Lawyer 1 89 web by Alabama State Bar Association

'on Bank Tr Is Our Middle Name. Offering

Solid Trust Service Since 1901. Henry A. J..cslie--Pl'esident and C.EO.

I UNION BANK& TRUST COMPANY 60 COMMERCE STREET 1MONTGOMERY, ALABAMA 36104 1205-265-8201 Member FDIC

ALABAMA ... ·,,..

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A thoroughly up-dated guide to criminal trial practice including pre-trial practice with attention given to fede ral constitutional law.

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The new Second Edition ia reflponeive to the acute need of t he practitioner to keep abraM\. of recent laWillnd easel 88 wall 81 Fodoral Inoome

• CTP Forms NOW onDISKSI

Tax consideration •. New forma added plUl ed.ting form l altered to reneet. atate-of-the-art, made more generally applicable. with U!t:hnicaland literary improve men ta .

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The new Second Edition retain. t he character of the first edition in ita emphAllil, and, due to the Advent. of tort forma, treate the conltitutlonallty of statutes limit.ing damage.,

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Postm,uter: Send addf~s changes to Th(' Alabi"ln1.l Ldwyer, P.O. Bo)( 41 56. Montgom('ry, AL 36 101.

. . .... . ... .. 25

Attorneys Admitted/Fall 1988 ...

II'S "all In the family." The 26 1 ncw .ldmluccs (since July) Im.jude many whose rclative5 are presenl bal me mbers•

INSIDE THIS ISSUE PI(";ldl'n r~

P.1H(>

DffI~lon~

1C('(t'nt

ADout Ml.'mbers, Among -irms

Opinions 04 Ihe Gen(,r.lt Covnsel

l( id"'8 Iht.' Grcuns 'mung lawy\-',5' ~llon Cl f Opporl unilies l.dwyers in lite Family SUllding AI.lb~m,,'~ COU'lhOIJ~~

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52 53

January 1989

President's Page C

onsider the following from a repon of proceedings of the

Alabama Stille BiH.

The decline of professionalism "We have said lhal the chief cause of the lO'NCring of our standards was economics, due to the commercialism

which pervadcssociety. ~ will now add thai the next most effective cause is the

excessive numberof I~rs. like almost ~ry other institution in America adopt路 ed from older lands, the Amerltan Bar, freed from Ihe reslr.lining of an hiStoric society, has grown as it v.ould, urlguldcd, unlimited, and until recenlllnleS without C\len the restraining Infl uence of an admission examlnatlon:'

retitin this entrenched POSition in Ihe minds ilnd eyes 01 our great body politiC. flanked by centuries of wholesome ilnd sound p~edjmt, and guarded all around by fundamen tal right and justlm Hi1s the history of the recen t llast taught us that our people at large stand firmly faCing the sunlight of reason and common sense in the comprehension of the VJlue and position of our judicial tribunals in their relations to litigants and the coun路 try In gcnerall Or; have we reached that state of unrest which comes with the growing knowledge and consequent conclusion that the fabric of our judicial bodies is being W,lrpcd because our couns have been Inclined to dep..'lrt fraln the path of fundamental Ideas and have grasped upon other reasons as a basis for Judicial decisions/"

