loss or expense. It employs a proviso, which has no place in well-drafted contracts.4 And in injury to or destruction of tangible property, what does destruction add to injury? Does anybody even refer to injury to property?

Jeffrey S. Ammon is an avid student of plain-language drafting and has practiced business, transactional, and real estate law for 39 years at Miller Johnson law firm in Michigan.

Editors: P. BRIAN BARTELS, partner, Kutak Rock LLP, Omaha BRANDY R. JOHNSON, attorney, Law Office of Vincent Valentino, Lincoln If you are interested in submitting an article for the “Plain Language” column, please e-mail Sara Weber at





A Better Term: Pay for Let’s replace the verb indemnify with two one-syllable words that everyone understands—pay for—and then describe what that term covers. If we strip away all the legalese and tortured syntax from the AIA’s sentence, we can begin reconstructing a basic indemnification clause. And we’ll replace the party names, but not with the typical—yet confusingly similar—terms indemnitor and indemnitee so often seen in these provisions. To illustrate, let’s use the generic payer and recipient instead: The payer must pay the recipient for a loss caused by the payer’s negligence.

I banned the use of indemnity, so I’ll call this a loss payment clause instead. Next, let’s address several elements that even the briefest loss-payment clause should cover: (1) What triggers a covered loss?

Consider using just one connector plus a definition, as in the sample shown in the appendix.

What Expenses are Covered? What about such things as medical expenses, lawyer fees, staff time, lost profits, and decline in property value? Consider using a string of illustrative examples, as I do in the sample’s definition of loss. But be careful when you list a string of examples. A court or adversary might seek to apply the rule of ejusdem generis, which Preston Tolbert renames the class presumption: in a list of items ending with a general term, we presume that the last term will be interpreted narrowly to be within the same class created by the previously enumerated items.6 Thus, we might interpret the word building in the phrase house, cottage, or other building to include only residential dwellings, not commercial buildings.

Who Selects and Pays Defense Counsel?

(2) What expenses are covered? (3) Who selects—and pays for—legal counsel to defend against claims for losses? (4) Must the recipient notify the payer that someone has made a claim?

What Triggers a Covered Loss? In our one-sentence AIA clause, the payer’s negligence triggers coverage. But the payer’s negligence is not always the trigger, of course. You might create triggers from different perspectives: • Extent of the payer’s fault (to the extent caused by the payer’s negligence or willful misconduct).

Some indemnity clauses attempt to cover defense issues by using the word defend in the triplet defend, indemnify, and hold harmless. Don’t rely on that single word to carry the weight of all the legal-defense issues. This is especially important in Michigan, given its contradictory case law comparing the duty to defend with the duty to indemnify.7 Let’s unbundle the defense issues: • Who controls the legal defense if litigation occurs—the recipient or the payer? Since the payer bears the economic risk, my sample gives the payer an option to control the defense. • If the payer elects to control the defense, may the recipient retain its own counsel anyway, to advise it on whether payer’s counsel is doing a good job? My sample gives the recipient this right, but at the recipient’s expense.

• The payer’s actions regardless of fault (arising out of the payer’s work or services).

• May the payer settle the claim without the recipient’s permission? What if the settlement includes an admission of the recipient’s wrongdoing or suspends a license belonging to the recipient? The sample clause gives the recipient a veto over those kinds of settlements.8

• The recipient’s standard of conduct (if the recipient acted in good faith and in a manner that the recipient reasonably believed was in the corporation’s best interests). • Effect of the recipient’s fault (except to the extent caused by the recipient’s negligence). • Location (occurring within the leased premises).

Is Notice of a Claim Required?

• Time (arising after closing and based on events that occurred before closing).

If not, the recipient could defend the claim and then bill the payer for the loss only after the judgment or settlement is final and appeal deadlines have passed. If notice is required, what consequences befall a recipient who gives a late notice? My sample requires prompt notice but protects the recipient from forfeiting its rights if notice is late.

• Subject matter of the claim itself (involving the environmental condition of the purchased property). • Contract breach (based on the inaccuracy of the payer’s representations).

You must carefully choose the words connecting the trigger to the losses. Is there any difference in scope between a loss arising from negligence and one resulting from that negligence? At least one Michigan case says there is.5 If you use a string of alternative connectors, do you mean something different by each phrase? Or does one swallow up the other? THE NEBRASKA LAWYER


The Sample The appendix shows a sample loss-payment clause. This is only a sample, though. You’ll adjust your own drafting depending on the nature of the contract, the audience (commercial versus consumer, for instance), and whether you represent the MAY/JUNE 2017

PLAIN LANGUAGE payer or the recipient. In short, there’s probably no such thing as a “standard” loss-payment clause. Unbundling a tortured mess of legalese takes time. But there may be no better way to understand a contract clause than by doing just that. So consider replacing your old indemnity clauses with your new loss-payment clauses in your most frequently used contract forms. You might find that indemnification will go the way of witnesseth, know all men by whom these presents, in witness of which, and other legalese that adds nothing to well-drafted contracts. And your clients will happily indemnify—er, pay for—your work.

Endnotes 1

See, e.g., Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003) (“[C]ourts must . . . give effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory.”); but see TMW Enterprises, Inc v Fed Ins Co, 619 F3d 574 (CA 6, 2010) (interpretation not necessarily wrong just because it renders certain words or phrases redundant, citing as examples loss or damage; caused by or resulting from; and faulty, inadequate or defective).


See Garner’s Dictionary of Legal Usage (3d ed, Oxford U Press 2011), pp 443–445; see also Poole v Cintas Corp, unpublished opinion of the Court of Appeals, issued July 27, 2010 (Docket No. 291716) (available at the Court of Appeals website by docket number) (indemnity clause inapplicable because the clause covered any claim instead of all claims).


See, e.g., Adams, A Manual of Style for Contract Drafting (3d ed) (ABA, 2013), §§ 13.323–13.337; Kimble, Lifting the Fog of Legalese: Essays on Plain Language (Carolina Academic Press 2006), pp 37–47 (describing the myriad problems in a typical indemnification clause and what a revised version would look like). The Kimble essay refers to an article in the Michigan Bar Journal: Daly, Taming the contract clause from hell: A case study, 78 Mich B J 1155 (October 1999). That article contains an excellent example of how to rewrite a typical indemnification clause without abandoning the words indemnify and indemnification.


See Kimble, n 3 supra at 72; Garner, n 2 supra at 727; Adams, n 3 supra at 13. 5 41–13. 5 48; Kimble, Down with provided that, 83 Mich B J 40 (July 2004).


See Robinson v Detroit, 462 Mich 439, 453–457; 613 NW2d 307 (2000) (resulting from interpreted to mean proximate causation as that phrase is used in the statutory motor-vehicle exception to governmental immunity, MCLA 691.1405).


See Torbert, Globalizing legal drafting: What the Chinese can teach us about ejusdem generis and all that, 11 Scribes J Legal Writing 41–50 (2007); Englert, The other side of ejusdem generis, 11 Scribes J Legal Writing 51–55 (2007).

7 Compare

Grand Trunk Western R, Inc v Auto Warehousing Co, 262 Mich App 345; 686 NW2d 756 (2004) (duty to defend is not separate and distinct from the duty to indemnify) with Ajax Paving Industries, Inc v Vanopdenbosch Constr Co, 289 Mich App 639; 797 NW2d 704 (2010) (the two concepts are not interdependent; they relate to distinctly different matters).


For an excellent article and sample language addressing notice and defense rights, see Daly, Taming the contract clause from hell, n 3 supra; Daly, The return of the “contract clause from hell”, 79 Mich B J 202 (February 2000). And for a general guide to drafting indemnification terms, see Adams, n 3 supra at 13.3 02–13.337. For example, drafters should consider whether the indemnification is an exclusive remedy and whether it should be limited to third-party claims.


Appendix: Sample Loss-Payment Clause Note to drafter: You should insert party names when using this clause. In this sample, I use the placeholders Hamilton and Burr. Note to readers: Suggestions for improving this clause are most welcome. 10. Loss Payment (also known as Indemnification) A. In General. Hamilton must pay Burr for any loss of Burr’s that is caused by Hamilton’s negligence or intentional misconduct. But Hamilton need not pay to the extent that the loss was caused by Burr’s negligence or intentional misconduct. B. Definitions. Loss means an amount or amounts that Burr is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages. A loss is caused by an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss. C. Burr’s Duty to Notify. Burr must notify Hamilton before the 10th business day after Burr knows or should reasonably have known of a claim for a loss that Hamilton might be obligated to pay. Burr’s failure to give timely notice does not terminate Hamilton’s obligation, except to the extent that the failure prejudices Hamilton’s ability to defend the claim or mitigate losses. D. Giving Notice. [Drafter: If the contract does not already have a notice section, insert one here. Describe permitted methods (written? electronic? what address?) and when notice is effective (e.g., next business day if sent FedEx).] E. Legal Defense of a Claim. (1) Burr’s Control. Burr has control over defending a claim for a loss (including settling it), unless: (a) Hamilton elects to control the defense as described below, or (b) Burr directs Hamilton to control the defense. (2) Hamilton’s Election to Control. Upon receiving notice of a claim for a loss, Hamilton may take control of the defense by notifying Burr. If Hamilton takes control, each of the following applies: (a) Hamilton may choose and retain legal counsel. (b) Burr may retain his own legal counsel at his expense. (c) Hamilton must not settle any litigation without Burr’s written consent if the settlement imposes a penalty or limitation on Burr, admits Burr’s fault, or does not fully release Burr from liability. (3) Good Faith. Burr and Hamilton must cooperate with each other in good faith on a claim. F. No Exclusivity. Burr’s rights under this section 10 do not affect other rights that Burr might have. 47


Thank You to our Greater Nebraska Golf Scramble Sponsors (as of press time)

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coach’s corner

How Smart Lawyers Squander Talent, and How to Get It Back Again by Susan Ann Koenig

I felt a deep disappointment when I realized that even after more than 35 years in my career I was missing the mark in one of my most deeply-held intentions as a lawyer: disappointment that I didn’t realize some simple ways to be a better mentor, leader, and coach. I didn’t realize that, too often, I had been what author Liz Wiseman calls an “accidental diminisher.” From the law students I taught as an adjunct to the attorneys at our firm, I have always enjoyed supporting others in their professional development. What Wiseman taught me in her book Multipliers: How the Best Leaders Make Everyone Smarter is how I had unintentionally held others back through my own behavior. For most of the first half of my career, I was a solo practitioner. I was the person who made the decisions, had the knowledge (or thought I did), and was responsible for new ideas. I was the answer finder, the problem solver, and the ultimate decider. Years of being in this role gave me a degree of confidence that I was capable. It also blinded me to the possibility that others might be, too.

Susan Ann Koenig Susan Ann Koenig is of counsel at Koenig|Dunne, an Omaha divorce and bankruptcy firm that focuses on the client’s future as family and financial circumstances change. She is the co-author of Divorce in Nebraska: The Legal Process, Your Rights, and What to Expect (2d Ed.). Susan also enjoys an encore career as an executive coach, speaker, and writer. THE NEBRASKA LAWYER

As the competency of a lawyer becomes more recognized, to herself or to others, her responsibility grows along with the workload. The more successful a lawyer becomes, the more she realizes she can’t advance in her career without developing others. Solos, in-house counsel, government lawyers and those in global firms eventually find themselves relying upon others to fulfill the mission of the organization. Unfortunately, law school did not teach us how to maximize the talent of others. As a result, we are vulnerable to failing in the empowering of others so we can all achieve greater success. Here’s what can happen: 1. We think we know it all. Admit it. You’re smart. When you were growing up, people probably told you so. Then you got accepted to law school. Then you managed to pass the bar and declare yourself a lawyer. Then you got a job where your day is filled with the expectation that you have the answer for your clients. Is it any wonder you think you’re supposed to know it all? The problem: When we think we’re supposed to know it all, we don’t give others the chance to know something or to learn something because we already have the answer. We cut off discussion of ideas. The result: We deprive others of the chance to develop confidence that they have something to contribute and that they have answers, too. They continue to come to us for answers rather than gaining knowledge and skills through their own experience. The smarter choice: Resist the urge to share what you know. Replace your brilliant answer with questions like “What will it take for us to get there?” “How will you overcome the

➡ 49


COACH’S CORNER obstacles?” “What support will be useful?” “What will that get you?” Become a debate maker rather than a decision maker, or simply step away and let some other smart person go to work finding the best answer. 2. We expect perfection. We have high standards. High standards are what got us to where we are. When others don’t measure up to those standards, we have the thought, “It’s easier to do it myself.” “I don’t have the time to explain where they screwed up.” “I’m at a deadline so I’ll just fix it myself.” The problem: Perfection is a myth. We forget that there was a time when we had to do things for the first time, when we made mistakes, when we needed a teacher. The result: We hoard projects or grumble as we clean up the mistakes made by others. Our workload burgeons while others who could support us never develop the skills needed to share the work. We continue to think we’re brilliant and they’re incompetent. The smarter choice: Invest in developing others, allowing them to take risks and to learn from both experience and mistakes. Stop cleaning up the messes made by others. Do you remember a time in your life when you were less than perfect? Right. 3. We want the glory. A certain amount of ego strength is needed to survive in a profession that can be challenging, competitive, and full of unpredictability. But when our ego expands to the point where we always have to be the one getting the credit, we hold on to the part of a matter that ensures we get the glory for any good outcome. The problem: When we covet the credit, we tend to cling on to client work tightly or assign only a portion of a project without giving the full context. We later complain, “That wasn’t what I wanted!” The result: When we fail to set others up for success or we insist upon being the ones who reap all the rewards, others are either unable or uninspired to give their best. The smarter choice: Share as much of the entire project as you can. Acknowledge with enthusiasm and watch the most talented people ask how they can get on your team. 4. We talk too soon. Most lawyers are introverts. Introverts often prefer to chew on ideas and to think them over internally before sharing them with others. If the senior partner boldly asserts the solution to a problem at the start of a conversation, what are the prospects that the first-year associate is going to share a different perspective? The problem: In our presence, others hold back their opinions and their feedback. The result: Those we work with don’t share their suggestions for solutions to problems and their creative ideas, reafTHE NEBRASKA LAWYER


firming our conclusion that they don’t have anything to offer and really aren’t that bright. The smarter choice: Be the last person in the conversation to share your opinion. While encouraging rigorous debate, shift from the “I’m right/You’re wrong” conversation to being curious about the great questions and great ideas that others bring. If someone else shares the good idea you were holding in mind, acknowledge them and lend your support. Next time they’ll be encouraged to contribute even more. 5. We micromanage. Lawyers are sometimes accused of being condescending. Often oblivious to how we are being, we talk too much and needlessly interfere with another person’s work on a project. The problem: We waste time and energy on the team as we overexplain, assuming that the listener is not capable, or we attempt to control every aspect of delegated work. The result: People feel dumber, not smarter. The smarter choice: Set high expectations, give a starting point, and identify the benchmarks of success along the way that you’ll celebrate together. 6. We tolerate prima donnas and ignore other talent. When an individual attorney takes on the role of being the star, an organization is at risk for tolerating his or her bad behaviors while at the same time ignoring the genius of others. The problem: The top biller or chief rainmaker is allowed to bully the new associates while no one invests in mentoring the lawyers who are eager to learn and grow. The “chosen ones” bring down the entire organization and others either languish or leave. The result: A culture of resignation grows, attorneys jump ship to find an environment where they can both grow and be appreciated, and the firm loses its chance at a greater future. The smarter choice: Insist on high standards no matter where the attorney is in the firm hierarchy. Look for talent in everyone in the office from the receptionist to the firm administrator. When you find it, show that you value it. 7. We get addicted to our work. Whether by a longstanding tradition in our profession or the cultures in which we work, many of us have an unhealthy relationship to our work. We find our self-worth by the billable hour or the size of our paycheck. If we work less, we think less. The problem: We keep the work to keep feeling good about ourselves while we deprive others of opportunities and the chance to bring more value. The result: While we work our way to burnout, others don’t grow to their full potential. The smarter choice: Resist the urge to always be the first to respond to a group email. Pause for a moment before volMAY/JUNE 2017

COACH’S CORNER unteering to lead the next project. Take a few moments and instead of giving the answer, spend the time reflecting on how you can be a better multiplier. If you are like me and you recognize yourself in some of the ways we miss out on the talent of others, take heart. Even those

of us who are deeply committed to serving our clients well and to the success of others on our team can be an accidental diminisher at times. If you find a copy of this article on your desk someday, it may be that someone on your team is inviting you to take your own talent as a multiplier to the next level.

