Tulsa Lawyer Magazine January 2016

January 2016

Professionalism for judges and lawyers means possessing, demonstrating and promoting the highest standards of Character, Competence, Compliance, Courage, Civility and Citizenship.

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In this Issue Page...

Tulsa Lawyer

2 4

7 Cubana Chronicles The Parrot...

18 Judicial & Legislative Reception Event Photos

Brown Bag CLE

22 Brown Bag CLE

8

12

Lawyers Fighting Hunger Sucess

Dealing with Speaking Objections

24

26

PROBONO SERIES Part II

28 Grapevine

30 Classifieds 32 Submission

Holiday Challenge Success

JANUARY

Guidelines

THE TULSA COUNTY BAR ASSOCIATION WOULD LIKE TO THANK ALL OF THE ATTORNEYS AND PROFESSIONALS WHO GRACIOUSLY DONATED THEIR VALUABLE TIME TO PRESENT AS SPEAKERS DURING THE 2015 TCBA WINTER CLE SEASON.

Gerald M. Bender, Rena Cook, Dru R. Tate, Stephanie T. Gentry, Courtney Bru, Scott P. Kirtley, Judge Paul J. Cleary, N. Scott Johnson, AJ Ferate, Fred Buxton, Patrick J. Cremin, Keith A. Jones, Carl P. Funderburk, Janae M. Castell, Patrick H. McCord, Michael E. Nesser, S. Douglas Dodd, John (Jack) W. Harker, Philip R. Feist, Henry G. Will, Clint T. Swanson, Thomas J. Pauloski, Rachel E. Lenehan, James C. Milton, Steven K. Balman, Barry Derryberry, Bryan Dupler, James L. Hankins, Marvin G. Lizama, Sabah S. Khalaf, Sheila J. Naifeh, Anthony Gorospe, E. Zach Smith, Travis D. Horton, Kara M. Greuel, April Ferguson, Justice Noma Gurich, Judge Jefferson D. Sellers, Judge Daman Cantrell, Judge Mary Fitzgerald A SPECIAL THANK YOU TO TRAVIS D. HORTON, 2015 CLE CHAIRMAN ADDITIONALLY, THE TULSA COUNTY BAR ASSOCIATION WOULD ALSO LIKE TO THANK THE MODERATORS AND ORGANIZERS WHO MADE THESE WONDERFUL PROGRAMS A REALITY: HENRY G. WILL, PAUL D. BRUNTON, SHENA BURGESS, M. SHANE HENRY, AND WILLIAM S. LEACH THANK YOU FOR PROVIDING COMPELLING CONTINUING LEGAL EDUCATION TO YOUR TULSA COMMUNITY! IF YOU WOULD LIKE TO BE A PRESENTER IN 2016 PLEASE CONTACT BETHANY LYON.

BY BETHANY LYON CONTINUING LEGAL EDUCATION & MEMBERSHIP TULSA COUNTY BAR ASSOCIATION (918) 584-5243 EXT 223 BETHANYL@TULSABAR.COM

Tulsa Lawyer 3

The Cubana Chronicles The Parrot: A Tale of Two Witnesses

By Jim Hinds

I strolled into a watering hole across the street from the courthouse one afternoon, only to find a character we’ll call N.D. sitting at the bar. He was a fiftyish, stout and sour divorce lawyer whose questionable maneuvers were notorious. N.D. hardly ever spoke to me before that afternoon encounter at the Inn Court Lounge. He was always confrontational at a time when the profession was fairly collegial. His know-it-all attitude earned him the nickname “No Doubt.” Much to my surprise he invited me to join him for a drink. “How are things?” I finally asked, breaking the silence.

“I’ll tell you how things are. I just got the biggest screwing yet.”

“Divorce case?” I asked.

“I ought to appeal. Teach him to be cute. He makes a joke out of the process.”

A transcript of the Judge’s ruling, which had been issued on a cloudless September 1963 afternoon during the Friday docket was already circulating around town, as I learned later.

The judge had attended night school in his forties while working at Douglas Aircraft. He ran for judge, then an elected position, immediately out of law school. He defeated a well- respected incumbent with some help from the unions. To everyone’s further surprise, he became a thoughtful and respected jurist.

In this particular case, as in most contested divorces, the evaluation of the property divided between the parties was a key element of the case. N.D. argued that the family parrot awarded to

the defendant husband was worth $10,000.00, about $76,000

today. Coincidentally, $10,000 was the exact value of the family

home. N.D. wanted the house for his client in exchange for the parrot, which he presented in the courtroom.

But the judge had a question, as N.D. recalled over a cocktail that afternoon.

This article submitted by Tulsa attorney and fellow Cubanan Jim Hinds was “inspired by true events” and edited for publication.

Other war stories related to practicing law in Tulsa are welcomed. ~ Larry Yadon 4 Tulsa Lawyer

“N.D., are you seriously contending this parrot is worthy of its guidance and direction. worth $10,000.00?”

It is a judge’s duty to observe the demeanor and

“I am Sir, as an officer of this court, and a person countenance of witnesses. I must consider the testimony of much experience in evaluation of marital estates. I of the witness presented as an expert in ornithology. It is urge the Court to not to consider the popularity of the not right for me to make personal comments about the decision, but rule in favor of this poor woman and give appearance of witnesses but under aggressive cross-exher the homestead.” amination, the witness was sweating profusely, perhaps because of the heat. I am reminded of the quote from

The judge, who had probably consumed a half- Dickens, wherein the witness ‘endeavored to feign an pint of orange vodka at lunch, responded at length. easiness of manner, which, in his then state of confusion, gave him rather the air of a disconcerted pickpocket.’

