Lawyer 1 87 web by Alabama State Bar Association

•I •I

The Union Bank Trust Department. Your Hometown Advantage. Come Homero Us. UNION BANK I

1IN1O~M.,1(. TautrCO MO~~I~IfV.M.~J"'~IM1~BHMfll1C

Tilley's ALABAMA EQUITY econd Edition by Nathaniel Hansford ;1'Cf/ his I1.S. lind L1•. IJ. (rom IIII:' UfliH:rsity (I( G('(I"tlill, hi, U~ M . (mm 'hI: mrm~r Qf the Amcr;(,;IIl, (,'oorgil' , A/IIIII/m.l, lind 7'uSi'Il/OO$l. IJllr A lWximirmJ, fI.'l r. /1:lm{(}rQ is lilt .Uti llor £If /WIIICI't')UJ 11110' ~I'ie.., .1rtic/c.Y ,md he $(;1"\'(;5 /IS /I 1«lUrer (fir ¢ 1,1':' J ir Illu :Ji.'JO sen 'cd III{,' f.1CIlIt J' nll:m/x:r f(Jr Ilrc A 111/).1111/1 (llIicilll C':IJI/rs ' Hr

The 11U1/IQr

Un ;I'crshy III' "'·lidIlK,W. Ile;5:'

is currcmly l'rofC$$or of fAl l" (or the Uni,'crsity of Alir/MIIIII,

NIIIIIlHlicilltllls((JI'(I'~ revision of Tilley's d :tssi(" lrelltist Orl Alabama equ ity: Keeps illln("\ lh~ origin;tl author's superb (,{)lT1prehc nsive Ir eatmc llI ; Ikings this a rca up 10 dau::; RcwriltS the book'sl "caullcn\ to I:u rrc~ pond Wilh lhe Alabama Rules or C iyi l l'r(K.-edu rc: and Each equ itable remedy is a sepnr.lt(' chapter. t'I 1985

For tile practitioner whQ n~s to Juw ... about equity practice i,l Alaba",:,.

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Announcing • •.

CANCER CaU.~1I

and Methoc\..il or Treatment (01' 'l fi.111,,1W)'(",.S

l-:lioIOSY; lJil/gllosis; NU/";liOlI; Th('r:lf)ru lir Af(}(lif/iljt:.~ " 1'I8~

by J ohn R. M c L:lrcn, B.S, M . D. This C{lmprellellsive NEW treat ise was written by expert J ohn R. McLaren, B.S., M. D.; Directlj'r of Rlidilliion Therapy, RolJeft Win ~hip Memorial Clinit' for Nroplastic Disease, Emol'y Clinic; and PrQfe$so~ of Rlldiology , Emory University School of Medici ne, "tlalllll , GeorgIa, With conlfibutions from numerous spcdalists, CANCER is ,. signifi clilit !furt~ for non-ont'Qlog;ists. both legal and medkal. The book oov~ rs ('aU:Illtivc f:ll'tor$, nutri tion, p:llhQlogy, imaging or c;lncrr, surgiclIltn:aulIerll, I'ndia ion tlterapy , chemot hcrapy, hYI>crthermia , illllllullotlu:rnpy , ,md pediatri ~· on ~'O llIgy . It rontail\~ over 100 illuMrat lons, gr<lphs and (!I hlc:~. Glo.!I<l ries ,'PI>c.tr in sd tttc<l chapters a lit! at tlu: e nd of lhe book. Frequem cro5s-rcferenC<:5 arc made 10 releva nt illl\~ tratioll s an~1 &«tion5. AU (If these features arc dcsisned to darify the discussion and fa cilitate compl'ehen sion~ o( the s uhjc::~ which is \lery i'mportam for this quickly developing, lIpposite field . Whh CANC~R .IS.I IOO} , yo~ will be repr scIILing your dient from the lIlost knowledgeable, up-to-dilte position possible - an ad\la ntage-you ·,111 '1 ;Ifrord to P;ISS up! Regu larly 199.95 Specilll Introductory Offer $89 .95

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1-800-241-3561 The Alabama Lawyer

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Kirk e-V.l 11 Onod ellnsu r;l ncc SClViccs, Inc. '1l1il'l.i Sl l'~~' t I 0...':0> MIljll l'S, 111\\,,1 51.1:11.)9

lanuary 1987

l.'he Alahan13

a"\Vyer

•

rle

On the cover-

U.nMget R «OI'trd~lt fQr Wr Q"lIhrllJf~lh IIIAldllama UoOO lilt rffitr~'Tor l ( ldims 1'\(1

The Alaba ma Slate Capi tol currently Is under restore tlon. This nIghtt ime Shol Is

I;ourlesy of the Alaba ma Powe r Company.

Damages Recoverable for Wrongful Death in Alabama under the Federal Tort Claims Act, , .. 16 Alabama's unique Wrongful ~ath Acl limits damage recovery to punitive damages. How is recovery of damages for death actions measured in Suits brought under the Federal Ton Claims Act?

Arbilrj lion of (ommeJci.1UiijlUlet: All '-Pol ~""'" 10 AI4ra

Arbitration of Commercial DisFarm Bankruptcy: the New Chapter putes: an Emerging Alternative in 12 ...................... 10 Alabama ......... , ... " .. 20 A new bankruptcy chapter Is designed to provide bankruptcy relief 10 the "family fa rmer."

R«:ent United Stilles Supreme Court Decisions h.1ve extended the neld of operation of contraClUal arbitration provisions.

INSIDE THIS ISSUE

" " . . . - 1M<\'ff k ..... _ _ _ ....... lor

U.,.... :k-. ..... no _

"'" u"' .... kMtbvIhoA ......... S"O'I.., 4" o., ...... ~ . Jill)< 5l1li'" Iot_ ... u ....... Il00'. ""'-...... _ .. """' .. _1Ji>I""'l'. ~l

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Postmaster: Send address changes 10 The Alabama Lawyer, P.O . Box 4156, Montgomery, At 36101 .

The Alabama L.1V..yer

President's Page " ..•• , .. , . . . . . Executive Director's Report . . . . . .

4 5

Editorial ...... ,.............. Abou t Members, Among Firms . . . Mel E News " " " " " ........ Riding the Cl rculls ........... "

7 8 15 23

Bar Brie(s ..... , ... , . . . . . . . . .. Opinions of the General Counsel . Legislative Writp-up ...• ,.......

28 30

de opponunltles .............. Attorneys Adnliued to the Oar . . .. L(lwyers in the Family ... , •. • . .. Young Lawyers' Section , . . . . . • .. Consultan t's Corner ............

3S 40 48

Rt.' (ent Decisions ..............

Memorials ................... Et Cetera .... . .. .. ........ , ... Disciplinary RepOrt . . . . . . . . . . • •. Classified Notices ..... . . . . . . . ..

59 61 62 63

President's Page but wcll-orchestrated, actions which clearl y arc self-serving. In the legal profession, a pro(esslon thai ~u and I p;lld dearly to enter and haYe struggled continually to perfect, more ollen than not the "whipping bois" or the arch enemies group In Alabama. The lawyers of Alabama can have a dramatic and powerful {Ire those who wish to rise by stePIJing on our necks. and we do nOt do i'lnything influence on what happens in this stale. about il. We do not bc<:ausc these peoBy deOnilion lawyers are well-edu· ple are our ellen!$, It a ffect~ other 1 ~t5. cated, excellent communicators and adVO(:atei of the highest order. Th ey are but not us pC!rsoni'llly. or we do not care. Consider any example of major legislacompletely familiar with the arcna wherell'l public Issues are determined. tion of . . ilal public I"terest In the Alabama LawYCr5 are withou t equal In blending legislature, and you will find every Inlogic and emotion and separating chaff terested group In Alabama actively 'NOtk(rom the whea t. lawyers constitute the Ing (or the passage or defeal of that legismost superb class of fT1<1oIer5, shakers and lation. You will find telephone calls, let· "heavy hitters" that this society has or lers, petitions, personal visi ts, background knows. They h;rye e nt ree to every busiIn(ormation, surveys, polls and every tool ness, every corporation, every public of. being used to UlRe a partictJlar pos'tiYe ficial and every media ~ul i~ exiStent. Or neg<lli-.e position ~lrd ing Ihilt legislaWith a singleness of purpose, lawyers of tion. And, yt..'s indeed, you will see fine, Alabama can do anything ~t deelare SCRUGGS able 1~11l rcttlined by both sides to war on a foreign country or rai se the flSh t their cile" ts' particuli'lr bi'ltlles. dead. Yel the facl is that these skills and powers are, to On the ol her hand, co"slder i'ln example of legisli'liion a large degree, Impotent. whyr of direct I"terest to law~rs, and sudderlly the ·'anti-Iawyer" As a group, ihe·lawyers in this state are our largest undominates Ihe Oeld . The rank and file 01 lawyers In tapped sourte of energy; but ~ are ....iCtimizoo by our OW!) Alabama haYe not been motivated sufficientl y to exercise sense of professionalism. The problem is that l.:l'>'IYCrs mreIheir considerilble ~r (or Ihe passage or defeat of Ihilt Iy ever represent themselves; it is unusual to find lawyers legislation, principally because of our ingrained lack of advoca ting any pt,Iblic .:;ause which is or could be styled seif-interesl or Yery laudible allegiance 10 our clien t inself-Interest. VI/c habitually take public POSitions benefining stead of ourselves. our clients rather than oursel...,;:s. VI/c are so trained to be Perhaps that is as it should be. May be lawyers should have no int~r1:'$t In themselves, and perhaps the nob l ~5t advoca tes for others tMt our ..bility to advoca te for our.>tal~ has become anesthetized, and we do not even knOY.' it. path is to continue to be the ever-faithful SCMnt to Ihe On any COfI t ~ia l legl slation or cause celoore, one will clien t's interests, ni'ver stooping (Or rising) to the Intercsl find lawyers on both sides o( the question ably and of the profeSSion, but I think no\. I think law)\"!rs haw the assiduously promoting the point of vleYol and position of integrity, judgment and skills to balance the Interests of their profession and tllclr clients, as 'NCII as the admlnlstl'lltheir re$pe<;tIVC clients. It 15 a sod (act that In many situations we are too good for our own good. We certainly can lion of Justice. We simply haYe not done It of late, and afford some degree of allruism, <lnd, of course, we ought the public, the client and the lawyer are all the poorer for it. to advocate our clients' positions. Some.vhere, though, in Wi thout exception, all bar presidents under whom I hiM! all of this, we need to retain some 5m<l ll degree of self. served as a b{lr commissioner (14 prior presidents) have preseMllon, some modicum of self-Interest, If fOr no Other obsenW thiSS<lmC phenomenon. t do nOI h<M.! the (lnSWl:!f reason than to balance tnc continuously gl"O.Ving "antii'lny more than they clid. but ~ all are still looking. INe lawyer" trend . need all the help from you we can gct, espt.'cli'lily in the (orm of comments, obscrvatio"s and critiCism. Tell me how Our brother and sister professionals. the physicians, have nOt lOSt <lny public esteem by taking some Yery blatant, you leel. • here is a sleeping gian! in Ihe pubHc life of Alabama which has with· in ItS JXl'M'lr the "bUlty to alt£!t eYenlS and InOuence the course of public affairs to a greater extent than any other

January 1987

Executive Director's Report LRS Needs You! . .. Do You Need LRS?

he Slale bar's lilwyer referral ser.

vice SOOn will be eiijh! yeilrs old. In loony's economic cllmalo, there Is no belief bargain (or the P.lflici pilling

panel member, considering the needs being met and the potential, based upon our current inability to seNe a broader client population. The lawyer referral service Is II public service acti"'hy through which persons needing legal services are referred to

lawyers who can assisllhem; clients pay for these ser\llces. Referral s arc made in 2S specific types of cases and a panel

member can agree to accept cases in Ut) to ten of these are.lS. Panel membershi l) COSI$ a p.lrticip.l1ing attorney $25 annually, and proof of professional liability coverage is a prerequisite. The InSUf<lnCC covcr<l8C has to bOof minimum limits of

$100,000IS300,OOO. The p<Htlclp;lIlng attorney agrcc~ to charge the client an Initial fcc of$20 for the first 30· mln ute co nsultat ion; howev/!r, beyond this point, the nttOrilCy and the client can enter Into n mutua lly satisfactory employment con tract, The referrnl is not aSSignable within a firm, Each referral is personnl between the attorney to whom it is made and the client desiring to be served, If i'I panelist find s thilt he ()( she Is unable to serve the clien t because of a con flict, the client should be referred back to the referral service. This will not count as a referral against the attorney who then will remain al the head of the list for the nClet

The Alabama Lawyer

referral in this deslgnmcd area. If an attorney declines a refefT,] I for other than good cause, that attorney then reverl Sto the! end of Ihe referral list Within the county, circui t or speciality area nOled. Initially, the service provide(! vlr1u atIy SIJIe!wide coverage. The ci ties of Blr· mingham, Mobile and HuntSville were Clecluded because their local bar associations had elelstlng programs. All calls to the statewide service (or lawyers In those areas are referred to lhose local SCfVlces. 11 may appear 10 some irom the statistics that will follow that very few clients, In faa, are served by the LRS; however, ooc mUSt consider thaI thrf!e of the suite's larg~t population cenlCrs are elec;luded from the f1gures noted. The lawyer referral SRrvlce purchases a standard "Yellow Page" advertisement in ,llmost every known wlel>honc book published for Alabama. This year Ihe ad· ver ti slng COSI alone ha s been $10,996.26, while panel membership fees lot<lllcd $6,850 this year (274 members). For Ihe first time, they did nOI meet our advl.!rtising COSts. The state IxIr always has p;lid the WATS line ch<lfges and the lawyer rt'1fcrr~1 service clerk 's salary; as a rMult of this sharp decline in revenue, we arc carefully revIewing the pl<lcement or ads and droppIng ads In those areas with no panel members. II is the drop in panel participation that I want to address. I realize the Inability to obtain professional liability coverage caused a substantial number of our ""loci

HAMNER

ITI(!mbers to drop from the program. t am hopeful that wi th our ocwly-endorsed II· ability Insurance program In place, a sui:r slantia l number of these will reinstate their memberships In February. The lawyers p..1rticlpating in the service nppeilf (tuite happy with it. They regularly comment about the favorable Impact Ihe referral cases have on thei r practice, and I am aware or no one who does not weoup Ihc annual fee early In each 13Wycr referral service year. Consultation fees to date, february throush October, have totalled $5,7 t 0 according to voluntary reports attorneys relurn to us. One must consider that this sum of money Is based upon individual billings of 520 eac;h. Currentl y, our biggest problem 15 par· tidp;ation; we ate lOSing our statewide re-

ferral cal)ability. We have tWO circuits, the second 1l11d 35th, witn no lawyers avai lable for a leferral when a request is made; we have 17 counties within our 39 cl rcul lS Ihat have no lawyers on Ihe service; h~r; we ;lltempt 10 refer 10 the nearest county or town when a local rcf(!rra l is 110t possible. The lable accom· panylng this report sl"\O'W"S the current slJlewlde breJkdOYo'n . To run In efft.'C:Iive tRS, we na>d broad p<"lrlicip(1\ion. I Am sure some of ~u have heard of Ihe no-show appoi ntments, the lilwycr·sholll)ing cllenls and Ihe "I· th(lught-this-was-froe" referral s. HO'.YeYer, these problems are relativel y few, Our referral s do generale fees (lnd eSlJblish long-term (ll!orney-clienl relJlion ships and are not to be overlooked, Consider Ihese f,lets: referT<ll s lor this year, February through October, number rtlmmt 6,000; the voh.JIl\llfy feedback rCl>orls Indica te that some 838 cllenls already have paid fees. (These reports arc not received un· til Ihe S(>rviC(lS sought arc completed, therefore many cases still are pending.) TYJ)cS of refe/rill s and fees generaled may be of interest. Fifty-three lawyers reported cOUt!cting ft.'t '5 of bel'M..>(>n 520 and $100. Four hundred and thr~ col Iccl<.>d fees belween SIOI alld SSO(l O ne hundted hlWyers have reported Ihal I'Cferred ca~s generated fees in e)(cess of 5500, As our year-end reports Me filed in January 198i, I would anticipate Ih"t the state bar's referral service will have referred to Alab.-1lf1(1lawyers <:Ii¢nlSwho h~ generated fees in excess of three· (Iuarters of a 1~ll1Uon dollars, In spite of our low ovcralllevcl of p..,nlclpatlon this year, During our early I)hase of operation when jXlnelists numbCrI.>t:l aimosl 500 (and ag.."lin I would remind you these did nO! include 1"v."I" ~ rs in Ihe cit ies of Blr· minghilm, Mobile and Huntsville), 'NC had reportS lhat fce-generating cases resulted in excess of one (lnd ol1(..... h"lf nll1l1on dollars. For-profit ilnd oUI-of-state referral services now are operaling in Alrtbama. I believe thil t ilSklllg as Alabama lawyers are mcctilll1lhe public's need for legal services, they will have little to fear from those oUlside the profession. It is when potenlial clien t ~ Cllnnot be scr\l,~d in Ir,,dilionai w¥ that outsi de forces come in10 1)lay.

If you currenlly <tre nOI a p."lnelist Or if you have allCJ\.Yl!d your membershi l) as a pilIwl member to 111pSe, pleilse COnsider rejoining Ihe slilte bar's refC!rral service. \oVc advertise a sl~ t cwlcle service and should be In a position 10 serve needs

Slatewide. You may write for all appl ica. lion to Joy Meininger, Lawyer Referral Service Secrelmy, Alnooma State Bar, P. O. Bo)( 671 , MOntgomery, A I ~ b.1ma )(>101. • - Regina ld T. Hamner

lawyer Referral Service COUNTY

CIRCUIT

t St -

Ch~law

Clarke w ashlnllton

2nd -

o Butler Cfl!rlShow l owndes

3M -

3 Balbour Bullock

41h -

51h -

MEMBERS

161h -

0 0 0

191h -

7 AUliluga Chilion Elmore

20lh -

13 Henry Houston

7th -

13 Cnlhoun ClEburne

6th -

'I Mtlrgan

9111 -

" Cherokee Dckalb

t Olh -

3' 1effurson '

3 00

\ llh -

19 Lauderdale

141h _

Tu)(;nll(l~a

o o

4 Coffee

Pike

Mobile '

3 Walker

151h -

6S Montgomery

161h -

10 Elowoh

171h -

5 Greene Marango Suml4lr

lO!:al Bar LR5

ESCilmbia

:.I2nd-

:.I COIlVlngton

23r(l

Ma(lI~n '

241h -

Fayelle Lamar Pickens

131h

215t -

6111 -

121h -

S CI<lY

Coosa Shelby

Ch,lmbers Macon Ralldolph Tallapoosa

COUNTY

0 0 1

7 Bibb Dallas Hale Perry Wilcox 3

CIRCUIT

251h -

7 Marlon Winston ~u Ssllll

o o 5 4 1

, o LJ

, o 1

, 3

261h -

27th -

5 Marshall

281h -

S Baldwin

29th -

9 Taildl!ga

30th _

IJlounl 51. CI~lr

31~t

3 Colbert

32nd -

3 Cullman

33rrl -

4 Dale

3 1

Genevil Fr~rikliri

34th -

3SIh -

0 COnccuh Monroe

361h -

37th -

lawrence

9 lee

361h -

In(;k~n

391h -

2 LimeslOne

MEM BERS

, o

, ,

Ouls!de Birmingham lRS Jur!sd!Cllori

IlJrlullry 1987

judgment In refUSing to ring said cline" through 10 said bossesl And, ......onder of

Editorial

wonders, that Mobile secretaries haYC finally boon granted the prestigious

Secretarial Subservience, Birmingham Style (Editor's note: This letter is in response \0 an editorial by J. EdwOIrd Thornton of

Mobile, His editorial Ol'iginally ilPJX,'ilred In Ihe September 1986 Mobile Bar Assod:uion Bulletin and then In the Novcnllx!r 1986 A/aooma LawY(>r, The views expressed here arc those of the author and not necess<uily those of the

b.u, its officers or mem~rs.) I fCad '.'11th liveliest interest your editori al in the NO\ICmber edlUan of The A/Ilb-1mil I..lwyer. How simply wondcrful

thaI Mobile secrew les have been gramed the autQnOmy to choose whether or nOI to ask callers 10 disclose Ihe nature of their business with Ihe secretaries'

bossesl To be aJtQN(.od to use their own

honor 01 calling up busy o\1obUe attorneys and Ihen arbitrarily forcing them to hold on Ihe line unlillhe secrelary gets {Iround 10 Inform illS her boss Ihal his call is holdingl Well, hals off- you'Vfl really come a long ~ babies! ThaI'S a nice fairy talc, Mr, Thornlon , But, unfortunately we socrelaries Jive in Ihe (C{li world. And Ihtlt real world is heavily populated wi th rules-said rules being laid down by Ihe attorneys for whom we are empJoted. Now, I hM Ihe luck 10 work for IWO attorneys who do answcr their own phones, SCI their own appolntmenl S, place their own calls, and generally make their own excuses. That has not, however, always been the case. Has il ever occurred to you Ihat, in most Instances, a secl'f'lary Is simply follQINing instruct ions when she asks you 10 slate your business before putting through the

AFFORDABLE TERM LIFE INSURANCE FROM COOK & ASSOCIATES Compale tMie low non-,moker 'Mutt .el" lor non-

o.e,....,"9 ",ao.c! ptemh,.m lit. MAlE AOU

noo,ooo

2$0.00 " 55.00 2$2.50 "10.00 255.00 "IS.OO &15.00 330.00 7&0.00 "12.50 1.01 5.00 5"2.50 110.00 1.520.00 1.355.00 2,53s.o0 20372.50 ' .315.00 (Imoh r'. rlt. . .1l"hU~ h."hlr )

"" " " " " "

.. 51

R_"1)1e

1250.000

to ';'

170.00 e17.50 115,00 1t0,00 1. 127.50 1,5 10.00 2.217.50 3,7110.00

- Lindsey R. Gravlee Birmingham

CON FIDENTIAL HELP FRO M FE LLO W PROFESS IONA LS IS A PHONE CA LL AW AY tf you or someone you know ~uffers from the effects of a!cohol (lnd chemical abUSe! and Is in need of special assist(lnce, call toll-free:

1·800·237·5828 ASK FOR TH E CONCE RNED LA WYERS' FOUN DATiON

PROGRAM .

' .SIS.OO

100. FerNIle ral" INlme .. mil.. rOilr riled

All COV9f8ge prOYlded by tom~"n l .. by A ,M . Bo,l Co.

~ea~ ~ounge.

"A Ellce llen,·

$1,000.000

call to her bossr Or again follow ing orders when she stales that he Is "oul" Inslead of simply telUng you Ihat he really doesn't want to lalk 10 you at aliI And, while placing a call for her Dusy attorney, can a secI'Clary hog-lie hcr boss 10 his chai r and place Ihe phone out of his reach 50 Ihat he can', w:mder off or place another call unlll she has connected him with his partyl Be rcalislic, Mr. Tnornton. There are indeed secrelarles oul there who am r\,lde and inconsiderate 10 those who have business with the boss, but most of \,IS can't afford to be. Next time you have an urse to "speak ugly to Ihose secretaries," remember-yo\,l are speakIng 10 someone who, in most cases, can'l answer back In the same vei n (we'd be nrcd if we did). And, beUC\1! me, we hl.lVe our "lIsls" as wcll. People like you tend to be at the very bottom of ours. •

FOr /I w,ll1 en quolatlOn and poI lc~ deacrlptiOll Nfl(! you. date 01 :)lnh end emount 01 cove.."e dMI.ed 10

COOK & ASSOCIATES 2970 COTTAGE HILL. ROAD . SUITE 20t MOBIL.E. ALABAMA 36606

This program iJ independent of the Alabama State Bar and does not police, report, discipline or threaten the career or rCf)lJt<ulon of any allOr· ney or Judge. All inquiries are confidential. Profes;lonal counselors arc on call 24 houf! a day.

eLF CONCERNED LA WYERS' FOUNDATION, IN C_

(205) 411-1131

The Alabama Lawyer

About Members, Among Firms ABOUT MEMBERS 5.1nl E. inItio announces that his brolher, F. Patrick Loftin, has bei::ome ilswciilled w ith him in Ihe practice of

lawaI 1705-711'1 AV(!Ilue, Phenix City, Ala bama 36868-2566. Phone (20S)

297-1870.

•

Jilmes P. Grahilm, Jr., is 1,leased tQ announce Ihe ~Iocalion of his offices

10 925 Bro.'ld Street, P.O. Box 3380, Phel)lx City, Alabama 36868·3380,

(20S) 291-0315. He previously was associated with the law firm of Senton & Benton in (>hc oix City.

•

Thomas ap Roger JorlCs. formerly of Pi ns, Pl us & Thomp~n, announces the opening of his office ,11 900 Ala·

bama Avenllc, Selma, Alabama )6701. Phone (20S) 872·8) 10 or 872·8311,

•

Martha Durant Hennessy an· nounces the opening of her office for

the practice of law In the Gulf Shores Office Complex, P.O. Box 781, Gulf Shores, AI(Ii)(lm;l 36542. Phone (205) 968-2653.

•

Chase It .... urendlne, attorney-a tlaw, announces the relocation of his offices to Regency Profession;)1 Cen ter. 5901 Airpon IJOlilevard, Sui te A, Mobile, Alabama; mailing address: P.O. Box 850817, Mobile, Aillbilma 36685.

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John D. S<1xon recen tly graduated (rom the Stanford Executive Program at the Stanford U niversity Graduate 5<:hool of Business. Formerly d ir'f,.>CIor, corporate issues, RCA Corpora tion, he Is nO'N the Washington represent3 ti\\! - RCA In the wa shington corporate government relation s ornc e of General Elect ri c Company.

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David R. Fr~man , formerly In private practice In Birmingham, announces his admi ssion to Ihe Florida

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6 iH ;)nd IIsso ci ation as general counsel with Pro-Med Capital, Inc. of North Miami Beach, Florida.

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Roy W. Scho ll, III, announces the OI)Cning of his office for the practice of law, wi th offices at Suite 801, Frank Ncison Building, Birmingham, Ala· bilmil 35203. Phone (205) 328-7911.

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Pa tri d a k . O lney, formerly of Mobile, Alabama, announces thai she has joined the firm of Sp ielvogel and Goldman, PA, and now is practic ing In the Cape Canaveral, FlorIda, area, with offices at 101 South Courtenay Parkway, Suite 201, P.O. Box 1366, Merrill Island. Florida 32952-1366. Phone (305) 453·2333.

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H . Jere A rm st rong, formerly coun sel to the chief ImmlSr:ltloll judgt! in Wa shington, D.C., has been appointed as II Unitl..'tl States Imm l· gratio n ludge and assistant chlcf hnmigr,llion judlle. Judge Arm strong Is a 1966 gradume of the University of Alabama School of law and a member of the bnr> of Alnbnma, the District of Columbia and Virgi nia. AMONC FIRMS The! fi rm of knight & Griffith MnOUllces S. l ynn Marie M c k enzie has become a member of the fi rm, with ofnces located at 409 First Avenue, Southwest, Cullman, Alilbam ll 35056.

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Tnt! firm of Burr & Forman (formerly Thomas, 1hliafcrro, Formiln, Burr 8t Murray) has relocated Its office!s to 3000 SoulhTrust Tower, 420 North 20th Street, Bi rmingham, Ala· bama 35203. Phone (205) 251·3000. Also, M ario n W. Til son, Mark W.

Bo nd, Curt M. Johnson and W. Benjamin Johnson have become associates of the firm .

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Hand, Arendall, Bedsole, Greaves & lohnsto n, 30th Floor, Flrsl National Bank BuIlding, Mobile, Ala bama, an· nounces tha t Forrest C. Wil son, III; Judith l. Mc Millin; William 8. Givhan; P. Ru ssell Myle~; Brian P. M cCarthy; Walt er T. Gilmer, Jr.; and Peter H. William s have become associllted wi th thi" firlll .

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John S. Gonas, Jr., and Michael J. M cHale, formerly ilssocialed with Robert Norris & Associates, PC, announCe the fOrmillion of a partnership for the general practice of law, under the name of Conas & M cHale. Oiflces are located at The V,ltl A ll t~rp 8ulld· Ing, 101 Dauphin Street, Suite 208, Mobile, Alab.1ma 36602. Phone (205) 438·4175.

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Go rdon, Silberman, WIggins & Childs, PC, announces Russell P. love and Ann k . Norton have become associa tes In the fi rm, with offices at 1500 Colonial Bank BUilding, Birmingh<lm, AI{lb<lma 35203. Phone (20S) 32B-0640.

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Henry B. Steagall, III, and Willi am H. Filmore announce the formation of their profeSSional corporation of StcalIali & Filmo re, PC, for Ihe practice of law at 315 Sou th Union Avenue, P.O. flax 2BO, O:.:ark, Alabama 36361. Phone (205) 774·2501.

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Morgan & Burns O,lnnounces thilt Slephanie K. Alexander has becOllll! associatt>d w ith Ih(' firm, and thi" mailing address Is P.O. Box 15B3, Mobile!, Alabama 36633.

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Fillkenberry, Whatl ey & H eidt iln nounces tha t lisa J. Hu~g hlS,

JanUJry 198 7

formerly 1;lV.' clerk to United States District Judge James Hughes Han· cock, has become associated with the finn . Omces are locatlod at Fifth Floor Title Building. 300 Twcntylirst Street, Nonh, Blmllngham, Alabama 35203. Phone (205) 322·1100.

longshore, Evans and longshure an nounces that D. Michael Ba rrell and Gary P. Cody have become associates with the I3'N firm, and Its offices hllVe relocatoo to 1900 City Federal 8uilding. Birmingham, Ala· b.lmil 35203. Phone (205) 252-766 1.

lee Pitl m.ln, !(cnnelh IN, Hooks,

The law firm of Holt & Cooper announces William Kenl Upshaw has become .. member oi the lirm, which will conti nue the pracrice of liIW un· dcr the namc Holt, Cooper and U p~ h aw. Offices are lOCated al 529 Fr<lnk Nelson Building.. Birmi ngham, AIJbamn 35203. Phone (205) 322· 455 1.

IN,

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David H. Marsh and Thomas E. Dul· ton, formerly pMners In the firm of Emond & Vines, arc pl£'ased to an· nou nce the formation of a firm under th£' name of Pillman, Hooks, M.lI'sh & Dullon, PC, wllh offices at 801 Park Place Tower, 2001 P.uk Plnce North, Bi rmingham, Alabama 35203. Phone (205) 322·8880.

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The law firm of Reid and Thomas MnOunccs thc relocation of it5 offiCe to Suite 501, SouthTrust Bank, 1000 Quintal(! Avenue, Anniston, Alnbtlmil. PhMe (205) 236·1240.

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Ford, Caldwell, Ford & P.lyne annouoces thaI Robert E. Ledyard, III, haS become ilssodalcd with the firm , with offices at 218 Randolph Avenue, Huntsville, Alabama 35801.

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Speake, Sp4'ake & Reich ilnnoullCes Ihat loW. Pa(t£'l1On, Ir., formerl y an attorney for the United States Army Ballistic MIs511e Defense Command, Huntsville, Alabama, has become of counsel to the firm, with offices ttt 101 Spring Street, Northwl-st, Moulton, Alabama .