H UCKABY The excessi ve number of lawyers ., , , . It Is n(!<:Msary \0 have fCWl!r lawyers today In Alabama ... :' "E~ry established family has II搂 would路be lawyer, and loWry high The selection of judges school debater, proud of his Incipient forensic ability, longs "It is the proud boast of some Pt."Ople when a judge has to submil his alguments to II real tribunal In support of pronounced judgment against them, even In clvll manerS, a real issue. NO! is the ease with which a license to practhattlley can \Ote against such presiding judge at the next tice was formerly obtained alone responsible. The best law election . These oo.lStS are nearly always made In places schools arc still largely to blame. Struggling as they do to and under circumstances which WJrrJnt the bclicfthm they display their importance by the number of their students, will be conveyed to the judge's ea~, Even presiding judges They adv<!rt lsc their courses, and prC$ent every ilrgument are human and dl)Slffl the Indorsement that makes and unto draw more would-be lawyers to their halls. Last year In makes them. Your Committl.'C therefore believes it would the University of Alabama there were rcglster(.'Cl more than be to the bel\eOt of adminiStrative justice to change the one hundred and fifty law students alone. Can anyone of manner of making up both our tdal courts and courts of us honestly advise those 150 students to practice law in last resort. Considering the honorable course shown by Alabamal" both the English Courts and these of the United StatCS there coold hardly be a doubt 01 the wisdom of appointing A uni form procedure and court system judges for life, or during good behavior. Even their elec"Onc of the gleat needs of the State was a uniform syslion "'" the poople for life. Of during good behavior would tem of trial courts, and a unifOrm system of procedure. gleatly Improve present conditions found In neMY aU the slatCS of frequent elections and compafiltively short terms Confidence in the courts "Are the COUtlS the bulwo'lrks of Ihe I>copiel Do they still o f office."

The Alabama Lawyer

President's Page Continued (rom page 3

Law reform "Pcrhaps n~r before has ~here been such a general demand for reforms In the law and in its ildmlnlstration. The demand Is not now confined alOne to the layman, but is participated in, too, to II large rueter'll, by the I~r and

the Judge,"

Comparative negligence "The thcmy of comparatl-..e ncgllgence In Its purity Is "

reHe of the common law, hallded down from the earliest

limes, and greY.' out of the attempts of the courts to fix and distribute damages and liability fo r injuries in strict i:lccor· dance with the degree of culpability of the respective parties." " ... We believe that In "ddilian to cOfll.'cting the harSh rul e of not allowing the plalnllff to r'eC:~r ar'lylhlng

when his Injury was due mainly \0 another simply because he was not wholly free (rom ncgligence. It ,was se~ to ((-duce accidents In that It wUllnduce both employer and employee to use more care and diligence, and thus insure general sa ti ~fa ction . It is certainly the filir thing, the proper and just thing, and wi th this in mind no harm can be done in an eHort to adopt such a rule." 5trikinHly, these issues could make up the agcndil of Ihe annual met!ting of the Alabama Stale Bar in 1989. The~

quoles, hCMleVer, are taken from a tattered copy of the \1ilrbalin' Proceedings of the Thirty-Eighth Annual Meeting of the Alabama Slale Bar Association held July 9 and 10, 1915, in the hall of the House of Representatives. The I>residenl of the bar ilt Ih:.t m/!@ting WiI~ R<ly Rl,lshton, <Inc! the treasurer reported total receipts during the year of $2,928.40, with total disbursements of $1,505.25. There are ~ra t conclusions that Io'.'i! ca, reach (rom reviewing our history, Vk can conclude that problems do not go ;r.vay and the stri .... ing for solutions Is futile. On the other hand, we can ....iew history as markers oi a time when our syStem was less perfe<;t and use il (IS iI guide (or our present endeavors to Insure that our profession and justice sySlem m(1VeS toward ultimale perfection. I belkw we can lake hold to the latter. When the Alabama State Bar mel In 1915, women could not YOte or serve on juries, and blacks were . . rrtually dlscnfran chised, all In a nallon founded on the principle o( equality. But who ciln Iruly say thilt lawyers during dIe olmost 75 years since the 38th annual meeting-serving as judges, ad«<'Ites and legislillor$-hilve not given each of us in our time the greatest Indi ....ldual meilsure of justice th ~ I <lOY cillzen has C\1!r kno,yn~ While we have not reached perft.'Ction, the progress made (MIr the:: laSt 75 years gi~s lillie cause for heeding the carping critics of the legal profession . •

