Indiana State Bar Association Young Lawyers Section
Chair’s Message: The YLS is off to a fast start … now it’s time for YOU to get involved Mark your calendars for March 26, April 27 and May 21 for upcoming YLS events! By Michael J. Jasaitis
he Young Lawyers Section (YLS) provides opportunities to serve beyond our clients; it allows us (as a group) to extend service to the community and fellow lawyers. During the first quarter of the 20102011 term, the YLS has done some great things. And, with several more events around the corner, the opportunity to participate is ripe. To illustrate, here are a few of the ways that the YLS has effectuated its mission. October 2010 At the ISBA Annual Meeting, the YLS sponsored a community service project to benefit Horizon House, a homeless shelter in Indianapolis for men, women and children. Toiletry items were collected and delivered to the shelter.
December 2010 The YLS and the law firm Bingham McHale cosponsored the ABA YLD Touch 10,000 Meet & Greet event for new lawyers in Indianapolis. This event was designed to offer the opportunity for new lawyers to network with local colleagues and ABA leadership. The YLS helped make the holiday a little brighter for two underprivileged families in need as part of United Way’s Adopt-A-Family program. Members of the YLS Council donated and delivered gifts and money to provide toys, clothes and other household necessities to each family. The YLS teamed up with the James C. Kimbrough Bar Association to sponsor “Santa’s Been Sued,” a program designed to
provide a positive courtroom experience and gifts to underprivileged children in northwest Indiana. The two organizations raised money to provide gifts for each participating child. YLS members helped each child plead his or her case
the senior community. For this project, law students from the I.U. School of LawIndianapolis joined YLS members to help paint a senior center in Indianapolis. More than 25 young lawyers/ law students helped to paint multiple hallways, bathrooms
“The Young Lawyers Section (YLS) provides opportunities to serve beyond our clients; it allows us (as a group) to extend service to the community and fellow lawyers.” on the witness stand, after which Judge William E. Davis determined they were indeed all “nice” this year. January 2011 The YLS participated in the “Young Lawyers Serving Hoosier Seniors” service project, the first of two designed to benefit
and meeting rooms. ISBA President Jeffry A. Lind also joined the YLS and participated in this daylong project. You can access pictures from these events at www.facebook.com/isbayls. The above list is a remarkable testament to the
willingness of young lawyers to participate and serve the community, all the while helping to change how lawyers are perceived by the general public. But this is only the beginning. With three significant YLS events coming up, now is the perfect time for you to get involved. To that end, get your calendars out and mark down these dates: March 26, 2011 | YLS Service Project, Valparaiso, Ind. The Young Lawyers Section and the Valparaiso University School of Law are teaming up for the second service project this year. You are invited to participate in the “Young Lawyers Serving Hoosier Seniors” community service project on Saturday, March 26, 2011. This day of service is a one-of-a-kind (continued on page 2)
Ethics resources for young lawyers
BY ALICE M. MORICAL & PATRICK J. OLMSTEAD JR.
his is the first in a series of articles concerning ethics. We are thankful to Michael Jasaitis for offering us the opportunity to write to the Young Lawyers Section. For our first column, we want to offer advice regarding ethical resources. The Indiana Admission & Discipline Rules and the Rules of Professional Conduct (along with its commentary) are found in your annual volume of West’s Indiana Rules of Court – State. The Rules are also available online at the Indiana judiciary’s website at www.in.gov/judiciary/rules.