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The firm ol liumphrC!yS, DUnlap & Wellford an nOUllces that D;witl M. Dunlap has become associated wI th the firm , with offices at 2200 First Ten· nessee Building, Menlph ls, Tennessee 38103. Phone (901) 523·8088.

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The fi rm of Yearout, Myer, & Traylor, PC, announces that J. Scoll Langocr and Katherine l . Cork,. h~ become associated wIth the firm, and o(fices are located at 1405 First Ala· bama Bank Building. Birmingham. Alaooma 35203.

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The Alabama Lawyer

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Rushton, Siakely, Johnston & Garrell, PA, anJ'lOUI1CeS that Holley F. Crim has become associated with the firm , with offices at 184 Commerce Street, P.O. Bo)( 270, Montgomery. Ala· b..lma 36195. Phone (205) 834·8'180.

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Slone, Granade, Crosby & Ulack· burn, PC, announces Dennis M. Wright has become associated with the firm , and Ihe mailing address is P.O. Box n 09, Bay Mincue, Ala bama 36507.

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The 1i.JW (irm of Watts, Salmon, Roberls, Manning & Noojin annOunces lohnnle F. Vann has become associated with the firm . Offices are located at 100 Jefferson Street, South, Suite 200, P.O. Box 287, HuntsvI lle, Ala b.l ma 35801. Phone (20S) 533· 3500.

mlnghOlm. Alabama 35202. Phone (205) 254·7090.

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Thomu E. BrYilnt , Ir., I. Gordon House, Jr., Milrk R. Ulnler and S. Rosemary de Juan, members of the firm of Bryant, House, Ulmer & de luan, annOUf'ICe the relocation of their offices to Suite n07, RI~rvlew Plaza Office TOY.'Cr, 63 S. Royal Street, Me>bile, Alabama 36602. Phone (2051 432-4671 .

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The fi rm 01 Staas & Halsey d W<lSh· ington, D.C., an nounces that I. Ran· dall 8eckers has become a member of the firm, with offices at 1825 K Street, NW, w,,~ h l n8to n, D.C. 20006. Phone (202) 872.{)12J.

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William E. Skinner and William W. Gobrechl annoullce the dissolu tion or the law firm of Skinner & Gobrechl effective December 31, 1986. \Villiam E. Skinner will continue his law prac· tlce as a sole practitioner at Suite 501, Hill Building, 73 W,lShlngtorl ~nue, Monlgomery, Alabama 36104. Phone (205) 265-0201. Willlttm W. Gobrecht 15 retiring from the dally practice of law but will continue pr.Ictlce on a case-by.case basis.

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The law fi rm of Simmons, Ford and 8runson, Attorneys, PA. is pleased to announce Taylor Thomas Perry, Ir., has ~ome an associillC of the firm. Offices are locOlted at 1411 Rainbow Drl\!(!, Glldsden, Alabama 35902·1189. Phone (205) 546·9205.

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lerry O. lor"nl 8' Associates of Birmingham announces Ihe ilddilion of M. lack Hollin!:sworth as an ilSSOClil!e of the firm. HoJlin g~worth is a graduate of Cumberland School of

low.

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UnilLod Slatl.'S Pipe nnd Foundry Company and lim W~lt er Resources, Inc., announces the association of G"ry C. Pears, with offi ces at 3300 First Avenue, N.• P.o. Box 10406, Bir·

We nl.'(.'(i yo ur hdl' locating eyN:alching, colorful covel'll for The Alabama Lawyt'r. Please send sU~Ulesljons, phologrilphs, slides or tra nsparencies to Ihe l.awyer. We need vertic.ll, dear, origin1l1 arlwork. Thanks.

arm by Tazewtll T. Shepard, III On N()'.ICmber 26, 1986, the new

Chapter 12 became effective under Title 11 of Ihe United Slates Code, referred to herein as thc Bankruptcy Code. This arti cle will compare Chapter 12 to the o ther chapters of the Bankruptcy Code

and briefly review relevant case law 10 consider whether thi s ambitious leglsla. tion will mcclllS puq)()~ of scrvlnglhc "family farmers" of America.

Eligibility of the debtor Congress was spurred

e nact thi S

legislation by II perception tha l l he avai l· able types of blnkruplCY were Inadequate 10 meet Ihe !'leeds of the IncreasIng number ollnsol Yent farmers. Many

farmers had too much debt to qualify (or

debt adjustment under Chapter 13, and most found reorsanization under (h(lf)tet 11 100 expensive rind limc-consum·

ing. The new Icgi51alion am(!r'lds Section 109 of Ihe Bankruptcy Code 10 IImillhe application of Chapler 12 10 the " family farmef.' H CM'CYef, Ihis generallerm may not effecti~ly legulale the variel)' of debtors seeking protection as il " (,mnef.' For instance, one coo n tee:ently conch.Jd· ed th at a feedlot qualified as a farmer, tn re Callie Complex Corpora tion, 50 B.R. 50 (Bkrtcy. O. NM 1985) Another court stated that the debtor's status as a farmer remained valid almost a year afler tho debto r ceased OJ>crations and sold his farm , In re /\Jlmesi/, 42 B.R. 731 (Bkrtcy. W,O. LA 1964) Application of Ch"Pter 12 is defined further by fin3n<:I,tI A.,<!uirements. Aggregate debts mUSt not exceed $1,500,000. AI least 80 percent of the debts must arise 001 of a farming oper... • tion owned or operoned by the debtor; who must have received more than 50 pcrcent of his glOSs income (rom su ch

an ru IMming opera tion for the prec:..>ding tax"ble year, However, a mortgage on the debtor's residence will not be Included In the debt total unless it "ilfises out of II farming operation:' Thus, a c rop loan secured by a mortgage on the house would be Included, whereas a morlgage securing fund s to pay collcgo tuition for the debtor's child v.ould nOt. If the debtor is 3 corporation or part· nership, more Ihan 50 percen t of the stock or p.~nn~rsh i p equity must be held by the perron or family conducting the farm ing operation, dnd mOrl! th;ln 80 percent of the value of the corporation's o r p.1rtnership's assets must relate to the production of agricul tural products. More narrow debt restrictions limit Chapter 13 relief to an individual with secured debts not more than $350,000 and unsecured debts not more than $100,000 under St.><tio n 109(c). "s8regate debts In a joint petition filed by a husband and wife must be within these limits. See In re Carrera, 2 B.R. 480 (Bkrt cy. O. CO 1979). 60th Chapters 12 and 13 apll ly only to a debtor with regulir income, Section 101(27) d~fines " individ u31 with regular Incom~" as an individual, other Ihan a stOCkbroker Or a commodil)' broker, whose income is su ffi Ciently stable 10 enable making p"yments under iI piM. Under Section 302, a Joint case may be commen ced with a single petition by nn eligible individ ual and spouse, alld both debtors' Incomes may be com ldered. Courts con sidering Challter 13 cases hav<! been lL>ss nCl(ib e on the monetary limitations th an the regula r income requirement, H~r, contingen t dt'bts are not included In the monetary limita· tion. See Mlitler 01 fuJrson, 773 F.2d 751 (6th Cir, 1986). A claim is contingen t if the debtor'SdUTy to pay docs not come Into exiStenCe unt jl the occurrence or a

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fu tu re event. See In rc WI/son, 56 B.R. 693 (BkrICY. M.D. Al 1986). The trustee a nd the d ebtor Sec1ion 1202 crea tes a Chapter 12 tru stee whose administrative duties are similar to those of a Chapter 13 tru stee, The Chapter 12lfustec must appear and be heard at any hearing concerning the vall.le of property subject to iI lien, con· firmaTlon of a 1)1;1n, post·confirmatio n modi fkaTI()n of a plan o r sale of prOperty of Ihe! estate . ..Ie al so must file state and federal ta x return s fOf the estate un· der Section 1231(b) for each taK.lble per· iod after the case is filed However, the Chapter 12 tru stee is not required as is the Chapter 13 trustee to "idvise ' .. ilnd assist the debtor in performance under th~ plan" under Section 1302(b)(4). The Chapter 13 tru stee always is c harged under Section s 704(4) and 1302(b) WiTh the duty to '1 nvestigale the financial affairs of the debtor." By con· (r(lS(, the Chapter 12 trustee must be granted such authority by the coun under Sections 1202(a)(2) ;mel 1I00(a) (or cause, whic h is $I milar to Ihat for illlpointment of a Chapler II trustee orelilminer under Section 1104. Appointment of 'he Chilpter 12 tru slee is modeled after \h3tin Chapter 13 cases. SecTion 151302 authorizes the U,S, Tru st· ee to appoint standing Chapter 13 trust· eeS in thf;1 progr;lm d isiricl.S. In the new non·program districts, the Bankruptcy Court appoints the swnd ing Chapt~r 13 trustee under Sl'Ction 1302(a). If there I ~ not a sufficient volume of cases to justify a s!.lndlng trustee, a trustee will be appointed in each casco The Chapter 12 debTor Is caned a "debtor in J>OsscssionN as under Chilpter 11 and granted by Sections 1203 and 1207{b) mOSt of the righ ts and duti~ of a Chapter 11 tru stee, "including operal-

January 1987

The New Chapter 12 Ins the debtor'S fMm :' This is similar but includes SOnl(!<Nhm r'rlOre authQrity thiln the Chapter 13 OObtor engaged in busiIlCSS, who has the exclusi...c right to oper· ate his business under Seclior'r 1304, lease or selll>roperty of the estate under S(!Cl ion 36) and oblilin unsecured credit under 5<.'(tlon )64, Section 1204, which has no counter. part In Chal>ter II or 13, authorizes the coun to rell1Q'JC a Chal)tcr 12 debtor from I>osscssion after notice and a hearing ~rl>on reqUl,'S1 of any party In Interest for cause, "includi ng fr<lud, dishonesty, InCOmpetence or gr055 misman.1gemcnc of the affairs of the debtor:' However, the court may reinstate the debtor in possession after notice and a hearing upon request of any parI}' in interest, If the debtor is remoYt'ti from pos~slon, the (hal>ter 12 trustee will operate the debtor's farm as he would ullder Chal>ter 11. H(M\.~r, the Chapter 12 trustee lacks till! authori ty of il CI1ilPtcr " tru stee to file a rcorg.mlz<ltlon pliln. Slaying ac lion against co-dcbtor One of the most important form s of relief In the Bankruptcy Code Is the automatic stay of Section )62(a). The Stay is a court order which is!rues aUiomatlcal· Iy upon the filing of the bankruptcy petil ion agai nsl all listed creditors and prohibits them from tilking ilny <l(Iion to create, perfect or enforce their lien, interest or claim against the debtor's property. Some of the v;'lluc of Ihc aulOmtllic Is lost If the debtor flies a pelition only 10 see a CredltOf Immediately sue his friend or rela tive as a co-dcbtor on the obligation. Previously, only Section 1301 extended lhe Slay uflder Chapter 13 to prohibit I.'f\forcement of consumer debts against an Individual whQ is liable on tnc debt with the debtor, or who nas gi...cn collB teral to secure p..'lYment of the debt,

st.""

The .... Iabama Lawyer

unless the cooebtor became liable In the ordinary course of his business. This prote<:Ilon has been repeated In Section 1201, and under both chapters the Slay of actiOnS againSt a cO<lebtor continues until the ca~ Is closed, dismissed or coo...crted, or until the coun orders relief from the stay for cau$C. A new subsection, (d), was added to Section 1)01 In 1984, and it also appc.. rs In Section 1201. The subsection allows termination of the st.lY 20 days a(ter a request for relief from the stay on the ground thattne plan proposes not to pay the claim againSt the co-debtor unless the debtor Of co-deblOr files and serves a written objection 10 the tcrmination.

AdequaJC proJection A secure(! creditor must file a motion for relief from the aUlomatic stay 10 enforce its security intcrest ilg.linst proper· ty of the esta te. II may allt:ge that because of accruing Interest on thu debt, decreasIng collateral value or a rllix ture of cirCUnlstances, the cred itor has lillie or no ua<!cquate pl'Olcction" for lis debt. See In re Mellor; 734 F.2d 1396 (9th Clr. 1984). Althougn this term is not defined In the O.lIlkruptcy Code, ~ rill examples are

suggeS1f.ofl In 5ec;tion 361 lor Chapter 11

and 13 cases. Section 1205 states tha t Section 361 docs not apply in (haPler 12 cases. In· stead, Section 120S(b) outl nes four ways in which the debtor or trustee nli!y fur.

nish adequate protection to a secured creditor. The firsl two melh(K!s are quite similar to thoSt! stalt.'d in Section 361. 5e(tiOn 120S(b}(1) aIld (2) aiiON the debtor to COrilpcnsa to the secured Cflli ty w ith periodic cash payments 3r'1d additional or replacement liens 10 the eKlcnt of any

decreilsc In the value of Ihe secured IJro perly.

The third method Is unique to the farming sil ualion. St."Ction 1205(b)(3) allows the debtor to pay "to soch entity (or the use of farmland the reasonable rent customary in the community where the property Is locillcd, b.lscd on the rental \I<llu(l, nct income and earning capacity of the property , , , , " This subSt.'(tion will alter the protectiOn nC(eSs,'lry either to maintain the "tXIulty cu shion" of an oversccured creditor or compcnS<lte the "lost opportunity COStS" of an undersecured credi tor, In re American Marlncr Industries, Inc" 734 F.2d 426 (91h (if, 1984); Cwn·

r..17ewcll T. Shepard, III, Is II partner In the Huntsville (lrm of Bell, Richardson, Herrington, Sparkman & Shcpard, PA, and n.1Sserved 115 11 sI..lnding Cn.1pler 7 and /I IrUSICC since 1980. He is a 1976 gr<lQUaie o( Oaf/moulh Col/cgc pnd a 1979 graduare o( the UnlversilY 01 Alabama School of Law.

dy Notional Bank

II.

Tandem Minlns

Corp. , 754 F.2d 1436 (41h Cir. 1985) In

Chapter 11 the lalter usually means cash payments to the credi tor to compensate for the accruing interest on the debt, up to the value of the coliater.. 1. Recent decisions already have slOYJed the momentum of the Amer/c.m Mariner viev.' of adequate protection. In re Timbers of Inwood Forest Assoc., Lid., 79) F.2d 1)80 (5th Cir. 1986) HOY.'e\ICr, Congress pen;;ei~ this concept as a sufOcle/'ll threat to the already struggling farm bankruptcies to draft Section 1205 to replace the ~Indubltable equivalent" requirement of Section 361 with this much less wingent "reasonable market rei'll" test. Thus, Congress had made an Iml)Ortanl policy (lecision in fllYOf of the farm debtor, and secured farm lenders must bear the burden.

Sale free and clear of liens Under Section 362({), a Chapter 7, 11, 12 or 13 trustee may sell property of the estate oulside lhe ordinary course of busIness free and clear of OIhf!!'" interests and liens only If the enlities holding such in· terests or liens conS(!nt Or the sale price is sufficient to pay all such claims In full. The section also authorizes sales when the Interests or liens are disputed. Section 1206 iluthorizes Ihe Chapter 12 trustee after notice and II hearing to sell farmland or farm equipment free and clear of Interests C1l'1d clllims, which will attach to the sale proceeds. Thus, the requirement that the creditor receive full payment or agree to accept lesS(!r payment is eliminated for these two types of colla teral. The conference report justifies this im· l)Ortant change by flO!ing that many farm oonkrup!cles become deadlockf!d over the sale of unneo::cssary assets. The debtor often feels that he can get a better price through a prillJte or public sale than bot' letting the creditor dispose of the collateral. The creditor, on the other hand, may be u,......IUing to release 1t5lien on the most valuable portion of its col· lateral or allow asale which would leave the balance of lIS deb! unsecured. Congres! has resolved th is argument and again made a significant policy decision In fallO( of the fMm debtor.

The report aflSues that several (actors remain in the credl!ol"s flWOr, First, the sale must be authorbed bv the court after noUce and a hearing. This may weed OUt the more speculatiYe and imprudent SClle proposals. SecQnd, the creditor's interest attaches to the proceeds, and the conference report declares that no debtor may use cash collateral Wi thout consent of the secured credi tor or authorization by the court. This is intended to protect the creditor from a debtor who converts his assets to cash and hides or wastes the money before converting to Chapter 7. Third, the creditor has Ihc right under Section 363(k) to bid at such a sale and, If successful, to offset its claims against the purchase price of the property. The Chapl er 12 plan Under Section 1221, the debtor has Ihe exclusive right to file :I Chapler 12 plan within 90 days after the case Is flied, although Ihe court may eKtend this peri. od for substantial justification, Section 1322 states only that the Chapter 13 "debtor shall file a plan," but Bankruptcy Rule 3015 requires that the plan be filed wi thin IS d:r;s after the petition, although the Courl mtfy extend the lime ~for cauS(! shown." The Chapter 12 plan requirements of Section 1222 are s mUM to those for Chapter 13 under Section 1322. The Ch')pter 12 pliln must provide for the submission of all or as much as nt!cessary of the debtor's future income to fulfill the plan. The plan also muS! furnish deferred full cash payment of all priority claim s, such as trustee's compensation, attorney's fees and taxes, and affofd the same treat. ment for all claims In a class unless waived by consenting dalmholders. Section 1222(bl Slales how di((erent classes of claims may be treated. The Chapter 12 plan may pul consumer debts In a SCI)artlte class and treat them dlf· feren tly from other unsecured claim s. Section 1222(b)(4) allows the plan to designate that P<l)'ments be made on an unsecured claim al the same time as payments on a secured claim. The plan also may modify the right s of any class of secur'{!(! or unsecured claims and cure any default, while maintaining the regu· lar payment schedule, whether the pay-

ment will finish before or after the plan. HO'NeVCr, the right to curedeitlult may be CUI off by a foreclosure sale of Ihe mOrlgag(!(! property before fhe bankruptcy petilion is filed. In rt Glenn, 760 F.2d 1428 (6th Gir. 1985 ) A few differences between Sections 1222 ilnd 1322 are app.lf(nt. Ch<lptcr 12 lacks the Chapler 13 prohibition against modifying Ihe rights of a secun.>d creditor in Ihe deblor's residence and the provisions of Section 130S and 1322(b)(6) (or payment of poStpclitlon claims. Also, Section 1222(b)(8) permits the plan to proYide for sale or diSlributioo of proper· ty to secured creditors, and 1222(b)(9) specifictlily authorizes payment of secured claims (M)r a longer IJeriod than Ihe five-year maximum life of thc plan. Standards for confirmation Sections 11 28 and 1324 do not set the time for a Chapter II or TJ confirmation hearing, although 8i1nkruptcy Rule 2002(b) requires the derk to giYC parties 411 least 25 days advance notice by mail. HCIWI'.M!r, the Chal)ter 12 conOrmatlon hearing must be concluded with in 45 days after the plan Is OIeet "except for cause" under Section 1224. The confer· ence report stateslhal a busy court calen· d<lr would constitute "cause" for a l<lter heMing but admonishes judges to sp.lringly use thi s exception. In Chapter 11, a disclosure stalemel'll must be prepared, flied and apl)fO\.Ul I7t' the court under Section 1125(b) be1'ore IIOtes may be solicited , Since there is no IIOting process In Chapter 12 or 13, no disclosure slatement is required even Ihough the debtor is engoged in busi· ness. A cl\Xlitor's acceptance or rejection of the Chapler 12 or 13 plan simply fortes the debtor's plan to mC(:t certain statutory cri teria. Sec III ro Rusluon, 58 B.R. 36 (Bkrtcy. M ,D. Al 1986), Any party in interest, Including the trustee or the U.s. Trustee, may object to confirmation of II Chapler 12 plan. If the debtor modifies the plan prior to confirmation, the modified plan becomt.>s the pl .. n under St.'ction 1223. It is not necessary for a secured creditor to reOie an acceptance or rejection after modifi· cation unless It affects Ihe rights of that creditor.

January ,987

St.'Ction 1225 requires t~ court to make six specific findings before 11confirms a Chapler 12 plan, Including Ihe debtor's proposal of Ihe plan In good faith and ability 10 milke the scheduled I>i.lymcnts. As under ( hal)ler 13, the Chapter 12 plan may Simply plOIIlde thai uns«ured creditors will receive not less than they would receive If the debtor's estate WIl S liquidated under Chapter 7. Thus, If Ihe debtor has limited disposable income nnd no equity In his assets, he could propose II lotal payment of 1 percent 10 unsecured creditors. In fa ct, an Alnbamll court has held Ihal a Chapler 13 plan containing a zero payment to un· secured crt.'d itors provides for such d alnlS under Sec;tion 1326(.1). In re Slol/cnwerek, 6 B. R. 297 (M.D. AL 1961) Under SectiOn 722, a Chapler 7 debt·

or may redeem family or h o u ~eh o ld proptlrty from a lien securing a dischargeable consumer debt If the prOperty Is CXt!mpll.>d or abandoned . Redemption Is made In one lump som ll<lYment 10 the securL'd crooitOf. In re Bell, 700 F,2d 1053

(81h Cir. 1983) HQ'oYC'Nr, In Chapters 12 and 13 a 5eCored cia m is measured by the value of the collaleral at confirma· tlon, and the excess Is an unsecured claim under Sectlon 506. Thus, full payment of a seco red clai m under the plnrl achieves redemption of the secured collateral during the term of the plan. If an unsecured credi tor or the trustee obJects 10 coonrmation of the Chapter 12 plan, the court must make a forther findIng prior to confirmation under Section 1225(b). Either the claim of the objecting party must be paid In full under the plan, which meilns that ~ry claim in its class will be paid In full, or the plan must provide that all of Ill<! d£!btor's disposable income will be applied to payments und~ the plan . The term "disposable Income" Is de(InL>ci as Ihat portion of the debtor's Income which is not reiJSOnably necessary (or the maintenance and support of the debtor and his dependents or for the continuation and operation of the debtor's business. The con feren ce report notes

that a debtor may have a minor business whlc.h is not related to the farming operation and states that the fIOn -farmlng buslncss e~penses also may be deducted to arrive al the "dispos"blc Income" to be applied under the plall. The report leaves the definllion of "minor" outside boslness to the court's discretion.

Post-confirmation matters Chapter 12 confirmation Is binding on each equity holder, partnCf and creditor of Ihe debtor under Section 1227 whether ils claim is prOvided (or by the plan and whether it has rejected or objected to the plan. Connrmation also vests the property of the estate in tnc debtor, f~ and clear of any claim or Interest pl'OYld. ed for by the plan elCCepI for nond ischargeable and long-term obligations. Congress was COm:;emed that the farming debtor be able to obtain POSIconfirmation credit as the Chapter 13 debtor may In thoofy under Section 1327. Thus, Section 1227 contains the same language to allow the debtor to secure

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post-confirmalion financing with the which rl"YeSt in him at confirma· tion. Of course, Ihis will be limited to the extent that such assets are encumbered by Ihe plan and the confirmation order. The Chapter 12 Iru S I~ is authorized by Sections 1202 and 1226 10 collect llnd distribute tile debtor's payments to crt.>d· Ilors aftor conflrmatlon, except as olherwise stawd In the "Iiln. Presumably, Illls rcfcrs to Inst<lIlces where tender of the money by the debtor directly to the credhO( is more praCtical, such as rcguillf paymentS on a long.term obligation. HO'NL"Yer, Section 1226 does flOt contain Ihe te(luiremenl of Section I)26(a) thdl Ihe deblor "commence making thc pay. ments proposed by a pilln within IhlrlY days ofler the pliln is fill>d ." Section 1229 pcrmlt~ liledlflcatlon of the I>Ian by the debtor, the trustee or ;my llnsecur(.>d crLodltor at any time after con· firmation and before the last payment is made. The l1lodlflC.1tlon may increase 01 reduce the amount of the p..1)'menl 10 a class of claims, I.'Xtend or reduce the life of Ihe plan or aher the paym(!TII 10 a creditor to take illlo accounl any olher Po1)'ment received by the creditor on ils claim . The Stalulory plan requirements, including the lime limit of fiYe years from the dille of the first payment, al)l>ly to the modifit.od plan, which becomes the confirrned plan unless disapprovt..,<1 by the court upon notice and a hearing. il~scts

Discharge under Section 1228(a), which Is modeled on S<!ction 1328(a), the court must granl Ihe Chapter 12 debtor who completes his ptan payments a discharge of all debts l>roYlded for under Ihe plan or d isallowed under Section 502 unless the debtor signed a wiliv(!r of discharge after the calie was filed . Section 1222{bl

prohibits discharge of any long-term debt on which the last payment is due after the date on which the final plan payment is due. HQY.'I:!Y(!r, Section 1228 does not conlain the Chapter 13 exception to discharge of SectiOn 1328(d) for a consumer debt Incurred afler the case was OIed If the trustee's prior approval W;'lS not obtained. The 8rounds of Section 727 10 deny a dlKharge apply only to Chapter 7 cases, but Chapter 12 and I) discharges do not bar the exceptions 10 diKharge in Section 52)(a). Thus, a plan must provide for full payment of nondlschargeable debts, such as taxes, If Ihe debtor Is \0 receive the (ull benefit of thc Chapter 12 or 13 discharge. See In re Rushton, supra. SL'Ction 1228(b) adopts the "hardship discharge" of Section 1)28(b) for a dubtor whose failure to cOlllplete the payments Is beyond his COntrol. However, the court must find Ihat the unsecured creditors actually have received as much under the plan as they \YOuld if the case had been converted to Chapter 7 and th.lt modification of thc Chapter 12 plan 15 not praa iCill. A Chapler 12 or J) discharge may be I'('YQktod upon f'(!(IuCSt of any party under Section 1228(d) Or 1328(e) within one ycar after the discharge was granted, only if the debtor obtained his dlschorgc Ihrough fraud which was not known to the requesting p.lrty until after the discharge was gremte(!

5am.OJi (d'II -

"ur rnu~ 1 ,, 1~",,~tllln COI1tKt: Olvhl"'l of ""ral~,al Siudiu Sarnrol~ Un lvcr.; hy

a Chapter 13 case under Seclion 1307(c) or a Chapter 11 case under 1l1 2(b) be converted to Chal)ter 7 or dismissed for Hcause;' Including the debtor's unrea ~n able del.lV, denial of confirmatiOn of a plan alld debtor's material default under the terms of a conflrnled plan. HOWC\II!r, both sections contain a prohibition against involuntary conversion of a f.urn case 10 Chapler 7. although farmers haYe been liquidated under a Chapter" pliln proposed by Ihe credltOIl. See Maller 01 /dsik, 727 f.2d 1379 (Slh Cit. 1984). By conlfilSI, the COurt nlay convert a Chapter 12 case to Chapler 7 under Seclion 120B(e) "upon a sha.vlng thai the debtor has committed (rJud In connec. tion with Ihe case. " Section 1208(c) adopts the Chapter 13 examples as cause for Chapter 12 dismissal ;lf1d iln ..ddilional example (rom Section 1I12(b) of "continuing loss 10 or diminution of Ihe estale arld absence of a reasona ble likelihood of rehab1l1tatlon.H Conclusion Chal>ler 12 clearly favors the farmer debt(lr over his creditors more than Chaplers 11 and 13 with the ureasonable markel rcnt ~rslon of adequate protcclion Jnd aUlhorlzalion to sell secured property free and clear d Ilcns without the consent of lienholders. 51111, some seclions, such as that authorizing poSI. pclilil;m credil, may provide only t~ retical aid 10 most debtors. O nly time will lell wh(.'Ihcr Chapll'r 12 really meets Congress' Intent of proYiding substantiill relief to America's Irisoll,(!nt "family farmers:' • U

Conversion, dismissa l and pending

" UULlC RECORJ) SERVI Ct;S (lOS) 262 . m.ro !'enl OWn IJox 11'65 MomgOmtfY. A1. 361 I 1

A~ 1~ ...llJtotIo>w""V I.",..""",

'''''Any, party In Interest may rcquestthat

cases The conference report for Chapter 12 urges the courts to resiSt routine conYer· sion of existing Chapler 11 and 13 farm cases to Chapter 12 . The most Iml)()rtant consideration is the likelihood of success In Chapter 12, but the courts also should

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"'''''''-''' ''' ' ALl5229 (20511170-2783

note whether major ruli ngs h;lYe alre<tdy been m<tde under anotner chapter and the parties haYe alre;ldy relied on C)listing

...