“Justice is not to be swayed by the popularity of The judge continued. “Appearances can be deceiving and its pronouncements. Politics is like a small skiff lovingly many an honest man could be confused with a criminal searching for the directions of the political winds. Un- defendant in the pressurized confines of a witness stand. fortunately this office owes a nod to the sanctity of justice I must balance the impeachment of that witness because and the political considerations that give birth to its oc- of his past record with the likelihood of his truthfulness. cupants.”

Public intoxication is only a misdemeanor and not a transgression that involves moral turpitude. The Court

All in attendance leaned forward, squinting at the does not consider his evidence impeached because of judge through a blue haze of cigarette smoke to capture those offenses, as numerous as they might have been. His each word. “I am frankly having trouble with the value expertise in matters bird-like is thin at best. The witness you are asking the Court to place on this bird” said the has worked in a pet shop but professes no superior or judge. unique titles or degrees. Nevertheless, his experience on the ground, so to speak, is given the benefit of the doubt.

N.D. tried to impress the Judge with a delicately I will give the parrot a generous value of $5,000.00.” turned phrase.

N.D. was overjoyed. He might be awarded an at “Your Honor, consider the matter of the lowly torney fee as the prevailing party. carrot, in and of itself a humble vegetable. Combined with the goodness of a roast marinated in excellent wine The Judge now finished. “Since the defendant has and spices, the golden vegetable arises to a succulent expressed no interest in the bird, I am therefore awarding tastiness. The best rabbit that ever hopped through this you the parrot as your attorney fee. I find your reasonworld would not be worthy of such a carrot. This well able fee for this case to be $1,500.00 and you will remit trained parrot will provide companionship and joy to the $3,500.00 to the defendant when you take possession of defendant.” One of the lawyers in the audience tried to the bird or take the $1,500.00 as a cash award and the muffle a burp, just as the judge responded. parties can do what they will with the animal.”

“Your client presented a witness as to the value of the parrot. The gentleman described a bird of such eloquence and chattiness that its delicate wings lifted its owners into a sky of contentment and comfort. The Court allowed that same bird to be viewed on a perch and appear as a witness for the defendant. It was noted that the bird remained mute through its time with us, either besieged with shyness or a feeling that we were un-

We sat for a moment of sullen silence in the darkened bar. Finally, N.D. gave me his assessment.

“He doesn’t have jurisdiction to award anything but money. He can’t start dividing up parts of the estate and giving it to lawyers.”

“So you are going to appeal?”

“I can’t. I’ve already spent the $1,500.00.”

Tulsa Lawyer 5

TCBFCommunityOutreach continues its support of Barre by assisting with the Nutcracker performance.

For the past 15 years, Tulsa Ballet has partnered with area social service agencies to identify members of our underprivileged and at-risk student population at the holiday season. In coordination with these agencies and through the generosity of our supporters, tickets are provided free of charge with the intent of filling up the PAC for the Thursday evening performance of The Nutcracker.

6 Tulsa Lawyer

TCBA CLE SERIES: BROWN BAG

Holistic CRIMINAL DEFENSE

Presented by Robert Nigh, Jr. Tulsa County Public Defender's Office

THURSDAY, JANUARY 28, 2016 TULSA COUNTY COURTHOUSE ROOM #605 CREDIT: 1.0 HOURS CLE TCBA MEMBERS $30 NON-MEMBERS $45 AUDIT $5 JUDGES (TCBA) $0

SCHEDULE: CHECK-IN 11:45 AM PRESENTATION 12:00 - 1:00 PM

MATERIALS EMAILED WEDNESDAY LATE/WALK-INS SUBJECT TO LATE FEE REGISTRATION: TULSABAR.COM (918) 584-5243

750 Tulsa Area Families Receive Thanksgiving Meals Oklahoma Lawyers Fighting Hunger once again distributed Thanksgiving turkeys and thanksgiving bags in select locations across Oklahoma. Through the combined effort of Lawyers Fighting Hunger and over 100 Oklahoma law firms, businesses, and individuals, statewide 7000 Oklahoma families received a Thanksgiving meal.

meal this year across the state,” said Hugh M. Robert, of Sherwood, McCormick & Robert, the co-founder of Lawyers Fighting Hunger.

The Tulsa County Bar Foundation and the Oklahoma Association for Justice have also continued to be very significant supporters of the annual event. There are many other groups who help make the annual distriTulsa claimed victory and bragging rights this year in bution possible, not just attorneys. All Souls Unitarian the statewide competition with OKC, Norman, Mus- Church, the Tulsa Fire Department, and Wal-Mart contang, and El Reno. Each year the five cities compete for tributed financially and committed to provided volunbragging rights on who can raise the highest amount teers. of funds to feed the people in their respective cities.

“While we claimed bragging rights of beating OKC, Arnie’s Bar again provided 500 hotdogs and 500 hamNorman, El Reno, and Mustang, the fact is that over burgers along with soda, bottled water, and the music.

7000 families will be able to enjoy a Thanksgiving Iron Gate helped screen the 750 families by partner-

ing with other agencies such as disabled vet groups, Women in Recovery, Lindsay House, Mental Health Association in Tulsa housing, A Way Home for Tulsa, Emergency Infant Services, Youth Services, and many more.

“We were able to do the volume we are in large part due to the partnership with the Regional Food Banks and our organization.

The Food Bank helps secure the lowest possible prices combined with their purchase power and negotiation skills which allows us to feed more families each year” Rachel Gusman, of Graves McClain, and Lawyers Fighting Hunger Board Member. Gusman went onto to say “statewide we broke the $100,000.00 mark for the first time since this program started which is incredible.”

Since the inception of the program, Lawyers Fighting Hunger has given almost $500,000.00 and over 25,000 families have received a Thanksgiving turkey as part of the Lawyers Fighting Hunger program statewide.

