Lawyer 1 88 web by Alabama State Bar Association

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The Union Bank Trust Department. Your Hometown Advantage. Come Home10 Us. UNION BANK IDI ~~'lO.' Ilo\,'')(.nwr~o ,1IIoOlffl'.o~KIIY AI.I.M.~MEM/I~I flllC

Schroeder, Hoffman and Thigpen on

ALABAMA EVIDENCE INTRODU CTORY PRICE

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by William A. Schroeder, Jerome A. Hoffman and Richard Thigpen

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_ _ _ T.ble 01 Content. _ _ _-, Ol)llllnll'l", Ol lenng end Ob,ecting 10 EVidence ' CompeumeCl • EX31'nlnIJtlon 01 Wi\n8S1e8 • Releva nce and Llmltat'ona on the AdmlSllon 01 Rolevant EVidence ' Privileges ' Impe&ehmem • Expel! TeSt'mony • HeolSly • Aulhenlicat,on and Identllicatlon - Rule. 90 1. 902. 900 • Special Rules Relallng to WI,ting9 The Be,l Ev'dence Rule and Ihe PalOl Evidence Rule - Real end Demonslietive Ev,(/onco ' Judlcil" Notice ' Plesumptions Burden, 0 1 Proot tln(/ Porauasion

In this comprellonslva examination of Ihe rules 01 Alabama EVidence, th e &ulhors present an In-depth discussion of ellarees 01 evident iary procedures from tha rolahvaly Simple wev s to object to eVidence through competence. priVileges. releVDrlC8. impeachment. the best eVidence rule and parol eVidence. Many sections conl lM adiscuuion 01Fadarallewend how l\ compares to its Alebaf'r'O countorplIft Case law is th oroughly Ci t ed thr oughout the book An ellcellent I'ol oronco 1001 tor b0111 the Inexperienced and veteren lawyer I About the Authon _ _ _ _ _ _ _ _ __ _ _ __ W,II,.m" SCtv_ '10;",'Itd IMI II A .tId J 0 I.om'''- V _ "" 0.11111>000 _ "'. LL M hom H...."I b ... lkllOCl He '" " ........1Ief O' ,""""'I(:... e.. """,,,uo,, He ' ''''11M ~YKIono;". e.........' P.oc...... lAd T. .., "<1_..:, ., ,.... UnI...."y 01 AlM)o,ma hom 1980 ' 0 1\IeA S,rIC' 'n"' ....... _ . PrO'..1OI oil.... "' Sou,h.. n 111'1\011 U"'''''!!~ 1kt0Ql 01 L...... ....,.." ...

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Buy Schroeder, Hoffman and Thigpen on Alabama Evidence an d ge t 30 % OFF any 01 the trea tises li sted below: Gambia & Cor/lilY'S Alabama Law of Damage • • 1982 (wI C UI supp.1 4+99(1 $65.95 M cCur/oy & DttVlS ' Alabama Divorce, Alimony 8r. Child Cu. tody . '982 (wI CUI suppl ...$67 9!:' $47 .66

Hansford's TiII.y ', Alabama Equity 2nd Ed. · '985 .$49.96' $34 .96 Holf's Alabama limitation' of Action. & Notice Proviaions · '984 (w I cur supp I ...sal' 95 528.55 Hood. Hordy & S880 'S Alabama Workmen', Compe n.ation ·'982 (wI cu r s upp I 1&01496' 531 .46

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AND/OR ge t 40 % OFF a ny 01 "The Law In .. "serie s li sted bel ow : ----I

Jo ffrios & Wllkms on '$ Collection of Accounts .1961 (wI c ur s upp I S2G 96 $18.16 W811hall's Corporation. - Formation With Forms . '98 1 (wI cur supp I $:1:896 $16 .16 Hairs/on 's Detinue. Execution. & Mec hanics' Liens · '980 (wI c m supp I '269& 516 .16 Jtrff"os ' Enforcement of Security Interesta In Perlonal Property ·1900 (wI cur supp I ",2695 516 .1 6 HusklilY & Eth8r8dgo 'S landlord & Tenant - Breach & Remedi •• · 198' -$2695 $18 .15 Jeffries ' W rof1gful Death Action. ·'979 (wI c ur s upp I $2695 $16 .16

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Service by Publication under Rule Involuntary Bankruptcy-the Un- 4.3-by Jerome A. Hoffman. 18 known ond UttJe.used Remedy-by An absent defendanl or one ~ cannot M. Donald Davis. Jr•.....•• 10 be localed rTWIy nonetheless be served with

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In a bule primer, M. Donald Oavi§, Jr. explain. the aubstantlve and procedural rules governing Involuntary bankruptcy proceedlnp.

process, In SOInf' In5hlncet, thro~ah publl. calion. Professor Hoffman explall1llM pre> ci!dures thai muSI be followed 10 perfect ser· vice by publication under Rule 4.3 ARCP.

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PoItmater: Send address changes to TheAlilbarna lI.wyer. P.O. Box 4156, Monf80mery, Al 36101.

INStDE THIS ISSUE President's Pap... executive Director's Repon Aboul Membel'l, AmonB Amu . Consultanl'. Comer. Reachlna Qui. Alabiima's Courthouses. de opportunillet

26 28 30

Bar Briefs

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Attorneys Admitled

4 5 8 2S

L..wyel'l In lhe Family MCLE News

Youna Lawyers' Sec1lon legislative Wr'IHIP . Recent Deci,lons . Section$ Memorials Cla\Slfied Notlce~ Oi'TClpllndl'y Report

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.7 49 51 55 57 59 60

President's Page

avin8 received the results of Ihl:! follow-up swVt.'Y with reSIX'Ct to the formation of a captive insurance company, the Alabama State Bar Board of Commissioner'S at Its December 18 meeting VOled to Issue a letter to the bar asking for individual contributions of $125. Thi s would be used (or start-up costs of a captive Insurance company should the response indicate sufficient HARRIS interest, wpport and enthusiasm among the bar fOl a captive. The commission rl!(ognh:ed the many, many hours and hard W{jrk by Henry Her'1.l:el and the ln$urant;e Pr(l8ramS CommlttCi! and much effort on the pM of my predecessor, 811! Scruggs, I urge your response to this effort. A captive Insurance COml)any should stabltize Ihe lawyers' malpractice Insurance market ;md provide a readily rwallable source of Insurance in the event of anolher crisis such as VY'C experl. enced in 1986, It cannot be projected that the formatiol1 of a captive will result In a reduction in premium s. I am pleased to report lhat former GO'VCrnor Albert 8r#Wer has <lgreed to he(ld the Action Group on Post-Conviction Capital Representation. The need to make coun sel available at earlier stages in case s involving death row Inmates and a system to provide .. s~lst"ri ce and expertise to appointed counsel In th ose caS£!s Is a critical one in Alabama, and It must be dealt with In a positive manner. I urge all of you to give Governor Br~r and his action group yoU! ad vice and support. The I\ction CrouP on Professionalism is al so in place and is chaired by President-elect Gary Huckabr'. The group W(lS formed to help (lnSWl:!r e~pression s by many of a desire

to ~capturt;: the mutual respect, civility and courtesy consistent with our noble profession. There are mllny dennitiOnSof professionalism, but among the Ingredl. ents are competency, Intcllrity and cour· tesy. Thi s blue·ribbor\ panel has been asked to develop a working definition of professionali sm and then focus On mak· Ing practical recommendations of steps to be taken by the bilr, the law schools and the judiciary to infuse meaning into that definition. They have been asked al· so to include suggestions on what should be done to I,ln$ure th(lt th e ;aCtions te<:ommended will be ongoing and achieve permanence. It is an ticipated their WQrk product wHi include 50mething appropriate for publication in The Alabama LAwyer. Recently, I had the privilege of attending Arden House Ill, the third Ilatlonal conferellce on cOlltinulnglegal cdu· cil tion since 1960. The conferen ce was sponsored Jointl y by the Ameri can Bar Association and the Ameri can law Institute. During those meetings, I learned of many problems with ClE In other pans of the countty and came away with a strong realization of the many benefits of our man· datory continuing legal educa tion program, 'Ml dearly are doin8 a better job than most in delivering a variety of qual. ity prOgramS to lawyefS throughout the stilte. I again urge local bars to keep the state bar Informed of your a ctlvHl~ and work with Tom King. Jr., ~nd the Committee on Local Bar Activi ties and Services. 'bnl'S committee has been very actlYe and wi shes to stimulate Ihc exchange of Ideas among the various local bars for the continued improvement of our profession. The commlnee also will help 1)lOYide information on the IOlTA program, •

January

1988

Executive Director's

Thanks ecently, I had Ihe opportunity 10

visit with two of our very active local b.1r'1. Treacy O{lniel, our

IOlTA administrator, travelled with me to Ihe Russell and MadiSOn county bar meetings. We appreclatL'd Ihe hospital. ity elucnded us and left both meetings with a sense that our visits were bene-

Report

am conndent with his leadership and the sUj)j)O(t of the Other aCtion groUI> memo bers our profession's responsibilities will be fulfilled In a manner in which we can all lake pride. Though honored with high office time and again, Alben Brewer remains a lawyer who continues to meet his profeSsional responsibility. Thanks, Governor,

ficial to a better understanding of rorrenl bar activities generally and, more speclf路

Client Security Fund statements

Ically, a better understanding of our

During th!! monlh of January 1988, every member of the Alabama State Bar wi ll receive an Initial statement for the first $25 contribution to the Client Security Fund. Under the rules establishIng the fund, each member Is requlmd to contribute up 10 $1 00 over a four-year period. It is anticipated and cenalnly hoped the entire assessment will nOI be nC!<!ded to insure fund stability. Several lawyers already have remlned checks fOr the fvll amovnt, but their checks have been returned with a request lhat only a single $25 Installment be remlned at the time the statements are sent. This will greatly fadillate our recordkeeplng, Firms can remit a single check for all lawyers In the firm, but we ask that the individual Jtatements of all lawyers covered by such check be returned with it. please walt to receive yOur statement before remlnlng the amount due.

IOlTA InlliaHve. We since have received

our flrst Interest ch芦 k (rom iln Ozark account; Interest earned on one account for

one month was 591.04. I am eKcited about the potential of Ihls progfilm In

Alabama . Gove rnor Brewer cootinues to serve Albert Brewer, to me, rePfesents Ihe vel)' best In public service. My admlra路 tlon for him as governor preceded my

knowing him as a friend. He has cKhlblIed a quaUty of genuln!! caring through. out his public and private life, and this makes him special to me. I was nOt surprised when he recently accepted President Harris' challenge to head Our bar's effort to meet the growing problems we and our courts face In providing constitutionally guaranteed representatlon to those Individuals under sentence of death In our state penal system. Our neighboring states of Florida and Geor路 gia are slgnlncan tl.,. ahead of us in their efforts 10 deal with this problem, but I

The Alabama

Lawy er

ACapulco in April Two years ago, we offered the memo

HAMNER bership a CLE opportunity In Bermuda. The trip and the seminar were an unqualified SVCCe5S , Since then, we have been encouraged to " do another one." Wllh the splendid help of Janelle Marsh at the Alabama Bar Institute for ClEo a fine program has been arranged for eilrly April 1988. Our group will depart Birmingham on Thursday, April 7, (or Acapulco, Mexico. The seminar sessions will be conducted by Mexican practitioners on Friday and Saturday m()(nings, These seminars will be follOwed by a Dutch treat luncheon wilh the presenters. Sunday Ii a (ree day and the return travel dale will be Monday, April 11 . The American Airline schedule requires a change of planes at the Dallas-Fort Wotlh In:emational Alrpon. Reglstratloll forms will be mailed soon. The semlnilf will meet ta)( deductible

criteria, and the registration fee will include the costs of airfare, trilnsfers, looSing (single or double occupilncy), hotel tilXe~ iln(! g"" u i t ie~. NO moals are Included, but a continental breakfast will 00 $('rv<.>d in the $('minllr rOOm s on Friday and Saturday. A lawycr-spouse sup. plement IIkcwlse will be deductible; hovvever, the nonlawyer-spouse supplement, Including airfare, tr.lnsfers and gratuities, will no!. We have 40 rooms at the Acapulco Princess ilnd 80 seals reserved on the fli ght. Naturally, these will be filled on il first-come, first-served bilSls. If reservations are fliled sufflciently in ildvance of close-out dates with both the alrll l'lC! and the hotel, Wi! will attempt to secure additional reservations. Act promptly when your reservation request form Is received.

MCLE transcripts By now ~u have received ~ur MClE transcript for 1987. This is another advan. tage of our computer/zillion effort i1nd it affords you, the member, a new measure of c;;onvenienc;;e in making your ilnnual report. Special thanks are due to M ,II)' Lyn Pike, Diane Weldon and Margaret Boor'e for th is advancement.

Insurance captive Survey By the time ~u read thi s, a final dedsion probably wi II have been made regilrding a capti ve Insv,..nce mec=hanlsm for Alabama lawyers. Recent survey resu lt s are bei ng analyzed by Our consultants. Approximately 73 percent of those responding Indicated support for this undertaking. Unfortunately, the total responses number slightly over 2,000. The estim,ued number of likely participants was over 4,600. It is hoped many o( those who did not respond YoQu ld participc!te. The need (or such <In undertaking becomes more apparent as I watch every current cOlrrler In Alabama make new fil Ings with our state Insurance department which essentially strlp their existing poliCies without any concu rrent rate reductions. I want to rei terate conserv(lti\ll';! eStimates indicate that <I capitalization level of $2,500,000 to $3,000,000 will be required before any policies can be written. Two fo rmer presidents The recent deaths of John Adams of Grove Hili and Douglas Arant of BirmIngham causes one to reflect on their

contributions to our profession. Both continued to prndice IWII into their final yei,lr. In revilY/ing bar record s, one Is Impressed with th t:! visionary leadership they exhibited. Comparing our bar with other state bars, I am gr{l!eful for the soundness of the ded sions they and our earl y leaders, itS Wfioll as their successors, have made through the )'ea~ VI/c simply do nol have the problems which other biHS seem t(l experience. Ironically, Wi! were In the process of conflrming an observation of the AmerIcan Bar Association's Division of Bar Ser. vices that Mr. Ar;lI1t likely was the nation's senior state bar president in point of service. He served as our president during the 1936-37 bar yeilr. Mr. Arant never o:;eased to serve. Out more recent presidents regularly sought his counsel and leadership. likewise, Ihe legal legacies which have been left by Mr. Adam s also have benefited our bar fOlr beyond his 1945-46 tenure as the Alabama SI<lIe Bar president With the dealh of these two distinguished itlWycrs and former presidents of the association, John A. Caddell of Decatur, Alilbama, becomes Ihe most senior former president • of the Alabama State Bar. Reginald T. HOImner

Notice of Election Notice Is given herewith PUrsUilnt to the Alabama S~ate 8ilt Rules Governin8 EIC(tion of Pre5idenl-elecl and Commissioner (or 1988. President-elecl The AlilbilrT\il Stilte Bar will elect a president-elect In 1988 to assume the presidency of the bar in July 1989. Any candidate mU$t 00 a member in good standing on March 1, 1988. Petitions nomlnotlng a candidate must bear the signature of 25 members In good standing of Ihe Alabama State Bar and be received by the 5ecretary of the state bar on or before March 1, 1988. Any candidilte for this omce also must submit with the nominating petition a black and white photogrJph and biographical data to be published in the May Alaooma Utwyer. 6

Ballots will be mailed bet\oYE!en May 15 ilnd June \ and must be received alsta!e bar heildquilrters I7i 5 p.m. on July 19, 1988.

Commissoners Bar commissioners will be elected by those lawyers with their principal offices in the follOWing circuits: 2nd; 4th; 6th· Place #2; 9th; 10th·Places #1, 2, 5 and 8; 12th; 13th-Place #2; ISth·place #2; 16th; 20th: 23m-P'ace #2; 24th; 27th; 29th: 38th; and 39th. Addi tional commissioners will be elected in these circuits for each 300 members of the state bar with prlnclPilI offices thereIn. The new commissioner positions will be determined by a census on March 1, 1988, and vacancies certified by t he~ retilry on March 15, 1988.

The term s of l1ny Incumbent comn1i5sloners are re tained. AI! subsequent term s will be for three years. Nominations may be made by pelition bearing the slgnaturei of fl'-1! members In good standing with pri ncipal offices in the circuit In which the election will be held or by the cMdldate's written dedar3lion of candidacy. Either must be received by the secretl1ry no later than 5 p.m. on the last Friday In April (April 29, 1988).

Ballots will be p~pa red ilnd mililed 10 members between Mil'( 15 and June I, 1988. Ballots must be VOted and returned by 5 p.m. on the ~ond Tuesday in June Uune 14, (988) to state b lH headquartets.

•

January 1988

From the Office of General Counsel

Handling Client Funds in the IOlTA Era by Aiel W. Jackson AniSia n! General Counsel With the adoption on Mny 5, 1987, by the Alabama Supreme Court of an Interest on lawyers' Trust Accoums (lOlTA)

rule, the general counsel's omce has been asked by many Alabama lawyers to explain both curren! rules Clod future

practice regarding clients' fund s. SurprisIngly, there Is a fJlrly common miscon-

ceptiOn among members of Ihe bar that It Is permissible 10 inl.1:}SI ellents' funds In Intcrest·bearing accoonts and fOr Ihe lawyer to rel .. in all, or a pol1lon, 01 Ihe interest gener;ued thereby as a fee Of'service charge.

First, as to curron\ praaice, II is nol permissible (or an anorney to Invest clients' funds In an Interest·bearlng account and 10 rClaln, for his own use, the income

gcner.II(''CI, The Disclplin.lry Commission has held chat an anorney may, on a caseby<ase basis, and with the prior, Informed consent of his client, Invest that client's funds, provldoo the client receives the benefit derived (rom his O'Nn funds. For cKample, suppose Mr. lIlwyer colleas $10,000 for Ms. Client but for some reason canrot disburse the funds for 90 days. With Ms. Client's express prior approval Mr. L.1W)'Cr may i~t those funds at Interest, with the Interest Income being the property of Ms. Client. Suppose further that Mr. lawyer Is entitled to a 40 percent contingency fee from the $10,000 corpuS; Mr. L..1W)(lr then may be entitled to relaln 40 percent of the in· come, but once again Ilrior, Informed consent of Ms. Client Is required. For lawyers' trust accounts In general, where the fund s of more than one clien t are held for varying periods of time, the Inwyer may not utilize an Interest-bearing accoun t, and, as it follows, his entitlement to Interest should never arise. tOlTA creates someth ing thlll never was, In that it provides a mechanism to allow IrwestmeOl of these mixed accounts and provides for distribution of The Alabama Lawyer

the Income generatC!d. Neither the lawyer nor the dient loses anything as the new IOlTA rules apply only to dlents' funds which are nominal In Hmount or eXI>ccted 10 be held for a short period of time fOR 9-102(D)(2)ta)J. Thus, Individu.'II l;r.vyerkllent agreements regarding i~slment of large amounts, or of Cimounts expected to be held (or a long period of time, are still permissible, subje(t to full disclosure. It should be noted tha t, pursuant to DR 9-102(A) all dients' funds shall be depositOO in one or more Identifiable in· sured depository tru~ accounts maintained in the state in ....hlch the liM' 0(flce Is situated." The lawyer, 11'1 l>ssence, has two choices under Canon 9. He may 1><1rticipate in IOlTA, while retaining the ability to place indlvlduill dlent funds in Interest-bearing insured depository trUSt accounts, or he may HopI out" of IOlTA, and stili have the same ability to place individual client funds in Interest-bearlng accounts. He may 1'101 utill7e any form of account other than an idcntiOllble Insured depository trust account located In Alabama, and he may not share the benefit of an individualized Interestbearing Investment of a clien t's funds without the express, prior Informed consent of that client. H•••

AS now written, certlflcates of depoSit, treasury noles, mutual funds, promissory notes Ilnd the like are not permlned since they arc not Insured depository trust acCOUl\t~. Other, more imagln..11lve forms of Investment are equally unavailable, regJrdless of their merit or the dlent's willingncssto accept the risk. A clien t Interested In more lucrative type5 of lr\Yest. ment simply will hOM! to wait until he has absolute control oYer the funds Involved. IOlTA pli1l'ls have been In opera tion in other state5 for 50me time!. They have proYCd to be lillie, if any, bother 10 the l;r.vyers who participate and of great benefit to the legal system and to the public. Most o( Ihe chanses required to implement tOlTA are for Ihe banking community and In\lOl~ no additional responsibilities (or Ihe lawyer; the fiduciary role of the lawyer remains Intact. The lawyer is 1'101 now expected to bf! an Investmef"ll counselor, at least Insofar as those clients' funds to which Canon 9 applies, arld nothing In the tOlTA era should change that. The DiSCiplinary Rules actually arc quite simple, with most problems arlslns dut! to a misunderstanding of the lawyer's role as CU510dian of his cljent~ funds. A lawyer should Invest a lIule of his own time with Canon 9 before he invests his clients' funds-II will be time well spent. •

Forensic Meteorology & Oceanography NAS II C. RO BERTS, JR. CONSULTANTS, INC. hili ovflr40yeara txperlonce In forensic met8Ofology and loranaicoceanogropl!y. We have II stnlt 01mature and experienced llCienllsts with 1m· peccable credentials In atl 01 the I'ItmO$p/laric and ocaanographic dlsclplinas. Thase nationally recognized profeaalonats ara capabte of conducting Involved investigations, reconstructing waathar and marina c:ond~ion. af'/(whare In the WOIId, and .ra eminently qualified to appaar In axpert t.SllmOflY.

Air Qunlit y .- Wa ter Quality -- Hydrology 1040 Nonh JUmput SL

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About Members, Among Firms ABOUT MEMBERS lames N. Drown, III , and Ja mes N. Brown, III, P.A, annOunce the relocation of their offices to 800 First Na· tlonal-Sou thern Natural Building. Blrmlnghanl, Alabama 35203. Phorle (205) 251·1000.

•

Peter J. Mcr(.odllh annouriCE!S the relocation o(his ornce \0 3716 5th Avenue, Soulh, Birmingham, Alabama

35222. Phone (205) 591·6920.

•

Roy W. Scholl, III, arlr'lOunces th e relocation of his office 10 #2 Office Park Clrde, Suite 200, Birmingham,

Alabama 352 23. Phone (205) 871-6004 or 871·6011.

•

Reggie Stephens announces the reo location o(hls omel!, effective July 2, 1987, to 1110 Montllmar Dri ve, Suite 530, Mobile, Alabamn 36609. phone (205) 344-6822.

•

J,O. Terry announces the opening

of his office (or the general practice of taw. The office is locmed al 1010 22nd Avenue, P,O, 8m!. 232 1, Tusca· loosa, Alabama 35403, Phone (205) 759·5959.

•

Dow T, Huskey announ ce s the reloca tion of his office for th e pradice of law to 112 West Troy Street, Dothan, Alabama 36302 . Phone (205) 794. 3366.

•

Pilmcla Willis B<lschab an nounces the ope ning of her office, one-hat( block south of Highway 98 on I-lighway 63 in Elberta, AI"bama, Phone {205} 986·5221.

AMONC FIRMS The firm of B.uelo n, Less & Price announces thot ChDrl es H, WamlXl ld, III, has be<:ome associa ted wi th the firm . He se ~d 35 law clerk (or the

l-I onorCible J<lme~ Hl,Jntcr, jl,Jdge, Unl led States District Co urt of Appeals for the Third Judicial Circuit, Philade lphIa, Pennsylvan ia. He Is a native of Montgomery, Al abama. The firm's offices are located il t Three Mellon Bank Center, 16th Floor, Philadelphia, Pen nsy lvania.

•

The SI.lle of Alabama, Departme nt of Educalion, announces that Ric hard N. McadCMS has been appointed g~n· eral cou nsel for the department. He formerly was gellera l counsel for the Sta te Person ll e l Board and an Al abama assistant attorney general. His offi ce address is 609 St<1le Office Building, Mo ntgomery, Alabama 36130-5320. Pho ne (205) 261-5320.

•

Mc fadden, Lyo n, Willoughby & Rouse annoUilces a chanlle of partnersh ip name from Mc fadd en, Riley & Lyon. Offices are loc;uoo al nB Dow ..... towner Boulev<lrd, Mobile, Alabama 36609. phone (205) 342·9172.

•

The firm of Hubbard, Waldrop, Reyn olds, Davi ~ & Mc; IIWi'lin ,111nounces Ihal William Marcus Brakefield has bc(ome Msocia tl'd with the firm. Offl~ are located at 808 Lurleen Wallace Boulevard, North, Tusca loosa, Alabama 35401. Phone (205) ) 45·67B9,

•

Stl.,<,lc, Hect(J r & Davis announces that Charl es A. G uyton has become a member of the flrm, with offices Ic.ca ted at Suite 200, 201 South Monroo Street, Tallahassee, Florida 32301· 1646, Phone (904) 222-4 196,

•

David A. Garfinkel announces th;n, I':ffeClive Nove mbe r 1, he has wi thdr.lwn from lhe: firm of Kin g & King, and that with William C. Veal has formed the firm of Vtal & Gar· finkel. The ofnce address Is 2112 11th

A'>'enUI;!, $ollth, Suite. 219, P.O. Box 55466, Birmingham, Alabama 35255· 5466. Phone (205) 326-4146,

•

Pillman, Hooks, Ma l'5 h & Dullon, p.c., announces that L. Andrew Hollis, Ir., has be<:ome a member of the fi rm, and tha t the firm name has changed to Pillman, Hooks, Marsh, Dutt on & Hom~ P.c. Offices are localed <II Suite B01, Park Place Tower, 2001 Pa rk Place, NOrth, Birmingham, Alabama, I>hone (205) 322·8880.

•

James A. Pation, John C. McKelvey and lohn M. Kenne mer imnoun ce the form<lli on of the firm of Pdllon, Mc· Kc1vt.'Y & Kennemer, with offices located al 106 West 2nd Street, P,O. Dravver 928, Tuscumbia, Alabama 35674, Phone (205) 361·5600,

•

The offi ce. o f Winin ger 8< I.ef:, P.A" announ ces that D. De Leal Wininger, Jr., has joined the firm. Offices arc located In the Whllldin Building al 517 North 21st Street, Bi rming ham, Alabama 3520), PhOlle (205) 322· 3663.