Unr\rcrSl~

Unirorm

COlnmtrClal Code Starches Aim • Court II OU~ Se.,c hn • I'ubtk ~r.kf • COIP, I nrorm~lion Comminion It n'Old. • Tn ,",,>e'l lllcm • Suit'

• JudlimenlS

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• !.ein,

• Itc.ureh or any dftlft nlcd

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January 1987

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News

Certification for nonc ompliance Altorncys whose roports or, In the alter· native, deficiency plans, are nOt rt.uived by the MCLE Commission by January 31 will bf: cerlified to the Discil)lInary Com· mission for noncomp'iance. CertiOcaUon carries with it the possibility of suspen· sion of the privl1cgCl of practicing law, O c tober 10 commission meeting AI its October 10 meeting in Mont· gomery, the MCLE Commission made the follOWing dccisions: 1. Amended Resuilltion 4.1.15 to f\'ad

itS

follOYlS: Heginning January I, 1987, sponsors of appl"1M.-d progr~ms must agree 10 submlr to the commission a list of Alabama State BM rilcmben; attend· ing each prOjo\ram

by Mary Lyn Pike Assistant Executive Direc tor

Deleted was language requiting SOCiill securi ty numbers and time spent in ill· Icnd;mce , NumbeN; will be r~uested but nOt mandatory; time spent In aUl'ndanee will not be recorded by sponsoN;, 2. Amended Regulation 4,2 to read as

1986 credit report due All 1986 ClE reports ore due by Janu{lry 31, 1987. Credits earned by December 31, 1986, afC 10 be reported (e.ICcepl as discussed below), and extra credit$ IO be used (Of 1987 mUSI be cloimed . All 1986 courses attended musl be re-

ported in order to Uc ust'<l to ml.'et the 1967 requlremcru: any lcit off a prL'Yious-

Iy submitted report may be submitted as amendments, thrOugh March 1, 1987, Simply photocop,' thc prior repo". make addillons 10 it, m,lrk il 'i'\mcnded" and submit It to the MCLE Commission.

l..lle filing If the required number of credits (12.0) W,lS earned dufing 1986 but the report is filed after January 31, 1987, the rt!1>orIing attorney must allach a laic filing fee of SSO In Ihe form of a check made payable \0 the Alllb,1ma Stille Bar In order 10 be In compliance. late compliance If 12.0 credits WCrC not ~arned by December 31, they may be earned Ix.. tween IMua ry I and March 1 If II d l'fj · clcncy plan is submilled by JanuM)' 31 and approval is oblained, Approved courses muSt be IIstt.-d, a long with their diltes and locatloos and the Crt.-diI5 to be earned, The Alabama Lawyer

follOYlS: A II~ of organi1!al1oos whose corulnuing legal «Iucatiao activities affll>fflStlmpllvely ~ppfoved for credit shall be compiled and published annually by the Clf Commlnion. Other Of> ganlurions ~ be added 10 the list as thelf ldenrlties md IllQgrilms are confirmed by the conlmlssion. Deleted was languag~ requiring Incor· poration 01 the list ioto the regulation. J. G~nted a wai¥l!r otthe 1986 Clf Iequ lremet'1tto an attOfney recOllerlng from a healt ~nJd; 4. Denied credit lor attel"ldJIICe of an AI<looma Law Institute Council mOOt· Ing; S. Discussed the Prolet ce and PfOC«lUfC Sectlun's failure 10 meet the COUf'S(: eY,)lumion rcquifemcnt: 6. Appfoved lXI't 01 the "london instl. tute 01 Cornparatlve Ad'oOCacy," COn· ducted by thc McGeorge School 0( L<IW; 7. Postponed consideration 01 the ''Annual Mcetlng." Attorneys' Uability ASSur~nce Society, ltd .. pending dis1flbutlon 0( course materials to com· mlnloo members; a Approved pan of a MObile /\sseclillion 0Ileg.:!1 Anistlnts' seminar on the ethical use 01 paralegals; 9. AppftlVed pan 0I1~ "AnnUIiI Coofer· enct'; Southern Association 01 ~. ers' Compensation Adminislralon; 10. Approlled part of tOO "'--" Office ManalfCmellt" seminal, Alab.1ma Baf InstItute for Clf; 11. On a~al, denk'tl approYill 10, the

"liM' Office Management-Focus on Ihe Cllent~ Ioemln~f, Birmingham Bar Young Lawyers' Section; 12. On appeal, al>Proved !he "Coveln. ment COnlfK1 Law" course, Air l'oI'ce Instltuto (Of Technology; fl, Designated al>pftl\led iPQflK\tS 10. 1987, lIS 101I~: AccMd'I(!(.llaw schools (ABA. MLS)

"Admlnlstliltlw Office 01 Courts-Alabama Judicial College AIIlb.lf"M 1:1011 In~tltut(! fof Cl E Alab,1ma Consonlum 01 Lesal Sclvices PtoHrams Alabama Cr!min~1 Delense lawyer. Association Alabama Dc(ense law,.lD Alsoclation Alabama District AltOfrwm AsSOCia tion 'Alabama lawyers Assodaliao Alabama State Bar and bar sections Alabama Trial lawyers Auoc atiofl 'Amcfican Baf Association and bar sectiOns Amefican Collcgt! of Trial Lawyers 'Amerlcan I..'Iw In$litutC-Anwrican Baf A~soclatlon, Committee on Continuing ProIcsslonal Educalion .....ssociation 01 Tfial Lawyllrs 01 America Bar assoclmlons 01 the slSlur Stllles, the Di~rict of Columbia, Puerto Rico a,l(! the Ifust tCrrltOilb Birmingham I:\ar Association 'CommeN.;lal '--" leaguc F\lnd for Public Education CUMberland Instilutl! !of elf 'Defense Research In~tituttl 'Fedef.. 1 Baf Association, Montgomery ChaPtcl fedet<\1 8<lr A~',odatlon, Nonh Alabama ChaPter Huntsville-M;idlson County Bir ASiOClation 'Intefnational Association of tnsurance Counsel legal sec:tloos, agency J>t08'~ms-u,s. and stalll g<M!rnmllfllS Ubfilry d Con~s-COf1gressooal Research Service

Mobile Bar Association MOntgomery County Bar Association Mon tgomery County T"al lawyers Assoclntlon N1I11onai Assoclarlon of Bol"Id lawyers 'N~t ionai Oaf AsSOCiation 'N~tIOnal Collcgll of District Attorneys National College of IUIICnlle Justice National HCJhh l <IWYC rs Assoc:lnllon 'N3Ilonal InStitute for Trial Advocacy 'Natlorl31 Judicial College National leg.ll Aid and Oe1'ender AssociatiOn National Org.1nllatlon 01 Social Security Claimants' I(epu:.·scntati~s N3Ilonal Rural Electric Cooperatlw Association, legal Division " ~teflt KesoufCCS Group. Inc. 'l'IOK'IISl ng l3W Institute 'So.rthwe$tern l.e&11 Found~tlon 'Tfansportation I..lwycts Association Tuscaloos;a Coo",y Bar Auoci;ttlon lUscolloosa Trial l.."lW)'ers Assodation 'Approv.Il contingent on fnQIe ","ely submission 0( course cvaluadons • l5

Damages Recoverable for Wrongful Death in Alabama Under the Federal Tort Claims Act by

D~lcr

C. HoblJs

Th~ AI;lbm" ll practitioner is well aware thai only pu ni tive damages Me

(CCoYCrable under Alabama's wrongful death statute. §~s.'uo. Code 01 AI,lOama (1975) The l)uniliYe damage award (or a wrongful dca:h is measurctJ by the gr.wity of Ihe wrorl& Ihe propriety of punishing the wrongdoer and the need \0 dl!tm olhers from similar wrongful cO lldu CI. Es/Cs He.llrh Carc Ccmers Inc. v. BnnllCrm/lll, 411 50.2d 109, 11 2 (Alil. 1982) Wha t happens, nCl'We'o'er, when a

wrongful dCilIh casc is brought in Ala· bOlma under the Federal Tort ( 1111015 ,4,c\ which prohibits an award of punitive damages dgJinsllhc United Statesl The Ahlbama lawyer then must value a human life In terms of pecuniary losses.

This article addresses Ihe compensable damages recoverable under the Federal TOri Claims Act in il wrongful death case in Alab'lnlil. Generall y, II civil action for wrongful death against the United States must :ll>' ply the law of the stJte where the wronH' fut act or omission occurred. 28 u.s.c. §1346 H~r, the Feder,.1TOrt Claims Act, 26 USc. §26n, e. seq. (hereinafter referred to as "FTC\'1, expressly prohibits an aw<lrd of puni:iYl! damages against lhe United States. 28 U.S.C §2674 For some 'y'I!ars, a claim against Ihe Unittod Sta tt'S for wrongfu l death which inY!}lV(.od an apllUca tlon of Alabama low could 110t succeed, si nce the I)Unitive damages allONCd under Alab.l ffia law are fOrbidden by the FTCA. 28 uS.c. §2674 In 1947, Congress remedied this unfair treatment to those bringing a FlCA case In Alabama by amending the FlCA to prOYide that If there is wrongful death claim under the FlCA and the applicable state law only allows punitive damages, then "the United States shall be liable for actual or comPEnsatory dami:lijc$, mea· 5'-lH.>d by the lX!Cuniary Injuries resulting from such death.... " 28 US.C §2674 16

The pr,lctitioner, therefore, must deter· mine what damaijcs are included within the provision, "actual or COrllpcnS3l0ry damagcs, measured by the pecuniary in· juries result1r\g from death," Is loss of coosortium recovcrable? SUI>POSC the deceased suffered for a considerable time I)rior to his death. Does a cLlim for pain and sufferin g survhc his death? How does one CQfl1pute loss of future earning~ or loss of future service? /loyr v. Un/led Srates, 286 F.2d 356 (5th Clr. 1981) provides some guld'lnce. In /-Ioyl, a seven.ycilroold boy was kl1h.ld at Fort Rucker. The deceased child's fa· ther filed suit under rhe FlCA. The district court found in folYOr of the father, but reasoned Thar the only pecuniary loss to be awarded for the child's death was the funeral expense of S579,22, The disIrkl court concluded Ihal arT)-' calculation of the pecuniary benefils the p.lrents could reasonably h.we expected to receivu during their lifetime and the lifetime of th~ (kx;ea$ed was tOO $pocuhl1 ive to be rt!coverable. The Fifth Circuli cor· ll.'Ctly reversed, nndil'lS that, while such damages cannot be e!ttabllshed with cer. talnty, the ri sk of the uncertainty should fall upon the wrongdoer and flOt the In_ Jured parry. 266 F.2d at 360-J61 Hoyt est3blished that federal law, not Alilbama liM', applies in determining what compensable damages arc recoverable (or wrongful death In Alabama under the FTCA Fedcrallaw should be determined by referring to the Federal Employers' liability !\cl, 45 U.s,C, S5 1, and the Death on Ihe H i/!h Seas Act, 46 Us.c. §761. The Noyt Court embraced the followIng general meaSure of damag(.'s: The damagcs should be equlv~tent to compens.lIlon lor the dep.-lv.ulon olThe reasonable expectaTion 01 pecuniary benefiTS that would J'liMl rMulted lrom the continued likllli The dcce~M!d ,

286 F.2d at )59, quot/ns from Chcsap<!alw & Ohio Ry, Co. II. Kclfy, 241 U,S, 465, 489 (l916) (constru ing the Federill Employt'fs' llitbWty Act)

Damages (or loss of fUlllre earnings and services are clearly compensahle and rhe primary source of damages, Where dl)<JIh is to a P<lfCnt, services which are compensable include "the nurture, training. educatIon and guid· (lnce that child would have received had not the parent been wrongfully killed:' Sca-t..and Serllices If, Gaudet. 41 4 U.S. 573,585, reh. den /ed, 415 U.s. 986 0974) (Involving a wrongful death case brought under federal marltimtl law In addition, compensable scrvlces are those per· formed for the household or for the spouse. Id. Sec Edwards II, Un/led Slale5, SS2 F.Supp. 635 (M .D. Ala. 1962) (both types of services compensable In FTCA case for wrongful death ofhoosewife .. nd mother). tf the deceaSt.>d was a parent, evidence should be Introduced of lhe deceased's services and con tributions 10 his children's development. Likewise, (,'Vidence snauld be oomillcd to show the approximate time spent and the type of serllices the deceast.'(! routinely performed for the household .mel/or the spouse. Ellidence tha t the dcccaSt.od Ole· tU(llly rendered such services Is a n¢c~sary predicate to I'CCOYCting this item of damages. Solomon v, Wlrren, 540 F.2d 777 (Sth Cir.), reh, denied, 545 F.2d 1298 (5th Cir,), cert. dismissed 434 U,s. 601 (1976) Damages for the loss of parental nurture to a survilling child gen· erally cease when Ihe child reaches mao Jorlty. Id, In calculating damages for loss of future earnings, it Is assumed that the deceMIYl would have continued to v.'Ofk and rcceille wages periodically until his retirement or natural death. Jones & /.;Jushlin Steef Corp. v. Pleifer, 462 U.s. 523, 534 (1963) For this reaSOn, morlality tables should be Introduced to establish wha t the IIfc cxpcct3l'lCY of the deceil~ was JUSt I>rior to his death. Any evidence of how long the deceased had planned to work before rel iring also shou ld be imroduced. The very r cem Congressional .let prohibiting compul· sory retirement would seem to preclude January 1987

any <lulomiltic cutoff ill age 65, for exam· 1)le. Age Oiscrimination and Employment Amen(!menl of 1966 Future ear· nlngs should Includf! not only the d~ ceased's actual W.lgC, but also any fringe

benefits deri...w (rom pension and reHremel'll plans, proft sharing. Insurance ccycrage imd other Iypes of eml>loyee bene-

fi ls. The Unitl'd St~W$ Supreme Coul1 has offered the (ollowlng nlelhlXl il'l (aICulatlng lost cilrnlngs: mhe Ors!

~Iag(!

In calculating an

III)pf'Ul}riatc ~lVo\lfd for 1051 earning~ In-

volves an est l~late of what th e 10$1 ~Ifeam of Inceme would hiM! been.

The stream may be apPlWlimawd as a ioCriCS of a(I(.'IIo!<l~ payn1erlts. one In each year of the worker's expected remaining career. In esllmilling what those p-'lynlCtllS v.uuld h1M! been in an innaIion-frcc ecoll(lmy, the trier of fact ffi,l)' begin with the worker's annual wage III Ihc lime of injury. If sufficient proof

Is offered, the tr!er of fact may Incrt!~ that figure to reflecl the appropri ate In· fluence 0( Individualized factors (such as ftlr(..~~blc jlrOmOIloos) ilnd socictill l;W:lol$ (su(:h 1I~ for~ble productivi· ty growrh wiThin rhe worker'SlndlJstryl. 10/l(~s

& L.1ughlifl StOOl Corp. v. Pfeifer, 462 U.S. 523, 536 (1983) If tht de<:castd w.'s a relatively yl)ung person without a long history of past eiJrnil1gs, il VOCillionill expert should be retained . The \IOCalional expert can prOject the d<.'CCase<!'s future earnings, using ~uch fa(Iors as lhe dC(:eased's education· al background ~nd ,lcademic perform. tlIl CC, age and hc.,lth, IIf~ expectanCy, job I)roductlvlty, mental outlook and career ambitions, Some ofthe~ same factors were expressly approved by the COur'tlrl Hoyt v. United S!ales, 286 F.2d 356, 361 (5th Cir. 1961) .mel wt/lsville and N ,R. Co. v. Porler, 205 Ala. 13 1, 87 50. 286 (1920) when compuling the loss of future benefits arisirl8 frOm the dNlth of a ( hild. It Is Io',ICIl ~tablished th at Income taxes should be deducted wherl compu ting fu· ture earnings as damages under the FlCA. HiJfden v. Uniled SI.1Ies, 668 F.2d 1025, 1029-1030 (51h Cir. 1962) See Norfolk & \l\t'stern R. Co. v. Liepe/l, 44<1 U.S. 490, 493-494, rehearing (Jenied, 445 U.s. 972 (1980) (in a wrongful death action under Ihe Federal Employers' Liability Acl, after·tax income, rather than gross income before laxes, provides the only realistic mt;laS\11l;l of Ihe loss of fullirc earnings). Ik'Cause a damage aWiHd un·

The Alabama Lawyer

der the FTCA Is not laX<lble as Income, this rule docs not tax the plalrttif( twice. Without deducting Income laxes, Harden rca~ns thilt Ihe {IW(lrd wo\tld conSlilllte in p;H1 punilive damagcs which are prohibited under the FlCA. Harden does not ( Iadfy wh ether ~t(lle income taxes ,:lre also to be deducted. In OeLucca v. Uniwd Srales, 670 F.2d 643 (91h Clr. 1982), the court affirmed a JudgnlOnt deducting bolh slale and federal income taxes (rom ruture eJrnlngs. BUI sec Burk.e v. Uniled Stales, 605 F.5UI)P. 961, 991 (D. Md. 1985). In calculating future income ta xes Ihilt would hav(! lx'Cn incurred by the deceased, one should aillM' for Individual varia tion. ('CIder v. Un/ted Stares, 543 F.2d 657, 673 (9th Cit, 1976) For InstnllcC, Ihe deceased may have had unusually largc deduction son his inCO!l1e, If the deceas~ was filing jointly with his spouse and the deceasC(1 had several depend. enlS, or If the deceased had subSlantiil l losses from some side Interests, Ihen such fa ctors would have a considcr.. ble impaCI on his adjusted gross Income, Of course, any projections of future Income taxe~ must take inl(l iJccount the recent passage of Ihe lax Reform Act of 1966. A lump Sum "Willd of loss of future earnings or future scNices muSI be diSCOUllted to pre~nl value because the lump sum can be Invested 10 eam addl· tional nmney. Jones & Lauglllin Steel Corp. v. Pfeifer, 462 U,s. 523, 536 (1963) lhe discounll(lle shQuld be based upon a rille of intercst that would be earned on tht:! sa fast available inWStmllnts. Id. ilt 537-536 Obviously, the higher the Inter· eSI rale used, the g(eater the (eduction 10 present value; hov.\.'YCr, the market ralc of interest is offset to some degree by future price Inflation. There are several appro.lches 10 calcu11111'1 the discount r~ te. In Pfeifer, the United Slaws Supreme Court refu sed to endorse any ont! formula to calculate presen t value, but stated that application of a discount rale belween I percent and 3 percent would not be reversible crrOr if the tri al court explained Its choice. 462 U.S. ill 548·549 The Pfei fer court also refused to rule our use of the "lOtal off· set" method wherclYi the price inflation rale and Inlerest rale cllllcel each olher out. 462 U.S. at 549 Under this simple ilPproach, there is no discount rate, The discount rate is applied 10 "each of the

estimated Inslallments In the lost streilm of Incomt:!." Id. See Shaw ~ United S/illes, 741 F.2d 1202, 1207·1208 (91h Cir. 1984) {error for court to apply I percent discount rate to the tot<lljx.'cuniary injuries in ~lcad of making deductions from eilch annu .. 1 Installmentl. As previously stated, a calculation of loss of futule earnings mUSt be based Orl after·tax income. The Uniled States Suo Il reme Court hiJSindic<lted thil t the 1\lmp sum damage aW(lfd (which has been reduced to presenl value) should be incrca$L>(1by Ihe amount of lax that would have to be I>aid on the Income of the award, Norfolk & ~Sl(!rn R, Co, v. Lie-. pc/t, 444 U.S. 490, 495, reh . denied, 445 U.S, 972 (1960) Because plaintiff presum<.lbly will invesl the [lW.1fd, a full com· l>ensation for los5 of future support shQuld take intoaccountthl:! facllhal in· come taxes mUSt be paid on the inV$t· men! earnings. DeLucca ~ Uniled St.1tes, 670 F.2d 643, 644·846 (91h Clr., 1962) BUI see Flannery for Flannery v. Uniled SI<1!eS, 716 F.2d 106, 112 (4 th Ci f. 1963) {refusing to adjust a lump sum damage award under the fTCA to counter income tax effe<;t bec:auStil Ihe (IWiIrd could be in· vested in lax·ff(.-'e 5f.'Curilies). The Fifth C(rcultls Inclined 10 follow Fl,lI1nery "if the district courltook Into ..ccount the lower interest rales of lax exempt securities when fashioning the damage awMd:' Sosa II. MN L.180 Izabal, 736 F.2d 1026, 1034 n. 5 {5 th Cir, 19M} (eml)hasls added) AnOlher important consideration is that "the FTc!<S prohlbillon (lgainst punitive damagcs reclulres that the personal expen~s of the deceased be sulr lracted from an award of future t:!amlrlgs." HiJrden v, United St,ltes, 666 F.2d 1025, 1029 (51h Cir. 1962) The comper\Satory loss to the d<.'Cedent's family is measured by the Irlcome whiCh 1he decedent would have earned had he lived, less the arnount he would h;lv(! consumed had he lived, in ordN to faidy llleasure Ihal which the survillingfamHy has pecunlari. Iy lost due to his dea(h, The trial court must consider the standard or living or the de<:eas(>d and m{lke il ~ubstantia l deduction for wha t the deceased would have expended on his IX.'TSOnal needs and purposes. I-Iartz II. United St.1tes, 41 5 F.2d 259, 264 (SIh Clr. 1969) This same dedUClion is <,pplied to compute loss of fulure services. Edwa rds v. United S{IJtej,

552 F.5vpp 635, 640 (M.D. Ala. 1982) Covrts have uHlir.eeI varying "mounts to offSet fOr l)CrSQnal con sumption . See, (.).8., Delucca v. United Stales, 670 F.2d 843, 844 (9th Or. 1982) (loss of future earnings reduced 30 percent fOf decedent's consumpt on); Law v. Sea Drilling Corporarion, 510 Fo2d 242, 251 (5 th Cir.), rch. denied, 523 F.2d 793 (1975) (ul)held tri al court'S 15 percent veductlon for personal eKponscs ln calculating th e future earnings); Edwards v. Uniled Siales, 552 F.Supp. 635, 640 (M.D. Ala. 1982) (10 percent reduction to loss of future household services). A well-quillified economist is essential to tabulate loss cf futurt! earnings anvlor fu ture scl'llia:s. All expert economiSt call calculate future after· tax earnings includIng fringe belleflts, redu ce thi s amount to present value by applying an acceptilble discount rate and deduct from thi s an amount for decedent's PI:1/'50n"ll;onsumption. The expert el;onomiSl should 00 I;arefui to eKplain th e bases for his cal culations. An economist was effectively used In Edwards v. United Swtes, 552 F.Supp. 635 (M.D. Ala. 1982) to determine Ihe present value of the loss of future household services to the surviving family, after deducting for the time the decedent would have spen t on herself. Because FTCA cases are non.jury, the judge willgr.'.l SI) al\d tJpply such (;lIlcullllions more easily Ihan a Jury. Even so, the parties should attempt to stipulate such variables as the discount rate, effect of in· come la)les on decedent's fUlure earnings, dedllction for personal CO n 5 Um~ tion, deceased's fulure inl;ome induding fringe bel1efilS .'.Ind possible future promotions, ClC. By doing so, the average acddent trial will not become a graduate seminar on economic forecastlng./ones & Laughlin Steel Corp. II. Pfeifer, 462 U.s. 523, 548 {1 983} Are damages for loss of conSOrtillm recCM!rable in a wrongful death case in Alabama ul'lder the FTCA? Agllin, one must look to federal law for the answer. Consortium or society is the love, .'.Iffection, attention, companionship, comfort and protection which a famity shares. Sea-/,and Services v. Coudet, 414 U.S. 573, 585 (1983) II is well establi shed Ihalloss of I;onsorlium is nOt a "pe<:uni-

<try injury" under thl! FTCA al1d, Ih e r~ fore, is not recoverable as damages. /-IOYl II. Uniled S~tes, 286 F,2d 356, 360 (5th Clr. 1961) The court In /-Ioyt based its findings on the fact that court s conSlruIng the Death on the H igh Seas Act, as well <ts the Feder,ll Employers' Liability Act, hilVl'! denied claims for loss of 1;0nsortium. The courts hallC not wavered frOlll thi s position since Hoyt, Mobil Oil Corp. v. Hissinborham, 436 U.S. 618, 620·621 {1978} (OOHSA case)i Kelsaw v,

Union Pi/cific R.li1rood Company, 666 F.2d 819 (91h Cir. 1982) (FELA I;ase) O(lmagl;'S for em¢tional angui sh or grief suffered by the d(!cedent's survivors arc not ret.'(M:!rable In Alabama uuder Ihe FTCA. HOyt v. UnilOO Sw/Cs. 286 F.2d 356,360 (5th Cir. 1961) Damages (or th e dcce<1sed's con scious j)<lin and suffering. including mental anguish, occurring between the accident and his death are IeC()Vf!rable vndef the FELA, whi ch contain s a survival provision, and under federal nlafilime law. wulsvllle and N .R. Co. v. PorlCr, 205 Ala. 131, 87 So. 288 (1 920) (FELA case); Sell-Land Services If, G{wdCI, 414 U.s. 573 (1974) HOVVf!YCr, such damages arc not recO\lCrable under Ihe OOHSA whi ch has no survival provision. l.t1w II. Sea Dril/ing Corporation, 510 F.2d 242, 248-249 (51h Cif. 1975) The FTeA h(ls no svrviv(ll pr()v iSion, but instead looks to Slate law as to whether thc deceased's claim for pcrsonalll\jury survlllCs his death . Yel, HOyI provides that federal law. not state law, determines Ihe damages reccwcrable for wrong(ul death in AlabClma under Ihe rTCA. Thus, there 1$ no cI~ar an$w(!r to the n':C<MJry (If damages for the deceas(..>d·s pilin and sufferIng underth(! FlCA In Alabama . If recov-

eritble, plaintiff mUSt shov.o thill the de,uh wa s not instantaneous with the accident alld the deceased was conscious (ollowIng the accident and before his death. Funeral e~pen ses are reccwcrable by the estate. I( the deceased '1>1<1 5 a minor, then the deceased's parent who is pr;marlly liable for the fun eral expim ~es may r& over them. Hoyt v. United SlIItes, 266 F.2d 356, 360 11. 20 15th Clf. 1961) Any medical experlscs o( the deceased incurred as a pro)limate result of the fatal <lccident <Ire roc(M;lrable, a$ are <lOY pro~ erty damages. An award of pre-judgment inlerest is prohibi ted by Ille FTCA. 28 USC §2&74 H(M.'(!'.'er, post-Judgmenl intercst 1S rl'COVt)rable against the United Stllle s. 28 U S.c. §2411(b) A prevailing plaintiff also may recover costs of the proceedings. 28 U.S.c. §2412 Attorney fees are not recavcrable as Co;IS. C()ndusion Admilledly, projecli o n ~ of the de-CctJ~ed 's etJrning~ Md im;Ome taxes. personal consumption, future price infllllion as opposed 10 the Interest rate, Job Wemotions alld other variables are uncertain. Thi s is parli cularly so if the deceased was <1 child. As that Ameri can philosopher Casey Stengel once said: " Projections are always dangerous, especlllily when they involvt: the futum:' Nevertheless, the uncertainty of these variables does not preclude an award of loss of fulure earnings and future ser· vices. The tdal lawyer should present some of these proj(..'C tions (if they cannot othef'Ni se be 5tipul<lted) through the i1SSistilnl;e of <In economi st and, p<1rt i C~I larly if the dt.'Ceased was relatively young. through a '.Q(:ational expert. •

Dcx!Cr C. Hobbs Is a /i.1rlrler in the firm of Copeland, Frallco, Screws & Gill and a 1977 graduate of (he University of North Carolina at Chapel I-lill and a I ~80 g,.ldvi.lle the Universit y of Alabama School of Law.

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The Alabama Lawyer

Arbitration of Commercial Disputes: An Emerging Alternative in Alabama by John M, Heacock, Jr. I. The lega l background The uro of arbilrallon In Alabartla to resolve comme rcial disputes has been Infrequent. This undoubtedly 15 due In

large pari to Ihe Inhospitable treatm ent which arbltriuion agreements have Iraditiona lly fC(;cived in Ihe courts of our

stilte. "The public policy of thi s wile 1$

to encourage arbitration ilnd amicable seul(lments of differenCes between parties; but public polky also holds void an agrccment In advance 10 oust or defeat

the Jurisdiction of all coons, 35 to all dlf· ferences between parties." Wells v. Mobile (ounly Board of Rea/rors, Inc" 387 So.2d 140, 144 (Ala. 1980) Accord,

5.5. Steele & Co., Inc. v. Pugh 473 5o.2d 978 (Ala. 1985) And see, §8- 1-41(3) Cock of Alabama, 1975 ("The following obliga tlorlS ca rlno t be specmcally Crh forced: ... (3) An agreement to submit a controversy to arbitration;")' There Is some basis (or believing that the law in Alabama on Ihis subject may be c h(lnging-or may not be ilS clear as once th o ught-as evi denced by Ihe fol low ing observations of Jus!1ce M addox in a d issenting opinion later adopted by thc A labama Supreme Cour!: " t would point out tnnt rhe en forcement of arbi tration dau:;e~ In any ton1r.rC\, wtu.!thcr involving intrastate or in· Icnt ~tc commerce 15 1'101, In my opln. lon, clea rl y forbidden ... The enforceability 01 such agfl'em rinl~ in r::omrncrt:I~1 r::Ont r~Ct~ would seem to be permlned by curreot law and would not '/lolare th l$ stare'$ public policy. On the public policy que$tloo Ihis Coon has held: 'rhe Irue lesllO delermloe whether a con trlctls uoeoforceable bt!cause 01 public pol icy Is whether the l)vlJ.jlc Intercst Is lolvrlously aff!')cled In svch substantial manner that priVate rights an d intcrests should yield to those of Ihe public.'" Colston v. Gulf States Paper Corp., 2~t Ala. 423, 427, 262 So.2d 251, lSS (197)1

Ex Parle Alabama Oxygen Co., Inc., 433

So.2d 11 58, 1172 (1983) (d lssenllng opinion, lall!r adopted by Ihe court, at Icast as to matters of (eder,ll law, in Ex Parte Alabllma Oxysen Co., Inc., 452 So.2d 860 (A.la. !9841). Reinforcement (or this (avorable view of arbi tration under Alabama law is found in the reo c;cnt C-il~ of EJ( ParI/;! Merrill, Lych, Pierce, Fenner &. Smith, IIIC., 494 So.2d 1 (Ala. 1986( where the court, after declofI ringln a footnole that fede ral lawaI? plied, neverthelcss made th e (ollowing comment about the status of ilrbitr.)tion in Alabama: Furthmmorc, pl ~inti ff urgcs this COl)rt to look to Ihecolltr1)ct luw (If th iS state when detldlng whether the arbitration clause is un~nfofCeable. In so dOi08 we take note of Alabama's arbltral1onstJIlJle5, codll1ed at Code 1975, SS6·6-t, et sq., wtl.{;h look favorabty on arbitration as a means of :;ettling controversies.

