Show them Yours Disclosure Professionalism From the Top Sounding Board The Gorilla & the Basketball
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TULSA LAWYER
A Message from
In this Issue
Matt Farris 2016-2017 TCBA President
January 2017
20
The Sounding Board
Honest to God
D. K. (“Ken”) Williams, Jr., Co-Chair, TCBA Professionalism Committee
24
Professionalism From the Top D. K. (“Ken”) Williams, Jr.
5 YLD Bowling 6 Show Them Yours Aaron D. Bundy & M. Shane Henry 8
Committee & Section News
9 10 12
VP's Corner Ann Keele
Building Update YLD Bowling - Details!
13 It's not too late! TCBA CLE Video Replay Schedule 16 Recently Blocked DOL Overtime Rules - Stefan Mecke 18 The Gorilla & the Basketball The Late Fred K. Slicker 23 Professionalism Crossword 26 Cold Weather Pet Tips... Brrrrr! 28 Grapevine 31 Classifieds & Crossword Solution
Tulsa Lawyer 1
A Message from the President
Matthew S. Farris
B ack at It
Happy New Year! I hope TLM readers enjoyed the holidays and feel refreshed and inspired to tackle 2017. However, if the holiday season was not as joyful as hoped due to personal or professional challenges, or both, then perhaps the coming year will provide new opportunities and avenues for accomplishments that will make 2017 outshine 2016. I recently read an article advocating a recent study ‘proved’ optimists live longer than pessimists do; so, I am reminding myself to remain optimistic if at all possible, whether or not the article’s underlying study was nonsense.
is emphasized in law schools around the country, and there are many CLEs dedicated to the topic so as to remind practicing attorneys of what our profession expects of its practitioners. Yet, the adversarial nature of our profession results in all too often tales of attorneys failing to treat their colleagues – or their clients – with the professional courtesy and respect expected of lawyers. I like to think I exhibit a high level of professionalism as an attorney, but while preparing to write this article I was reminded,
‘Professionalism is not a label you give yourself – It’s a description you hope others will apply to you.’ Speaking of nonsense, I am not a big believ- er in New Year’s resolutions. More exercise, eating David Maister [True Professionalism] healthier food, fostering new relationships and working to improve existing relationships are permanent goals Keeping Mr. Maister’s thought in mind when I need to focus on, and those aspirations don’t seem mentally scrolling through previous cases and my to be more important on January 1 than on August 1. memories of interactions with and amongst fellow atMoreover, lofty resolutions can lead to unrealized ex- torneys, a few cases stand out, albeit for different reapectations and resulting disappointment, and I would sons. rather focus my energy on incremental improvement as opposed to attempting to effectuate seismic behavioral On the positive side of the ledger, my co-counchange each January. sel and I recently settled a lengthy, unpleasant trust dispute following mediation and, afterwards, opposing Notwithstanding my views on New Year’s reso- counsel [unexpectedly] thanked me for my professionlutions, this month’s TLM issue highlights the concept alism throughout the two-year ordeal. I appreciated the of professionalism, the importance of which is an aspi- compliment and I remember it each and every time I ration all attorneys can – or should – remind themselves run into that particular attorney. of throughout the year. The importance of attorneys conducting themselves with class and professionalism 2 Tulsa Lawyer
On the other side, two cases stand out where I am reminded of less positive experiences with opposing counsel each and every time I run into those particular attorneys. In one case, I was only a few years out of law school and involved in particularly contentious civil litigation. During a discovery dispute - in chambers - opposing counsel, who was a much more seasoned attorney than I, characterized the history of the dispute in a manner that was, from my point of view, dishonest. I was not pleased. During the resulting status conference held outside of chambers, I made my feelings known to opposing counsel. I learned several valuable lessons from that experience. But, for purposes of this article and with the benefit of hindsight and time, I could have been more understanding with regard to opposing counsel’s point of view and recollection of the facts underlying the dispute. In the other case, an estate dispute regarding our clients’ rights to certain estate property prior to a public sale, opposing counsel and I engaged in contentious back and forth correspondence. Again, I was convinced my client was wronged by the failure of opposing counsel to live up to previous representations. However, upon reflection and inasmuch as there are always two sides to every story, the dispute could have been handled better by both sides. In both of these cases, the bottom line is this: my view regarding opposing counsel’s professionalism has been permanently altered for the worse. I can only assume those attorneys feel the same way. I do not view the disputes described above as personal affronts, but I will not forget these interactions when on the other side of future disputes. That said, these experiences have helped me in that I remember these cases when I interact with fellow attorneys in my attempts to resolve my clients’ disputes. Inasmuch as I will endeavor to utilize these lessons about professional conduct in 2017 and beyond; hopefully, my colleagues will be able to label me as a true professional following the conclusion of future disputes.
TCBA to graduates of the University Of Tulsa College Of Law. As many TLM readers know, Fred was the consummate professional attorney. He was a past chair of the TCBA professionalism committee and received numerous TCBA and OBA awards for his exemplary displays of professionalism and ethics in his law practice. While serving alongside Fred on the 2014-2015 TCBA BOD, Fred would share a ‘moment of professionalism’ with the directors at the beginning of each board meeting. Many of these ‘moments’ are captured in Essays on Professionalism, which I recommend to all TLM readers in need of some assistance with professionalism during a particularly difficult time. Whether 2016 was plentiful or poor - or somewhere in between - on behalf of the TCBA, I wish you Happy New Year and a healthy and prosperous 2017. Sincerely,
Lastly, When I need some extra inspiration of professionalism, I am able to reference Essays on Pro- fessionalism authored by the late Fred K. Slicker. Fred Matthew S. Farris graciously provided copies of his book to the TCBA TCBA President, 2016-2017 Board of Directors (“BOD”) in 2014-2105, and Essays on Professionalism has recently been presented by the Tulsa Lawyer 3
Tulsa Lawyer 5
Show Them Yours By Aaron D. Bundy & M. Shane Henry
Evidence in the possession of our clients should be prepared for early disclosure to the other side. This principle is both expressed and implied throughout the rules of civil procedure and evidence. The federal rules of civil procedure require specific initial disclosures to be made without the request of the other party.1 Oklahoma’s civil discovery rule has a similar requirement.2 In divorce cases, each party must make financial disclosures to the other without awaiting a request from the other side for the information.3 To receive the benefit of the “business records” hearsay exception, we are required to disclose the record in advance to the opposing party.4 However, these disclosure rules are too often overlooked or ignored, despite the many potential benefits of “showing them yours” early on.