•

The offices of Ira DeMe nt announce that ROnald W, WiSe no longer is with Ihe firm, and ~oianne H. Frilh has become associated with the flrm, wi th offices at SuIte 311, Cor· parme Square, 555 South Perry Street, Montgomery, Alabama 36104. Phone (2051 834·6900.

•

JIm L. Wilson and Georlll! C, Day, Ir., annOullce Ihe relOC.ltlOn of the of· flces of W11so n & Day to 153 South Ninth Street, Gadsden , Alabama 35901. Phone (205) 546·6334

•

Be rry, Ables, Tatum, lillie 8< Sax'er, P.c., annOunces that Melissa V. Erwin has become associa ted wi th the flrm ,

lanuary 1988

wilh offices 111 Legill Building, 315 Franklin SUC<!I, P.O. 60)( 165, Hunts· ville, Alabama 35804.

•

Bell & landers announces that Michael A. Givens, formerly assistanl distriCt atlomcy for Talladega County, is an associate of the firm. Offices arc located at 223 North Norton Avenue, Sylacauga, Alabama 35150. Phone (205) 245-7486.

•

G. Daniel Evans announces that Bradford w. Botes has i:x..'Come ilSSOdaled with the firm with offices at 1736 Oxmoor Road, Blrmlngh,lm, AI· <lbam{l 35209. Phone (205) 870-1970.

•

(arley, Moncus, Bynum & Dc Duys, P.(" {lnnounces Clayton T. Sweeney hilS joined t ~c firm as {I ~socla rc. Of· fi ces are IOCiltcd at 2100 Slxt<.>enth A~nvc, Savlh, Birmingham, Alab,lma 35205. Phone (205) 939·0811.

•

fo rd, ( .tldwell, Ford & Pay ne annovnces th{lt P.lltick M. Lamar has become associmcd wrth the firm, with offices loc<lted at 218 Randolph Avenue, Huntsv lie, Alabama 35801.

•

The firm of Wolre & lones, P.C, announces the relocation of its office to 929 Men:h<lnts \Valk, Hun tsville, Alabama 35801, and the aSSOCiation of Curtis L Whitmo re to the firm. Phone (205) 534-2205.

•

The firm 01 Masser & Baddley, P.C, announces thilt Garrick L Stotser has become an associ;!!e of the firm, with offices loc;tred at One Medic31 Park Drive Easl, Suire 200, Birminghilm, Alabama 35 235. Phone (205) 836·4586.

•

Thomas A. Smith, Ir., {lllnounces thilt his son, Steven C Smith, has joined him for the practice of general law. The firm of Smith & Smilh Is loc'lred ill 328 f!irst Avenue, SE, P.O. BOl( 398, Cullman, 1\labilmil 35056. Phonc (205) 73 4·4721 .

•

lere L. Beasley, f rank M. Wilson, J. Creg Allen and Kenneth I. Mendel· sohn <lnnounC(! Ihal lher h:!ve formed a firm In the name of Be.lslcy, Wilson, Allen & Mendelsohn, P.C" and that Randall B. James, Mary Ellen Lamar and Michael I. Craw will be associated with the firm. Offices 3re 10-

cated {It 418 South Hull 5tl'C('t, P.o. Box 41 60, Montgomery, "Iabami 36103. 4160. Phone (205) 269-234l

•

The firm of Watson, Gammons & fees, P.C., announces that Joseph Alber' IlmmCl'$On and leannie L. Bennett h<M.' become associ3ted with the firm. Offices are located at 107 Nonh Side Square, p.o. Box 46, Huntsville, Alabam(l 35804. Phone (205) 536-7423.

•

lames R. Knight, Stephen K. Griffith and S. Lynn Milrie McKenzie ilnnounce the association of Jason P. Knight in the pfiletiee of law, with offices ilt The Griffith Building. 409 First Avenue, 5W. P.O. Drawer M, CLlllman, Alabamil 35056. Phone (205) 7340456.

•

The fi rm of Doke & Riley announclOS that Anthony P. Underwood has become assodilted with the firm. Underwood served as a Unitro States Army Captain at the Office of the Judge Ad'oQC,lte GCI'leral, Wlshinglon, D.C. firm offices are located at 4)00 RepublicBank TO'WCr II, Dallils, Texas 75201·)989. Phone (214) 754·9500.

•

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Nuts and Bolts Involuntary Bankruptcy-Unknown and Little-Used Remedy by M. Donald O"vls, Jr.

It Is a familiar and frustrating scenario to most !leneral pactltlonerS: a close corporation Is IlXlebtc<l 10 your client but hils refused to P<J/. (or no justifiable rea路 son. While the attorney is in state couri

Section 303 of the Bankruptcy Code l provides a UUIe-used remedy for such credi tors-the Irrvoluntary b..1nkruptCy

getting a Judgment, the corporation Is transferring most ol its assets to its owner. By the time the attorney (iln levy against the corporation, there are no assets left

Iy rigid requirements for commencing Involuntary bankruptcy actions. Although the Irwoluntary proceeding is not the answer to every creditor's woos? II can be a useful rcmC!dy where a recaldtmnt debtor refuses, for no Justifiable reason,

and thc judgmcr\t Is not WOrth Ihe paper on which it Is printed.

proceeding. The Bankruptcy Code of 1976 substantially relaxed the pre\llous+

to pay a valid debt. This procedure makes it easier for credltol1to go on the offensl\le to collect delinquenl accounts before the assels available 10 pay the creditor are exhausted. t\lery Alabama pra<:litioner should be familiar with II. General procedure The involuntary bankruptcy remedy Is codified In Set;tion 303 ofthe Bankrupt~ Codc.) The I)rocci.!dlng Is commenced

/dnuary 1988

I:Yt the filing of iI pel ition, which must be verified.· If the attorney Is going to execu te the petlUon on behalf of his client, it is advisable for the attorney to have it written power 01 attorney aUlhorl%ln8 the filing of the pelition, which conlJlns hold harmless and indemnity provisions. The petition can be flied under Chapter 7 (liquidation procc«Ung) or Chapter 11 (reorganiza tion proceeding) of lhe Bank· ruptcy Code.J The deblor may conlesl the petition, which requires the bankruplCY coun to conduct a trial Ofl lhe petition. The coo n must make a determination d the Issues relating to the petition "at the earlieSt practicable time.'" An order for relief, dismissal of the pebtion or other DI>proprl· ate orders then can be made? If Ihe petition Is contested by the debt· or, the debtor must file and serve an an· swer and must j)'opound (lny defenses and/orobjectlon, prcs<:rlbed by Rule 12 of the Federal Rules of Civil Proc(.odure.' The answer Is to be served and filed withIn 20 days after service of Ihe summons.' The service of a mOllon under Rule 12 of the Federal Rules of Civil Procedure extends the time to serve and file a responsi~ pleading. The debtor Is permit. ted only to assen counterclaims against the petitioning creditor thai 'M>uld defeat the petition." An affirmative judgment agalnsl the pelitioning creditor is not per. mitted." lfthe IfMllunl3ry petition Is filed by fewer than three creditors and aUeges the existence d12 or morc credi tors, the debtor must file With his answer a list of all creditors with the creditors' addresses. a brief statement of Ihe nature of Ihe creditors' claims and the amounts thereof,l2 If It al>l>cars thatlhcrc arc 12 or more credi tors as provided In Section 303(b), the court shall afrord a reasonable oppor· lunity for olher creditors to Join In the petition before a hcarlnlJ Is held.') If no pleading or other defcnse to the petition Is filed within the time provided, the court shall enter an order for the relief pr~ for in the petitlon .' •

If the allegation that the debtor gen· erally is not paying its debls as they become due 15 con ti!Sted, diSClMlry pursu· ant to the Federal Rules of Civil Procedure is permllled.l1 l1 the debtor fails to appear, produce records or submit to ex· amination or deposillon, the court may enter an order for relief or other approThe Afabama Lawyt!f

to take charge of less than substan· tlally all of the property of the debt· or for the purpose of enforcing a lien against such property, WilS appolntt.od or took possesSlonP

priate order, in addition 10 the sanctions iJViIilable under Rule 37 of the Federal Rules of Civil Procedure.l • Place to file A petition for involuntary bankruptcy may be filed In the United States District Coon for the district where the domldl~, residen<;e, principal place of business or principal assets of the debtor are located 160 days immediately pre<:edlns com· mencement of the P'OCeec;iinS.'1

Permitted debtors Generally speaking. an Involuntary bankruptcy proceed ng can be com·. mence(! against any person or entity which could voluntarily commence a bankruptcy proceed fl g. However, Involuntary IlfOCeeding; are not permitted ag.1lnst munlclpalltic!, farmers and eleemosynary Institutlorls, such ilS chvrches, s<:hools and charitable organizations and foundati ons." Involuntary Chal)ter 13 (wage-ea rner repaymen t plan) proceed· ings also are not permitted.1f Essential elements The essential elements which must be present to Invoke the Involurllary bank· ruptcy remedy are: 0) existence of creditors; (2) claim(s) which aggregate at least $5,000; Il) daim(s) not contingen t In nature;:IO (4) claim{s) not subject to a bona fide dispUle;11 and (5) Ihe debtor is not generally paying its debts as such become due, or within 120 days before Ihe date of the filln8 of the petition, a Custodian (other 11'1011'1 a trustee), rec.ei~r, or agent appointed or authorlzl..od

Requisite number of claims Section 303(b) prot.'ides w t ll the debt· or has less than 12 creditors, an involun· tary petition may be brought against the debtor by a single claim holder who mccts the other requirements of Section 303." If the debtor has 12 or more ctedllors, the involuntary petition must be brought by three Of more credl tors.u W hich creditors' cla ims are counted The BlInkruptcy Codc excludes certain credi tors from the count of claims If con· sldered friendly with the debtor. Employees, insiders and the lrans(crres of cerlain transfers voidable by other I>rovl· sions of Ihe Bllnkruptcy Code are C~· cluded.H Likewise, "contingent" claims and cllllms subject to a bona fide dispute IIrC nOI counted.'. Further. claims in· curred after Ihe involuntary pelition date are not counted." Contingent claims St.'Ction 303(b) excludes contingent claims from the coont, althou8h unliqul. dated or unmatured claims are in· cluded.1' A claim Is not contingent when the duty to pay the claim does nOI rest upon Ihe occurrence of a future event or merely because the debtor disjXJtcs the creditor's <;laim and has assel1cd a counterclaim against it.1t Bona fide dispute In 1984 Section 303 of rhe Bankruptcy Code was amended to require that the debts of petitioning creditors lIot be sui).

M. Donald Davis, Jr., Is a mcmbi'r of 11m Mobile firm 01 Sirolc, I\!rmull, MeDer· matt, Stepian, Friend, Friedman, Held &. Apolin5ky, P,C. He is a graduate of the University of South Alabama and Cumber/lind S,hool of Law. Davis Is a member of the American Bar Associa. tion, A/abam.'f Scate Bar and lIS Bankrupt· cy & Commercial Law Section, Mobile Bar Associalion, American Bankruptcy Institute and American Trial Lawyers Assodalion.

jecl 10 " bona fide dlspute.lO Because holders of di sputed claims 'Nere permit. ted to bt'! petitiQrling creditors un(ler the Bankruptcy Code as enacted In 1978/' cases concerning Involuntary barlkruptcy proceedings generatty have not dis· cussed dispuled claims within the con· tex t of the standing of the petitioning creditors. There have been only a hand· ful of cases discussing the bona fide dispute requirement since 1984, and these cases are not In complete a8reement with each othet. The first standard applied In determln· ing whether a claim Is subject to a bona fide dispute is the same used applicable on motions for summary judgment: if the defense of the petllioning credilor r;;llses material Issues of (act or law, the claim Is subject to a bona fid~ disputeP The second standard enunciated Is (ound In In Rc JoIlIIslOni1l)wks, Ltd,U The Johnston Hawks coun found that the fol lO'Ning fa ctors should be considered to determine whether the claims or defenses are subject to a bona fide dispute: (I) The nature of the dispute; (2) The nature and (>xtent of the L>vidence and allegations pmsented in support of the debtofs contr1lry claim; (3) Whether the creditor's d alm and the debtor'S contrary claims Me made in good (aith and without fraud or (le-ceit; (4) Whether on balance the Imerests of the creditor OUI'Nelghs those of the debtor.H A third stal1dard was used by the United Slates Bankruptcy Court for the Southern District of Alabama In In Re Technical FiJbricalOfS, Inc." The Technical Fabricators court adopted the four standards Slated In John$lon Hawks, but also slated that an additional point to consider Is whether the debtor disputed the debt In quc~l lon prior to the commencement of Ihe Involuntary proceeding.'· The standards stated in Johnston Hijwks and Technical Fabricators appear betlcr rea~oned and are more consistent with general bankruptcy principles of law. Since bankruptcy COurtS are (ourts of equltY,H they act to assure that "fraud will not prevail, substance will not gi\!(! w"'! to form ,md that technical consider...tlon~ will not prevent substan tial justice 12

from being done,l~ The summary judgment standard l t complctely igl1(1r(!S these principles. II is iI mechanical test, which would ol)Crate to permit Olle to defeat any Involuntary petition by simply alleging that dl ~ puted facts and/or disputed iSSues of law exist. The Johnston Hawks and T«hnlca/ fabricators theories'o recognize the equitable narure and purpose of the b<\nkl1lPtcr court and permit flexibility as a pal1icular situation may demand , Generall y not paying debts as the same become due Subsectlon h of SectiOn 303 prtr.'ides that if the peTition Is comr'ovcr!ed, the ( ourt shalt order relief under the appropriate chapter after iI trial only If the debtor Is generally unable to pay its debts as they mtr.ture." This lest is a v.'Irialion of The "equity insoll,(!ncy" tcst which was used under the Bankruptcy Act of 1898.02 Cases deci(led under the naw repealed BDnkruplCY Act of 1898 lookt.>d to the debtor's Inability to pay.u In reforminglhe standards of 11'1-.uluntary bankruptcy; Congress Intended to m<lke it easy to commence CilSCS againsf debtors." In effect Section 303(h1l1l1s a "no-filul\" sl.ltute-either the debtor Is or Is not pi))'lng its debts as they become duc.~' It has been said tha! the "generally not paying" standard Is a flexible one.~· The diversity exhibited by thosc sufferlng fi nancial di stress COllis for a broad definition of the term rJther than 3 mcchanlcal test." In determining whether il debtor Is paying debts as they become due, the follOWing factors htr\.1! been examined: (1) the number arld amount of unpaid claims; " (2) the length of time the debt has been due;" (3) the debtor'S overall contemporaneous handling of Its affairS; 5G (4) whether the debtor Is conducting fin;;lncia! a((,drs if! a manner Inconsistent with good faith Jnd outside the ordlnl1ry Course of busi ness;Sl (51 redu ction In the debtor'SasseTs;'l (6) the debtor's deficit financial Sll uation;n (7) the debtor'S ability to m~t only small, periodic debts and not long-term obligations;" (8) whether the debtor's DSSetS have declined dramatically and whether Ihc r(>duClion in debt is due to the sale of assets rather than the gt'lneration of profits;" (9) the debtor's liquidity;" (10) the amount of the debtor's debts com-

pared to the amount of the debtor's yearly income; H (11) whether Ihe debtor -.uluntarily closed 1\$ businl;!SS oper1lTlons;'· and (12) the apparent tack of good faith by the debtor's ()fficCl'S 111 taking loans from the debtor In spite of the debtor's flnandal dlstress.Sf

Operation of business while pctilion pending Until an omerfor relief is made, or the court tJrl;M!nts it, the debtor may continue 10 operate, use, acquire or dispose of property as If the Involuntary case had not been commenced,60 However, the court may order a trustee 10 take possession of property and operate ilny business of the (lebtor upon requeSt and hearing, if necessary, to preserve the property involved In the p«~in8.·' If an interim Irustee Is appointed, the debtor may regain possessiOn of Ihe property held by the trustee by filing a bond the coun may require.6 ) Possession Is conditioned on the debtor accounting for and delivering to the trustee such property, or its Vo:Ilue, once iln order for relief is made.u After notice <lnd a hearing, ;md for cause, the court may require thc petitioners 10 file a bond \0 Inderl'lnify the debtor for such amounts as the court may IDter allow under Section 303(1)," Attorney's fees- filin g fees If the petitioning credi tor's petition is granted, Section 503(b)(3J(A) permitS reimbursement of !he <lctual Mcessary (!xpenses of the petitioning crt.>dltors. Expenses Incident to the filin g fcc, service of the Involuntary petition and the like come within the parameters of this provislon,iS Secl ion S03(b)(4) permits reasonable compensation for proflm ion,,1 ~ervi Ces rendered 17,< an aTtornL'Y to an entity whose awn aerual, nece~sary (!xpenses are ClII~ under Section S03(b)(31(A) ...• Th~ compenSi'ltion Is based upon the time, nature, extent and value of such services, and cost of comparable services other than in a case under the a"nkruptcy Code and reimbursement for actual, necessary expenses incurred by the <Itlorney.u These claims are conferred "administrative statu s." Under Section 50'(<1)(1) DII administrative expenses allowed are given fi rs t priority in payment." J~nuary

1988

Conclusion Too often creditors or Ihelr legal coun· sel do nOlhlng to collect a delinquent ac· count, or commence a l;)\.'ISull In Ihc state court system while the debtor disposes of assets, milkes prefercntlilltran ~ ferS and otherwl~e reduces the source of furlds to satisfy debts. By the time the creditor obt,1lns Jodgmentthere Is ellher nothing to satisfy the Judgment or the debtor commences a voluntary bank· ruptcy proceeding with few or no assets to pay Il dividend to creditors. The end resu lt Is Ihal a lot of time, money and ef· fol1 h<rYe been expended for naught. The involuntary bankruptcy proceedin!! can be a usciultool for recovering valid debts.

• FOOTNOTES 'II U5.C.A 500., .... XII 11Vt. s..,.,. IM1l 'I ................ -..-~ .... _ .. _WI"C s... _ lO.l(i1 1II ... .........,C«Io ___ .... _ ................... __

.. ...

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~_~

... _ _ ... _

... n .....

__ .. _111 .................... --(---.~Ioj .................. ...,...- ... _

... _lIIbOdlMo

NOTICE Promulgation of Proposed Local Rules of Civil Procedure for the Eighth Judicial Circuit PUrSuant to the re<lulrcmenlS of Ru le 83, ARCP, the EI!!hlh Judlclill Clrcul! Court has IJromulg<1led local rules which wilt be submitted 10 !hc ~u· premc coun for ""proval 90 days after publica· lion. A copy of thc proposed rules c.1I1 00 obl<lined from the clerk of the court. Comments or objections With reSpe(1 to Ih(' proposed local rules should be submitted to Ihe clerk of lhe court in writing within 90 days after this publication. A copy of any comments or objections also should be t r,ln~milled to the clerk of Ihe supreme court,

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The Lawyer as a Lobbyist by luther J. Sirangc, III

January /98B

Introduction Gillen the tremendous inOuence of the fcderal gO'Y'ernmelll, Ihere obviously are a greal number of Issues at the fcder.ll Il.".'el which potentially could affect the lawyer's client. And, in f.lCI, Alabama at· torneys frequently have occasion to contact their senators or congressman to reo quest Information or seek help with a mailer of concern 10 a client The at· torney simply may be Imerestw in learn· Ing the status of a particular bill or ac· qulrlng copIes of documents. Often, however, the attorney Is Interested in per· suadlng the member of Congres5 to provide assistance with the passage or defeat of legislation. The purpose of this article is to provide rome practical advice on how to be cf· fcct l~ In representing a client on fedcral Issues and dealing with the Alilbama congressional delegation In particular. Strictly speaking.. a lobtJvlst has been defined as "one employed 10 Influence legislators to Introduce or vote for measures fayorabie 10 the Interest he represents," American Heritage Ole· "onary, New Col/cge Edition at 765. In this article, hcrwever, the lerm is used in a broader sense to Include all activities the anomey might undertake, ranging from Simple requests for Information 10 actual ~ Iobbying" to pass or defeat legislation. Background The right to lobby Individually or on behalf of a client 15 one of our most fun· damental rights. It 15 pmtCCIed by the Firsl Amendment to the United States Con· stitutlon which PfOYides thaI "Congress shall make no law ... abridging the freedom of speech or of press; or the risht of the people peaceably to assem· ble and to petition the Government for redress of grievancM.H There is the obvious potential, h~r, for corrupllon and conflict of In· terest in protecting the fundamental rights of groups <lIld Individuals to peti. tlon, In the early years of our country, corruption and conOicts of interest were commonplace. Perhaps the most oftencited conOlet of Interest situation from those early years Involved President An·

The Alabama Lawyer

drew Jackson's ba"'~ with the Bank of the United States In the IB30s. It was disclosed that Senator Daniel Webster of Massachusetts was on retainer from the bank while atlhe same time leading the Senate flghl 10 O'o'(!rturn President Jackson's veto of legislation rcnewingthe bank's charter, In a private communlca· tion to the bank's president, Webster complllined, ~, , . I belh."If! my relalner has not been renewed or refreshed as usual. If It be wished that my relation to the bank should be cortllnued, It m"Y be well to sefId me the usual retainers.H As might be expected, the term ~ Iob17,-isr ga ined a rather unsawl)' reputa· lion in those early years, The situation Is ~I)' much different today, however, and despite the occasional unfortunate abuse, I think It is well·establlshed that lobl7,-lng Is an essenUal pan of the legi slative process. Well-I nformed, knowledgeable members 0( Congress obviously are bener able to actin a way that benefits everyone, Furthermore, members clearly want as much Informa· tion as possible on issues that are of importance to them and have come to rely In particular on lobbyislSto provide It.

Basic principles In testimony before the Senate Go.<ernmental Affairs Committee, Charles W;llker, a ~1I· known Washington lobbyist, remarked:

~... When t am asked b{ students, 'I'law do you get a bill through Con-

gress?' I rt'Spond that It Is Wll)' simple 10 do. You lust hiM! to cOfflince a mao jority 0I1he members rJ the Hoose and a majority 01 the members rJ the Sen~te Irn.t what you are fof Is good for his or her con$tituents and for thl! country; and what you art agaln$t Is bad for his or her con§llluenIS. I said It Is easy to st~te but not ~asy to do.~ (1983 Lobby Hearings, p. 21 2)

As Walker's Sliltement Indicates, it would be somewhat of an underStiltl" menl 10 observe that lobbying Is an InexaCt science, Despite that filet, il can be said that the lawyer has two fundamental goals when representlnl a client on a legl slati~ milner- to inform and to per· suade. The lawyer must be able to effec· tively Inform the member of Congress of the client's problem and persuade thilt member 10 take apprQpri(lte action. Obviously, all the lawyer's traditional skills of advocacy and r'lCgotiOltion arc Involved. In fact, handling a legislative Issue is ~ry similar to handling a senlemenl negotiation on behalf of a client. There are certain basic principles which h:r.e pl"O'Ien to be ~ry effective In h(lndllng legislative matters. These principles are not n{.'ces~arily original. In fact, many InYOlve good old·fa shloned comr"llQn sense combined with tradl· tional lawyering skills. Often, hovJeyer, the basics afe OYerlooked 10 the detrl· ment of the lawyer and cllenl.

Luther J. Slrangc, III, is direc!or of federal i!f';lirs for Blrmlnghllm-based 5 0 0;11, Inc" and ;5 in chilrge of its \.¥.IshinS!on, D_C. office. A mll;1'(' of Birm ingham, he received his undergraduate and law

degrees ff(lm Tulane University. Strange Is a m('mber ofth(' Al8ooma, lnuislana li nd Texas $1Il1e bars, and th(' Federal Energy Bar Association, Before moving /0 \Nash/nglon, he practiced with SOniU in Birmingham.

I, Be knowledgeable and thorough Each member of Congress has a personal and commincc staff whleh is available to provide Information on a wide range of Issues. Other SOUrtes of information within the gowmmcnl also are available to members. They rely on outside SOUrte5, howeYer, for much of tnc information they need on specific Issues. Perhaps Ihe mOSt Important fundion of the I~r as a lobbyist Is to be a reliable source of such Information. This is particularly true of areas where Ihe lawyer or his client has ex pert knowledge. Of course, the lawyer should be thoroughly familiar with the client's Issue and the facts surrounding II. Keep in mind Ihat ,he member deals with literally hundreds of issues. Do not assume th;)t he knows anythIng about your client or problem, although he probably will. A ~wh ite Pilper" summarizing your Issue and the help you are seeking Is very helpful . II . Be accurate and complete The I~ naturnlty WilnlS to make lhe beSt case possible for the client. To do so, It Is essential that the Inform:1t1on provided 10 the member be accurale and complele, II is perhaps the cardInal sin 10 I)rovide a member with faulty or erI'Of'\eOOS information. Credibility is essen· tial, and once it is 1051 1115 ~ry difficult to regain. It 15 also incumbent upon Ihe lawyer to point out to the member both the pros and cons of thc clien t's Issue or position. Virtually every decision the member makes has political ImplicatIons. HearIng bolh sides of Ihe Issue gives the member an opportunity to make an in· formed decision takIng into account the inevitable pol/lical consIderations. If there am seri ous political considera.tions on Ihe other side of tht: Issue the member will appreciate your maklr\g them known. You do nol want Ihe member to learn about them from the olher side or Ihe "hard wJ'(,' after a decision has been made. III. Be candid Members of Congress f;;lce tremendous demands on their time. They deal with diverse issues moving at a hectic pace. They appre<iClte a candid statement on the lawyer's pan of exactly what the client's position Is on an Issue and what help Is being requested. If the Issue Is a

so-called "pocketbook" Issue of Importance only to ~r client then that fact will be apparent to the member. It is in Ihe clien t's Interest 10 be up (ront about It. The members of the Alabama delega· tlon have a tremendous amount of ex· perience and tend to know very quickly what tYI>C of issue is invol'A-'d. Be C31'1did with Ihe member about tnc Issue and exactly why il is important to your client. IV, TIe to the state or district Members of Congress rarely (orget that Ihey are elected to represent Iheir con· stituents and the lawyer should not forget It either. For all the talk about the influence of so-called "special Interest" groups, meml)ers of Congress are primarily responshe 10 tnc voters 3t homl'!. If the client's Issue Is Important to Alabama or Ihe congressman's district, say so. Any statislics or other evidence demonstratlnglhe locallmpol1imce of an issue are eXlremely helpful. V. Avoid any impropriety This point should flCCd no elaboration. The lawyer should alwOJy$ avoid approaches to the member Ihat could be Interpreted as unethical or consti tuting ;10 Improper Influence. Vt . Suggest a solution The lawyer should be prepared to stille precisely what the client's position is and what the member is being requeSled 10 do. Simply complainil'lg 10 a member about a problem .... ithout suggesting a potential solulion or recommended course of action is Ineffective and counter-productive. Keep in mind that the member will want 10 be of assistance to your client partIcularly If the client is a constituent. Make il easy by h(IVing a positive solution available. In this regard, be able to provide precise le8islali~ language for aflY propoSt.>d bill or amel'ldment as well as lists of wi tnesses for hearings and the names of possible' cosponsors for any Icglslatlon. VII , Be flexible Polllics Is essentlilily the art of com· promise. Rarely is one Issue so clear Ihat there is only one posilion which can or should prevail. Instead, the member typically faces a number of competing in· tereSls. Th~ mem!x..,. n"'turaily will seck a compromise position on those Issues which will satisfy all Interested parties. RecognIze this and be willing to be fled· ble in order 10 assist the member in reaching a compromise. In this regard,

do not press the member to make an immediate commitment or decision on an Issue. He will appreciate )Our giving him the time to (\,lIly consider the matter. VIII, SeclI: help from others with a common Interest In perhaps the majority of caSeS, the issue Or problem of concern to thecllent will also be of concern 10 others. The lawyer always should seck 10 identify any potential atties and obtain their support or Join forces with them In any on-gQing effor!. Of p;lrticular help in Ihis reg.ud are InduMry trade associations, public Intcrcst groups and similar organizations. IX, Recognh:e Importance of member's staff I cannOt over-emphasize this point. Each member of the Alabama delegation has a personal staff in Washington and offices in each coogre5sional district. The chief staffer In the Washington office is Ihe adm in istrallve aulstant. Ea ch member also has legislative assistants who are assigned respooslbility (or p.1r· licular issues, s\,lch as agrIculture, commerce, elc. The staff members of the variou$ Alabama congressional offices are highly competent profeSSionals. I would urge any lawyer, as a Of'St step on behalf of a client. 10 conl3ct the appropriate staff member to (!)Cplain any problem or need for information. Always keep the Slaff advised oi developmenls and remember that a "thank you" goes a lont! way. For your convenience, I hllve li sted the names, numbers and addresses of the members of the Alabama delegatlon along with the names and numbers of their OOminlstr,.tive assl~tants: DIREaORY ALABAMA DELEGATION Washington, D.C.