Id. at 4. The (egacy of Alabama's historical reluctance to enforce orbltra tlOIl agreements haslx.>en a general lack of (amlll ar lty by members of the Alabama State Bar with the practice of arbitrati on and perhaps also a signlncan t degree of skep.. tlci~m abou t its value as a means of resolving diSputes. Bu t this situati on, or at least th e unfam lliilrity pilrt of it, seems destined to change ilS the increasing availability o( arbitrallon be(omes more widely known. Arbitr{ltion's cmergence as a more frequerlily utifized m ethod of settling com· merclal disagreements illmeilfS assured as a result o f rceCnt rJL'dsions of the United States Supreme Court constru ing, ilnd 5ubst(lnti(lily cnlarglng the scope of, Ihc Federal Arbitration A ct. 9 U.S.c. § 1· 14 (sometimes referred to hereafter as "the FAA" or " the Act") Fo r much of Its existence, the FAA, origi nally enacted in 1925, was largely ignort;!(!. In 1983, however, Ihe United Stales Supreme COurt held in Moses H, Cone Memorial Hospital v. Mercu ry Con5[fuclion Corp., 460 U.S. I, 103 S.C!. 927,74 l .Ed .2d 765 (1983) th at the ACt w as a Congressional declaratIon of polky that favored arbitr.ltion agreements. "The effect of (§2 of the Act) is to crea te

a body o( federal substan tive law o( ar. bitrability, applicable to any arbitra tion agreement with in the coverage of the Act." Id., 103 S.C\. at 941 The court further stated that as a matter of federal law, any doobts concern lrlg the intend· ed scope of an arbitration agreement were to be resolved in favor of {lrbitril l ion. Id. Likewi~, all doubts liS to whether an arbilrllti on agreemen t had been wa ived must be resolved In (avor of non·walver. Id. The court also observed that state courts, as much as federal courts, are obligated under § 3 of the Act to grant stays of pendinK litigation when the litigants beforc the court arc l>artles to an arbltratiOrl agreement tha t comes within the coverage of th e Act. IdOl 10J S.C!. at 9 42 w hllt type: of arbitration agreements are covered by th e Federal Arbitration Act? Under § 1 and 2 of Ihe Act, such agreements must be In writing and arise from either a maritime transaction or a con tract evidencing a transaction involving interst<rle cOmmerce. There is every IndiCation that Interstate COtnrl'lcrce Is to be irllerpreted broadly for PurllOses o f applying these sections of the Act. A significant statement on thi s point rceencIy was made by the Alabama Supreme Cour!: "The requirement of th e FAA Ihat an arbitration agreement 'Inyolve com· merce' has been co nstrued very broadly so that the slightest nexus of the agreement with intCr'$ta te commerce will b ring the agreement within the ambit of the FAA." Ex Parte Costa alld /-Iead (Atrium), Ltd., 486 So.2d 1272, 1275 (Ala. 1986) Most con struction projects, since they typically involve materials shimx.'d across state boundaries, would appear to fall within Ihat ca tegory, as would large numbers of Olher commercial transactions. See, Ex Parle Coslallnd Head (Atrium), Ltd" supra; Ullited Slates v. Neumann Caribbeiln Incerniltionill, Ltd., 750 F.2d 14 22, 1426 (9th Clr. 1985). If the reach of the FAA does indeed ex· tend to all contracts that Congress co uld conslitutionally regulale under the Comll'iCrcc ClllUSC, CIS indiCill/,.>d in Synder v. Smith, 736 F.2d 409, 418 (7 th Clr. t 98 4), the potential imp..lct of the Act Is enormous. Consider, for example, th e

January 1987

implications of a recent United Siaies Supreme Court opinion (nOI involving arbl1r;Ulon) whi ch applied Ihe Com· merce Clause 10 the rental of a two-unit apartment. Russ~1I v. Ulliled Stales, _ _ U .s. 105 S.C!. 2455, 65 L,Ed.2d 829 ( 1965) The Supreme Court In Southland COfp. v. Kealin& 465 U.S. 1, 104 S.C!. 652, 79 LEd,2d 1 (1984) made clear wh('t had been implicit In M05e5 Cone, that the Federal Arbitration ACI overrides contrary Slate law under the supremacy clau se and mandates the arbitrability of claims covered by a written arbltr.1t1on agreemen t in a transactlon Involving in· tcrstate commerce. In Southland, the CalifOl'nia Supreme Court had held that a state statute required judicial con· sidera tlon of all claims brought under It. The United States Supreme Court reversed the stOl te court's ortler denying Ilrbltr:lIlon and stated : " In enncting §2 of the Federal Act, Congress declared a national policy favoring arbitration and withdrew the powCr of the states to require a judicial 'orum 'or the resolution of claims which the contracting parties agreed to 1"(,.>sQlve by arbitration." Id. 104 S.C!. at 658 Subsequent cases dc(;ided by the Supreme Court likewise have consistently favored arbitration. In Ocan Witter Reynolds, In(;. v. Byrd, _ U.S. =~. 105 S.C!. 1238, 84 l.Ed.2d 158 (1985) the COurt hcld that judicial en· forcement of arbitration agreements is required even if there arc related daims that arc not arbitrable, and the result is " piecemeal" IiligJtion. The case of Mit-

sublsh'l MOlors Corp. v. Soler ChryslerPlymoufh, _ _ U .S. 105 S.C!. 3346, 87 LEd .2d 444 (1985) held that agreements to arbitrate Sherman Act disputCS ilfising (rom international transactions are cnfOrceable. And in Thomas v. Union Catbid~ Agricultural ProduclS Co., _ U.S. , lOS S.C!. 3325, 67 l.Ed.2d 409 (1985) the court permitted Congress to require binding ar· bltration as the only means of deciding certain dlsputcs mder a federal sta tutOfY program,

II . Practical considerat ions What are the most important conslder,uions for tile practich\g (\fIOrney and his or her client In light of the increased availability of iHbitrJllonl The most Significant Is probably this: If a client does business In Interstate com· merce, as many do, how would he or she want potential disputes with custom· ers, competitors and suppliers to be

The Alabama Lawyer

resolvedl Would he want them submit· ted to a jury? Or would he prefer to specify In advant;;e tile quaUficatiOr\s, in· cludlng cxperien(;e and educational background, of the declsion·makers? ArbitrJtion nffords the ellcl\! lin opportunity to en fo(t;;e such choices by expressing them In a written arb·triltion clause. Such a dause, If agreed to by the parties In a transaction Involving interstate com· merce, constitutes a binding waiver of the right to a trial by jury and ma"dates that thc arbitration panel be composed of l>ersol1s who fulfill the ro<lulrements set forth In the ptlrtiCS' agreemen t. In short, the FAA provides con tracting l>arties with the ability to "write their own ticket" reg.udlng the mechanics of dispute resolution in a transaction covered by the Act. This is no small mailer In an cra of in· creaslngly sophisticated technology and complex business dealings. If one's client Is Involved in a speciali zed (;ommercia I activity and partkularly if he takes pride in the quality of the servi(;e5 or products that he provides, iI is likely that, If asked, he would want persons with similar experielKc and qualifications to decide d ispu~ In which he may become embroiled. 8y Inserting iI properly worded arbitr~tlon provision in clien ts' contracts, an ~ttorney can enable them to accompli5h that result. What language should an arbitration clause con tain? The American Arbitt<!lion Association, a non.profit organization establi shed in 1926 and operating through 24 regional offices across the coun try wi th 11 Pilllci of over 50,000 ar· bltrators, recomrncndSthe foHowing provision for InSCrtIOI\ In ~eneral commer· clal COll tracts: " Any (OlitrOYMy Or claim arising oot 01 or relarlng to thiS ((Intract, or the breach th~eof, shal be settled by ar· bitration In accordafICe whh the Com. merclat Arbitration Rules of the Amer· Ic~n A.rbltratlon A.ssa:lmloll, and IudS' ment Ul)On thl! aWilrd rendcred by Ihe ArbitriitorW may be en tered In any Court having jurisdiction tht.<rcof." This clause has 5ufr1cient breadth to rover not only con tract disputcs between the I)arties bul also asoertlons 01 fraud or other tort claims related to the formation of the contrJd or arising 01.11 of Its per· formance . Blumberg v. Berl.1r1d, 678 F.2d 1066, 107 1 (llthCir.1982)Aclalm of fraud In the inducement of the contract would fall within the domain of an arbitrator under thIs clause, unless such claim pertained solely to thc alleged Iraudulent Inducement of the arbi trati on

clause Itself. Prima Palnl Corp. v. Flood &. Conklin Mfg. Co" 368 U.S. 395, 87 S.C!. 1801, 18 L.Ed.2d 1270 (1967) One shou ld add 10 the foregoing language of an arbitration clause any supplemental provisions desired by the llarties, including the number and qual· ificatlons of the arbitrators; the place where the arbitration hearing will be held; minimum disroVCf)' requlrCf'l')Cnts, If desired; and any other special provl· slons thaI the Ilarti ~ Of their attorneys may want. Another Important factor to consider in determining the sui tability of arbitr;l· tion lor a dient is the en/on::eablllty of an agreement concern ing the location where a dispute will be heard. Some states, Including Ala"'ll1\ol, decline to honor agreemen ts (commonly referred to as " forum selection clauSl!S") by whi ch I)arties stipulate In ad ~an(;e to the jurisdiction where suit may be brought. Redwing Carriers, Inc. v. F05ter, 382 So.2d 554 (Ala. 1980) Although fOrum selection clauses may be enforceable in federal Court in diversity c('ses desl)it€! contrary state law-see Siewafl Or8.JIJ/zal/on, In(. v. Rlcoh Corp., 779 F.2d 643 (11th Clr. 1986) (rehearing en ban(; granted and opinIon vacated on Mar(;h 14, 1986,)-one nevertheless faces the uncertainty In (ederi'll COUrt of a discretionary transfer 10 MOther district under the forum non (;onV('nlenf statute. 28 U.S.C. § 14Q4{a) The FC!der<.1Arbitration Act contains a venue provision in 9 U.S.C. S4, but it is walvable by the p.tI rti~. City of Naple5 v. Pfepakt COIIcrele Co., 490 F.2d 182 (5th Cir. 1974) Accordingly, the parties' agreement establishIng the site of the arbitration heming will be honored. This, too, can become;.t very significant matter In an age whcn b.1rrlcrs to the assertion of In PfJf$onam jurisdiction have fallen . For example, a party doing ana. tionwide business can easily find himself litigating before a jury In 1'1 s adversary's home lown, sevcralthousand miles from his pla(;e of business. An arbitration clause fixing the plat;;e of th e hearing can bring that dispu te ba(;k home, or at least to a neutral location, before an arbltra· tion panel composed of persons whose experience and training enable them to readily understand the issues, Arbitration is designed to produce a sp4..'Cdier and more economical resolu·

tion of dispote5. Parties who U~ the ar· bitration cI;!use recommended by tile American Arbi hation Association will have thcir proceedings governed by the applicable rules of that association. Those ru les are straightforward and tailored to bri ng disputes to a reasonably prompt conclusion in an atmosphere of privacy; copies of the rules can be ollt<llnOO wit hOut charge frOm the AAA. One possible deficiency In the rules, however, Is thatthcy do not automatical· Iy en title the parties to eng<lge In disco~ry. Therefore, an anomey may want to provide In the client's arbitration agreement thin rile arbitra tor must per· mit the pMies to take a reasonable num· ber of depositions or conduct o ther forms of discove!ry prior to a final hear· Ing. In th;lt connection, § 7 of the FAA authorizes arbi trators to issue subpoenas, Including subpoenas for the I)roduction of docuntents, lind it provi(!es that such subpoenas may be enforced by a Unltoo States district court in the district In which the arbitfiltor sits. Judicial r(.oview 01 arbitration awards Is ex tremely limited. The grounds for set· ting aside an award are set forth in § 10 and 11 of the Act and are restricted to hlslances of fraud or other misconduct by the arbltmtors or where the arbitrators clea rl y cxceedl,'<l their POWtlrs In render· Ing an award. Sec Stroh Container Co. v. Dclph/lndustries, InC., 783 F.2d 743, 749·S0 (8 th Cir. 1986). The burden of ovel1urnlng an award Is made even more difficull by the f3C1 that arbitrators are not required 10, and often do not, clCplain the reasons for their decisions. .. ... there Is alj.Q II public Interest, manlles!«lln the Unltl.'d Stille!; Arbitr.ttlon Act, 9 U.s.C, § t ct K'q" in the! plOpcr functioning of the arbitral process. It would be destructive of that j)fOCMS If we 1l1>prOyed the d istrict ludgc's requ iremen t here t h~t the 3r· bltrators give reJSOI1~ fOr til(!ir <Ied~lolI . Arbitration m~y not "Iways be the ~J)e«ly and economical remedy lIS ad· mlrers claim It I~this case Is proof coough of thaI. Hul forcing lI,bltfiltors to eKplaln their award even when Brounds for II can be gleaned from thc record will un;ustifiablydiminish what· ever efnclel1(Y the process now achieves. " Sobel v. /-/erlZ, Warner & Co., 469 F.2d 12 11 , 12 15 (2nd Cir. 1972) When confronted with the nccl.'Ssi ty of enforcing an arbierillion agreement, some r;lIher tricky jurisdictlon .. 1 Issues

ca n emerge. One thing, however, Is clea r: a state court with Jurisdiction over the parties is obligated to enjoin Iltiga. tion which violates an arbltrJtion agreement covered by the FM. 9 U.s,c, § 3; Moses H. Cone MemO/llil Hospital v. Mercury Cons truCfion Corp" supra Thus, a P<lrty armed with a binding ar· bilr;l1lon agreemcl'I1 and Illced wi th an unwelcome lawsuit Initiated by another pMly to the Ilgrccmel'l1 C,ln Stop the suit, Whal abou t II party, though, who seeks to activate tile arbitration process only to encounter an adversary unwill· Ing to arbi tlatel One OI)lion, of course, is for the first party 10 notify the second of his desire to arbitrate and then procec..'CI with the arbitration, notwlthsland· Inllthc Ilbsence of the other pMly. The rules o f the Americarl Arbitration Association provide for the rendering of an award when one of the panl es to an ar· bitration <lgreement declines 10 pM· tl ci p<ue. An arbitra tion award then can be reduced 10 judgment In any stille or federal CQurt dl.'$illnated in the arbl tr<lt lon agreement, or if none Is designated, in the United States d istrict court for the district where the aWMd Is made, j>fOVid· cd an application for judgment Is flied wllhln one ye<lr alter the award is rendered . 9 U.5.C. § 9 5e<;tlon 4 of Ihc FAA al so authorizes 1'1 federal district court to Issue an afflr. mative order compel ling a relu Clallt par· ty to arbitrate. However, it is Interesting that neither that section nor § 3 of the Act (pertaining to stays of Iit;8<ltion) coo· fers independent jurisdiction upon a f€!d· eral court. Rather, jurisdiction first must exist by virtue of diversity of citizenship, a federal question or $01TlC other ground, In order for a k-deral cou rt to enforce an arbitratio n agreement. Commercial M etals Co. v. Balfour, Guthrie & Co"

Ltd" S77 F.2d 264 (5 th Cir, 1978) See a/so Moses H. Cone Memoria/l'lospital v. Mercury Comlruction COfp., supra, n. 32, 103 5,CI. at 942. The United States Supreme Court has not yet addressed the question of whether a sta te court can af· firmatively compel arbitration under §4 of the Act. Such II holding would require some ra ther creJllve construction. since §4 refers elCp liclUy to "United Statl;!~ district cou rt(s)." However, as noted in the Moses Cone opinion, at least one cou rt hClS found thai §4 of til(! FM does confer such au thority upon state courts. Ma;n v. Merrill Lynch Pi('rce Fenner & Smith, In(" 67 (aI.App. 3d 19, 1]6 CatRptr, 378 (1977) See .llso Commer' c/al Metals Co. v. Balfour, GeJlhr;e & Co., Ltd., supra, S77 F.2d at 269. Thi s question may be sculed in Alabama as a resu lt of the AI .. b<lm<l Suprcrne Court's recen t deci sion in [J( P/lrle Merrill, Lynch, Pil;,'rCe, Fenrler & Slftltll, I"c., 494 So,2d 1 (..... Ia. 1986). In that casc the coutlg"'",' cd a writ of mandamus, ordering a trial counlo grant the defendant's motion 10 compel arbitration, It did so, however, without discussing the issue posed by the language of §4 of the FAA, Co ncl u sio n i he use of arbitration seems destined 10 inCrease, and w ith It. the need for at· torneys to beconle more knowledgeable about the arbitraTion process. W h ile ar· bllfa tiOIl will not be appropriate or even an enforceable alternative for some Ptlr· son5, for o thers it offen; distinct advan· tages th<lt should not be ignored. Foremost among them is the opportunity that arbitra tiOn affords an <lllorney, in con· sultation with his dlent, to structure the method of resolving the client's disputes In a manner malClnllzlng Ihe prospect of a Just and cconOnliCll1 result. •

Ichn M. Heacock, Jr., ;s a partner in the Hunr~ville firm of Lanier, Shaver & Herring" PC Ne 8raduated (rom Harvard College /n 1962 and Harvard Law School In 1965.

January 1987

Don't let your Alabama Lawyers get worn, torn or thrown away.

Order a binder (or two!) at $6.50 each from:

The Alabama Lawyer

P.O. Box 4156 Montgomery, Al 36101 or call (205) 269·1515

Riding the Circuits ~

_ _ _ _ _ _ _ _ _ _~~-J

Baldwin County Bar Association

Kennedy c)(plalncd the creation of the

The Baldwin County 8M A~socill' tion hosted the Alnbama Supreme Cout, for two days, NOYefllber 2~2 1 , beginning with an Alilooma River delIa tour ;md buffet. Frld:1y, NOVf:1mber 21, the supreme court was in S<!Ssion at Faulkner State Junior College In Bay Minellc, and December 10, the Baldwin Counly

Children's TruSTFund lind ilsactlvitles, funding and efforts on behalf of the

ma~ P.Hty at the Lake Forest Yol el'll

children of Alabama. P. Vaughan Russell, president of the assodaUon, presided O\ICr the meeting. which was attended IJt members of the local bench and bclr, InvltC!d guests from the Dcpartmeflt of Hu· man Resources and the news media, Sccrcwry-Treas(Jrcr of the Dallas Coun· Iy Bar Association Ihls yellr 1$ Robert

Club.

E. ArmStrong. III,

Butler Counly O"r Association The Butler County Bar Assocl(l tion met In October at the Greenville Country Club to honol' outgoing Pn..>Siden! H, Edward Mcferrin and ciccI nL'W o{fi,ers, Elecled were; I'resldent: ..cwis S. Hamlitoll Vice presldent: W,lfrCl1 J. Will iam· toOn, Jr. Secrl't,uyltn:a$UrI!r. Frank A. Hickmilll

Escambia County Bar Association

Bar Association held Its annual Christ-

Dallas County Bar Association The Dallas Counly 'Uar Association hQld its quarterly luncheon Thursday, October 30, 1986. Honorable H . Milrk Kennedy, judge of the Circuit Court of Montgomery County, spoke to the aswcliltion Icg;ardingthe Ala· bama Children's Trust Fund, Judge

SMITH·ALSOBROOK & ASSOC. EXPERT WITNESS SERVICES

The ESCllmblll Coumy Bat Association elecled the follOW ing o(flcers: President: EycrCllt A. Priet',

Vice

,~idcnt;

Secn~t~ryltrea~urer;

i'.

PJul 0. ~~ Jr. Jaml'S O. Roberts

Huntsville-Madison County Bar Association The newly elected OfflCefS of the Huntsville-Madison COUl1ly Bar Assecilltion are as follOVt'S: president: Hennan W,lt~,

i'·

Vice Pn!!.ide!lt (prt.'Sloc'flt-elt..ct); Ooolilas C. M,I" tlnson Secre1ary: .... Ibert C Swain Treasurer. L. Thomas McMurtrie

IIDEO TBE.IlSl1BES VIDEO OF:

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~~~~~S~~~~:ION,

BOSSY D. SMtTH, 8 .S.. J .D., Pr"'d,nl

P.O. Bo~ 30&4

Opttlk., AL 3&803

The Alabama Lawyer

DEPOSITIONS, ACCIOENT

(205) 7'i-1544

ALL FORMATS Telephone : (205) 265·2999

CAMBRIDGE

Studies Program A stud), of Anglo-A merican jurisprudc:~ in one o(~

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mos! ImllK'ulve acadfm lc

!ieuings,

July 4-1~ 1987

Automation in Alabama's Courts As Ihe Ink quill B~ve way t(;l milnuill typing machines, the typewriter of today Is being replaced by auIOrnil!L-d equipment In courl offic(!S across Alab:trn.<!. If called to jury service In stale court, it is likely 11\(11 il computer selected your nilme at r<lndom and even produced the SummonS mailed 10 )'Qu r home. In milllY

courts, when you P<lY a fine an ele<:tronic eM h reSi ster recciptS your money. According 10 Alabama Suprerlle COurl Chief Justice Torbcn, Jr., "U's all a

c.c.

[><1r1of the judicial sys tem's effol! 10 keep abreast of the time! and use modern nlantrHemenl tool s to efficiently process the 600,000 cases which come before

Alabama's courts each year." Currently the SIdle Judiciallnformillion System (S)IS) Ilclwork Is Ilrovlding autom<lled services to ten courts lil Mobile, B<lldwin, Houston, Madi son, Etowah, Tuscilioosa, Montgomery, Jefferson, Lee and Lilud~rd il le counties, This COOl putCrilL>d network scr\leS courts whi ch hc.H half o( the Stilt(>'S iudidal worklOJd,

! ."O •

Future plans call for C"lhoun, MarSil i' , Ru ssell ,md She lby County courtS to be brQught into the system, To date, ~r 3.2 million court reco rd s havq bL'i'ln placed hllo the network's index system, Current applications Include: II ci vil case-tracking SYSIIWI for circuit ci vil, distri ct ci vil and small cI(lim s CiI $CS whi ch generateS all maior court (orms (lnd dockets plus a VJficty of notices Mel man3gcment rcport~ : an aitorney system Ihat supplies ilddress inform.ulon for rlotices on civi l ca scs; witn ess subpocnil system for al! 'YI}/"! cases whi ch gcnerilles subpoenas for all witnesses ilnel, if ncc~sa ry, rel ssul..'S the subpoenas; iI court payment system whi ch records i1nd rLoceipts all transactions for restitu· ti on, alimony ,mel child support ac· eaunts, di sburses the funds, keeps disbursement h ist ori e~ lind prCNides man· agement reports on dellnctucm accounts; and a tracking system for all (elony, ml sdemCilnor and traffic OrfCrlseSto assist the CO(irt In managIng criminal Cil5CS, •

-AdminiSlr.ltivc Offi Ce

of Coum

ENGLAND TII~

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clI1phMlilze OIIr I!nMlI~h wmmon I.... hcri"'JII!' or If"',ial ' ntt .. 'c w,1I .... IIcc "pp"'tunil~ ttl "'.'" wilh and dl!iCuu IIcc EII8!bh kill I)'~ltm wlch barrbcc/lo, JudJll!I, and Cantofid," .d-.ull"'. CII»\:. will ..... 18jI< 1II...e hour. per~, VfO'Ikltllj

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In IMllder', look II luch lepl

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,..,......... _ oJI _ .oJI., ·..... ....., .._,_.... ."._ .... _.-.' .... ..,..I_, ,

... ... _of ... ,_

,..... _

-Of I nterestThe following is two mailers of federallegislalion of in· terest to Alabama Lawyers: - The Anti·Drug Abuse Act of 1986 now makes it a federal crime for a person to knowingly engage in a monetary transaction invo lving criminall y deri ved pro· perty in excess of $10,000. A dilemma lawyers face is w hether they should make inquiry to determine th e source of fu nds pai d to th em by cli ents. - An exemption repea led in Ihe Fair Debt Collection Practices Act, in whi ch lawyers were exem pt under the o ld law, now covers lawyers who "regularly" collect con· sumer debts.

....... ... ' , ... _

Jilnuary 1987

Bar Briefs Torbert again in the news

Alabama's Chief justice c.c. Tortx!rt, Jr" has been elected chairman of [he board of directors of the Stale JuSllcC Institute, 11 priv.lte, non-proO t corpor.)-

tion e$lablished I:rt CongJ'CSS to 1mproYe state courts.

Boord members were appointed by President Reagan after confirmation by the United States Scndtc. Torbert wa s elected to serve a three-year term os chairm an. Congress authori zed and fUilded the tnSl ilUtc \0 further the dlWlopment and improvement of judicial ad· ministration In state courtS. The direc· tors will fulfill Ihis statutory responsibili ty by managing a nation31 program of fi nancial assistance for stale courtS, Ofganillrt lons supporting and funded by stale couns orld non· profit organizations assisting stme Judicial systems.

Task

Force on the

U.S.

Constitution's Bicentenary

AI.lOOma SUpfi'ml> Court Chief Iusl ice C C. Torbert and forr'flCf US. Supreme COUll Chief lunice \I\I,):rcn E. Burser

Portrait honors Webb Friends and colleagut.>s of refired Circuit Cour t ludge Douglas S.....Vcbb

\Nebb, 63, retired J.lnuary I, 1986, ;lftcr scnling 21 years on the bench in

g.lthcrcd to honor the former Es-

Escambia County. Members of thc

cambia County judge by unV(!Ulng 11 l)orIra!! of W:!bb which will be hung In the main coul1room at the county courthouse.

Escambla Coun ty Bar Association, family members and friends were on h;md for the unveiling.

Tile Alabama Lawyer

- ,he BreoNlon $landilfd

The Alabama SIir W Bar Task Force on the Blcentcnory of the United States Cons titution I! preparing leKtual ou tlines for use by speakers duri ng the bicentennial year. The task fOrce is designing the materials to oid In presenting constitu tional tOllics to adult civic groups and high school classes, and would like to hear both local bol'S and stall! bar members who would like to obtain the outlines. In· dications of irllercst should be di· rected 10 the vice chairman ol the task force as follows : Charles 0. Cole Aswclmc Dean and Profelsor of l<Iw CumbClland School of lIIw Samford University

IIlrmlnllham, Alaooma 35129

• 2S

Opening of Court Ceremony Appellate Courts of Alabama October 6, 1986 Memorial Address As Delivered by the Honorable Cha rl ~ W. Gamble Dean and Professor of L1w The State Law School of Ala ba ma

Mr. Chief Justice Torbert, associate jus!lccs of lite Alabama Supreme Court, Presiding ludge Charles Wright and justi ces of the Alabama Court of Civil AppeaJ ~,

Presiding Judg!! William Bowen

and honored members of Ihe Alabama Court of Criminal Appeal s, Actin g Appellate jl,ldges Leigh Clark and Edward Scruggs, distinguished members of the clergy, lIggrieved family members of

those whose passing we mourn today, ladies and gentlemen. May it please the court? II is a gma! honor for me 10 be called before ~u today. In a personal sense I come as a friend of each justice here

assembled, and I come with great humil· Ity and appreciation for your use of McElroy's Alabama Evidence which has caused It to cor\tlnue as the Alabama lawyer's handbook. In an Institutional SenSe, however, I come before you as the dean of The Siale Law School of Alabama, In that cal)ac!' ty, I ~uJd be remiss In not recognb:lng the great ties that eKtst between our law school and these COUr1t>. Six justi ces went

to the supreme coun after service on Ihe I<!w school fa culty: Henderson M, Som· erville, Ihe fir5t law professor; w.s, Thor· ington, the first dean; Ormond Somerville, serving on Ihe coun from 1911·28 after ten year5 on Ihe taw faculty; J, Ed livingston, who selV.!d on the court from 194o.n after serving Ihe law school from 1922 to 1940 as lecturer and adjunct professor: Robert B. Hal"M:lOd, who served on the court of appeals from 1945-62 and the svpreme court from 1962-75 after serving on the law faculty from 1929-45; I;Ind Samuel A. Beatty, elected to Ihe court In 1976 afillr fa culty ~rvice from 1955·63. lustlces 1'laf't't'OOd and Beatty bolh served as a~sl stllnt deans. Twenty-elght Justices arc graduates of the law school, Including five chief justices serving since 1914 and all associ ate justices serving since 1926, e~ccpt six, and including seven member5 of the preSent cOt,rrt. Of the 30 jt,rdges on the court of appeals and the court of crimi. (lal aPI>eal s, 14 graduated from the law school, Including Ihree members of the current court, Of the four Judges who have served on the court of civil appeals, three, who compose the present court, an: all graduiltes of the lilw school. Today we gather to mark the passing of 56 fallen comrades. Comrades at arms, if you will, who-like Don Quixote de la Mancha- have assaulted the wind·

mills of injustice and damd to defend Ihe most precious of humanity's posseSSions - property, liberty and, yes, life Itself. Withoul a doubl, they have proven that the legal profession is se<:ond only to the ministry in its capacity 10 do good for milnkind, Calumet, Mulberry, Cn)pM:JII, Grove Hill, Andalusia, Fayette- these, and a host of Other Aillbama tOWn S, nurtured Ihe lives we celebra te loday. The pioneering and plantation town of Greensboro alone has given up two of her most prominent native sons-Con· gressman Armi stead I, Selden, Jr" am· bassador to New Zealand, and Prime F. Osborn, III , who mergl..>d l&N Railroad and S!!aboard Coastli(le Railroad to fc,"lrm Ihe \l\()rldwldc energy and transportati on co!\glorrlcratc known as CSX Corpora· ti on. These two lives, along with the career5 of all those whose passing we mourn at Ihi$ high hour, speak in loud tones that: "The 80111 of the IIlW','er's ;lmOhlo" c~ " be reached only I:¥ I',O"k, by hard work. Oratory ca"l10l bring 'lQU 10 iI, neither can blnh nor family dlsti"Cllon. II CIIn be reached bv merit lind by nwlt alone:" Joncs law Institu te, Birmi ngham School of law, Cumberland law School and the Univer5ity of Aklbama-each has seen ils alumni r<lnks dimi nished this year by the rude working of death in our

"lIVe

Ja nuary f987

mids!. Death has been no respecter of persons-rich and poor, bl~k and white, young and old-cach has been called. Clearly, like the law It>elf, in this final rite of p..lssage- lIfe's last obstacle- all men indced are created equal. The great cncmy of li(e has dared I!VCn to clailll our youth . Claude Rosser, a young Montgomery attorney, (<Jlher of twins and one of my Yery beSt students, passed across the bar unexpecll..>dly and prematurely. Russell Bounds, a 28-'y"1:,lfold promising Mobile trial lawyer, was struck suddenly by a terminal Illness, The sting of death struck this year .11 the h(!art of our iudici.uy. Judges In Pcll City, Guntcrsvlll(!, Bilmingham and Jasper were call<!d to a higher court. I would be remiss In rIOt mcr\lloning Judge George "Spud" Wright of Opelika, my friend , the IXMiCr of whoS(! person:Jlity served as the b.lsls of one of today's most valiant and courageous b.lIIles with cancer. No words in my vocabulary can form an adt..oquate tribute to these fellow lawyers. It is the lives which they lived that coosUiule the most cffecti'o'C closing argument in this case of tribute which I lay before theS(! honorable courts today, l(!t these lives speak for themselves: (1) Abc Bcrkowit:t:-A 1928 graduate of Ihe UniverSity of Alabama SchOOl of I,(lw who, while oper.lting a largdy corpof<l1e practice, look a leadership role in the civil rights struggles of Birmingham. (2) John Jackson Sparkman- senior United States Senator from Alabama whose 30 years of $efVice was longer thiln any other Alablimlan. He "ehieved greilt distinction In the Senate, sefVing as chairma n of both the Banking, Housin8 arId Urb<lO Mfilirs and the Foreign Affairs Commhtecs Md W.1S instrumental In thc enactment of leglsl~ ' ion broadening home ownership, championing small business and aiding agriculture. Notwithstanding acclaim MrnOO throughout the world, however, (including nominatiOn by the Democratic party in 19S2 for the vice prt!Sidency of the United StatesJ, the Senalor: " •.. .,Iways remained a man of the peell>le, c(lmpasslonalc and caring, worklngtircie5!ly in beh.,1( of his di$lriI;I, stille lind IIl1\ion."1

The Alabama Lawyer

13l Judge Thomas Beaird-Accordlnglo a Dally Mounl.lin fasle column, and I quote: "Beaird sel\«! with honor, integrl. ty and with humililY. But alxMl allthesc accomplishments, he WolS a Christian who practiced his faith dally at work, at home and wherever he was.") (4) Marlon lusk- Re<::allingthe words of a fellow lawyer In Guntersvil le: "He WilS learned In the law alld JX)Ssessed of high ethical stilndards, a dynamic personality and a love for his family, his friends and his Slate and nillion. He loved his profession and ils lnC'Tlbers. He was ncycr tOO busy to liSten ilrl(l pr()\lide constructive advice.'" (5 ) Jimmy Carter of Montgomery has been d~ri~ thusly by a fellow lawyer: "!n his later years Jimmy limited his practice hours Sf) he could spend time with hi s lifemate, Ev:I, who W~5 con(II1(.'(I to a nursing home for sever'}l years before her death. His daily visit) "nd ministrations for her seM! as (an) eloquent stillement 01 his personal qualiries of dC\Olion and singJe-mindedness of purpose. One of thc nurses said of Jimmy, 'You could set your WillCh by the time ol hi s arrival eilch morning and afternoon'."1 A threild o( greatness runs through ,111 the lawyering lives W(! honor this hour. Thilt common characteristic lies In their readint.'SS and ability to be friend and servantto aiL Each has dutifully served as a helmsmlin of the community and pilot 01 the Stille. As Slaled by ~ (vr more el(> quetltlhan I, they have stri\ICn to fulfill the I>rophccy; .. , , , written by the hand 01 the Almighty on the everilisling tablels of Ihe universe, that no nation can long endum Ihrough whose life docs nOt run thm golden thread of equ,,', eMael and unlvers:J 1 Justice:'. These noble car~rs at the bM are our bust evidence to rebut a movement in American society which Is more critical of tM legal profession today than ever in its history. The contributions of these f.lllen comrades .ue irrebuttable testimony against those who contend thai lawyers only caM thc pie of American quality of life and add nOthing 10 it, The lives Iht.'Y lived speak In ai d ear a tone as the moving funeral or,'llon by Rob(!rl

G, Ingersol in tribute to Roscoe Conkling, and I quote: "He was maUgoed, miSrt'pI1!$(!MOO and mlsundcl1loocl, IxIt he ~Id not anS'M!r. He was as SIlCfll ,hen as he is noo.--and his (life), betlCf than any form 01 speech, rt.'futed eve!)' , hartle."' Most (1f uSIn this room tod.lY can iden. tify with the words of State Bar IJrcsldenl Bill Scruggs who, when giving his only qualification to take Ihe helm of our profession, said: "I IDYe lawyers..- It Is this comradeship that would have caused Francis Hare, Sr., to have referred to these dead as "my levrn<!d friends." It is thaI depth of affiliation which causes us 10 bow moml'!fltarily our heads in grief and hopelessness. Yet, It is Ihc l)(IYVer of the lives we mourn that, with further thought. causes us to respond adamantly in those famous and cornfortlrlg words: "0 death, where is thy stlngl 0 grave, where is thy viCtory 1'" All of life comes fu ll cirde. In that belief, I end this memorial address by quoting C.M.A. Rogoo 01 Mobile, whose son, C M.A. Rogers, III, 15 one ol those fine lawyers whom we honor today. Mr. Rogers was called upon to memorialize Ihe life of his friend , Richard Clarke Foster, a Tuscilloosil I,myer who was president of the University or Alab.1ma at his untimely death In 194t. Rogers remember<!d: "As we entered ChriSt Church foll(),yo ing the Oag-draped casket, the I'$lrrectlon hymn was wng: 'The stille Is o'er The bailie done The victory 01 life is ~ The song 01 triumph rn.s beAun. .... lIeluia1 .... Ilelulal'

Thank you and may God bless these honorable courts. I"OOINOHS • AlbM 101m " "Ih. ilddrellrJ. PoIIflM .cod trI!t'I1,. pt. 21 ,

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Opinions of the General Counsel by William H. Morrow, Jr.