Lawyer Referral Service Notice: The TCBA Lawyer Referral Service is currently seeking attorneys who practice in the following areas of law:

Landlord/Tenant Employment Please consider joining us to meet the needs of these clients. Many are in need of simple answers and your expertise can make a difference for them.

Where would you go if you were in their shoes?

Contact Julie 918-584-5243 Ext. 221, juliec@tulsabar.com

The Bar Center will be closed, Monday, January 18, 2016 in observance of Martin Luther King Day.

Tulsa Lawyer 11

Dealing With Speaking Objections In Trial Shane Henry & Aaron Bundy, FRY & ELDER I. Why are we talking about speaking objections?

is this court's position on speaking objections?"" One of the authors tried that. The judge turned and pointed his finger out as his veins bulged on his forehead. "You know this court’s position on speaking objections!" he yelled . "NOW DEAL WITH IT!!!" the judge finished.

The speaking objections continued. In another trial, opposing counsel was continually making speaking objections both during direct and cross examinations.

The judge was asked to get involved and shut the lawyer down. The judge very clearly stated that he did not have time to explain his position on speaking objections to either of the lawyers. A request was then made to strike opposing counsel’s “testimony,” and the judge explained that the speaking objections were not testimony and instructed the questioner to move on.

Trial work is messy.1 The instructions to high school students involved in the OBA’s mock trial program include this warning: “Unexpected obstacles in the course of a trial are the rule rather than the exception.” To be successful, trial lawyers must prepare to deal with common issues that arise in trial. Trial preparation includes anticipating possible problems, and trial practice includes dealing with problems as they occur, whether anticipated in advance or not. Speaking objections are a recurring problem in trial. We were prompted to write this article as a result of failure: failure in dealing with speaking objections at trial, and failure to effectively present our client’s cases at trial as a result of problems with speaking objections.

Trial judges generally prefer that us trial lawThis article is about defining and recognizing speaking yers deal with our own problems. Asking the judge to objections and addressing them in various ways. get involved is a last resort, and even then, doing so almost always ends badly. Fortunately, there are ways

From time to time, the authors have had prob- we can effectively deal with speaking objections which lems dealing with speaking objections at trial, so we we will discuss below. asked some veteran trial lawyers about how to deal with it. Answers varied. One said, "After the second or II. What is a speaking objection? third speaking objection, ask the judge politely, "What

Making objections is one of the important parts

1

“Jury trials are not an exact science. A lawyer’s decision about what witnesses to call or not call at trial is an exercise of professional judgment, and lawyers must make informed and sound judgment calls in the heat of the moment at trial. . . .” State ex rel. Oklahoma Bar Association v. Ward and State ex rel. Oklahoma Bar Association v. Starr, 2015 OK 48, ¶ 45 (emphasis added).

2 “It is a well established rule of this Court that defense counsel must object, in a timely manner, to objectionable statements. Failure to do so waives all but plain error.” Bland v. State, 2000 OK CR 11, ¶ 89, 4 P.3d 702, 726, citing Smallwood v. State, 1995 OK CR 60, ¶ 38, 907 P.2d 217, 229; Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 693.

12 Tulsa Lawyer

of a trial lawyer’s job. Not only is a timely objection a crucial part of preserving an issue for appeal,2 but, properly made, an objection can keep evidence out and determine the winner and the loser. It is important for us as trial lawyers to know why, when, and how to make objections.

and at trial is the abuse or misuse of objections. A judge is generally not present at deposition, so the process may be perceived as a free-for-all. At trial, if our opponent believes or senses that the judge may not get involved in some respect, bad behavior may ensue as well. A speaking objection is where, under the guise of making an objection, the lawyer makes argument or ELEMENTS OF AN OBJECTION otherwise makes statements not based on the rules of evidence. At trial, our opponent may sometimes try to

“An objection must be courteous, timely, and use speaking objections to interrupt questioning, disspecific.”3 A proper objection includes the following tract the factfinder, make argument, or even coach the three elements: witness. This tactic often takes the following form: the lawyer says “Objection” followed by a long tirade about 1.

The lawyer addresses the court and indicates the question, the questioner, any part of the lawsuit,

that he or she is raising an objection. “Your or even a personal opinion. Although such actions are

Honor, I object,” or, “Objection, your Honor.” unprofessional and an inappropriate use of objecting, in the heat of the battle it can be difficult to deal with the 2.

The lawyer specifies what he or she is object problem unless we recognize what is happening and

ing to, e.g., the question or testimony. “The know what to do about it.

question calls for . . .” or, “The witness . . .”

Speaking objections can occur both during 3.

The lawyer specifies the legal ground for the direct and cross examination. Examples are as follows:

objection, that is, the generic evidentiary

doctrine the proponent is violating. “Hearsay.”

CROSS EXAMINATION

“Non-responsive.” “Speculation.”

Question: You went to the strip club in July?

To be effective, an objection must be timely and state

Counsel: Objection. If you recall. the specific ground of objection if the specific ground is not apparent from the context. See Okla. Stat. tit. 12 Answer: I don’t recall. § 2104. In other words, if it is clear from the context

Question: You went to the strip club at least that opposing counsel’s question calls for hearsay, it

three times in July? may be sufficient to stand and simply say, “Objection.”

If the context is unclear, if there is no ruling, or if the Counsel: Objection. Don’t guess. court ask for the basis, to say, “Objection; hearsay.”

Answer: I’d only be guessing and I’m not going

to do that.

A problem trial lawyers encounter in discovery

Question: You went to the strip club at least

once in July?

3

Counsel: Objection, the witness can answer the

Imwinkelried, E. (2002). Related Procedures, p. 13. In Evidentiary Foundations (5th ed.). Newark, NJ: LexisNexis.