Fed. R. Civ. P. 26
1
Okla. Stat. tit. 12 § 3226(A)(2)
2
3
Okla. Stat. tit. 43 § 110
Okla. Stat. tit. 12 § 2803(6) and Okla. Stat. tit. 12 § 2902(11)(b)
4
Before we ever file a lawsuit, or as soon as we get into one that is already pending, we identify the evidence that will prove our client’s case. Each piece of evidence is evaluated for its value and for its potential issues, including relevance, reliability and hearsay. Evidence that our client possesses or knows about will ultimately be available to the other side. The discovery and evidence codes were established to avoid surprises. Our discovery code says, “Parties may obtain discovery regarding any matter that is relevant to any party's claim or defense . . .”5 The Oklahoma Court of Civil Appeals emphasized this concept in State ex rel. Prot. Health Services v. Bfc, 158 P.3d 484, 489, 2007 OK CIV APP 24, ¶ 17: Civil trials no longer are to be conducted in the dark. Discovery, consistent with recognized privileges, provides for the parties to obtain the fullest possible knowledge of the issues and facts before trial. Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir.1978). "The aim of these liberal discovery rules is to `make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'" Id. Voluntarily disclosure sets the tone for the entire case. Opposing counsel quickly realizes that your client is moving the case forward and not playing games. Often opposing counsel will reciprocate. The transparent attitude then bleeds over into settlement discussions which can lead to agreements and resolution of the case. Early disclosures that facilitate quick resolution obviously save each side the expense of time, money and risk associated with drawn-out litigation and trial. Since the discovery code virtually assures that the evidence will be revealed at some point anyway, disclosures help avoid the costly penalties associated with
5
Okla. Stat. tit. 12 § 3226(A)(1)
discovery games and spoliation claims.6 There is no better feeling than responding to a request for production by referencing the date that the requested information had been previously disclosed. This proactive approach may significantly reduce the amount of time spent dealing with discovery. There is no need to waste money on attorney’s fees fighting over discovery issues when that money could be better utilized preparing for trial and trying the case.
Making voluntary disclosures demonstrates the evidentiary strength of the case, encourages the other side to reciprocate the good faith gesture and speeds up the discovery process by narrowing the list of things that must be sought with formal discovery. This approach also places focus on the more important issues in the case such as negotiation and preparing for trial, eliminates any complaint of game-playing by the other side, boosts your credibility in the event of any discovery dispute, ensures preparation for trial presentation, and it eliminates complaint of surprise by the other side at trial. Game playing with evidence carries significant risks, including sanctions and even an order precluding use of the evidence at trial. There are too many benefits to early disclosures for us to ignore. Voluntary disclosures benefit the client, the attorney and the system as a whole.
Judges can reward voluntary disclosure. It is no secret that judges hate using precious court time to deal with discovery issues that could and should be handled between the lawyers. In a typical discovery dispute, two lawyers stand before the judge and point fingers arguing about with the other side has done wrong. Con-trast this with counsel who has been voluntarily disclo-sing throughout the case then has Please join us at the monthly TCBA Litigation meto bring a discovery motion against her opponent, etings. This section was established by trial lawyers for thus making the judge’s decision much easier. trial lawyers. Trial lawyers from all practice areas are To maximize the value and benefits of early dis- welcome. Our goal is to improve as advocates in the closure, the disclosure requirements and the policies courtroom. Meeting dates and speakers/topics for the behind the requirements should be emphasized to the upcoming year will be published soon. We hope you client in the first meeting. Together with your client, will join us and we look forward to meeting you soon. identify and gather the documents and things that are part of required disclosures and that you will possibly use at trial. Organize and Bates-stamp the documents, then coordinate their delivery to opposing counsel with a letter detailing the contents of the disclosures. As more information becomes available, the voluntary disclosure policy should be continued throughout the case up until the final pretrial conference.7 Aaron D. Bundy and M. Shane Henry (918) 585-1107, aaron@fryelder.com or shane@fryelder.com, 6 are trial lawyers with Fry & Elder. Okla. Stat. tit. 12 § 3237; Barnett v. Simmons, 197 P.3d 12, 19,
2008 OK 100, ¶ 19; Harrill v. Penn, 273 P. 235, 237,1927 OK 492, ¶ 8, ("The willful destruction, suppression, alteration or fabrication of documentary evidence properly gives rise to the presumption that the documents, if produced, would be injurious to the one who has thus hindered the investigation of the facts."). Trial lawyer Stephen D. Susman provides a free resource to help trial lawyers reach agreements for discovery and trial purposes: http://trialbyagreement.com/ 7
The Litigation Section was founded by trial lawyers for trial lawyers of all practice areas with a goal of improving as advocates. Please join us for our next meeting on
Wednesday - January 25th, 2017
Tulsa Lawyer 7
TCBA Committee & Section News TCBA Litigation Section Mark
your calendars and join us!