QUESTION, May 01 law firm ethically include the name of a deceased or retired attorney in the firm name or on ils letterhead, professional card, professional announcenH~nl, etc. if no partner or assoclalt' of the pl'eSenl firm was ever a partner or associate of the deceased or reUred attorney .. !though (1) there was a close reI,uionship between a parlner Of associate of the present firm and the deceased or retired allorney such as falherfson and (2) the present firm practices from the same oUice occupied by the deceased or retired allorneyl

ANSWER: The Indusion of the name of the doceased or retired attorney in the firm name oron the firm's letterhead, pr()f(.>ssiOnai card, professional announcement, etc. would not be ethically

permissible.

DISCUSSION, Prior 10 October 25, 1985, DIS(iplinary Rule 2-102(AJ(4)

providl,'<l: "{A} II lawyer or law firm shall not US\lI)roff:ssIOnal cattls, profe~slonal arwlouncernent a rtis, office $181'1$, lenerheads, lelephone directory IIs(lngs, IBW lists, legal dlrectOfY listings, si milar pro(esslooal notices 01 dcvkes or oewspapef'), ~pI that the loIla.Ying may be u~ II they ~I(! In dlsnlfied 101m: IlleIterhead of ~ l;tWyer identifying him l'f name and as a lawyer and giving his add~ses, telephone numbe~ the name of his law nrm and any Information ~rmittt'd under OR 2·106. The lencrhc.xl of a 1;lW firm may also give lhe names of members and aSSOClatC5, and names and dales relating to dl!<:ea~ and retlfed members. IIlaw~r may be dcs1llncd '01 Counscl' on a Icllorhead If he has a Cor1Clnulng relationship wi th a IBWyer or I;\W fi rm, OIher Ihan as a polJtner or associate. II 11lW'r'Cf or law fi rm may be deslgnall'<l as 'General Counscl' or by sl mll~r professional rclC!rence on stationery 01 a cllenl if he! or the firm dtlYOttiS a $Ubstal'lti~1 amount of pr0fe5slonal time In the representatlon oI thal client. The lenerhead 01 a law firm may give the names and dates of predccesS(X firms In a continuing line of successlon. (emphasis addedl Prior to October 25, 1985, Disciplinary Rule 2-102(B} prOllidL>d: (4)

...

HI81 II I~ In prlv;ue practice shall 1'101 praCl!ce under a triide name, a name that Is misteadlng as to the Identity of Ihe lilWyIlr or lawylll"S practicinll under such nllme, or a nrm name, coma I'I1n8 nllme, other than those of one or morc of

the lawyers In the firm, C*:epl Ihat the name 01 a proM:sslonal corporatIon or professional association may cootaln 'p.c: or 'P.A: or similar symbols Indicating the nature 01 the orsanlza· tions and if orherwise lawful a Orm may uWl as, or contInue to Include In, lis name the name Of names 01 one Of more deceased or retired mt'fIlbers of/he film or of. predece!5<N firm In a COIltlnulngline d RICCeSSion. A 1aw,1!t wooaswmcs a lull·tlme judicial, public C!l«!CUllve or ndm lnlw atlve post or ofnce , hall not pe/mll his name to remain In the name of a law firm or to be used In professional nallas oIlhe firm dUllnllllny significant period In which he Is not acUl'Cly dnd rellularly plllCllclnlllaw as a member of the firm, and during such period other members 01 the nrm shall not use hl~ name In Ihe firm mime or In professional notices 0( rhe nrm." lem· phasls added) Presclll Tcml>O(.lry Disciplinary Ru le 2·101(A) pfOYides:

• •• ~II I~ shall not make Of cause 10 be made a false Of misleading communication about tile lawyer or the Iawye(s services. II communication is ralS(! Of misleading If il: (II) cootalns ;I m~tcrlal misrepresentation oIlact or law, 01 omits a fact noct'uary 10 make the statl!lTlCflt comidm.'<i as II whole not materially misleading:.. . Ternl>orary Disciplinary Rule 2-105(A) in pertinent P;;lrt provides: H

• •• kll lawyer shall 1'101 use a firm name, leltcrhead, orother professional deslllnatlon that violates 'kmpoli'lry DR 2·101. H

• ••

The American Bar ASsociO:l tion Committee on Eth ics and ProI'esSioo.ll Responsibility in InfOlTllal Decision C....a9, decided under the old Canons of Professional Responsibility 01 the American Bilr Association, h(Old Ihal when listing Ihe nanlCS of deceased or relired membcB It Is preferable 10 give the dates of active participation in the firm rJther than the date of birth and death or the deceased members. Informal Deci. sion C·789 conta inS Ihe follov.'inS: "You have Inquired as to the proper dates to be used in con· nection with Ihe name 01 a deceased partner; that is, whcthcl they should be the dates 0{ his birth and dealh, or the dal~ 0{ his active partici pation in lhe nrm. Mr. Drinker In his leSilt Ethics says: 'The name of the de<eased p.1l1ner mar be car· lied with the dates 01 his bil1h and deilth, ahhough II would ~m more KCurately Informative Ihus to designate f,e <btes of his active pal1/c/patll'Hlln t~ firm' (page 2061. OoIr Com. mlttee's Informal O«IslOn mill.! reads: l"Ilenerhead rf\loI name the livIng members 0{ Ihe nrm on one $Idc and the decea~ ones whh the dales 01 membership on the other 51tk:: lind Informal Declsion )8)lal~: l"In appl'()l,(!(j pr.lCllce Is to hllYe the living members listed on the left of the letterhead with Ihe deceased on the right with the dates of admission and

January 1987

retirement' Similarly Inlonnal Decislon C-5OS; 'The name 01 a fortnef mcmbc!r who WiI§ dec:rased 01 rellred m.1)' be IndiC;IKod wilh the dilles he became ;md ceased to be a mernln of lhe Ii rm.' Thus II would nllJ)eal th~I the uS(! or elllHlr Ihe dates of blnh and demh Of the dlltes or aaivc /Mrricipmlon In the (lrm Ii {lCrmlsjlblf', ~Ithoullh /lrt! laUer ;5 preferable." (emphasis ndded} Informal Opinion 1265 of the American Bllr Nsocilltion Commi"ee on Ethics and Proiesslonlll Respol'ISlbiliry, ducid<..od I.mc!er the Code of Professional

Responsibility of (he Amellearl Bar Associa tion, sp!..'Clflcally DR 2-102(A)(4) and DR 2·102(8) which W\lf"C idemical to the corresponding Disciplinary Rules of the

Code of ProfesJ/onM Responsibility 0(· Ihe Alabama Stale Bar as it cxiSled Pfior to October 25, 1985, held tha t It Is misleading and improper for each of two firms to 11M on lellerhe<lds the name of Ihe senior p."Ir1ner of Ihe other firm Indl· cilling a v.-orking arrangement belween Ihe tv.-o firms. There 15 langllilge in this opinlol'l which 1$ helpful in resolving the question l>Osed herein. The purPQ$(! of Ihe reslrictions on Ihe conleni of the firm's Icnerhead Is 10 Insure th:tt the

public will nol be misled. In Informal Opinion 1265 the Commll1cc Slaled: ~ In our view, 011: NQ1(A)14 ) permits the! listinS Of Identincatlon of lawyers on nrm k'ltcrheads only If 1he lawyers am j>.ll1ners (or retired Of deccaS(od firm members) or assoc,n!Cs or have I he~" Imionshlp described as 'Of Counsel' Of equlv..,lent. Soo Fmmal Opinion ]]Q~ (emphasis added)

profeSSional card, professional announcement tarO, letterhead, etc, that at least would not Imply th ~t one or more of the par1nerS Or 1:Issoclales of the prescnt nrm had been a partner or associate of the deceased or relired attorney. DisclplinillY Rule 2-102(0, ,)rlor to 0ctober 25, 1965, provided in pan:

If the new firm occupies Ihe. Silme physical prcml~ ai Ihal of a deceased or retired attorney, urtdoubteclly many of the clien ts of the deceased or retired aitorm.lY, although frcc 10 eml)IO):: lin il l· tornely of their choo5ing. will 3Vail lhcm· selves of the $erviCe5 of the new firm,@'$peclally where there is a close relation· ship bctwe~:m the deceased or retired attorney and a pannel or assoclil1e of Ihe nl"w firm such as father/son, grandfather/son, etc.

"AliJW)'I!l shall not hold hlmsell oul as hill/inS a partner.;hlp with one or more 0I11e1 I..... yers unless Ih"" arc in f,)C{

...

P.lttnefS.~

To p.'lrill)hrase and adapt Ihilt l<lnguage to Ihe present silualion, it mighl feild, "A lawyer shall not hold himself Oul as h<J\'ing had a partnership wi th one or more olher lawyers unless lhey were in (aci • partners."

In our opinion the words "predecessor firm" as used in DR 2-102(A)(4) cOl'llem· pl<l!CS Iha! OrrC Or more of Ihe members or associates of the presenl fi rm was an actual merl"lbcr Or associate of Ihe "predecessor firm:' II would be Yery difficult 10 design a

P lca~

send "our editorials and Ict1er.: to; The A/llb-1ma I..fWyer Editorials P.O. Box 4156 />M)ntgomery, AL 36101 Your opinions on sublccb of inlt!rMI to OIhcr AI/loomtl lawyel'5 'Ill alw.wys willcomt.'<I.

McELROY' S ALABAMA EVIDENCE, Third Edition Samford UniverSity Press takes gretlt pleasure in announcing the 1986 Pocket Part Srll'llleme,,1 to the Third Edition of McElroy's Alabmna Evidence, The response of the Atabanlll Bar to the McElroy treatise has been overwhelm· ing, and, for thiS, we arc vcry grateful. It is our hope thaI the 1986 SIIPlllelIIenl will keep t h is outstand ing text current and essential to your practice. Please fi nd below a. fo rm by which you may order copies of the 1986 S u~ pfell/ctl l, Again, we are grateful fo r Ihe opportunity of serving you in the past, and we look fo rward to our relationshi p WIth you in the future.

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The Alabama

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Legislative Wrap-up Robert L. McCurley. Jr.

1987 legislature When the IIClCl legislature convenes for Us 1987 regular session in Aprlltherc will be less lawyers involved in Ihe Icgl sltllive process than l.lnytimc In rcccnt memory. For

the first lime the governo r, lieutenant governor and, possibly, the speaker of the house will not Ix! lawyers. There will be only II l;lwycrs In the Sen:nc and nine In the House of Representa tives, Therefore, there will 110t be enough t1110rn<!ys 10 011 either the House or Senate Ju, diciary Comlllitt~s. Seniltor Rick Manley from Demopolis is the only new lawyer-senator, while Represent,)!ive Bill Slaughter (rom Birmingham is the sole new lawyer-house mem~r. The Scnaleand HO\lsc of Representatives will organ ize

themsel ves when they convene for their "organizational " session J.muary 13路22, 1987. At that time The speakero( the house and speaker pro-tern will be elected, and the SenaTe will elect a pn..-sidcnt pro-tern . The new presiding officer In eltCh house will select the committee chairmen and name legislators to the respective committees. leglslmOl's tJke offlce immediately after their electio n. OVer 1]0 of the new legislators met at The Univer5ity of Alabama law Cenler in Tuscaloos.l (or an orienTation, November 13路 14, 1986, conducted by the Alabama law Institute and legislative Counsel. Counsel President and Institut(! Vke President Representative lim Campbell presided over the twCKlay event that saw Govern or-elect Guy !-Iun t rooke his first address to the legislature . Cou ncil al)proved revisions The Alabama l aw Institute Council met October 31 , 1966, In Birmingham and approv"od fOur new revisions. The revisions include: - Alabama Uniform Gu;Hdlan and Protective Proceeding; Act - The Uniform Condomlnlurn Act - Powers Contained In Mortgage -Alabama Trade Secrets Act

Cohen of the University of Alab.lma School of l aw was the reporter; me mbers are: Joe Adams, Ozark Jim Campbell , Annisto n Wayne Copeland, GOldsdcn Fred Enslen, Montgomery 61tt Hairston, Jr., Birmingham Bob Harris, Decatur George Maynard, Birmingham Drayton Prui!!, Jr., l ivingston Robert Russell, Montgomery louis Salmon, Huntsvi lle Vella S:amford, Opelika Morris Savage, Jasper James Tingle, Blrmln8ham Caroline Wells, Mobile The present power ofsJle statute in Alab<lma contains pmvlslons authorizing a power of sale to be included in a real property security instrument as PMt of the agreement. However, the statute also provides a power of sale where the Sf.'Curity InSTrument docs nOt Include authority for a power of sale and a number of detailed rules (or this slatUlOry power o( sale. A contin uing (Iuestlon since the late 1960s and early 19i'0s Is whether published notice of a foreclosure under II power of sale is constitutionally sound. Although the re

Rober! L McCUlley. JI. 1$ the duootor of/he Alabamg Law Institult! tt/tlWl UnlvOf$:/y 01

Alabam/l. He rflC6lvtJd /lis uncJerorsduBle encJ law deorees from the Univef$ily.

PowerS con tained in mortgage

Hugh lloyd of O"omol)()lls served as chairman of the Institute's Real Estate Committee and Professor Harry

lanvary 1987

is no Supreme Court of lhe Unhcd State!> decision squarely in point. there are decl· slons upholding published notice In a l>OM!r of sale foreclosure as conMitution· ally sound, as lon8 115 no Stille offi d al or state action Is 1 f'M)1 ~ In the foreclosure. It is possible Ihat the present Alabama statute supplying II power of sale to credo Itors and mortgagees who haw n OI included such a power in thei r real property security agreement in'li tes constltulio n<l l att""Cks. The sugge5ted Section 1, perhaps the most significant proYlsion In the suggcsted legislation, merely au thorIzes the pdrtles to a real property securi· ty IIgreement to Include powers of sale In their agreement. No state action is inyol ~ in any of tile su~ted pfO\IisionsThe remainder of lhe suggested slatute endeavors 10 sel minimum sta ndards for the rlOtic{) and method of conducting the sale. It Is h01>o:1 these minimum standards arc nOt considered stale action. In subsequent editions of The Al,lbama lawyer we will ~u mmarb:e the olner pro1)Ose<i revisions. Anyone desiring a copy of one of these proposed revisions may write the Alabama law Instit ute. •

From TheJuf)~.· WUvung TriaLTechniqueJ SERIES FACULTY StriCti Chlllrm",1 . nd ModeralOr. T htl Hon . S t eve" R. Plol.lel.n 1'h " lion. G"or"" Arcll n llau., Jr. 1'h ll llon.

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SERIES PROGRAMS p"r,,·, ... III I ·I·hllllry, I'I lrlll"gy I nd Prac tl clI s...urdloy, I'eh ru • ." 7. Ifle7 Jury 8111"Clloll I .. S CIIC" lind P"d " ral COUN " .Iday. M.reh l3, t931 Will" I ug J" '7 'T'rln III I'ridfty. Mamh Ill, 1\1'"

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----------------------------->(----------R EGISTRATION FORM' o S:WO Se rl", lIeg hu rl ttun 1'00 (lndlvidu. ' ProS"'"' Hl1si.,,..,ion AVllII.b/e' o $450 M emb er' of th e Hllr 1Ir1llr 1984, .. ddt llonal reg lil lran l, fro m th o IIItmo orlanlt lllton, and elllll1('yo'lClII I.I( tho govommlHlI or non' llffin, 1.11'811 n 11.111 l(J n ll.

1'llIale .lInd 1\ brochurll "jr II1ur o tnfo rmatlon. Name: _____________________________________________________ [J

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Tulane LAW SCHOOL

The Alabama L.lwyer

Or lo.n~,

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SOCIAL SECU RITY Allant.l In ~titut(' (or Cl E in Georg J (800) 422-0893

16 12-13 COMMERCIAL REAL ESTATE LOAN DOCUMENTATION

Wyndham Howl, Orl.lIldo Execu tive

friday

ATTORNEY'S FEES IN DOMESTIC CASES Ih!", 1M!~lcrn t-Iotcl, 8e ~'iCmer OC!S5l.! mcr Oar As~oclJtiOn Credits: 1.6 COSI: none (205 ) 424·5480

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(212) 64.).71;180

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Credits: 28.6 (305) 2644762

REAL ESTATE AND THE BANKR UPTCY CODE !-Ialld,,}, Inn Unio" 5<luare, $..l n Francisco f>rilcti~lng l.aw Imeilut(' CrL'(iits: 12.0 COSt: $390

thursday

FINANCIAL PLANN ING AFTER THE TAX REfORM ACT OF 1986 LJw Center, Tuscaloma AI,lham;! Bar Institute for e lE Cr('(lit~: 4.6 (205) 348·6230

15-16

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EMERG ING THEORIES OF LENDER lIA81l1TY law ('Iller, Tu!.C.llom.l AI,Ib..ll11a BM Institute (or e LE Credit ~: -Ui (20S) 348-6230

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APPELLATE PRACTICE Civic Center, Montgomery Alabama Bar I n~t ltute for ClE C redi ts: 6A Cost: $85 (205) 348-6230

(212) 765·5700

REAL ESTATE FINANCING Iiolid,..,. Inn Mt.-'dicill Center, Birminghilm Cumberland Institute for CLE Credits: 7.5

15-16

ADVANCED TAX PLANNING FOR CLOSELY HELD CORPOKATIONS Westin I'CJchtrC('. Atlanta Anll'ric,m Lilw In ~ti t (lIf'-Americ<ln 8i1f As!tOciation Credits: 11.7 COM: $325 (2 15) 243·1600

12-16

25-26

friday

REPRESENTING AGRICULTURAL CLIENTS Ranl.ld,l Inn, Greenville Unive~i lY of Mi s~issl l>Pi (!'nler (or CLE (r{'dit ~: 7.2 Co~': $65 (601) 982-6590

(205) 87()..2865

ANNUAL DISCLOSU RE DOCUME NTS Omni Inlernational Hotel, Atlan!a Pra{"li ~i ns lilW Inslilut(' Cr('dil~:

13.2

Cos!: $425

(212) 765·5700 32

January 1987

thursday

INCOM E TAXATION OF MINOR

REPRESENTING CITY AND COUNTY GOVERNMENTS

CHI LDREN AND ESTATES L,IW (('nter, TUsc.lloo~a AIJb'lnl'l BilT tnMirUle for eLf

Credits: 4.6 (20S) 348·6l30

thursday

Birmin~hall1 Jefferson (lyle Cen ter.

thursday

Birmingham Alabama Bar In~tltutc for CLE

Crffiits: 6.2 (205) 348·6230

Cost: $85

SECU RITIES AND EXCHANGE

friday

COMM ISSION ENFORCEMENT 1967 law C~nter, TUS(il IOO~J

OMME RClAl TRANSACTIONS Wynfr(.'Y Iiolel, Birmingham AI;lbllll),1 BM In ~ ' ilutc for tlE

Cr('dirs: 6.0 COSt: $85 (205) 348·62)0

12-13

AI.lbMna Bil' Credits: 4.6

Jn ~ litute

for elE

SilV<lnnilh Institute for ClE in Georgia

(205) 348·6230

FEDEII:AL APPELLATE PRACTICE AND PROCEDUII:E (800) 422-0893

friday

ENVIRONMENTAL LAW Ilyall Regency, WiI~'lington, D.C. Americ,ln Law Instltutt'-American B,lr

AG RI CULTURAL WORKOUTS AND

BANKRUPTCIES

A~wciation ~215)

243-1600

Colony SClu,lrc Ilolei. Allanl" Pr.. c ' i~ln8 Law InstitUle

Cn.'(lils: 12.6

COSt: $390

(212) 765-5700

friday

21-22

1-6

MEDICAULECAL ASPECTS OF TRAUMATIC INJURY

BASIC COURSE IN DISCOVERY & SmLEMENT

Orlilndo Ml'<fI-LcHal Institute Credit~: 13.5 (8181 995-7189

C~t:

$-400

TAX REFORM AO OF 1986 Bifmin~hilln JCflNSOil Civic Center,

James L. Knight Confcrcrce Center, Miami A~soc,at1on of Tri,11 L1WYI'r~ of AmeriC:.l Cost: $550 Credi ts: 42.6 (600) 4201-2725

Bi(!11II1/1hiln1

AI,lbam,1 n", Imtilute for elE Credits: 6A Co~t: $85 (205) 1·16·6230

22-26 EXPERIENCED PROSfCUTQII: COURSE

REAL ESTATE PRACTICE & PROCEDU RE Atl,lnf,l Jn~tllulC for

elE

in Georgi3

Casa Sircna Rl:S(}rt, Channel 1~land National Colleg(! of District Altorn~ Cost: SI4S

ADVANCED TRIAL ADVOCACY PROG RAM Uni vcrsity of Florida, G,llncwille National InsU tute for Trial Advocacy Co~t : $1,350 (800) 225-1>-182

(713) 749-1571

(800) 422-0893

25-27 O IL AND GAS LAW AND TAXATION Westin, Dallas Sou thwc~tmn legal Foundntion

(2 14) 690-2377

de opportunities

Alilb,lm,1 Bdr tnstilutl;' (or elf Credits: 4,6 (205) 348·6230

thursday

CI VIL TAX FRAUD L1W CClllm, TU ~C"IQO~il

Alabam,l Bar

In~lltlitC

19-22

for CLE

C".."(IIIS! 4.6

9-11

(205) 348-6230

CURRENT ISSUES IN HEALTH LAW

EMPLOYMENT DISCRIMINATION

5-7

DoubletJl."e Inn, D;lll~s legal Found;ltion

Soull1'NC~!ern

(2 14) 690-2377

20-21

UN IFORM COMMF.RCIAL CODE

INSTITUTE H ilton Palnclo Del Rio, S.Ul Antonio Uniform Cemme'cial Code Insti tute

Cr(.'d it~:

13.2

Cost: $425

(n7) 249-6831

wednesday

ENG INEERING INSTITUTE

HRIDCHHE·CAP

Birmingh,lIn Jeffe~n Civic Center, Birmingham Alilbam,l Bar Institute for CLE

(205) 348·6230

Sheraton Bal Harbour Ilowi. Miami MI.1mi law Center Crcdl t ~: 7.2 (305) 284-4762

friday

fEDERAL APPELLATE PRACTICE AND PROCEDURE AI I,lnttl In~t j t uu: (or

elE in Georgia

(800) 422·0693

Woodbridg(: Condominiu m Complex, SnOWIllJSS

$175 (20S) 2624974

$125

20-22

11-13

ORTHOPEDIC INJURY AND DISAB ILITY HYilll Lilke T"hoe, L.lke Tilhoe

ADVANCED ANTITRUST WORKSHOP

Credils: 112

Willl,lmsourg Lodge, Williilm~burg Pr,lctislng l..1w 1n~tltule Credits: 15.6 C(XI: $475

SKI SEM INAR AlahtlrnJ Trial 1.1WYCrs'

Co~t:

t.'It.>CII.LegaI Institute

7-14 Co~ t :

Callaway Gardens, Pine Mountain Cumberland In~t l t u h! for ClE (205) 870-2865

A~socl.l l iM

12-13 MEDICAL INSTITUTE Sheraton Bal t-tarboUi Hotel, Miami Miami l.lW Center Crt.-djt~: lolA Cost: $275 (305) 284-4762

CO~I:

$400

(618) 995·7189

22-25 REPRESENTINC STATE AND LOCAL GOVERNMENTS The Antlers Ilotel, ColOr,ldo Springs Nillional Coliege of DISTrict Cost: $335

Al1orn~

(713) 749·1571

thursday

COMMERCIAL REAL ESTATE FINANCING law C('fller,

Tu~c:a1OQs.1

january J 987

Attorneys Admitted to Bar, Fall 1986 William Marsh Acker, In ........ 8lrmlnlJham, Alabama William Reid Adair, Jr. ........... Tuscaloosa, Alabama

Charles Bruce Adams "',.,", .. ,., DoOmn, Alabama )tlmes Griffin Adams, Jr. .... ,', .•. ,' Decatur, AlalMma Rhonda Jean Adams ' ...... , , , , , , . Sylacaugll, Alabama Richard Nehon Adams . , . , .. , ...... Decllwr, Alabama William Bruce Alverson, Jr. . ...... Hope Hull, AI,lOOm3 Stella Woodson Miles Andeoon .. Birmingham, Alabama Gcralda Mae Aubry ........... Nashville, Tennessee Daniel Gavin Austill ................ Mobile, Alabama Milton Grady Avery ,., ..••• , ••• Birmingham, Alabama Donna Etalne Baggell .......... Birmingham, Douglas Brent Baker ,." .. ", .. " .. Mobile, RlchiUd Crook Barlneau ..• , ..... Birmlnsham, Ealon Caston Barnard ...... , . , , . , , , Daphne, Joy Chilppell Barnes . , ... , ...... Birmingham, Dennis Michael Bilrrett ..... .... Birmingham, John Berry Baugh .. . .............. Florence,

A/..bama Alabama

Alabama Alabama Alabama Alabama

Alabama Mavanee Routt Beilr ............ MOnlgomety, Alabarrw Raben Gerald Boliek, Jr. .......... ..Mabasler, A/aba11lil Virginia Shl~ Bolick ... , ........ . Alabasler. Alabama Mark William Bond .... , , ...... Blrminghilm, Alabama Bradford Wayne Botes ..... , , , , , , , Hunfsvllle, Alabama Harold Alfred Bowron, III ... , •.. Blrmingllam, Alabama Kyle Russell Boyd ........... , , , , , , Brewfon, Alabama Nancy Dber Brame . , , , , , . , .... Blrminghnm, Alabama M:lrlanne BiIlttlgliil Brandon .... .. Rlrm/ngllllm, Alabam.1 Borry Owen Branum .... ........... Opelika, Alabam,l Eric Joseph B(ellhaupt ". , , , , , .. , , . , Mobile, Alabama WilUam Styl'll! Bfewbakef, III ..... Birmingham, Alabam(l Rlchafd james Brockman , , , . , , , . Rllndolph, New Jersey June lee Sapp Brooks .... ,., ...... CuI/man, Alabama Wallace Kindred Brown, Jr.... ,. , MOnlflOl»ety, Alabama Charles Augustus Bryant , , , . , , , , . Birmingham, Alabama Rickey lee Burgess ........... , , Birmingham, Alabama louis Milton Butt, Jr.... .. "" , New Brockfon, Alabama Constance Ann Cald~1I ... ..... Monlgomety, Alaruma James Cannon, Jr......... ...... Ne-.v Cas!ic, Alabama I'cter Adam Caro . , , , , . , , , , ... , Birmingham, Alabama K..1thryn Smith CaM!f .... , ...... Birmlngh,lm, Alaooma Susie Taylor CaNer . , , . , . , , , , , , . , TUscaloosa, Alabama Carrie Lynn Christie ...... , , ....... Daphne, Alabama Julia leigh Christie ...... , , , , , , , , , , Daphne, Alabama Andrew Ted Citrin " ...... ' .... , ... Mobile, Alabama Terry Allen Clark ........... Greenville, Soufh Carolina Ginger Dickerson Cockrell ., .... , Birmln8ham, Alabama Gary Phl1ip Cody . , ......... , , . Birmingham, Alabama Mlna Cathryn Coker .............. Praflvl/le, AliJoomiJ: Linda Lee Collins , .... , ... ,"", .. . Mobile, AlaoomiJ: Brian Keith Copeland ........... Birm ingham, Alabama Rudene Bailes Crowe . , , , , , . , . , , .... Mobile, Alabama