-NOTICEThe Judicial Awa rd of Merit O n Jul~' 15, 1987, the Board of Bar Commissioners of Ihe Alabama Sta te Bar established a judiCial ilward of merit with the thought that the award would be analogous to the ')o\ward of Merit" given yearly recognizing outstanding service by lawyer$ tl) the b<lr. Ben H. Harris, Jr., then-president of the state bar, appoinlt.'d allorneys Oli\lt:!r "lead of Columbiana; Fournier J. Gale, 111, of Birmingham; and Da. . ld A. Bagwell of Mobile to study the possibilities concerning such an award. M d make rccommcrldatlons for the operation of an award program, If adopted. The committee considered analogous awards given by the Amerl c.lrl Judicature Society (which has recognized AUen Tapley, former Chief Justice Heflin, Joseph F. Johnston and Rod Nochman), and al so corresponded with the 'vVest Pu~ lishlng Company, which established the Devitt Award for the member of the fede ral judiciary who has contributed Ihe most in ....arious ways to the service of Ihe law. The commlnee recommended: 1. That a name be selected by the board of bar commissioner$, afler suggesti ons are received from the bar following publication in ThlJ Alilbama l.awyer, with lin ilPpropriilte deildl!ne; 2. That the award is not necessarily intended to be an annual award. but shall be made as de!Crmined by the board of bar commiSSioners; 3. That the award be given to that Judge, whether state or federal, either trial or appcllme, who has contributed most to the administration of Justice in Alabama; 4. That a committee of three persons sele<:t the nominees and make recommenda tions to the board of bar commissioners, said committee to be composed ex officio of the three Jawyer$ who arc deSignated by the preSident of Ihe Alabilmil State Bill to be members o( the Judiclill Conference for the Stille of AI~ oom a, under Alabama C(}(J~ § 12-8-1; and 5_ Tha t a suitable commemorative device be produced and given to each person selected for the award. Please send recommendation s for Ihe award to: Judicial Award of Merit, O liver P. Head, chairperson, P.O. 80x 587, Colu mbia."" Alabama 350S1

/anUMY 1989

Executive Director's

Report

Two Down-Sixteen to Go

honestly had CKJ)CCled Ih,n after S~ pt cmbcr

I would never feci com-

pelled \0 dCY010 another nlcssagc \0 the bar's captive Insurance effort. Unfortunately, I muSI. Thi s Is being wrlUen at thc close of

ph.:a5e II (October 1, 1988, through November 30, 1988,) of our subscription ef· fort, We need 602 more subscribers be-

fore we can brea< escrow and begin YOUR company. We must nOI leI this errOrl die; Ihc /)enl...fil to you, the lawyers

or Alabama, Is 100 slgniOcant. Already our stal1·up effort has caused a drop in the commercial raICS. This has happened everywhere a Cl.lpUve has begun, The commercial carriers do nO(

want us 10 succeed, and we CKpect \0 see fUrlher reduction s. We will

able 10

com pete- and favorably-for our insureds. BctwC(?n now and JilnUilry 31, 1969, the bat commisslooers, the AIM Botlrd of Directors and some of those who already have commined themselves to this undert..lking will urge your support, These pe0ple ilre just as busy as you and shOtIId not have to beg you to help yourself, We know Initially there nrc some firms, because of excess limlcs, we cannot expect to serve fully, but we want to appeal to your sense of professionalism to buy Into this efforlthat can benefit all AlaOOma lawyers In the long term, Be assured that the commercial market will tighten again. Not only will we see escaIilling premivm costs where ,overage Is

The Alabama Lawyer

avatlable, but we will see some of those carriers withdrilwi ng altogether again from the market. t have be<!n greatly encouragt.>d 10 nolice that 20 percerllilf those who purchased units never Indicated support by survey or by making a $125 contrlbuliOl'l to the stan-up funds. DIscouraging, however, are the over-640 persons who Indica ted they would SlIPI'M this undertaking but who, to date, have not. Candidly, we relied on your words of svpport when we su~pped fOlWard In formIng Attorneys Insurance Mutual of Alabama, Inc, Please take the time to carefully consider this issue, We spent over $50,000 on mailings, and oor last four presldcots have written almost monthly to advise yoo of progress and enoour(lge your support. tn spite of these efforts to commu· nlcate Ihe goals and advantages of our OWII lIablllty Insurance company, a shocking number of lawyers have told those c,l lll ng on them, "I have Ilever heard of this undertnklng." Fortunately, mnny of those persons have responded most favorably when they have taken the time 10 listen and learn . I appre(late the reluctance of some of our members to buy mo a comp.lny which has no policy form to show Or a rallnglabl(o for cov<>rage, but believe me, those of us working In this effort would not be doing so if the results in our siSler iurlsdit:tions which have such com· panies had not been so very su<:cessful.