The NSBA Family Law Section presents

2017 Annual Family Law Seminar Thursday, May 18, 2017 • 8:30 am - 4:30 pm

Embassy Suites - La Vista • 12520 Westport Pkwy, La Vista, NE 68128 **Also available for viewing via live webcast.**

*Nebraska MCLE #138509. 6.25 CLE hours, including 1 hour ethics. (Regular/live) *Iowa MCLE #256210. 6.5 CLE hours, including 1 hour ethics. (Regular/live) *Nebraska MCLE #138507. 6.25 CLE hours, including 1 hour ethics. (Distance learning) *Only 5 distance learning CLE hours may be claimed per year for Nebraska.* *Iowa MCLE #256211. 6.5 CLE hours, including 1 hour ethics. (Distance learning) 1:40 pm Using Tax Returns to Determine Income for Farmers and Small Business Owners Reed Samson, CPA, Lutz & Company, PC

8:00 am Registration 8:30 am Welcome and Introduction 8:35 am Parental Alienation Dr. Amy Baker, Ph.D, PAS Expert Dr. Baker will discuss the latest diagnostic developments regarding parental alienation, why the court should intervene, and what can be done when alienation is identified. Dr. Baker is the leading expert on this subject and will be providing information that can be used by attorneys, mental health professionals and judges. 10:35 am Break 10:50 am Ethics in the Courtroom - A Judicial View Hon. John Samson, Washington County District Court; Hon. Shelly Stratman, Douglas County District Court; and Hon. Rachel Daugherty, Hamilton County District Court The judges will discuss ethical issues that arise in their courtrooms, what attorneys can do to avoid ethical pitfalls, and common ethical missteps from a judge’s perspective. 11:50 am Lunch (included with your registration)

Reed Sampson will provide practical tips for utilizing tax returns to help determine income available for purposes of determining child support and alimony. The focus will be on farming income and small business income and how to interpret those specific tax returns and schedules. 2:40 pm Break 3:00 pm Top Ten Tax Tips for 2017 John Ballew, Jr., Ballew Covalt Hazen, PC LLO John will be discussing the top tax issues that every divorce lawyer should know, including the latest changes and developments impacting divorce decrees and settlement agreements. 3:45 pm Case Law Update Adam Astley, Slowiaczek Albers & Astley, PC, LLO Adam will cover the latest need-to-know cases for Nebraska family law practitioners. 4:30 pm Reception Sponsored by the NSBA Family Law Section

12:40 pm Emotional Abuse Topics in Family Law Explained Dr. Amy Baker Attendees will gain a deeper understanding of emotional abuse, with a focus on how this impacts families and children in the context of divorce and custody. THE NEBRASKA LAWYER



The NSBA Family Law Section presents

2017 Annual Family Law Seminar Thursday, May 18, 2017 • 8:30 am - 4:30 pm

Embassy Suites - La Vista • 12520 Westport Pkwy, La Vista, NE 68128 **Also available for viewing via live webcast.**

*Nebraska MCLE #138509. 6.25 CLE hours, including 1 hour ethics. (Regular/live) *Iowa MCLE #256210. 6.5 CLE hours, including 1 hour ethics. (Regular/live) *Nebraska MCLE #138507. 6.25 CLE hours, including 1 hour ethics. (Distance learning) *Only 5 distance learning CLE hours may be claimed per year for Nebraska.* *Iowa MCLE #256211. 6.5 CLE hours, including 1 hour ethics. (Distance learning)

REGISTRATION FORM: 2017 Annual Family Law Seminar - May 18, 2017 ALL registrants will receive a link to download and print the materials ahead of time. Materials will NOT be printed for registrants unless requested and the additional fee below paid. c I will attend the live seminar at the Embassy Suites in La Vista. * Please note any dietary requirements/restrictions: ______________________________________________________________________________________________________ c I will attend the seminar via live webcast.

*Only 5 distance learning CLE hours may be claimed per year for Nebraska.* c $425 - Regular registration c $325 - NSBA dues-paying member (discounted price for NSBA dues-paying members) c Free - Law students

*Pricing options available for non-attorneys. Contact the NSBA for more information c I am attending the seminar & want printed materials - $45 (cost is additional to registration fee)

I am unable to attend, please send me:

c Printed Manual - $95

Name:_____________________________________________________________________Bar #_________________________ 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:________________________________________________________________________________________________ Make checks payable to NSBA and return completed form to NSBA, 635 S 14th St. #200, Lincoln, NE 68508, or email to Staci Williams at

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call (402) 475-7091. If you need any special accommodation for attending this event, please contact the NSBA.




technology tip

This post was originally published on D4’s “Discover More” blog.

When Data Trumps Documents as Evidence by Josh Headley, Director of Application Development, D4 Forensic Services Group

Although most electronic evidence in civil litigation comprises documents in the form of emails, word processing documents, spreadsheets, and presentation files, electronic data discovery (EDD) is really all about data. Data is all around you; it’s visible, hidden, expected, and unexpected. One thing that’s certain, however, is that parties are still responsible for identifying, preserving, and producing evidence regardless of its permanence or transiency. Data by itself may have no inherent meaning or usability as evidence until it’s translated into information. Far too often, identification and preservation efforts focus exclusively on document-based evidence. Here are a few examples of how ordinary, document-less data can be turned into useful information. Hansel and Gretel would’ve found it much easier to navigate the dark woods and find their way home if they were only born a couple hundred years later. Today, we can monitor one’s presence through a number of sources. Workers at a manufacturing facility swipe their badges in the parking lot and front gate, leaving a record of their location in a database. GPS data from cell phones and vehicle navigation systems is easily extracted. Facebook and Twitter posts form a voluntary log of one’s whereabouts and activities, and internet browsers follow your every move. None of this information is stored in “documents,” yet its usefulness as evidence is undeniable. eDiscovery analysts can populate spreadsheets or relational databases with this time-series and location-based information from multiple, disparate sources to piece together activity maps that were once only possible with thumb tacks on a cork board. Data discovery is also a hot topic in labor and employment matters. Many cases involving disputes over working hours center around time during which an employee was working, or was expected to be working. A database of security badge THE NEBRASKA LAWYER


swipes can be collected showing the employee entered the parking lot at 9:15am. We know the employee logged into his workstation at 9:30am based on network and system logs. The cafeteria recorded a meal purchase at 12:15pm. The VOIP system recorded an outbound phone call at 3:30pm that lasted 15 minutes. He recorded a sale into the CRM system at 4:05pm, and exited the parking garage at 4:10pm. The list of data points is nearly endless. A recent case of ours involved a former employee who argued that they frequently worked nights and weekends. A collection of VPN logs and emails was all it took to show the frequency and duration of after-hours network access, emails sent by the employee after 6pm on weekdays, and emails sent at any time during weekends. A couple of formulas and a pivot table in Excel are all it takes to turn this data into information. Another important, data-centric topic in labor law is the calculation of economic damages in situations where there is a dispute about the classification of certain job functions as hourly versus exempt, and whether employees are being paid appropriately for overtime. In these circumstances, an analyst can mix payroll data with attendance information from different sources to be able to compare working hours, overtime hours, and compensation within or across job functions, departments, and locations. Comparing the data to Federal and State labor laws that define minimum pay practices, the analyst can then compute potential economic damages to provide data points for counsel to use in decision-making. After all the chatter about collecting email and MS Word files is complete, make sure that data-centric evidence is addressed as well. Information to build your arguments may be engineered from raw data that is readily accessible from sources that look nothing like “documents.” MAY/JUNE 2017

nsba news

Saying Goodbye to an NLAP Institution After 21 years as the Nebraska Lawyers Assistance Program’s Director, serving more than 2000 impaired Nebraska lawyers and being oncall 24/7 for lawyers in need of immediate assistance, Rick Allan is finally taking some time for himself. Rick, who has been the Director of NLAP since its inception in 1996, is retiring from his position this summer.

The review was conducted over two days in Omaha and Lincoln. Crowley and Leary met with members of the Drug and Alcoholism Committee, NSBA leadership and administrative staff, and representatives from the Counsel for Discipline, the Nebraska State Bar Commission, and the Nebraska Supreme Court. They ultimately found that Nebraska was in need of a Lawyers Assistance Program, including a full- or part-time director, and thus, NLAP was born. The NSBA budgeted $25,000 to fund NLAP, which included overhead for the program and salary for the director, and a search committee was formed to find a director. Enter Rick Allan.

Rick, a recovering alcoholic himself, was a member of the search committee. After hearing the “never-ending” complaints The Nebraska Lawyers Assistance Program (NLAP), that they would never find a director for that amount of money, through funding from the NSBA and the Nebraska Supreme Rick agreed to take on the role as long as he was allowed to Court, provides confidential help to all Nebraska lawyers, continue to practice law. “I drew the short straw,” Rick says, judges and law students troubled by substance abuse problems, jokingly. cognitive decline, stress, depression, and other types of disorders which may impair their abilThrough NLAP’s connecIt is no overstatement to observe and confess that I, as an ity to perform in a competent and tion with the ABA and Crowley alcoholic pursuing recovery from a hopeless state of mind professional manner. and Leary, Rick was invited to and body, quite literally and unreservedly owe my very life The idea for NLAP was train with the Texas Lawyers to the Nebraska Lawyers Assistance Program. The state of formed in 1985 by three Assistance Program (TLAP). mind which prevailed upon and literally controlled virtualThe director of TLAP at the Nebraska lawyers—C.J. “Jack” ly every element of my existence prior to making the decision time, Don Jones, and his staff Gatz of Norfolk, John Hanley to live and do so in a state of sobriety defies explanation. In of Omaha, and John “Dugie” took Rick on their travels around the absence of timely intervention and the generous proviDoyle of Lincoln—who requested Texas as they performed their sion of recovery services to address that which I have come that the NSBA start a Drug and responsibilities. Rick credits the to accept as my illness, I am certain I would have perished. Alcoholism Committee. Upon TLAP staff with helping him If unknown benefactors believed I would recover if I was approval, Gatz, Hanley, and set up NLAP, including putprovided the opportunity to do so, I was clearly obliged to Doyle became the first members ting together a brochure and a do my part. The ability to imagine a life without alcohol of the committee, and other lawhotline. was restored. The hope of a new beginning became truth. yers and judges began to join The NLAP office officially It is this hope that sustains me. Because of the great kindshortly thereafter. In 1993, John opened on May 1, 1996. Rick ness shown me nearly four years ago and the opportunity to Brownrigg, President of the remained the part-time director participate in a recovery program which I could ill afford, NSBA and active in the American and continued to practice law I walk a different path today. I am eternally indebted to Bar Association’s Commission on until 2002, when it was sugthe Nebraska Lawyers Assistance Program (NLAP). I am Impaired Attorneys, suggested gested that because Rick was onproud to be a member of a profession which cares so much that the NSBA take advantage of call 24/7 for NLAP, he should for its membership. an ABA service that would probe paid full-time. The Executive vide a review of Nebraska’s need -Recipient of NLAP’s services Director of the NSBA at the for an official Lawyers Assistance time, Jane Schoenike, agreed. Program. The ABA Commission The NSBA takes great pride on Impaired Attorneys (now the ABA Commission on in NLAP. “Every time I mention the program, a lawyer will Lawyers Assistance Programs, or COLAP) appointed Michael pull me aside and tell me that NLAP saved their classmate, Crowley, an ABA Commission Member from Texas, and colleague, law partner, etc. Rick Allan and his committed team William Leary, Executive Director of the Louisiana Lawyers of NLAP volunteers have built an invaluable resource for the Assistance Program, to do the review. THE NEBRASKA LAWYER



NSBA NEWS profession. They understand the competition, constant stress and high expectations that lawyers face. NLAP saves lives, it saves careers, it saves families,” said NSBA Executive Director Liz Neeley. Rick has no specific plans for his retirement, but he plans to stay active in the Bar and to spend more time with his children and grandchildren in Iowa and Texas. While reminiscing on his career with NLAP, Rick, who has been a licensed Nebraska attorney for 50 years and has been in recovery for 27 of those years, says that he is proud to have served the profession by helping fellow lawyers, judges, law students, and their staff and families, “thereby advancing the motto of the NSBA to ‘help lawyers help people.’” His hope for NLAP is for it to “continue on the quest to help those we serve, as more and more issues arise in our increasingly complex society.”

Given the solid foundation Rick has laid for the program, his yet-to-be-named successor should have no problem doing just that. NLAP is funded in part by contributions made to the Nebraska Lawyers Foundation. To donate, visit or contact the NSBA at (402) 475-7091. Lawyers, judges, and law students in need of NLAP’s help can call the toll-free hotline anytime at (888) 584-6527 for confidential assistance. For more information on NLAP, visit

Casemaker and vLex Announce Their Partnership Casemaker and vLex are pleased to announce their joint licensing partnership, which will give their clients access to more of the world’s laws. Casemaker clients for the first time will be able to search for international case law and materials directly from Casemaker’s website. vLex clients will receive access to Casemaker’s comprehensive collection of U.S. federal and state case law, CaseCheck+ negative citator system, codes, statute annotator, specific jurisdiction federal courts, administrative law, federal and state regulations, statutes, court rules, and constitutions.