The Alabama Lilwyer

Sheila Kay Pugh Dansby ..... , . , , , Tuscilloosa, Alabama Clori.a Jean Darby ... . ...... ... . Florence, Alaooma Mark Thomas Davis .................. Troy. Alabama Mary lee Abele Dawson ........ Birmingham, Alabama Theresa Smith Dean , .............. Op()lika, Alllbamil Raymond HlIM'Y Delbert , , , .. , .. Birmingham, Alab.1ma George John Dezenberg. Jr, ., •.••. Fort PilYI'I(', Alabama D.wid Marcus Dunlap ......... B;rmlngham, Alabama NOr;J Elizabeth Elder , . , . , , , , , . , .. Norlhpon, Alabama William Cater Ellioff ........... MOnfgomely, Alabama Gregory "'Ollston Ellis ........ , . Birmingham, Alabama Roger Wi lson Ellis ............. Birmingham, Alabama Patricia fr:mklin Emens .......... Tuscaloosa, Alabama Jeffrey Coleman Ezell . . ......... Phenix Cily, AI"bama Herbert Shepherd Faught. Jr. , ... , Birmingh"m, AI'lbama Denise Ann ferguson ............ Nunrsv/lle, Alabilma James Edmund Ferguson, I1l , .• , , . Birmingham, Alabama George Wheeler Flnkbohner, III ....... Mobile, AIDbama William Tazewell FIOYICI'S ... """" ,(IDylon, Missouri Pouricia Shaud Francis , ....... ,. Birmln8ham, Alabama Richard William franklin ....... Newport, Rhode IS/Dnd WIlliam SilenCer Frawley .. , ... , , Birmin8ham, Alabama Gregory ScOIl Frazier ............ Tuscaloos;l, Alabama \.ot!rnle Edward Froeman, II ......... Bessemer, Alabama Stuart Frentz . , , . , , , . , ......... Birmingham, Alabama Charles (arl Frldlln, III ........ . Birmlngh,lm, Alabama Rose Hannah Garrett-Iohnson , ... , , , , D,'phnc, A/abamil 8eth Hahn Gerwin , , . , ......... Birmingham, Alabama John Alan Gibson ... , ... , ... ,""" Butler, Alabama Walter Thompson Gilmer, Jr. , ........ Mobile, Alabama William Bo.vman Givhan ............ Mobile, Alabama Thomas Jeffery Glidewell ..... , , . , , ,SiJraland, Alabama Charles Edward Grainger, Jr. . .... MOnfgomery, Alabama Usa Fae Grumbles ............. Birmingham, AI,lOOma John Collier Gullahorn .......... . Albertville, Alabama John Efstration Hagefslration, Jr. ... Birmingham, Alabamil Gregory Rick Hall ... , ........... Hunrsvl/le, Alabama Lewey Clayton Hammett, Jr, ......... Pcll City, A/'lbama lynn Etheridge Hare ............... , Mobile, Alabama John WiUi{lm Hargrove , ... , , , , , , Birmingham, Alabama Robert James Phillips Harmon, II .. Birmingham, Alabama James Ronald Harris .... , .... , , , Birmln8ham, Alabama Dannie lynn Hart ................. Brewfon, Alabama Kalhryn McCullough Harv.'O(l(! ..... Tuscaloou, Alabama James Antonio Hernandet ......... Northpoo, Alabama Michael Stephen Herring ........ Birmingham, Alabama Howard Douglas Hinson ........ Birmingham, Alabama William Steele Holman, II ".,',." . . Mobllt, Alabama Richard Hamner Holston ............ Mobllt, Alabama Jeana Peeler Hosch , , ...... , , , . Birm ingham, Alabama Jam(.>s Cicero HlICk<lby, Jr. ....... Birmingham, Alabama

John Lee Hutcheson . . ..... . lrondallJ, Alabama Kenneth Frank Ingram, Jr. ........ , •. Ashland, Alaooma Garfield Woodrow Ivcy. Jr. . . .. .. Birmingham. AI.lbama Richtlrd Lynn lui ......... , ... , Birmingham. Alabdma Janet Brooks Jenkins ..••...... MOnfgom('(y, Alaoomil Richard Edward Jesmonlh ........... Daphne. Alabdma Carllon Murray Johnson. Jr....... Mon1somery, Alabama Curli Morel Johnson ............. .. La~II. Alabama Daniel BO'Jd Johnson ................ Allanl.l. Georgia Sandra Loe Johnson ... . .. , .. , .. Alabaster, A/aooma \oVylle Benjamin Johnson ....... . Birmingham, Alab.lma Deborah Blackmon lohnstone ••.• Birmingham, Alabama Suzanne Jones , , •••..•........ Montgomery, A/'lbami! leigh Ann Ka>,lor •••••.•• , ...•.• Gainesville, Florida Vera McGehee Kee ............ Birmingham, A/awmil Cynthia Kei th Kennedy , ...... . I-/a~el Creen. A/abam'l Edward Joseph Laake ........... Montgomery, A/'lOOma Dorothy Kelll.'Y Lm:kl.'OS ............. Mobile, Alabama Gcorse W,men laird. II .............. Ja5p(!r, Alabama Richard Jocl Llird, Ir. , , , , , .•...• Blrmlnglmm, Alab.lm.l I,.o\Iesley Lance Laird •...... , ... .fori Deposil, Alalxunll Mary Ellen lamar "'" .. , , , , • , Montgomery, A/abam.1 P.1Irick McCarty lamar . , .. , .. , , , , , . Florence. AI,looma Manhew Clement Lemere ." .•.. Birmin8/1am. Alab.lma Robert ElishB ledY;Hd, III .... , ... , . Hun!5vll/c, A/awma David Alan lee ..................... teeds, Alab.lma Scan lay Lec<.b ................ Blrmlnsham, Alabama Michael Kil.>th U!wis ...... ... . Collillsvll/e, Alabama Leigh Frances LiChty ... , .•..... Blrminsham, Alabama Roy Hamilton Liddell , .. ,... ., • •Jackson, MiSSissippi Bruce Mitchell Ueberr"nM . ., ... Montgomery. Alabama Francis Politick loftin , , , , , • , , Phenix Cily, Alabama laura Katherine loYeless .. . .... Monrgomery, A/aoomil John Frederick Lyle, III ..... , . . . . . . Mobile. Alabama Wallace Oavis Malone, III ..... . 8lrminsham, Alabama Stuart Mlchalll MaplllS ........... Hunljville, A/aba11lil Julie Ann Marks ............... B;rmin8ham, Alabama MichaC!1 Dennis Mastin ... , , .•. , . , ,AnniSlOn, Alabama Walter Franklin McArdle ............ Daphne, Alabama Charles AI('}Candcr McCallum. III .. Birminqham, Alabama Brian Patrick McCarthy ., .. , ..... , .. Mobile, Alabama Caroline Chunn McCarthy .. , , •.• , , , . Mobile, A/.,bama Julinn Rushton McClees ........ . 8irminghilm, A/'lb.lma W,lll1n Joseph McCorklC!, Jr.•..... MOnl80mcry, Alllwma Raymond Thaddeus McCormack .. mrmln8ham, Alabama Sidr'ley MonrO(! McCr<lckln , ........ . DlJplm~. A/.lballliJ Weyman VVllllams MCCr.lllle. Jr. ....... Mobll~, Alabama Marcus Edward MCCrory ., .. , .. ,'" Opelika, Alabama Andrew Harper McElroy, III ...... Blrmlnsnam, Alabama Candis Annene McGowJrl . , " " Siocklon, Alabama Ricky Joe McKinney . , .. , , ..... , Tuscaloos.'), Alabama Stewart DiI\IidiiOn McKnight, III •• . Birmingham, Alabama ludith Louise McMillin ............ Mobile, Alabama lam~ Randall McNeill ... . . . .. .. Pine Level, Alabama John Tyler McShan, IV . . . M cShan, Alabama Colel"llilrl Foster MC!ador Mobt/f!. Alabama

Albert Schneider Miles , . , , '" Tuscnloosa, AI,looma Effie Teresa Miller ••...•... , .. M Onlgomery, .... ,iJOOmiJ John Wahon Miller, II . .. . ...... 8lrminSham, Alabama Francis Kilpatrick MiI'M!e ........ BlounlSville, Alabama Shelly Fehon Mitchell, Jr .......... Mobile, Alabama jeffery Allen Mobley ..... . ........ Dclmar, Alabama Carl Dean Monroe, III ........ MOnlgomery, Alabama Yancey Albeft Moore, III , .,"', . . Iiun/wille, Alabama James Richard Morgan . , .. , .. , Blrmin8ham, Mabamil Connie 10 Morrow-Fundin .. .. Double Sprin8s, Alabama Melinda Louise Murphy ........... Norfhport, Alabama Phillip Russel Myles ••. , .•.......... Mobile, Alabama lisa Jilnm NailS ................. HunrsVll/e, Alabama Narissa Gay Nelson ............ Birmingham, Alabama R.1ndall Wnyne Nichols ............. Mobile. Alabama Arthur Chri stian Nilsen .......... 1lomewoocJ, Alab.1ma Linda lee Nobles , ... , , ....... , .. , Pcll5acola, FloridJ Steven Merrill Nolen .,"',.,', •.... F.lyelle, Alabama Carnella Greene Norman , , , , , , , , Blrmlnshllm, AIBoom,l William Richard North , ••.••.. . MOn/gomery, Alaooma Wallcr Mark Northcuu ... , ...... Homewood, Alabama Ann Allison Korns Norton ....... /Jlrmlngm,m, AI'loama Gregory Norris Norton ............ Annls/on, Alabama TImothy Haston Nunnally .......... Florence, Alabama ThomilS Patrick Old'NCilcr ........... Mobile, Alabama WHile Harold Parrish, Jr .. ,. .,' Montgomery, Alabama Virginia Call,(!rt Panerson ........ Birmln8ham, Alabilma Robert Norris Payne •• ,"',.,', .. Huntsville, AI,l/).'m,l Steo.en Campbell Pearson , . " '" BlrminBhilm, Alabama Adam Kennedy Peck •• ,.,' ... Birminsham, Alawnl<1 I..lura How,lfd Peck .. ,' .,", .• Blrminsham, Alabama lohn Mihan l'enningtOll ... . Am:J.llusia, Alabama M(lrvin Glenn Perry, Ir .......... Blrminsnam, ..... /abama TilY'or Thomas Pcrry, Ir ............ Gadsden, Alawma St(.'V(!n Richard Perryman ....... . •. \Qllcy. Alabama ~resa Bearden Pet~los .......... Birmingllam. Alabama Charles Mark Peterson Blrmln8ham, Alabama Susan Hubbert Peterson . , • , ., .. Blrmlnsham, Alab.1ma Dinah l,.o\Ieatherford PCtrce , , , , , , , . , Huntsville, Alab..,ma Marlha f ields Petrey ..•. , , , .. , .. Birmin8ham, AI,lwma Sidney T1ngen Phllips .• " '" .. ",. Mobile, Alabama Mark Andcrson Pickens ........ . /J;rmlngham, Alabama ThomilS Kevin Pogbec . , , , .. , , , .. , . , 1l/.lIlt City, Florida BC\lCriye Nixon J"ollllfd ... . ....... . . Auburn, Alab.1ma P.l/dcia loy Ponder ................. Mobile, Alabama Al1dr~ lallles Pons . , ... , .......... Mobile, A/.lOOma Chartes loseph Pons , , , , , •.••• , , , ••• Mobile, Alab..1m.l Frederick Anen Purchls .. , •. . , .. Birmingham, Al,lbamll Joan Elizabeth PUIney ". • •• , •• Birmingham. A/arum,l Wanda Marler Rabren , . And.llusia, Alob.lmil Richard Heywood R.1msey, IV , " .... Ornh.lIl. Alabama Sandra louise Rander . . . . . . . . .... \¥.Ish/oglon. DC George Johnson Rice, Ir ............ Mobile, Alabama Morris WadI' Rlchllfdson . . ...... Gardendale. Alabama Thomas Boyd Richardson .. Blrmlnsham, Alaooma Ka thleen Jane Robertson •........ Tuscaloosa, Alab.lnl<l

January 1987

Judith Barry Robinson .......... Blrm in8ham, Alabama Oby Thomas Rogers ............... Mobile, Alabama Ansley Elizabeth Rowell ."." .. Birm lnllham, Alabama Thomas Drake Sam(ord, IV ...... Birm ingham, Alabama Wesley Schuessler, II ., ...... " ... Roanoke, Alabama Sherry Ann Scott .. , ............ Penn Bucks, Eng/and Kevin Gene Shelley ........ , , , . Birmingham, Alabama lauric-Ellen Shumaker ....... , .. Birmingham, Alabama George Alan Simmons .. .... .. . , Birmingham, Alabama Inger Marie SJostrom ........... Birmingham, Alabama lorena Joyce Skelton ... , ' ...... , ... Mobile, Alabama Byron Bart Slawson ... , , ....... Birmingham, Alabama Alfred Franklin Smith, Jr ",., ... Birm ingham, Alabama Steven Cooper Smith ........... , .. DccaltJr, Alabama leah Oawn Snell .. , ... , .. ".,',., l)(Nhan, Alabama Dale Wayne Snodgrass ......... Birmingham, Alabama Domingo SolO ............. ,"",.,. ,AusOn, Tex,l:'l James Wesley Sowell ............... Mobile, Alabama Robin Vltllngl Sparks . .......... Birmingham. Alabama Nor-ma Stanley ..... ...... .... . lJirminghllm. Alabama Michael Allen Stewart. Sr .......... CuI/mali. Alilbilma Richard James Stockham. III ,., .. Birmingham, Alabama JCiln Anne Stone , , , , , , , , , , , , , ... Albertville, Alabama Garrick lewis Stotser ......... ," Huntsville, Alabama Richilfd Douglas Stratton """, , Birmingham. Alabama Usa Slay Strl..>et ........... , , , ' .... , Mobile, Alabama Phillip Hampton Street ...... ,""" Mobile, Alabama Betty Allbrilteo StrOther ............. . Boaz. Alabama Gerald Carl Swann, Jr .. ... ..... Montgomery. Alabama Will HIli Tankersley, Jr.. ... .. .. MOn/gomcry, Alabama GllIY Stephen Tetrick , , . , , . , , . , . Birmingham. Alabama James Patrick Thomas, III ..... Pleasant Grove. AlabiJmi.l lames Ray Thr8sh . , , ... , .. , , , , , , .. Opelika, Alabama

fall 1986 Bar Exam Statistics of Interest Number sitting for exa m ............. 456 Number certified to Supreme COllrt. .... 275 Cerl ificalion ratc .... , , , , , , , , , , , , ... 60%

James Patrick Tillery, Jr , ........ Birminsham, ~Iabama Guy larry Tipton , ......... , ..... , Hoover, Alabama Sid Jack Trant .,""', .. , .. , .. Birmingham, Alabama Sonja Maria Trenkler "", ........ Daleville, Alabama Allen Rober! Trippeer, Jr ...... , . Birmingham, Alabama Julia lynne Truesdell , , ... , . , ... Blrm/nsham, Alabama Edward Davis Tumlin , ... . .... . Birmingham, Alabama Johnny Mac Turner, Jr ........... Tuscaloosa, A/ab,lma Donald Charles Vaillancourt .. , , , , , Nul/cy, New Jersey Howard Raymond Vilughan, Jr ... MOn(gomery, Alabama Charles Emil Vcrcelll, Jr ........ Montgomery, Alabama Oakley Kevin Vince", .......... Columbiana, Alabama Cindy Stone Wald .............. Tuscaloosa, Alabama lohn Allen Webstcr ............... , , Selma, Alabama loon(lrd James Weil, Jr , , , , , , , , ...... Aflam., Georgia Robert Machel Weinacker, III ........ Mobile, Alabama Gary Phillip Weinstein , .... , .. , Birmingham, Alabama Judson William Wells ,.".", .. Birmingham, Alabama Kenneth Eugene White. , , .. , . .. Birmingham, Alabama Carolyn Fayc Wiggi ns ........ , .. Tuscaloosa, Alabama Deah Birdsong Williams ......... Tuscaloosa, Alabama Peter Harold Williams ........ .... Gainesville, Florida John Anthony Wilmer ............ Huntsville, Alabama Forrest Crowell Wilson, III .......... Mobile, Alabama Gwen l eatherwood windle ......... Daphne, Alabama Michael Paul Windom .............. Mobile, Alabama Robert Donald Word. III ........ Birmin8ham, ~/abama George Robinson Worman, Ir .,'" Huntsville, t\/abama Camille Searcy Wright ""', ....... . Atian", Ceorgia louise Coker Wyman .. , ....... Birmingham, Alabama Jennifer Maric Young ....... , .. , Birmingham, Alabama William Edw{lfd Zales, Jr ... , . , .. Birm ingham, Alabama

- IMPORTANT NOTICE-

New Removal Bond Procedures in Northern District

Hislorically, Ihe clerk of Ihe U.S. DiSiri cl Court, N.D. of Alabama, has roulinely approved $500 removal bonds.

Certificalion percentages: University of Alabama .....â&#x20AC;˘ , , , , , , .75% Cumberl and ............. , , , , . , , , 76% Alabllma nonaccred ited law schools, . 26%

The Alabama Lawyer

New instructions now perm it routine approval of only $1.000 remova l bonds. As in the past, motions to increase or decrease Ihe amounl of a bond will be considered.

Lawyers in the Family

June Lee 5.app Brooks (/986); l.en D. Brooks (1981); Judge Robert It 5<Jpp (r9S0); Rober' A. Sapp. lr. (/981); and /Ohn Mark Sapp (198 /) (admiflee, husOOnd. falher. bralher and brOlher)

Brian Kcllh Copeland (1986); Buford L. Cope/and (/941); Frank W. Bai~ (1982): \.짜.lyrIC:! Cope/and (1951); ~nd Idmcs Millon CopelAnd (1985) (adm/lIce. f.lfhef, cousin,

uncle and cousin) January 1987

Palricia FrJnklin Emens (I986) and Sleven C. Emens (l976} (admillee and husband)

Belly Strolher 0986}; /anie Baker /ohns lon (1985); iJfld John

8aker (1967) (admiUC(', cousin and cousin}

Robin VIIIIIlSI SptJrks (1986) IlM O11n/el D, Sp<1rks (sprillg 1986) (adm/llee and husband)

I larold A Bowron, 1/1 (l986}; Harold A. Bowron, Jr. (1955);

and Ed Bowron {I985} (Bdm/rrce, farher and brother) The Alabama Lawyer

F. Palrick Loftin (1986) and Sam E. Lonin (1976) (adm/llcc 1Jrt(/ ororher) 41

P,uric:ia SholUd Francis (1986) lind J. Thomas Francis (/984) (adm/ftee and husband)

8r1an P. McCl,Irthy (1986) and Coroline Chunn M cCarthy (198M (hu$balld and w ife i1dmittces)

John C. CuI/a ha(/! (1986) ;And Willi/lm C. Cul/llhom, IT. (1957) (adm/ftCC lind fllther)

Cln8Cr Oickerson Cockrell (1986) and Bobby H. Cockrcll, Jr. (spring 1986) (admlttâ&#x201A;Ź!{! and husband)

WI/II(JrT1 Ma rsh Acker, 11111986) /lnd JudBC WIlliam M. .Acker, Ir. (1952) (adm/ucc and fa/her) fanUllry 1987

Gene Roose (l982J; Elna Reese (1984); and \I\{lrrcn

Rce5e, Ir. (1930} (brolher; siSler and falher)

KilIhryn MeG. Harwood (1986); Roberl B. lilltwood, Ir., (1963); ; dlld ludse Rober! B. Harwood (1926) (acimillcc, husbllnd and (alher-in- ,.lw)

The Alabama Lawyer

Richard H. R,lmsey; IV (1986) ilnd Rld1<1rd II. Ramsey; 1/1 (1957) rae/millet' ,lnd f.llher)

Sidney T. P/IJ'/lps (/986) and Abe Ph/lips (/95 9) (.ldmillee and falher)

Fred G. Collins (1950) and Linda L. Collins (l986) (fll/her and ,le/millee)

Williall] S. Brl!wQilkl!l, III (986) and William S. Brewbaker, Jr. (/970) (adm/llel.> and fal/wr)

Curl; M . lo lllH Oll (l986) aM /01111 W. Jo hflsOfl (I94 7) (admillet' jJ n{/ (.llher)

Jalluary /987

Kennefh Inwam, Ir. (1986) Dnd ludge Kennefh Ingram (1963) (i1dmittee and ""!her)

Don't let your Alabama Lawyers

get worn, torn or thrown away_ Order a binder (or two!) at $6.50 each from: The Alabama Lawyer P.O. Box 4156 Montgomery, Al 36101 or call (205) 269-1515 The Alabama Lawyer

David A. Lee (1986) and Marcus W. I..ce (1977) ladm;ftee and brolher)

Introduce Your Clients to a Valuable Service. Il.cfi:r thcm 10 Business Valuation Services fo r expert dc (cr~ min:ltion of f.U r l1l:lrkct v:llllc of businesses, and fin:l.ll cial analysis :lnd consultatio n in cases of:

o Estate planning o Estate settlement o Maritald~lutions o R.ecapit.t.lizations

o Employee stock

o wnership plans

D Bankruptcy proceedings

0 Mtrgersoracquisitions 0 Buy-sell agreeme nts 0 Dissident stockholder suits

Contact Dr. John H . Davis, ill 4 Office I)ark Circle · Suire 304 • Bimlingham, Alabama 35223 P.O. Box 7633 A • Binn.inghalll, Alabama 35253 (205) 87().1026 47

Young Lawyers' Section

n OcIober 21, 1986, 2i'S new attorneys wcrc admitted to praCTice In Alabama In ceremonies held in MOntgomery. Jfyou wcreone of that number, YOLI automaTically became 11 member of the Young Law-

yers' Section of the Alabama Slate Bar, comprising over 50 percent of

the tOlal st~ le bar membership. In Alabama, YlS membership is free to 3ltom~ not over the age of 36 Or who have nOI been members of the Slate bar fOr more than three years.

For the new InduClC!CS, now Is the best time 10 show Interest in your new profession by bt'<:orning <In ilcl ive YLS member. The YlS, th rough its VilriOU5 officers and committees. ~rform5 service to

the bilr, both "young" and "senior," ilnd the general public, Presently.

there arc 22 working commillees, all

Highlights of recent YlS events

needing volun teers. These commit-

Bar Admissions Ceremony Chairman laura Crum of H Ili, Hill, Cal1er, Franco, Cole & Black in Montgomery Is congratulated along with the new Inductees for a very successfu l cer(..... mony. The motion for admission of Ihe new attorneys wa s made by Mr. Douglas Arilnt, one of the stolle's most revered lawyers, who has practiced for morl! than SO years. Atlhe luncheon, 650 gUt:!sts heard remarks from the Honorable lnge Johnson, a Denmark native, who was the (irs! female circuit judge In AI~bamJ . AI the ABA YLD Fall Afliliate Outreach Project, Nafiooall\Jbllc Service Conference in Montreal, the Alabama YlS was rt!prcselltcd by Percy Bad路 ham of Maynard, Cooper, Frierson &

change (rom lime to time as Is-

sues arise affecling oor profession and those we represent. With a veri table spectrum of activities perlorm(.'(l by the YLS, 1lSsun...dly there are several opportunities offllrC!(i for mally rc. warding experiences. To receive a list of committees and the respective chairmen, please ca ll me at 34917'17. Alabama's YLS has seen signWcant progress in recent years, but to further respond to the challenges faced by new atlQrney$ and the public, we mU5t meet the mandate for con tinu(.'(j Interest and Invol ...ement by that St.'grllcnt of the bar which now has srown to become the b..'lr's major-

Ity.

In addition to the state YlS, our effectiveness only can be consequential on the national leYeI If we Increase our American Bar Association Young Lllwyers' OI ...lslon membership. Unlike the state organization, to become an ABA YLO member, one must complete the membership lonn available from the American Bar Associa tion, Vounglawyers' Divi$ion, 750 North lake Shore Drive, Chicago, Il 606' 1. The ABA YlO wtermines the number of VOIing delegates basOO on the number of VlO members within a given state. Membership Is free and based on the S<lme eligibility requirements as the stale YLS. Alabama's vote withIn the ABA YLO Is determln(.'(f, then, by the simple effort nee(h.-'d 10 Join the YlO.

Claire A. Black YLS President

Gayle, Birmingham; Claire Black of Crownover & Black, Tuscaloosa; Rick Kuykendall of CCOpef', Mitch & Crawford, Birmingham; Charles Mixon of Johnstone, Adams, Howard, Bailey & Gordon, Mobile; Keith Norman of Blilch & Bhlgham, Montgomery; and past YlS President, Edmon McKinley, Thomasville. The I>roject offered 20 workshops afld six panel diSCUSSions, in addition to two leadership WOrkshops. Many paml>hlcts and other written materials are disseminated at project meetings for usc by local and Slate affiliates. In addition, Ihere was an opportunlly for southeastern states to discuss common go..'lls and issues. In November, the Blrmlnghom Sar Assoclatlon's YLS sponsoll.'(i a diWict court seminar. In addition to rules and poliCies, topics includ(.-'d trial of an automobile accident CMe, common causes of action and post-judgCrTlent collection practices. In the past, this seminar haS been attC!nded by a rec路 ord number of Birmingham attOfneys. The legal Services to the Elderly Commi ttee, headed by Rebecca Shows of Huie, Fernambucq & Stewart, Birmingham, has bron working hand-in-hand with Its senior bar committee CQunterp'Ht. A resource man-

January 1987

ual is being prepan.'d, and members of Ihe com miul!e will be disseminating pamphlms 10 senior cllizens cenlerS, Cle., throughout Alabama to notify thc cider· Iy 01 legal offices in their community providing assistilllce.

Upcoming YlS acti vities The VLS commll\<.'eS are combining ef· fo rts for the celebr.llion of the Constitu· tion bicentennial. Chairman althe Con· 5Iill)l ion Bicentennial CommiUcc lynn M cCain of Simmons. Ford & Brunson, Gadsden, ,md Kei th Norman of Balch & Bingham, Montgomery, chairman of ,he You th Judicial Program Committee, arc working logether to Incorpof'Olte the Can· stl tutlon blcentCllnlal celebra tion whh the Youth Judlcl ~1 Program. The You th Judicilll Progr,l m, which has recci\ll>d the firs t pl'lce Award of

Achievement (rom the ABA YLD, Imol'o'CS several hundred high school sludents in local mock Irial com~titions, wi th finals held in Moolgomcry. This year the program will Include participants. Iheir families and the general public In Ihe local YLS Constitution Bicentennial Project: the production of pl/lY entitled, 1'hellts Trouble Right "\ere in Riwr Cil'(.' The play, Including an all· lawyer caSI. concerns Ike theme c:J freroom of 5pOC'Ch In publiC schools and lakes place in a pJrenlischooi council meetlng sct· ting. Target cities for the mock trials and play productions include Birmingham, Mobile, ' -Iunlsville, MOntgoMery, Tusca· loosa, DOlhaniEnlcrprise, Ihe Quad eh· ies, Gadsden/Anniston and Auburn! Op(!lIka. YlS Publlcal lons Committee Chairm,lIl Terry M cElheny of Dominick, Fletcher, Yeilding. V'IOotJ & Lloyd, Bir·

mlngham, and Public Relations Com· millf.'C Chairman Jim Sasser of \'\bod and Polrnell, Montgomery, are drafting SIan· dardllcd publicity millerlals for use by each city reprcscntati~, and Keith Nar· n\iln Is coordina ting with Senior Bar ConSl ilUlion Bicentennial Committee memo ber Thelma Braswell al the AdminiSlra· !I...c Office of Courts, Montgomery, to prepare a mail-out on the program tQ ~ SCnt to all social studlt5 teachers in Alab.lma. Pat HMrlS of Harris & Harris. M Ont· gomery, who chairs the Child Advocacy Commillce, has undertaken 10 coordi· nate the YLS with the Montgomery Counly Young I.awycrs 10 hold a Child Ad vocacy Seminar, dealing with represen tal ion of minors, jUIICnlle and guard· Ian ad litem C01$CS and child cuStody. The seminar will be a one-dIlY C\!Cnt held In Montgoillery. •

Back row, s/an(/ing. lef, 10 rlsht: Keith Norman, Edmon McKinley (paSI YLS pres/delll), Marsle McKlnk>y, Charlie Mixon Front row, scared, left fO rlShl : Claire Blllck, Rick Kuykcnddll, Nancy Kuykendall, f\:!rcy 6adham, P.my 6adham, Christy Mixon

The Alabama Lawyer

Consultant's Corner The follow/os is II review of iJnd com· men/CITY on an office automal lon issue

of curren! ImpotliJnce /0 the lelJal communit y, prepared by the office aUlotrull /on COIlSu/Ulnf fa the sla/e bat; PdU/ 8ornslein, whose views arc his own, DIId nol necessarily those 01 the stale bar.

litiga tion Support Litigation sUPI)()rt Is a lopic like moral.

ity; CW!ryonc talks about h, but ft.'w bother /0 define just what It is. Tnis im· precision has led more Ihnn a few veil· dors 10 offer litigation support "program s" promising a 101 (or very lillie, wh ile delivering lyou guesSI,.'(! III very little for \.1jry liule. n Is a bit like the ne'erd~1I colleijc SlUdcnt qu(!sliom..'Ci by his p.1r(!nl about his gl'ildes ... "Somewhere between 0 and 100," he: s.1y5. Similarl y, 11118<11lon support can be dcfl ncd as somewhere bcl~n "having someone carry my briefcase to Ihe cour/house" and knowing "what question that lowlife opposing counsel is going 10 pose next to my witness." Litigation support is genmally agreed to cOYer a number of areas of pre-Irial preparation, particularly the indexins of documcmu prepared both In·house and obtJinoo through discovery. Indexing a large number of documents is not an ar· Cilne ta sk (albeit a tedious one); the ell' p!Jricnced litigator does it habilu,1l1y, His indeK can vary (rom simple docket·like listings of si ngle-line entriC!s 10 a targll deck of 5" K 8" cards, C!ach rCI)resenl ing 6ne document. The poInt Is not W/lClilcf to utilize IIl ig<lllon support (you must h,we some sort of document control system 10 be cffect i~J, btil whether to (1(110male such il process. The answer, unlor. lun<ltcly. Is not one gU<lrantlled to pl(msc. First, coml)utCrlzoo litigation Support proglOlms are of !'NO basic types: fullt(.»(1 search and abstr~ ct search. Fuil lexl, as the name Implies, invol~ the (key v.urd) scanning of entire documents using ICxt proce$sing techniques. II dearly requires thaI in·house documents be available on a ma~s !>fOrage dB/Ice attached to the text processing system. Nor so oi7-1lous, (and certainly nOI emphasized by vcndors) is Ihe pmblem 01 material nOf crealoo on

your system. This material c.1n only be cntered Inlo the system by rekc:ying or optically scaMlng iI. Rckcylng can be prohiblti \'C in term s of time and labor cost. O ptical scanning has limitations In terms of type (onts it can read and printer control characters il can recognize. On b.llanc(', full text document search has IImlloo applicability ill prewnt, until such time ilS mass storage becomes significantl y l('Ss expt>nSive and optical $(anning more efficient. Abstract 5e;Hch in-.olves th e scanning of reco rd·like abstraC(s of documenls usins dMa processing techn iques. An OIl>~ I ract worksheet look5much like J 5" K 8 ~

80rnSlein card you might prep.lfe manually, con· laining d"te, document type, source, crit· Icality, author, whether enter(.'(i into (!vl· dence and a list of key words. AbStraCl$ Mll much simpler 10 enler into a com· puter than fu ll text. Corlvcrsely, they require l ime-lntenslY(! review by an experienced person before the abstract can be entered; i.e. How critical is it1 Wha t key words should be indexcdr Computeri7.ed products, like tceh· ni(lul'S, come in two forms: micfO<om· l'lUtC!r baSt"(! and mini· (Or maxi·) COm· poter based. The micro-based produCls are the most widely used, and usually arc adequate (Of an abstract type of lode>:·

ing. Almost any l>C with a 10 or 20 Meg· abyte hard disk can be util Zl'<l. The soft· w<lte l)rOOucts are in the under-52,OOO range. The mini· and ma~l· bascd prod. ucts cost a great deal more (ul)WJrds of 520,000), but also allow for full teltt search and tnc distribution of access to the product among all stillicns connected to the main compu ter. Which technique (and product) is right for youl Let's take some eKamples: - If IItl801tlon compllSCi only a small Pollt of your l>ractic(', then you should probably not gel inYCSloo at all. like m,lny other technologies, if ~u do not use the product regularly, you I)robably will nC\lCr get very comfo rt· .lllie with It. - If ~u ha\'C " substartiai litigation pr,lctite, one thm h<l5 a high document COntent, then ~u would be I'.(!II adllised to consider one of the microb.1Sed products, using an abstract b01scd program . EXI>crimcnt with It, much as ~u v.uuld eKperlment with 01 micrD-Computer; before decidil)g whether to buy Olny more of them or to i~t In a mini-compuler. - If you alreOldy are using <I microbasc.'<l program, require more capabil. ity ilnd already haw a mini ( Omputer syStem in· house (or other purposes, tnen you might (!)(plore mlnl·based solutions rather than indiscrimirla teIy Jddlng micros. Finally, i' ~u occiuio",llly get in· volved with a matter requiring a mini. or ma>:l-compuler based program, there ;are sever<ll existing <WUide resources i1VJilOlble for such siluations. Most malor ICl!dl specUic ve'ldors (111M, B.mister, Informatics, etc.) haY(! sclVlce burc01uSavailable for both customers and non·customers. The ser· vice COIn lIary fro m inmiling one (or more) of their termin(ll s In your offices 10 providing abm')ct encooers, as \VCII. Naturally, these services carry a price ta g, bul It mlghl be a !)ener choice for ~u(and ~lX cllelll) than investing heavily In something you may not rcally need. ALburn Univer. sity, for example, has offered l imeshamd access to lIS STAIRS program . STAIRS Is a high level, sophisticated litIgation wpport prog,am Ihat IBM had wlillen (or its own use in defend· ing the antltruSI ca se brought against It bv the Justice [)(:I>artment ln 1974. January 1987

Request For Consulting Services Office Automation Consulting Program

SCHEDULE OF FEES, TERMS AND CONDITIONS

,.,,.s,

firt"

Avx. {mIl Sl~c'

O\Jr~II",,··

IJwl""

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• 50000

. 50000

$1.000.00

$40(\,00

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SI ,500.00

$313.00

S2.SOO00

,moo

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8-10

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OWl'lO

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U501)O

'Number (llI;JW'fOf'l on ly (~~cllldlnM of coumen " Ou '~llun ~'f~ tu th~ i>1~nnt:tl •.m, p,~",I", tim!: and dOl!'! nOllnclude 11mI.' SPI'flI by ,hI! OOnlu llDnl In his own offlal wh ile prilp.Jfll1jj documenrallon nnll rccomlT\<lnd,llionl.