Sen, Howell T. Heflin (0) (SteY(! RaI7t') (202) 224-4124

Hart Bldg., Room 728 2nd 05< C SIs., NE W.1Shlnston, DC 20510 Sen. Richard Shelby (D) (Rick Roberts) (202) 224-5744 Hart Bldg., Room 313 2nd & C S15., NE Washington, DC 20510

January 1988

Rep. Sonny Callahan (R·IS!) (Randy Hlnaman) (202) 225·4391 Longworth Bldg., Room 1232 Independence .It New JerSey A~, 5E Washington, DC 20515

Rep. Ronnie G. Flippo (D-5th) (Frank Toohey) (202) 225-4801 Rayburn Bldg., Room 2334 Independence & So. Capitol Sts., SW washington, DC 20515

Rep. William l . Dickinson (R·2nd) (Clay Swam:y) (202) 225·2901 Rayburn Bldg., Room 2406 Independence &. So. Capilol SIs., SW Washington, DC 20515

Rep. Ben Erdrelch (D·6th) Uudy 'Nelnsteln) (202) 225-4921 Cannon Bldg., Room 439 1st & Independence Ave s., SE Washi ngton, DC 205 15

Rep. Bill Nichols (O.3rd) (Winston lett) (202) 225-3261 Rayburn Bldg., Room 2405 Independence & So. Capitol Sts., SW Wa ~hinglo n . DC 20515

Rep. Claude Harris IO-7th) (Wal ter Braswell) (202) 225·2665 Longworth Bldg., Room 1009 Independence & Nev.o JelWy' Aves., SE Washington, DC 20515

Rep. Tom Bevill (O-4lh) (Don Smith) (202) 225-4876 Rayburn Bldg., Room 2302 Independance &- So. Cal>lIol SIS.• SW Washington, DC 20515

X. Be aware Qf regi.triltion and report· i ng requirements The allorney snould be aware of the existence of cerlain lobbying regula tions which may apply to the activities I have

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discussed. The one existing omnibus lobbying law Is thc Ft>deral Regulation of lobbying Act (the act) which was passed 115 part of the leglslati~ Reorganization h:C of 1946. The oct Itself does not restrict lobbying activities; ratner, It requires reglstrallon under certain drcumsl11nces with the secretary of the Senate and the clerk of the House, along with the filing of quarterly financial reports. Each at· torney should f(!\llew the <let and other applicilble statutes and regulnHons to ensure compliance.

Conclusion Alabama is quite fonunate 10 h;we a congressionill delegation of the highest caliber representing the Slate In W.lShlngtOn. The members and their staffs are a pleasure with whom to work. I hope the ad\lice con tained In this artl· de is of some assistanCe 10 those having occasion to contact the Alabama dclegiltion on an Issue of Importance to iI client.

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Service by Publication under Rule 4.3 by

Jerome A, Hoffm;m

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Se",ice by publication has not been the same since Mullane v. Cemrdl Hanover 8,1nk, 319 U.S. 306, 70 S. CI. 652,94 l. Ed. 865 (1950) That landmark

United States Supreme Coun decision esl(lblisnOO a federal constitutional requirement that a person receive the b<!st

nOllce practicable under the circumstances in any action in which he Is

to be served . The Coun said, "An elementary and fundamental require-

men! of due process in any proceeding which is \0 be accorded finality Is f'IOIice reiuonably c<lleu/aled. unde, all the c/r·

cumstances, 10 apprise in/erested parties of the pendency oflhe action and afford them an opportunity \0 present their ob/celions.'" td. at 314, 70 S. Ct. at 657, 94 l. Ed. at 873 {emphasis addC!d1 By way of cKplanllllon. the Coun \oYCn\ on to say, '1'\ mere gesture is not due process. The means employed must be such as one

desirous of actually Informing the absentee might reasonably adopt to accomplish Il.u Id, at 315, 70 5, CI. 657, 94 l. Ed, at 874 (emphasis added) Since Mullane, law~rs (or plaintiffs have had to communicate more diligently with many defendants who formerly might have been served solely by publication. Even so, service t){ publication certainly has nOI become a dead letter. II continues 10 serve an Indispensable January 1988

functlOr'l as the means of laSt ~r1. "tYpically, only when counsel uses it shorl of a last resort does It cause the mischief of which It Is capable. A dcfendilnt may not f,lllin a category of persons upon whom service by publication Is authorized. As to him, service by publication may properly be Sol id to be I nappropria ~e. On the other hand, a defendant who falls In an authori zed category may not have been served with the fo rmalities required by due process and Rule 4.3 of the Alabama Rules of Civil Procedure. As to him, service by publication, although authorized, may properly be said to have bct.'fI imperfe<:1. If a dclendant Il'Iapproprlately or imperfectly seNed by publication appearS and defends on the merits, a judgment rendered against him Is. of course, valid and enforceable. If, hO'MlVCr, a dclendant inappropria tely or Imperfectly served by publiC<llion defaults without appearonce, a judgment rendered agalnSI him upon that dclaultls void. It will not supporl execution. Rocording It will IlQt crea te a lien Ul)On proper1y {although It may, of course, cast a cloud upon title). It will nOt support a subsequent Judgment. It will not exert res judicata effect upon subseQuent Iltlgatiom of Ihe same transaction or occurrence. A plaintiff who takes such a default judgment may not, it is true, have Invested much In it. But he has received nothing for his investment, unless a void judgment will hiIVC some in ICrrorcm eff&t when brandished before hi s opporlCrlt. And an attorney behaves unethically whtn he bluffs 3r'I Ignorant or uninformed layman with a Judgment the anomey kn0J>'5 or believes to be void. Thus, it would seem that plaintiffs' counsel hiMl ;In lmponant stake in underslanding the appropriate uses of Rule 4.3 and iI\oOiding the abuses to which It has cOn'lmonly been subjetled. Defense counsel, by Ihe same token, hOM! an Imponanl and often rewarding role to play In policing and enforcing the prophylactic proviSions of Rule 4.3 and the constitutional requirements of due process Ihat underlie It. Rule 4.3 was quite consciously drafted to satisfy the consti tutlonlll mandate of Mullane. II could not have been drafted more conSCientiously, although perhaps In retrospect, it could have been drafted more skillfully. Some of the appellate opinions Inl(!rpn"!lngll haye had to wresThe Alabama Lawyer

tie 1'101 with manen 01 substance but with problems created by draftsmanship that hil'o'e obscured. or at least nOi spotlighted, the basic distinction between actions in personam, on the one hand, and those In rem or qUll slln (('I». on the other. By making this one simple distinction, we can cu t Rule 4.3 and service by publication down to size. Although it does not always keep them v.-eU--separated or distinguished, Rule 4.3 has proviSions that al)Ply particvlarly to In personam ..ctions and provisions that apply panlcularIy to In rem or qUa51 in rem actions, in addition, of course. to provisions that apply equally to both. Thus. In applying the rule, a judge or IDW)1!r must always ask whether a Judgment In personam or merely In rem or quasi In rem Is sought in the aClion under examlnalion.

A, Judgments in personam An In personam judgment is one (usually for money damages) thai the sheriff can execute against thc dcfundant or one that subjects the dclendant to the court's contempt pcMIer. Rule 4.3 (a)(2), ult. sen!., provides: W in no event shall an In personilm judgment be enlered on ser· vice by publica tion eXCel)t as provided In subpara grnph (c) of this rule." Thus, under carefully limhed circumstances, a party seeking an In personam judgment may have service by publication against either an Individua l or a corpotalion, 1, Individual; Rule 4.3(c), sen!. I, provides: 'When tal a resident defenciJnt [b] avoids service and Icl his present location Or residence Is unknown and [d) the process server has endoned the f<lC1 of failure of service and the reason !herefOl on the process and returned same to the clerk or [d2) where the return Il;!(::el pl shO'WS a failure

of service, the court may, on mOlion, order service to be made by publication .~ (emphasis and bracketed material added ) a. Resident defendant- tf, upon service by publication. a nonresldl;lnt (lp"pears and defends, an in personam judsment rendered against him will. of course, be valid. 8ut an In personam Judgment obtained by default against a nonresident defendant Is void If based solely upon service "" publication. Braley v. Horton, 4]2 5o.2d 463 (Al a. 1983) A t)arty moving for service by publiCOlllon must show 2mrmatlllCly, by affidavi t or otherwise, that the party 10 be served is a resident of AI~bama . and the trial COUr1 must make a finding of residency upon that shCM'lng. Id. at 466. On Its face, Rule 4.2{b:(1)(O seems to contradict the proposition that in per$Onllm judgments can be obtained by publication only againSt resident defen. d(lnts. The rule provides that oUI-of-st<lte service by certified malt "shall be deemed to confer in personam jurisdiction." Rule 4.2{b), lines 5 & 6 The provision Is not lirnited on Its face to out-of· state service upon Alabama residents; Indeed. Or\e supposes that the principal utility of Rule 4.2(b) Is to be found in its applica tion to nonresiden ts. Rule 4.2(b)(1)(O then provide: ... In the event that the return receipt sh<7oYS failure of delivery, service Is complete when the serving party ..• files with the clerk an affidavit setting fonh facts Indicati ng the reason(lblc dlligerlCe utilized to ascertain the whereabouts of the party to be seNed, and service by publiCiJtion Is made under Rule 4J(c). Ult. sen!., emphasis added- Here, (llso, the provision is not limited on Its face 10

lerome A. Hoffman is a professor of Jaw althe Univc'sity of ~Ia/)ama S<hool of Law. He holds &A and I,D. degrees from IhfJ UnlVCfS/t y of Nebrn ska and is a member of the Alabama and California 51,lte bars. He Is a member of the Alabama St,lIe Bar's Action Croup to Consider Possible Restructuring o( ~/abama'$ Appellate CourlS.

out-of-state service upon Alabama residents and, l1!ad only with the provision "shall be doomed to confer In personam jurisdiction" and not with the related provisiOns of Rule 4.3(01)12) and 4.3(c), would seem qultt'! clearly to authorize in personam jud8ments obtained 11)' publication against defendants not residents of Alabama. Rule 4.2 must be read with Rule 4.3, hONeVer, and the proscripdon set forth In Rule 4.3(.1)(2), ult. S<!nt., Is plain; "10 no event shall In personam judgment be entered on service by publication except as provided In subparagraph (c) of this rule," which then limits in personam effect to judgments obtained against resident defendants, E~n when thus limited by Rule 4.3, Rule 4.2(b)(1l stili has at least two fields of operation, namely (I) where the plair\tlff seeks an In personam judgmenl against an Alabama resident who can be reached (onlyr) oul of state and (2) where the plaintiff seeks an In rem or quasi in rem judgment against a defendanl that is either a resldelll or nonresident of Alabama. Thus, It seems

reasonable to suppose that Rule 4.3 was Interoded to control on this matter and that only resident defendants are subject to In personam judgments ob'ain~ by publication under arT)' circumstances. b, Avoids service-' patty moving fQr service by publlcation must show amrmatl~ly, 11)' affidavit or Qtherwlse, thaI the party to be served ~avolds service:' The showing mUSI8Qbeyond mere conclusory assertions Qf the affiant, deponenl or witness by ";werrlng facts shewing sucll avoidance." Ru le 4.3(d)(l), ul!. clause Avoidance means thai "lmJore than mere Inability to find the defendant is rcqulred~; the m<Wlng party muSt sh(Mo an "element of culpability on the part of the defendant.w Rule 43, committee c0mments See als<> Richardson v. !.rringlon (431 So.2d 1301 (A1,..Civ.App. 19831. And one court lias said thai "the dl"ilftsmen [of Rule 431 required proof of 'culpabiliTy' or a 'hiding out' by a defendant before , .. In personam judgment can be entered on service by publication !' Federal Deposit Ins. Corp. Y. SimS, 100 F.R.D. 792, 796 (N,D. Ala, 1984). The trial court must make a finding of avoidance UpCIIl the moving party's shoNIng. Without such it slltM'lng and nndlng. an In personam judgment obtained by default and solely upon service 11)' publication Is YOld. Miles Y. McCluns. 385 So.2d 1326 (Ala.CIY.App. 1980). c. Present location of residence unknown- The moving party's showing

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also muSt Include an ilYCrment that the avoiding defendant's "present location or residence Is unknO'Nn.~ Rule 4.3, sent. 1. Rule 4.3 does not eKpressiy require the moving party to show thaI he has made a diligcnt elfmt to discover the avoiding defendant's present location or residence. Nor does any dlscOYered Alabama decision squarely so require. Nonetheless, 31'1 averment of reasonably dlligeni search would seem tQ be an essential element of ,my successful sl\('Mo. Ing that;l defendant is avoiding service. dl. Return of service shows faiture Qf service-Before a movi ng par1y whQ seeks an In personam judgment may 0btain an order authorb:lna service by publication upon an avoiding tCSldel'lt defendant, he must have unsuccessfully atTempted service by process server or certified mai l. To show That service has been attempted unsuccessfuUy 11)' process server, the moving party should attach to his affidavit or other moving papers the process server's return d service shO'Nlng failure of service. The mQOIIng party need not, of course, comply with bolh dl and d2; if, h~r. he has attempted service both by process server and by certified mall, he may, to shO'N his diligence, atTach both a return of service and a return receipt. d2. Return rec:elpl shows failure of service-Before a moving party who seeks an In personam judgment may oblain an order authorizing service by publication upon an avoiding resident defendant, he must have unsuccessfully lIItempted service by process server or certified mail. To show that service has been attempted unsuctes~fully by certified mail, the moving party should attach to his affidavit or other moving papers the postal service's ICturn r~elpt showing fail ure of service. The moving party need not, of course, comply with both dl and d2; if, however, he has attempted service both by process server and by certified mall, he may, to shO'N his diligence, atl(ICh both a return Qf service and a return rctelpt. 2. Corporations

Rule 4,)(c), sent. 2. provides: "When a defendant Is [all a domestic corporation or [a21 a foreign corporation having one of its principal places 01 business In lhis stale and [b] the process server has endorsed tile fact that process cannot be January 1988

served [dl b@cause of the failure of the defendant 10 elect officers or appoint agents, or [(2) because of the absence of officers or agents from the state for a period 01 thirty days from the filing of the complain t Of [ell because the ofnccrs or agents arc unknown, then such defen· dant shall be d~med to have avoided service and the court may, on motion, order service on such defendant to be made by publica tion :' (emphasis and bracketed material added)

a1. Domestic corporations- The movIng party's affid<lVit or other evidence must show, as one alternative, thai the defendant to be selVCd by publication Is a domestic corporation. 012. Cerlain foreign corporations-The MoYlng party's affidavit or other evidence must show, as the other alternati ve, that the de(cndar\l Is a (oreign corporation "having one of Its prindp.ll places of business In this stOIC."

sonal service has failed, but must show, as wt=1I, that it fuiled for one <i the following reasons: (1) because of the failure of the defendant corporaUon to elect officer1 or appoint agents; 21because of the absence of o((jcers or agents (rom the stille for a period of 30 days from the filing of the complaint;

a. (3) because the offlcers or agents <'Ire unknown.

B. Judgments in nm and quitsi in ",m

An In rem or qua si In rem ludgment operates only upon specified property or a speclfled status under the control of the rendering court. Rule 43(01) provides that

a party seeking only an in rem or quasi In rem l udgment may haye service by publication upon a defendant under Iv.() categories of prescribed drcumstances. Role 43(b) adds a third Gltegory. The role draws no categorical distinction berween Individual defendants and corporate defendants, <'Ilthough Individual defen. dants probably will fall more frequently wi thin the rule's requirements, and the rule's proYl slons may, as <'I practical mat· ler, apply somewhat differently to corporations thlln they do to Individuals. I. Categorie5 of circumstanc" in which service by publlc<'liion Is authurized In brief, the rule provides that service by publication may be <'Iuthorized (1) where the identity or residence of a

b. Attempted personal S('rvke-Bcfore a moving party who seeks an in pcr· sonam Judgment may obtain an order authorizing service by publlcallon upon an OM:)jding corporation, he must, by the leiter of Rule 43, h~ unsuccessfully at· tempted service by process server. Rule 4.3(c), sent. 2, does nOI, on its face, recognize attempted seIVice by certified m"illlS a qualifying attempt at servi ce. Although the conlml ttce cortlments do not explain this omission, it 'NOuJd seem Justifiable on the ground that the poslal service's relurn receipt cannot be ex· pected to contain the Information required by the Rule. See sub~ljon c., below. If a return receipt can or does In (aci contain the required information, there 'NOuld seem 10 be nO good reason in policy to deny the moving party Ihis less eXI)Cnsive illternatlw. Furthermore, even If a retorn receipt cannot contain the re<luired InfOfmatlon, there may be no good reason in policy to deny the moYlng party an opponunity to get the re<lulred Informal on before Ihe coun bot' other means, for example, the affidavit, deposition or live testimony of the party, his attorney or an Investig<tfor. Perhaps the rule should beamended to make this dear. c. Reason for f./,llure of service-The process S(!1\(!r's return of service (or other source of Informot!on, if aUI'lYIe<l) must show not only that the attempt at per·

The .... Iabama Lawyer

defendant IS unknown, (2) wh~re a resident defendant has be<!n absent from his residence for more than 30 days since the nUnS of the cOMplaint or (3) where the residence of a defendant Is known but service '" proctSS server or ceniOed mail has failed . a. Identity or residence unknownThis alternative requirement appears in Rule 4.3(a)(1). Because It Is not otherwise limited, It ;,pplles to both resident and nonresident deiendants. Thus, where a plaintiff seeks only an in rem or quasi in rem judgment, either a resident or a nonresident defendant may be served by publication under this subsoction and, if duly so sc.ved. will be bound by the judgment ~n If he does not panlcip.lte In Its adjudication. b. Resident defendant absent from residence-This altern;,Uve requirement also appears In Rule 4.3(a)(I). lt is limited by Its terms to ItSidEml defendants. Thus. only a residenl defendant H3bsent from his residence for more than thirty days since the fiUng of the complaintHmay be served by publication under this ptOYi-

sian. A nonresident defendant Similarly absent from his residence in another state Ofcoonlry maybe seNed ~ publicCition, If at all, only under the pfOYlSlon examIned In the following subsection. c. Residence known but ~rsonal service has failed-Thi i olternative requirement appears in Rule 4.3(b). Because It is not otherwise limited, it applies to both resident and non-resident defendants. Thus, where a plaintiff seeks only an In rem or quasi In I'('m Judgment, either a resident or a nonresident defendont may be served by publication under this ptoYlslon and, If duly so served, will be bound by the judgment e'o'en if he does not particiP<'te in its adjudication. One might ilrgue tenably that Rule 4.3(b) WilS not Intended to create a discrete category of ca~ in which service by publication might be iluthorl:(ed, that it WilS Intended only to codify the Mullane stalldard of doe proc.ess that muSt goyl!rn all the other categories 01 the rule. Be thlll as it may, the plain language of the provision does seem to authorize service by publication under circumstances not covered by any other provision of the rule. Specifically, where a plaintiff seeks only an ;n rem C)f quasi in rem judgment II resident defendant of known residence may properly be served by publication under this section without a shoNing that he 3IIOids service. It need only be sho.vn, by return of service or return receipt and supplemented by affidavit or otherwise as circumSlances may allow or require, that service has failed notwithstanding reasonably diligent efforts to effect II.

C. Procedure A plaintiff seeking an In personam judgment under pan A, above, must request service by publiciltion by motion to the coun. Rule 4.3(c) is cleilr about this. On the other hand, a plaintiff St.'CkIng only all In rem Of quasi In rem judgment under Part B may, unless the trial court In which the action Is pending has established a local practice to the contrary, request service by publication simply by presentation to the clerk of the court. Rule 4.3(d)(2) is not entirely explicit "bout this, but the small gap In its text can be filled , It would seem, by fair Implication. Where a plaintiff seeking only an In rem or quasi in rem judgment obta ins service by publication upon 22

present3tion to the clerk, as seems contemp13ted by Rule 4.3(d)(2), the trial court will have no formal oppoftunlty to review the presenting plaIntiff's affidavit before Judgment. Indeed, the court will not review the ~rments of the affidavit at all, unless the defendant served by publicatiOn upon the strength of the af路 fidavlt mO'o'eS subsequently to set aside the Judgment under Rules 5S and 60 or challenges It collaterally In a subsequent action In the same coun. Thus, the VJlIditv of such a Judgment will ordinarily depend upon the intelligence, skill and good judgment of counsel (or the moving plaintiff. Said <IOothe, wtry, where an in personam judgment Is IOUght, the Irial court is expected to save the plaintiff's counsel from the folly of investing in iii ...,id judgment; where an in IVm or qUil$l in I'('m judgment is sought, it Is not expected to do so, and cannot do so, If It has I'IOt cslilbllshed a local practice bringIng all requests for service by publication before it. It can only let the chll)S fall , retrospectlYCly, where they may upon post-judgment attack, setting "side the judgment if COlmsel has not complied scrupulously with the letter and spirit of Rule 4.3. Rule 4.3(d)(1) requires an affidavit. As suggested In pan A, above. an affidavIt should not be thought the only nleans (although It is the usual means) by which a moving plaintiff can support his motion before Ihe court. Under part B, hQ\oYe\lCr, where the preserllJtiools 10 the clerk, the presenting plaintiff must m(lke his f(lelu,,1 shoYo'l ng excl usl~ ly by affidavit, because the clerk Is not authori:ced to hold a factual hearing. Whether In support of a motion to the Judge or a presentation to the clerk, the afOdavlt(s) must go beyond conclusory 3\lerments with regard to certain elements. As perhaps the most fu ndamental example of this proposition, the mOlins plaintiff must assert facts from which the court Ciln reason"bly conclude thaI the moving plaintiff has made reasonably diligent efforts to Identify andlor find the oofcndant whose identity or residence he 3VCrs to be unknown, Whitfield v. Sanders, 366 SQ.2d 258 (Ala. 1978); \oVynn v. Smith, 357 So.2d 973 (Ala. 1978), or to effect personal service upon a defendant of kno...,," or easily ascertainable residence. Sams v. Equitable lift! .... ssvr. Soc., 402 So.2d 999 (Ala.Gv.Alm. 1981). On the other hand, January 1988

conclusory averments should probably suffice a~ to certain other elemems of the affidavit, Althoush they certainly do not foreclose the InqLliry, the illustrati ve form affidavits presented In the following part suggest where faCtual condultioos might be Ihoughl permissible and where they might not.

D. Some iUUSlr<ltive forms of affidavit The follOWing forms are intended to be illustrative of the clements required by the due process clause as Interpreted In Mullane and by Rule 4.3. A.s such they may serve to stimulate di5Cussion OYI!r competing undersLlndings of those requirements. A trial Judge might use them as they are Of with such modifications as mll)l bring them Into conformity with his own understanding of the requisites of Rule 4.3 or wi th Ihe praclic<ll needs of his court. For example, he mll)l wish 10 delete the decision-tree instructions thaI appeM In caps Within brilckets Ihroughoul the bodies of Ihe forms, reserving for himself the Judgmems that such instructions put within Ihe affiant's reach. A I~ might use !hem as they are Of with such modifica tions as may bring them In· 10 conformi ty with his own understand. ing of the requisites of Rule 4.3 or with the practical needs of his o(flce, For example, he may wish to use them only as guides from which 10 cretlte professional looking. nonform affidavits.

[STATE YOUR RELATIONSHIP TO THE CAPTIONED ,,,,cTlO'l, E.G., PLAINTIFF, ATIQRNEY FOR PLAINTIFF, WITNESS FOR PLAINTIFF, ETC.) 2. I have peOOOill kO(]Wledge of the propoSitions of fact nated herein. 1. PlalnUff _ _--,-_ _ _ __ seeks <'tn ;n personam Judgment agaInst Defendant , the named defendant against whom service by publication 15 requested.