2017 Barristers’ Ball: The City of Emeralds The Nebraska State Bar Association hosted the 12th Annual Barristers’ Ball on March 18, 2017, at the Embassy Suites in La Vista and raised more than $86,000, a new record. Funds raised will benefit the Nebraska Lawyers Foundation, which supports programs dedicated to the improvement of the legal profession and the administration of justice and includes the Volunteer Lawyers Project (VLP), the Nebraska Lawyers Assistance Program (NLAP), the LSAT Prep Scholarship Program, and the Rural Practice Initiative (RPI). The 2017 Barristers’ Ball was chaired by Steve and Cathy Mattoon of Sidney. The Barristers’ Ball also provided a venue for recognizing the exceptional efforts of Nebraska attorneys who are dedicated to the Foundation’s goal of helping ensure access to justice for all Nebraskans. The 2017 Award winners are recognized on pages 61-63.































Answers to Crossword on page 88

The NSBA would like to thank the sponsors, live and silent auction item donors and attendees for their participation in making this year’s event a huge success. Mark your calendars for next year’s Barristers’ Ball on April 14 at the Embassy Suites in La Vista. THE NEBRASKA LAWYER






court news

Statehood Day Gives Chief Justice the Opportunity to Recognize Nebraska Lawyers and “Equality Before the Law” Chief Justice Mike Heavican made remarks on behalf of the Judicial Branch during Nebraska’s official Statehood Day Ceremony on March 1, 2017. He used the opportunity to make note of the many Nebraska governors who were educated in the law and highlighted the demanding and complicated work of the judges who serve our court system. Chief Justice Heavican on Statehood Day: Our state motto is “Equality Before the Law.” Our forbearers chose those words because they embodied the spirit of democracy and hope and freedom that so aptly symbolized Nebraska in 1867. The motto is carved in stone on the entrance of this building and also appears above the bench of our Court, in the Governor’s Office, and in the Warner Chamber. It is the special role of Nebraska’s judiciary and Nebraska’s legal profession to carry out the promise of equality before the law. Nebraska’s courts provide citizens with an open, fair, efficient, and independent forum for the resolution of legal disputes. In the courthouses in all 93 of Nebraska’s counties, equality before the law is on display and thriving. From Nebraska’s inception, its courts were open and accessible. Today, the first day of March 2017, marks the beginning of expanded media access to all Nebraska’s courts. News cameras will have access to the inside of courtrooms on a state-wide basis for the first time. The Nebraska Supreme Court and the Nebraska Court of Appeals continue to webcast their oral arguments, which are archived and available on the Court’s website, Nebraska’s courts and its legal community have contributed greatly to the concept of equality before the law over these past 150 years. Great Nebraska lawyers include: Roscoe Pound, Dean of the Nebraska Law School from 1903 to 1907; Dean of the Harvard Law School from 1916 to 1936; and, prior to that, Commissioner of Appeals for the Nebraska Supreme Court from 1901 to 1903. Roscoe Pound was one of the most prominent legal scholars of the 20th Century. His contemporaries included lawyers: William Jennings Bryan, three-time candidate for President of the United States and eventual Secretary of State of the United States; Charles Dawes, who served as Vice President of the United States from 1925 to 1929; and General John J. Pershing, who commanded the American Expeditionary Force in Europe during World War I. General Pershing obtained his law degree in Nebraska in 1893. THE NEBRASKA LAWYER


Chief Justice greeted by Governor Pete Ricketts and Suzanne Shore during Statehood Day ceremony. Seventeen of Nebraska’s 40 governors were lawyers, including most recently Robert Crosby, Ralph Brooks, Frank Morrison, Charles Thone, Ben Nelson, and Mike Johanns. The Father of Nebraska’s unique Unicameral Legislature, George W. Norris, practiced law and was a judge in southwest Nebraska before serving five terms in the United States House of Representatives and 30 years as a United States Senator. In short, Nebraska’s courts and broader legal community have contributed magnificently to a progression of Nebraska history and that most American of concepts, “Equality Before the Law,” over the past 150 years. Today, Nebraska judges continue the long tradition of equality before the law. They make life and death decisions in criminal cases; they decide contract and tort disputes; they arbitrate the use of Nebraska’s waters; and they cope with innumerable divorce tragedies and probate cases. The courts place a special emphasis on the treatment of juveniles in the legal system. And our judges have drug courts, veterans’ courts, and other specialty courts that grapple with the evident challenges of our 21st Century life. The primary role of Nebraska’s courts has remained the same, however, over the last 150 years and will remain the same into Nebraska’s future. “Equality Before the Law” will inspire Nebraska’s judiciary and all Nebraskans to work hard and to treat our neighbors fairly and justly for the greater good. Happy Birthday, Nebraska, from the Nebraska Supreme Court and all of Nebraska’s judiciary and members of the legal profession. We look forward to helping Nebraska grow and prosper in the next 150 years.


legal community news

Federal Funding for Civil Legal Aid: Building Equal Justice for All By Milo Mumgaard, Executive Director, Legal Aid of Nebraska

Legal Aid of Nebraska’s federal funding has been on the minds of many in our profession in the last few months, and for some very good reasons. Federal funding is critical to Legal Aid’s goal of providing free services across all 93 Nebraska counties and to ensuring it is available where and when low-income Nebraskans need it. Legal Aid, working side by side with private pro bono counsel, is providing these services in dozens of creative, collaborative ways, giving Nebraskans hope and opportunity they would not otherwise receive. Simply put, a fairer and more just civil justice system in Nebraska—a shared goal for all of us—relies on federal funding received by Legal Aid. To better understand the role of federal funding in the work of Legal Aid, I think it is worthwhile to take a brief look at who is served by Legal Aid’s statewide work to “make equal justice happen,” and how Nebraska’s civil justice system in turn relies on a strong Legal Aid. I believe that a walk through this exceptional story illustrates well why federal funding is of importance to the entire legal profession in Nebraska. Initially, well over 325,000 Nebraskans—enough to fill up Memorial Stadium almost four times—are eligible for Legal Aid’s free civil legal services. It matters little whether they wake up in Omaha’s urban sprawl, in communities along the Platte River, or in the shadow of Scotts Bluff. These Nebraskans live in every county, and they all have very little income, which they stretch as far as they can. These proud yet low-income Nebraskans spend each day struggling to make ends meet, to keep their children safe, to protect what little they have in the world—simply to keep it all together in the face of life’s curveballs and crises—and they are all eligible for Legal Aid’s services. When life inevitably introduces problems and complications—no money to pay the rent, a family breakdown, a loss of a

Milo Mumgaard Milo Mumgaard began his legal career as a migrant farmworker staff attorney at Texas Rural Legal Aid in 1988. Since that time he has worked to assist individuals and families in Nebraska and around the country through legal and public policy advocacy and legislative work. Notably, Mr. Mumgaard founded the Nebraska Appleseed Center for Law in the Public Interest and served as its Executive Director from 1996 to 2007. He has served as Executive Director of Legal Aid of Nebraska since 2015. THE NEBRASKA LAWYER

job, lack of health care, too many debts, a new disability—these Nebraskans need civil legal aid to help solve these problems. These Nebraskans are battered by landlords who arbitrarily evict them, debt collectors going after exempt property, schools denying individualized services for the disabled, and employers failing to pay all that is owed. They weather government agencies cutting off needed benefits, abusers keeping them trapped, hospitals turning them away. And Legal Aid is there to help, through our eight offices, more than 40 staff attorneys, and nearly 150 collaborating reduced-fee attorneys in rural counties. But why should the legal profession care? Life is not fair; some people win, some people lose. But that logic only goes so far. A major reason we should all care is these problems inevitably arrive—or should—for resolution within the civil justice system. This is the meat and potatoes for all of us in the legal profession—the rights, responsibilities, opportunities, and obligations under the rule of law, determined through a fair and just process. And Legal Aid’s clients are very real people with existing legal rights and protections that, sadly, are too often ignored or left unrecognized due to a lack of legal counsel, in direct contradiction to some of our most fundamentally-held shared values. “Equal justice under law” is the basic proposition handed down to us from Jefferson and Madison, and is the promise on the portals of the U.S. Supreme Court building. Recall the first lines of the U.S. Constitution: “We the People of the United States, in order to form a more perfect Union, establish Justice….” Justice for all to these early Americans was a priority, not simply a byproduct of our constitutional framework. But if people do not have access to the civil justice system, do not have the personal capacity to protect themselves in that system, or do not have or cannot afford an effective legal representative to seek a more fair and just result under law, there is no equal justice. Equal justice for all, then, is simply a noble phrase, one not realized in fact. The scales of justice are tipped, leading to a lack of faith in our justice system, a cynical attitude toward the workings of the law, even to disrespect, hopelessness, violence—the exact opposite of a society governed by the rule of law. It is in this spirit that Legal Aid exists. Legal Aid refuses to believe that equal justice for all is too far out of reach. On the contrary, for over fifty years Legal Aid has been a living, breathing rebuke to this limited view. And this attitude has been shared for decades by Nebraska’s legal and judicial leadership, through its strong and consistent support. These actions include the IOLTA funding program, the NSBA’s Volunteer Lawyers Project, and the recent action by Chief Justice Heavican to create the new Access to Justice Commission.



LEGAL COMMUNITY NEWS These efforts, along with many others, were built with and alongside the work of Legal Aid, to ensure a statewide collaborative movement to seek some measure of equal justice for all. Federal funding is critical to this work. Legal Aid’s work is presently funded by hundreds of sources, including Nebraska law firms and lawyers, local foundations, United Ways, churches, and individual donors. Legal Aid also receives annual grants from the state Legal Aid and Services Fund. This diversity of funding is the envy of civil legal aid programs across the nation. But the backbone of Legal Aid’s financial status is the federal Legal Services Corporation (LSC). Barely two weeks before he resigned, President Richard Nixon signed the law bringing the LSC into existence. Since that time, federal funding from the LSC has been particularly helpful in rural and western Nebraska, fostering the creation and development of both Western Nebraska Legal Services and Legal Services of Southeast Nebraska, and the growth of the Legal Aid Society of Omaha. Statewide access to justice became a reality, and for the first time an organized, purposeful approach to the civil legal needs of Nebraska’s poor became possible. With the merger of these three programs into Legal Aid of Nebraska over seventeen years ago, an even more efficient statewide civil law firm for the poor was born, one that now delivers legal assistance to more than 23,000 Nebraskans a year. Legal Aid provides services that reach Nebraskans of all backgrounds, including those who face the toughest challenges, such as children, veterans, seniors, ill or disabled people, isolated rural residents, victims of domestic violence or disasters, and financially distressed farmers. This federal funding through the LSC, which is about 28% of Legal Aid’s current overall funding, winds through and reinforces all of this work. In particular, it ensures that civil legal aid is available to residents of rural communities outside Omaha and Lincoln by supporting staff in our rural offices and helping to reach every corner of the state through our Private Attorney Involvement program. But perhaps as important is what this federal funding represents. Federal funding to Legal Aid of Nebraska from the Legal Services Corporation is real world support for the ideal of fairness for all in the justice system, regardless of how much money a person has. It solidly provides access to legal help for people to protect their livelihoods, their health, and their families. And it says when we pledge allegiance to justice for all, it is not an empty pledge but a tangible reality.

Holt County Courtroom Renamed In Honor Of Judge Brodbeck

By Amanda Sindelar, The Frontier & Holt County Independent (reprinted with permission)

Board of Supervisors Chairman William Tielke (left) and Holt County Clerk Cathy Pavel (right) present Judge Brodbeck two plaques during his retirement party on Friday, March 31, at the Holt County Courthouse. Photo by Amanda Sindelar. The county courtroom inside the Holt County Courthouse in O’Neill has been renamed to honor a longtime judge’s service. Presented by the citizens and elected officials of Holt County and the Eighth Judicial District Bar Association Members, Judge Alan L. Brodbeck was presented with a plaque stating the courtroom shall now be known as “The Honorable Alan L. Brodbeck County Courtroom.” The plaque also reads, “We gratefully acknowledge Judge Brodbeck’s generous contribution to the design, construction and moderation of the Holt County Courtroom.” Judge Brodbeck spent more than 1,500 hours donating his woodworking skills in the construction of the courtroom and helped establish “one of the most technologically advanced courtrooms in the state of Nebraska.” Serving 33 years on the bench, Judge Brodbeck has served on numerous Nebraska Supreme Court Committees including the Nebraska Judicial Resources Commission as both secretary and member, and the Gender Fairness Task Force from inception until completion. He also served on the Supreme Court Technology Committee, Judicial Qualifications Commission and Through the Eyes of the Child Initiative as lead judge of the Holt County team for the 8th Judicial District.

The Founding Fathers were onto something when they launched this American experiment, and a building block was equal justice for all. If around today, I will be so bold as to predict they, too, would support federal funding of civil legal aid.





Nebraska State Bar Foundation’s Daniel J. Gross Fund Daniel J. Gross was a prominent Omaha trial lawyer. Upon his death in 1958, he established a fund in his will “for the charitable and welfare purpose of active practicing Nebraska lawyers, their wives, widows, and children.” Over the years, the Daniel Gross Fund has assisted active lawyers and their families on numerous occasions. For example, the Fund has worked with the Nebraska Lawyers Assistance Program in providing funds for medical treatment on a confidential basis.

The Nebraska State Bar Foundation is pleased to support CLE for Bar members.

Any active lawyer, or his or her family member, in need of assistance may apply to the Daniel Gross Fund. Doris Huffman, Executive Director of the Nebraska State Bar Foundation, is the contact person. She can be reached at the Hruska Law Center, 635 South 14th Street, Suite 120, PO Box 95103, Lincoln, Nebraska 68509-5103, or by telephone at (402) 475-1042. All inquiries are strictly confidential.

Nebraska state bar FouNdatioN




Volunteer Lawyers Project Pro Bono—Why Do It?

her vision, the Nebraska Lawyers Foundation has grown and continues to support programs dedicated to the improvement of the legal profession and the administration of justice.

Ask ten different lawyers this question and they will have ten similar, yet different responses. Doing pro bono work satisfies the ethical obligation of Nebraska Bar membership—to make access to justice possible for all Nebraskans. Doing pro bono work offers valuable training, experience, and professional development. Doing pro bono work is a feel-good rewarding experience because it allows every lawyer the opportunity to make a difference in someone’s life.

NSBA Visionary Award, presented to recognize outstanding attorneys in their service to further the mission of the Nebraska State Bar Association or dedication to programs sponsored by the Nebraska Lawyers Foundation.