HAMNER

To those of you who legitimately feel you can wail until present coverage con· dltlons decline. you stili can support this <!ffort al mlnlm'll fron l-C!nd COSI. We slill h;"lv(o over $775,000 available In our cred it facility againsl which each lawyer can borrow $1,250 of the curren t $1,400 unll cost, You can borrow the majority of your unit cost, and IB or 24 months from now you may find our company of. ferlng the only affordable source of coverage. Please consider helping AtM now so II will be available 10 help you In Ihe future. AIM needs you and your support NOW. I am not asking you to do something I haye not done myself. It Is two payments down and 16 to go. •

About Members, Among Firms ABOUT MEMBERS Geo'lSC E. lones, III, formerly st(1ff attorney to the Honorable Henry B.

StC,lgaU, II. associate iu~tice of lh(> Supreme Court of Alnbilrll<l, allilounces that he has become an assls tilnl at-

!crnlY scnoral (or the Slate of Alab.lma. His ne.v address b Office of Iht'! Attorney General , Alabama State

House, 11 South Union Street, Montgomery. Alabam;1 36 130. Phone (205)

261-7300.

•

ol~njll8

of her prdttice under the

name of

t.1W

O Hiees of Lauren L. I..aVi~ la

Cenler,

1535 laVista Road, N.E., Atlanta, Georgia 30329. Phone (404) 634·

3835.

•

James M. Scroggi ns announces the opening d hi5 practice of lllW al 98 Office P.lrk·SuiIC C, Daphne, AlaOOm<l. Thcmailing address is r.o. Box 2250, Daphne, Ala b3mil 36526. Phone (205) 62(1..7725.

•

Ooooa E. Baggell i1nnouoces the relocation of her office to Seventh Floor, WilUS Building. 2008 Third AlIl'nul!, North. Bfnnlngham, Alabama 35203. Phone (205) 328·6869.

•

Thomas E. Baddley ;lr\rlOurtCC~ the opening of his offiCI! at 229 Roebuck Plaza Dri~, Suite 205, Birmi l1ghnm, AI~bama 35206. Phone (205) 833· 4566.

•

Boyd F. Campbell announces the rJ his office ilt 606 South Perry StreC!t, MOl1tgOnll;lry, Alabamil 36104. PhOne (205) 265-8671.

openil1~

•

Da\lld Ellioll Hodges announces the opening of his new of(]ce located ~t 2200 City Fedcral Building. Bil'm· ingnam, AlafJ<lma 35203. Pnone (205) 328-9000.

AMONG FIRMS

w uren L. BI.'Clier ;lnnounces the

8t.'Cke r, ,11 Sulte 205,

Roger M. Monroe announCeS the relocation of nis office to 315 Frank Nelson Building, Birmingnnm. Ala· bama 35203. Pnone (205) 324..;1444.

Da\lid A. Garfinkel wa s admittl!(l to the Florida Bnr S('ptembcr 21, 1988. He is assodmed With the nrm of Datz, Jacobson & Lembcke with o(tlces 10Cilt(.>d 3t 2902 Independent Square, Jacksonville, Florida 32202 . Phone (904) 355-5467.

•

Richard M . l(lrda" :lIld Randy Myers Jnnounce the forll1<1tion of n prof{'ssional coq>orJti on for the prac· tice of law in the n,lme o( Richard IQrdan & Randy Myers, p.e., with offi ces ;n 302 AI~b~n1i.l Street, Mont· gomery, Alab..lma 36 104. Phone (205) 265-4561.

•

Beasley, Wilron, Allen & Mendelsohn, of Montgomery ;lIlnounces Ihill Mays R. l emison has become iI mcmlk!r of Ihe firm, ilnd the firm'S n<lm€' has been chilnged [0 Beasley, Wil son, AII('n, Mendt'lsohn & Jeml· son, P.e. an(l lhilt Thoma$ l . Methvin has become JSsocialed with the firm.

p.e.