REQUEST FOil: CONSU LTING SERVICES OFFICE AUTOMATION CON SULTING PROGRAM Sponsored by Aldbama Stale Bar

THE FIRM

Flrm~ "~mje~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Address

City Contact pcrSQn Number of lilWYCB Office$ in oth er I; ltie~l

lel~phone

Zip

titte

paralcgal$

sccrcwif'S

others

ITS PRACTiCe PractiCe Area s ("!o)

li tigation

Maritime

Real Estate

Collections

(orpor,lle Estate Planning

lilbor

To>

Banking

Number of clients handled annually :-;:===== = Number of mailers handled annually

Number of mailers prese""~'~IY:":Q~''':"====== H()y,o oftCll do you bim _

EQU IPMENT

Word processing equipment (I f anyl _ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ __

t.'qUiP~~.~"'~"~r~'~,,~Y)~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Oictation equipment (if any)

Data processing Copy equipment (if any) Telephone equipmcnt PROGRAM

% of emphasis desired

PrCICf(tXI timc

Mmin . Audit

WP r--'eeds Analys,is

(1) W/E _ _ _ __ _ _ _ _ _ _ __

DP Needs Analysis 12) W/E _ _ _ _ _ _ _ _ _ __

Mail this request for service to the Alabama State Bar fo r scheduling. Send to the allention of Margaret Boone, executive 6n, MOntgOmery, Alabama 36101.

asslstt!.nt, Alabama State Bar, P.O. Bol': The

Alabama

Lawyer

Recent Decisions by John M. Milling, Jr" and David 8. Byrne, Jr.

Recent Decisions of the Alabama Court of Criminal

Appea ls Improper cross-exami nation of

character witnesses

H()()pt'f V Slille, 3 Div. 47) (Oc· tober 28, 19U6}-I·tooper wa s found guilty of tWO countS of rnpe. On appeal, he argued that the trial court erred by permitting the state to cross. e)(3mlne defense character witnesses about particular acls attributed to the defendant. N trial, the defense coun· sel presented the testimony of 32 ch aracter witnesses who testified to the defendant's good reputa tion In the community. During the state's cross· e)(3mlnMlon of ten of these witnesses, the prosecutor asked the following question;

"Would 11 eharlst \<lur opinion of Mr. Hoope~s r1!pUtiltlOIl If ~ kn(lW that he Wilj making his daughter. II child, Willch IXlfllographic films and t'Icn havln8 sexuallmercourSe with her!" Thc defense strenuou sly objcctNl fol· lO'Ning each of these questions, but the objOClions we(e overruled . fhe gencml rule is that the char· aCter, whether good or bad, can be proved only by general reputation, and evidence of particular aclS or

conduct is inadmissible both on direct (lnd crOSS-eJC(lmin(l\ion, although a slightly greater latitude is allowed on (:rosre)(;!min(ltion . It is not permissible for the in<luiry to extend to p.1rticular facts or to 150Ialed facts. /.o\.very v. Siale, 51 Ala.App, 387, 286 So.2d 62, 66, cerrodenied, 291 Ala. 787, 286 So.2d 67 (1973) Therefore, on the cross-examination of the defense char. acter witness, It Is permlssihle t(:l Mk the witness If he had rIOt heard it reI>crted In the community tha t th e defendant had commined renaln unwor· thy acts, naming thent, but even this is nQt allowed for The purpo$e of affeeling the charaCter of the defendant, bUlls evidence affecting the credibility of the wi tness t~tlfyln8 to good chariletcr. The (orm of the question to be l.lsked to such II witness shou ld be " I-lave you heard ... t' Weclseworth v. s lale, 450 So.2d 195, 196 (Ala.Cr. App. 1984) In reversing the trial court, Judge McMillan observed that the witness· es WC!re not int('rrOg<lted as to whether they had "heard reports, rum OI"$ or statements derogatory of the a<:cuSt!d" whi ch Is the larl8uage of 11le p.~rticu ltlr cross-examination considered proper in G{lmble, McElroy's Alabama Evidence (3rd ed . 1977). The questions

were hypothesized not upon reports, rumOf$ or S\(ltements by others, but upon Ihe assumed ac/ual existence of such disrepuwble co nduCI. Proof of uninterrupted chain of

custody still essential Johnso n V. S/<1Ie, 4 Div, 670 (Oc· tober 28, 1986J-Johnson was convict· ed of vil)lating the Controlled Sub. stances Act. On <lppe(ll, he alleged tha t the state fai led to prove an unin_ terrupted chain of custod y, Judge Taylor's opinion urlderscor(!s the iml>crtance of "chain of custody" evidence to the stale arld defendant. In Johnson, one of the officers who had been a PQllce officer fo r 19 years testifk>d Ihat lhe substance looked like marlj u<lriii. There also was ai\ "" eml)t to gct into evid{!nce the report from the sta te toxicology laboratory to prow what wa s In the brown paper grocery bag. White the director of the I;)b was listed as ;) st,lle'S witness, neither he nor anyone else appeared 10 testify thilt the conten ts were examined and found to be marijuana nor tha t the bal$ displayed in court held the same substance as th at cxamined. Noone wa s present to prove the report. Oycr defense objecti on, the trial court admitted the evidence.

January 1987

On rwlcw, the Alab.lma Courl of CrImInal Apl>cal s found that the proof thatlhc substance was marijuana consisted 01 three things: it looked like marijuana to Officer Hutcheson, It snlclled like mariluana to the informant and the sellcr and buyer actL>d as if ~ were marijuana. There was no founda tion lai(l (or receipt of the laboratory repor1 of the alleged marl· juana into evidence. It witSmerely hearsay. As an exhibit, the rl!port went with the jury to the jury room and established a key clement of (he stale's case-thm the pllper bag containt'Cl marijuana. Therefore, an essential clement for proof of a violation of §2o.2-70, Code of Alabar'!'!a (1975) WOlS lacking. The appcllat(! court critically noted there was a failure to prove that the container, the large brl,M'n paper S<lck, and its contents Iha ( were dcliV\!rcd 10 the crime lab In Enterprise Wl!re the s,lme as Ihe sack and contents appearing In COUr1. There was a comillete brcak in thc chain of custody. Proof of an unllllCffUp[cd chain of custody is essential, Marijuana possessio n .. . proof of the knowledge c lem ent McClay v, State, I Div. 149 (October 14, 1986)- McCray was found guilty of possession 01 marijullnB for personal use. On appeal, She maintained lhat the state failed to pl'CM! a prima facie case, The record indicated the (lefendant resided at 11705 Saraland A!)<l rtments. The apartment ar'ld bills IM'!re listed in her n'lfTlf.', ~en's clothing was found in the bedroom and the defendant was seen and identined at her ap.1tlmcnt. H~r, (he evidence did not indicate that [he defendant knew of the presence of the mari;uana in her alXlrtmcnl. Tv.'O small bags were fOund an(l both of them were In the kitchen area of the allartrllCrl t. There was nO evidence indicating how loog they had ~ there nl)l' that defendant knew of their (lxlstence. In fact, the uncontradicted tcstlmony Indlcawd that tile defendant had last been seen at her al)arlment three diJ','S prior to the search. Such a shONing. wi thout more, Is not surflderll to supporl a conviction of corlstructive possession. Judge McMiII:an, Spc.ilking for a unanImous court, n:."A!rscd and remanded for new trial. The opi nion gives an excellem su..-vey 01 thc cases regarding proof 01 the The Alabama Lawyer

knowledge clement required In drug cases:. "'A prima f.JCie use d possession of a p~ hlbl1ed drug Of substance must show conwuctl'le pOSsession by:he accuSl!d fi a con(rolk'<l substance plus knowlcdllc on his part 01 the p~nce of the 'lan:Qtic. Y.lfbl'OVSh ... SUII.', 405 So.ld 721 (Ala.cr.App. t98l1; Roberti ... Stolre, 349 So.ld 89 (Ala.cr.App.. t9771• , , Constructive possession 01 a narcotic required proof beyond a reaSOll(lble doubt that rhe Defendant had knowledge of the drug's presence, lemple v. SIa[(', ]66 So.ld 740 (Ala.Cr.App. 19781, whiCh m;ty be elitabll$ht.'d by thc surrour.di n8 f~cts and ct f> cumst~nces.~

The la-.v In Alabama Is clear that where a perSOn is in possessloo, but not exclusive possession, of premises, it may not be Inferred that sl'w:! kflC\-'J of the IlleSerlce o( any con trolll,.od $ubstance found there unless there are other circumstances tending to buttress the i nference. In this case, there Is nothing aside from the fact [hat the marijuana was found in her kitl;hen to shON that the defendant was llW;lre of the marijuana III her ap.1rtmcn1.

Recent Decisions of the Supreme Court of AJabama-

Civil Civil procedure ••. Rule SO(cXl) requires trial court to rule o n motion for JNOV and the mo tion for a new trial Ex parfe: Handlr.>y (In Re: Handley v. City o( Birmingham, 21 ABR 2672 (July 18, 1986)- Handlcy sued the City of Blr· mingham and obtained a jury verdict In her fi,lloQr, and a judgment was entered in accordance with the verdict. The ci ty filed motions for JNOV and alternatively for a new trjill. The tri al court granted the JNCN, but failed 10 rule on the motion for a new trltal. Handlt.y al>pealed, and the supreme court r~rs.xl the trial court's grant of the JNCN and remanded. Upon remand, tnc trial court granted the city a new tria!, and Handley flied this ilPpeal alleging that the trial court was without authority to order a new trial . The supreme court agreed. The court sta t(.>d that Rule 50(c)(I), A.R.Clv.P., provides thai if a motion for JNCN Is granted, the court also shall rule on the motion (or It new trial, if any, by determ ining whether It should be granted if judgment is thereafter vacated or ((!-...ersed. The courl nOled that the rule Is

mandatory, and the trial court erred in not rulin g on the new trial motion, Consequently, the trial court had no dlscrelion to gram a new trial upon remand ~ fter the supreme court's (Lwrsal of [he order grOlntlng JNOV. Therefore, if a trial court grants a JNCN and does not also rul e on the motion (or a nL'W trial, the movant also must appeal from the failure of the trial court to con· ditionally rule on the new trial motion or waive the righ t to a new trial should the appellate courl I'(!\,(!J'SC the grant of the JNOV. Execulors and oldminist ralOrs •• , a sec lion 26·7A·' Wolrd must have courl approval to make a valid will Barfl(!-S v. Willis, as ElIec:ulrill of the ESlate of Malcolm I. CartN, [)(>ceased, __ AIJR __ ( l, In 1980, Cart er made a wlilleavinglhc bulk of his estate to his heirs. In 1981, the probate court determined that Carler wa. incall.lble of l1),lnagln8 his affairs and property, In Il.lr! duc to senility, and the court appointed a curator 01 his estate under Section 26-7A-l , Ala. Code 1975. tn 1982, Carter c~cculcd a second will rewklng the first and left Ihe bulk of his estate to Barnes, his nit!(:e. The circuit court Invalidated the second will because (he nlcc:e did not obl;.in a court order to allow Carter, a ward of the ( ourt, to make and execute a will. In a case of first Iml>fC5sion In Ala· bama, the supreme COurt WilS asked whether a ward for whom a curator h35 been appointed under Settlon 2&-7A-l, ~lIpra, is legally cap.lble of making a will wllhou! prior notice, hearing and apl>l'CN-.11 by the court . The court answered no and nOted that a ward 01 100 court under Section 26-7A-l , CI sec/., 5I1Pr,1, is someone unable to manage his or her own property for eitbcr physical or mental reasons and whose Ilroperty, therefore, fC<luires management by a court"'I>POinlL>d Cl,Jr,1I0r, MOl'CQ>.ICr, the statute ClIpressIy pr~ides thal thc ward shall be wholly Incapable 01 making any con tract ~or any Instrument In writing" C1Icept after leave of thc court. The courl sta[(!(! lhat the phrase ~any instrument In writing" cleady includes a will . The court added the "sound mind" test still remains the standard for d(!tcrmining testamentary capacity, ar'ld lis holding merely requ ires a Section

26-7A-i', supra, hearing, Therefore, It Is possible one rn"Y require a cur.ltor and stil! possess mental calXldty to make 3 will.

Jurisdiction .. , Section 12·11-33 in rem statute is subject also to the "minimum contacts" requirement to confer slale court jurisdiction B€!,~fden v. Byerly, as E!lccufOr o( the ESlluc of W. Charles McMinn, /11, etc., 20 ABR 2822 Uuly 25, 1986)- McMinn, a Pennsylvania resident now deceased, owned and possessed an automobile in Pennsylwlnia. Beilrden, while in Pennsylvania, acquired possession of the automobile and returned to Alabama whcre shc resided. McMinn subsequcnt. Iy died in Pcnmylvania and hi s estme demanded that Bearden surrender the automobile. Bearden refused and filed this declaratory fudgment action against M cMinn's estate seeking 10 establish the respective p.lrlies' ownership rights to the aUlomobile.

The eslate flied a Rule 12(b)(2), A.R.Civ.P" motion asserting that the trial court lacked jurisdiction of the estate because of Insufficient "minimum conlacts" with the State of Alabama. Bearden, however, maintilined that Seetlorl 12·1\·33, ·A/il. Code 1975, grants /n rcm jurisdiction rather than In personam jurisdiCtion <lI1d thereforc Is not subject to the "minimum con tacts" requirement of Intern,lI/onal Shoe Co. If, \M!shinBton, 326 U,S. 310 (1945).

In Cil~e of first impression in Ala· b.1ma, th e supreme court agreed with the csta tc and held thilt since Shaffer II. Heltncr, 433 U.s. 186 (1977), the sliite courl may exercise Jurisdiction OYer a non· resident only SO long as there eJ(ists "minimum contacts" bct'II'IWn the defendant and th e fo rum, and It is Immaterial whether the jurisdi ction is In rem or in personam. Although not eXI>ressly ~ ti1t,"->d , Sel;tion 12-11·33, supra, does require " minimum contacts" for Alabama to <lcquire juri sdiction Oller a non·res!. dcnt de(er)dam . The state docs not S<lin jurisdi ction OIICr a non-resident defendant simply because a plalnllff brings propeny allegedly belonging to a defend"nl into thi s sta te and then brings suit to rc~ lve its CM'nership. M ed ical malpr.l ctice ...

municipal hospitals no longe r immune from tort a ctio ns Chandler. elc. II. Hosplwl Aurlr orlly of the (lty of HUllu llille. 21 A8R 172 (SCI>tember 5, 1986)- The Ci ty of Huntsville Hospilal refu sed to admit .lnd treat the 1>laintiff's 15-day-old baby, and the baby subsequently died of spin,,1 meningitis. The plilintiff filed thi s wrongful death ac· tion i'lg<rinst the municip.11hospital claim· ing the hospital breached implied and express contracts to trcat, The trial court grarllt.'<I the hospilal's mOl ion fOr Summary ludgment on the Hrounds that Alabama law does MI feCogrl ize a wrongful death action ell contr.1CIu, and Section 22·2 1·130, et, seq., Ala. Coelc 1975, whi ch auth orize s municipal authorities to establish munici pal

Please Note: the next board of bar commissioners' meeting will be FEBRUARY 6, 1987, in stead of February

13. 54

h05pili;1iS, illfords those hospitills immun· ity from ex delicto action s. The plaintiff ask(.>d the !;Ourt to Q\."Crrule Gcohagan II, Gencral Motors Corporation, 279 So.2d 436 (Ala. 1973), and also 10 Ond th e enabling legislation unconstitutional as a lIiotation of equal protection. The Supreme Court refused to overrule Geohil8an 'lnd affirmed that Alabama docs not recogni l:e il wrongful death ac· tion ex ConlfaCtu. However, the I;ourt did hold that Section 22-2 1-137(2), svp''', is unconstitutional, using the " rational basis" stalldard of revilM' and Concluding that there was no !dtional basis for thi s statutory discrimination whereby municipal hospitals are granted Immunity from tort acllons. The court reasoned thilt patients tortiously injured III coun· ty and public h05pitals have a remedy and Wil S unable to discern why Ihltienls tortiously injured In a ml)nicipal hOSpi!')1 should not have the same remedy.

Tort$ ... libel courl refu ses to adopt Restatement (Second) 10 rl$, Section 611 WKR G-rv, InC. II. Will.')I, 21 ABR 288 (September 12, 198)-W1!t.'Y, a member of the Mobile Cour'lly COr'nmisslon, filed a libel suit against WKRG·TV charging that WKRG libeled him In a televi sed report of a commission meeting in whi ch persons accused Wiley oflml>roper use of his office, WKRG milde a mOlion for summary judgment contending Ihat the broadcast was privileged because it was an ilceur"te rerxm 01 an occurrence at a public meeting pertaining to a matter of publiC conCern and urHed the suprcnlc court to adopt Resta tement of Torts (Second), §611 (197 n, as the law of this stale, The Rcstatcrllcn t SC<'Iion protects the publisher of defamatory material even when the Pllblisher kn ows that the PlIblished STatement is false. The court declined to adopt Section 611 , supra, and stated that Secti on l3A-ll·161 , Alii. Code 1975, i1ppears 10 corresl>ond most closely tu th e Re statement rulc, (lnd that thc privilege (ecog· nil:ed in Ihat statute is much more limit· ed. The court noted that the! Rcstate!ment rule would cloak thc publication with a pri vil ege ~n If the publisher knOllv'S the statement is fil lse, as long \I S the report pertains to a matter of public concern and is a fair and accurate rendition of what tran spires at Ihe public m ~t lr\g.

January 1987

Since Wiley w~s iI "public official" he might recovcr j( he could prow Sullivan malice, that WKRC broadcast ,he allegations with knowledge of their falsity or with r()(kless disregard of theif trulh or falsity,

Vo ir dire .. , Alathlma Power Company v. Bon-

ner overrul ed in pari and dissent路 ing opinion adopled

defendants objected that the q\lCstions were overly brood, and Ihc Irlal court limited lhe Inquiry to asking If any \'Cnlre member WJS an agent, stockholder or offi cer of the liability InsurjJnce carriers Insuring the defendantsThe supreme court affirmed Ihe Irlal court. However, In doing so, the court noted Ihat such inquiry was sanClioned In Alabama Power Company v. Bonner, 459 Su.2d 827 (Ala. 1984). Ther(..fore,

Cooper v, Bishop Frccman Company and Russell, 21 ASR 3151 (August 22, 1986)- Coopcr flIoo this action under Ihe Alabama Exlend(.'d M,mufacturcrs liability Doctrine against one of her coo employees and the manufacturer of iI slcampressing machine for in juries sustained at work. The jury rCturm:.>d a vcr路 dici for the ddendants. and on appeal Cooper maintains th(ll the trial court abused its discretion by sustaining obJeclions to the plaintiff's proposed voir dire questions to the Jury venire concern ing potential relationships of the venire members and their families with any and all liability insu'ance companies. The

Richard Wilson & Associates Reg iste red Professio nal Co urt Repo rters 17 Mildred Slreel Montgomery, Alabama 36104

264-6433

upon reconsideration, the court overruled this aspec1 of Bonner and re5rrictoo inqu iry concerning potential insurance relationships between the venire members and defendomts' Insurance compan路 iM-inquiry as to pofeflliallnsurance relationships between any relaliYes of the venire and any other liability insurance carriers no longer is proper.

Recent Decisions of the Supreme Court of AlabamaCriminal Satterw hite revisited ... admission o f search warrant nol hnrml ess error McCrary v. SliJle, 21 ABR SO (AuguSt 29, 1986)- Thc Supreme COUrt ol Alabama granted certiorari to review the decision of the Alabama Court of Criminal Appeals and determine whether the ildmlssion into evldcrlce of a search warrani waS harmless error. Defendant was convicted of trafficking in mariJuana. Duringlhc search aUlhor-

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The A/abamil Lawyer

ized by Wilrr.lnt, one ounce of marijuana was fouod In IhedefendilOt'Shome. 1W(). hundred·ten POllOOS 01 marijuana were found ill anothef site between the defendan t's residence and another resi dence. The dcfendant was charged with The possession d the 210 pounds, as well as the onc ounce actually found In his home. The trial Judge, over defense obJcctlon, allowed the scarch Wilrr,mt into ('vidence. The dc1'endant ilPI>ealt.'C:I, contending that the admission d the search warrant W.1S reversible error. The court of criminal appeals affirmed, but In its opinion acknowledged Ihat the admission 01 the WilrrilOt to prove a material element of the crime was Improper. The supreme court i,lddressf!d Ihe thrt.oshold Issue and rot.Jnd thillthe admission of the search wilrranl was Improper and constituted urrer. The closer queslion bcc..lmc whelher the error was hMm· less or r(lVCrslble. The supreme court concluded ,hal "the t~1 is not whelh('f the illegal evidence influenced the iury, but whether ;1 mighl have unlawfully influenced lhe Jurt In the verdkt returned.·

In 11'115 case, the primary evidence as to the defendant's possession of the 210 pounds of marijuana, the trafncklng Chil~, was based upon the defendant's possession of [I\c one ounce 01 mtlriluana found In his home. The supreme court held Ihilt the improper tldmission of the search warrant put before the jury the filCl thill, prior to Ihe search, a district Judge was convinced there was probable cause 10 believe the defendant had mllrljuan,. at his residt',!Oce. "Such ('vIdence WilS likely to influence the jury in ils determination of the Dclend.lnt's guilt or in.wccnce, and this Court Ctlnoot know for ccrtaln Ihat il did nol.~ Oefendant's right to truthful response to questions posed to venire Poole 1'. Sl.lle, 20 ABR 3029 (August 15, 1986J- Whlle Poole, it law enforcement ofOcer. was responding to an emergency call, his vehicle collided with another \'ehide. Tv.<O personswere killed. He was convicted of manslaughter and sentenced to a tCrm of three years' Imprisonment. Poole ap~alcd to thc court of

criminal appeals, which affirmed his conviction. On CM, Poole con tended Ihat the COurt of criminal apllCals erred In (ailing to find that the scf\llce on lhe jury by two persons who hJd failed 10 respond truthfl,J lly to IIQlr dire questions WdS prejudicial [ 0 him. At the tlmc of the voir dim examination, the prospective Jurors werc question<.'(l whether they had "ever had any I)roblems or conflicts with any law enforcement o(ficerr" Those ques· tions elicited a negative response by ill the members of the \'enire, including jurors Betty John50n and Marty Keith Russell. At some polnl , defense counsel learned thilt these two Jurors had been 1rM)1~ in prior ctimln,,1 II tivlty, or that Ihey had prior confHcts wllh the law. The defense cOnlellded that because of Ihe IlroSpecl ivc lurors' fllilure 10 ilOswcr the questions truthfully, the defendilnl was unable to ulilize his Jmy strikes erfe(;tiveIy, and, therefore, was prejudiced and entitled to a n<.ow tfiill. The ('vidence reveals that Juror John. son W.lS convicted In the district coort (or

Antitrust And Business Torts Section loin Our Section WI! Invi te all members of the Alab..1ma State /Jar to join and partici pate In activities ollhe Section on AntitruSt and Business TOrt5. Annuill dues are $15. Use the (orm pf'O\lld. cd here or send a teller with your check to Andrew P. Campbell ;It thc address listed below.

Nc:wsletter and Other CommitleL'S lAb welcome YC(Jr ideils for futuro programs and encour· ilge cOflIribulion5 to our newsletter. To partldpmc In the nCY.'Slctter, elther on an on-going basis or by submlttlllg ar· tides, case notes or id~as, pIcaSi' COr\lJct linda Friedman, 1400 P,lfk Place TOM!!', Birmingham, Alabama 35203.

Membership Application and 8usim.'Ss Torl~ ScctionfAlabama Stale Bar Antitrust Name: ______________________________________________________________________ __ Business

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la/lUary 1987

the offense of sale of prohibited 1I(IUOr, Juror Russell tes:ifled thM he twice had been convicted of the offense of issuing 'NOrthless cht!cks. The supreme court, In an opinion authored by Justice Maddox, held tha t the failure of th~ t'NO Jurors to respond truthfully to the questions sctln voir dire examination constituted prejudicial error. JuStice Maddox found thm the court of criminal al>peals fililcd to follow the princi ples of law SCt In the case of Ex Pdrte l.edbcucr, 404 5o.2d 731 (,,101. 1961). In l.edbcltcr, the supreme court held that juror's (ailure to disclose an Incident duro ing which gunshots were nrc<! al his home five months prior to trial was pm· judi cial. The court concluded lhm "the questions propoun(!t'<l to the prospective jurors were specific cnoullh under the doctrine of 1~c1bfjIlOr 1() wilrrO,lJl1 a respon se." Thus, a defendant In il crimlnill C<lSC hasa right not only to voir dire the prospective jurors, but the more signifiC;;lnt right to receive truthful responses prior to e!<erclslng his peremptory challenges or chalienges for cause. limitalion on am ending the charge Wallace v. Cityo( ~ha n, 21 "BR 40 (August 29, 1966)- Wallace was convict· ed in Houston County ci rcuit COU ll 01 assault and criminal mischief, He was a suspect in a burglary that occurred in OZ.lIrk and was arrestl'<l in Dothan by an investiga tor with the Olark Police DepIIrtnlCmt. "ftef (Iucstionlng,. he WilS placed In the back seat 01 a police eilt where he Immediately started kicking the right window MId frJme of the door. later, the defendJrl t kicked one of the 0(' flcers, knocking him agai nst the dash· board. On ilppeal, the defendilnt contended thar municipal police officers from Oxark were acting outside of thei r authority wheflthey arrested him In Dothan with· out a warran t on a felony charge of burg. lary. The defendant, therefore, contend· ed thilt since he WJSillegally arrested he had th right 10 respond reasonably to unl(JWful custod y. The Supreme Court of "Iabama, speaking through lustice Maddox, found that thc clear and undisputl>d (.'Vldence was that d ty police offi cers from O zark arN5ted the defendant ar the Dothan City Jail on a felony charge of bUfglary, wi th· The Afi1Qama Lawyer

OUI a warranl, Consequently, the defend· ant was unlawfully .lIrr(~ted and, therefore, the only question for the Supreme Coun's consideration was whether he used reasonable forcc In attempting to exlric.1te himself from the unlawful arrest, The court found th(ltthe amount of force used bv Wallace was unreasonable. However, the court reve~ and fCmilnded lhe case on the issue 01 whether the trial court erred In permitling the prosecutor \0 amend the Information on two occasions. The City of Dothan asked the judge to amend the inlOtmaiion on two occa· slons: the judge alllM'ed both amend· ments. The dcfend~ nt ched to the Supreme Court a line of CilSCS which held that In " Iabama the liulictnlcnt Can· nOt be arTumded without the consent of the defendant. Ex P,lIte 511Oull5, 208 Alil. 598, 94 So, 777 (1922)

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hIS)O'l'OS

Justice M"ddox poin ts his readers to Rule 15.5(a), Alabama Temporary Rules orCriminill Procedures, which provides: "{aJ Amf'nriml.'nl 01 Ch.lI81.'. A (harge may be aml.'ndcd by old!!1 of Ihe COull wirh Ihe consenl of the dc· rend~nl In all cases excepJ 10 chnnge the offense or to chilrge new offenses Ilot Indudt'CI In the Original Indict· rllen l." In thiS CilSC, the tri,,1 CO\lrt illJowcd the prosecutor to amend the information twice: once, to change the offense and again to change the date lile offell~ was commiucd. The court allowed the ilmendmenlS over the defendant's objec· tion. tn doing so, the trial court erred and the court of criminal ilppeals erred in af. fi rmIng the tri,,1 court's judgment,

testimony of Ihe officers, \liol(l ted Kennard's Sixth Amendment right 10 confronl and cross-examine Da~i s as recognized in Doug/as v. Alabama, 380 U.S. 415 (1965). The Intermediate appellate court furlher held thlltthe dOClflnc of "curative lldmissibility" did not allow the admission of the objection"ble testimony, Th~ Sllpreme Court of Alabamil reversed. The stale conceded that ordinarily il (;annot uSi;! the confession of an irCcom· plice as evidence llgainst the defendlll1l where the nccompllce is nOI avallnble for cro ss·examinntion , See Doug/as \I, Alabama, supra. HONeVCr, the supreme courl held thilt the ordiniJrlly objection. able rc-dirCCI testimony broughl out by the SUIre thrOugh th~ 1)Olic", offi cer fell wi thin Ihe parameter of the cur<ltlve ad·

mi ~sibili t y rule. Justice Mams observed thill, "Firsl, Ih", testimony brought Ou t by Kennard's counsel durlng c ros~mlnn tion W,lS hearsay not coming wi thin any exception to the hearsay fllle, and therefore, not admissible:' Second, the crosseXitmin(ltion of the wi tne;s witS10 rome cx tcm t prejudicial 10 the sta te and sup.. ported the aCCu ~'S dcfcI1SC of IIlibi. Third, Justice Adam s cOr"lciuded, "The rebuttallcstimony of the 51,l te was not ex· cessive," Accordingly, under the doctrine of curMive adm i $sibilit~, if on cross· e'41min(ltion of;,l wi tnf;l!iS the P<Jrty brings out a part of a transaction or conversation, the o ther p<1rty (herein the Stale) lIMy inquire fully ilitO Ihtl transaCtion or bring out the whole comcrsatloll on recxaminil!ion, •

Accomplice testimo ny and the doc· trine o f curative admissibility Kellllard v. State, 21 ABR 208 (September 5, 1986J- K!!nnard and Davis were arrested at the home of Davis' girlfriend short ly (lfter" robbery was commiUed ilt the H ighl;mds Bakery. Certilin incriminm· ins ~idence wi!) fOl,lnd at the residence, and Kennard and Davis were chilrgl.>d with the robbeI)'. A ft<!r hi s ;west, Davis g.we the aulhorities a Sialelllellt hI which he "dmitled Ihat he and Kennard robbed the bakery, Kennard wa s tried and convicted of first degree robbery, AI Kennard's Irial, his attorney cro ssexamined on~ of Ih~ arreSl inl'l Qffi C;(lfS abou t the admissions made to him by Davis, The defendant's iawyur's questi0l15, howf..'\lcr, did not clicitarly anSWCr whi ch Itlcrlmlnated K!!!lItard, On re. direct e~(lmin,ltion of the police officer, the prosecutor responded to the crosseX(lminMion by defense counsel by il5k· ins the officer whiH O,Wi5 Mild told him about his and Kennard's involvement in the crime. Over oblectioll , the witness wa s permitted to state:

~ hb ....