Professionally and personally, pro bono work provides opportunities for professional recognition by colleagues, the courts, and the community. Each year, the NSBA Legal Services Committee gives special recognition to Nebraska lawyers who give their time and expertise to further the mission of the NSBA and who make civil legal services available to lowincome Nebraskans. The following awards were presented at the 12th Annual Barristers’ Ball on March 18, 2017:

Stacy C. Bach, for her work with the Self-Help Centers in Western Nebraska

By Carol Cleaver, Director, Volunteer Lawyers Project

Recipients: Stacy C. Bach, Marian G. “Muirne” Heaney, Marsha E. Fangmeyer, and Steven H. Howard

Robert M. Spire Award, presented annually to a Nebraska lawyer who has demonstrated outstanding commitment to pro bono service for the poor, as was the hallmark of Robert Spire’s career.

Recipient: Jane Schoenike Takemoto, 1950-2015 Jane Schoenike Takemoto served as Executive Director of the Nebraska State Bar Association from 1996-2013. Jane was passionate about making the legal system fair and accessible to all. She worked tirelessly and believed that lawyers had a responsibility to give back to society through pro bono service. In 2003, in order to ensure adequate funding for the NSBA’s access and diversity initiatives, Jane helped to establish the Nebraska Lawyers Foundation (formerly known as NSBA Charitable Funds, Inc.). Thanks to

Jack Takemoto accepted the Robert M. Spire Award on behalf of Jane. THE NEBRASKA LAWYER


In her practice as a bankruptcy attorney and Public Defender for Kimball County, Stacy Bach handles a significant amount of cases for indigent persons. Stacy finds there is a certain satisfaction in assisting someone. “When we make the law and our Nebraska legal system work for the people of our community who have nothing to give back to us but their gratitude, that’s an amazing feeling. Likewise, I always feel like meeting and connecting with new people has taught me more about the practice of law. It has taught me how to better build client relationships,” Stacy said. Her vision to bring a Self-Help Center to Scotts Bluff County was realized in 2014 when, as President of the Scotts Bluff County Bar Association, Stacy helped open the first Self-Help Center in Western Nebraska. She has served as coordinator of the Self-Help Center since it opened, recruiting attorneys from the local community to meet with walk-in visitors. Stacy worked with Kimball County officials in 2016 to get approval for a space for another Self-Help Center in Kimball County, scheduled to launch sometime in 2017. Stacy clerked for Leland Kovarik at the Holtorf Kovarik Law Firm in Gering, NE, after graduating from Thomas M. Cooley Law School in 1992. After being admitted to the Nebraska Bar in 1993, Stacy worked as in-house legal counsel

➡ MAY/JUNE 2017

Volunteer Lawyers Project for Gering State Bank and Trust Co. She was admitted to the Wyoming Bar in 1994. Stacy started the Nossaman-Pettit Law Firm, P.C., in 1995. Why should lawyers do pro bono? According to Stacy, “I do pro bono work because I enjoy making a difference in someone’s life. And it is important to lead by example. As I have raised my daughter, I have tried to teach her the importance of volunteering. I think everyone should be thankful for what they have, and be able to pay his or her good fortune forward.” Marian G. “Muirne” Heaney, for her work with the Law Help of Nebraska Interactive Website

currently working on self-help forms for people needing records sealed in response to a new law that took effect January 1, 2017, which allows sealing of records for cases that ended with a not guilty verdict or that were dismissed for other reasons. Marsha E. Fangmeyer, for her work with Nebraska Free Legal Answers, Marsha understands the need for pro bono services and access to justice for all. She spent the first six years of her legal career with Legal Aid of Southeast Nebraska. Marsha found it satisfying then and now to help someone with a legal problem. “You see that it improves their lives and the lives of their family.” Marsha also received inspiration from Robert M. Spire, who instilled in all attorneys a commitment to provide access to justice. “I learned early on that it is an ethical obligation to do pro bono work. It is the right thing to do. It is a noble thing to do. We must make it part of our profession to protect access to justice for all,” Marsha said. After leaving Legal Aid, Marsha joined a firm in Kearney, headed by Jim Knapp, who shared Mr. Spire’s goals and expected everyone at the firm to volunteer time.

Muirne was looking for a “professional home” when she applied for a staff attorney position in 2001 at Legal Aid of Nebraska. After being hired, she found it. “Legal Aid successfully merged three state-wide programs in to one law firm. Since that accomplishment, our institutional ‘resources’ have grown, our ability to look at and explore ways to address systemic legal problems has expanded, our product has improved and we are constantly evaluating ways to modify a portion of our service model to reach underserved or unserved populations,” Muirne said. Muirne was nominated for her long-standing vision to ensure that people have access to justice. “Martin Luther King said that ‘injustice anywhere is a threat to justice everywhere.’ He was right. Most of us went to law school with the thought of tackling injustice. We can’t tackle injustice until we make sure people have access to justice. We make that happen by representing even one person who never would have made it to court without us.”

Marsha shares this award with Omaha attorney Steven H. Howard. Both Marsha and Steve had a vision for bringing about the Nebraska Free Legal Answers site. The online program provides the ability for low-income Nebraskans to receive limited scope assistance from pro bono attorneys and provides a convenient and rewarding way for attorneys to do pro bono work online. Marsha is a 1979 graduate of the University of Nebraska Law School. She served as Staff Attorney at Legal Aid of Southeast Nebraska from 1979 to 1985. Today, she proudly serves as a member of the Legal Aid of Nebraska Board. Since 1985, Marsha has maintained a practice in Kearney with Fangmeyer, Aschwege & Besse, P.C. She has served on numerous committees for the NSBA and the Nebraska Supreme Court, and had the honor of serving as President of the NSBA in 2012-2013.

She received recognition in 2012 from the Charles Drew Health Center for her extensive work and dedication to the Fathers for a Lifetime Project. In 2016, Muirne supervised development of Law Help of Nebraska, an interactive website that provides information, court forms, and resources for selfrepresented persons in landlord/tenant and debt collection cases ( Muirne is THE NEBRASKA LAWYER



Volunteer Lawyers Project Steven H. Howard, for his work with Nebraska Free Legal Answers, Steve is a partner with Dowd Howard & Corrigan in Omaha. Steve, along with co-recipient Marsha Fangmeyer, is proud to have played a role in bringing NE.FreeLegalAnswers. org to reality. When reflecting back on the potential for in Nebraska, Steve notes, “There is a tremendous amount of knowledge and brain power in the minds of Nebraska lawyers. There is simultaneously a great need to tap into all that talent, training and experience for low-income Nebraskans in need of legal guidance on a variety of matters. NE Free Legal Answers utilizes modern technology by taking those Nebraskans with the legal questions and matching them up with Nebraska attorneys who have the answers. It is quick and efficient and a truly neat system for everyone. A low-income Nebraskan, after confirming eligibility to participate, can post a legal question online and volunteer Nebraska lawyers provide the response. No attorney-client relationship is formed and the lawyer can participate from a smart phone or other device while waiting in line for court, at the lunch counter, airport or after hours.” A member of the NSBA Legal Services Committee, Steve believes all Nebraska attorneys are obliged to provide a measure of pro bono legal services. He encourages everyone to check out the website and sign up. “Tell your partners. Tell your associates. Delivering pro bono legal services is its own reward. is good for our fellow Nebraskans, good for Nebraska lawyers, and good for our precious system of justice.” Steve received his B.S. in Business Administration from Creighton University in 1985 and his J.D. from Creighton University School of Law in 1987. Steve is also a member of the NSBA Practice and Procedure Committee, an Associate Member of the American Board of Trial Advocates and Board Member for NATA, and Vice President of the Nebraska Employment Lawyers Association. Steve is a frequent lecturer on civil litigation, workers’ compensation and labor rights.

VLP Program Activities In February and March 2017, volunteers met with more than 400 walk-in visitors to one of six Self-Help Centers located in Buffalo, Douglas, Hall, Lancaster, Madison and Buffalo County courthouses. Volunteers provided brief legal advice, information, or resources to 36 Nebraskans who posted civil legal questions to, a virtual legal clinic that allows lawyers to do pro bono work anytime and anywhere there is Internet access. Volunteers helped clients who needed legal representation in a divorce, custody, modification of support, custody or parenting time, guardianship, consumer debt, preparation of a deed or will. THE NEBRASKA LAWYER


VLP Pro Bono Partners Thank you to the following lawyers who provided pro bono legal services in February and March 2017 at one of the six Self-Help Centers, through pro bono representation, or on Marvin L. Andersen Stacy C. Bach Coordinator, Scotts Bluff County Self-Help Center Asher R. Ball Melodie T. Bellamy Coordinator, Buffalo County Self-Help Center James A. Cada Alfred E. Corey III Joseph S. Dreesen Brandon J. Dugan Timothy R. Engler Shawn J. Farritor Coordinator, Hall County Self-Help Center Jessica A. Feinstein Brandie M. Fowler Nicholas E. Halbur Edward F. Hoffman Kenny F. Jacobs Karisa D. Johnson Danielle L. Jones Justin J. Knight Susan M. Koenig Kendall K. Krajicek Abigail F. Littrell

Christin P. Lovegrove Catherine “Kate” M. Mahern Amie C. Martinez Michael W. Milone Michael L. Moran Nicholas R. Norton Maureen M. O’Connor Erin C. Pemberton Ralph E. Peppard Tyler S. Pribbeno Justin A. Quinn Kane M. Ramsey Alan C. Schroeder Judith A. Schweikart Rachael A. Smith Karine E. Sokpoh Ryan J. Stover Coordinator, Madison County Self-Help Center J.G. “Gerry” Sullivan Hon. Stephen M. Swartz, ret. Michael J. Synek Rick W. Tast Jr. Christina L. Usher Kenneth M. Wentz III Zoe G. Verboon

New Volunteers, NE Free Legal Answers Adam P. Buhrman Marsha E. Fangmeyer Hannah K. Fischer Michael J. Haller Kiersten E. Haugen Joshua K. Norton

Tara L. Paulson Alicia B. Robbins Alex B. Rainville David P. Thompson Zoe G. Verboon

Join VLP’s Network of Pro Bono Partners To learn more about pro bono opportunities through VLP or to join VLP’s network of volunteers, visit the VLP Volunteer Attorney Portal on the NSBA website (www.nebar. com/VLPAttyPortal) or contact Carol Cleaver at VLP@nebar. com or (402) 475-7091. You can also contribute financially to VLP programs by visiting or contact Sam Clinch at or (402) 475-7091. MAY/JUNE 2017

Pro Bono Legal Service

Nebraska Free Legal Answers

Nebraska Free Legal Answers is a website where financially qualifying Nebraskans can ask a Nebraska volunteer lawyer a question about a civil legal problem. This is a new pro bono opportunity for Nebraska lawyers*, including in-house, corporate, and government lawyers. As a volunteer for Nebraska Free Legal Answers, • You can log in anytime, anywhere you have Internet • You select the questions you want to answer • You have training and resources available online • You are covered by NLADA malpractice insurance • You are anonymous, referred to only as “Volunteer Attorney” • You are providing valuable pro bono service in Nebraska To register, visit or contact Carol Cleaver at (402) 475-7091 or NE Free Legal Answers is a website operated by the ABA and the NSBA Volunteer Lawyers Project 635 South 14th St. #200 Lincoln, NE 68508 (402) 475-7091

*Participating lawyers must be active members of the Nebraska State Bar, in good standing. THE NEBRASKA LAWYER



young lawyers section page Submissions to the Young Lawyers Section Page from young attorneys across the state are always welcome. If you’re interested in writing, please contact Jamie Hermanson, Editor, at

Negotiation Configuration:

1. Know Your Employment Law

How Employers Should Address Pay Disparity Arising From Negotiations

The Nebraska Equal Opportunity Commission provides a wealth of resources for employers concerned with complying with civil rights and equal protection laws. In addition, many law firms work with the NEOC to offer knowledgeable services that provide employers with a wealth of resources to prevent gender discrimination in the workplace.

by Patrick McNamara and Dominique O’Connor We’ve all experienced that defining moment: After an anxietyridden night (or nights) of wondering if you blew your interview, you receive a phone call… You got the job! Your new boss wants to meet you for coffee to discuss your role, the company culture and, oh yeah... YOUR SALARY. Salary negotiations are awkward for employers and employees alike. From benefits to bonuses, crunching numbers is no one’s favorite task. However, beneath the surface of salary negotiations lies an unassuming but often detrimental threat to employers: wage discrimination. Too often employers get caught up in disputes involving disproportionate and unfair wage-settings that can border or cross the threshold into the realm of gender discrimination. So, what’s a well-intentioned employer to do? In 2015, Reddit CEO Ellen Pao banned wage negotiations from the popular news content provider. Others like online retailer and Magoosh followed suit. Why? Well, for Pao, losing her own discrimination action taught her that wage negotiations can be hotbeds for sexism and discrimination. In 2016, the average woman made between 76 to 81 cents per dollar compared to male wage earners. Proponents like Pao liken the gap to wage discrimination. They point to studies by Stanford and Rutgers that find that women are less favorably viewed when they take a hardline stance on wage negotiations. In the extreme, some women, like Ann Hopkins, are terminated for trying to negotiate higher salaries, along with benefits like maternity leave and child care costs.1 Less obvious are the infamous “golf course deals.” Often following large company successes, colleagues congregate—in bars, golf courses, and clubs—to congratulate and revel in the success of their efforts. Inadvertently, these social gatherings (though not intentionally discriminatory) tend to organize by way of gender. The subsequent congratulations may result in bonuses or increased salaries, or create relationships not otherwise available to colleagues of the opposite sex who didn’t get invited to happy hour. So how can an employer ensure a healthy environment for wage negotiation? THE NEBRASKA LAWYER


2. Standardize Your Modes of Measurement Too often, employers neglect to notice that they are paying comparably skilled men and women at starkly different rates. Employers should develop standard forms for performance, skill, and behavior reviews by which to determine wages and bonuses. These forms should be utilized consistently, and the structure made known to the employees in order to minimize instances of gender discrimination. 3. If You Find a Discrepancy, Don’t Hide It Like most legal issues, trying to hide a potential instance of gender discrimination is likely to aggravate the issue. What could easily be corrected as a singular instance of oversight may turn into a conspiracy of gender discrimination. The best course of action for an employer who suspects gender discrimination is to contact their attorney to mitigate any harm, and implement checks and corrections to ensure compliance under federal and state laws. Must wage negotiations be banned? Most definitely not! Yet, it is integral that employers note the underlying dangers of gender discrimination. It is essential that employers both know and comply with local and federal laws designed to combat the issue. Patrick McNamara is the Director of McNamara Law Firm, PC, LLO, and former Editor of this Young Lawyers Page of the Nebraska Lawyer. McNamara Law Firm practices in the areas of employment discrimination and sexual harassment, business transactions and litigation, and estate planning and probate. Dominique O’Connor is a second year law student at Creighton University. She currently works as a 2L clerk at McNamara Law Firm and is interested in the area of business litigation.