[IF YOu DO NOT SEEK AN IN PERSONAM JUDGMENT, THIS IS NOT AN APPROPRIATE FORM OF AFFIOAVIT TO SUPPORT 'lOUR MmION. AN IN PERSONAM JUDGMENT IS ONE THAT THE SHERIFF CAN EXECUTE AGAINST THE DEFENDANT OR THAT THE COURT CAN ENFORCE BY ITS CONTEMPT POWER.) 4. Is the Defendant n(lmed In Ilara· grallh 3, above, a resident individual of the State of Alabam"l _ _ _ __

(IF THE NAMED DEFENOANT IS A NONRESIDENT INDIVIDUAL AND YOU ARE SEEKING AN IN PERSONAM IUDGMENT AGAINST THIS DEFENDANT, YOU ARE NOT ENTITlED TO SERVICE BY PUBLICATION. IF THE NAMED DEFENDANT IS A RESIDENT INDIVIDUAL OR A DOMESTIC OR FOREIGN CORPORATION, COMPLETE THE APPROPRIATE PARi\GRAPH(S), BELOW.}

Resident Individual Form I

AFFIDAVIT IN SUPPORT OF SERVICE 8Y PUBLICATION [For use where in personam judgment Is sought]

[NAME OF COURn I

_ _ _ _ _ ,) e lV, NO" _ _ __

I I AffiDAVIT SUPPORTING ) MOTION to THl COURT Y. ) f~ AN ORDER I AUTHORIZING SERVICE I BY PUBLICATION _ _ _ _ _ ,I tMowInt ~ In in I pe!IClIYm judgIMIIl}

Plalntlfflsl,

Otfend'n!hJ.

)

THE AFFIANT AVERS THE FOLlOWING: 1. My name 15

I,m

In the captioned

6. Has personal service of pfOCe$S upon the named Defendant beM attempted by process",,:",, :,~'=::-_ _ By certifled mam _ [tF YOUR ANSWERS TO BOTH OF THESE QUESTIONS ARE NO, YOu ARE NOT PRESENTLY ENTITLED TO SERVICE BY PUBLICATION. IF YOUR AN· SWER TO EITHER IS YES, ATTACH THE RETURN OF SERVICE OR RETURN RE· CEIPT TO THIS AFFIDAVIT AND COMPLETE THE FOLlONlNG I¥.RAGRAPH.} 7. Does the return of service or return receipt show failure of servicel _ _ '

(IF YOUR ANSWER 10 THIS QUESTION IS NO, YOU ARE NOT PRESENTLY ENTITLED TO SERVICE BY PUBLICATION. IF YOUR ANSWER IS YES, COMPLETE THE FOli.DvVING ~RAGRAPH .I 8. Is the named Individual Oclendant avoiding personal service of processf [IF YOUR ANSWER TO THIS QUESTION IS NO, YOU ARE NOT PRESENT· LY ENTITLED 10 SERVICE 8Y PU8liCATION. IF YOUR ANSWER IS YES, STATE BELOvV THE FACTS FROM WHICH THE COURT CAN CONCLUDe THAT THE DEFENDANT IS, IN FACT. AVOIDING SERVICE OF PROCESS. IF TI'IE SPACE PROVIDED IS NOT ADEQUATE, ATTACH ADDITIONAL PAGES AS NECESSARY.)

5, If lhe named Defendant is a resident Individual, 15 his present location or residence unknawnl If so, haYe you made diligemefforts 10 diSCOo'er his presem IOCiltion or residence?

[IF YOUR ANSWER 10 EITHER OF THESE QUESTIONS IS NO, YOU ARE NOT PRESENTLY ENTITLED TO SER· VICE 8Y PU811CATION. IF YOUR ANSWER TO 60TH QUESTIONS 15 YES, STATE 8ELOW THE FACTS FROM WHICH THE COURT CAN CONCLUDE THAT'rOU HAVE, IN FACT, MADE Dill· GENT EFFORTS TO DISCOVER THE NAMED DEFENDANT'S lOCATION OR ADDRESS, IF THE SPACE PROVIDED IS NOT ADEQUATE, ATIACH ADDI· TlONAL PAGES AS NECESSARY. THEN COMPLETE THE FOLLOWING PARAGRAPH.I

Domeslic or Fore/sn Corpora lion 9. Isthe named Defendant a domestic corporil tion~ A foreign cor· poration having one of liS principal places of business In this s tate~

[IF YOUR ANSWERS TO BOTH OF THESE QUESTIONS ARE NQ YOu ARE Nor ENTiTlED TO SERVICE BY PUIJUCATION UNDER THIS PAAACRAPH . IF YOUR ANSWER TO EITHER IS YES, COMPLETE THE NEXT PARAGRAPH.] 10. Has personal service or process upon the n(lmed corperJ!e Defendant been attempted by process server~

action.

The Alabama Lawyer

(IF YOUR ANSWER TO THIS QUESTION IS NO, YOU ARE NOT PRESENTLY ENTITlED TO SERVICE BY PUBLICATION . IF YOUR ANSWER IS YES, AT. TACH THE RETURN OF SERVICE TO THISAFFIDAVIT AND COMPLETE THE NEXT PARAGRAPH.1 11 . Has personal service of process f.,IIL'<l bec.,use Ihe Defendant corporation has failed to el(K( officeB or appoint agcnlsr . Boc(luse the Defen. dant corpora tion's offlcel1 or agents hilVC been absent from thc: state for th ir1y days from the dale upon which your complaint was frledl Because, after dllJgeOllnqulry, the Defendant corporill ion's officers or agen ts are unknO'Nnr _ _ __ IIF YOUR ANSWER TO EVERY ONE OF THESE QUESTIONS IS NO, YOU ARE NOT PRESENTLY ENTITLED TO SERVICE BY PUBLICATION. IF YOUR ANSWER TO ANY QUESTION IS YES, STATE BElO\N THE FACTS THAT SUPPORT YOU R YES ANSWER(S). IF THE SPACE PROVIDED IS NOT ADEQUATE, ATTACH AODITIONAL PACES AS NECESSARY.]

Affiant. Subscribed and sworn to before me this dayof _ _ _ __ 19 _ _ _

NcrrA~~P~U~B~LI~C::::::::

COUNTY STATE

Form 2 AFFIDAVIT IN SUPPORT OF SERVICE BY PUBLICATION [For use where in rem or quasi in rem judgment is rought] (NAME OF COURn I _ _ _ _ _ ,1 Ctv. NO _ _ __

I PIIII"I,ff{n. v.

I AfFlDI\V1T SUP~TINC I REQUEST 10 THE CLERK I fOR II DIIUCTION J

AUTHORIZING SERVICE

) OY PUBLICATION _;;:;:::;:::;;--,1 {MaYanl ~s.n In rtm ~endant(51 I or qu.s/III i'tm judSMenll

THE AFFIANT AVERS THE FOllO\NINCi: 1. My name is am In the captioned actiOIl. {STATE YOUR RElATIONSHIP TO THE CAPTIONED AC. TION, E.c., PLAINTIFF, ATTORNEY FOR PLAINTIFF, WITNESS FOR PLAINTIFF, ETC,J

2. I have personal knoYo'lcdgc of Ihc propoSitions of fa ct stated herein.

3. Plaintiff _ _-:.,--_-,-.,--_ seeks an In rer'l'l Or quasi in rem judgment against Dciendant -:-:--,--,-_ _ the nar'l'led defendant against whom service bv publication Is reQuested. ]IF YOU DO Nor SEEK AN IN REM OR QUASI IN REM JUDGMENT, THIS IS Nor AN APPROPRIATE FORM OF AFFIDAVIT TO SUPPORT YOUR MOTION . AN IN REM OR QUASI IN REM JUDGMENT DETERMINES RIGHTS IN PROPERTY TH .....T IS UNDER THE CONTROL OF Tl1E COURT OR EST..... BlISHES OR TERMIN .....TES ..... STATUS.]

4. 00 you seek service by publication because the Defendant, who Is a resident of this state, hilS been absen t from his known residence for r'I'Iore than thlrly days from the date upon which your complait)t was (iledl . If so, have you attempted to serve Ihe Defendant l>ersonally by process server or certified malll _ _ __ [IF YOUR ANSWERS TO THESE QUESTIONS ARE YES, AnACH THE RETURN OF SERVICE OR RETURN RECEIPT TO THIS AFFIDAv n: IF YOUR ANSWER TO EITHER QUESTION IS NQ YOU ARE NOT ENTITlED TO SERVICE BY PUBLICATION UNDER THIS PARAGRAPH 4, ALTHOUGH YOU MAY STILL BE ENTITLED TO SERVICE BY PUBLICATION UNDER PARAGRAPHS 5 AND 6, OR 7, BElOW.1

5. Do you seek service by publication because Ihe Defendanl's identity Is unkno.vnl Because Ihe Defendant's residence Is unknownl

(IF YOUR ANSWER TO THIS QUESTION IS NO, YOU ARE NOT PRESENTlY ENTITlED TO SERVia BY PUBLICATION, UNLESS YOU ARE ENTITlED UNDER PARAGRAPH 4, ABOVE OR PARAGRAPH 7. BEIDN. IF '!'OUR ..... NSWER TO THIS QUESTION IS YES, STATE BELOW THE FACTS FROM WHICH THE COURT CAN CONCLUDE THAT YOU HAVE, IN FACT, MADE DILIGENT EFFORTS AS ASSERTED. IF THE SPACE PROVIDED IS Nor ADEQUATE, ATIACH ADDITIONAL PAGES AS NECESSARY.I

7. 00 you seck service by publication because reasonably diligent efforls to serve a defendant of known residence, either In Alabama or another slate or coun try, by process ser\'er or certified m(lil h<we falledr ;;:;:-::::-:::: [IF YOUR ANSWER TO THIS QUESTION IS NQ YOU ARE NOT ENTITLED TO SERVICE BY PUBLICATION UNDER THIS PAIVlJRAPH, ALTHOUGH YOU MAY BESO ENTITLED UNDER ONE OR MORE OF THE FOREGOING PARAGRA PHS. If YOUR ANSWER IS YES, ATTACH THE RETURN OF SERVICe OR RETURN RECEIPT TO nilS AFFIDAVIT AND DESCRIBE BELOVVTHE EFFORTS YOU HAVE MADE TO AID IN EFFECTING PERSONAL SERVICE. IF THE SI¥.CE PROVIDED IS NOT ADEQUATE, ATTACH ADDITIONAL PAGES AS NECESSARY.1

..... fflant. Sub$cribed and sworn to before th is day of

19_ _ _ [I F YOUR ANSWER TO EITHER OF THESE QUESTIONS IS YES, COMPLETE TH E FOLLOWING f'ARAGRAPH .]

6. Have you made dil igent e((ort'i to ascerlaln the Identity andlor residence of the Defendantl _ _ __

NOTARY PUBLIC

COUNT_'V~::::::::::= STATE

. . . ..... .

•

January 1988

Consultant's Corner The following is a review of and com.

mentary ()ll an office aUlamar/on issue with ctlrron! importance to aIC leBal

community, prepared by the omce iwtoconsullant 10 the stafe bar, Paul Bornstein, whose views arc nm necessarily those of the stafe Wr. This is the sixth iwlde in our "ConSultan/'S Corne," series. We would like mill/on

10 hear from you, bOlh In critique althe arllclt:! wrltlen and sU88estions of topics for future articles.

Don 't say no last column, we look a rather longueIn-cheek look at "six

Iy~

of vendors I

would never buy anything from." One

faithful reader (octually the a1l0mey for my malpractice Insurer) sU8gt.lS1t.'<l that an article on il poslllW! nOle would be appropriate. Herewith, one consuhant'$ opinion on the type of vendor you

should do business with, even If you

have no Immediate pions to buy anything. By one of the most remarkable coi ncidences, this type of vendor also has sbc characteristics. Be lievable If it sounds 100 good II) be true. , . (you know the rt3t}. There is ;111 unwritten allowance for creative hyperbole in sales pitches, not unlike that accorded allorney~ in opening and closing arguments. That said, you are entitled to a presentatlon conSisting of something other than I)ure flummery, He may have something new to show you, pemaps revolutiooary, but the believable vendor gMerally will restrain his elllhusiasm to a level of "tolerable cx-

The Alabama Lawyer

aggeratlon," He may even understate a point or two, out of respect for your conditioned skepticism. Verifiable There are vendors who opened their doors yesterday, and will be titans 01 the industry tomorrow. On the other hand, a distressing number of today's "stars" are tomorrow 's burned-out meteorites. Ask for references al'd check them. Has the vendor kept In touch since installatl001ls he as concerned as yOu "bout the success of the system? Has he offered follow-up help, albeit at a price1 If the vendor states he cannot reveill the names of tiny customers, or "only a few," be wary. Most vendors have one or two customers who decline 10 be ref· erenced, but an entire book of phantom users should trigger Imml!diilte illarms. Knowledgeable The vendor should understand law fir operations as well as or bener than you do. Several years ago you could not have InslS1Cd on such competence, but you can now and you should, Do nol deal with Incompetent vendors. If the vendor Is less knowledgeable than you about law firm operations, do not deal. RepUI.l ble This can Set a bit tricky. A vendor's reputation Is often miMed, a combination of favorable and not HI favorable opln. Ions. This is to be expected. No one Is perfect, The key Is how the vendor responds. Is he overly defenslvel ts he forthcomlngr [)Q(os he ImprCis you as someone who will go at least the nextIo-Iast mile to make you a ~tisned customer?

lik"ble This sounds almost trivial. After all, what counts is performance, rightl YCi and no. It is sad, pcrhap~, but true that business relationships often are affected by "feelings." You should capitalize on one of your strengths, namely. the developed ability to size up people. If you genuinely dlsllke a vendor, you should not do business with him. The odds Me overwhelm Ins that a poor outcome will ensue, because you expe<:t It to happen. "Death wish" Is too strong iI term, btlt "self.fulfilling prophecy"ls not far from the marlc Follow your instincts and seek out another vendor If the chemistry sim_ ply is nOi there.

Professional The acid lest of a true professional is two-fold: how he handle. success and how he handles failure. Ttle professional should be animated, but short of "high fives." He should move at once to discussing implementation strategy, cutover planning, conversion and training. His Job has hardly begun. Even after the system has become " success, you should stili expect him to call on a regular bilsis. No one likes to lose, least of all a professional. Many of them, after a decent Interval of private mourning. will ilsk for a final favor. What could I hove done to change the outcomel If there Is something that might have swayed you, say it. On the Ofhcr hand, if nothing would have changed the outcome, as often is the case, then say that, too. Finally, If you feel that one or morc of Ihl! "non·selectcd" vendors behavcd with uncommon grace In the face of rejection, write to a principal of the vendor's company and speak your mind. •

ANNOUNCEMENT The University of Alabama School of Law's IISpecial" Special Collection: Reaching Out for Law School History by Paul M. Pruill, Jr., assistMt law librarian

MOSt law school graduates possess an assortment of relics (rom their student

days-class notes and COll fSe outlines, student handbooks and newspapers, Moot Coun brief's and so forth, fikod <Nr.r( In personal archi¥es, either as valued

documents or forgotten baggage. If you are a graduate of the University of Alabama School of law, thc School of law Library 'NOuld like to know what you have. There may be something in your files Ihat could round out one of the library's most Imponllnl collections. follow ing the school's recent Hugo Black centennial observances, Ck!an

Charles Gamble responded to it 8r(Moing Interest In the hi:ilory of Ihe law schoolIts studeots, alumni, (acuity and ad· ministration, The result was Ihc creation of a " History Of th e law School" com· mittee, and as pan of the aClivlUes of that commi U ~, School 01 law librarians are eval utlng thei r special collections holdIngs. They haYe found a wea!!h 01 materIals. For exarnl>te-in addItion to such scholarty publicat ions as 1hD Alllbllma Law loumal (1882·1885), (1925-1930) Clnd The Alabama Law Rev;(.!'w (1948-present), the IIbl'ilIY holds student nCVt'Spapers, in· house publications of the School of law, guidebooks, dlrC!Ctories and manuscript collections. Assistant law librarian David ~ h1l5 wrll1cn a compuler program so thc library C\'enluatty wilt be able to produce a bibliography of its law school-related books and l)<lpers. The special colleclions del)<lrtment will be occupying ex-

SludCrllS and facull'l of Ille UnlW:f$jty of A/aoonUI School of Law-probably taken around 1890

paneled quarters within a few months, so now Is a good time to seek nev.' sources of historical dcxuments. The librarians Ifl\I()'\.1XI are Interpreting Ihe phrase, "the history of the lilW school;' as broad ly as possible. They haYe cottt.'CIro (and are determined 10 c:olloo more) OIms and videos of lMY VVcck acllvlties, and hope 10 add 10 the

tlbrar'l's eX ISllng collec tion of photographs. Many publ cations bv Or about (acuity and alumni are available In the library, but the gealls 10 collect all such works-i ncluding working papers, dro1fts and memoranda gcnel'<lted during the process of tornposilion. The nbral)' welcomes the dOnation of class notes, seminar papers, Moot COurt

,anullfY J '388

briefs and OIherdocuments that speak 01 the history of legal Instruction. In many cases, collections d pelSOnal papers also arc welcomed . I( you are a potential donor to the library's "history of the law school" col· lectlon, please do not limit )QursEllf to the c<ltcgorles or types o( documents men. lionl.'<1 above. Your judgment of which materials reflea the history of legal education is likely to be a sound one. Qulle a number of agencies not directly connected with Ihe School of law Issue publications and reports having to do with the people and concerns of the school. MOreQYer, in order to sel up biographical flies on alumni ilnd facul· ty, Ihe library needs to have its own col· lection of the COfol/a (the University of Alab..lma yearbook), particularly th o~ Issues published before 1940. Copies of older Martindale-Hubbell are Importl'lnt for keeping track of graduJtes and

estJbllshlng "geneologies" of law firms with which alumni and faculty hlMl been associated. The library would be especially pleased to receive the following: The Alabama Law Advocate (Studen! newspaper), any Issue dated 1977 or I;)ter; The Alabama Law ReporlCr (Inhouse newsletter), any Issue dated 1972 or later; The Column (student nCY./Spaper), ...,Iume 8 (published In the 1985-1986 academic year); law ~ films or videos (Including student·produced satires) of any datc, certainly 198().1986; The Martin~/e-Hubbeli Law DIrectory (and ilS ancestors, Hubbell's Legal DIr«lory and Martindale's American Law Dlreaory) for the years 1870, 1872, 1875·1877, 188().1881,

1884,

1901.1910. 1912, 1915-1916, 192(). 1926, 1928·1929, 1931-1939, 1941-1943, 1945, 1947.1948, 1950.

To arrange (or donation of m1l.terlals to the special collections department of the School of Law library contact library director Cherry L. Thomas, (205) 348-1108, or assistant law librarian Paul Pru;u, (205) 346-1107. You may write to the UniW!rsity of Alabama School of Law library, P.O. Box 6205. Tuscaloosa, Alabama 35487. If pOssible, please provide a list 01 the materials you would be willing to donate. The library CM help find an expert evaluator If you wish to claim tax credits. Recently, the library received several faded copies of The Column from a librarian at the University of Wa$hi nglon's M.G. Gallagher Law library-proof thilt !here are plenty of hlSlorica[ materials waiting to be found .

•

1892·1699,

ILLUSTHA TlVE TOPICS CO VERED IN THE HANDBOOK ARE : _ __ I. Other Accidents on the Premises of the

Civil Defendru\l 2. Criminal History of an Accused

3. [mpe"chment of Witnesses 4. Rehabilitation of [mptachcd Witnesses 5. Cener,,1 Reputation Evidence 6. Other Injuries from Ihe Product of Ihe Defendant 7. Other Mi srcpr~nlilhons in Frilud ilnd Deceit 8. Past FAilures to Pay in Bad Faith Cases 9. Habit of a Civil Defend:II" to. "Other Purpose" Ihl les (or Admission of haractcr

Charlu W. Gamble

CHARACI'ER EVIDENCE-A Comprehensive Approach By Charles W. Gamble

OrderForm~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ::,-_ _ _ $2lI.OON<:h _ _ _ _ __ Ship To: Name _ _ _ _ _ _ _ _ _ _ _ _ _ __ Thlop<k .. ",du.l... ~w OO;AI-loo .... s,,\t.,."I".. SI ",~'"l'1'lnM ..... ILondh .. K51 25 Mail to; Adrlrcss _ _ _ _ _ _ _ _ _ _ _ _ __ ~ A':, W. ".0 1.7'J''tIt/I CY rlurUJ/lll~ CA'7llpU~ Uim,inllhnm. AL 3525'1 Atl orders muSI be l' I{E1'A II) . Allow o"e week for delivery. SignAture Make ch\.'C k ",1yable to AGORA PUBLISI liNG CO. mpln~'

J"./"".

The Alabama Lawyer

Ttlt~tS

.,,59'"

Building Alabama's Courthouses by Samuel A. Rumore, Ir.

The following contlnu~ a history of 11.1.1ama's county courthouses-their origins and some or the people who contributed to their growth. The AI.Juma Lawyer plans 10 tun one county's stor y

In each issue of the magazine. If you have any photographs of early or pre-

scnt courthouses. please forward them to: Samuel A. Rumore, Jr. M igHanico & Rumore 1007 Colonia l Ban k BuUdlng Birmingham, Alabilma 35203-4054

Madison County Madison County Is Ihe second oldest county in Alabama, second only 10 W.1Shinglon County. It W.l~ creared on December 13, 1808, \lY I)rodamollion of C(II.'tlrnor Robert Williams of the Mississippi TerrHory. It is also SOm('\\fh.l\ uni·

que in Alabama because all of ils courthou$Cs have been located in onc public S(IU:lre In Huntsville which w.lS dedlc,lIed to Ihal purpose. M~dlson County was named (or Jam!!s MadlliOn, who was sec. retary of stOlte, arid ho nl'WIy-elected presidenl of Ihe Unltt.-d Stat(!S. John Hunt ca me to the (If('a in 1805, and 5euled near the BI8 Spring. The Prol)erty was later purchas~ by Martin Beat· ty and then acquired py Leroy Pope, an early developer. Pope suggested the name of Twickennam for the tQ'#n local· ed around the Big Spring. This was the name of poet Ale>.ander Pope's home in

England . But on NO'omlber 25, 1911, the name wa ~ changed to Huntsville by popul", demand in honor of the first ~e1tler. The inilialterm of t'le oq>him's courl, comp<1J'ilble to today's probate court, mct ol'lthe first Monday in January 1810. The first Wrm of the Madison County Superi. or Court Of 1..1W ilnd EtfJity COI1~ned Oc· tober 1, 181D. The minut~ of the~' courts do not reflect the loc~tion of thc court sessions. Ho,o,-ever, by Nowmoor 1811 the first courthouse was cnmplcted to the (':0(. tent that J courtroom was In u~c (or the full term of the supeno r court. The original plat o( Twlckenham, later Huntsville, set aside an entire block for the public square. This block sat alop a rocky bluff approximately 75 feel above the Big Spring. Near the center of the block w<lS an devilled r/Xky knoll. The firM courthou~ and each succeeding ''Temple of Justice" ha\1? been built here. The first courthouse was a t'NC-story brick Slructure facing south . II was tOPped by a cupola, a wcathervane ,md a glided cagle. In the early d~, il SCM'<l as a religious, as well as ciyic, meeting place. The public squa~ bl'Cilme the hub of commercial activity. Mel many ~!Or~s surrounded Ihe square. On July 5, 1819, dlC Constitutional Convention ofthe Alao..lma Territory convened in Huntsvi lle, il'ld chose the town a ~ the temporary (apltal fro m Jul y through December 1819. The legislat ure met in Ihe county COUrthouse, and the firSt goYCtnor of Alabama, Wi lliam Wyau Bibb, was inauguraled In the ground floor COurtl'OOm. Alabama entered the

Union on December 14, 1619, and soon thereafter the capital was moved to Cahaba. 8y thc 18305 It became apiK'rent that M'ld~on County wou ld need a nC\N courthouse. Thtl 1830 census sh~ the coul'Ity ho lding nrst place In population and wealth In Alabama. In 1837 the old courthouse was sold ilt auction fOr $494 .1nd removed . The ten·foot elCllatlon on which the court house stood was graded, and construction began on a nC\N court· house, the second for Madison County. According to court recOfds, the building on the ~quare OYIned by Stephen S. E...... Ing was rented to serve as a temporary courthouse al'ld clerk'soffice from AuguSt 1837 to January 1840. The design of Gcorge Sk!Cle, a lOCal architect, was selected. The building WolS two-:.tory, stone and brick, with a domed top and full ba~men t . The tOldl cost was almroxlmllleJy $40,000. A four·faced dock WJS added to the lop o( the dome in 1649, and this second cou rthouse ~elVl-d Madison County until 191 J. Shortly after/the turn of Ihc century, Ihe citizens of Madison County again felt Ihllt thl;!ir co6nly had grown and that a new COllrthoyse was 11Cf!dcd 10 refl(lC1 the pro8re~~ they had made. On October 6, 1913, the county commission con· tracted to build a structu re o( lightl y col· ored brick with four entrJ nces. Fluled columns were used on il l! (our porticoes. The county courts were rell'lOYCd to the federal courthouse pending construction. On September 10. 1914, The Third MadIson County Courthouse w.s dedicated. The dock from the forme. COurthouSe

January

1988

was retained in the new structure. Milr slve doric columns supported the four entrances. In the ensuing years the county conti nued to grow, and by 1937 Ihe courthou$(! once again had become Inadequate to handle all activity of county goyernr'l'lent. An annex W<15 acquired and the courthouse building was renovated in 1940, Madison County and t-tuntsville experIenced their greatest population surge between 1940 and 1966. To a great extenllhls was caused by the growth of Red Stone Arsenal and Its significance, firS! to Ihe war effort oIWlrld War II, and Ihen to the Unit<!d States' SPilte program, In 1950, Huntsville'S population was 16,437. In 1960 It was n,360. By January I, 1967, the population was (lSlim,ued al 144,000. Planning for a nt!'N courthouse began during the 19605. A determination had to be made whether a new site should be selected. After much discussion and public input, the decision was made to build a modern skyscraper structure on the public square. The preliminary plans

The Alabama Lawyer

of architects I..o)d Kraner! and Thomas Jones were appf'O\.'Cd December 20, 1963, From September 1964 until Oecember 1966 courts were conducted ill Ihe federal courthouse located in the downtown post office, The first courts convened January 5, 1967, In Madison coumy's fourth courthouse. This Iiltest courthouse Is an lIÂˇstory structure of modern design

which (ost approximately $5,300.000. Numerous mementoes. slI(h as Illaqu(!S and cornerstones, remind the visitor to this building that three prior structures occupied the same si te. However, the long-r;lnge planning that went Into the construction ollhls courthouse should assure for the foreseeable fu ture thai the nced~ of Madison County wlU be served.