An annotated version of the Rules is available on Westlaw and in Title 34 of West’s Annotated Indiana Code. The Rules change. So, it is important to keep reading them at least annually. In addition, some of Indiana’s Rules vary from the Model Rules of Professional Conduct – so you cannot necessarily rely on what you learned in law school. If you have a specific ethical dilemma, and it is not clearly addressed by the Rules or their commentary, then you should first consult your own personal moral
compass. Many “issues” can be resolved by common sense. Applying the Golden Rule and remembering that most ethical issues are viewed from the perspective of the client can help guide you through the thicket. To the extent you have a specific ethical quandary, you should consider hiring personal counsel. The Rules encourage you to seek advice and specifically provide that a lawyer can divulge client confidences “to secure legal advice about the lawyer’s compliance with these Rules.” RPC 1.6(b)(4). (continued on page 2)
The State Bar’s Young Lawyers Section reaches out to a predominately senior neighborhood to help out as part of its “Young Lawyers Serving Hoosier Seniors” service project. Members of the YLS were joined by ISBA President Jeffry A. Lind and law students from the IU School of Law-Indianapolis.
(continued from page 1) opportunity to give back to the community while networking with some of Indiana’s leading legal professionals.
April 27, 2011 | ISBA Judicial Reception, Indianapolis The YLS invites you to honor Indiana’s judges from around the state at the 2011 Annual Judicial Reception at the new JW Marriott Indianapolis on Wednesday, April 27, from 5 p.m. to 7 p.m. This event provides young lawyers a unique opportunity to network with their statewide judges and colleagues. Check out the registration form on page 3. May 21, 2011 | YLS Golf Scramble, Fishers, Ind. You’re invited to tee it up at the YLS Golf Scramble at the Ironwood Golf Club in
(continued from page 1) You should consult your insurance carrier or agent. First, this will place your carrier on notice of potential problems, thus satisfying your obligations under your insurance policy. Second, your carrier or agent can oftentimes direct you to panel counsel who can help guide you through certain problems. You might also consult certain secondary sources, such as: the Annotated Model Rules of Professional Conduct; the multi-volume treatise Legal Malpractice; The Restatement (Third) of the Law Governing Lawyers; and the ABA/BNA Lawyers Manual on Professional Conduct. You can find these resources online or through law school or judicial libraries. There is, of course, a myriad of resources available on the Web. Be sure to read Res Gestae, the Indiana State Bar Association’s official publication, to keep abreast of current events, including Don Lundberg’s monthly
Fishers on Saturday, May 21. This year’s theme will honor past YLS chairs. This golf outing is a terrific networking event, no golf skills necessary! Register today to enjoy a day of fun, food, prizes and great golfing! There are ample ways to get involved, whether it’s to golf, volunteer, sponsor or to attend the dinner only. If you or your firm would like to participate, visit www.inbar.org for more information. These events are three great opportunities for you to get involved and help keep this year’s YLS on pace. And keep in mind, if you have ideas for a joint local event or project, we are certainly open to partnering up with other bar associations and organizations for worthwhile endeavors to benefit our membership and community.
column where he explores ethics topics. As a member of the State Bar, you have access to written ethics opinions, drafted by the Indiana State Bar Legal Ethics Committee. These opinions are available under the “Public Information” tab on the State Bar home page, under “ISBA Legal Ethics Opinions.” There is an “Index by Subject” that allows you to find relevant opinions quickly. You can also search ethics opinions from other states, through the Westlaw database “METH-EO.” This database contains opinions from 19 states (not including Indiana). If you are an ABA member, you have access to ABA Ethics Opinions issued within the past year. You have to pay for older opinions. As an ABA member, you can also call or e-mail “Ethic Search” for guidance regarding ethical dilemmas. The phone number is 1.800.285.2221 (option 8). Also as an ISBA member, you also have access to our Ethics Hotline. The Ethics Hotline is comprised of 15
For more information about any of these events, please contact Carissa Long at 1.800.266.2581 or firstname.lastname@example.org. A quick sidenote: Importance of civility Indiana Supreme Court Justice Steven David recently spoke as the keynote speaker at the Lake County Bar Association Installation Dinner on Jan. 21, 2011. In addition to thanking him for
officers of the court with responsibilities. We have an obligation to be professional with opposing parties and counsel, as well as to the courts and the public. Among other things, this obligation includes civility, which is crucial to the fair administration of justice and conflict resolution. Civility in our practice encourages effectiveness in our practice and serves to benefit our client representation.