Endnote 1

Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989). MAY/JUNE 2017

nsba section connection

Tom Green and Vicky Amen met for coffee as part of the Lincoln NetWORKS! group. They learned they share the experience of being a Legislative Aide—Green as a current Aide and Amen in a prior career.

Sharon Hansen was the silent auction high-bidder on the bicycle with a stuffed Toto in the wicker basket at The Wizard of Oz-themed Barristers’ Ball. Hansen is treasurer of the Real Estate, Probate & Trust Law Section. Marc Chedel, Kate Fitzgerald Kucera and Geoff Thomas pause at the Young Lawyers Section’s Best Practices Seminar. Fitzgerald Kucera and Thomas organized this year’s program, and Chedel will organize next year’s. Thomas is the current YLS chair.

Thanks to planning chair Kara Ronnau and Real Estate, Probate & Trust Law Section chair Christin Lovegrove for planning the wellattended 2017 Annual Estate Planning and Probate Institute.



Meredith Bond, Director of the US Commercial Service in Nebraska, presented to the International Law Committee of the NSBA Business Law Section. Bond discussed ways her office can assist Nebraska businesses wishing to export goods or services. International Law Committee members attending included David Gardels, Daan Erikson, and Committee Chair Grant Leach.



Joy Suder, Paul McGreal and Christine Henningsen pause for a photo on the yellow brick road at Barristers’ Ball, where the theme was The Wizard of Oz. Henningsen and Suder are chair and treasurer, respectively, of the Juvenile Law Section. McGreal is the Creighton University School of Law Dean.

Family Law Section member Linsey Camplin discusses family law practice with a law student during the NSBA Sections Networking event at University of Nebraska College of Law. A similar event was held at Creighton Law. Dozens of section members generously volunteered to discuss the realities of their practice areas with students.

Elder Law Section member Abby McConnaughhay, with assistance from Adam Wintz, is considering organizing a monthly section practice pointer using the section listserv. Watch for a very brief survey for section members asking what would be most useful and asking for volunteers to write one practice pointer each.

Omaha NetWORKS! members Kate Doering and Kendall Krajicek met recently for coffee. Although their offices are only a few blocks apart in downtown Omaha, they hadn’t met before becoming NetWORKS! members.

The new Federal Law Section, in partnership with the Nebraska chapter of the Federal Bar Association, offered its first seminar to very positive reviews. Organizers included Catherine Cano, Tessie Smith (Section Chair), and Ken Wentz; speakers included Judge Cheryl Zwart, Kelly Brandon, and Dave Lopez. Pictured L-R: Judge Zwart, Cano, Brandon, Smith, Wentz, and Lopez. THE NEBRASKA LAWYER


If you’re interested in any of the NSBA Sections or have questions, please contact NSBA Section Facilitator Lorrie Benson at 402-475-7091 or





manual maven From Practice Management for Nebraska Lawyers: Closing a Practice (2015, revised 2017), “File Closing, Retention and Destruction Policy” by Lorrie Benson:

Manual Maven

features an excerp t from a practice manual currently available from the online NSBA Store. See what’s availabl e at !

Returning or giving documents to clients: - If you are closing a file at the same time representation ends, give the client all original documents and anything else of value that belongs to the client. Firms handle giving clients the rest of their files in a variety of ways. Some firms automatically send the client a complete file; some offer the file and document the client’s response; some firms offer the file, giving the client a set deadline to respond (e.g. 30 days) after which it will be assumed the client doesn’t want the file and it can be destroyed at the appropriate time without further notice to the client. Some firms send clients documents throughout the representation, so by the time a matter is completed the client has the full file. Note that some ethics discussions suggest that sending documents throughout a representation does not relieve a lawyer of the obligation to provide client with a file, while others suggest that providing documents as a matter progresses meets the obligation to provide a client with a complete file. The Nebraska Counsel for Discipline’s position is that the ethical obligation is met if a lawyer chooses to provide documents as a matter progresses. The key is deciding on a process, clearly communicating it to the client in a retainer agreement, and then following through. (22)


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Gwendolyn Olney

Maurice R. Johnson

Associate Counsel, BH Media Group, Inc., Omaha

Attorney, Goosmann Law Firm, Sioux City, Iowa

Where did you attend law school? University of Iowa, Class of 2010

Where did you attend law school? Creighton Law

What is the best career advice you have ever received? Always take notes. (Added advice from me: And then make sure you actually save the notes you took!)

What is the best career advice you have ever received? The significant problems your clients face cannot be solved at the level that created them.

What kind of legal matter do you find most rewarding or personally satisfying and why? I’m a little bit of a deal junkie, and I love drafting contracts. I delight in those late-Friday-afternoon moments when, after arduous contract negotiations and wordsmithing, the parties finally come to an agreement and signatures hit the page. Such a feeling of accomplishment. Additionally, though it’s never fun to run into contract disputes, it’s always satisfying when one of the paranoid, just-in-case contract provisions I fought to include in an agreement is triggered and my company is advantaged because of it.

What kind of legal matter do you find most rewarding or personally satisfying and why? Economic development. It’s wonderful to create with a community and obtain results that positively affect the quality of life.

What do you do for fun? I love to read, volunteer (particularly for the arts, civic, and women’s rights organizations in Omaha), and travel with my fiancé, Scott. What do you like best about your practice area and why? Being an in-house counsel is the way to go. I enjoy the dual role of providing legal advice to my company while also being part of a business team made up of a diverse and enthusiastic group of colleagues. As the Associate Counsel for BH Media Group, I represent our company’s newspapers and media outlets around the country (including the Omaha World-Herald) in all necessary legal matters and operations, which means I never know what I’ll be doing on any given day. Boredom is never an issue! What is your favorite quote? “Be kind, for everyone you meet is fighting a hard battle.” – Plato What advice would you give a new lawyer? Never be afraid to ask questions. Not knowing potentially critical information or failing to raise an issue that others might not have considered yet is worse than the (likely unfounded) concern that you could appear unintelligent. And if you find yourself in a work environment where asking questions is discouraged or ridiculed, find another job. THE NEBRASKA LAWYER


If you weren’t a lawyer, what would you be and why? A DJ at a jazz station. What is your favorite law school memory? Time spent with my Con Law Professor, Dr. Richard Shugrue. What is your least favorite law school memory? Hitting “play” on a tape recorder when I meant to hit “record” in the middle of a lecture. What do you like best about your practice area and why? The diversity—it keeps me challenged. Who is your hero and why? My wife, because she’s the most thoughtful person I’ve ever known. What is the most rewarding moment of your practice? When my work has had a positive effect on the life of an individual or a community. What is your proudest moment? At the respective adoptions of my daughters. What advice would you give a new lawyer? Develop a meditation practice in addition to your law practice. What is your favorite NSBA member benefit or program and why? NSBA’s continuing legal education program. Great diversity and they throw in some freebies! MAY/JUNE 2017

Erin Ebeler Rolf

Jason Jackson

Partner, Woods & Aitken LLP, Lincoln

Governor Pete Ricketts’s Chief HR Officer, Lincoln

Where did you attend law school? Nebraska College of Law, Class of 2008 What kind of legal matter do you find most rewarding or personally satisfying and why? I’ve been fortunate to work with great clients who really care about their employees. Most of my employers are genuinely concerned about doing the right thing for their workers and treating folks fairly, which makes me proud to work for them. What is an unconventional lesson you’ve learned about the practice of law? Your computer will slow to a crawl when you’re on a teleconference with a court or client. Who is your hero and why? My parents. They’ve raised three daughters who are friends and who genuinely love one another. Our parents have supported us every step along the way. My mom stayed home with us when we were little, and my dad worked two jobs (farming and insurance) to enable her to do so. At the same time, I don’t ever remember Dad missing a ball game or band concert. Today, they’re the best grandparents that the children in our family could ask for. They’re the backbone of a very close family. What do you like best about your practice area and why? Labor and employment offers something new and different every day because it inherently involves interactions between people. The stories are always interesting. What is one thing you know now that you wish you would have known in your first year of practice? I wish I would have appreciated how difficult it would be to take a vacation that doesn’t involve checking emails or responding to a client need. I was married last summer, and I checked emails at least once a day on our honeymoon. What is your proudest moment? When I became a partner at Woods & Aitken. I’ve been with the firm since after my first year of law school, and I have been incredibly blessed to learn from some great attorneys.



Where did you attend law school? Thomas Jefferson School of Law, San Diego, Class of 2014 What is the best career advice you have ever received? People like to work with people they like, so be likable. What kind of legal matter do you find most rewarding or personally satisfying and why? Day to day my field is labor and employment law, but I’m a constitutional theory and natural law hobbyist. I’m fascinated by that earlier period in history when the law was thought to flow less from the legislator’s whims and more from the jurist’s rigorous application of universal principles of justice to new sets of facts. What is an unconventional lesson you’ve learned about the practice of law? When you do what is just the law will usually be on your side, and when it isn’t, it’s not you that’s wrong. What do you do for fun? Hang out with family. My wife and I have four kids and their extra-curriculars consume just about all of our free time. What do you like best about your practice area and why? At-will employment. When the law treats both parties to an employment agreement equitably everyone is incented to do the right thing. What is your favorite quote? There are a thousand hacking at the branches of evil to the one who is striking at the root. – Henry David Thoreau Who is your hero and why? Martin Luther King, Jr. He understood principles of natural justice and reflected those principles back to society, appealing successfully to an entire country that we should live up to our own values. He was also an amazing intellect and charismatic leader who nonetheless carried himself with great humility.


Upcoming CLE Programs NSBA-Produced Seminars

May 18 Family Law Section Seminar Live - NE #138509 (6.25 CLE hours, including 1 hour ethics), IA #256210 (6.5 CLE hours, including 1 hour ethics) Embassy Suites, La Vista

July 14 How to Appeal to Your New Audience, The Appellate Court Live - NE #140102, IA #258530 (2 CLE hours) Scott Conference Center, Omaha

Webcast - NE #138507 (6.25 CLE hours, including 1 hour ethics), IA #256211 (6.5 CLE hours, including 1 hour ethics

July 27 Health Law Section Seminar Kutak Rock, Omaha

May 31 The Importance of Stress Management and Sleep for Lawyers* Live - NE #140052, IA #258418 (2 CLE ethics hours) Scott Conference Center, Omaha

August 3 Legal Skills Institute (formerly GAP Program) University of Nebraska College of Law, Lincoln

Webcast - NE #140077, IA #258419 (2 CLE ethics hours) June 7 Better Lawyering Through Better Listening Live - NE #131652, IA #248097 (4 CLE hours, including 1 hour ethics) Hilton Omaha June 15 The GAL’s Guide to Immigration Law and GAL Practice Standards *Approved for 3 hours of Guardian ad Litem CLE credit Live - NE #140033, IA #258371 (3 CLE hours) Doane University, Crete Webcast - NE #140050, IA #258370 (3 CLE hours) June 16 Labor & Employment Law Section Seminar Kutak Rock, Omaha June 23 Government & Administrative Practice Section Seminar University of Nebraska College of Law, Lincoln July 14 Indian Law Section Seminar Scott Conference Center, Omaha


August 4 Solo & Small Firm Conference University of Nebraska College of Law, Lincoln August 10 Federal Law Section Seminar John Gottschalk Freedom Center, Omaha August 24 Intellectual Property Section Seminar Scott Conference Center, Omaha August 29 Appellate Practice Section Seminar State Capitol, Lincoln September 1 2017 Legal Diversity Summit Creighton Harper Center Ballroom, Omaha September 8 Business Law Section Seminar Embassy Suites, Lincoln September 13 Real Estate Section Seminar Embassy Suites, La Vista October 11-13 2017 NSBA Annual Meeting Embassy Suites, La Vista November 3 Workers’ Compensation Section Seminar Embassy Suites, Lincoln


Other NSBA Seminars

May 5 Lawyer Ethics and Client Development Telephone - #138851 (1 CLE ethics hour) May 8 Ethics and Virtual Law Practices Telephone - #139360 (1 CLE ethics hour) May 9 Undue Influence & Duress in Estate Planning Telephone - #139152 (1 CLE hour) Supervision Responsibilities Regarding Nonlawyer Assistance Webinar - #138895 (1 CLE ethics hour)

May 10 Letters of Intent in Real Estate Transactions Telephone - #138853 (1 CLE hour) May 12 Ethics of Co-Counsel & Referral Relationships Telephone - #138875 (1 CLE ethics hour) May 15 Ethics in Billing & Collecting Fees Telephone - #139372(1 CLE ethics hour) May 16 LLC, Partnership, LP & Pass-through Mergers, Part 1 Telephone - #138971 (1 CLE hour) May 17 LLC, Partnership, LP & Pass-through Mergers, Part 1 Telephone - #138973 (1 CLE hour) The Personal Contact Rules: No Draculas Allowed Webinar - #138983 (1 CLE ethics hour) May 18 Due Diligence in Real Estate Acquisitions Telephone - #139376 (1 CLE hour) May 19 Ethics in Discovery Practice Telephone - #138879 (1 CLE ethics hour)


Upcoming CLE Programs May 22 Ethics for Real Estate Lawyers Telephone - #139378 (1 CLE ethics hour) May 23 Drafting Gun Wills & Trusts and Preventing Executor Liability Telephone - #139156 (1 CLE hour) The Truth, The Whole Truth and Nothing But the Truth Webinar - #138902 (1 CLE ethics hour) May 24 Ethics in Negotiations Telephone - #139380 (1 CLE ethics hour) May 27 The 2017 Ethy Awards Webinar - #138914 (2 CLE ethics hours)

May 29 Like Kind-Exchange of Business Interests - It’s Not Just About Real Estate Telephone - #138969 (1 CLE hour) May 30 Drafting Preferred Stock/Preferred Returns Telephone - #139384 (1 CLE hour) May 31 Ethics and Artificial Intelligence in Law Practice Software & Tools Telephone - #138884 (1 CLE ethics hour) Show Me The Ethics! The Ethycal Way to Bill for Legal Services Webinar - #138918 (1 CLE ethics hour)

June 2 Drafting Employee Handbooks Telephone - #139332 (1 CLE hour) June 6 2017 Ethics in Civil Litigation Update, Part 1 Telephone - #139335 (1 CLE ethics hour) June 7 2017 Ethics in Civil Litigation Update, Part 2 Telephone - #139340 (1 CLE ethics hour) New seminars are added to this list weekly. Visit the NSBA Calendar at for the most up-to-date listing of seminars being offered. *Free to NSBA dues-paying members who have not used their 2017 “2 hours of free ethics CLE” member benefit.