Tulsa Lawyer 13

question if he remembers how many times he went to the strip club and in what months.

Answer: I don’t remember how many times I went to the strip club in any given month.

For further reading, trial lawyer Eric Guster wrote an excellent article about what speaking objections are and what’s wrong with them in his commentary to the George Zimmerman trial.4 III.

What do the rules say?

DIRECT EXAMINATION

Question: What, if any, payments did you make on the construction loan during July?

Counsel: Objection. The evidence does not

support that the plaintiff made any payments on the construction loan and this testimony should not be allowed.

Question: How many times did you visit your daughter at the hospital during June?

Counsel: Objection. This party does not tell the truth and the court should not believe his testimony.

Question: What relief are you requesting from the court in this case?

Counsel: Objection. This dispute is all her fault and since she caused this mess she shouldn’t be entitled to any relief. The defendant is the party that has been wronged, not this greedy plaintiff. Also, the question calls for a narrative statement and should be stricken.

4

Not much. Some states and courts have rules and statutes that provide that an objection made in a deposition or at trial must be made specifically and concisely rather than in an argumentative or suggestive manner. The Oklahoma Evidence Code implies this to a degree at Okla. Stat. tit. 12 § 2104. Various local and “chamber” rules also have limits on objections in discovery or at trial. Federal Judge Claire Eagan’s Trial Rules require, When you object in the presence of the jury, make your objection short and to the point.

Do not argue the objection in the presence of the jury, and do not argue with the ruling of the Court in the presence of the jury. Do not make motions (e.g., motion for mistrial) in the presence of the jury. Bench conferences should be kept to a minimum.5 There are other local rules and opinions dealing with speaking objections in a limited context, such as at deposition. See, e.g., Part A of Rule CV 20.5 of Rules for the District Court, Tulsa County, Oklahoma;6

Guster, E. (2013, July 2). George Zimmerman Trial: What Is A Speaking Objection? http://newsone.com/2625255/

george-zimmerman-tria-speaking-objection/

5 6

http://www.oknd.uscourts.gov/docs/834029f6-6b75-4725-9265-c5d5e28de143/Trial_Rules_Eagan.htm, Rule 8 “Objections to questions during an oral deposition are limited to “Objection, leading” and “Objection, form.” Objections to testimony

durig the deposition are limited to “Objection, nonresponsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the deposition to be later raised in court. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing court or other sanctions.”

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Damaj v. Farmers Ins. Co., Inc., 164 F.R.D. 559 (1995).

More problems may be encountered when a court does not have a specific local rule or when the trial judge is lax about enforcing the rules.

Even though the rules are often not as specific as we might like, virtually all trial lawyers know that speaking objections are improper, because, rather than being founded in evidence, speaking objections truly are improper argument or unauthorized communication with the witness or the jury. As speaking objections characteristically consist of strategically-made, impermissible arguments, opinions, or editorial comments, they are clearly distinguishable from legitimate objections that simply state legal grounds for the preclusion of evidence. Where an objection truly requires more than a simple statement of such legal grounds, experienced trial lawyers know they need to seek a sidebar

7

conference or to ask the court to excuse the jury so that more thorough arguments can be made.7 IV.

What can we do about speaking objections?

There is not a single perfect solution. Obviously, trial lawyers must know the rules of evidence so as to recognize when an objection truly is appropriate by either side. Further, counsel should familiarize him or her self with local and chamber rules about courtroom and trial conduct. Non-binding authority such as that cited in this article, including Damaj, supra, and articles such as Eric Guster’s may be persuasive to a trial judge in the context of a pretrial motion or sidebar conference, so it may be helpful to prepare and carry to continued on page 16

Charles E. Joern, Jr., & Robert W. Vyverberg, Protecting the Record and Perfecting the Appeal 96 (2000) at 1231; Okla. Stat. tit. 12 § 2104(C).

every trial a “pocket brief” or memo on the issue of speaking objections. As every case is different, we must always be aware and listening to what is happening in order to make the best possible decision about which of the below tactics to employ in any given moment.

Question: What, if any, payments did you make on the construction loan during July?

Where trial is approaching in a case where speaking objections were a problem in depositions, a pretrial motion may be the first appropriate way to bring the issue before the court, as there will be a historical basis for the motion in the deposition transcripts. The relief requested in such a motion may include a proposed order that the objecting lawyer says, "I object,” but nothing more until the witness is allowed to leave the room, whereupon the objecting lawyer may state whatever he/she wants for as long as needed. When the objection is complete, the witness may return. A lawyer who will not agree to this should be required to explain to the judge why the witnesses need to hear (and be coached by) the speaking objections. The judge may take such a motion under advisement or even overrule the motion at the pretrial stage, but the effect of bringing the issue to the judge’s attention before the trial even starts can be powerful and make us more persuasive when addressing a speaking objection problem once trial is underway.

Questioner: Objection. Counsel is making improper argument.

When a lawyer exceeds simply making an objection and moves into argument, one may interrupt the lawyer to object to the nature of the speaking objection. In so doing, rather than refer to it as a “speaking objection,” be as specific as possible: ‘argument,’ ‘improper commentary on the evidence,’ ‘editorial comment,’ ‘expression of opinion,’ or ‘coaching’. To use and modify a previous example:

8

Counsel: Objection. The evidence does not sup port that . . .

Or, Objection. Improper commentary on the evidence.

If a pattern develops, or where there has been more than one speaking objection during the trial, the next approach may be to request a sidebar and there identify and object on the record to the speaking objections that have already been made, with an objection to further speaking objections.