â&#x20AC;˘

Samuel A. Rumore, /r., Is a graduate 01 the University of Nmre Dame and the University 01 Alabama School 01 law. He served as founding chairman o( the Alabama State Bar's F.lmily f.aw Sec!lon and Is In practice in Birmingham with the (Irm o( Mlgllonlco & Rumore,

cle opportunities 28-29 PRO DUCTS LIABILITY

21-22 15

LEGAL WRITIN G FOR LAWYERS ADVA NCED STRATEG IES IN

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FAMilY LAW IN ALABAMA BirmIngham

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16-17 MEDICA L MALPRACTICE & RISK MANAGEMENT Sheraton \rV(lri d H Q1C~ I , Orl ando Medi-l.ega l lnSliM e Credits: 12.0 Cost: $425 (818) 995路7189

thursday

law Center,

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program) A lilbama Bar Institute for

Cmdlts: 3.8

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Credits: 11.8

Cos\: $425

(212) 765-5700

Doral-on-the-Ocean, M iami Practising Law Institute Credi ts: 10.0 Co~t: $350 (212) 765-5700

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REPRESENTI NG AG RICULTURAL CLI ENTS

Ramada Inn, C~nville M ississippi Center fOr CLE Cred its; 7,2 Cost: $110

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COMMERCIAL LAW APPElLATE PRACTICE Wynfre-; Hotel, Birmingham

Alabama Bilr Institute for elE Cred its: 6.3 CO;I: SBS (205) 348-6230

Civic Center, BirmlnghaJT Al abama Bar Institute for elE Credits: 6.0 Cos t: $85

(205) 348-6230

REAL PROPERTY Ra mada Civic Center Plaza, Birmingham

BANKR UPTCY fR AUD

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Cumberland Institute for ClE Credif$: 6.0

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28-30

Poin te at SqUIlW Peak, Phoenix O~fense Research Imtitute Cred its: 11.9 Cost: $395 (3 11) 94 4路0575

4-6 TR IAL TECHNIQ UES The VVestin Plaza, New York As~ocia t ion of Tria l lilwyers of America Crtroits: 15.0

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MI D.wI NTER CONFERENCE

CREATION, FINANCING & DISSOLUTION OF BUSINESSES

VVynfrey Hotel, Birmingham Alab<lma Trial law ye'S Association C,-roi ts: 10.5 Cost: $125 (205) 262-4974

Ramad a Civic Center Plaza, Birmingham Ala bama Bar Institute for elE Credi ts: 7.0

(20S) 348-6230

January 1988

SOCIAL SECURITY Atlanta IClE of Georgia Credits: 6.0 (404) 542-2522 RECENT DEVELOPMENTS IN ETHICS Atlanta leLE of G~r8ia Credits: 6.0 (404) 542·2522

11-12 lEGAL WRITING FOR LAWYERS I-iyau Regency Oil Capitol Hill, Washington Practising law Institute Credits: 10.0 Cost: $350 (212) 765-5700

friday

MAINTAINING & OPERATING BUSINESSES Ramada Civic Center Plaza, Birmingham Alabama Bar Institute for CLE Credits: 6.5 (205) 348-6230

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EMPLOYEE ISSUES IN BUSINESSES Ramada Civic Center Plaza, BIrmingham Alilbama Bar Institute for ClE Cr(!(flts: 6.0 (205) 348-6230 EMPLOYEE BENEFIT PLANS Atlanta IClE of Georgia Credits: 6.0 (404) 542-2522

19-28 BASIC COURSE IN TRIAL ADVOCACY San Francisco Association of Trial Lawyers of Americ.. (600) 424-2n5

21-25 EXPER IENCED PROSECUTOR COURSE Inter-Continental, Hilton Head Nntional Collegt! of District Auorneys (713) 749-15n

COMMON MALPRACTICE COMPLAINTS Atlanta IClE of Georgia Credits: 6.0 (404) 542·2522

IN SURANCE LAW R.1mada Civic Center Plaza, Birmingham Cumberland Institute for ClE Credits: 6.0 (205) 870.2865

AIR, WATER, HAZARDOUS WASTE/SUPERFUND L1W Center, Tuscaloosa (satcUl te I)rogram) Alnbama Bar Institute for ClE Credits: 4.0 (600) 253-6397

18-19 BRIDGE·THE.GAP Atlanta IClE of Georgia Credits: 12.0 (404) 542·2522

The Alab,lma Lawyer

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ADVANCED fAMILY LAW Rnmada Civic Center Plazil, Birmingham Alilbamn Bar Institute for CLE Credits: 6.0 (205) 348-6230

BAD fAITH LITIGATION Ramada Civic Center Piau, Birmingham Cumberland Institute for CLf Credits 6.0 (205) 870-2865 EffECTIVE LEGAL WRITING Atlnnta IClE of Georgia Credits: 6.0 (404) 542·2522

26-27 TRIAL EVIDENCE Allilnta ICLE of Georgia Credits: 12.0 (404) 542·2522

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4-5 BKIDGE-THE-GAP Civic Center, Birmingham Alabama Bar Institute for CLE Credits: 9.0 (205) 348-6230

13-16

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EXECUTIVE COM PENSATION L"lW Center, Tuscaloosa (s.l tcilite

program) Alabama Bar Institute for e lf Cr(.'(!It~: 4.0

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The Alabama Lawyer once again is sponsoring a writing competition for law student articles. The purpose of the competition is to help students develop thei r writing skills and knowledge of the law. Articles must be received by the Alabama Slate Bar no later than 5 p.m., April 18, 1988. Limit articles to no more than 20 pages (8 1/2" x 11 " ), double-

spaced , typed . The winner wi ll receive an award of 5250 and will be recogni zed at the stale bar's 1988 annual meeting in Birmingham. In add ition, the winning entry wi ll be considered for publication in the July 1988 Alabama Lawyer. NOTE: Papers written for a seminar andlor law review will be consi dered.

January 1988

Fellows nre chosen by the commission to spend a year, beginning In September, in Washington. D.C., at the Supreme Court, lilt! Fede",1 Judicial Center or the Administrative Office o( the U.S. Courts.

Bar Briefs

-Th~

Snodgrass eleclcd chair of national judicial college Judge John D. Snodgrass, presiding Judgc of the circuit cour1 in Huntsvi lle,

was elected chairman of the board of dl· rectors of the National Judicial College at a board meeting In October. Judge Snodgrass Is a graduate of Judicial College cotJlWS and has seNed on the board since 1983. He Is actlYe In the American Bar Association Judicial Admini stration Dlvl·

sion, tho Alabama Association of Circuit

Judges and the Alabama law Institute. He also $CI'\IeS on the Cumberland School of L;rw kh'lsory Boiard 1;Ind on the boards of the Central Bank of North Alab.lma and the Centf'al Bank of HlJnlsvilie. He earned his law degree at Ihe Universltv of Alabama law School, where he also eamed a B.S. In commerce

and business admlnistr.uion. The National Judicial College. located at the University of Nevada-Reno, Iralns

more than 1,500 judges per year (rom around the world, Affilitlted with the American Bar Association, NJC Is the leading Judicial education and training inslltution In the nallon.

1988 Law Day USA Theme I.(IW Day USA was established by United States presidential proclamation in 1958 and reaffirmed by a joint resolu· tion of Congress In 1961. The purpose of law Day USA, ceiebl(lted annually on May 1, Is to I'CSerw a "S1)e'(;131 day of celebration by the American people In appreciation of their liberties and to pr~ vide an occasion lor rededif;ation to the ideals o( equality and justice under liI'NS.~ The 1988 then\t.', "legal Literacy," encourages Law Day programs and events 10 urge all citizens to increase their knowledge and underslLlnding 01 the law. State and local bar associations, libraries, community organizations, schools, churches, law enforcement agencies, service clubs. leg31 auxiliaries and scouting organizations <Ire ilmons the m;;lIlY groups which sponsor Law Day US/\ progrilms and ever\t.S. The Alabama Lawyer

The events af(! numerous and varied, ranging from mock trials conducted In schools, court ceremonies. poster Ilnd essay contests to television and radio call· In programs. Domin ick selected as a Judicial Fellow for program's 1987·88 year Mary F. Dominick, a member of the Alabama State B,n since 1962, has been selected as a Judicial Fellow (or 1987-88. Dominick receillCd her B.A. and J.D. degrees from Vanderbilt Uniycrslty and an l L.M. (rom the Parker School of Foreign and Comparatlyc law at Columbia University. She most recently has been n lecturer and research associate at the Max Planck institute for Comparative Public law and international law at Hei· delberg. Germany. Her duties there Included reporting on current legal devel· opments in the Unitl-'d Stales, writing (or the Encyclopedia on Ptlblic International law ilnd teaching a course on American private law at the University of Heidelbell!. Dominick also has worked In the NC!therlilnds, Swi tzerland, Belgium, Frarlte and the United Stat~ concentrating on the institutionll aspects o( legal and political systems. She will be assigned to the Administ!ative Office althe U.s. Courts. The program, established 15 years ago, Is patterned arter the White House and CongreSsional fellowships.

Richard Wilson & Associates Registered Pro fessio nal Court Repo rt ers 17 Mildred Street Mon tgomery, Alabama 36104

264-6433

Third Brdnch

Bar Commissioners elecled in the September Issue ci The Alabama Lawyer, biographical sketches and phOtOgraphs 'NCre published or newly.elected Alabama State Sar Commissioners. AI the time of publication. In(ornlatlon on Drayton N. James and William M. Bouldin was unavailable.

James

Bouldin

10th Circuit. Place 118 DRAYTON N. IAMES, born January S, 1938, Selma, Alabama; graduated (rom Auburn UnIversity, 1961; University of Alabama School of law, 1969. Cal)tain, United Stales Marine Corps, 1962-66. Served on Executl...e Committee, BirlTl+ ingham Bar Association, 1983--85; member, Alabama Stale Bar Committee on Characler and Fitness, 1986-87; member, advisory board of Jefferson Counly Fam· lIy Court, executive board of Alethla House (United w.r.t agency). Married to former Billie Walker; daughter, Tracy. 34th Circuit WIlliAM M. 80U LDIN, born June 2, 1938, Collx!rt County, Alahama. Crad· uated, 1963, University 01 Alabama School of law. Practices with Guln, Bouldin & Alexander, Russellville, Alabl:lma. Member, Franklin County Bar Assocla· tlon, Alabama Slate B.,r. Alabama Defense ~rs Association, Association o( Trial lawyers of America .

• )3

Attorneys Admitted to Bar, Fall 1987 Dorothy Agn~ Agnew ...... , , .... Madison, Brccman Neal AInsworth, Jr. .... , Birmingham, Roger Carl Allen . " " " . , . , . , , Montgomery, Mortimer Pa,kcr Ames, III ............ Selma, Suzanne Cotham Ashe ......... BirmlnBham, William Alfred AusliU "", ... , . Birmingham, Jefforey Craig Bailey ....... , ..... ,Alabas/er,

A/iloamil Alabama Alabama Alabama

Alabama It.labama AlabamiJ Alabama Alabama Alabama Alabama Alabama Alabama Alabama Alabama Alabama Alabama

John Benjamn Bancroft ......... Blrmlngham, Judith long Banks ................. Mobile, leslie Runco Barbour .......... Birm ingham, Susan Wade Barr .............. Birmingham, Wanda 10 Wollace Batson ....... . Sylacauga, lack Mason Beard, Jr . .......... Birmingham, John Thomas Bender ....... , .. , , , . , Mobile, Jeannie lynn Bennett .. , ..... , ... Huntsville, ZonJa Renee Blackmon , ............ Dothan, Ralph Bohanan, Jr............ , . Birmingham, Randall Harry Bolen ......... , , BirmlnBham, ~/abama John Norman Bolus .. , . . , ...... Bltm lngham, Alabama Alecl 801vig. III ... , .. , ... , ..... Bltmlngham, ~labamiJ John Dewey Bond, III ,." ...... Bltmingham, A/iJoomiJ Terry Buse Boutwell ... , ....... , ... Pensacola, Florida Aaron Eugene Bradshaw , ..... ,., .. Daphne, Alabama William Marcu~ Brakefield ....... TU5cllloosa, AliJbama WIlliam Charles Braswell, Jr. ........ Hoover, Alabama Clyde Ellis Brazeal, III .......... Birm ingham, Alabama lester MOrton Bridgeman .... . , ..... Mobile, Alabama Faulkner Eu~ne BrodnaK , ...... Birm ingham, ~Iabama Steven Clyde Reed Brown ....... Birmingham, Alabama joseph Hiram Calvin, m ., ..... . , . Huntsville, Alabama jeffrey Keith Carder ....... , .... Birm lnBham, Alabama Karen Hazel Carr ........ , , ... ' , , , . Mobile, Alabama Virginia Glider Carruthers , ...... Birmingham, Alabama Tobin Keith Clark ., . . . , ......... Huntsville, Alabama John Carter Clary ................ BC5$emcr, Alabam,l Jack Richard Cohen , .......... Montgomery, ~/i.lbama Thomas Coleman, Jr. .. , ........ Birmingham, Alabama Audrey loan Connolly , . , .. , .... , .. , Mobile, Alabama Christopher Edward Connolly ....... , . Killen, A/abamit William TImothy Copeland ......... Gadsden, Alabama Richard ErnElit Corrigan .. """"" , ~ lIanla, Ceotsla Monica lynne Cothran , ... , . , ..... Pra/tville, Alabama Forresl KeIth Covinston ......... Birm ingham, Alabama Stewart McKinnon COK ......... Birmingham, ~Iabama Bobble Shilw Crook , . , , , , .. , ...... DOlhon, A/abamiJ

Mark Adam Crosswhite ......... Birmin8ham, Alabama Michael J. Crow ....... . ...... Montgomery, Alabama John James Crowley. Jr. • , .. •.•• , .. , , Mobile, Alabama Janet Jordan Curtis ................. A!i,wra, Georgia Kerry Stewar1 Curtis ......... , ... , .. A!lan/il, Ceorsia Henry Clyde Dailey, Jr. ",.", . . 8;rmin8hil m. Alilbama Marla Renee dlllbcrtl .......... Birmingham, !olabama William Daniel 0 11101'1 ......... MonfgOrrtery, Alabama

Clarence Dortch, III ....... . ...... Tallade~ ~/abama Ronald Tyrone Dudley, Jt.. . . ... . Birmlngham, Alabama Hugh Bryan Dye . ...••.•.•.••. Birmingham, Alabama Patrick Fain Dye, Jr . ........... Birmingham, Alabama Mark Christopher Eagan .. . ..... Birmingham, Alabama leslie Ellis ................... BirmlnBham, Alabama Melissa vaughn Erwin ............. Madison, ~Iilbama Daniel Brian Feldman ., ..... ,., Homewood, Alabama Jackie Dale Ferguson .......... ,. , Hartsel/e, ~Iabama Kathryn Dananne Ferrell , .. "., .... Daphne, ~Iabama Clark Dale Fine .............. , Birmingham, ~/abama John David Floyd , , , , ............ Gadsden, ~/abamiJ Janice Garner Formato .......... Gardendale, Alabama Roianne t-toulton Frith ......... Motl/gomery, Alabama MMlla Elizabeth Fuller , ...... , . Birmingham, Alabama Cynthia Talley Funderburk . ........ Prattville, Alabama Timothy Oavid Garner . ........ MOllfgomery, Alabama Anna Glattlna .",." .. ,., ..... /'Iomewood, Alabama Anita Sheree Gifford , .. ,., .... , Birmingham, Alabama Grellory William Gill .. ,."". , Montsomet)', Alabama David William Glanzer . , , . , .... Montsomet)', A/iJbiJma j;)mes Tony Glenn .......... , ..... Hodges, Alabama Kay Elizabeth Godfrey ., ... , .. , .. HunlSvll/e, Alabama WIlliam 8radley Goodwin ..... , . Birmingham, Alabilma Bryce Uraldlnc Graham, Jr... ..... TU5cumbla, Alabama John Mack Gmcn .. , .. , .......... . Moblle, Alal,.,ma John Mark Greer . . .... , . . . , . , . Montgomery, Alabama William Bradley Grcte ... . ... . .... Springfield, Virginia Charles louie Grlzzel, Jr. . " .. , .Blrm/ngham, Alabama James Kenneth Guln, Jr, ... , , .... Carbon Hili, Alabama Keith Durell Gunter, Jr.......... Birmingham Alabama Thomas Holmes Guthrie, Jr, ....... Hunl5vll/e, Alabama Michael lee Haggard ... , ... , . , .. TU5cumbla. Alabama Barry William HaIr ........... , Birmingham, Alabama James Edwards Hall, II ............ Florence, Alabama Billy Jordan Hand, Jr, ." ....... Birmingham, Alabama Michael Jack Harbin . , , . , . . .. , . , . Eight Mile, Alobama

January '988

Teresa Camille Harris .......... Montgomery, "'Iabama William Moody Harris ... .. . .... . Panama OW, Florida Charles Edward Harrison ..... . ..... Daphne, A/ilbama Danlul Tara Haskins .. . ........ Mont80mery, Alabama Alicia Kay Haynes ............. Birmingham, Alabama Rebecca Jeneane Haynes ........ Birmingham, .... ,abama WIlliam Sidney Haynes ........ Montgomery, .... ,aooma DarTon Code Hendley ..... , , . , . Birmingham, .... ,abama Boyett Judson Hennington, 1Il .â&#x20AC;˘â&#x20AC;˘. Birmingham, Alabama Maxwell Cordon Herrington, Jr. .. Birmingham, Alabama Mark Dilvid Hess ............. MOntgomery, Mabama Pamela Ryan Hiebert ........... Birmingham, "'/abamil Mary Elizabelh Hildreth ............ Atmore, A/abamil Samuel Mark Hill . . . . ... . ......... Pc/ham, Alabama David Elliot Hodges .......... Vestavia Hills, "'/abama 8roox Garren Holmes, Jr............ Mobile, Alabama Robert Milton Hope, Jr.. ....... , .... Mobile, Alabama Rodney Neil Hyatt ..... , ....... Blrmlngilam, Alabama Anne Carson Irvine .. , , . , , .... , .... Mobile, Alabama Robert Gerald Jackson, Jr. .. , .. , , , , , . Mobile, .... Iabama Dwight McKenzie Jett, Jr........... Har~lIe, Alabama Joseph Albert Jimmerson .... , , , , .. Hunuville, .... ,abama Winthrop Edward Johnson ...... Montgomery, .... ,abama George Edward Jones, III ...... . Montgomery, II/abama John Fletcher Jones, Jr, , ..... ,' .MOn/gomery, Alabama Joo Ah:1f) Joseph ............... Homewood, Alabama Grover Patterson Keahey, Jr. ..... Birmingham, Alabama Patricia Kaye Kelley ................ ,Bullet, Alabama Joshua Oscar Kelly, III ........... Hunuville, "'/abama Paul Van Kilpatrick, Jr. ...... ,', .. ,Columbus, Georgia David Richard King ........... . Birmingham, .... /abama Waiter Stewart King .............. Sheffield, Alabama John Fred Klngren ........... , ,Birmingh,lOl, Alabama Richard Mark Kirkpatrick . , .... , ... , ,Elberta, Alabama Jason Paul Knight .... , ...... , .... CuI/man, Alabama Robert Keith lang ................ Moulton, .... ,abama John Michael Lawhorn ............. Mobile, .... ,abama Mark McCarroll Lawson ... .. Birmingham, Alabama Alex Brock Leath, III ...... ..... 8;rmlngllam, Alabama Michael Edward Lee . . ..... Springville, Alabama John Anthony Lentine ......... . /JirminBham, Alabama Ellen Ruth Leonard ..... ....... MOniBomcry, ",/abama Paul Stephen Leonard .......... Birmingham, ""abama Laura Elizabeth Lewis . . . . . . . ... Northport, Alabama Mark Edwynn Lewis .......... . .... Mobile, Alabama Sandra Holston Lewis ......... ,Birmingham, Alabama Sarah Jone lindsay , , . . , ... ......... Mobile, Alabama Elena Antoinette Lovoy .. ......... Hunuville, Alabama James Kris Lowry .............. Birmingham, .... ,abama David Vance lucas .............. Hunuville, Alabama

The Alabama Lawyer

Robert Entrekin Lusk, Jr. ........ MOnigomety, Alabama Thomas Jeremiah Mahoney, Jr.... /JirminBham, Alabama J(lmes Edward Malone ........ ...... Marlella, Georgia George Alvin Martin, Jr. ",.... . . . Mobile, Alabama Gordon Gallalee Martin .......... , , . Washington, DC Bernard Paul Matthews, Jr........... Mobile, .... /abama John William Mayer , .. , , , , , , , . Montgomery, .... ,abama Melinda Etheredge McClung , , , , ,Birmingham, Alabama Stephan Land McDavid , ............ Mobile, Mabama James Hamil McFerrin . , , , , , , ... Birmingham, Alabama William Henry McGowen, III .... Birmingham, Alabama Frances LeMoyne McLaney .......... Mobile, .... /abama Bobble Champion McSherldan ....... Lincoln, IIlabamCl Mary Beth Meyer ............. ,Birmingham, II/abamCl Barl Gordon Miller ............ MOnigomcry, .... labamCl Dent Miller Morton ............ Birmingham, .... /abama Dick Wilson Mount, Jr... ".,., . Blrm /ngham, Alabama Sally Robin Mozley ", .............. Allama, Georgia James Russell Murphree, Jr. "" ,Montgomery, Alabama lohn Harrington Nathan ........... . Moblle, .... Iabama Frank Lawrence Nelson , ........ Birmingham, .... ,abama Kenneth Allen Nixon ... ,',."., .. Saraland, .... ,abama David Barry Norris, Sr..... , ... , Birmingham, ""abama Edward Andrew Norwood ", ... Mont8omery, "'Iabama Christopher Glen Outlaw ", .. ,. Birmingham, Alabama David Ray P"ce ...... , ........ Birmingham, Alabama Robert Leslie Palmer ... " ...... Birmingham, Alabama Kenneth Mark Parnell .......... Birmingham, ,.,/aOOma Harold ScO" Patrick ..... , ...... Phenix City, Alabama Ralph John Perry .. , , , ............. Mobile, .... Iabama Donald Saxon Pillman .. , , ... , , , .... Decarur, Georgia Adam Michael Porter ........... Blrmlngh,lm, Alabama Eunice MaTOna Posey .......... Mount Olive, Alabama Alice Higdon Prater ...... , .. , , ,Birmingham, Alabama Harland Irby Prilter, IV ......... Birmingham, .... ,abama COnstance Kuklo Pritchett ........ Tuscaloosa , Alabama Archibald Thomas Reeves, IV , , ...... Mobile, .... /abama Patrick David Roadruck . , ....... CunlCrsvillc, Alabama John Charles Robbins ., ........ Birmingham, Alabama Amy Lee Robertson .... , , , , , , , . Birmingham, Alabama Jackie David Robinson .......... Tuscaloosa, AlabamiJ Dell Yarbrough Rollins "",", ..... Mobile, ,.,Iabama David Jamison Rutledge .,',., .. Birmingham, ,.,JaOOma Dorris McDowell Samsil, Jr... , .. Birminsham, "'Iabama Deborah Glee Sciascia .. , .......... Mobile, "'Iabama Peter Andrew Seitz ............ Birminghilm, Alabama S~ble Gibbs Sellers ........... . MOnl8omery, A/aboma Joan Bledsoe Sheffield .......... Blrminsham, Alabama William Eugene Shreve, Jr .. " ....... Mobile, Ala1>ama Jane Ol>itz Shuler ............. Blrm ln8ham, Alabama

Fern Singer .......... Blrm ln8ham, Alabama Andrew lackson Sinor. Jr . . , ..... Birmingham, Alabama Bradley Jerome Sklar ........... Birmingham. Alabama James Daniel Smith . ........... , . Millbrook, Alabama Kathy Dianne Smilh . . .... , , , , , , ,ArlinBlon, Virginia Larry Edward Smith ................ . Ja sper, Alabama MldlilCl Allen Sml!h ""', .. ,.,"" Mobile, Alabama Selma Dingler Smith ,."""".". , Mobile. Alabama William Franklin Smith, II ••... , . Birmingham, Alabama Michael Sharp Speakman .......... ,Auburn. Alabama Robert HenlY Sprain, Ir. . ....... Birmingham. Alawma Frank Johnston Stakely . ........ MOn/gomery, Alabama Anne Byrne Stone .......... , .. Birmingham, Alabama Allen Richard Sloner ......... , , , , . Hartselle, Alabama Joseph Whitsitt Strickland ....... Blrmln8ham, Alabama Elizabeth Ann SIuhldreher "" ,Stone Mountain, Ceorsia James Robert Sturdivant , , , , , , . , . Birmingham, Alabama Lori Sue StUltS .. . . . ....... , . , ... , , Dothan, Alabama Clayton Thomas Sweeney ....... Birmingham, Alabama Charles Clyde Tatum. Jr. .... . . , ..... ,Ja sper, A/,lbama Mary Elizabeth Thames ......... Montsomery, A/ilwm.l William Gordon Thames. Jr..... , MOntgomery, Alabama Robe" Cleston Thomas, Jr.. "" .. Homewood. Alabama Leonard Charles Tillman ,."". ,Birmingham, Alabama Stephen Pagt Todd .... , ........... Omhan, Alabama James Arnold Tucker ..... ,", ... .Cape Coral, Florida Robe" Edwin Turner .. . . ....... MontlJOmcry, Alabama Tannic Boice Turner, Jr ... . . ,.," ,AnnlslOll, Alabama Martin Eric VaM ..... .... .. , . Vestavia Hills, Alabama

Jordan Dorman Walker, Jr ...... M o nt8omery, Alabjlmjl William Waldrum Walker, Jr ...... Tuscaloosa, Alabama David Banks Walston .......... Blrmln8ham, Alabama Kendrick Emef50n Webb .... ". Montgomery, Alabama William Bowen Welden .. , .. ". Birmingham, Alabama Christopher WIlliam Weller , , .... Birmingham, Alabama David Cleveland Wesley , , , , , . , .... Hartford, Alabama Herbert HarOld West. Jr ...... , . , .... Mobile, Alabama Kenneth Eugene White, ttt .. ....... Columbus, Georgia Curtis lee Whitmore ... .. .. . ..... Hunl$ville, Alabama Datford R, V. Widner ................ Ar... b, Alabam... Dhlie Dawn Williams ", ... ".,. Crove Hili, Alabama Cilda Branch Williams , , , ..... , , , , , BolI~, Alabama Mark Jefferson Williams ..... , .. Montgomery, Alabama Thomas Packer Wl1Iinghllm ...... Birmingham, Alabama Sue Ann Willis ., ............. Birmingham, Alabama Anthony Clark Willoughby ...... Birmlllgham, Alabama JohMle Rimdall Winborn ....... , .. Florence, Alabamll David Dele.. 1 Wininger, Jr ...... 8Irmlngh.lm, Alabamll Mark Christopher Wolfe ............ Mobile, Alabama Edward Kirksey Wood, Jr ........ Birmingham, Alabam.1 Allen Cerald Woodard , ........... lJofhan, Alabama lois Smith Woodward . , ..... , , , Birmingham, Alabama James Marlon WOOten ..... , , , , Montgomery. Alabama Douglas Alan WrighT ... . ........... ,Killen, Alabama Grant Arnold Wright ............ Tllscumbia, Alabama Thomas Jeffery Young .... , , ........ WashlnSlon, O.c. Michael Anthony Youngpcter .. , , . , , , Daphne, Alabama

•

Fall 1987 Bar Exam Statistics of Interest Number Si lting for eX(lm , , . , , . , ................ . Number

. ... .. .. ...........•. , """

certified to Supreme Court ..