Wednesday - January 25th, 2017 Thursday February 23rd, 2017 ThursdayMarch 30th, 2017 Thursday - April 27th, 2017 Wednesday - May 24th, 2017 Thursday June 29th, 2017 Wednesday - July 26th, 2017 August - no meeting Aaron D. Bundy & M. Shane Henry TCBA Litigation Section Co-Chairs
Fee Arb Committee Fee Arb Committee meetings are scheduled at 4:30 p.m. on the following dates: January 5 May 4 February 2 June 1 March 2 July 6 April 6 August 3 For more information, contact Committee Chairperson, Tamera A. Childers of Tamera A. Childers, PLLC,
SECTION CHAIRS ADR/Mediation Ron Gore Bankruptcy
Corporate Criminal Law Employment Law Energy & MineraLaw
Vacant Marvin Lizama Stephan Mecke Bill Searcy Anita Anthony
Family Law
Maren Lively
Health Law
Donna De Simone
Immigration Law Juvenile Law
Philip D. Hixon David Sobel Catherine Coulter Ivan Orndorff Kim Jantz
Litigation
Aaron D. Bundy
M. Shane Henry
Municipal Law
Steven L. Oakley
Paralegal
Debra Baker
Probate/Estate/Elder
Riley Kern
Solo/Small Firm
8 Tulsa Lawyer
Paul Thomas
Paul McTighe
Tax
Riley Kern
Technology
Teak Hull
Workers Comp
Hans Lehr
Young Lawyers
Natalie Sears
VP's Corner Ann Keele, 2016-2017
• YLD Bowling League is starting in January, so if you are interested in signing up, then please contact YLD Chair Natalie Sears at natalie@monroekeele.com.
Thank you to all who participated in the 2016 Holiday Challenge benefitting Family & Children’s Services. It was a successful and rewarding project. A detailed report will be published in the next issue of the Tulsa Lawyer Magazine, so I look forward to sharing the good news with you then. A special thank you to Baxter’s Interurban and Delasandro’s Italian Restaurant for their generous support, and to Ashley Webb and the TCBF Community Outreach Committee who coordinated both restaurant events.
• Special Event at Pinot’s There are many worthy Palette in February projects going on with our TCBA Committees, and the Executive • Special Event at the Flying Committee is working diligently Tee in April to find new opportunities for increasing member benefits. • YLD Trivia night in April If you have any ideas or suggestions, then please contact • Lawyers Fighting Hunger me at ann@monroekeele.com so Easter Event I can share your thoughts with the rest of the team. • TCBF Law Day luncheon on April 28, 201 Remember that we will be celebrating Martin Luther King • TCBF Golf Tournament on Jr. Day on Monday, January May 15, 2017 16, 2017 and the Tulsa County Courthouse and the TCBA • Special Event with the Center will be closed that day in Roughnecks or Drillers in observance thereof. June
Be sure to look for the full Holiday Challenge report in February’s Tulsa Lawyer Magazine. I hope you have a great January and succeed in keeping your New Year’s resolutions. Ann Keele TCBA Vice-President 2016-2017
Please share your photos of TCBA events with us! Send your snapshots to tulsabarnews@yahoo.com and please include a caption with who, what, when & where.
Happy New Year! I hope you all had an enjoyable holiday season. As we move forward in this new year, here are some upcoming events to look forward to:
Mark Your Calendars!
• TCBA Annual Meeting on August 24, 2017
Tulsa Lawyer 9
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2017 TCBA YOUNG LAWYERS DIVISION BOWLING LEAGUE As in recent years past, the league will be held at in the entry fee. Details on the number of free practice Sheridan Lanes (31st St. and Sheridan Ave.). Friday, games each player will receive per week from Sheridan Lanes will be provided, along with league rules, to all January 6th is the deadline for registration. registered participants the week of January 21st. Play will be on Thursdays, starting at 6:30 p.m. Also, if you know of anyone who would be interested Play begins on Thursday, January 19th, and will be held thereafter on: January 26; February 2, 9, 16, and 23; in playing, please pass this info along to them. March 2, 9, 16, and 30 (please note that we’ll skip the If you want to sign up a team, please email your second week of March for Spring Break). League Play team name and list of bowlers to either Natalie Sears at will consist of ten (10) total weeks. natalie@monroekeele.com or Brenna Wiebe at bwiebe@ Each team will bowl three (3) games a night and riggsabney.com. Please send your registration checks may bowl with a maximum of 4 bowlers per game. It made out to TCBA either to the Bar Center (1446 S. does not have to be the same four bowlers every week. Boston, 74119) or to Ms. Wiebe (502 W. 6 St., 74119). Also, non-attorneys are allowed to participate on teams if If you have any questions, please feel free to reach they wish too. The entry fee for the entire season per team is $350.00. Yes, this is a little bit higher of an entry fee out to Brenna Wiebe, Ashley Webb or Natalie Sears. than in previous years, however Sheridan Lanes raised the Thanks and See You on the Lanes! rates. The cost for bowling shoes for all players is included th
Keep up with the Tulsa County Bar Association on Facebook!
12 Tulsa Lawyer
TCBA CLE VIDEO REPLAY SCHEDULE
Tulsa Lawyer 13
14 Tulsa Lawyer
Downtown Tulsa Business?
IF YOU LOVE ANIMALS... Find out what the TCBA Animal Law Committee is all about! Committee Chair - Laurie Phillips
Services to sell? Advertise with TCBA and target your audience! Visit www.tulsabar.com or contact Jody at the Bar Center. 918-584-5243 Ext. 240 jodyg@tulsabar.com Tulsa Lawyer 15
Holiday Travel and the Recently Blocked DOL Overtime Rules By Stefan Mecke
When I graduated from college some years ago, I was very fortunate to start my career at a growing entertainment, media and technology company creating exciting products and services for people all over the world. My corporate experience was great, but I wanted to be more involved with people right here in the Tulsa area. I left corporate America about twelve years ago to work with Tulsa area employers.
company leaders what made this particular executive so successful, the answers surprised me. While he wasn’t necessarily known for being the smartest person in the room, his ability was able to put a diverse team of individuals with unique skills together and to help them thrive as a team. He taught me to recognize that not everyone in an organization thinks the same or is motivated in the same way, and he encouraged me to appreciate employees for who and what they are and Just as the companies themselves are different, to figure out the difference between molding them and the employees at those companies are also different. trying to change them. A senior executive at the large corporation I initially worked for mentored me on the importance of employee My corporate life involved a significant amount differences early in my career. When I asked other of travel, requiring me to develop remote work habits
16 Tulsa Lawyer
which influence the way I work even today. One thing I quickly realized is that the projects, assignments, emails and phone calls didn’t stop just because I was on the road. I worked anywhere and everywhere. One work session took place on an all-day flight to L.A. while sitting next to “Anthony”. I was somewhat excited about being on a “breakfast” flight until Anthony, a fiveyear-old sitting between me and his grandma, ordered pancakes with extra syrup. The suit I wore on that trip was retired when I returned home.
overtime pay from $23,660 to $47,476. A preliminary injunction preserves the status quo while the court has a chance to review the merits of the case objecting to the revisions to the overtime regulations and determines the department’s authority to make the final rule as well as the final rule’s validity. The Mazzant ruling tells the Labor Department that the new regulations essentially supplanting the “duties test” with an arbitrary “salary only” standard usurps Congressional lawmaking authority, and will likely fail in a trial on the merits.