The questioner may also “loop” off the speaking objection.8 “Objection, he was a good parent so this is irrelevant.” Loop: “As a good parent, you smoked crack every day?” “As a good parent, you sold prescription pills to your child’s classmates?” “As a good parent, you consumed sleeping pills and alcohol together?” We must be aware and listening to be able to loop words from a speaking objection to the witness: “Your lawyer said you are a good parent when you sold drugs to your child’s classmates?” “Your lawyer coached you to say you are a good parent?” Finally, a motion to strike the statements of counsel may bring the issue to the judge’s attention. “Your honor, I move to strike counsel’s statement as it was not a proper objection; rather, it was improper commentary and coaching of the witness.” The next question may also begin with, “The jury needs to hear from you, Madam Witness, and not

On looping and cross-examination, see Pozner, Larry S., and Roger J. Dodd. Cross-examination: Science and Techniques. 2nd ed. Charlottesville, VA: LexisNexis, 2009. Print.

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from Attorney X -- so please answer, . . ."

realize what is happening and level the playing field by instructing both lawyers to refrain from making speak If, after utilizing the techniques mentioned ing objections. above, opposing counsel continues to make speaking objections and the judge continues to allow them,9 and Many have said it before: as trial lawyers, our credibilyour case is being impacted negatively, the final, and ity is everything in the courtroom. Often, we know in most aggressive step is to “fight fire with fire.” One may advance when we may have a problem with our oppochoose to reveal the lack of an evidentiary basis for an nent simply because of his or her reputation or the way objection with the following, "Would counsel please he or she acted in depositions. Whether we are in trial state the rule upon which he bases his objection?” or in a courtroom where we practice every week or in a turning to the lawyer and asking, “What is the eviden- jurisdiction to which we vow to never return, we must tiary basis for objecting?”10 An opponent whose trial anticipate and appropriately address problems like strategy involves making lengthy speaking objections speaking objections. The sooner we can recognize the will likely during his or her examination provide ample problem and bring it to to the court’s attention, the more opportunities for speaking objections and argument for opportunity we may have to use the tools discussed your case that rival or exceed those made by him or her. above to bring it to a halt. “If you bite and devour each Remain respectful to the court and to your opponent, other, watch out or you will be destroyed by each othbut protect your client’s interests. Often the judge will er.”11 We should continue to strive to treat one another with dignity and professionalism as we advocate for our respective clients.

Shane Henry & Aaron bundy are both Trial Lawyers at Fry & Elder, AV Rated, Super Lawyer Rising Stars and the current co-chairs of the TCBA Litigation Section and Family Law Section.

Shane Henry 9

Aaron Bundy

“A trial court has broad discretion in conducting the trial of a cause, and unless it appears that his discretion has been abused, the cause will not

be reversed.” Stephens v. Draper, 1960 OK 69, ¶ 18, 350 P.2d 506, 510.

10

Use great caution here, as addressing opposing counsel in trial should be avoided. See, e.g., Judge Claire Eagan’s Trial Rules, supra, specifically, Rule 2 on General Courtroom Protocol.

11

Galatians 5:15 (NIV)

TosubmitanarticleonProfessionalismcontacttulsabarnews@yahoo.com Tulsa Lawyer 17

Judicial & Legislative Reception Legislators, and Supreme Court Justices, John Reif, Chief and Douglas Combs, Vice-Chief. This gathering provided an opportunity for everyone to meet and learn more about each other.

November 20, 2015

On Friday Nov. 20th, 2015, the Judges of the 14th Judicial District, members of the Tulsa County Bar Association, and faculty from the University of Tulsa College of Law gathered together at TU to honor out Tulsa Area

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18 Tulsa Lawyer

Do you have photos to share from a legal event?

Send them to tulsabarnews@yahoo.com with a short description.

TCBA CLE SERIES: BROWN BAG

Extraordinary WRITS Presented by Judge Clancy Smith, Oklahoma Court of Criminal Appeals

WEDNESDAY, FEBRUARY 24, 2016 TULSA COUNTY COURTHOUSE ROOM #605 CREDIT: 1.0 HOURS CLE TCBA MEMBERS $30 NON-MEMBERS $45 AUDIT $5 JUDGES (TCBA) $0

SCHEDULE: CHECK-IN 11:45 AM PRESENTATION 12:00 - 1:00 PM

MATERIALS EMAILED TUESDAY LATE/WALK-INS SUBJECT TO LATE FEE REGISTRATION: TULSABAR.COM (918) 584-5243

THINGS TO DO Runway Run- Jan 09, 2016 Tulsa International Airport Phone: 918-834-9900

Be among the first group to ever run along on the Tulsa International Airport runway. You’re sure to beat your best time on the flat runway surface, but don’t miss out on the planes parked along the race strip just for this special event. Individuals and families are welcome to compete in this event, whether you walk, run or push a stroller the whole way. Afterward, visit the Tulsa Air & Space Museum with free admission through 1pm.

Martin Luther King, Jr. Parade - Jan 18, 2016 Detroit & John Hope Franklin Blvd Marvel Universe Live - Jan 21-24th, 2016 BOK Center Phone: 918-894-4200 Classic crusaders and fan favorites including Spider-Man and The Avengers as well as threatening villains come to life in an action-packed extravaganza.

From your TCBA Staff!

“We will open the book. Its pages are blank.

We are going to put words on them ourselves.

The book is called Opportunity and its first chapter is New Year’s Day.” ― Edith Lovejoy Pierce

22 Tulsa Lawyer

Tulsa Lawyer 23

No profession provides more volunteer work than ours. This is the second in a series of articles focusing on TCBA attorneys who give freely of their time, treasure and talent, often with little fanfare.