Wish you could take a recess?





lm a . or g

If you are doubting your decision to join the legal profession, the 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. The Nebraska Lawyers Assistance Program offers free and confidential support, because sometimes, the most difficult trials happen outside the courtroom. Nebraska Lawyers Assistance Program Helping you win life’s trials. 24 hours • 7days (888) 584-NLAP (6527)

Thank You to the Following NSBA CLE Faculty March 3 The GAL’s Guide to Immigration Law and GAL Practice Standards

Judge Anne Paine, 11th Judicial District County Court

Mindy Rush Chipman, Justice for Our Neighbors-Nebraska

Rosangela Godinez, Justice for Our


March 9 Lighthouses in the Fog: Navigating the Gray Areas of Subject Matter Eligibility Under 35 USC §101

Eric Newhouse, Suiter Swantz Dallin Call, Suiter Swantz March 10 2017 YLS Best Practices Seminar Planning chair:

Kate Fitzgerald Kucera, Sarpy County Attorney’s Office Speakers:

Virginia Albers, Slowiaczek, Albers & Astley

Hannah Wooldridge, Slowiaczek,

Albers & Astley

Renee Eveland, Cline Williams Wright Johnson & Oldfather

Tana Fye, Fye Law Office Mark Weber, Nebraska Counsel for


Phil Kleine, Sarpy County Attorney’s

March 24 2017 Annual Estate Planning & Probate Institute: Focus on Probate and Trust Administration Planning chair: Kara Ronnau, Cline Williams Wright Johnson & Oldfather Speakers:

Ramzi Hynek, Rembolt Ludtke Kent Endacott, Endacott, Peetz

& Timmer

Jennifer Dannehl Jensen, Endacott,

Peetz & Timmer

Brian Kruse, Rembolt Ludtke Bill Olson, Olson Zalewski Wynner Christin Lovegrove, Heinisch & Lovegrove Law Office

Margaret Hershiser, Koley Jessen Todd Scott, Minnesota Lawyers Mutual Insurance

April 11 The New Partnership Audit Rules

John Keenan, Deloitte Tax Anne Oliver, Deloitte Tax

Jesse Sitz, Baird Holm

of Banking and Finance

Guenzel & Widger

Sharon Kresha, Baird Holm Bill Lindsay, Gross & Welch Zachary Lutz Priefert, Gross & Welch Adam Pavelka, Agri Affiliates Andrew Sigerson, Legacy Design Strategies

Reg Kuhn, Mattson Ricketts Rick Jeffries, Cline Williams Wright

Johnson & Oldfather

Scott Hahn, Hightower Reff Law

Frank Daley, Nebraska Accountability and Disclosure Commission


April 7 Lexington Ethics Seminar

Steven Guenzel, Johnson Flodman

Gage Cobb, Sarpy County Attorney’s Office

Aaron Brown, Brown & Theis

April 18 Securities Law Seminar

March 29 Governmental Ethics Laws and the Accountability and Disclosure Commission


March 30 Causation, Aggravation, and Adjudication: Get it Right, Get it Tight


Mark Quandahl, Nebraska Department Claire McHenry, Nebraska Department of Banking and Finance

Mike Cameron, Nebraska Department of Banking and Finance April 25 Preparing for the Worst: The Ethics of Cyber Liability and Disaster Prevention

Todd Scott, Minnesota Lawyers Mutual Insurance



NSBA’s Professional Networking Group • 3 groups – Omaha, Lincoln & Greater Nebraska • Omaha and Lincoln groups: Be matched with lawyers for coffee or lunch at your mutual convenience 6 times during the year • Greater Nebraska group: Be matched for a virtual meeting or in-person coffee or lunch, depending on your location More details at

Sign up now! • Join any or all three groups for only $10 total (You can also join online at c Omaha c Lincoln c Greater Nebraska Name:______________________________________________________ Bar #_____________ Phone:________________ E-Mail:_________________________________________________ ___ Check enclosed OR Charge to ____ MasterCard _____ Visa _____ Discover _____ AMEX Amount enclosed or to be charged $10 ___ Card number: _________________________________ Security Code (located on back of card):____________ Expiration Date:____________ Mo/Yr Please print name on credit card:__________________________________________________ Credit card billing address:________________________________________________________ City:_______________________________________________ State:_______ Zip:__________ Signature:_____________________________________________________________________ Make checks payable to NSBA and return completed form to: NSBA, 635 S 14th St. #200, Lincoln, NE 68508 Questions? Contact Lorrie Benson at or (402) 475-7091 THE NEBRASKA LAWYER




To submit a career change and/or relocation to the Transitions section of The Nebraska Lawyer, email your announcement to Sara Weber, Editor,

Career Changes.......................... ..........................and Relocations The Omaha law firm of GROSS & WELCH is pleased to announce ADAM J. WACHAL has been elected as a Director of the firm. Wachal earned his J.D. from Creighton University in 2010, where he graduated with honors. He received his undergraduate degree from the University of Nebraska. While at Creighton, he received the CALI Excellence for the Future Award in the areas of Federal Income Taxation, Alternative Dispute Resolution, Debtor-Creditor Relations, Marriage and Divorce, and Mortgages. He was also awarded the American Bankruptcy Institute Medal of Excellence. In addition to his awards, he served as the Assistant Editor of the Creighton Law Review. His practice has been focused on civil litigation, insurance defense, insurance coverage litigation, and appellate practice. He is a member of the Nebraska and Iowa State Bar Associations and the Omaha Bar Association. He is licensed to practice in Nebraska and Iowa. ROSS, SCHROEDER & GEORGE, LLC of Kearney is pleased to announce the association of MARY ROSE RICHTER with its law firm. She graduated with her bachelor’s degree from Marquette University, Milwaukee, WI, and received her law degree from the University of Nebraska College of Mary Rose Law in May 2016. Mary Rose practices in Richter general litigation, collections, adoptions, guardianships and conservatorships, and family law. She is also a certified mediator with a concentration in Alternative Dispute Resolution. She is an approved Parenting Act and Specialized Dispute Resolution (SADR) mediator and has been mediating cases since receiving her certification. The law firm of SHERMAN & HOWARD L.L.C. is pleased to announce that PARKER SCHENKEN has joined the firm’s Public Finance Department in the Denver office. Parker, a native Nebraskan, spent the last 22 years in public finance in Omaha. He has served as bond counsel, borrower’s counsel and underwriter’s counsel on various transactions, with recent emphasis in the health care, education and utility spaces. He is licensed in Colorado, Nebraska and Iowa. Parker is a 1994 graduate, with distinction, of the University of Nebraska College of Law, where he served as Executive Editor of the Nebraska Law Review. Parker also holds a degree in Civil Engineering from Loyola Marymount University in Los Angeles, CA, and worked in the engineering field before attending law school. THE NEBRASKA LAWYER


KEATING, O’GARA, NEDVED & PETER, P.C., L.L.O. is pleased to announce that THOMAS W. FOX has joined the firm as an associate attorney. A native of Lincoln, Mr. Fox earned a Bachelor of Journalism degree from the University of Nebraska-Lincoln in 1991 and graduated with distinction from Thomas W. Fox the University of Nebraska College of Law in 1998. For the first 13 years of his legal career, 1999 to 2012, Mr. Fox served the citizens of Lancaster County as a Deputy County Attorney, the last eight years in the Civil Division where he provided legal counsel to County elected officials, department heads and senior management. In 2012, Mr. Fox was appointed by Governor Dave Heineman to the County Court of Lancaster County, Nebraska, where he served for over four years as a judge. Mr. Fox left the bench on January 4, 2017, to join the firm in private practice, focusing on labor and employment law and civil litigation. JACKSON LEWIS P.C. is pleased to announce CHAD RICHTER has been named the Omaha Office Managing Principal. Richter’s practice is focused on preventive counseling and training, traditional labor law and workplace litigation. He provides advice and counseling to management on a variety of employment Chad Richter law matters including human resource management, traditional labor relations, employment discrimination, wage and hour, privacy, disability leave management and reductions in force. He also assists management in workplace audits, preparing contracts and workplace policies, complex employment investigations and developing and presenting training curriculums on numerous employment and labor law topics. Richter received his B.B.A. from the University of Nebraska Omaha and his J.D. from the Creighton University School of Law.

Ann M. Grottveit

KAHN, SOARES & CONWAY, LLP has promoted ANN M. GROTTVEIT to partner. She is located in the firm’s Sacramento office and her practice areas include agriculture, environmental and business litigation, and administrative law relating to Proposition 65, the Clean Air Act and California Environmental Quality Act.

➡ MAY/JUNE 2017

TRANSITIONS/AWARDS AND RECOGNITION CARRIE K. GAINES, The John Marshall Law School, 2001, has joined the Omaha office of HENNESSY & ROACH P.C. She previously defended general liability and workers compensation claims while affiliated with other defense firms in Indiana. Carrie K. Gaines

ERICKSON | SEDERSTROM is pleased to announce the February, 2017 promotion of DANIEL I. DITTMAN to Shareholder status. Daniel, a 2013 cum laude graduate of Creighton University School of Law joined the firm as an Associate in 2013 practicing in estate and gift planning, trust administration, Daniel I. probate of client estates, and federal and state Dittman taxation. Daniel, a Chartered Advisor in Philanthropy (CAP), a Planned Giving Counsel for MOSAIC, and an Adjunct Professor of Law at Creighton University is continuing his practice in Estate, Probate and Trust Law.

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Awards and Recognition Tim Engler and Susan K. Sapp were inducted as fellows into the American College of Trial Lawyers (ACTL) in Boca Raton, FL, on March 4, 2017. Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, and after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, integrity and collegiality. Membership in the College cannot exceed one percent of the total lawyer population of any state or province. TIM ENGLER is a partner with REMBOLT LUDTKE and practices in the areas of business and commercial litigation, construction, employment, and personal injury, including wrongful death, and has an active mediation/arbitration practice. Tim’s practice primarily involves helping both businesses and individuals resolve disputes through litigaTim Engler tion, arbitration and mediation. He has jury trial experience, experience as an arbitrator and mediator, and he is one of eight Nebraska lawyers admitted to the National Academy of Distinguished Neutrals. Most of his practice involves commercial disputes, personal injury, both plaintiff and defense, and employment litigation. Tim’s experiences also include handling cases that involve class actions, patents and other IP cases, securities fraud, and RICO. Tim is very active in the Nebraska State Bar Association and currently serves as the President-Elect Designate of the NSBA. SUSAN SAPP is a senior partner in the firm of CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, L.L.P. and, with her induction, joins James Bausch and Mark Christensen of the firm as Fellows in the College. Fredric Kauffman (1939-2016) and Kevin Colleran (1941-2006) were also Fellows of ACTL. Susan’s legal practice, which has spanned 28 years, is primarily focused in civil litigation, which includes repSusan Sapp resenting employers, physicians, hospitals, lawyers and educational institutions in labor and employment matters, medical and legal malpractice defense, and all aspects of education law. She also represents parties in adoption matters and related litigation. Susan is a Member of the Litigation Counsel of America, the American Board of Trial Advocates, and the American Academy of Adoption Attorneys. She is also a Past President and current member of the Nebraska Council of School Attorneys.


AWARDS AND RECOGNITION The National Board of Trial Advocacy (NBTA) is pleased to announce that AMIE C. MARTINEZ of ANDERSON, CREAGER AND WITTSTRUCK, P.C., L.L.O. has successfully achieved Board Certification as a family trial advocate. Martinez is a member of a very select lawyers nationwide who has Amie C. taken the time to prove competence in their Martinez specialty area and earn board certification by providing the consumer of legal services with an objective measure by which to choose qualified and experienced legal counsel. With her certification, there are now two lawyers licensed in the state of Nebraska who are Board Certified in Family Law. Amie C. Martinez earned her undergraduate degree in English at Nebraska Wesleyan University. She is a graduate of the University of Nebraska College of Law graduating in 1994 with distinction. She has served in a number of leadership roles on the local, state and national level and is a past President of the Nebraska State Bar Association.



TRACY DEUTMEYER of MCGRATH NORTH received recognition at the ABA Board of Governors’ Leaders’ Dinner. Tracey is currently serving as Chair of the Ex Parte Committee of the Trademark Division. ABA Intellectual Property Law Section Chair Donna Suchy commented, “This Tracy year alone (i.e., between September and Deutmeyer February), [Tracy] has personally overseen the preparation, circulation and presentation to Council of four letters to the USPTO commenting in response to their Notices of Proposed Rulemaking and/or changes in procedure. In every case, Tracy had to organize the subcommittee, shepherd the research and writing, circulate the drafts to the committee and compile the comments into the final, workable form within a very short time frame. Rather than delegating this responsibility to others, she has frequently undertaken a very handson role. She has been a tremendous asset to the Trademark Division as a result.”