]6104

A, "IJ'k asked Wendell Dil'Vls about the robbery, And hI! told us that he and AI~ltl Kentlard co«uniucd the robbf'ry. And he loalll..'<1 Alvin Kenrlmd hiSknife ~ nd his ski miJ!ik. That they slood on the (omm--corn..'(fion, on the ililey by the b<lkery \111111 " CJr left and wcnt in· side Ihe bakery. And Alvin Kellrl~rd ( .I f>. ril.'d one (I( Ihe ladies working In them 10 the b~ ck of the StOrC , , , ,

The court of criminal appeals reversed Kenn,nd 's convicti ons, holding that the statemen t of Davis, elicited through the

I .... Ity th. t Il>o , U t _h mod. b y III _ , . ., k>:I compOll.

"" _

lanuary 1987

Memorials was iI member of the JudiClallJall Complex Committee, which wa s re sponsible for the current rcnovmlon of the Ru ssell County Courthouse. He had served as chief warden and a member of the building committee of St. Thomas Episcopal Church, F,lulk W;lS married 10 the former Karen Hirsch, and they have one daughter, Leslye, a student ill the University of Alabama. JAMES THEODORE JACKSON

J, Theodore Jackson died In a Dothan hospital July 30, 198&.

III )lUtl II I' ! \\ I"

8obtJ.,l 100 faulk, il Phenh~ City allorney, died AuguSI 27, 1986, in Phenix

City. He was .. native of l"iurl1svllle, Ala-

bam", and a gradualc of Austin College.

~ay

FolIQY.Ilns graduallofl, ht2' was emplated by Thlckol Chemical Corpor'llion in 8runswick, Georgia; later, Faulk joined Boeing Airer.,ft Company as the youngeSt supelVisor in Ihe history of the com路 l>a ny (.11 that til"l\e).

Faulk left Booing 10 1I1h'md law school at the Un ive rshy of Alabam.l and rcceiVC(1his dcg!'cc In 1971. From 1971-72,

he scrvt)d <IS,l sslstant district

a norn~

1he 261h judicial circuit. In 1973, he opened his own priu;lice.

Faulk selVf!d on Ihe Alabama Slale Oar Board of Commissioners from 1980-83 and Ihe executive Committee 0( lhe bar

commissioners; was a member of the Alabama Trial Llwyers' Association and on lISboard of dilCCtol'i: was a member of the American 8ar Assoti<ltlon and a founding member of the East Alabama Trial l..1WYCI"搂' Association; W,l S a member of Ameri can Field Services; ilnd served liS chairman of the American Cancer S0ciety's HeM Fund in 1986. Al so, Faulk

The A/aba",,-1 Lawyer

ric graduated from Headland High School at 14 and .mended S.,mford Unlversify where he was president of the student body; he went on to graduate from the Unl\.'l!rsity of Alabama law School where, again, he ser.ecl as president of the student body, For the next two years he tilught school until he turned 21 and could legally become a member of the Alab.1ma Bar (lnd I)r.l(llce law, JackSOn prllctlced law in Dothan from 1933 until his retirement in 1976, excluding the time he served as the first district court judge of l-touSlon COUnty, Judge Jackson wa s iI deacon and Sunday school teacher at the First 8aptiSI Church of Doth3n. He was a life trustee of Samford Uni\.'l!rsit)' and a Kiwanlan, serving as lieutenant governOr and 80\1Crnor of the Alabama district, Jackson was married to the former Lonnell Smith, whQ predeceased him, and has thret! sons, Ted Jackson of Montgomery and Edward Jackson of Dothan, both Alab.lnkl attorneys. and Smith Jackson of St, louis, Missouri, For those who knew him, he was l)Crceived as a man who went obout hIs church, civic and professional duties in a qu iet, yet efft.'Cti'J'!, manner, Judge Jackson W:I$ II husbMd, father, lawyer, judge and gentleman, whose st.lndlllg In the Dothan Sar cannot be repl aced,

RA LPH HUNTER FORD Ralph ..I. Ford, a member of the Madl sorl County Bar, died OClObcr 16, 1986, in Huntsville at the age o( 70, ..Ie attended public school In Huntsville, gradullting from Huntsville High School; he attended the UnlVC!rsity of Alabama In Tuscaloosa, receiving his B.S. degree from the Univcrsity in 1939 and a Ll.B. in 1941. While at the University, he WilS a memher of O micron Delta K..1~ pa honorary fraternity, the "A~ Club and PI K.1ppa Alpha soclil l fraternity.

During INorid Wolf II Ford 5ervIXI In the United StalL'S Navy In the Paci fic theater, bclng discharged as a lieutenant COmmander, He began the practice of law with his father's firm, Griffin and Ford, which later became Ford, Ca ldwell, Ford & Payne; he WilS its senior member at the time of his death, During his career, he was a member of the AdviSOry Committee on AI>I>ellate Rules Practice (or the SUI)r'I!mc COurt of Al'l bama from 1971 until the J}resent; a former president of the Huntsvilie-Madl~o n County Bar Association; a member of Ihe American Bar Association, Ala bama State Bar, Inll!mtlllon~1 Association of Insurance Counsel, Alabama Dt.>funse LJwyers Association, Fcder."!tion of Insurance Counsel, AmCfic."!n College of Trialla'wyers and Intern3tional Academy of Tri,,1 l..1Wycrs; 1><1St president of the Rotary Club; president of the HuntsvilleMadison County Mcnt,,! Health Board from 1969-1975; pasl presldcnt of the Hun t~vlllc-Mad lSOn County Chilmber of Commerce; member of the Alab."!ma Counci l o( School Board Attorneys; attorney for Huntsville Hospital, the Madison COunty Bo..lrd o( Education, Firsl Americ."!n Fedefill Si\Vings & Loan Association, the \bn Braun Civic Center Board "nd former attorney for Mttdison County, He always maintained {I OOUrtCOuS and gracious ilttltude t()Y.Iarcl friends alld adversaries 311ke and missed will be hi s coml>anlollable nature, gracious charm and constant good humor.

He W<15 born in Mobile, Alabilma, May 21, 1928, <lnd wa se<lucated In the public schools of Mobile. He gradu~!cd in 1949 from TuJar)e Unl\ll!r~lty. h) 1952, he rc..... celYCd his LL.B. degree from the University of Alabama Law School and then served three ~ars on active duty with the United States Army, "'Ie Started law practice in Mobile as

,In <l.S$OCiatl'! of the firm of Holberg. Tully and Aldridge, and later as a partner In the firm of Brown and Whlte-Spunncr.

Charle~ Sandys Whlte-SpurIrl('r, Jr., a member of the Mobile, Alabama and AmeriC3n Bilr Assocl3\ions, died Septem. ber 3, 1986.

Forapproxlmatcly sl!VCn years, Whitt!· Spunner served as judge, and later presiding judge, of the Municipal Cour! of Mobile. In 1969, he was appointed by President Nixon to serve as U.S. Attorney for the Southern OiS1fict of Alabama, which he held until July 1977. Thereafter he returned to the private practice of law, which he left In October of 1983 to assume duties as assistant United States At-

torney, heading the Of8<lnized Crime Orug Enforcement Task Unit. White-Spu nner was act,ve in Rel)ublicar) political affairs, and served as a delegate to the 1960 Republican Nation31COr)Y(!r)ti on. On nun)erous occasions he served as delegate to the Alabama State Republican Convention and wa s vice chairman of the Alabama Republican Party. In 1980, he was co-chilirman of Psesldent Rea8,m'~ primiilry caml).l ign for Alabama. Charles S, White-Spunner wilSa member of the Spring 1-1111 Baptist Church, the Mobile liOnS Club and various other d .... Ie assoclnl lons. He is survived by his p~rents, Mr, and Mrs. Charles S. White-Spunner; his brother, ThomllSN, Whit~"S pun nl:r; his three dau 8hte ~, Leonora Wi ggins, Betty Nicholas and Adfa Smith; and two grar)dchildren , •

Notice of Election Notice is given herewith pursuant to the Rules CoV()rning Election of PrcsidCn/·e/ocI lind Commissioner for 1987, President-elecl The Alabama State Bar will elect a president·elect in 1987 to 8ssume the presidency o f the bar in July 1988. Any candidllle must be a member In good standing on March 1, 1987. Petit ions nominating a candidate must bear the signature o f 25 members In good standing of the Alabama State Bar and be received by the secretary of the state bar on or before Mllrch 1, 1987, Any canelldate fo r this office also must 5vbmit wi th the nominating petition a b lack and white pho tograph and biographical dnta to be lX,blished in the May A/,l/).1mIJ La w~r, Ballots will be mailed between May 15 and June 1 and must be received at state bar headquarter s by 5 p.m . on July 14, 1987. Commissioner Bar comm issioners will be ejected by those lawyers with their principle officeS in the following circuits : 8th, '11th, 13th, 17th, 18th, 19th, 21st, 22nd, 23rd, 301h , 31st, 33rd, 34th , 35th and 36th and the Bessemer Cut-off division of the 10th Judicial Circuit, Additio nal commissioners will be elected In these circuits fo r each 300

members 0/ the ~ ta!C bar with principle o ff ices therein , The new commissioner petitions will be determined by a ccr) SUS on March 1, 1987, nnd vacancies certifi ed by the secretary o n March '15, 1987. The lerms of <lny Incumbent commlssionf!fS are retained and, for 1987 only, commissioners In multiple commissioner circuitS will be elected for terms as fol lOw s: Placcs 2, 5, 8 1 yellf Places 3, 6, 9 2 years Places 4, 7, 10 3 years All subseq uent terms wi ll be for three years. Nominations may be made by pctition bearing the Signatures of five members In good standing wi th principle Offi ceS in the circuit In which the election will be held or by the candidate's written declaration o f candidacy . Either must be received by the secretary no later Ihan 5 p.m, on the last Friday in April (April 24, 1987) . Ballots will be prepared and ma iled to members be· tween May 15 and June 1st. Ballo ts must be voted and returned by 5 p.m. on the second Tuesday In June (June 9,1987) at state bar headquarters,

January 1987

Et Cetera Farm law report now available Farmers' legal Aclion Group, Inc. (FlAG) is iI

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Conference on Gulf and Souln Atlantic Fisheries The Gulf and South Allantic region of the United Slates is a leading commercial and rccrea tionalfishing area . A major portion of the volume and value of United Stlltes fi sheries resources is landed In the region, and tflc seafood caught In this area helps supply the needs of the nat ion. Commer(ial fishing provides a ready sour(e of seafood 10 consumers, and rC!CreatiOnal fishing not only serves as a food but also as an important leisure activity. These fisheries exi st in an atmosphere of regulation at five leYels: local, stare, regional, federJl and nlemationaJ. The dyn.1mics 01 fisheries mJnagcment ln the region lead to inevitable conmC!. One

iml)()nant Issue is the allocation of the resource among competing uSCr groups. Another Issue is Ihe ability of the federal gOVt:rnmcnt to preempt Slate laws through federal regulation In the Fishery Conservation Zone thaI expressly do not preempt stOlte laws.. The louisiana and Mlsslsslppl-A.labilma Sea Grant Legal Programs are hosting a conferen ce \0 proYlde up-todate, practical information on fi sheries issues corlfrontlng the Culf and South Atlantic rcglon and an atmospllcre for sharing the latest Information concerning fisheries law and policy. The Conference on Gulf and South Allantic Fi sheries Law and Policy will be held March 18·20, 1987, at th e Royal Soncsta Hotel In New ()Jleans, louisiana. For morc information contact Fisheries Law Conference, Sea Grnnt Communications, LSu Center for Wetland Rcsourcf!S, Baton Rouge, LA 70803-7507. •

SouthTrust Is Working Harder For You. Order your manual today. AU orders Now available from the Trust and Financial Services Division of received by March I. 1987 wiU be available at the special price of $60. SouthIrust Bank. the complete After March 1. the cost will be $75. reference guide to wiU and trust Please send your check made payable forms. The Alabama WiU & Trust to SouthIrust Forms Manual features client I Alabama Will & Trust Forms Manual Request I Bank and the ready forms. I I order form to Na me I I SouthTrust Bank. such as: I I Trust and • Simple Wills I Firm Name I ·Marltal I Addreu I Financial I I Services, Deduction WiUs I City Sial. Zip I P.O. Box 2554. • Codicils I I • Pourover WiU To IL Tdephonc "of Manuala I Birmingham. _________________ Alabama 35290. Irrevocable Trust

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The Alabama Lawyer

Disciplinary Report Di sbarment • By ordcrdlllcd July 3,1986, thc Disciplinary Board or-

dered Atmore lawyer Joseph Robly Tucker disbarred from Ine practice of law, based upon his f(lilure to ansv.-vr disclplll'l1lry charges pending against him, which charged him with willfully neglecting certain 1eg.11 mlltterS entrusted to him, misrepresentation and (ailing 10 cooperate with the Alabama State Bar's inves-

tigation of clienl complalnl5 against him. [ASS 65·112, 65·392 & 85-613J

Resignation of license • Birmlnghilm lawyer Walter lee Bragan, Jr., submitted a reSignation of his IlcenS(! to practice law on August 8, 1966, and by order of Augu st 25, 1986, thc Supreme Court of Alabama cancelled and annulled Bragan's privilege to practice I""", in the State of AlaoomJ and struck his n(lme from the roll of illtorneys in Alabama, effective October 6, 1966-

Suspensions • Blrmlng~am lawyer Herbert P. Massie was suspended, effective September 30, 1986, for failure to comply with the Mandatory Continuing legal Educa tion requirement of the Alilb.1mil Stilte Sar. [CLE 86-67] • Jacksonville, Florida, lawyer W. David Vaughn Wd S sus. pcnded, effecfi~ AuguSt 4, 1986, fOr failure to comply with the Mandatory COI\!inuinglegal Education requirement of the Ala· bama Stat!! Bar. [CLE 86-111 • Birmingham lawyer Thomas E. Baddley, Ir., was suspended from the practice of law for a period of six months, effective November 19, 1986, based upon his April 29, 1985, guilty plea in Jefferson County Circuit Court to felony mariJuana possession. [AS8 83-2541 • The Supreme Court of AIl.lOOmil Qrdl;ll\."(! Mobil~ I~r Samuel F. Irby, Jr., suspended from the pmctice of law for a period of 30 d~ effectiw Dt.'Cembcr 18, 1986, baS(.>d upon Irl:1($ guilty pleil 10 dlS(;iplin."Iry charges filed against him by the Grievance Committee of the Mobile Bar Association. Irbv's plea was b.."Iscd upon his failure to appear on behalf of a cHent at the appointed time for the trial of the client's liMlSuit, as well as his subsequent failure to reimoor5e the opposing p..lf\y in the Irw.;uit hr expenses Incurred In preparing hr the trial. The court dismissed Irby's cileot's suit when Irby failed to appear, then conditionally reinstated the ${lit when 1rtT,r ilgrf.«! to fl!imbuI'W the'oPpoSing P.lrty for expenses incurred in preparation for trial. Ultimately thc COtJrt cntc(('(j a final dismissal agaillStlrby's diC?nt, whcn Irby failed to reimburse the oPlX)Slng party. (ASB 85-307] (Not the §ame person as Samuel W. Irby, who practices In Fairhope) • Birrnlngham lawyer Susan Clayton Moore was suslxmd· cd, effective September 30, 1986, for failure to comply with the Mandatory Continuing Legal Education requirement of the Alab.1m<1 S«Ite Bar. (CLE 86·45] • Tuscaloosa lawyer C«ile B.S. Burton was 5uspended, effeCtive September 30, 1986, fOr fllilure to comply with the Mandatory Continuing Legal Education requirement of the Alabama State Bat, [ClE 86·21]

Public Censures • Huntsville lawyer Michael C. Moore was pUblicty cen· sul\.'Cl October 10, 1986, for three Instances of conduct adversely refl ecting on his fi tness to practice law, In violation of DR ' ·102(A)(6), of the cock of Professiona l Responsibility of the AI· abama State 8ilr, The essence of Moore's fi rst violation consiSl(!d of his having obtained $18,800 during 1983 and the first half of 1984, by Ccl shing lego11 fee checks on the uMOrIgage Loan Accoun t" of his law firm, Watson & Moore, PC, and then having paid as gifts or cash bonuSt.>S $6,000 of that Ilmount to various law firm ~mpl~ or a ssoc: la t~ wi thout the knCMIledgc or consent of his partner in the Ilrofesslollal corporati on. Further, Moore did not deposit the balance of the sum, ap. proxlmatt'!ly $12,800, to the law firm account, nor did he pay it out as gifts or cash bonuses, and he did not m~ ke any effort 10 pay his partner in the profesSionill corporation his sh:llc of thaI balance until July 1984. Moore's sccood violiltioo conSisted of hiSfailure to report the $ 18,800 to the Intern".1 R~nue Service or the Alabama State ~partm(!nt of RL'VCnue as income to his law fi lm, until July 13, 1985, after he had bct'!n confronted about the matter by his partner In the pro/csslooal corporatIon. Moore's thIrd violation consisted of his having drawn a check In the amount of $214.32 on the law firm's " tnlSl account" in early November 1983 to buy jCYlelry for his wife. Moore did not reimburse the firm's trust i1ccount for thiS improper expenditure untit eady July 1984. lASH 84-561] • On October 10, 1986, 8irmingham illtOrney Roger D. Burton wa s p~Jblidy censured fnr a viola tion of Disciplinary Rules 7-102{A){5) and 7·102(A)(6) of the Code of Professional Re$pOnsihllity of the Alabama State 6ar. BurtOll was found to have knowingly 0100 a false affidavit in a court ci law representing a client In a civil mailer. [ASB 85-6901

Private Reprimands • On October 10, 1966, an Alabama I~r rocci~ a pri. Vilte ~primand for viollllion of Disciplinary Rule 6-10\(A) and I-l02(A)(5}. The DiscIplinary Commission foun d the attorney had undertaken represellt.ltloll of a clien t In a domestic relations case and failed to file pleadings in a timely fashion and prepare and file a brief with the court, after having been request· ed by the court. This resulted In a dismissal of his client's case. The Disciplinary Commission determined the ilttorney should receive a private reprimand for Ihese violi,lliollS- [ASB 86-961 • On October 10, 1986, Alabama attOmt!y received a private reprimand for violation of Discil)linary Rule 2-111(6)(2). The OiscipliMry CommlS$IOn determined the atton'ltly had I)e(>n dischargL-'d, In wri ting. by his client, but that subwquent to his discharge the attorney took ~ral actions on behalf of his client, Including the /Ilhlg of a lawsuit. The Commission found the attorney's conduct violated the alJove.cited Disciplinary Rule and that the attorney should receive a private rel"'imand. (ASS 85·641) •

,In

lanuary 1987

Classified Notices

FOR RENT FOR RENT: 1,400 square feet-four completely remodeled ofOces Morris Avenue historical distrid of Birmingham , Ideal SP3Ce for small firm . Cu rren tly unfurnIshed ; will procure fur· nishtngs of )Our choice and pro-rate the COSI CNer the lease term, Parking. Call LE. Davis, (l051 251-7185.

FOR RENT: There's a difference betwccn tradi tion and habit. That difference is the Lovcm;ltls Professional Building. We didn't follow the convenIional floor plans for office 5lJace, Instead we creared a southside home for your business. By not being conven· tionlll you can enjoy office space mildc for people. Convenielll to doy,ontown and ~r-the-mOt.lnt.lln areas; a workconducive atmosphere created wi th pride and care; a one-of-a-klnd conferen ce room; a real farer, (or the beSt first impression yo u (lin make. Love· mans Professional Building-your new southside business address. Give us a call today: we'll be glad to share our dream with 'IOu. Lovemans Professionill Building, 2944 Rhodes Cirde, Blrrningham, Alabama 35205. Phone (205) 933-1030.

The Alabama Lawyer

1tAI1~

t_ <_. . . " " "'"' . . . .

' _ ....... "" !~ .......... _

FOR SALE: Up-to-date lilK library. COiltact K..ul B, 6enkwilh, Ir., P.O. Box 5198, Montgomery, Alabama 36103, or (205) 263-9782 .

FOR SALE: Southern Reporter Second Series; Alabama Digcsl; CIS; Southeast Transaction Guide; Southc11St Litig.1Hon Guide; Criminal Defense Techniques; Crimlnalla'.v Advocacy; Am. Jur. Legal Forms; Alabama Pradlce and Forms; Moore's Federal PrActice; Bender's Forms of Discovery; others. Burke & 6euoy, 120 South Main Strcet, Arab, Alabama 35016, (2051 586-41 52

WORD PROCESSING CQuipme nlTwo displaywrltcrs: one with 2566 memory (runs TelCtpack 4 and Reportpack), one with 2240 memory (runs T(!lItpac k 3). Dual dlskellc units, Single density diskettes, 25·linc display. Also, one printer Model 52161\02 with automalic sllC<!t feed. Alt in e!<Cellent cendilion, Inquiries 10 P.O. Box 1109, Mobile, Alabama 36633. FOR SALE: Alabama Reporter (5o.2d) v, 331-470 in 48 books (1976-1985); Southern Reportcr lSI v. 1-200; AmJur 2d; AmJur Pleading & Practice; AmJur Legal Forms 2d; ALR 2, 3, 4 & federa l; U.S. Lcd 1 & 2: USC.A.; Fletcher's Cyelopedia of Corporations: Williston on Contracts; complete Tilx & I.Jbor U· bf<lry, For all you r lawbook needs: The t.awbook Exc hange, Ud. boY$ & sells, Master Card/Visa accepted, 135 W. 291h 51 " New York, NY 10001, (212) 594·434 1 LAW BOOI(5: Southern Reporter lSI & 2d, federali st & 2d, Amlur 2d, usa, Tall Library, etc. All n~t l ona l publica. lions. Buy &- sell na tionwide. Profes5io0.11 800ks Service, 8o~ 366, Dayton, OH 45401, (513) 223-3734 FOR SALE: \IVe have, in excess of our needs, the following equipment tha t hilS been under conti nuing malntenance contracts and Is In excellent condition: one Electra-1OO telephone sys-

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EXPERT TESTIMONY ADDICTIONOlOGIST: Is your client "wc(lked-wiUed," suffering from a ''b..1d habit" or "psychiatric Illness;" or Is he c hemically dependent, impaired from a chronic. falill medical di5CitSel Physi. clan, one or 179. certified in medicine's newest speclahy-add1clionology. Experl tesllmony arId case anal~i$ for IJlalntiffldefcnse, Alcohol, drug. nieotlnc. issues in criminal law. DUI , malpractice, wrongful death, personal inlury, y,()r\.:els compensalion, family law and product liability. Peler M. Macaluso, MD, PA, 1885 professional Park Circle, ' 10, Tallahassee, Florida 32308, (904) 878-0304

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Textpack 2): and two printcl"1 with automatic sheet reed for lhe displ;r;writers. Inquiries call loul5 Sh~lcr at (20S) 432-1414 or write P.O. BOll 46, M()bilc, Alabama 36601.

FOR SALE: Tall Court Memorandums (TCM) \blumes 14-SO and Unlled States Tall Court Cases. \t)lumes 1-86. Contact (205) 663·0915, Walden & Willden At· lorney!, p,o. BOll 1610, Alab~ sler. Alab"ma 35007.

POSITIONS OFFERED ATTORNEY IOOS-Nati ona l ,"d federal Lcg.11 Employment Report: hlghIy regarded mont hly det,l lled listing of hundreds of allorm_..,. and l;lW-related lobs with U.S. GoIIernmetll, other publidprivitte empla,-ers in washington, D.C.• throughout U.S. and abroad. $30-3 mon ths; $50-6 O1011th5. Federal RCp(lrts, 10'10 Vermont "':lIe., NW, M408·A8, Washington, D.C. 20005, (202) 393-33 11, Visa/MC GROWING BIRMINGHAM law firm Interested ;, bankruptcy-credllors' rlshts aUorncy wi th three to five years' c~perience. Salary negotiable. All InQuiries will be kept Strictly COrllklcndal. Respond 10 Allornt..oy'S Applic;lllions. P.O. Box 701, Birrningoom, Alabama 35201.

POSITIONS WANTED ASSOCIATION WANTED: Birmlngh.lm collection allorncy is desi ring;1O ,U50da tion with a Mobile colll,,<;tlon lit· torncy for the handling of accounts for Birmingham anorney's clienti who arc located in Mobile and Baldwin counties. Interested allomeys should contact lohn Frawley ill P.O. Box 66111, Blrm· ingham, Alabama 35210, (205) 9569749.

Classified Notices S!RVIC!S lEGAllNVESTICATIONS (or a«omeys and insur,lnCi! companies. We locale witnesses 3M evidence and d~lop theories In industrial product liability, molor ...chicle and other pcrsonallnjury and major property damage claims. Contact P'}ul H.uringlon or Richard Jackson at Accident InvestigatorS of Ala., Inc., p.o Box 19733, Birmingham, Alab..lma 35219. Phone (20S) 945·9664. FORENSIC ENGI NEERING services: Accident reconstruction, product mecha nlc;!1 failure>, slip and 'aU accidents. Registered Mechanical Engineer servIng Alabama, Mlsslssll)l>i, Georgia and Floridil. Rales and references upon request. Qualifi ed In slale and federal court. lal1\tS D. Anderson, Jr., PE,9663 Hollowbrool.: Cirde, Pensacola, Florida 325 14, (904) 418·8208

MEDI CAL MALPRACTICE and per· sonal injury: Record review. irM!'Sliga' lion and medical illustrations-Peggy Smith Anderson (A Professional Corporation) can provide a dctalll.>d report on the strengths ,Inti weaknesses of your l>ersonal inj ury and medical malprac· tlce record, Fourteen years' medical cxperience with ri sk management a nd quality assurance training for the health CMe provider, P.O. Box 19598, New Orleans, louisiana 70119, (504) 48475 18; 1203 7th Ave., laurel, Mississippi 39440, (60 1) 649·59 16

each request. Rate $30 pcr hour. Can· tac t Barristers' Research Group, P.O. 80)( 6981, Birm ingham, Alabama 35210. (205) 595·5426 No rcpresenUl tlon ;s made llboU! Ihe quality 01 the /c8;11 services 10 be performed or the cxpt!nise 01 tile lawyer performing such services. All servl~ will be IJCrformed ill fhe

request of and become the sole

ond exclusive work product of the requesrins auofflCY. LEGAL RESEARCH HELP: Attorney

with seven years' experience In legal rescarchlwriling. Access 10 Univc~lty of Alabama and Cumberland li braries, \o\ksllaw available. I'roml)t deadline service. 535 hour. Sarah K..1lhryn Farnell, 112 Moore Building, Monlgomery, AI .... bama 36 101, phoM (205) 27m37. No represenl<tliOfl is nMcJe aboul !he qualiIy or the legal s~rviccs 10 be performed or Ihe cxpert is~ or Ihe lawyer performIng 511ch services. EXAMINATION OF QUESTIONED Documents: Handwriting. typew riti ng and related examinations. International· Iy court-qualified expert witness. Diplomate, American Board of Forensic Document Examiners. Member: AmerIcan Society of Questioned Document Ex.lmln rs, the Internatlonol Assocliltlon for Identification, the British Foren· sic; Science Socie ty and the Nationa l Association of Criminal Delense Uwyers. Rtllred Chief Document Examiner, USA CI laboratories, Ha ns Maye r GI· dlon, 218 Me rrymon! Oriyt, Augu§la, Georgia 30907, (404) 660-4267

forensic Document Examiners. Hand· wri ting, forgery, Iypcwrhlng, alteration of medical and other records, Miscell· aneous documen t autnentication problem5, P.O. Box 55405, Birmingham, Alabama 35255, (205) 9i9-1472 RESEARCH, WRITING and refresher courses: Attorney licensed in Alab-1ma & Tennessee; J.D. and M. I..lW li br. degrl>eS; 12 years' eJ(perlence as law professor and law librarian, 15 as practicing attOl'ney, Quality re$C,)fch (manual or compulcr-assisted, as desired); clear writing; produc\5 tailored to your liliga.tion posture, Free to IravcllO specialized collections, etc. Qualified to I)resent condensed inhouse r(>SC!arch and writing courses to staff allorncys and paralegals. Fee negotiable above 520it10ur plus ex· penses. Please write William R. Murray, Murray lane, Northport, Alabama 35476 or call evenings (205) 339V080. No rcpreselll.:ltion is mack about Ihe qualily of lhe legal services 10 be performed or fhe elCperllse of the lawyer performing such services. lEGAL RESEARCH and writing: Experl. f!I'ICtd licensed attorney With office near Cumbcrl,lIld liM' library .and access to the Jefferson County Law Library. Honor student, S35 per hour. Rich.ud L Wyatt, 2932.,0\ Cl'()$$haven Driw, 8lrmingham, Alab..1nlil 35243, (205) 967-7695 No rcpresen{<fIiOflISmade aboutlhe quali. Iy of fhe I~I services fO be performed or fhe expertise of lhe l/IW)I£'r perfolfn.. in8 such services.

BARRISTERS' RESEARCH GROUP:

!.eg,11 research and writing services pcrformed by a group ofllceosed Alabama atlorn¥. A unique, timely and inex· pensi'IC w~ to solve yot.Ir ~"r'Ch needs. Req uesti ng altornl!'y controls deadli nes and total time experldcd on

LAMAR MU-LER, Examiner of Questioned Documents: Qualified In most Alabama courts. American Society of Questioned Dr)('Ument Examiners, American ,Academy of Forensic Seiene:· es, certified 11,0 American Board of

WANHD WANTED: Used ISM 65 dictation equl~ men!. Contact w. Mark Anderson, III, 461 South Court Street, Montgomery, Alabama 36104. Phone (205 ) 262-6694.

Classified advert isements deadline, for the Marc h 1987 issue, is January 30, 1987, No exCeplions w ill be given.

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