•

The firm of lyons, Pipes & Cook ,Ulnourlces Ihill Stephen D. Springer, William E. Shreve, Ir., lam'.'s RC!bar· chak and R. Mark Kirkpatrick ha\ll;! become associated with the nrm, wi th office~ at 2 North Royal Street, Mobile, AJab'1Il1a 36602. Phone (205) 0132· 4481.

•

Hal'Vt.'Y 8. Morri ~, Charl es R. Smith, Ir., Thomas H. Siniard, joseph M. Cloud and Douglas I. Feesar\nOUr)ce [he formiltion of Morris, Smith, Siniiud, Cloud & Fees, P.e. effective Alrgust 1, 1968. Offices are located OI l 300 Clinton Street. West, Alabama Ff!("h:r.11 Silok Building, Huntsville, Alab<lma. Phone (205) 534-0065.

•

Ralph W. Horn sby, David H. Meginniss and S.A. W.ltson, Ir. , IInnQun(c the frmn{ltion of the firm of Hornsi.ly, Watson &. Mcginnis, lit Suite 133, PM!.: Plala. 303 Willi,llllS Avenue, Huntsvi lle, Alabama 35801. PhMe (205) 539·9300.

•

rhe firm of Hampe, Oillolrd &. Fer· guson announccs 111.11 leslie Ramsey 8atincau ha$ been r!lade 11 partner of the nrm. wi th offices at SUlle 331, Frank Nelson Building. Blrmln8h~l11. AI,lbamJ 35203. Phone (205) 251·

2(1n

•

Warren S. Reese, Jr., of Reese & Reese, Eugene w. RC1!se Jnc! Wi Jli!lm F. Addison o( Reese & Ad dison and Elna Reese and Tom Wright of Rct)5c & Wri ght {lnnOUl1ce the r('IOC!ltion of thei r offices to 339 Oexter Avenue, Mont!!onlt'ry, Alabama 36104.

•

Sl one, Granade, Crosby & Blackburn, P.C. Jnnounce th at George R. trvine, 111, has l)!;lcome associmed with tht:! firm, with the offi({' m<tiling address .11 P.o. Drilwer 1509. Hay M inette, Alab<lma 36507.

•

Charlt.'li R. Stephens ilnd G. W.lrren laird, Ir., annoullce lh t' fOrrll.ltion of a PJrtrler~hlp WIder thl.! n<tn1i! of Stephens & w ird, with omccs at 107 East 18th SUcet, P.O. Box 1493. J J~pcr, Alabama 35502. Phone (205) 221· 4383.

hmUilfY 1989

Robert Wyeth lee, Ir., and C. Thomas SuJlivdn Jnnounce Ihe forma· lion of;l pannershll) ;lnd Ihe opening of Iheir office ,11 310 Norlh 21s1Street, ]rd Floor, Birminghllm, Alabfll'll3 35203. Phone (205) J23·1061.

•

Filirfield, F,urow, Hunt, Reecer & Strotz announce Ihal R.R. Flowe", Jr., formerlY;ln ,Worney wllh Ihe office of Ihl' ludge Advocale Gl'ncrdl of Ihe United Stales Air Force, has become d~!>Oda led with Ihe firm. Qf(!ces <lrL' localoo al Union SqulIre, 111 Gold Avenue, Soulht.'dSI, Albuquerque, New MexicO.

•

Coa le, Helmsing, Lyons & Sims announces Ihal Ihe n.10le h,ls ~n changed 10 Coale, Helmsi nK, Lyons, Sims & LC.1Ch, lind Ihat lohn M, C rt.'en, John J. Crowley, ,r., I ~ h D. StCildnloln ano JOS4:Ph P. H, Babington h.we bt.>come as'>O('iates. The office mailing .lddress i\ P.O. Box 2767, Mobile, AI<lbamd 36652. Phone (2051 432-5521.