Certlncatlon rate ... .. . ....... .

, 369

. ..... 240

. ..... 65,.

Certification percemages: University of AlaOOma . , ,. ,. ........ .. ..... . .... . . , . Cumberland ........... , " ,., .. Alabama nonaccredited low schools ...... ....... . ... . . .... .

. .. 85% .72% . .. 25%

/anuary 1988

::I ~

The Alahama Lawyer

Lawyers in the Family

Adam Michael fbrrer (1~B7) ilnd John F. Porler, /1/ (1978) (ad路 m/Uce & brother)

James Edward Malone (1987); /vdye Kenneth F. Ingram (/963) and Kenneth F. Ingram, If. (/986) fadmittee, father-In-law 8.brolher路in-I,m)

Clark Dale Fine (1987); Joseph L. fine,lr, (1963) and J. Craig Fln~ (1983) (adm/tiel!, larner &- orother)

Thomas Coleman, Jr. (/987) and Thomas Coleman, Sr. (1942) 8. falher)

(admilt'~

Dayld Barry Norris, Sr. (1987) and Rober! McKim Norris (1976)

(adminee & brother) January 1988

w.-tyr'>e::"2.;~;,~::':~~~,1,. (:8~"~Io;'~dB,L. Copeland (19 42); and

N. lames M. Copeland & brother)

William B~n \o\t>lden (1987); Charles V. \l\@lden, Ir. (1964)

and Charles V. \.-\t>Iden, 11/ (1986) (Bdmillec. falher &- brother) The

Alabama Lawyer

(admluee. cousin, blher. uncle

Randall Harry Bolen (1987); H. Ralph Bolen (1952) ilnd Ralph J. Bolen (1977) (admillcc, father & brotller)

, lane Opitz Shuler (l9B7} and Frank C. Shuler, Jr. (/983) (ad. miflee 8,. husba nd)

Anne Byrne Stone (1987) and Norborne C Stone, Jr. (/947) (admiflee & fblher)

Dixie Dawn Williams (l9B7} and lee B. Williams (1956) (ad路 miuce & father)

Bryce Ura/dine Graham, Jr. (1987) and Bryce Ur,lldlne Graham, Sr. (1950) (adm/flee & (lither)

January 1988

~~~E~;'~~II~I (19S8~7)~;:R. Marcus Givhan (May 1987) ~nd W. Blackwell, It n9n) (admiltee, cousin & uncle)

~ary Elizabeth Hildreth (/987) and Emmefl F. n96J) (admitlC'C &- fa l her)

/.ori Sue Stutts ('!J87} and Phillip G, SWtfS (1985) (admiflee &- brafher)

The Alabama Lawyer

Jr.

P.w/cla Kaye Kelley (1981); lohn W Thompson, /I (1969) and James J. Thompson, Jr. (1969) (adm/flee & uncles)

Thoma5 Ho/mllS Cmhrlll, If. (1987); Paulcla Cu th rie Fraley (1982) and lohn M. Fraley (1982) (adm/lIce, SiSler &

hrOlher-ln-lawJ

(1962); /. Thomas King. Ir. (1976); and I. 'Thom;, (admillce, cousin, brother; brother & fa/her)

Arch/bald Thomas Reeves, IV (1967) and Archibald 1. Reeves, 11/ (/956) (adm/lice & falher) 42

Joseph Hiram Calvin, 11/ (1967) and Joe H. Calvin (/947) (admillce & falher) January J 988

Linda S. ~rry (l982) and Rlliph John Perry & iJdmitlee)

Joseph Albert Jimmerson (I987) and J. Thomas King, If. (1976) (admlflee &- brQfher-in-/iJw) The Alabama LaWjief

;;;;i7j ~;;;;;",h""

Ivf/chael Allen Sm;lh (1987) and Karen Hazel Carr (1987) (coâ&#x20AC;˘

admiflees, husband &- wife}

MeLE

News by Mary Ly" Pike Assistant Executive Director

SOMETHINC NEW Prlnted on the following page is ,he ~ann UilI repon 01 com· pllance" form for 1987. If you have n~t already submittro one, yOu miIY submit It, listing your bolf number, full name, firm or organlz~tlon. mailing address, office telephone number and birlhdate. Please remember 'He are required to

maintain and use an office address. unless there Is none or you are prohibited from receiving state bar mail at the of·

flce. Full names are I>referred to avoid possible confusion of similar names. 1981 ClE TRANSCRIPT Also printed on the form is space for IiSling apprQlle(! courses attcndC!d during 1987. Inquiries regarding registration for courses should

be directed 10 thc organizations that cooducted them. TEACHING CREDIT is earned by leaching lawyers or law students In appraYed elE activities. If a substantial handout was provided, &.0 credIts per SO minutes of instruction may be claimed. If the require(! handout was not provid. ed, only 10 credits per 50 minutes of In· struction may be claimed. Repeal presen· I:\Ilon5 qualify for one-half the credit earned for an Initial presentation. For purposes of calculaling teaching crt'(lit, panel discussion lime must be divided equilily among the panelists, unless Ihe Commission is informed otherwise. If a law school cou~ was ta ught, you m;Jy claim &.0 credits per liJW school credit earned by students taking the course, e.g. , 12 .0 ClE credils for 2.0 academic credits. Repeated or second section law school courses qualify fo r one-half Ihe credit earned for the initial course offering. CREDIT SUMMARY When all courses have been li sted, please figure atten· dance credits, teaching credits, total credits and 1988 car~r credits, then enter the numbcf$ln the box In the iQ'lo'er right-hand corner of the form .

1988 CARRYOVER CREDITS Attorneys

subject to the CLE requi rement must report 11 minimum of 12 .0 credits for 1987. If 12 or more were brought forward from 196&, 12 of those credits are used for 1987, the remainder are lo~t lind all credlls earned du ring 1987 may be car· rled forward to 1988. If less than 12 were brought forw.lrd flOm 1986, take thaI number and add to it enough 1987 credits to make 12. The remaining credits earned during 1987 3re carryover credits for 1968. SUBMISSION Of REPORT forms are to be submitted to the MCLE CommisSion no lahlr than Ja!"Iuary 31, 1988. Keel>" Ing a cof)')' Is recommended (or documentJtion of tax deductions, obtaining or renewing ptolesslonal liability insurance, applying for employment or promotions. etc. LATE FILING Any attorney subject to Ihe requirement whose report has not been re<:eived and appr()'le(i bv January 31, 1988, 15 due to be certified 10 the Disciplinary Comrrission, unless II deficiency plan h a~ been appr()'le(i (pro-cedure below). Any report received after that date must be accompanied by a check for S50, made payable to the Alubama Stale Bar, and reports nol so accomP<'nled must be returned to the al· torneys who submilled them. DEfiCIENCY PLANS Ntorncys were required to earn 1981 elf credits during thc calendar year, January 1 Ihrough December 31, 1987. Those few who did not may make up thei r credits between January 1 and March 1, 1986, if: (1) a letler Is submillcd bot JanU31)' 31, 1988, staling the dales, tl:les nnd sponsors of appfOOJed courses to be atlel'ldedi a!'ld (2) appr()\lal Is given by Ihe Commission. Cou~ listed muSI be accrediled, not requiring submission of an uppllcatlon bv a sponsor. The pi<an must be fulfilled by March 1, 1988, and the report received by the Commission no later than March 15, 1988, accompanied by a check for S50, made payable to the Alabama State Bar. AMENDMENTS of reports may be accepted thrOllgh March 1, 1988. The simplest procedur! Is 10 submit a photocoPY of your file COf)')', adding cou~ omltted ano marking It uamendcd" in the upper riaht·hand corner. EXEMPTIONS Any exempt attorney

wishing to report credits must do SO by January 31, 1988. Repo!1soi credits earned submilled after that dale must be accom· panled by a laIC filing fee of SSO, In the form of a check made plly3ble to the Alab.1ma Stute Bar. 1987 ALABAMA STATE BAR AD· MlnEES are exempt from earnIng credits or filing reports; ~ If credits have been eamed to Carryover to 1988, they must be reported no later than January 31, 1988. (Claim exemption ':-\.1 AGE 65 No one who allalnoo the age of &5 before 1987 is required to submit a form . Anyone who became &5 du ring 1987 may claim exempllon '"8" this yeM ilnd should not hear from the Commi$slon again. RULE 2.C.1 EXEMrTlONS (Ire available for full·time judge$, Olcnlbers of the U.S. and Alabama House and Senale, actiV(> duty military and (InofllC\'5 prohlbl t<!d from private practice by constitution, law or regulallon . (Claim (:Xemption He:1 AS5iSI~ nt attorneys general, disuict anorneys and assistant or deputy district attorneys are flot exempt. SPECIAL MEMBERS (exemplion "0") are those who did nol practice law In Alabama after January I, 1987, and paid 1986-87 special membership dues 10 the Alabama State Bar. (Many such members refer to this as "inactive status:') Those who are not attorneys employed bv the S\ilte of Alabama arc L'Xcmpt from earning credits or n1lng reportS; ~r, If credits ClfC 801ng to be used for 1988, Ihey muSI be reported bot January 31, 1988. ATTORNEYS WHO HELD A REGULAR, PRIVATE PRAcrlCE LICENSE during any part of 1987 are requlroo to report 1987 compliance, even if Ihey have changed 10 $pecial or Inactive SlalUS, or changed from special 10 active status before December 31, 1987. INQUIRIES The \IOlume of telephone calls to be handled bot the Commi5slon's limited staff Increases tQ an almost im· possible I~I at 11'1 15 time of year. Written Inquiries will be appreclaled; the ad· • dress is on Ihe form. J£lnuary 1988

ALABAMA STATE BAR MANDATORY CONTINUING LEGAL EDUCATION COMMISSION ANNUAL REPORT OF COMPLIANCE EARN A LL CREDITS BY DECEMBER 31 , 1987

SUBMIT THE WHITE COPY OF

nns FORM BY JANUARY 31, 1988.

OUR FilES SHOW TH E FOLLOWING INFORM ATION

LIST AH.Y CORRECTIONS BELOW

" . ... ~_ I P

110(1, "C,I NO, FU L L NA ME PI~ .. O~ OfIQAN,UTION

" N,...

~~~ CITY, ' TAU l iP COOIi OPP OC:I I'ttQN I Nu .. BU

• 'I

1987 CLE TRANSCR IPT CAT!

COUASE TITLE

SPONSOR

ATTfN DAI'fCE

EXEMPTIONS _ _ ....

CREDIT SUMMARY

I 6ECAME A II EM86.A OF Til E "'LASA ..... alAn eAA DURINO lM7.

__ 8, I ReACHED THE AGE OF., DURI NO OR B6.FOFl6 IGe1 ,

TEACHING

I)ITI'IA

CRiOIfI

EA IIN ~ D

IN 1_

__ C, 'A" :

_ _ A FU ~~- TI M i JVOOE

OAIOIll EARNID IN 11107

__ " M E M ee:~ 0' TH ! U.S, HOOS! 0 /'1 Se NAT! __ ... M! M8I!ft 0 ' TH ! v.a. "R MEO 'ORCES.

TIAOHIMQ OIlt:OITIIlAIIN ED IN 11117

_ _ ... MI!MS!ft 0 ' THE ALABA.. A U! DISLATUR E __ PROHIBIT ED FIIOM THE PRIVAT E PI\ACTICE OF LAW BY CONSTIMIO,. , LAW OR AEQUI...lTIOH

TOTAL

__ D. _ _ E.

1'0611101'1 :""'""';;;;==;;;;-;;;;;;;0,-;;;;0-_ _ _ __

IXTIIA OllEOIfI EARNED IN 11107 TO BE OAIIIII ID I'OAWARD f Oil OI'llOil IN 1lI0II

Il'1ElD'" BP!CI ... l MEMBERSHI P DUlli NG 'Nl. I HAV! RECEIVED ... W... ,VER FADM TH E Me lE COMMISflI<m.

• The Alabama Lawyer

BUSINESS VALUATIONS

NOTICE

stockholder disputes CS UltC planningocharitable giflS

taXtS·dillorees acqu isitionsldi vestitu res esops'faimess opinions intangi ble asselS

United States Bankruptcy Court Northern District of Alabama

Contact:

Opening for Ihe position of Clerk, U.S. Bankruptcy Court

(404)97].62 14

in Birmingkam, Alabama Salar y: 563,135-$72,500 JSP16

Member

Closing date for applications: January 25, 1988, suggested or until fi tted

Mitchell Kaye, CFA, ASA

American Society of Appraisers President-AtJanUi Chapler TIle Ins lilUte of Ch~red Fjnnnci ~1

AnalysIS

Court Testimony and

I.R.S. Experience

those who need quality office without a 101 • attOrn oys • manufacturer's reps

• a rchitectl, en~ i neer s • investment broken • occa vntonts, CPAs • small busineu venturos

·NEW EXECUTIVE OFFICE SUITES· compl'" w ith 1 ~ 1I 1"' ''(I.j(l l, 10nllo,l. 01, moll handHnv .,.vic,., "I,phon' answ. , ing, confe.enc. loom, .tce p. tlon 0"0 ,

·OVERLooKING 1-65, HOMEWOOD.

POSITION DESCRIPTION : The clerk of the CClUlt Is a high-I ~I management position which functions under the direction of the Judgcs of the coun. The clerk is responsible {or managing the administrative activities of the Court which include mailers relating to the court's policies and procedures, personnel, budget, procurement and data processing activi ties. QUAlIFICA1'IONS: A. EXPERIENCE 1. General: A minimum of ten years o{ progressively responsible admini stra ti ve experience in public service or busl· ness which pra.oides a thorough understanding of organi:l;(ll ion(ll, procedural and human aspects in managing an Ofganization. Expericm:e with coml)uter systems would be helpfuL 2. Management Responsibility: At least three of the ten years' experience must have been In a position of substantial management responsibility. Appll. cant al so must have experience In personnel management. 1 PraCtice of \,(Jw-A(tive Prilctice: An attorney who is In the active practice of law In either the public or private sector may substilute said aCti ~ practice On (I year.for-ycar basis for the managC!mcnt or administrative experience requirement. B. EDUCATION Bachelor and graduate degrees In accoun ting, judicial, publiC or business administration Of a law degree are di'slr:..ble. EDUCATIONAL EQUIVALENTS 1. Undergraduate: Education In a college or unlycrslty of rtCOgnlted standing may be substituted (or a maxlmulTl o{

three years of the requlrccl general experience on the basis of one acadCll'r'llc year of education equals nine months of experience. A bachelor's degree from the college or university of recognized standIng mtJy be substituted for three years of the requi red generall;lxperience. Prefer· ably such degree should have included courses In IlIw, g(M;?rnmen t, public, business or Judicial administration or related fil;llds. 2. Postgraduate: A po~tgradua te d~ gree in public, business or judicial admini$lfation from such il college or university may be substituted for one additi onal year of the required general experience. 3. legal: A degrl!C from an accredited IlIw school may be considered <IS qualifying for two additional years of the req(llred general experience. SELECTION PROCEDURE: The Judges will review all applications and select the most qualified for personal interviews. (No funds are available for reimbursement of Interview i'xpenses.) TO APPLY: Submit in quadruplicattl a resume or SF ]7] (Applicati on for Federal Employment) to:

Honorable George S. Wright, chief Judge United St<ltes Bankruptcy Court Northern District of Alabama P.O. 80x 3226 Tusca loQ$a, Alabama 35403 AN EQUAL OPPORTUNITY EMPLOYER

•

January 1988

Young Lawyers' Section YLS Passes 50!

y resolution adopted February 27, 1937, by theAta-

bama State 8ar Board of Sar Commissioners, the Young Lawyers' Section of the bar was established . The original nome of Ihe organi:r:ation was the Junior Bar Sec-

Charles R, Mhon, Jr. YlS President

tion; it was changed 10 the Young Lawyers' Section In

1965. Having recently passed Ihc 50th ,lnnivcf'SJ1)' of the founding of YLS, I thought It would be appropl'iate to share with you the past presidents of this organililtlon: 193 7· 1938 1938· 1939 1939· 1940 194().194\ 1941 . 1942 1942-1943 1943-1944 1944. 1945

1945-1946 1946-1947 1947-1948 1948-1949 1949- 1950 19S()'1951 1951·1952 1952· 1953 1953-1954 1954-1955 1955- 1956

19560 1957 1957- 1958 1958-1959 1959·1960 196().1961 1961·1962 1962-1963 1963·1964

196"·1965 1965-1966 1966-1967 1967·1968 1968-1969 1969-1910 1970-1911 1971 · 1972 1972·1973 1913·1914

The .... ,abama

Georgc A. LeMalwc Daniel T. McCall. Jr. Bry.ml A. Whitmire

Robert K. 6f!1I Vln«!nl F. Kilborn

T. Julian SIIlnner. Ir. Roben W. Gwln

TU$COIIOOSa

Mobile 8irmlngham Huntsville Mobile Birmingham Bessemer

Johfl W. VardDmafl Edwin t. Hatth Lee I. Porter

Gadsden

T.O. Howell, Jr.

Mobile

James W. Garren Herman W. Maddo~

JaSper

Ann lSlon Monlgoml'!ry

Montgomery

Thoma, G. Greavcs, Jr. Rufus Bealle

Mobile

John W. Glb~n Herndon Inge, Ir. \i.T. Ormond Pl:alph A. Franco Wallcr R. Bya~, Jr. George PeiKh Taylor Herman H. Hamillon, Jr. H. Vann Waldrop N. Manly Yelldlng. Jr. ErSlclrWl Smilh Donald t. Coutnl Euel A. xrews, Jr. Eugene M. Mtuln, Jr. finis E. St. John. lit Ben S. Nettles L. Llsler HIli D. 8rowam Sejrest M , White Thomas S. Law5OJl. Jr.

Troy

.urnes

james l. North Ernest l. Potter

Lllrry Morris

Lawyer

Tuscaloose Mobile TUSC,1I00sa Monlgomery

T,OV Birmingham MOn1gomery TuscalOOSII Birmingham Birmingham BIrmingham Montgomery

'-Iunuville Cullman Mobile

N . lee Cooper Alto V. Sansone William Michael House Fournier J. Gale, III C. Lynwood Smhfl, Jr. Robef1 l . Polts Joseph T. Cilfper11ef Randolph P. Reaves

Blrmlnaham Montgomery Montgomery

81rmlngham

Huntsville Florence Montgomery Mon~ry

I. Thomas King. Jr.

BirmIngham

Edmon H. McKinley Robert T. Meadow~, III J. Oernam Brannan, Jr. ClaIre A. alack

ThomalYllle

AlIbllrn Montgomcry

Tuscaloosa

Bar admissions On OCIOber 19, 1987, the Young Lawyers' Section welcomed new yOung lawyers into the state bar. At the L111 bar admissions ceremony, once ag.lin ably coordinated by Laura Crum of Montgomery, tnt-se bright, eagcr young people heard from such distinguished speakers as Ben Harris, presidem of the state bar. and Reggie Hamner, el(' ecutlve secretary. Following the swearing·in ceremony, Robert L. Pons, II former YLS Ilresldenl and now general counsel for the University of Alabama System, g.we an inspiring speech during the luncheon portico of lhe program.

American Bar Associalion activities On October 22·24, 1987, several Alabama young

Montgomery

Mobile HunUvllie Mon'somery Birmingham

Huntsville Ale~andcr

1914-1915 1915·1976 1916-1977 1977· 1916 1978· 1919 1979·1980 1980-1981 1981 -1982 1982·1963 1983· 1984 1984. 1985 1985- 1986 1986-1981

City

lawyers participated In the A8A-YLO Afflnate Olltreach Project program In Kansas City, MissourI. This program presents an outstanding opportunity for our memDers to learn of variou s public scrvlce projects being presented by other yOtJng lawyer sections. This year, Claire Black, Immediate past president of the Alabama State Bar YLS, and Keith NOrm an, president of the Montgomery Young

Lawyel'5' Section and a member of the YlS Executive Committee, served on iI panel discussion concern in!:! state-wide public service projects. Claire and Keith specifically discussed the Alab..1ma Youth Judicial Project. They did an outstanding job in their presentation, {IS they have with the program, and I believe th«t other young lilwyer groups throughout the natiOn will wan t to consider implementing this prosr"m In their Mates. Besides servinson the panel with Keith, Claire also was vel)' acti\!(! In the presentation of the entire program as sht'! Is a member of the !'Dr team. Jim Priester from Birmingham also was Instrumental In the K<lnsas City meeting <IS an AOp team member. Rick Kuykendall of Birmingham is vice chairman of the Labor and Employment SectiOn of the AB!\-YLD. Pl!rcy [)adham of Birmingham serves as an editor of the

Member Net Newsletter, published In conjunctior\ with the Membership Support Network of the ABA-YLO. Percy published an article in the fall 1987 i$$ue, entitled "Practicing Law Bl..>yOnd the Courtroom DoorS."

Alabama-Georgia ioint meet ing On October 31, 1987, the Alabama Young

La~rs'

Executive Committee

had a wonderful time meeting with the

Executive Coundl of the Georgia Younger lawyers Ir'I Blrmir'lgham. The Georgia lawyers came to Birmingham to enjoy the sights and sounds of the dty, Including horse racing. Following a Friday nighl social event, the respective committet>S held a Jo[nt m~tlr'lg at the Pickwick Hotel and then adjourned for separate business sessions. It WJ S an outstanding opportunity for lawyers from the two states to exchange ideas, and we

Introduce Your Clients to a Valuable Service. l~fur them [0 Business Valuation Services for expert determin:Ulon of f.lir rm.rkCf value of businc..;scs, and financial anal)'liis and consultation in cases of;

o &1:ate planning o Estate settlement o Marital dissolutions o Recapitalizations o Employee stock

0 Banknlptcy proceedings 0 Merger.> or acqu.isition.s 0 Buy-scll agreements 0 Dissident stockho lder

owncrsh.ip plans suits Comac[ Dr. John H. Davis, ill 4 Office: llark Cirtlc • Suite 304 • Binningham, AlJbama 35223 P.O. nox 7633 A • Binningh:I.I11, Abbama 35253 (205) 870-1026

look forward to future mcctlngs of that kind. " lawyers Helping lawyerS" I OIl'll pleased to report that Tom King of Blrm[ngham, a former Young Lawyers' Section president ilnd nQW chairman of the state bar's CommitlEe on lDCal Bar Activities and Services, has appolr'lted a vigoro~rs s~rbcommitt~, chaired by loring JOr'les of Vestavia Hills, which Is actively promoting the "lawyers Helping Law~l"§" program. Elsewhere in this publication you will see an advertisemerIt concerning this program. The concept is to p.lir an inexp(~ricn cl..>d lawyer with a more experienced attorney to provide guid.mce and assistance. This program is being Implemented with the able aSsistMce of Steve Shaw, our Young Lawyers' representative on that subcommittee, and certainly i$ a worthwhile effort. Montgomery Coonty Young lawyers' Section activities On October I, 1987 th~ MOr'lt80m ~ry Young L..<rNyers' Section sponsored a hap. py hovr for lawyers lind It!gal assistants. More thar'l 75 peopl~ aUr:!r'Ided the festivities which were held at the Montgomery Marina on the Alabama River. As II service project to the bar, the MOr'ltgomery County YLS spor'lsored a bridge-the-gap seminar and reception ThursdiIY, November 12, at the new Montgomery County Cou rthr)u se. Speakers represer'lted the Montgomery County Cou!'t administrator, the Montgomery County District Attorney's offi ce, the United States Attorney's office, the Alabama Attorney General 's office and judges from both the state and federal courts. Each speaker offered personal inSights and practical SUBBcstions foryo~mg lawyers with limited practi cal experience. [n add[tiOr'l 10 the short presentations, materials were dlstr[buted Indudlng local rules, courthouse floor plans and r'lames and telephont' numbers of court personnel. Following the presentiltion, iI reception was held for <III speakers and a"endees. The program W,lS well-attertded lind those attending rece[ved three hours of ClE credi t. •

'anuary 1988

Recent Decisions by J(lhn M, Milling. Jr., and David B_ Byrne, Jr_

Recent Decisions of the Alabama Court of Criminal Appeals Mulhern reaffirm ed Borden v. Stille, 7 Diy. 691 (October 13, 1987)-Borden and his son were indicted separately for Irafficklng In marijuana In violation of § 20-1-80(1), Code of Alabama (1975), and possessIon of cocaine in violati on of §20-2-70. The defendants were tried Jointly and found guilty. On ap!>e;al, the Bordens relied on Mulhern v. Stale, 494 So.2d 787 (Ala.Crlm.AI)p. 1986), ilnd ilrgued that the prosecution did not prove a prima facie case of trafficking in marijuana because it failed to prt::JYe that the amount of mmljuana contalnt.'<l with· in the pl;ant material wa s In excess of 2.2 PQunds of marijuana- the amOUnl requlr1!d by § 20-2-80. In Mulhern, supra, the Alabama Court of Criminal Appeals declared: "Therefore. while there cv!tUlnce Ihat the lOMI weIght d green ptanl material pos~ssed by Ihe appellant was In excess d 2.2 pounds, Ihere Is no ~Idence rhalthe quanIlly of rNriJuana contained wllhln Ihal 100ai ~I~hl Ii INl8reen planl material WitS lufficlenl 10 satisfy Ike requisite amoont found In Ihe enacting clauseol S 20-2-80. Code of ,.t,labama 1975."