Although the Mazzant injunction is welcome Thanksgiving Holiday and a Halt to the DOL’s New news for employers who have been struggling with the Overtime Regulations impacts of the rule, especially nonprofits and smaller Another of my favorite “remote work” organizations, the Department of Labor unsurprisingly experiences was during the Thanksgiving holiday last expressed disappointment. year, the night before Thanksgiving. Our family was on For now, the overtime rule will not take effect as a miniature golf course in Branson, when I received a frantic email from a long-time business client. They planned December 1, but could still be implemented were trying to close on a commercial transaction and later down the road. Employers may continue to needed to send me documents for immediate review. follow the existing overtime regulations until a decision After the game, I scoped out an area in the resort is reached. Accordingly, having a plan to manage lobby with a small parlor table and chairs, between a employees through these regulatory changes is essential. gift shop and candy shop that seemed reasonably safe. Employers that have already provided salary increases What I didn’t count on was the popular resort buffet. to employees in order to maintain their exempt/salary Undaunted, I kept working on the laptop, with Wi-Fi status may want to consider leaving those decisions in stick, iPhone and contracts spread everywhere. I kept place as it would be difficult to take back those increases. working, even as the two-hour line angled around to If there are exempt/salary employees who were going to the candy shop and eventually engulfed the gift shop as be reclassified to nonexempt/hourly, but haven’t been reclassified yet, employers may want to postpone those well. decisions and give the litigation a chance to play out. This year, I proudly announced to my family The TCBA Employment Law Section invites that I wouldn’t be working at the “buffet” line this Thanksgiving holiday, but I was wrong. Just days before plaintiff’s attorneys representing employees, defense Thanksgiving, a Texas Judge halted the Department of counsel representing employers, and others interested Labor’s new overtime regulations. I spent the first day in learning more about issues impacting the area of of the holiday weekend reviewing the Judge’s decision, employment law to join us in 2017. related commentary and advising clients on the impact the ruling would have on their businesses. Texas Judge Amos Mazzant issued an emergency injunction just ten days before employers were required to come into compliance with a new overtime rule. The new rule would have doubled the Fair Labor Standards Act’s (“FLSA”) salary threshold for exemption from
Stefan Mecke Barber & Bartz
Tulsa Lawyer 17
The Gorilla and the Basketball: Perception And The Truth By Fred K. Slicker I attended an awesome seminar entitled Mediating the Complex Case at Pepperdine University in June, 2007. After two wonderful days of instruction on the techniques for resolving disputes involving multiple parties, especially insurance companies, the Saturday morning class started with a 27 second video. See Surprising Studies of Visual Awareness, www. viscog.com.There were 28 people in my class, 5 of whom were women. Though I may have been one of the oldest, I was probably the least qualified to be in this class. The women were a full time Pepperdine Law School Professor of Mediation and Dispute Resolution, a former US Attorney for Central Los Angeles, a psychiatrist/lawyer/family counsel, a former insurance executive and the head of all government mediations for New Zealand. The men were mostly trial lawyers, full time mediators or sitting trial judges in California. One of the men was in charge of all government mediations for Hong Kong. This was a really distinguished group. Our instructors were Bruce Edwards, who specializes in construction disputes having mediated more than 3,000 of them, and Teresa Wakeen, who is currently mediating the Catholic Archdiocese disputes involving the sexual misconduct of priests and bishops with more than 3,000 mediations also. Teresa opened Saturday morning's course with a 27 second video. She said we would see people dressed in black and people dressed in white T shirts and black pants who were bouncing and passing a white basketball. Our instruction was to count the passes and bounces of the white basketball, She showed the video, then showed it again. Then she asked, How many did you get? The range of answers was from 17 to 34. Then she showed the video again, with new instructions to see what you can see. I was astounded. In between the 6 people walking in figure 8s, three in black and three in black and white, a woman dressed in a black gorilla suit walked between the people, turned, faced the camera, waived and walked out. Teresa asked, How many saw the gorilla the first 2 times the video was shown? Four of the 5 women raised their hands. She explained that people, especially lawyers, are trained to marshall what they see and hear 18 Tulsa Lawyer
(This article was originallly published in the November 2007 Tulsa Lawyer)
and feel and touch to support the position they advocate. Lawyers are trained to be zealous advocates, and they want to win for their clients. Their minds tend to filter out what is not in support of the position they advocate. But I asked, What is the right answer? Teresa looked at me and said, I do not care. I have seen the video and it does not matter to me what the right answer is. What matters is what I see, hear, feel and sense.But I persisted, Why was there such a disparity? I discovered that some of us heard the initial instruction as being to count the passes and the bounces. Others translated what they heard as counting only the changes in possession. Bounce passes count as a change of possession, but dribbles are to be ignored. WHOW! Not only did I miss the GORILLA, but I or some of us missed the TASK. What are the lessons of the gorilla and the basketball? TRUTH SHOULD BE THE TRUTH BUT.... 1. YOUR "TRUTH" MAY NOT BE THE TRUTH. A. The facts are illusive. Therefore, the truth is illusive. B. What is true is often different from what we perceive. C. For most people, truth is what they see, hear, feel, touch and smell. D. For most people, "truth" is what is perceived. 2. SOLVING DISPUTES REQUIRES FINDING THE FACTS
A. The facts usually control the result. B. If we can agree on the facts, we can usually find the solution. C. Determining what the facts really are is often difficult. D. The truth is often right in front of your eyes, but you do not see it. E. Sometimes the parties do not want you to know the facts.