“While reasonable minds may fervently disagree, civility should transcend any difference in opinion.”
degrades our system and the profession. While reasonable minds may fervently disagree, civility should transcend any difference in opinion.
As newer lawyers, let’s make an effort to aim for a higher standard of attorney behavior to enhance our service. Uncivil and unprofessional conduct is not only a disservice to the individuals involved, it
Michael J. Jasaitis is an attorney at the Crown Point firm Austgen Kuiper & Associates and serves as the 2010-2011 chair of the Indiana State Bar Association’s Young Lawyers Section. Michael can be reached at mjasaitis@ austgenlaw.com.
making the trip, let me take a second to comment on one of his messages that we young lawyers should never forget– civility in the practice. Lawyers of all ages and experience levels are attorneys from the Legal Ethics Committee, organized by county. The Ethics Hotline members can help you navigate through the Rules of Professional Conduct. You can find the Hotline member for your county by calling the State Bar or the Disciplinary Commission. If you have further questions or an idea for a future article, please call or e-mail us. Alice M. Morical is a partner at the Indianapolis firm Hoover Hull. Alice can be reached at email@example.com. Patrick J. Olmstead Jr. is an associate at the Indianapolis firm Hoover Hull. Patrick can be reached at polmstead@ hooverhull.com.
How to manage client expectations BY ERIKA K. SINGLER
eeting with actual clients is an exciting and scary proposition for many young lawyers. Law students often spend their clerkships dreaming about the day when they will meet their first clients. But what many young lawyers realize soon after being sworn-in is that they still have a lot to learn about how to manage client expectations to ensure a better work life and happier clients. Clients most often come to attorneys with problems, and each has his/her own expectation of how the attorney should handle the problem to obtain the best outcome or resolution. However, since clients often do not understand the realities of the law or litigation, there can often be a disconnect between their expectations and the reality of what the attorney believes he/she can accomplish. One of the most important parts of an initial consultation is to
make sure that the client has a clear understanding of what is realistic when it comes to resolving their issue (e.g., it’s important that a litigation client understand that each party typically pays their own attorney fees). The attorney should clearly outline with the client the plan to tackle the problem, when they can expect to hear from the attorney and the preferred method of contact if the client needs to reach the attorney. In addition, clients should be advised as to how long it will take to respond to a voicemail message. Failure to do this may lead to a client who begins to feel neglected and irritated after several hours pass without a response. Managing client expectations is one of the most important skills attorneys apply in the practice of law. When clients have realistic expectations of how their issue can or cannot be resolved, they are less likely to be disappointed with the (continued on page 3)
EXPECTATIONS The Young Lawyers Section invites you to attend the annual
Indiana State Bar Association Judicial Reception Wednesday, April 27 5:00 - 7:00 p.m.
JW Marriott Indianapolis 10 South West St. Indianapolis, IN 46204
Don’t miss this unique opportunity to network with your local judges and colleagues. Firms may sponsor this special event, or you may purchase individual tickets. Sponsoring organizations receive one complimentary ticket per $150 donation and will be recognized in State Bar publications. Call the ISBA at 317.639.5465 or 800.266.2581 for more information about sponsoring this event. Go to www.inbar.org to download the registration form. FREE - Tickets for judges are complimentary! $20 - ISBA Member or any spouse/guest of judge
$30 - Non-ISBA Member
Name____________________________________________________________________________________________ Name____________________________________________________________________________________________ Name____________________________________________________________________________________________ Phone___________________________________________E-mail___________________________________________
(continued from page 2) outcome of the case and are more likely to pay their bill and return with future legal needs. Erika K. Singler is a partner at the Carmel firm Halcomb Singler. Erika can be reached at firstname.lastname@example.org.