The

Alabama Lawyer

In a unanimous opinion authored

by Judge P,merwn, Ihe Alabama Court of Criminal Appeals ilgreed with the Bordens and reaffirmed the doctrine of Mulhcrn. In Borden, Dr. Ronald I-Iubbard, {I chemist wilh Ihe Alabama Department of forensic Sclen~ testified about his examination ol lhe plant malerlal found in len stale eKhlblts. In describing the con tents of Ihese ~ hlblts, he was asked about each exhibit. His testimony In regard 10 nearly all 01 the exhibits w~s similar to the evidence found Insufficient in Mul· hem. As Dn ex.lmplc of the insuf-

Iohn M. Mi/f/ng.

Ir., 15 a member of Ille firm of Hill, 1-11/1, CarlCr, Fronco. Cole & 81i'Jck In

MO'l'gomery. He is a gri'Jdualc of Sprlns Hil/ Col/esc and !he Unlvcrsily oI ... /abama School of /..Bw. Milling CoveN the civil portion of Ihe dp.cisions.

ficiency, the court of criminal appeals quoted the following lestimony pertaining to SLlte'S exhibit 29: "One clear plastic b<tg conlalnlng plant material revealed the presence of mariJuana. The total ~i8hl was 4.0 grams." Judge P.1tterwn's opinion dearly recognized that Hubbard's t~limony supports Ihe premise Ihat the Bordcns were in possession of a qu;antity of green plant material In exc;eS5 of 2.2 poullds. HO'oVeYt!r. the testimOl1f failed to specify tha t there was in C10CesS of 2.2 pounds of marijuana contained in the planl material. The court reasoned as follows:

David 8. 8ym£', If. , is a graduate oIlh£' University of Alab,.1ma, whcre he

f('Cc;ved both his undergr.Jdu~IC and law OOSn?<>5. lie /5 a member of t1l£' Monl8Offl£'ty firm of RoQi5Qn & Belser ilnd CCNefS Ille criminal portion of Ihe decisions.

~From !he tesllmony. we are unable to conclude whether all 01 the! 9.94 pounds 01 the plant material w;}s mariju~na or whelher a cerlaln quantity 01 marijuana Win included among Vilrious and assorted other plont malerl",s."

Issue o f FirS! Impression- federal Youth Correclions act cannOI be "conlliction" for habitual ()ffender sl aWs Milam v. Stille, 3 Dlv. 74S (October 27, 1987)- Milam pleaded guilty to one coun t of third degree burgl<lry Imd one count of $eCond degree theft. AI sentencing. the state fT1O'Ied to ltM)ke the Alabama Habitual Felony Offender Act, § 131\.5-9, Cock of Alabama (1975), based upon a prior conviction In the United States District Cou,t . The defendant objected to the use of the prior conviction on the ground that the conviction was under the Fedetal Youth Corrections Act, 18 U.S.C. § 50101b) (repealed by Pub.L. 98-473, 1984). Proceeding under the Alabama Habitu<ll Felony Offender .A.ct, the trial coun sentenced the defendant to three years In the penitentiary, suspended upon the condition thaI the defendont serve one year In the county iall. The court 01 criminal appeals. in a case of first Impression, r(M!rsed. Judge Pal· terson, writing for a unanirnous COurl, held:

'1'hls State has not heretofore addressed this Issue. H~r, we arc perSUllded by the reasonlnll all(! conclu· slons n:!~ In the federill decisions cited aboYe that once a conviction under the Fedelal ~th COHt!ction:i i\ct Is §eI Hide orexplunged bv tOe Coul'l., that conviction Is v.lC,ned aoo a.n haYe 1'10 further operal!ve effoo, More specifically. we hold Ihat a conviction un· der lhe FedcliIl Youth Corrections Act which has been sct aside or exl>ung,oo pul1uant to the Act cannot be used for enhancement purposes under lhe Alabama Habitual Felony Offender i\ct.~ Overw helming evidence of gu ilt d oes not render p rejudicia l error harml ess under rul e 45 Nail v. Stale, 4 Div. 927 (October 27, 1987)-HaU was convicted of intentional murder and sentenced to life Imprisonment. The trial fudge charged the jury on both Intentional and re<:kles~ murder. Proper obfe<:tion was made by Ihe de-

fense counsel. A long line 01 AI"b<lma cases recognize that the court's charge constiluted reveJ'lible error. Ex parle W<1Shingf()n, 448 So.2d 404 (Ala. 1984); See also Mallhews v. State, 491 So. 2d 1087 (Ala.Crlm.App. 1986); Bell v. Slate, 455 So.2d 1022 (Ala.Crlm.App.1984). The anorney general argued thai the charge on reckless murder was abstract and without preiuoiee because "the undisputed and unconfllctlng evidence was of an Intentional and only nn Intentional homicide:' In a unanimous opinion authored by Prl!sldlng Judge B<Ywen, the Alabama Court of Criminal Appeals focused the Issue as follows: "The proper Inquiry hell! Is not whether evideOC4l of the defendanr'$ lIullt Is overwhelming but, Instead. whether II substantial right ri the delend~nt has or probably has been adYilf» Iy affected .. , Overwhelming evl. dence of lIullt does not render preJudicial erfOl' harmless under Rule 4S, Alabama Rules ri Appellate Proctdure. See Ex parle john1lH1, 507 So.2d (1351, 1356 (Ala. 19661 ..• Here, Hall had a c.onstltutlonal rlsh! to be Informed of the nature and the CilUSC of the ac.cus.~· tlon against him. 'Mtshln8!On, 446 So.2d at 407.406 Under \<\iuh lnSlon, we unflOl say thJt the denial 01 this cons tltullonal riSht constituted harml~s ('fror on Ihe !><Isis of speeu· Imloo as 10 what the lury mlsht hiM.! done h~ the Improper charse not been slven.~

Recent Decisions of the Supreme Court of Alabama-Criminal Rule in Montsomery overruled Bickerstaff II. State, 21 A8K 4683 (September 18, 198i'J- Bickerstaff Wi'S con· victed of manslaughter. The court of crimInal appeals reversed, holding Ihat if a Significant peritxl of time lapses bet'Aleen the time of a traffic accident and Ihe lime witnesses observe a party In\IOlved in the accident arId conclude that he was Int(»(leated, and It Is shown that during that Interim the party had access to alcohol, then as a matter of law, the witnesses cannot testify thill the party was into)(icaled al the time of the acciden t. On cerl, the Sup~me Court cl Alabama ~m!d and ()Y(!rruled lhe court of criminal appeals' decisIon In

Montsomery v. Stale, 44 Ala. 129, 203

So.2d 695 (1967). Justice Adams' decision pointed out three factors to be v.-elghed In determln· ing whether a dciendantls, In fJ ct, InlO)(Icaled at the lime of the offense: (I) testi· mony of the witnesses, (2) access to alcohol and (3) Ihe amount of lime between Ihe commission of the offense and Ihc observation ollhe dl!fendant. In the court's opinion, the be"er rule 15 Nthat a driver's drunken condItion after an automobile accident can be a fJct from wh ich the iury could Infer Ihat he was driving Ihe aUlomoblle white In th31 condillon:' Thus. the requiremem lhal the state show thaI the derendant did not hiI\IC iH;cess to, or consume, alcoholic beYerages after the accident now is ~m()Yed. Issuing worthless check a lesser included offense of theft by deception Oliver v. State, 21 ABK 4879 (September 25, 198i'J- Mook adYCrtised a man's ring for sale. The defendant called In response 10 the ad and agreed to por· chase the ring and IWO other pieces of Jewlery. The defendant paid for the jewelry by writing a chock drawn on a closed account. The evidence at trial indicated Ihat the defendant knew the account was closed when she wrole the check. Defendant was IndlClt<! by the Mont· !lomery County grand JUly fOftheit by deception, § 1]A-8-2(2), Code of Alabama (1975). During the trial, defendant filed a written motion request!ng \he Idill court to charge the Jury on the offense of Issuing a worlhless check, suggesting thllt It WilS iI lesser Induded offense under theft by deception. The Irial court denied the mOl ion. The supreme courl, through Jusl ice Maddox, revflrsf!d and held Ihat the trial COurt errf!d when It refused to charge the Jury on Issuing a worlhless check In vlolalion of §1lA.-9·11.1, as a lesser included offense cllheft by deception, The law Is clear that a defendant Is entitled 10 a chalBe on a lesser included offense if the~ is any f(.'<l$onable theory from the evidence thai 'M)uJd suppon the poSition. Chavers v. State, 361 Sc.2d 1106 (Ala. 1978); Fulg/lam v. Slate, 291 Ala. 71, 277 So.2d 886 (1973); and Williams v, Stille, 474 So.2d 178 (Ala.Crim.App. 1985). The court funher SI<ltOO: January 1988

~In this case, the Issuance cI a 'M'.lrthless chC(k can be esmblished by the slime f;lcts as the charged offense of theft by deception, The only factth~t Is necessary to pnM! theft by decel)llon that Is not required for """,,Ing the issuance of a v.of1h1ess check Is the etement of deception:' Drug enchancement statute precludes use of subsequent drug conviction to trigger Alabama Habitual Offender Act Chambers v. Sl.1te, 21 A8R 4944 (Seplember 25, 1987l-Defendant waS Indicted for trafficking in marijuana, but a jury found him guilty only of felony posse$siOn. The state proved a prior drug offense, and, pursuant to Ihe Alabama Habitual Offender !\ct, § 1JA..5-9(a)(I), Ihe Irlal court sentenced defendant as a habitual offender 10 20 years Imprisonment and a $10.000 fine, On CM to the S llpr~me court, defendant contended thallhe Habitual Felony Offender Acl was Inapplicable to en· hance his conviction for a drug-related offen se on ilCCOUn! of a prior drug-related offense. A unanimous supreme court agreed and f(!\'e~ . During one <k.>fendant's sentcncing. the state presented sufficlen1 documentary evidence to establi sh that he had a prior conviction In Flodda for the offense of ~sale of a hallUCinogenic drug," which had been affirmed I1t' lhe Florida Dislrict Court of ApPeals for the First Circuit. Defendant argued thm hc should have been sentenced according to the pt'O'Ilslons of Code of ..... Iabama (1975), § 20-2-70, which provide Ihatthe penalties for the subsequcm offenses rela!1ng to possession of marijuana shall be imprisonment "for not less than l\YO nor more than 15 years, and, in addition, (a fine of) nOt morc than $25,ooo.OO,~ The supreme court agreed with the defendant that Ihe Habitual Felony Offender Acl Is not the proper IlCnahy enhancement provision 10 be appl1ed. In an opinion authored by Justice Beatty, It was held: U8ecause lhe senlel'lCe Is appUcable to drug oHenses and rf!pE!al drug 01· lenses are prooold«! within tke Controlled Substances N:t, v.1l hold that defendants convicted thereuflder must I.itJ sentenced accordlog to Its prooolslQns, nOl the seniencinJ proYlslon 01 Title 1l"~. (emphasis the court\) Hcw.oever, the supreme court carefully pointed out In a footnote that they did

The Alabama Lawyer

not reach the Issue of whether a prior felony drug conviction could be used under the Habitual Felony Offender Act to enhance the punishment fOl' non-drugrelat<ld felonies.

Recent Decisions of the Supreme Court of Alabama -Civil Accountant malpractice ... lorl or contrac tl Esther 0. Blumbers. el OIl. v. ToucheRoss &- Company. etc., 21 ABR 4nJ (Sep\{~mbcr 18, 1987)- l ouche-Ross, an ilCcounllng Orm, agreed In writlng to provide accounting selVices, i.c., to examine Blumberg's balance sheet in accordance with generally acceptoo auditing stan· dards. Touche-Ross failed to disclose a material overstatement of accounts receivable and Blumberg fl ied an action in assumpsit. Touche-Ross malnlained that the alleg(.>d malpractice was tortious only ar,d b'lrred by the stallJtc of IImiiations. The trial court agreed with Touche-Ross and granted its motion f()( summary Judgment Blumberg appeals. In a case of first in'll)~sion in Ala· barna, the supreme court held that If an accountant enters Into an express agreement 10 perlorm his dulies In accordance with generally accepled standards of his profession and he docs nOl, the Injured contracting party may lue for breach of contract or he may sue in tort, The supreme court Initially looked 10 Ihe NC'oY York state courts which have distinguished personal InJury cases (rom those Involvln8 proper\)' or pecuniary Interest. In the former, the action 15 said to sound essentially In tOrt. In the laller, where there is a conlractual agreement, the tendency has been to allow the pl[llntiff to elcct between contraci and tort, In Alabama, one who expressly promises 10 use due care is liable in both tort and contract when his nl:!gllgence results In injury. He Is liable In contract for breach of an express promise \0 use due care. He is liable in tort for violating the duty imposed by law on all people not to injure olhers by negligent conduct.

Civil procedure _ .. rule 55(c) discussed Ex Pdrte: Illinois Cenlfal Gulf RlJ llrood Company (In re: Faye Horlon, elc. v. II·

lino;s Cenlfill Culf RlJllroad Company, el a/. ), 21 ABR 4818 September 21, 1987)-

Horton served ICG's agent on AU8ust 2. 1986. The summons was received by ICG's altofl'ley on August 6, 1986, and opened by a secretary. Inad',<Cf1ently, the complaint was not brought to the attention of the answering allorney unlll September 4, 1986. Horton applied for a default on September 4, 1986, and the trial court made Ihe entry of default on September 5, 1986. HOllon proved damages on September II, 1986, and the court entered a default judgment against ICG on September 12, 1986.ICG was not Informed of the dnmagcs hearing. ICG flrst learned of the entry cJ default on September 12, 1986, and of the Judgment of default on September 16, 1986. ICG's attorney moved to set aside the entry of default on September 12, 1986, and rnOYC<!tO vacate the default judgment on September 19, 1986. The trial court denied ICG's mollon 10 set aside the default, and ICG appeals, maintaining thllithe trial court abustXllts discretion. The supreme cout! agreed. The supreme cout! noted that ICG's motion was a rule 55(c) A,R.Clv.P. motion, Ha.vever, Ihe trial court apparently treated the mOlion as a rule 60(b) motion which requires the mqvant to prove inler alia, "e)(cusable nes,lect:' The supreme coun slated that rule 55(c) con· templates a more liberal e)(ercise of the trial court's di scretion In favor of selling aside default judgments, While the movanl does not hiM! to show ClOCusable ne-glea, Ctc., to prevail, a trial judge will be affirmed when he denies a mollon where the mewilnt Is found to have inlenllonal· Iy engaged In conduct evidencing disrespect for the JudIcial system. Language in EIIIOIt v, SlCphcns, 399 So.2d 240 (Ala. 1981), 10 the contrary 1$ expressly overruled. klditionally, movant also must offer proof of a meritOrious defense to .he aClion, whether the molion Is filed pursuant to rule 55(c) or rule 60(b). Courts. , • contacts necessary for in personam Jurisdiction Delro InduWiC$, Inc. diM .. Cannon v. Evans, 21 ABR 4895 (September 25, 1987)- Delro is a wholesale diwlooior of swimm ing pools locat ed in Massachusetts. Delro made credit sales 51

of equipment and accessories to Swim 11me Pools, iln AI;abam;a corporation. All orders wme made by mall or telephone from Alabama. Evans Is an Alabama resident who ex· ecuted a guaranty agreement in Florid;a that provided he would personally guarantee payml!nl of every claim Delro h;ad against Swim 11me. Swim Time bankrupted (M'lng Delro money. Delro sued Evans In Mossochuselts to enforce the guoranly ogreement and obtained a default judgment. Delre filed Ihis present aClion 10 enforce IhM default judgment. The trial court found that the Massachuse1ts 001.111 did nOt hlM1 person· (II jurisdiCtion over Evans, and, therefore, the Judgment was not entitled to (uti faith ;and credi t In Alabama. The supreme court agreed. Evans' ContaCISwith Massachusetts In· cluck'CI three vi~ ilS 10 at1end "pool shows" put on by Delro. Evans also placed an order (or Swim Time while in Massachusetts. All other orders were (rom Alilbilma. The Alilbilmil Supreme Coun noted Ihilt the United States Supreme Court has held Ihat "purchase$ ;and related trips, standing ;alone, are not a sufnclent basis for a State's assertion of Jurisdiction" over a non·resldent In a cau se of action unrelOled to those I)Ur· cha ses and trips. EViin s' vi sits to M(lSsilchuselts had no relation to the cJilim on the gUilr,lnty lIgreement ilssertOO I.'i O¢lro In Ihe M;ass;achusells court.

Estates and wills, , , rcl'll(Wal of signature page revokes

will 8Oc~rd of Truj te!'$ of the University of Alabama v. Calhoun, etc., 21 ABR 4484 (September 11, 1987) - Mrs. Bourziel ex· ecuted wills in 1973, 1978 and 198), with

a codicil added ill 1985. Each will provided (or the establi shment of a scholar. ship fund at various universities In Alabama. The 1985 will expressly I'(M)ked all prior wills :md codicil s. The 1983 will W(lS found In the deceased's safe deposit box, intaC! excepi for thc last paSc of Ihe will, whi ch contained hcr signature. The last page had been removed from the will and WilS not in the safe deposit box. The boilrd of tru stees ilttempted to probate Ihe 1983 will without the signature P<JSe. The prObate court would not accepllhe will on the ground that it wa s effectively revoked when the signature page wa s removed. The trustees appealed. The issl.le belore tae COurt wa s wh t'!ther the Ilhysical act of removing and discarding thc signature !><lge from the body of the will, accompanied by the requi site statutory intent, complies with section 43·8·136(b) requirements for revocation. The supreme court answered Ihe question in th e affirmative, SeCtiOn 4)·8·136(b), a~ interpreted by our supreme courl, requi res thai Ihere be a "m(lterial mutilatiOn" of the document. The supreme court noted that an essen· tial element In the execution of a will is the signature of the testator, or a substitute as provided for by statute. Withou t the signature, there c,ln be no will. Consequently, if the deceasl.>d Intended 10 rewke th e will, no more ef· fectual physical means of doing so could have been resulted to, short of total destructi on of the document. Moreover. since the will was in the possession and control of the dec:eascd, there is a rebut· table presumption that the missing signature pilgC was removed and deStroyed with the inlemion of r~kin8 the wilL

SMITH· ALSOBROOK & ASSOC. EXPERT WITNESS SERVICES • Tire ConSl,lltlng • Almltlr& explosions • Trallic accident reconstruction

BOBBY O. SMITH, B.S., J,O.. Pr"ld, nt p.o. Box 3064 Opett k• • Al36803 (20SI1~IH 54'

I nsurance ...

Alabama Insurance Guarant y Associa ti o n Hea lth insurance paym ents d o not reduce associ ati on's obligati on s under statute AI.lbilma Insurance Guaranty Assocla· tion v. Stephenson, et al., 21 ABR 4938 {September 25, 1987)-Stephen50n W{lS in an aCCident with Cummings and sued fordamagcs. Cummings had liability insurance with St.1rldard Fire Insurance Company of Alabama, whi ch Is In receive rship and, thu s, under limited operation by the association. Stephenson Wil5 11 member of iln employee health benefit plan ilt her place o( empll7y'ment and Blue Cross was its administrator. Blue Cross paid medi(al bellefitS on behalf of Stephenson and has a subroga. tlon claim against Cummings. The association filed a declaratory judgment ilclion asking the court to declare that it was entitled to deduct (rom its obligation imposed by stiltute any ilmount pilld to Slcphen$()n 11)' Blul! CrOSS. The trial court ruled adversely to the association, ;and the supreme court affirmed. In a case o( first Impression In Alabama, the supreme court held that Blue Cross payments to Stephenson 1;)11 within the exception of secti on 27-42·3, Alii. Code 1975, and Inerefore are not subJecI 10 Ihe non..(jupll( alion provisions of section 27-42·12, Ala. Codi! 1975. The supreme court notoo that section 27-42·3, supra, exempts " life annuities, disability, acc ident and health .• , Insurance." Therefore, the Insurance guaranty statute docs not apply to health insurance policies, and Ihu$, the claim tiled by Stephenson with Blue Cross is not a CO\ICred cllllrn, Accordingly. the non· duplication provision In the statute docs not apply. •

Spcciilllzlnlt In t;~llCrt Th,Unlon y Indu~lrL,1

"" Construction ,\ celden" "

r RE D ~ Pamana Av~ .. Homewood Birmlnllham, AI, 35209

MEL 0 ..

(205l879·5159

Il.w uary 1988

Sections of the Alabama State Bar Sections are groups of attornt>y5 inter-

ested in particular areas of Ihe law. Membership in most Alabama State Bat sections Is volunt.ry; attorneys 36 years of age and under, or oomlned three years or less, automatically are members oJ Ihc

Young

law~rs'

Section.

Administrative Law Section membErs arc lawyers inler·

ested In admlnlstri\li-..e proceedings at the

federal aod Slale Ie.oels. Members Include gOYernment attorneys as well as private practitioners. The sooion presents a proBram during the IIMu,,1 meeting of the

Slale bar and has been aClive in the implemenTation 01 the Alabama hlministra· live Procedure Act. The section al~ sponsors the Eugene W, Carter mt.>dallion, an award given annually to a former

public servant for excellence In bal"ncing Ihe rights of individuals against the interests of g()\l(!rnmenl. Officers (or 1987·68 arc Gcofge E.

Hutchinson, chairman; Jack Mooresmith, chalrman-ele<:t; Ron I. Bowden, vice chairman; and AI L. Vreeland, secretary-treasurer.

Bankruptcy and Comme rcial law The primary purpose of the Bankrupt. cy and Commercial \..Qw Section is to fadlltatecommunication among its members concerning bankruptcy and com· merclallaw matte" and legal d~isions, with a vit!w tQlNard promofing coosistent application of these liIWS In the various districts and circuits of Alabama, The sec· tion has four standing commluees: bank· ruptcy practice; commercial practice; ClE lannual meeting; and communica· tlon$lneowslelter, Additional comml Ttccs arc aJ>l)()inted 01'1 an ad hoc basis. The sect/on sponsors ClE programs and law school writing competition and also is involved In promoting legislation needed In the com· mercia I law practice. Officers for 1981-86 are Larry 8. \bit, chaIrman; Lee R. !Wnton, chairman· ciCCI; Robert B. Rubin, secretary; and E. Terry 8f'O'tVn, treasurer.

The Alabama I.;Iwyer

Business Torts and Antitrust Law This section is concerned wi th business litigation, including antitrust, trade regulation, Interferen ce wi th busl· ness relations, defamation of business, stockholder litigation ~nd employment relations. An annual seminar usually Is held, entitled '~ntjtrust and Business Torts." Meetings also are held during the annual meeting of the state bar. The 1987·68 office" are George G. lynn, chairman; Andrew P. Campbell, vice chairman; Und~ A. Friedman, secretary-treasurer; and Jonathan H. Waller, newsletter editor. Corporation, Banking and Business UlW This section is Involved In projects of Interest to every member of the bar. The SE!Clion 'NOrks with the Alabama Law in· stltute, reyising the corporate laws of Alabama, and publishl5 iI neowsletter for section members. The 1987-88 officers are Ralph F. Mac· Oonilld, III, chairman; Howard P. Walt· hall, vice chairman; and Curtis W, jones, sC(retllry-treasu rer. Criminal Law The section is comprised of bar members having an interest in m<ltters relilting to the crimina! Justice system of stilte and federal courts. Membershl l) Is open 10 all members 0( the Sta le! bar ex· pressing an Interest, The area of criminal law Is changing constJn tly and provides many OI)pOnunities for actiYe discussion and Input. The 1981-BB chairman Is AI Penning' ton of Mobile. Environmental Law Services and activities of the section are PfOfesslooal impw.<en"lCntln Ihe field of environmental l;r.v, analysis and reporting to members of dC\lClopments In the field and communication with other lawyers practicing in the environmental law areil, The 1981·88 officers are Russell C. Stoddard, chairman; R. Craig Kneisel,

vice chairman; and Neil C. Johnston, secretary. Family Law This section of the Alabama State Gar was established in 1984. II publishes a newsletter for the beneOt of famliy law practitioners. It also has a legislation subcommittee whose function Isto consider state and ft.oderal legislation In the area of family law and tht= law of domestic relations, and suggest nceded reforms. The section has a legal education subsection which presents programs for members. The 1987-88 ofncers are Joseph C, Sui· liv.an, Ir., chairman; G. Richard Fernambucq, chalrman-clocl; Bryant Whitmire, vice chairman; and james A. WItcher, 1reasurcr,

labor Law This section includes lawyers from throughout the statc whose pr.l ctlce In· volYl!s work in the arcas of labor, fair employment, empl~ benefits and oc· cupational safely and health In addition 10 pr(7l.lidlng a forum for the exchange of information and Ideas, the 5l!Ction spon· sors an annual, two-day scmlnar and, wilh the labor law sections of various other Slate !xlrs, co-sponsof"i an annual multlstale labor and employment law seminar. The 1987-88 officers are Fl'tderlck Kuykendall, III, chairman; 6raMton Schell, Ir., vice chairman; and j. PalJlck lOgiln, secrelary.t rea surer.

litigation The section seeks to (l) proYlde a forum where all trial attorneys may mcct and discuss common problems; (2) provide an C:Xt(!Oslve educational program to 1m· prove the competency of the trial bar; and (3) Impt'O\le the efficiency, uniforml· ty and economy of litigation and 'oY()rk to curb ilbuses of thc judicial process. The 1987-88 officers are O¥Yld 6. Cau· then, chairman; Carroll H. Sullivan, chalrman-eleo; and Charles W. Crook, secretary.treasv rer. 53

O il, Gas and M ineral law The section was established In 1976 and consistS of an 011 and gas diylslon ilnd a hard minerals division. Its primary purpose Is to keep members apprised of developments In the law, and this Is Ole· compllshed by cosponsoring with ADI· ClE an annual seminar on 011, gas and mineral law, as well as sponsoring a " mini-seminar" during the annual mOOting of the state bar. Currently, the section 15 preparing a handbook on oil, gas and minerai law In Alabama. The 1987·88 orocers are Mary It McKay, chairman; JoOn W. Donald, Jr., vice chalrman-oll & gas; Harold D. Rice, vice chalrman·hard minerals; David E. Hud· gens, secretary; and Stephen W. Stili, treasurer.

bers of the bar. The section, also In cooperation with the Cumberland School of law, publishes ~ periodic new-sleuer reviewing recent court decisions dealing with real property, trUSt and PrQOOle mat· ters and reports other matters of Imerest reiCiting to these topics. An annual semi· nar Is held in conjunction with the an· nual me<!ling of the state bar. The 1987-88 officers are J. Fred Po-twll, chairman; WiIIiilm K. Martin, vice Chair· man; and Romaine S. Scott, III, secretarytreasurer. Taxalion Membership in this section Is prlmarl· Iy composed 01 tax practitioners. The sec· tion gives special emphasis to Alabama tax maUers and h~$ been Invol~1 In cnanging Alabama law and assiSl inl!lthe Department of Revenue In writing tilX r'Cgulatlotls. A program Is held ellch year during the annual meeting of the state

Real Property, Probate and Trust 1..1w This section cooperates with and assists the Cuml.x!rland Institute for Contino uing legal Educmlon In prepMlng and presenting programs relating to real prop. erty, trust and probate mailers for memo

bar. The 1987·88 offlccrs til'(! David M. INooldridgc, chairman; Bruce P. Ely, vice

chllirman: and Roy J. Cr;rw(om, secretarytreasurer. Young lawyers' The YounS Lawyers' Section of the Alabama State Bar is composed of all attorneys 36 yeatS of age and under 01' who have been admitted to the bar for three )o1!iIrs or less. It conducts various seminars throughout the year for Iawyeq; and other professionals. It also Sponsors service projects designed to aid the public in their understanding of the law and assist in solving legel! problems. There are no dues since 1>eI'5OOS who are members of the Alabama State Bar and fulfill the age or admi ssion roqulremen ts automatlcal· Iy tile members. Anyone interested In becoming actively Invol\.1!d In projects of the Younl!llawyer's Section should con· tact Charles R. Mixon, Jr., president 1987-88, P.o. lJox 1988, Mobile, Alab.:"lmil

36601 . Other officers arc N. Gunter Guy, Jr., presldent-clcct; James H. Anderson, 5e(. relary; and W. Percy Badham, III, treasu rer. •

------------------------------------------------, I ALABAMA STATE BAR SECTION MEMBERSHIP APPLICATION I I

To join one or more sectiOns, complete this form and attach separate checks payable to each secti On I you wish to join.