3. YOUR FOCUS CAN CLOUD THE TRUTH. A. Lawyers are focused on positions of their clients B. If your focus is misdirected, you will not see the gorilla. C. Don't let your focus blur your vision. D. Your "truth" may simply reflect your focus. E. What we perceive may be very far from the real "truth." 4. UNDERSTAND YOUR FOCUS TO AVOID MISSING THE GORILLA. A. Clients set the FOCUS for the lawyers. B. Lawyers are engaged to accomplish their client's goals. C. Perspective, position, background and desire determine position. D. What is behind the position is often very difficult to find, E. Listen carefully to what is said and not said. F. Clients do not like to accept responsibility for their own conduct. G. How things are said reflect attitude and posi tion.
CONCLUSION: The parties to a dispute often miss the GORILLA: A. Not because they are lying, B. But because their focus is different. C. Therefore, in seeking to solve problems: •
Take issue with positions, not with people
•
Take issue with principles, not with people.
• Take issue with posture, not with people.
Fred K. Slicker 1943-2016 Tulsa Lawyer 19
Honest to God
D. K. (“Ken”) Williams, Jr., Co-Chair, TCBA Professionalism Committee In reflecting back upon the waxing and waning of professionalism during the last thirty-nine (39) years, it seems to me that I have recently detected “waning” that is reminiscent of the uncivility of the 1980’s, which was my first exposure to the “scorched earth” mind-set. When I started practice in 1977, it was a given that another lawyer’s word was her or his bond. Accommodations on extensions of time to respond or discovery were accomplished with a telephone call or an in-person request, as were agreements between lawyers on many matters. Memorialization was unnecessary because you could rely upon the honesty, candor and professionalism of opposing counsel. “Tit for tat” or warring correspondence simply did not happen. (This is not to say that there were not exceptions even then, but those individuals became known for their mind-set and were approached accordingly.)
The following article was penned by the Honorable Lavenski R. Smith, a United States Circuit Judge for the Eighth Circuit Court of Appeals, and was featured in the Arkansas Law Review, which I follow as a member of the Arkansas Bar. This is an edited version because of its length, but I am happy to provide full copies upon request. Even if you are not a person of faith, I hope that you will find Judge Smith’s ponderings as interesting as I do.
“Appoint judges and officials for each of your tribes in every town the Lord your God is giving you, and they shall judge the people fairly. Do not pervert justice or show partiality. Do not accept a bribe, for a bribe blinds the eyes of the wise and twists the words of the innocent. Follow justice and justice alone, so that you may live and possess the land the Lord your God is giving you.”1 A Christian profession of faith and a professional life in the justice system do not irreconcilably conflict. In fact, biblical teaching, properly applied, encourages and enhances both ethical advocacy and adjudication. The conflict, if any, is not between faith in God and fidelity to sound practice principles or impartial decision-making. Rather, 1 Deuteronomy 16:18-20
the conflict lies mostly within the mind of the believer struggling between adherence with divine commands and achieving results preferred by clients, the public, or his own personal ambition and security. This struggle is real, often difficult, but definitely winnable. The cynic’s view of the lawyer as having no principle above the pocket is well represented in American literature and media and needs no reiteration here. This essay is premised on the belief that the pursuit of justice is a path that runs parallel to the pursuit of righteousness. The believer has no higher obligation than obedience to God. God declared through the prophet Micah, “He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.”2 Legal professionals are superbly positioned to fulfill these three spiritual duties. Opportunities to fulfill or fail them are abundant. The duty to “do justly” obligates the obedient believer to be honest in all dealings, both personal and professional. We are not fully honest if we only display professional honesty, that is, to the extent required by law. Law generally only establishes the lowest acceptable level of duty to others. It is commendable—but should not be considered anything extraordinary—to not be proven criminal or unethical. Some may feel that strict honesty may hamper their practice by making them weaker than or vulnerable to those who feel free to fudge the facts; not true. Dishonesty actually represents weakness. Improper 2 Micah 6:8
shortcuts are taken by the slow, lazy, or fearful. Genuine honesty never handicaps one in a race against falsehoods, but choosing dishonesty breaks the legs of anyone in pursuit of justice. Whatever expediency is gained through the lie will eventually be lost, along with an often irreplaceable quantity of an advocate’s most indispensable quality—his or her credibility. Additionally, those who shade truth often find non-naïve, honest folks to be most formidable foes. As Caleb Colton put it, “Nothing more completely baffles one who is full of tricks and duplicity than straight forward and simple integrity in another.” Honesty does not demand gullibility. 3
Lawyers and judges are professionally bound by ethical canons. The believer is further bound by spiritual standards of honesty, integrity, and selflessness. These standards, if followed, prevent the believer from running afoul of ethical guidelines in all but the most unusual case. We must be genuinely honest to our spouses, children, employers, employees, partners, opposing counsel, courts, and—above all—honest to God. Honesty may seem to some like a quaint notion from a colonial proverb, but it is a timeless, nonnegotiable, bedrock moral principle. Believers are seldom less like their heavenly Father than when they speak untruthfully. Dishonesty, through some of its various aliases such as theft, embezzlement, misrepresentation, and identity theft, costs the nation’s 3 Charles Caleb Colton, QUOTATIONSBOOK.COM
economy billions every year, but the moral cost far exceeds what money can value. Prevalent perfidy produces cracks in the very foundation of the nation’s system of self-government and undermines confidence in our system of justice. The rule of law means little if people do not rule themselves by moral principles. “I am very doubtful whether history shows us one example of a man who, having stepped outside rational morality and attained power, has use that power benevolently.”