Access to Justice: Five Questions for Leonard Pataki Current President of the National Council of Bar Foundations

By Laurence J. Yadon

Past TCBA President Leonard Pataki became General Counsel of Sheehan Pipe Line Construction Company in June 2008 but remains Of Counsel at Doerner, Saunders, and Daniel & Anderson. Leonard is a graduate of the University of Pittsburgh and the Oklahoma City University College of Law. He responded via email to several questions about his recent election to serve as president of the National Council of Bar Foundations (NCBF).

2. What does the NCBF President Elect do?

1. How did you become involved in the NCBF?

3. How and where did the National Committee of Bar Foundations get started?

Sandra Cousins encouraged me to attended NCBF Programming at the Annual and Mid-Year ABA meetings in 2009 while I was serving as President of the Tulsa County Bar Foundation. The dedication and depth of the NCBF members’ commitments to help bar foundations fulfill their philanthropic missions deeply impressed me. I was nominated (again with some help from Sandra) to the NCBF Board in September 2011, nominated to be Treasurer of the NCBF for the 20132014 year and elected President Elect for the 2014 -2015 year.

24 Tulsa Lawyer

The President Elect chairs the Program Committee and develops programs for the Annual and Mid-Year NCBF meetings, which provides tremendous opportunity to meet some nationally known speakers and consultants in the areas of charitable governance, fund raising and community services. I became President of the NCBF at the last Annual Meeting on August 1.

The NCBF is an independent organization established in 1977 which serves both Canadian law foundations and bar foundations in the United States. It provides a forum for the exchange of ideas and information related to foundation management, raising and allocating funds, developing public service programs and accomplishing law-related service objectives. The NCBF promotes the role of bar foundations in advancing law-related philanthropy to the organized bar, the larger legal community, and the philanthropic community.

Bar foundations strengthen the profession by providing

PRO BONO: being, involving, or doing professional and especially legal work , donated especially for the public good

lawyers the opportunity to give back in a way that is uniquely important and rewarding for them as lawyers.

NCBF member organizations are bar foundations of all sizes and sorts, ranging from local bar foundations, like the TCBF, to State Bar Foundations, foundations like the Montana Justice Foundation, and include both IOLTA and non-IOLTA funded organizations. Individuals committed to NCBF’s mission can also be members of the NCBF. The NCBF Board is a mix of bar foundation staff and foundation volunteers which brings perspective and balance to the organization. The American Bar Association provides executive and administrative staff support to the NCBF through the ABA’s Division for Bar Services.

4. What common issues do bar foundations nationwide confront in the near and intermediate term?

Of course the number one challenge for philanthropic organizations will always be fund raising. Not only do they face the difficulties posed by the general economic times, they must deal with the growing trend by governmental organizations to reduce spending on social service programs, which further stresses the foundations. When coupled with the growing need for access to justice (over one half of the NCBF member organization list “ensure access to justice” as their primary mission) and the continual need to educate the public about the role of the law and the legal system in their lives, resources can be stretched to the breaking point.

On the other hand, bar foundations are in a unique position to create outlets for lawyers pro bono and community focused activities, and create conditions where lawyers’ efforts can be focused. The other issues facing bar foundations are marketing and communications.

There’s always the challenge of “telling your story” about the foundation’s role in the legal philanthropic world. Bar foundations allow lawyers the opportunity to use their unique skills and knowledge for the public good, but sometimes get confused with bar associations. The two are complementary organizations that fulfill an important role in improving the world we live in, and leaving the world a better place.

5. Are there any specific goals for your presidency you would like to mention?

The NCBF helps bar foundations do philanthropic work better. Through NCBF programs and resource sharing, law related foundations can significantly enhance their ability to successfully carry out their own foundation missions while at the same time strengthening and growing the overall field of law related philanthropy through networking, educational programming, sharing resources and best practices, and building broader awareness and support in the legal community My goal is to continue those efforts, and also address some of the challenges that now confront both bar foundations and bar associations. We must work in multi-generational teams whose members often have very different ideas of how to get things done while also addressing continuously increasing needs for access to justice. One particular challenge is developing alternative ways of addressing populations in need through judicial diversion and other programs which struggle with decreased official funding. We must also foster relationships with new law graduates who are often unemployed or under-employed, buried in debt and unaware of the benefits formal bar related organizations can offer them.

Tulsa Lawyer 25

Inaugural Holiday Challenge

Thank you for making the 2015 Holiday Challenge a success!

The inaugural Holiday Challenge benefiting families in need through Family & Children’s Services was a great success. Thanks to the generosity of the participants, we were able to adopt three specific families to provide them with their needs, as well as donate a total of $1599.00 to help other families through Family & Children’s Services.

A BIG thank you to the three teams who adopted specific families:

Also, a BIG thank you to those who generously donated money to the cause: TCBA Board of Directors (Zach Smith, President) TCBA Litigation Section (Shane Henry, Chair) TCBA Family Law Section (Shane Henry, Chair) TCBF Community Outreach section

(Ashley Webb, Chair) A very special thank you to Dalesandro’s for donating 15% of all food purchases on December 1, 2015 to the Holiday Challenge! (Thank you, Ashley Webb!)

TCBA Children & the Law Committee Team members: Ann Keele, Barbara Sears, Stephanie Horton, Miranda Calhoun, and Jennifer Kern, Natalie Finally, I’d like to thank Kevin Cousins who encourSears aged us to take this idea and expand it. So many more families have been blessed because of his suggestion.

Gable Gotwals Thank you for daring me to think bigger, and for helpTeam members: Shelley Bradley, Erin Dailey, and Me- ing make this possible. lissa Bogle We appreciate all of your help in 2015! We look forTCBA Paralegal Section ward to the 2016 Holiday Challenge!