in memoriam BARBARA BERKENPAS, 69, of Ashton, IA, died March 6, 2017. She was born October 3rd, 1947 to Clarence Bangert and Luella Hickman. She grew up and began her education at Ashton, IA schools before continuing in Sibley, IA where she graduated in 1965. Barb later attended the University of South Barbara Dakota School of Law where she received her Berkenpas Juris Doctor degree in 1997. She was united in marriage to Carl Berkenpas on October 20th, 1968. They made their home on the family farm near Ashton. She was a stay at home mom while her kids were growing up, then went back to school as a non-traditional student. After law school she started an E-rate Consulting business with her daughter. Barb enjoyed spending time with family, was a devoted wife and Mimi. She especially enjoyed spending time with her grandchildren. Barb made an impression on nearly everyone she met. She was incredibly perceptive, intelligent, compassionate and generous (usually anonymously.) She would tenaciously advocate for what she believed in but still respected those whose opinions differed from hers. She loved her family fiercely and instilled in them the values of family and loyalty. Barb belonged to the Iowa Bar Association, South Dakota Bar Association, Nebraska Bar Association, E-MPA, and the Order of the Eastern Star. She is survived by Carl Berkenpas of Ashton, IA; Sean Berkenpas, his wife Tara and their three sons Jack, Oliver and Eli of Sioux Center, IA; Erin Berkenpas Johnson and her daughter Paige of Knoxville IA; sister, Mary Lynn Scott and her husband Gary of LeSueur MN; and other extended family members. Barbara was preceded in death by her parents, Clarence and Luella (Hickman) Bangert. BERT E. BLACKWELL passed away on January 20, 2017, at Fort Meade, SD. He was born in Duquoin, KS, on January 4, 1941, to Harold and Georgia Blackwell. Bert graduated from high school in Isabel, KS, in 1959, and joined the U.S. Navy. He completed his bachelor of arts degree with the University of Kansas on Bert E. Blackwell 1964. He became a Naval aviator and after eight years during the Viet Nam era, he received an honorable discharge to raise his two minor sons. In 1974, he received his Juris Doctor Degree from Washburn University School of Law and practiced law in McCook, NE, for the last 42 years, specializing in bankruptcy law. A focus of his life was to help people in the beautiful State of Nebraska with their legal matters. Bringing hope and helping make their lives better was what he desired. He also cared for family and friends, and loved to camp, hike, ski, windsurf, and worship with them. He was never too busy to lend a helping hand or give free legal advice. He is survived by his spouse, Sharon Meese Blackwell; his two THE NEBRASKA LAWYER


sons, Eric Blackwell of Tulsa, Okla., and Jason Blackwell of Vestal, N.Y.; his daughter, Debra Blackwell Darnall of Black Hawk, S.D.; his brother, Ben Blackwell of Kelso, Wash.; his sister, Donna Krug of Bartlett, Ill.; as well as grandchildren, nieces, nephews and a host of family and friends. LANCE C. CARLSON, 47, passed away February 8, 2017. He was born November 15, 1969, at Osmond, NE, to Kenneth and Marilyn (Shallberg) Carlson. He graduated from Wausa Public School. Lance attended college at University of Nebraska at Kearney and graduated from University of Nebraska Lance C. Carlson School of Law in Lincoln. On August 7, 1993, he was united in marriage to Melanie Farley in Lincoln. Lance and Melanie were blessed with three children, Margaret, Sophia, and Max. After Lance graduated from law school, he joined Craig Monson and Mark Behm at their law firm in Randolph, NE. In 2004, he purchased his partners’ interest in the firm and it became Carlson Law Office. Lance was also the city attorney for Randolph and Wausa. He sat on the Board of Directors at First State Bank in Randolph. Lance was a member of Evangelical Covenant Church in Wausa. Lance is survived by his wife, Melanie of Randolph; children, Margaret, Sophia, and Max; brothers, Laddy Wade (Beth) Carlson of Winter Springs, Florida and Brad (Pam) Carlson of Norfolk, Nebraska; sister, Trudy (Gary) Zalud of Vermillion, South Dakota; mother, Marilyn Carlson of Wausa, Nebraska; mother-in-law, Mary Farley of Syracuse, Nebraska; in-laws, Rick (Renee) Farley of Lincoln, Nebraska, Therese (Dave) Juilfs of Syracuse, Brad (Jeanie) Farley of Lincoln, Nebraska, Laura (Tom) Haynes of Omaha, Nebraska, Tony (Patty) Farley of Runnels, Iowa, Dean (Billie Jo) Farley of Syracuse, Quentin (Denise) Farley of Lincoln, Wes (Stephanie) Farley of Pinckney, Michigan, Tim (Amber) Farley of Syracuse, and Dan (Laura) Farley of Sedalia, Colorado; and many nieces, nephews, great nieces and nephews and their spouses. He was preceded in death by his father, Kenneth Carlson; infant brother, Brian; and father-in-law, Harland Farley. HON. STEPHEN P. FINN, 81, of Elgin passed away March 2, 2017. Steve was born on December 11, 1935 in Tecumseh, NE. to Robert and Eva (Peairs) Finn. He graduated from Tecumseh High School, attended college at St. Benedict’s College in Atchison, Kansas and graduated from the University of Hon. Stephen P. Nebraska College of Law in 1961. Following Finn graduation, he moved to Neligh where, for 17 years, he practiced law. In 1978, he was appointed to the bench as a county judge to serve the 7th Judicial District. He served MAY/JUNE 2017

IN MEMORIAM as county judge for 24 years, retiring in 2001. Steve served as president of the County Judges’ Association. He was on the original Board of Governors when NE Technical Community College was created and served for six years. He also served on the board of development for Pope John XXIII High School in Elgin and Pioneer Homes in Neligh. Steve served on the Antelope Country Club Board for many years. Following retirement, he continued with his three favorite hobbies, woodworking, golf, and poker club. Steve married Kay Lawson; three children were born to this union, Matthew (Kathy) Finn, Karen (Cory) Iber and Trish (Graeme) Bayless. In 1989, Steve married Barbara J. (Totten) Zegers and moved to Elgin, NE where he lived until his death. Steve is survived by his wife, Barbara, son Matthew, and daughter Trish, stepdaughter Michaela (Preston) Hoffmeyer, stepson Curtis (Ronna) Zegers, stepdaughter Moriah (Rob) Brookshier, seven grandchildren, five step-grandchildren and seven great-grandchildren. He is also survived by his brother Robert Finn of Sun City West, AZ, sister Catherine Stansbury of Daytona Beach FL, sister Margaret Bryan of Sun City, AZ, nieces, nephews and many friends. He was preceded in death by his parents and daughter, Karen. JAMES R. HANCOCK, 85, of Lincoln passed away March 14 2017. He was born January 26, 1932 in Wahoo, NE to Glen F. and Esther M. (Fleeker) Hancock. “Jimmy” graduated from Wahoo High School in 1950. After graduation, he attended Hastings College in pre-law studies. Jim interrupted his college career to James R. enter the army and served in Germany from Hancock 1952-1954 in the Counter-intelligence corps in Heidelberg. In that role, he obtained and processed sensitive documents for the security of the United States in Post-War Europe. After his army career, Jim returned to his schooling and re-entered law school at the University of Nebraska while earning his undergraduate degree from Hastings. While in law school, Jim met the love of his life, Marlene who worked at the University of Nebraska. They married in Holbrook in 1957 and moved to Lincoln while Jim finished law school. The couple moved to Scottsbluff after Jim accepted a position with Wright, Simmons and Harris law firm. He worked at the firm until 1971 and then went into practice on his own. In 2009, the Nebraska State Bar Association rewarded James with the Fiftyyear Member Award for his dedicated practice of law in the state of Nebraska. Jim was also a member of the Nebraska State Bar Association, the U.S. Supreme Court Bar, and served as President of the Scottsbluff County Bar association. Jim was a talented harmonicist who loved to perform German folk songs for family and friends. Jim excelled in athletics. Strength, speed, dexterity, work ethic and competitive drive led him to great success in football, basketball and track & field in Wahoo. He then went on to be a featured running back for the Hastings THE NEBRASKA LAWYER


College Broncos. Perhaps more impressively, Jim taught himself to swim, dive and figure skate. Clearly, both music and athletics were true life-long passions: he played a short song on his Honer harmonica last Christmas and, for a nervous audience when he was 80 years old, he performed a front dive pike with a half twist at the Wahoo Aquatic Center. Family members include his wife, Marlene; daughter, Christine Anne (Mike) Dempsey; sons, Robert Glen (Diane Jobe) Hancock and David Paul (Teri) Hancock; grandchildren, William Christian Dempsey and Michael Patrick Dempsey; sisters, Ruth Wells, Jean Proud and Loy Ann (David) Cook; brother, Robert (Mary) Hancock; Sister-in-Law Mary Ann Hancock; many nieces and nephews. Preceded in death by parents, brother William and infant brother John. HON. EDWARD “ED” E. HANNON, 85, of Lincoln died March 16, 2017. Edward was born on September 3, 1931 to Daniel B. and Elizabeth (Moore) Hannon in Omaha. He was raised primarily on a farm in Hall County, and graduated from high school in Shelton in 1949. After a year at Marquette University, he joined the U.S. Navy and served oversees in Guam during the Korean War. He graduated from Creighton School of Law in 1959 Hon. Edward E. and moved to O’Neill in 1960 to practice law. Hannon Ed married Mary La Greca in Omaha in 1970. He was appointed as district court judge in O’Neill in 1983 and appointed to the Nebraska State Court of Appeals in 1991. He had been a resident of Lincoln since 1992. Ed retired from the court in 2003. He enjoyed traveling and gardening, was a member of St. Joseph’s parish and was passionate about working for the St. Vincent de Paul Society. Ed is survived by his wife Mary; two sons Michael (Lisa Campoli) Hannon of Pittsburgh, PA and Patrick Hannon of Atlanta, GA; two daughters Maureen (Todd) Lamski of Lincoln and Kathleen Hannon of Rochester, MN; and four grandchildren Edward Charles Hannon and Elizabeth, Sarah and Morgan Lamski. He was preceded in death by two brothers Daniel Hannon Jr. and James Hannon and two sisters Elizabeth Torpey and Mary Brady. JOHN J. “JACK” HIGGINS, 84, passed away February 15, 2017. He was born July 23, 1932. John graduated from Creighton Prep High School, Creighton University, and, in 1957, from Creighton Law School. John practiced law up to his time of passing. Preceded in death by parents, John and Elizabeth John J. “Jack” Higgins; stepson, Bruce Howell. Survived by Higgins wife, Norma Higgins; children: Jenny Micek (Reece), Julie Sgroi (Tony), and Jill Egan (Dan); stepson, Brian Howell (Joel); grandchildren: Ben and Drew Micek, Elizabeth Sgroi, Caitlin, Caroline and Arthur Egan, Beck and Trevor Howell.


IN MEMORIAM VINCENT J. KIRBY, 89, of Norfolk, passed away March 3, 2017. Vince was born in Hadar to Raymond and Margaret Kirby. Vince was number nine of 12 children. He graduated from Battle Creek High School in 1943. He graduated from Creighton University School of Law in 1957. He served in the U.S. Army Vincent J. Kirby during the Korean War and was stationed at Fitzsimmons Army Hospital in Denver. On May 12, 1951, he married Bernadine Jo Timpe. They made their home in Battle Creek, raising 12 children. Vince practiced law in Madison County his entire professional career; part of that time he spent time serving two separate terms as Madison County Attorney. In 1989, he established Kelly’s County Club and in 1991, he opened his nine-hole golf course. He loved his involvement with Weigand Marina and the Nebraska State Park. He enjoyed operating heavy equipment and, most of all, socializing and debating with his family and friends. He also loved golfing, flying his plane, farming, cooking, early mornings, playing piano and guitar, telling a great story and spending time with his family and dog. He was a member of St. Patrick’s Catholic Church in Battle Creek and also a member of VFW and American Legion, and an honorary member of the Battle Creek Fire and Rescue. Vince is survived by his spouse, B.J.; 12 children, Mike and Mary (Wisch) Kirby of Battle Creek, Roger and Marian Volk of Battle Creek, Fred and Becky Ritter of Columbus, John “Buzz” and Rose Marie Poulicek of Omaha, Don and Stephanie McLaughlin of Columbus, Steve and Jeannie Kasik of Yankton, Reggie and Kelly Benson of Battle Creek, Tom and Maureen Leathers of Battle Creek, Mike and Teresa Wilkinson of Battle Creek, Jim and Colleen Lanman of Norfolk, Rick and Connie Lade of Battle Creek, Vince Jr. “Cheech” and Tracy (Thompson) Kirby of Waterloo; siblings Margaret (Richard) Leise of Bellevue, Ellen Derry of Denver, Colo., Betty (Jerry) Abler of Wahoo and Philip Kirby of Sun City, Calif. He is also survived by 48 grandchildren, 44 great-grandchildren, and his dog, Gunner. He was preceded in death by an infant daughter, Bernadine Kirby; his parents; siblings William, Leo, Raymond “Bud,” Frank, Jerry, Lucille Kuchar and Rosalie Leise; a granddaughter, Laury Poulicek; and a great-granddaughter, Pepper Kasik. ROSEMARIE BUCCHINO LEE, 59, passed away March 13, 2017. A graduate of Ryan High School, Lee received her undergraduate and law degrees from Creighton University. Before joining the Omaha City Attorney’s Office in 1997, Lee clerked in the Douglas County District Court and then went Rosemarie into private practice with her father, Gary Bucchino Lee Bucchino. For the past 10 years, Lee evaluated legal claims against the City of Omaha. Peters said her friend THE NEBRASKA LAWYER


was affectionately known in the office as “the pothole queen” because she handled negligence claims submitted by motorists whose cars were damaged on city streets. She also volunteered with the Red Cross and Bergan Mercy Medical Center, and as a domestic violence counselor for the YWCA. At home, Lee’s brilliant smile never shone brighter than when she was sewing or leading a crafting class. The grandchildren’s Halloween costumes — such as dinosaurs and mermaids — were always elegantly created by their grandmother. Preceded in death by her father, Gary P. Bucchino. Survived by her mother, Marie Bucchino; children: Patrick (Kari) Lee, Kearney, NE; Katie (Joel) Longanecker, New Prague, MN; and Maggie Lee, Omaha; five grandchildren: Quinn and Avery Lee, Keamey; and Cayla, Preston and Skye Longanecker, New Prague; sister, Therese (Benjamin) Henry, Maricopa, AZ; brothers: Tony, Omaha and Michael (Deborah), St. Louis, MO; nephews, Michael Bucchino, St. Louis, MO, and Christopher Vavra, Omaha; niece, Gabrielle Bucchino, St. Louis, MO. HON. RICHARD J. SPETHMAN, 84, passed away March 23, 2017. Spethman attended Creighton University and then law school at Creighton. He met his wife, Ginny, on a blind date, and they married in 1957. He spent more than 20 years in private practice before becoming a judge in 1992 at age 60. Hon. Richard J. Spethman retired in 2005 but after his wife’s Spethman death in 2013 he returned to the law, entering into private practice with his daughter Kathleen Pallesen and opening Spethman Pallesen Law Offices. Spethman was a great mentor with a sharp wit and was quick on his feet. He was able to anticipate what could go wrong with a case because of his judicial experience. He is survived by children: Patricia Kreikemeier (Kelly), Richard Spethman, Jr. (Patrick Collins), Susie Sullivan (J. Malachy), Martin Spethman (Daniela), Kathleen Pallesen (Michael), Joanne Spethman, and Peggy Zier (Larry); grandchildren: Jennifer Haag (Lucas), Robert Kreikemeier (Lindsey), Laura Reiter (Nick), Mary Kreikemeier, Malachy Sullivan (Sarah), Colin Sullivan, Seamus Sullivan, Katie Pallesen, Michael Pallesen, Jr., Libby Pallesen, Maggie Pallesen, Zoe Zier, India Zier, Maya Zier, and Leyla Zier; great-grandchildren: Anthony Francis Haag, Heidi Kreikemeier, and Brenna Sullivan; sisters-in-law: Bettie Spethman, Janice Spethman, and Lani Ord; brother-in-law, Hank Dethlefs; brother and sister-in-law, Jim and Marty Smith; many nieces and nephews. Preceded in death by parents, Edward C. Spethman and Marie Spethman Johnson; wife, Virginia Rose Spethman; brothers, Dr. Jerry Spethman and Edward Spethman; sister-in-law, Mary Jo Dethlefs.