to be dishonest in practice arise almost daily. From giving untrue excuses for not accepting telephone calls to falsifying billing statements or misleading opposing counsel, integrity tests are unceasing for practitioners. Likewise, judges encounter character challenges routinely, not from bribes but from routine itself. For instance, an everpresent temptation beckons to pass off mere lukewarm perusal of filed documents as “having thoroughly reviewed the pending matters.” All of these temptations must be met by steel-strong resolve that no 4 Few, if any, would respect courts or apparent short-term benefit justifies their officers if convinced that judges any compromise of the personal and lawyers were predominantly duty to God to do justly. corrupt. Attorneys must use fact, law, and logic instead of bribes and To be just is necessary but non-monetary favors to persuade. insufficient to please God. As Judges must be unpersuadable by George Byron said, “He who is only bribe, status, or threat in deciding just is cruel.” God desires that we cases and must decide cases on their love mercy even as we do justly. factual and legal merits, not the On occasion, love and wisdom judge’s personal agenda. An opinion temper justice through mercy by stating various rationales for a legal restraining justice’s full measure. conclusion reached for other reasons Justice gives us what we deserve, falls well short of honest. The first but mercy provides what we need. thing any individual can do to seek justice for all is to seek earnestly to Legal professionals under a duty to clients may feel restrained for be personally just themselves. “showing mercy” to a litigation For the believer, doing justly is not adversary. Indeed, mercy seems merely a pragmatic calculation that totally out of place in stereotypical honesty is a good policy choice notions of legal practice. Like with the best return on his or her honesty, exercising mercy does not investment. Rather, believers speak have to be a sign of weakness. It truthfully and act fairly and justly requires strength to do mercy when because it accords with God’s impulse and expectation request character and commands. He or retribution. As a zealous advocate, she does so even when it does not one may believe that his or her duty pay financial or social dividends. If requires that he or she always pursue our truthfulness is for sale, nothing the maximum conceivable relief of meaningful character remains for the client. Zealous advocacy after it is purchased. Temptations though, if pushed to its limit, may 5
4 C.S. Lewis, THE ABOLITION OF MAN
5 George Byron, QUOTES.NET Tulsa Lawyer 21
become only an alias for greed or oppression. The goal of litigation should be a fair and just result, not the opponent’s destruction or humiliation. Can a people of faith integrate the values it produces in them with the legal profession without compromising the practice of either? I firmly believe so. At base, it comes down to being who you really are by living what you really believe. According to Socrates, “The shortest surest way to live with honor in the world is to be in reality what we would appear to be; all human virtues increase and strengthen themselves by the practice and experience of them.”6 Living one’s faith is no mean
feat and requires no less than our whole mind and soul and God’s grace. I remain ever mindful that I am only a foolish choice away from stumbling. Walking with the Lord, however, frees the mind from the pretension of personal perfection. To please Him, we must rely on His grace, wisdom, and of course, mercy. “If I grapple with sin in my own strength, the devil knows he may go to sleep.”
As legal professionals we work to balance the scales of justice; we should remember, though, that the Judge of souls weighs our works. We may conceal dishonesty and indifference from others but never always and not ever from God. If we endeavor to be truly honest to God at all times our faith will inevitably integrate with 6 Quotation of Socrates, QUOTES. every area of life, including our profession. NET Reprinted with permission. Smith, L. A., Judge. "Honest to God." University of Arkansas at Little Rock Law Review, UALR 31.2 (2009): Print.
TulsaLawyer Lawyer 2222Tulsa
The Bar Center will be CLOSED • January 2, 2016 for New Year's • January 16, 2016 Martin Luther King,Jr. Day • February 20, 2016 President’s Day.
Professional Courtesy Crossword
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PROFESSIONALISM FROM THE TOP D. K. (“Ken”) Williams, Jr., Co-Chair of the Professionalism Committee
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The AIC’s magazine, THE BENCHER, always contains a thought-provoking article regarding professionalism. (The most recent article explored the issue of political correctness and professionalism. Hmmmm?) In researching for TCBA’s Professionalism Committee, I came across an article from THE BENCHER entitled “The Role of the Judiciary in Fostering Professionalism • I will treat the practice of law as a learned pro- and Civility.” Since our Committee had just been disfessi on and will uphold the standards of the profession cussing the role of Tulsa County District Court judges in promoting professionalism, the article caught my atwith dignity, civility and courtesy. tention. • I will value my integrity above all. My word is The article appeared in the November/December my bond. 2011 issue of THE BENCHER, and was written by the • I will develop my practice with dignity and will Honorable Judge Jesse G. Reyes. Judge Reyes opened be mindful in my communications with the public that his article with a quote from Wiliam Shakespear’s The what is constitutionally permissible may not be profes- Taming of the Shrew: "And do as adversaries do in law, Strive mightily, but eat and drink as friends", which presionally appropriate. cisely describes my own goal for dealing with opposing • I will serve as an officer of the court, encoura- counsel. The author describes the low esteem in which ging respect for the law in all that I do and avoiding abu- our profession is held today and to remind us that there se or misuse of the law, its procedures, its participants was a time when attorneys were respected and held in high esteem by the general public, quoting the memoirs and its processes. of former U.S. Supreme Court Justice Day O’Connor: • I will represent the interests of my client with “Few Americans can even recall that our society once vigor and will seek the most expeditious and least costly sincerely trusted and respected its lawyers." He also solutions to problems, resolving disputes through nego- asks the questions: “So how do we return to the days of the popular lawyer heroes? How do we return to the era tiation whenever possible. of Atticus Finch, Perry Mason, and Henry Drummond?” • I will work continuously to attain the highest Judge Reyes suggests that one approach is for our level of knowledge and skill in the areas of the law in judiciary to take a more active role in fostering profeswhich I practice. sionalism and civility within the legal profession and • I will contribute time and resources to public points to the time-honored tradition of the English Inns of Court of “pupillage” – the mentoring and teaching of service, charitable activities and pro bono work. wisdom, insight, and experience of mature judges and • I will work to make the legal system more ac- lawyers with newer practitioners. That, of course, is the stated mission of the AIC. cessible, responsive and effective. If you are not familiar with the American Inns of Court, you should be. The national organization’s mission is to “… inspire the legal community to advance the rule of law by achieving the highest level of professionalism through example, education and mentoring.” AIC’s professionalism creed states that:
The article goes on to suggest that our judiciary can • I will honor the requirements, the spirit and the intent of the applicable rules or codes of professional accomplish much by clearly communicating what judconduct for my jurisdiction, and will encourage others ges expect from counsel appearing before them, specifically proposing adherence to three basic values, i.e. to do the same. Respect, Reliability and Reputation. (So that you will continued on page 26
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PROFESSIONALISM FROM THE TOP continued... not receive the wrong impression, Judge Reyes is not suggesting that the responsibility for improving public perception is solely the burden of the judiciary. He recognizes that it is the responsibility of practitioners, law schools, law firms, bar associations, and the American Inns of Court.) I strongly recommend the article as well worth the time it takes to read. But for those of you who may not take the time, let me highlight a part of the discussion that will be the segue to my final thought. Judge Reyes points out the obvious – that judges can only control conduct that occurs in the courtroom. He also points out that, by being clear in their communication, judges can establish a reputation of professionalism and civility and can also outline what will be expected of the lawyers who appear in their courtrooms. Those of us that practice in Tulsa County District Court are fortunate to have judges that “heard” Judge Reyes’ message. Several of our Tulsa County District Court Judges make professionalism articles required reading for participants in scheduling conferences. In addition, the practice of starting our TCBA Board of
Directors meeting with a “professionalism minute” has been adopted by our judges to start some of their meetings. These are absolutely steps in the right direction! In closing, just remember that the Golden Rule is NOT “he who has the gold rules.” Tulsa County is a great place to practice law- let’s all work to make it even better by treating everyone the way we want to be treated.