AG’s food drive March 14-31
ttorney General Greg Zoeller has joined forces once again with the ISBA and Feeding Indiana’s Hungry for the third annual March Against Hunger food drive, which is scheduled for March 14-31. The March Against Hunger is a competition between law firms to raise donations – either of nonperishable foods or direct monetary donations – for Indiana’s 11 regional food banks. The Attorney General’s Cup will be awarded to the biggest donating firms in three categories: large firm division; small firm and solo practitioner division; and public/nonprofit division. Visit http://www.in.gov/ attorneygeneral/2773.html to sign up to participate in this year’s statewide competition. Firms may sign up anytime before the competition begins or during the collection period of March 14-31.
Payment Information Amount $________ (check made payable to Indiana State Bar Association) Charge my reservation(s) to:
Card Number__________________________________ 3 or 4 digit security code __________ Exp. Date_____________ Signature _________________________________________________________________________________________
Fax form to 317.266.2588 or mail to ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204 Young Lawyers Section: Judicial Reception - 4/27/2011
YLS spreads holiday cheer to underprivileged BY ANTHONY M. ROSE
he Young Lawyers Section (YLS) is oftentimes referred to as the “service arm” of the State Bar, and this holiday season was no exception. The YLS offered several opportunities for its members to give back to the community, and the response was unprecedented.
In December, the YLS joined forces with the James C. Kimbrough Bar Association to sponsor “Santa’s Been Sued,” an educational program that provided gifts for underprivileged children in northwestern Indiana. The children were chosen based on their affiliation with the Boys & Girls Clubs of Northwest Indiana in Gary. A big thanks to Shelice R. Tolbert, president of the James C. Kimbrough Bar Association, for organizing this successful event. Also, a special thanks to Hon. William E. Davis, of the Lake County Superior Court, for playing an integral role in this program. Judge Davis took the children on a behind-thescenes tour of the courthouse and hosted a pizza dinner in his courtroom before retiring to his chambers to return as Judge Santa. The children were each called to the witness stand, donning a light-up Santa hat, and sworn in to plead their case. Area attorneys Michael J. Jasaitis, Austgen Kuiper & Associates, YLS Chair; Michael
E. Tolbert, Hoeppner Wagner & Evans, ISBA Treasurer; Shontrai D. Irving, State Farm Litigation Counsel; Jason A. Cichowicz, Berger Gammage & Associates, YLS Chair-Elect; and Shalonda D. Crump, The Walker Law Group, took turns advocating on behalf of the children to establish whether they were naughty or nice. After much deliberation, Judge Santa found that each child was indeed nice this year and presented them with a gift. This program was designed to serve as a positive experience for kids who usually would only be in court when something bad has happened in their life. Through donations across the state, more than $700 was raised to pay for toys for the kids. The children were ecstatic about the experience they received and will take with them some amazing memories. Also recently, the Young Lawyers Section helped make the holiday a little brighter for an Indianapolis family in need as part of United Way’s AdoptA-Family program. On Dec. 10, YLS Chair Michael J. Jasaitis and Secretary/Treasurer Reynold T. Berry delivered stacks and stacks of wrapped toys, clothes and other household necessities to a single mother of two children, a 13 year-old boy and a 5 year-old girl. In addition to receiving toys on their
“wish list” (to include a Polly Pocket cruise ship, art supplies and movies), the family was provided warm winter clothing, gift cards and much more. The family was beyond excited about the generosity of everyone involved. A second family was adopted by members of the YLS and the St. Joseph County Bar Association’s New Lawyer Committee during the holiday season. The adopted family had encountered difficult health, financial and domestic issues over the past year, and several attorneys and firms generously donated to make this program a success. Between toys, gift cards and household necessities, the family was overwhelmed by the kindness of the legal community. Members of the bar were pleased to offer a bright spot in what had been extraordinarily difficult times for the children and families involved. With your help, the YLS is hoping to continue these programs next year to continue spreading holiday warmth in our communities. Anthony M. Rose is an associate at the South Bend firm Leone Halpin, and serves as the District 3 Representative of the Indiana State Bar Association’s Young Lawyers Section. You can e-mail Tony at arose@ leonehalpin.com.