IN MEMORIAM DALE C. TINSTMAN, 97, passed away February 16, 2017. A life-long Nebraskan, Dale, the son of Clint and Elizabeth Tinstman, was born on May 19, 1919 in Chester, NE. He spent his early years in the small towns of Diller and Tobias, and after his father died in an accident in 1934, he moved with his mothDale C. er and brother (Allen) to Fairbury. There, his Tinstman life-long love of sports surfaced as he established himself as a first-rate athlete. He was fond of saying “for a small guy, being selected by the Nebraska college coaches as forward for the all-state basketball team was my proudest claim to fame.” Throughout his life, Dale sought opportunities to be active: he loved hunting, golf, anything competitive. He attended the University of Nebraska, was a member of Alpha Sigma Phi fraternity, graduated in business administration in 1941 and met the love Jean Sundell Tinstman. In July, 1941, knowing that war was imminent, Dale wanted to fly: he signed up with the Army Air Corp. Shortly after Dale graduated from Navigation School at Kelly Air Force Base in San Antonio, TX in the fall of 1942, he and Jean were married. Thus, began his other love relationships—flying, family, friends, and freedom. After tours of active duty in both World War II and the Korean War, Jean and Dale made their home in Lincoln to raise their three children. After serving in the Nebraska Air National Guard, Dale retired as a Colonel from the United States Air Force in 1962. Following graduation from the University of Nebraska College of Law, Dale began his business career as an investment banker. In the summer of 1961, he started Tinstman and Company Inc. Dale and his company, which was to become First Mid America Securities with 16 offices across the Midwest, were instrumental in the success of a plethora of companies in the Great Plains, the largest of which was Iowa Beef Processors, Inc. (IBP). Ultimately, Dale joined IBP—which became a Fortune 100 Company--in 1976 as President and CEO. After a forty-year relationship with IBP, Dale retired from the board in 2000. Revered for his business acumen as well as his humanity, Dale served on



countless boards, foundations, and associations: First National Lincoln Board of Directors, Midwest Research Institute, Nebraska Technology Development Corp, Lincoln Country Club, Nebraska Investment Financial Authority, University of Nebraska Foundation (Chair), Nebraska Bar Association, Nebraska State Chamber of Commerce, National Guard Association of Nebraska; he was inducted into the Nebraska Business Hall of Fame. Dale never retired; he just transitioned to a more “local” office. He read and traveled widely. He loved learning and applying that learning to help others. His intellectual curiosity was infectious. Never content with the status quo; Dale always believed that things could be better, that we could be better. He had the necessary ingenuity and moral clarity, and not only was he willing to work tirelessly for positive change, he guided others to work for it as well. Dale always made time to connect and celebrate with colleagues, friends, and family. He was a good listener and an even better problem solver. He corresponded with a wide network who received timely, handwritten notes. Throughout his life, Dale was generous with his time and counsel; he shared his good fortune and wisdom with family, friends, and his community. Dale is survived by his three children and their spouses, Tom “Thomas” and Marilyn Tinstman (Austin, TX), Nancy and Ron Remington (Reno, NV), and Janey (Jane) and Steve Kramer (Ft. Collins, CO); nine grandchildren and their spouses, Katie and Cam Mochan (Denver, CO) Christopher “Kip” and Kim Tinstman (Denver, CO), Leonard and Kristen Remington (Reno, NV), Lesley and Brian Clark (Santa Clarita, CA), Josh and Jenn White (Omaha, NE), Jeremy and Kerri White (Omaha, NE), Wil and Jackie Kramer (Boulder, CO), Jeff and Lindsay Kramer (Ft Collins, CO), and Ben and Abbey Kramer (Ft Collins, CO). He is also survived by 17 great grandchildren. The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, 635 S 14th St. #200, Lincoln, NE 68508. 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. Your assistance is appreciated in sharing this important information with your colleagues.


The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

14th Annual GREATER NEBRASKA GOLF SCRAMBLE Friday, June 2, 2017 at The Dismal River Golf Club in Mullen, NE 83040 Dismal River Trail, Mullen, NE 69152 308-546-2900

Golf Scramble - Friday, June 2, 2017

Format: 4-Person Scramble Lunch & Driving Range: 10:30 AM - 12:30 PM Shotgun Start: 12:30 PM Dinner: 5:00 PM Entry Fee: $200 per golfer Includes: Lunch, dinner, green fee, cart, range balls & door prize drawings Players: Pairings will be made for individual and partial team entries

Room Reservations & Additional Golf Outings Golf on Thursday or Saturday $155 (includes cart) To make room reservations or tee times on Thursday, June 1st, or Saturday, June 3rd, contact Amanda Vinton at 308-546-2900 or

1) Name:_______________________________________

3) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Address:______________________________________ ____________________________________________ ____________________________________________



U.S.G.A. Handicap Index________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

Average 18 Hole Score___________________________

2) Name:_______________________________________

4) Name:_______________________________________

Address:______________________________________ ____________________________________________ ____________________________________________

Address:______________________________________ ____________________________________________ ____________________________________________



U.S.G.A. Handicap Index________________________

U.S.G.A. Handicap Index________________________

Average 18 Hole Score___________________________

Average 18 Hole Score___________________________

Proceeds to benefit the NSBA Volunteer Lawyers Project. c I am unable to play the tournament but have enclosed $_________ to support VLP. For more information: contact Sam Clinch at (800) 927-0117, (402) 475-7091 or Please make your checks payable to NLF and return this form to: 635 S 14th St. #200, Lincoln, NE 68508. **Gifts to NLF are deductible as charitable donations to the extent allowed by law.** THE NEBRASKA LAWYER



The Nebraska State Bar Association - Nebraska Lawyers Foundation presents the

14th Annual GREATER NEBRASKA GOLF SCRAMBLE Friday, June 2, 2017 at The Dismal River Golf Club in Mullen, NE 83040 Dismal River Trail, Mullen, NE 69152 308-546-2900

c Tournament Co-Sponsorship Contribution

I agree to contribute $500 as a “Co-Sponsor” of the NSBA Golf Scramble.

c Hole Sponsorship Contribution

I agree to contribute $275 as a “Hole Sponsor” of the NSBA Golf Scramble.

c Prize Donation

I agree to contribute a prize to the NSBA Golf Scramble.

Item Description:_____________________________________________________________________________ Suggested Value:______________________________________________________________________________ ___________________________________________________________________________________________ ___________________________________________________________________________________________ Contributor Name:____________________________________________________________________________ Organization:________________________________________________________________________________ Address:_____________________________________________________________________________________ Phone:______________________________________________________________________________________ Email:______________________________________________________________________________________

Thank you for your support of this worthwhile event to benefit the Volunteer Lawyers Project. For further information, contact Sam Clinch at (402) 475-7091 or Please make your check payable to The Nebraska Lawyers Foundation & return this form with payment to: NSBA, 635 S 14th St. #200, Lincoln, NE 68508. *Gifts to The Nebraska Lawyers Foundation are deductible charitable donations to the extent allowed by law.




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classified ads SEEKING ATTORNEY: Small AV law firm in east-central Lincoln seeks a third, and possibly fourth, lawyer to share office space and expenses and consider possible affiliation. We have a client book of prominent local businesses and institutions as well as the usual cross-section of Nebraska middle class life. If this is a conversation that you think might interest you, or if you simply want to solo it in a nice office suite shared with very good lawyers and their staff, send a letter and CV or equivalent, and anything else you think might be of interest to us, to ASSOCIATE ATTORNEY: Fye Law Office seeks candidates for an Associate Attorney position. Applicants with all levels of experience are encouraged to apply. A successful candidate will have an interest in family law, juvenile law, estate planning/ probate. Interest in other areas of law is also welcome. Travel to counties in South Central NE should be expected. Applicants must either be admitted to practice law in the State of Nebraska or eligible to apply for admission. A cover letter, resume, and references may be submitted to: Tana Fye, Fye Law Office, 713 Fourth Avenue, Holdrege, NE 68949, or ATTORNEY: AV rated law firm with offices in Norfolk and Omaha looking for associate attorney with 1-4 years’ experience for Norfolk, Nebraska location. Practice areas include both civil and criminal litigation. All applications will be held in confidence. Interested candidates may submit inquiries and resume to Kathleen Rockey at Copple, Rockey, McKeever & Schlecht, PC, PO Box 78 Norfolk, NE 68701 or by email to BANKING & FINANCE ATTORNEY: Goosmann Law Firm is seeking a Banking Attorney to join its high-energy firm. Ideal candidates are top performers with at least four years of relevant experience in the areas of banking & related litigation. Candidates must possess outstanding oral & written skills. We offer a fast-paced, family-friendly environment that encourages & rewards excellence. Goosmann places strong emphasis on work-life balance, mentorship & training. Salary & bonus structure are competitive & based on performance. Good benefits. Please submit resume and cover letter to Office Services Manager, Caitlin Rininger at RiningerC@ GOVIER, KATSKEE, SUING & MAXELL, P.C., L.L.O., a midsize law firm in Regency, is looking for solo practitioners and/or small law firms, with portable books of business, to join its growing practice in the near future. The firm and its predecessors have been in existence for over 40 years, enjoy a great reputation, and service a diverse clientele. Please send all inquiries to All inquiries will be held in strict confidentiality. THE NEBRASKA LAWYER


BAYLOR EVNEN CURTISS GRIMIT & WITT, LLP is currently accepting resumes for an Associate Attorney in its Workers’ Compensation Practice Group. The ideal candidate will have 2-4 years of quality work experience with an emphasis in litigation or workers’ compensation. Qualified candidates will preferably be admitted in Nebraska and Iowa or in a position to gain admittance to Iowa in the near future. Motivated candidates will also have demonstrated excellence in developing client relationships, teamwork and the ability to manage a busy practice. Please send resume and cover letter to: Hiring Partner, Baylor Evnen Curtiss Grimit & Witt, LLP Wells Fargo Center, 1248 O Street, Suite 600, Lincoln, NE 68508. All replies will be held in confidence. To learn more about our firm, visit BEATRICE CITY ATTORNEY The Mayor and City Council are accepting proposals for a City Attorney in Beatrice. The City Attorney serves as the legal advisor for the Mayor, City Council, City officers, and the various board and commissions associated with the City. The City Attorney will be required to attend all City Council and Board of Public Works meetings and at times will be required to attend Planning and Zoning Commission meetings. In addition, the City Attorney will prosecute violations of the Beatrice City Code such as: traffic violations, criminal charges, animal violations, building code violations, zoning violations, nuisances, and junked motor vehicle complaints. The City Attorney will represent the City in appellate courts, draft and review ordinances, contracts, and resolutions, and handle other administrative duties as assigned. Salary range for this position is $30.00 to $47.67 per hour. The City of Beatrice offers the following benefits to its employees. • Employer paid health insurance. • Dental and eye care insurance. • Vacation, personal, and medical leave. • Retirement plan and deferred compensation plans. • Basic life insurance and long term disability. • Flex pay health reimbursement account. Apply online at or send resume and cover letter with salary requested to the following address: City Clerk, 400 Ella Street , Beatrice, NE 68310 The closing date for applications is May 22, 2017.

Check out the all new NSBA Online Classifieds! Place your ad or search all ads at


Strict Scrutiny

By Judge Vic Fleming

Across 1 "American ___" 5 Word after tennis or basketball 10 Minor altercation 14 Lion's neck hair 15 Actor Davis in "I'm Not Rappaport" 16 "La Bamba" star Morales 17 "Guilty" or "not guilty" 18 Kojak et al. 19 Loads and loads 20 Certain sibling, briefly 21 Study, as a case 23 Golfer's pegs 25 Anxious 26 "Get out of here!" 28 Refines, as ore 32 Tennessee state flower 33 How many soccer matches end 34 Folding bed 37 Restudy, as a case 40 Female sheep 41 Kicked out 42 Italian soup pasta 43 Loud speaker? 44 Fruit of the Loom rival 45 Zoning units 48 Bridges or Foxworthy 49 Restudy, as a case 54 "___ only me" 57 Ramada rival 58 Smartphone wakening feature 59 Brazil borderer 60 Take a taxi, say 61 Witch-hunt town 62 Rundown area

63 "Don't have ___!" ("Chill out!") 64 Op ed piece, usually 65 "Beware the ___ of March!"






14 17





24 29








33 38



25 28


Down 1 Mischievous 45 46 47 tykes 49 2 Flamboyant 57 Surrealist 60 3 First felony 63 conviction, in some jurisdiction, figuratively 4 Grassy expanse 5 Pigeon homes 6 Dept. of Labor branch 7 Took unfair advantage of 8 Funny one 9 Hart's longtime "Entertainment Tonight" cohost 10 Jackson Hole mountains 11 "The jury ___" 12 Long teeth 13 Questionable 21 Sleep stage 22 "PG-13" giver, say 24 Moderate, with "up" 26 Web page 27 Dad or fish lead-in 28 Nose-in-the-air type 29 Photo finish 30 Inhalant anesthetic of the past 31 Emulated Pinocchio 33 Zero ___ (get near) 34 "Hee Haw" setting







21 23












44 48 50










35 36 38 39 43 44 45 46 47 48 50 51 52 53 55 56 59

Creep like lava Boxing refs' calls Lower in prestige Bread unit Editor of Law ___ Cornish game ___ Greek public square Funny one Sonata movement Kimmel or Fallon Tear down, to Brits "Woe is me" Women, informally ___ code Right on target Grand totals Tire meas.

Answers are found on page 55




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• 10-Year Group Level Term Life insurance option with rates designed to remain level for 10 years up to $1 million in coverage.*

• Member exclusive group rates. • Simplified solutions and hassle-free enrollment. • Member support from dedicated customer service professionals. • Portable benefits enabling you to take your coverage with you, regardless of your employment situation.

Call 1-866-236-6582 or visit *The initial premium will not change for the first 10 years unless the insurance company exercises its right to changepremium rates for all insureds covered under the group policy with 60 days’ advance written notice. This plan is underwritten by The United States Life Insurance Company in the City of New York, NAIC No. 70106 domiciled in the state of New York with a principal place of business of One World Financial Center, 200 Liberty Street, New York, NY 10281. AG-11631

AR Insurance License #100102691 CA Insurance License #0G39709 In CA d/b/a Mercer Health & Benefits Insurance Services LLC

80602, 80603, 80604, 80605 Copyright 2016 Mercer LLC. All rights reserved.

It is not a matter of if, but when. Anticipate.




mitigate your concerns with the wisdom of our knowledge and experience. We consider the unknown, clarify the right path and act accordingly. All to ensure a smooth journey to your success. From founder Steve Henning, to over 200 attorneys across all 21 offices, our roots are firmly grounded in Nebraska and continue to grow nationwide.

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The Nebraska Lawyer Magazine May/June 2017  

The Nebraska Lawyer Magazine May/June 2017 Vol. 20 No. 3

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