New Year's Fun Fact... The use of a baby to signify the New Year was started around 600 B.C by the ancient Greeks. At the start of a year they would carry a baby around in a basket to honor Dionysus, the God of Fertility and symbolize his annual rebirth.
http://www.theholidayspot.com/ newyear/around_the_world.
Baby It's Cold Outside...Cold Weather Pet Tips Winter is here as evidenced by football games and falling temperatures. Although we are not in extreme weather, as of this writing, it is only a matter of time. Take time now to remind yourself how to care for your animals during the coming winter months. The ASPCA recommends the following guidelines to help you protect your companion animals when the mercury dips. 1. Keep your cat inside. Outdoors, felines can freeze, become lost or be stolen, injured or killed. Cats who are allowed to stray are exposed to infectious diseases, including rabies, from other cats, dogs and wildlife. 2. During the winter, outdoor cats sometimes sleep under the hoods of cars. When the motor is started, the cat can be injured or killed by the fan belt. If there are outdoor cats in your area, bang loudly on the car hood before starting the engine to give the cat a chance to escape. 3. Never let your dog off the leash on snow or ice, especially during a snowstorm—dogs can lose their scent and easily become lost. More dogs are lost during the winter than during any other season, so make sure yours always wears ID tags. 4. Thoroughly wipe off your dog's legs and stomach when he comes in out of the sleet, snow or ice. He can ingest salt, antifreeze or other potentially dangerous chemicals while licking his paws, and his paw pads may also bleed from snow or encrusted ice.
7. Puppies do not tolerate the cold as well as adult dogs, and may be difficult to housebreak during the winter. If your puppy appears to be sensitive to the weather, you may opt to paper-train him inside. If your dog is sensitive to the cold due to age, illness or breed type, take him outdoors only to relieve himself. 8. Does your dog spend a lot of time engaged in outdoor activities? Increase his supply of food, particularly protein, to keep him—and his fur—in tip-top shape. 9. Like coolant, antifreeze is a lethal poison for dogs and cats. Be sure to thoroughly clean up any spills from your vehicle, and consider using products that contain propylene glycol rather than ethylene glycol. Visit the ASPCA Animal Poison Control Center more information. 10. Make sure your companion animal has a warm place to sleep, off the floor and away from all drafts. A cozy dog or cat bed with a warm blanket or pillow is perfect. These tips and more can be found at the ASPCA website, ASPCA.org. Remember to always spay and neuter your animals! If you are interested in working for the the welfare of animals, please join the TCBA’s Animal Law Committee! Contact Laurie Phillips for information!
5. Never shave your dog down to the skin in winter, as a longer coat will provide more warmth. When you bathe your dog in the colder months, be sure to completely dry him before taking him out for a walk. Own a short-haired breed? Consider getting him a coat or sweater with a high collar or turtleneck with coverage from the base of the tail to the belly. For many dogs, this is regulation winter wear. 6. Never leave your dog or cat alone in a car during cold weather. A car can act as a refrigerator in the winter, holding in the cold and causing the animal to freeze to death. Tulsa Lawyer 27
Grapevine News Crowe & Dunlevy has announced attorneys André B. Caldwell and Susan E. Huntsman as chair and co-chair respectively for the firm’s Diversity Committee. The committee was formed in 2000 to promote the strength that women, minority and LGBTQ lawyers add to the fabric of the firm and to the legal environment overall. “Crowe & Dunlevy is committed to providing diversity in our legal services as that is the way to ensure that the best knowledge and ideas are available to our clients,” said Timila S. Rother, president and CEO of Crowe & Dunlevy. “André and Susan are strong and passionate advocates for this cause and we’re proud to have them leading our efforts.” Caldwell serves in the Criminal Defense, Compliance & Investigations and Litigation & Trial Practice Groups in the firm’s Oklahoma City office. In addition to serving private and public companies and individuals, he previously worked in the U.S. Attorney’s Office. Huntsman serves in the Appellate, Energy, Environment & Natural Resources and Indian Law & Gaming Practice Groups in the firm’s Tulsa office. She represents clients before state, federal and tribal trial courts, in addition to appellate tribunals, often focusing on natural resources issues and matters affecting those in Indian country. Crowe & Dunlevy’s Diversity Committee was named recipient of the Oklahoma Bar Association’s 2017 Ada Lois Sipuel Fisher Diversity Award in recognition of their efforts in promoting diversity in Oklahoma. Committee members focus on how to best foster the recruiting, retention and professional development of attorneys, regardless of gender, race or sexual orientation.