YLS Chair Michael J. Jasaitis (right) and YLS Secretary/Treasurer Reynold T. Berry (left) deliver stacks of wrapped presents to an Indianapolis family in need through United Way’s Adopt-A-Family program.
Members of the Young Lawyers Section drop off gifts for13-year-old Brian (left) and 5 year-old Christin (right), an Indianapolis family in need.
The YLS and the Kimbrough Bar team up to deliver holiday cheer to underprivileged children on Dec. 17 at the Lake Superior Court. Kneeling on the left is ISBA Treasurer Michael E. Tolbert, Hoeppner Wagner & Evans, with his attorney wife Shelice R. Tolbert, Kopka Pinkus Dolin & Eads. On the far right, from right to left, is Shontrai D. Irving, State Farm Litigation Counsel; YLS Chair Michael J. Jasaitis, Austgen Kuiper & Associates; YLS Chair-Elect Jason A. Cichowicz, Berger Gammage & Associates; and Shalonda D. Crump, The Walker Law Group. Hon. William E. Davis, Lake County Superior Court, played the role of Santa.
Amendments to Rule 26 of the Federal Rules of Civil Procedure By Jarit Loughmiller, CPA/CFF, CVA, CFE
Pre-Dec. 1, 2010, Rule 26 The limited to no work product protection of Rule 26 in its pre-Dec. 1, 2010 form ultimately led to complete discoverability of all forms of communication between the expert witness and counsel (e.g., draft expert reports, correspondence, e-mails, discussions, meeting notes, etc.). As a result of this interpretation, attorneys and expert witnesses went to great length to comply with Rule 26, while at the same time attempting to avoid the creation of discoverable records. An example of such practices included counsel
hiring multiple sets of experts, a “consulting expert” and a “testifying expert” on some litigation assignments. The consulting expert was hired to assist in development of strategy and preliminary analysis, while creating no discoverable record. Whereas, the role of the testifying expert would be to serve as the expert witness providing an expert report and trial testimony, while avoiding disclosure of communication between counsel and the consulting expert. Analysis of modification The amendment to Rule 26 impacts expert testimony primarily in the following areas: 1. Discoverability of expert report drafts • Pre-Dec. 1, 2010 – Effectively all drafts shared between the expert witness and counsel were subject to discovery, regardless of form. • Post-Dec. 1, 2010 – Expert witness drafts
are generally no longer subject to discovery. 2. Communication between counsel and expert witness • Pre-Dec. 1, 2010 – Effectively any communication between the expert witness and counsel was subject to discovery. • Post-Dec. 1, 2010 – Communications between expert witness and counsel are protected, with limited exceptions with respect to: 1) compensation being paid to the expert witness; 2) facts or data considered by the expert witness provided by counsel; and 3) assumptions relied upon by the expert witness provided by counsel. 3. Information and data considered by the expert witness • Pre-Dec.1, 2010 – It was necessary for the expert
witness to disclose all data or other information considered (a very broad interpretation). • Post-Dec. 1, 2010 – The expert witness is only required to disclose facts or data considered.
American Institute of Certified Public Accountants, and other such organizations. Expert witnesses will continue to be subject to the other provisions of Rule 26, including the disclosure of a complete statement of the opinions to be addressed by the expert witness at trial, qualifications, prior testimony experience, and compensation.
What to expect The intent of the modification of the Rule 26 amendment is to enhance the ability of the expert witness to communicate with counsel throughout the various stages of the litigation engagement. In addition to federal court, most state courts are expected to adopt the Rule 26 amendment; however, the expert witness should confer with counsel to understand each state’s adoption of the Rule 26 amendment on a case-by-case basis.