Team Leader: Debbie Woodruff Children & the Law Committee ~ Ann Keele, Chair

Resolution trivia filler

Tulsa Lawyer 27

Grapevine News Thirteen GableGotwals attorneys and the Firm have been recognized by Benchmark Litigation for 2016 as displaying the ability to consistently handle complex, high-stakes cases in multiple jurisdictions.

Overall, GableGotwals has been named a Highly Recommended Firm, which means peers and clients recognize the Firm as dominant in our particular jurisdiction.

In addition, Jeffrey Curran has been identified as one of only four new Local Litigation Stars for 2016 in the state of Oklahoma. This designation means that the attorney was consistently recommended as a reputable and effective litigator by their peers. He joins David Bryant, Dale Cottingham, Sid Dunagan, Oliver Howard, David Keglovits, Graydon Dean Luthey, Jr., James Sturdivant, Rob Robertson and Scott Rowland. Also included again this year as “Future Stars” are Erin Dailey, Amy Stipe, and Bradley Welsh, which reflects that their peers recognize them as likely to become future “Local Litigation Stars”.

Oklahoma had a total of 14 “Future Stars” and 72 “Local Litigation Stars” selected.

Hall Estill, Oklahoma’s leading law firm, announced today the addition of McLaine DeWitt Herndon as Special Counsel in the firm’s Tulsa office.

Herndon is a trial litigator with varied experience. While specializing in family law, she has significant experience in other areas, including employment law and construction litigation.

“McLaine’s skills and accomplishments are many, but what stands out most is her unmatched command of family law and its many intricacies,” Mike Cooke, managing partner for Hall Estill said.

McLaine’s legal experience prior to joining Hall Estill includes six years at a private law firm, followed by McLaine opening her own firm, The Law Offices of McLaine DeWitt Herndon. Prior to deciding to practice law, Herndon served as an English Language 28 Tulsa Lawyer

and Literature teacher at Booker T. Washington High School.

“‘Impressive’. That is the word I hear most describing McLaine,” Cooke said. “We have seen our Family Law practice really grow and flourish over the past few years and McLaine’s addition to our firm further expands our capabilities to serve clients in this area.”

Herndon received her J.D. with highest honors in 2005. She also holds an M.T.A. in English and Education and received her undergraduate degree in English Language and Literature, both from the University of Tulsa.

Herndon is admitted to practice to the Oklahoma Supreme Court, the U.S. District Courts for the Northern and Western Districts of Oklahoma, and the 10th Circuit Court of Appeals. Further, she is a member of the Family Law Sections of the Oklahoma and American Bar Associations.

Oklahoma Super Lawyers magazine recently named 54 Crowe & Dunlevy attorneys to its list of the state’s top lawyers in 2015. Twenty-five of the firm’s attorneys reached a milestone of having been listed for 10 years by Oklahoma Super Lawyers. Additionally, 13 attorneys were recognized as Rising Stars; four of whom are new to the list this year.

The Tulsa attorneys are: Oklahoma Super Lawyers: -- Mark A. Craige, Bankruptcy: Business -- Michael J. Gibbens, Energy and Natural Resources -- Susan E. Huntsman, Native American Law -- Gerald L. Jackson, Business Litigation -- James L. Kincaid, Business Litigation -- D. Michael McBride III, Native American Law -- Gary R. McSpadden, Banking -- Victor E. Morgan, Business Litigation -- Malcolm E. Rosser IV, Real Estate -- Randall J. Snapp, Employment and Labor -- Terry M. Thomas, General Litigation -- Madalene A.B. Witterholt, Employment & Labor

-- Christopher B. Woods, Business Litigation Oklahoma Rising Stars: -- Ruth J. Addison, Criminal Defense: White Collar

Titus Hillis Reynolds Love Dickman & McCalmon congratulates Kimberly Lambert Love on being named to the Oklahoma Super Lawyers list of Top 25 Woman Lawyers in Oklahoma.

Ms. Love represents employers in all aspects of employment and labor law including litigating claims of discrimination, harassment, retaliation and wrongful discharge. She also provides preventative advice to employers in the day-to-day handling of personnel issues. She frequently lectures on employment law topics, is a regular contributor to the Oklahoma Bar Journal, and is past chairperson of the labor and employment section of the Oklahoma Bar Association.

Ms. Love is an experienced mediator through Dispute Resolution Consultants and was appointed by the judges in the Northern District of Oklahoma to serve as an Adjunct Settlement Judge. She has received the highest Martindale-Hubbell rating of A-V, has repeatedly been selected by her peers for inclusion in The Best Lawyers in America and has been named an Oklahoma Super Lawyer by Oklahoma Magazine

would love to help resolve those difficult cases with you. Drawing on my familiarity with the Judges of Tulsa County and the attorney’s experience of mediation, I am confident that I can help you amicably resolve your cases.

We have immediate availabilities. Please contact us at 918-794-5587 or mpglawoffice@cox.net.

THE CITY OF TULSA LEGAL DEPARTMENT is pleased to announce that Stephan A. Wangsgard has joined its Litigation Division. Mr. Wangsgard graduated from Arizona State University with a BA in Political Science and a minor in History in 1993, and graduated from the University of Tulsa College of Law in 1996. He has extensive experience in insurance defense as well as arbitrations and mediations. His practice will focus on general civil litigation and municipal law.

THE CITY OF TULSA LEGAL DEPARTMENT is pleased to announce that Grant T. Lloyd has joined its Litigation Division. Mr. Lloyd received his undergraduate degree from Oklahoma State University in 2004 and his law degree from the University of Tulsa College of Law in 2007.