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Hall Estill has been named one of Vault’s “Top 150 under 150” midsized law firms in the United States. Additionally, the firm was named the 17th best Midsize Firm to Work For. Vault’s “Top 150 under 150” is chosen through a list of best-known and most sought-after U.S. firms with fewer than 150 attorneys. Through that list, Vault’s editorial and research teams examine survey data, news stories, trade journals and other publications. Vault editors assess each firm for prestige, quality and professional growth. The list is then narrowed down to 150 practices throughout the United States. The rankings in the Best to Work For list include: firm culture, diversity, satisfaction, substantive work and compensation. Hall Estill ranked 6th in firm culture and 11th in satisfaction in all Midsize firms considered. “Being named one of the best firms to work for in the entire country means so much to the leadership of Hall Estill,” Managing Partner Mike Cooke said. “As our footprint continues to expand across the country, we are striving to maintain our ‘small firm feel’ by spreading our successful employee culture that helps us retain great talent.” As a counterpart to the highly respected Vault Law 100, which showcases the largest law firms in the country, Vault developed the shorter 150 list catered to students seeking experience outside of Big Law. The “Top 150 under 150” list features top-notch law firms ranging from New York, NY to Honolulu, HI. The list can be found on the Vault’s website, www.vault.com.
Crowe & Dunlevy attorney Mary Ellen Ternes was recently elected incoming secretary for the American College of Environmental Lawyers (ACOEL), a national professional association of lawyers who practice environmental law. Membership is by invitation and members are recognized by their peers as preeminent in their
field. ACOEL members are dedicated to maintaining and improving the ethical practice of environmental law, the administration of justice and the development of environmental law at the state and federal levels. “The membership in ACOEL is highly selective, and Mary Ellen’s election as an officer is a prestigious honor,” said Timila S. Rother, president and CEO of Crowe & Dunlevy. “We are very proud to see Mary Ellen dedicate herself to the principles of the ACOEL on behalf of the firm. This is just another example of the contributions our attorneys make to their fields in a manner which best serves our clients.” With more than 30 years of experience, Ternes serves in the firm’s Energy, Environment & Natural Resources Practice Group and other areas in the Oklahoma City office. A former chemical engineer for the United States Environmental Protection Agency and industry, her law practice focuses on air pollution and hazardous waste law for pervasively regulated industries, while she advises clients on matters of environmental permitting, compliance strategies, enforcement defense, transactions, due diligence and environmental assessments, voluntary cleanup programs, environmental impact statements, as well as federal and state litigation including citizen suits and common law actions. Her professional honors include being listed in Chambers USA Guide to America’s Leading Lawyers for Business and in Best Lawyers in Environmental Law since 2007, while being recognized as the 2016 and 2011 Oklahoma City Lawyer of the Year by the Best Lawyers publication in the field of Environmental Law. Ternes was named by the Oklahoma Super Lawyers publication as one of the Top 25 Women Oklahoma Super Lawyers 2009-13 and 2015 and has been recognized by Oklahoma Super Lawyers in Environmental Law since 2009. Ternes has also been listed in the International Who’s Who of Environment Lawyers since its inception. Ternes actively serves the American Bar Association Section of Environment, Energy and Resources as Chair of the Special Committee of the Year in Review, and the Business Law Section as Vice Chair of the Environmental Law Committee. She remains a lifetime member of the American Institute of Chemical Engineers where she founded the Chemical Engineering and the Law Forum and the Public Affairs and Information Committee. Ternes received her juris doctor with highest
honors from the University of Arkansas at Little Rock School of Law, and bachelor’s of engineering degree in chemical engineering from Vanderbilt University. Crowe & Dunlevy has no input in the rating methodologies used by the Chambers USA Guide to America’s Leading Lawyers, Best Lawyers, Super Lawyers and Who’s Who of Environment Lawyers publications.
Oklahoma Super Lawyers magazine recently selected 62 Crowe & Dunlevy attorneys for inclusion to its list of some of the state’s top lawyers in 2016. Twenty-five of the firm’s attorneys have been listed for 10 years by Oklahoma Super Lawyers. Additionally, 14 attorneys were recognized by the publication as Rising Stars; two of whom are new to the list this year. In addition to being included in the 2016 Super Lawyers publication, William H. Hoch III was ranked in the Top 10 Oklahoma Super Lawyers 2016 list, Leonard Court, Kevin D. Gordon, Hoch, Judy Hamilton Morse, Clyde A. Muchmore, John M. Thompson and L. Mark Walker were ranked in the Top 50 Oklahoma Super Lawyers 2016 list, and LeAnne Burnett, Susan E. Huntsman, Morse and Mary Ellen Ternes were listed as Top 25 Women Oklahoma Super Lawyers 2016. The following Crowe & Dunlevy lawyers from the Tulsa office were selected for inclusion in the Oklahoma Super Lawyers publication: Super Lawyers: (12) -- Mark A. Craige, Bankruptcy, Creditor Debtor Rights, Business Litigation -- Michael J. Gibbens, Energy & Natural Resources, Business Litigation, Aviation and Aerospace -- Susan E. Huntsman, Native American Law, Energy & Natural Resources, Appellate -- Gerald L. Jackson, Business Litigation, Native American Law, Construction Litigation, Energy & Natural Resources -- D. Michael McBride III, Native American Law, Gaming, Business Litigation -- Victor E. Morgan, Business Litigation, Creditor Debtor Rights -- Malcolm E. Rosser IV, Real Estate, Land Use/Zoning, Eminent Domain continued on page 30...
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-- Randall J. Snapp, Employment & Labor, Workers' Compensation -- Terry M. Thomas, General Litigation -- Christina M. Vaughn, Native American Law -- Madalene A.B. Witterholt, Employment & Labor, Workers' Compensation, Business Litigation -- Christopher B. Woods, Business Litigation Rising Stars: (3) -- Ruth J. Addison, Criminal Defense: White Collar, General Litigation, Employment & Labor -- Elliot P. Anderson, Business Litigation, Energy & Natural Resources, Environmental -- Shawn Dellegar, Intellectual Property, Intellectual Property Litigation
Professionalism for judges and lawyers means possessing, demonstrating and promoting the highest standards of Character, Competence, Compliance, Courage, Civility and Citizenship. 30 Tulsa Lawyer
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Tulsa County Bar Association 1446 S. Boston Ave. Tulsa, OK 74119
"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." PRSRTD STD US POSTAGE PAID Pontiac, Illinois PERMIT# 592
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