Overall, the Rule 26 amendment is expected to improve the use of expert witnesses in litigation matters, while saving money for the client through enhancements to the overall communication process between the expert witness and counsel. Jarit Loughmiller is a manager in the Business Valuation/ Financial Forensics Group at Blue & Co. His primary focus is in the area of business valuations, litigation support/ expert testimony, and other related consulting assignments. You can e-mail Jarit at email@example.com.
The amended version of Rule 26 has received widespread support from the litigation community, including the U.S. Department of Justice, the American Bar Association, the American College of Trial Lawyers, the
ISBA DISTRICT MAP St. Joseph
Dubois Crawford Perry
PAs and other individuals providing expert testimony in federal court are subject to Rule 26 of the Federal Rules of Civil Procedure (“Rule 26”). Effective Dec. 1, 2010, one of the most significant modifications to expert witness discovery provisions under Rule 26 went into place, the result of which will impact expert testimony in federal court assignments.
Young Lawyers Section Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204
ISBA - YLS Calendar & Conferences March 4-6, 2011
Womenâ€™s Bench Bar Retreat | Culver
March 26, 2011
YLS Service Project | Valparaiso
April 27, 2011
Judicial Reception | Indianapolis
May 1, 2011
Law Day 2011
May 12-14, 2011 YLD Spring Conference | Las Vegas, Nev. May 21, 2011
YLS Golf Outing | Indianapolis
June 2-4, 2011
Solo & Small Firm Conference | French Lick
Aug. 4-6, 2011
ABA Annual Meeting | Toronto, Canada
Oct. 19-21, 2011 ISBA Annual Meeting | French Lick
EDITORS Anthony M. Rose firstname.lastname@example.org
Alaina S. Byers email@example.com Indiana State Bar Association Young Lawyers Section
Young Lawyers Section 2010 - 2011 OFFICERS Chair Michael J. Jasaitis, Crown Point firstname.lastname@example.org Chair-Elect Jason A. Cichowicz, South Bend email@example.com
District 6 Casey C. Kannenberg, Fishers firstname.lastname@example.org District 7 Thomas S. Clary II, Terre Haute email@example.com
AT LARGE (continued) Benjamin D. Fryman, Valparaiso firstname.lastname@example.org David Lynch, Sunman email@example.com
District 8 James E. Gentry, Jr., Evansville firstname.lastname@example.org
Andrea Ciobanu, Indianapolis email@example.com
District 9 Aaron M. Johnson, New Albany firstname.lastname@example.org
J. Todd Spurgeon, New Albany email@example.com
District 1 Ryan R. Kutansky, Highland firstname.lastname@example.org
District 10 Kristine M. Kohlmeier, Bedford email@example.com
Chasity Q. Thompson, Indianapolis firstname.lastname@example.org
District 2 Michael E. Tolbert, Merrillville email@example.com
District 11 Alex Gude, Indianapolis firstname.lastname@example.org
David A. Adams, Indianapolis email@example.com
District 3 Anthony M. Rose, South Bend firstname.lastname@example.org
Secretary/Treasurer Reynold T. Berry, Indianapolis email@example.com
District 4 Alisa J. Pearson, Fort Wayne firstname.lastname@example.org District 5 Candace Armstrong, Brook email@example.com
Alaina S. Byers, Indianapolis firstname.lastname@example.org
COUNSEL TO THE CHAIR
MARION COUNTY BAR LIAISON
INDIANAPOLIS BAR LIAISON
PRO BONO COMMISSION LIAISON Andrea Ciobanu, Indianapolis email@example.com
IMMEDIATE PAST CHAIR
Jennifer A. Elston, Evansville firstname.lastname@example.org
Angela L. Freel, Evansville email@example.com
Matthew J. Light, Noblesville firstname.lastname@example.org
ISBA STAFF LIAISON
Tonya R. Shaw, Washington email@example.com
Carissa Long, Indianapolis firstname.lastname@example.org