He was named a “Rising Star” Dear Friends and Colleagues,

by Super Lawyers in 2013,

I am happy to announce that I, Matthew P. Go- 2014, and 2015 and was awarded the “Outstanding mez, am officially offering my services as a family law Young Lawyer” by the TCBA for 2013-2014. He has mediator. I am excited to begin applying my years of chaired the TCBA Membership Services Committee experience as a family law attorney to a new aspect of 2010-2011, co-chaired the Mentoring Committee 2012the legal process. As anyone who has ever worked with 2013, and chaired the Community Outreach Committee me already knows, I believe in compromise and prag- 2013-2015. He is a certified mediator. His practice will matic cooperation. In my 21 years of practicing law, focus on general civil litigation and municipal law. my ability to foster reasonable compromise has served all parties involved better than any other approach, and Grapevine News I am excited to help you achieve the same fair and efSend to tulsabarnews@yahoo.com fective results in mediation. I believe there are solutions to those seemingly deal-breaker obstacles and I Tulsa Lawyer 29

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30 Tulsa Lawyer

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Need to place a classified ad? Email accounting@tulsabar.com Notice of Clerk of Court Vacancy United States District Court Northern District of Oklahoma 12/6/2015 Applications are now being accepted for the position of Clerk of Court for the Northern District of Oklahoma.

This is a high-level management position responsible for managing the administrative activities of the court and overseeing the performance of the statutory duties of the office. The Clerk of Court is appointed by and serves the judges of the court under the direction of the Chief Judge. Applications will be accepted through January 29, 2016.

See full notice and application instructions at: www.oknd.uscourts.gov.

AN EQUAL OPPORTUNITY EMPLOYER

SAVE THE DATE - MONDAY, MAY 16th, 2016 TCBF Charity Golf Tournament The Details...

FORMAT: Four-person scramble.

18 hole stroke play.

Mulligan’s $10.00 ea. - limit 3 per player TIME: Reg. 10:00 am / Lunch 11:00 am / Shotgun start at 12:30 / Awards & Dinner to follow TEAMS: Tournament is open to all golfers, including non-lawyers. Teams of four (4) players with a combined handicap of 40 or greater - only one (1) player may have a handicap of 9 or less.

Individuals are welcome to sign up - we will assign you to a team.

Proper golf attire required.

Tulsa Lawyer 31

Tulsa Lawyer Magazine Official Publication of the Tulsa County Bar Association

The Tulsa Lawyer is a full-color monthly publication of the Tulsa County Bar Association and is distributed to its membership of over 2,100 attorneys, Tulsa County Courthouse, the Law Library, the Oklahoma Bar Association and all advertisers.The Tulsa Lawyer accepts advertisements for products or services that have an existing or potential market in the Tulsa Legal Community.

Space reservations may be requested, but no guarantee of ad placement can be made. The Tulsa Lawyer reserves the right to reject any advertisement.

SUBSCRIPTIONS • Subscriptions are available for $40.00 a year for those who are not Tulsa County Bar Association members or advertisers.

CLASSIFIED ADS • Classified ads are accepted at a charge of $35.00 for 40 words and .25 cents for each additional word.

• You can add a small picture or color logo for $10.00.

DEADLINE FOR SUBMISSIONS • The deadline for submitting advertisements is 5:00 PM on the 10th of the month preceding publication.

• Example: Oct 10 for the Nov issue) Ads accepted after this date will be published if space and time allow.

PAYMENTS • Due upon receipt of invoice. Please make check payable to TCBA. • Credit card payments can be made at our website www. tulsabar.com a small convenience fee will be charged.

Advertising Rates - Please visit www.tulsabar.com or contact TCBA at 918-584-5243 for ad sizes & rates.

Submit: Send files to accounting@tulsabar.com PRODUCTION REQUIREMENTS Preferred Material: Digital files are preferred.

Four-color CMYK film is acceptable but file must be built to the correct ad dimensions.

We cannot accept ads in the following formats: Microsoft Word, Publisher, Powerpoint or Corel Draw.

Black only ads can be submitted as camera-ready copy.

File Formats Accepted: Color ads: All digital files must contain only CMYK data.

No RGB or any other color space accepted.

Files must have a resolution of at least 300 dpi. Files will be output with a line screen of 133.

The following are acceptable formats.

Keep in mind, printer will not be able to make corrections in these formats: 1. CMYK or grayscale EPS All fonts must be outlined.

2. CMYK or grayscale TIFF 3. PDF 1.4 or lower version (Write a postscript file and use Acrobat Distiller to make PDF file; do not use an export PDF plug-in within program to make PDF. Distiller must be set up for 300 dpi, CMYK output.)

4. Fonts must be embedded.

The following formats are also acceptable. All fonts and artwork must be provided along with page layout file.

Printer will be able to make minor corrections if necessary: 1. QuarkXpress 6.5 or lower (PC or Mac version) 2. Illustrator CS2 or lower (PC or Mac version) 3. InDesign CS2 or lower (PC or Mac) Pagemaker 7.0 or lower (PC or Mac version)

Black and White ads:

Files must have a resolution of at least 200dpi.

If you are not familiar with the technical terms above, please feel free to call or email for clarification – Jody at accounting@tulsabar.com or 918-584-5243 ext 240.

If staff assistance is required or requested to prepare any display advertisement there will be an additional “set-up” charge at $40 per hour, with a 1 hour minimum.

This includes attempting to rearrange existing layout of an ad submitted.

All advertising must be accompanied by a written request including: • • • • • •

Ad size Number of insertions and dates Position preference Full name & mailing address Contact full name & address Magazine mailing address

Tulsa County Bar Association 1446 S. Boston Ave. Tulsa, OK 74119

For last year’s words belong to last year’s language And next year’s words await another voice.

And to make an end is to make a beginning.

TL JA16_pOBC.indd 1

PRSRTD STD US POSTAGE PAID Pontiac, Illinois PERMIT# 592

~T.S. Eliot, “Little Gidding”

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