I I I Office address:' _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ I I I ' ______ _ _ _ _ _ _ _ _ __ __ _ __ _ _ __ _ _ _ __ location: Office Name: Firm or agency:' ____________________________________________________________

Offi ce telephone

number:' _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___

Section

Annual dues Admlnl strat lYc law Barlkruptcy IIrid Commcrclal law

Remember: Attach a separate check for each section.

$;IQ

$1 S

Corporation, 811nklng & 8uslness l.l.lw $10

Criminal La w

Environmental Law Family Law Labor Law

$20 SIS SlO

if praaicillgless than S yrs.

if pradicillll S or morn yn;.

~~ on, Lllisallon Gas ilnd Minerai

L~w

Real Property, Probate & TruSt Law Taxallon YOlng lawyers'

SIS SIS

"0 SlO

Mail to: Sections Alabama State Bar P.O. Box 671 Montgomery, AL 36101

L ________________________________________________ II TOTAL

January 1988

Legislative Wrap-up Robert L. M cCurley, Jr.

The 1988 regular session of the legislature convenes

Tuesday, February 9, 1988, when the legislature will consider several major revisions of lilW prepared by the Alabama ~ Institute. Principal revisions will be adoplion law; redemption of real property; powers of sale, which may be contained In mortgages; and the Trade Names Act. Other revi sions which are being made ready for possible introduction are the Fradulcnt Transfer Act, Condominium Revision and Securities Revision ,

Ado plion law In 1984 the law Institute was requested by legislators to revieW prOposed bills \0 prevent Ihe buying a~ seiling of Infants aoo other bills dealing with grandparent adop. l ions. This Inlf!reslln adoptions Jed the Institute 10 revl(!w Alabama's entire adoption law. Prior to 1686 Alabama's

adoption laws were by declaration. The lasl major revision of the ildoption was In 1931. During the last 56 ~al'$ there have been various amendments, bot this is the nl'$t indepth revisi on. The follow-Ing Is an excerpt from the preface by Prof~sor Camille W. Cook to the Adoption CommiUee's completed drolf!. The general philosophy of the committee has been to foster the pm'Cnt-child relatlonshll) with spedi'll emphasis on the best Interest of the child. Professor Cook of the Alabama School of Law served as reporler while William N. Clark of Birmingham served as chairman. Other members of the committee are: Judith So Crittenden- Birmingham Pat H. Cril\e5, Jr.-Huntsville Probate Judge Martha Kirkland - Brewton Tommy S. lawson- Montgomery Sammye O. Ray-Birmlngham Bryant A. Whitmire, Jr.-Birmingham Alan Uvlnguon- ()Qthan Dls"lcl ludge Deborah Bell Passeor- Floren ce Mary Lee Slapp-Department of Human Resources Coleman Campbell- Department of Human Resources Circuit Judge Malcolm Street, Jr.-Anniston After a greal deal of study, the commluee determined that the model proposed by the Fami ly Lilw Section of the American Bar Association applied the best approach. HCM'e'o'(!r, the Alabama committee was not willing to "rubber stamp" the ABA model act. Changes were made after

The Alnbama Lawyer

extensive discussion and study In a numbm of significant areas. The primary changes resulted from Inquiry Into the practical application of the model act. The Department of Human Resources made Innumer.lble valuable suggestions to the COmmittee during the time of this v.oric effort. Their Input was of tremendou s assiSlimce to the ccmmi"oo In Its effort to tailor the model act to the specific needs of Alabama as perceived by memool5 of the committee In procedural, as well as sub$liInti'-'l, 3re"s. One of the Significant areas of change in the proposed adoption act relates to the criminal sanctions against in路 dividuals who attempt to profit from buying and selling babies. Under current law, the penalty for the Illegal placement of children or inducement to the parcr'ts 10 part with their children is a misdemeanor with a small nne and no more Ihan three months In jail. The proposed act substantially Increased the penalty pr(NISion which will range from a Class A misdemeanor to a Class C felony. Another significant area of change rel"tes to the persons whose consent or relinquishment are required. Section 7 provides that the presumed father's consent or relinquishment shall be required for adoption under certain circum路 stances. This is in line wi th emerging case law under路 scoring the rights of fathers. Section 29 seeks to clarify present law I:rt prwlding that both the right s and responsibilities of the natural parentS cOnlinucd on page S8

Robert L. McCurley, Jr. , /I the d/ffK:Jol of the AlBbarrNI Law Institute at the 1Jn/Yef$/fy of Alabam,. Htl r&eeiv&d /!JI undergraduate and law degrees from the Unlversllj(

Memorials Willhlrn Douglas Arant- Birmingham Admitted: 1923 Died: October 30, 1987

Daniel Reid Boyd- Ro.-moke Admitted: 1927 Died: April 26, 1987

Joseph Gladstone Burns-Tuscaloosa klmi ned: 19]6 Died: October 27, 1987

Abne r Riley Powell, Jr.- Andalusia Admitted: 1937 Died: October 30, 1987

James W. Trilege r- Montgome ry Admined : 1979 Died; June 11, 1987 Charles Theodore Reese-OalL'Vilie Admitted : 1948 Died: October 31, 1986

Cliffo rd Ro land Reeves- Birmingham AdmiTted: 19]5

Died: October 30, 1967 Robert Bloch Ryne-Tuscaloosa Adm jllL>Q: 1964 Died : March 27, 1987 Paschal Patrick Vacca- Birmingham Admilled: 1937 Died: Noycmber 9, 198i' The~

notices arc published immedi-

ately aflt!r reports of death are rccei\ll.-d. Biographl,.. 1 ilifrml'l:Jl ion not ofI ppearirlS In th is Issue will be published at a later dale If Infornlatlon Is accessible, \IIIc ask yOu to promptly report the death of ar\ Alabama attorney 10 Ihe Al abama State Bilr, and we would appreciate )Qur assistance in providing biographical informa· tion for The AI~bama I..1wyer,

Douglas Arant, OrlC of the leaders of Ihe Alabama Statl: 8ar for more than 60 years, died October 30, 1987, at his home in Birmingham , Mr. Arant wa s born Irl Waverly, Ala· bam<J, May 19, 1897, <Jnd received B.S. and M ,S. degrees from the University of Virgirlia, wh ere he ~1 50 wa s an instruc· t!)r in politi<:al s(ience, He Ihen enwoo Yale Law School, from which he was graduiltL>d m<lsna cum laude in 1923, h<IVing se~ ilSe(/itor·in< hie( of the 'f.l/e Law Journal, I'le had been preceded at thc law school by hl ~ older brother, Her· schel C. Arant, who also had served as the L'ditor·ln<hief of the Y.l/e l.<Jw lournill and later was dean of the Ohio StJle Uni. versity Law School and a judge Orl the UrlilL>c StMes Court of Appe{ll s for the Sixth Circui\. Immediillely following his graduation, Mr. Arant Joined the firm of nllmall, Bradley & Baldwin, and became a memo ber of that firm In 1927, He was a part· ner In a successor firm, Bradley, Arant, Rose & White, al his demh, Throughout his <:areer, he was a member of the Birmingham Bar Association, the Alab,l mil State Sar and the Ameri can ijar Associatioll. He served as a member of the

board of bar commissioners from 1931·1940 and was elected l)resldent of the Alabama State Bar in 1936 at the age of 39. Duri ng hi s term as president, he was the movant in the creation of the Junior Sar S(l<:tion (now the Youn g lawyers' Section) of the Alabama State Bar. He was an early ch afrm~ 1l Of the AmerIcan Bar Association Committ ee on the Bill of Rights, From 1933·34 he sef\li!d as specia l as,. sistan t to the Attorney General of the United States and <:hief <:ounsel to the Petroleum Administrative Boord, NatIon· al Re(oYery Administration, and as chair. man of the Regional Lilbor Board for the Sixth District, National Recovery AdminIstration In 1934·35. He was it public menlbcr of the Fourth Regional l<Ioor Board, Atlanta, from 1942 to 1944, and served at the request of the Attorney Gen· eral of the United States In 1953 and 1954 as a member of the National Com· mittee to study the Antitru st Laws (he was the only practicing lawyer in the south on that <:ommitteEl). In 1976 he wa s named "lawyer of the Year" by the Birmingham Bor Associlltion, He also was one of the organizers of the legal Aid Society of Birmingham and served as presi. dent of that organization. M r. Arallt was a Fellow of the American Bar Foundation and a member of the Council of the Ala· bamil Law Institute. He Wd S a member of the American Law Institute and the AsSOCiilliOn of the Bilr of t/-le Ci ty of New York. At the urging of fril!nds in New York and Washington In 1937, Mr. Ar:J1l1 se~ as chairman of the Nationa l Committee for Independent Courts, a nationwide or· ganization composed primarily of persons who had supported President Roosevelt's re-election in 1936 but were opposed to his attempt to p.1ck the Supreme Court of the United States soon after that elc<:tion. He wa s active in ci vic and comm un· Ity affairs throughout his caret!r, having served as presi dent of the BIrmingham

January 1988

Civic Symphony Association Uhe predecessor of the Alabama Symphony A~ soclatlon) and the Birmingham Civic Opera Association. He served as a member of the Distribution Committee of the Greater Birmingham Fol.ln(l;ltion, as a trustee of Brooke HIJI School (predecessor of the Altamont School in Birming_ ham) for more than 30 years and as a memoor of Ihe boards of the Eye foun dation and Ihe Norton Center al BirmIngham-Southern College. He was awarded honorary doctoral degrees by the University of Alabama, BirminghamSoulhern College and Rhodes College, formerly SoUIh<M!Slcrn at Memphis, Mr. Arant enlistro as a privale In the Unit<!d StMes Army In 1918 and later was commissioned a secorld lIel.lten;lnt In the Oeld artillery, prior to his release from the service follo.vlng the end of World WtIr I. Mrs. Arant, the former Lel itia Tyler McNCtlI, predeceased him, bul he is survived by three (laughters, Adele Arant Stockham and Letilia Aranl of Birmingham, and Fairlie Arant Maglnnes of YVashington, and seYer.t1 grandchildren. His law firm and olhers have established an(l endowed the Douglas Arant Proff.!5sorshlp of law al the University of Alabama Law School and the Douglas Arant Prt.'-Law Scholarship ill Birmingham-Southern CoUege.

•••

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The .... ,ab.:ama Lawyer

Judge Dan R. Boyd died April 26, 1987. He was an alumni of .-.ubl.lrn University and the University of Alabama School of Law, gr.wl.latlng In 1928 and was a de\IOted alumnus of both schools. He began the practice of law In Roanoke, Alabama, In August 1928. He WilS elected stale seniltor In 1938 and afterward served two terms as district anomey (cl((l.llt solidlor of the 5th Judicial Circuit). A few years later. he was ele(tcd circu it jl.ldge 01 the same distrlcti he served In Ihal capacity I.lntil his election to supernumerary judge, a position he held I.lntll his dealh. Judge Boyd was an active member In the civic life of Roalloke--a charter member of the Roilnoke lions Club, now in Its 57th year of con tinuous service. He scr\lCd as a Sl.ln(lay School teacher, SI.lI>e(Intendent and deacon In the historic First Baptist Church of ROiInoke. His only child, Catherine Boyd John· son o( Huntsville, Alabama, preceded him In death January 6, 1967. He Is survived by his wife, Gladys Bax. ter Boyd, whom he married in 1930, and four grandchildren, DL R~s Johnson, Jr., of Montgomery and Shorter, Alabama; Daniel Boyd Johnson, attorney In Atlanta; Mrs. Tom Mclain, Atl''"ta; and Thomas Baxter Mclain of Hl.lnlsviliei one greatgrar)daughler, Catherine Keller Johnson. _._

{I\\I(II' IIU{)t )OI(I 1(11'1

Charles T. Reese, a practicing attorney in Daleville, Alabama, and distinguished and ~pected member of the bar, died October 31, 1966. He was a member of the of Reese & Reese where he practiced law with his son, Charlcs N , Reese, lind daughter-in-law, Jo Reese. Reese gr3duatcd In 1941 (rom the Unl. versity of Virginia with a bachelor's degree in commerce, and received his bachelor of laws dt.'gfee from the University of Alabama in 1948. He received his license to practice law on September 20, 1948, and on JWlC 1, 1969, he recei~ the degree of jurls doctor from the University of Alabama as a replacement for the previously conferred degree of bachelor of laws. R~se honorably sel\lCd his COl.lntry In the Un ited Sta tes Army In which he obtained the rank of lieutenant colonel. He served with O SS (forerunner of CIA) in World War 11 in Indochina, was assigned 10 the 62nd Airborne Brigade and the 9th Ranger 8att.lllon and was a member of the fighting Blue Devils. For a period of lime dl.lring his mllitary career he was the only Airborne Ranger who was in the Judge Advocale General's Corp with the U.S. Army. On March 10, 19n, Reese was apl)()intoo honorary lieutenant colonel. aide-de-camp In the Alab..1ma Stilte Mllllia by C{M;lrnor George C. W'lilace. He rellred (rom the U.S, Army as lieutenant colonel In 1967 at Fort Rucker, Alabama, where he began his privale practice of law with offices In the cities 0( Enterprise and Daleville. 51.lbsequendy he closed his Enterprise offICe and con. cenlratcd his practice In Oalevilll:!. He was a member of the Dale County and Alilbama State bars imcl the Alabama and American Trial L.aw~rs associations. Reese had all the special qualities re(jl.lired of an attorney who carries on a general practice In a small t(llNn seiling. He was a good trial l awye ~ counselor and adviSOr In all areas of lhe law and represented his clients with equal energy and vigor, regardless oi their station in life. He is survived by his wife, Mildred WKle Reese, Fort Walton BCilCh, florida; one daughter, Mary Elizabeth Crabbe,

nrm

Wrap-Up continued from p;JIlC 55 arc terminated

b¥ Jdopi ion. Inheritance

righ ts of adopted children will be determined by the Ar"bama Pn;)bi'lte Code. The commiU(!{! anemptoo to balance Ihe interest of all parties Involving confiden tial mauC!!'!i rela ting 10 Identity and

other sensitive Issues. The proposed stalute now pt'O'lldes for documenting and preserving family, medical and other rei·

evant Information. The statute also provides for Ihe disbursemeol of Informiltion

under various enumefilloo circumstances.

Ciua rdian and Protective Proceed· ings Act J<1nuo'I'Y 1, 1988, the new Gu<lrdlan ar'ld Protooive Procetldlng5 Act became effective. Existing guardlanshlps may want to

petition Ihe court to define whether Ihe

existing appointment is for a "guardianship" of the !)eoon or a "conservatorship" of the estate. Without ,,,king any aCtion exi5ling guardlanshi ps may continue in effect as they existed prior to this ad with ilil of the powct'$ <lnd duties of the gU<lrdianship. Addition<l! powers and dulles mtly be granted or liMited by the probate court. A bond no longer is required for guardI<lns whose powers lind duties n(MI <He 10 care for the health. education and welfare of the person. CQn ~rvat(lt'$ now have spocified duties and powers with new bond requirements. The probllte court may I~r th~ bond requirements from double the estate 10 an amount (!qual the estate minus the value of the (cal estate. Guardlanshlps historically have been for minors and persons who are non

compos menlis. "lncapaclt.l100 perSOns" now Include l)Coons "who lack sufficient understanding or capacity to make or commUnic.lte responsible decisions corlcerning his person." This broader definition permitS legill protection, commensurate with the l:Ief"SOn's capaci ty. limited guardians and conSClVdtors are pl"(7.'ided for in the act to allow for appointments which are the least restrictive protection rather Ihim all-or-none status, A major provision of tile act Is to give definition to the powers and duties of both guardians and conservators. The commenl3ry to thi s new 1<lW has been Included in the 1987 supplement to the Code. Copies'of any of the re-visions proposed 10 the legislature can be obtained from the institute by writing: Bob McCurll!)', Jr., Director, Alabama Law institute, P.O. Box 1425, Tuscaloosa, Alabama 35486. •

Memorials Kansas; and tWO sons, Chilfles Neville

Reese, Daleville, and John William Reese, Mlnnesottl. - Kenn eth W. Quattlebaum Ozark, Alabama

Jame~

w. Traeger, an active member of

the Montgomel)' County Bar, died June 11, 19B7, at th e agc of 33. Jim was born In Demopolis, Alabama, on November 6, 1953. He au"md(od undergrad uate school at the University of Alabama, receiving his bachelor's degree in 1976, He subseqUl!ntly received his

J.D. degree from th ~ University of AI;r.bama In 1979. After graduation from law school, Jim went to work as an assistant district attorney for MontgQmery County. After completing four years with the di strict attorney's officI!, during which time he tried ~r 100 cases, Jim Joined the Montgomery law fi rm of Beasley and Wi lson. He was made a partner in the firm 11'1 1985. The firm's name subsequently was changed to Beasley, Wil son, Tracger, Allen and Mendelsohn. In a relallvely shon period of time, Jim established iI reputation as an excellent trial lawyer, He wa~ tmiversally recognized for his honesty, integrity, intelligence, ability and capacity fQr hard work. His compassion for clients, most of whom had suffered misforlulle, was perhaps the thing th at made him special. Jim was a member of the Board of GO'.'ernors of the AI<lb<lrna Trial Lawyers Msoclatlon and was extremely active in the Montgomery County Trial lawyers Association. He also w~s a member of the

Association ofTri;r.ll.<lwyers of Ameri ca. Jim is survived by his Wife, Paige; his PlIn'!nts, Mr. and Mrs. William H. Traegcr; and a brother, Billy Traeger, Jim will be missed by all who knew him. The members of his law firm lost a friend, The legal profession lost one of its bright and shining stars, A Sl;holarship fund is being e!il<lblished althe University of AlabaMa Law School in memory of Jim Traeger by his family and members of his law firM. - Jere Beasley Montgomery, Alabama

•

January 1988

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The Alabama La wyer

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FIR E INVESTIGATIONS (or attorneys and Insurance companies. Our firm speci alizes in fire, fraud , arson, subrogation and sUMillance. lnsurance background. Qualified In state and fed· eral court. References and rates will be furnished upon l'«Iuest. James E. Posey, Jr., and LInda F. Hand d/b/a Investlga. tive Services, 4849 10th A\'Cnue, N., Birmingham, Alabama 35212 (205) S9 1-1164.

FOR RENT FOR RENT: One entire floor of a \WOo lenanl building located near ,he Jeffer. son County Courthouse. Terrific SP<lce 5ulmble for four attorneys and staff. The Whilldin Building, S13 North 2151 Street, Birmingham, r'liabama 3520l Contact DeLeJlI Wininger (205) 322·3663.

WANTED WANTED TO BUY: Alabama Practice & Forms, Vokst Publishing Co.: 1947,

Walter B. lones (slx.....:>!ume set); Alabama lury Instructions, ~t Publishing Company: 1953, Walter B. lone~ (two-volume sell. Contacl George E. Jones. (205) 261-4351 or 265-8B71.

POSITIONS OFFERED STAFF ATTORNEY, U.s. Court of Appeals, 11th CircuIt. Atlanta. T~ar clerkshtps beginnlnglune. Law degree from accredited school, srrongilcademIc background, excellent research/writ· Ing skills, law review or equivalent. 1·3 years' experience preferred. Resume, law school transcript, unedited writing sample and references 10: Karen C. Wilbanks, Director, 56 Fol"lyth S lr~t , Room 549, Atlanta, Georgia 30303· 2289.

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Classified Notices fOR SALE FOR SALE: Landtech 66 Re(ll Estale Seltlemen! System Designed for IBM, PC, XT, ATT & PS/2. Complete a closing within 20 minutes. Prepa((! s HUD Pages I and 2, Buyers and Sellers ClosIng S!atements, all Disbursement Stillements and Checks, Reg. Z APRs ilnd Amortization Schedules, PROGRAM FEATURES: Integrated WQrd Processor allQW$ preparation of Commitments, PQlicies, Notes, Affidavits & others. FormSGenerator for preparing FNMA, VA, FHA, and other pre-printed form s. Complete Escrow I\(;COurltlrlg (or up to 15 bank accounts. Cross Reference System permits you to look up dosing files 23 different ways. Full reporting capabillty. Aucomatically prorates and calculiltes dosing figures, This is the best real eState numoor-crun cher available. $1,295.00 Complete. SATISFIED CUSTOMERSCOAST TO COAST. Bell Data Systems, 303 Guaranty Building, 120 S. Olive Avenue, West P.llm Beach, Florida 33401, (305) 833·0454.

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FOR SALE: USED LAW BOOKS AI;'Ibama Reports/Appellate Reports, Alabama Code, Southern Reporter 1st & 2d, Southern Digest and more, SAVE 3(}'60% We buy, sell & trade. LAW BOOK EXCHANGE (800) 325-6012, P.O. Box 24990, J,lckronville, Florida 32241-4990. FOR SALE: Anttque Alabama milps, Authenticity guarimteed. EKcelient of(ice decoration when framed. Write (or list ilnd photos. Sol Miller, P.O. Oox 1207, Huntsville, Alabama 35601,

POSITIONS OffERED ATTORNEY JOOS-Nationill and Fed· eral Legal Employment Report: highly regarded month ly detil iled li sting of hundreds of attorney and law-related Jobs with U.S. G~rnmen t, other pubIIdprlvote employers In Washington, D.C., throughout U.S., and abroad . $30- 3 months; $53- 6 month s, Federal Reports, 1010 Vermont Ave., NW, #400-A8, washington, 0,(' 20005, (2021393-3311). VisillMC.

POSITION AVAILABLE In six-person law firm for lawyer with one to three years' eI'perience In civil litigation , All inquiries confidential. Send r~ ume to: Hiring Partner, P.o. Box 130225, 8lrmingham, Alabama 35213, SPECIAL DRUG PROSECUTOR: MOo bile County District Attorney's Office seeks experienced lilw)1..'r to specialize In drug prosecutions and related con· demnations. Sillary negotiable. All Inquiries confidential. Send resume to: Drug Prosecutor, P.O. Box 2041, Mobile, Alabama 36652,

Classified Notices Deadline FOr March '88 Issue Is January 29th . For More Information: COrlloct Margaret Lacey P.O. Box 41 56 Montgomery, AL 36101

Disciplinary Report Suspensions • Birmi ngham lawyer Thomas E. Baddley, Jr., was suspended from the practice of law in the Slate of Alabama for a period of six months, effecti ve November 26, 1967, I:rt order of the Supreme Court of Alabilmil, dilled November 24, 19B7. Baddlcy's suspension was oosed upon his April 29, 1985, 8ullty pica In Jefferson County Circuit Court to felony mariJuana possession, (case no. CC-83-2376), which ((!sulted in his being placed on t\.',lO years' probation by the circuit court.IASB No, 83.254]

• 8y order of t h~ Supren)e Court of Alabama, Montgomery lawyer Earl L. Dansby was suspended from the practice of low for a period of 45 days, effective October 15, 1987. Dansby's suspension is b..1Sed upon his conviction before the Di sci plinilry Board of the Alabama State Bar of unethica l conducl. He represented to il client, il stilte employee who was the object of a personnel diSCiplinary proceeding. that the out. COrM of thaI official proceedi ng cOl.lld be influenced by the payment of $2,000 to a political "slush fund." IASB No. 86-270]

January 1988

Ex Arguendo . .. "A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largess out of the public treasury. From that moment on the majority will always vote for the candidate promising the most from the public treasury - with the result that democracy will collapse over a loose fiscal policy, always to be followed by dictatorship."

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Iif . \IlLU •• D. Co LrMl'I c.p.U. Ht ...rd t Kn.lb. 6. Cobbs P. O. SOl 2069 Hontt)o .... y AI.. 36197