•

Haynsworth, Baldwin, Milt.'S, lohn. son, Creaves &. Edwouds, P.A . and Hllymwor1h, 'aldwin, Milts, John!OOn & Harper i1nnounce lh.ll W. Md",in Haas, III, ha~ joined the firm as residenl p.)rtner ill tht· new Macon, Geor· gia, offi ce, localed .11 46·1 Mulberry Streel, Suite 560, M:lcon, Georgia 31202·1975. Prlonc (9 12) 746·0262.

•

Michael Bry.lnt Wingo ,Ulnounce~ that he now is a member of thl'! firm of Simmermon & Morg.1n, located ilt 444 St,'abreezl' BO\llev<lfd, SUitl' 445, Dnylon,l I~cach, Florid;'l 32018. Phone (904) 253-00010.

•

Hare, Wynn. N(."WeU& Newton <In· nounces Ihal p..trick M. l.welte has become all .lssodolll·, wilh offices 10C.lled al 71h Floor, Cily fl'(leral Build· Ing. BirmingtJJm, Alab.lnl" ]52033709. I>hone (2051 326·5]30.

•

Morris & Vann \l nnounce~ that Cin. dt.--e Dall! Holmes hll~ hecome associaled wilh the (lrm localoo .1\ 1707

The A/ll bama Lawyer

Cily 11.001er;'l1 Building, Birmingham, Alab,lIna ]5203. I>hone (205) 2543885.

•

Furd, Caldwell, Ford & P"yne and unler & Sh.wer, p,e. ;lnnounce Ihe conM>lidalion of the firms under Ihe name Lanl~r, Ford, Shaver & hyne, P.C.

•

The firm of Watson, Cammons & Fees, P.c, ;JnnounCt'S \11.11 Richard DWdyne Mink ha~ become ;'I~SOc1.l led wllh the firm. OffiCes art' localed at 107 North Side Square, Hunlwille, Alab<lnlol 35801. Phone (205) 5367423.

•

The (lrm of Bryant & de JUdn .In· nOLJn(:c\ tlmt Rosemilry de Iuan has 111;lrricd .wd changed her name 10 Rosemolry de JUdn Chambers; Iherefore, the firm now will be known as Bryanl & Chambers, with offices al Suite 1107, RivcJVil'W Plaza, &3 Soulh Roy.ll Slreet, Mobile, AI,d)Jm.l. I' hone (205) 4]2-4671.

•

The offlc of C. Daniel Evans an· nounce Ihe i1 ~~iation of K. Edward Sext(Jrl, II, with offices localed ,lt 1736 Oxmoor Ro.ld. Birmingham, Ala· Ix'lma. Phone (205) 870-1970.

•

lht· firm of Pittman, Huoks, Man;h, Oullon & Hollis, P,C. announces IhJI J. Glenn McElroy Jnd ArchIe C. Lamb, Jr" h,M! become assod.lloo with Ihe firm. Offlcc~ <lfe located ;'II Suite 800, Palk PI.ICC fOYo't'r, 200 1 p,lrk PI,lce Norlh, Birminghilm, AlabJma 35203. Phon(' (205) 322-8880.

•

Th(' firm of Shelby & ( .. rlee iln· nounC:l"> thilt lollilthiln W , ClIrtf!C ha ~ IK,(:Onl(' an associale of Ihe firm. Of· fic(!~ ,HC locJled at 2958 Rhode~ Cir· dc, 6irmingham, AI~bama 35205. phone (205) 933-8383, and Suite 322, Alabama r<.·deral Lluilding, TU 5· caI005.:I, A I ~bama 35401. PhOne (205) 759·1554.

•

The firm of Tilnner, Guin, Ely, Llry & Neiswender, P.C. a'lnounces th.ll

Ber1 M. Cuy has become .1n .lsooclat(! of the firm, with offices IOC.1Ied .l! 2711 Unlvc('iiity 8oulC\r.lrd, Sllite 700, C.1pHoI !'.1Ik Cenler, liJscaloos.l, ALlbama ]5401. ~ers

•

Fr~nk

•

" Locken , P.c. .Jnnounce~ thai A. Joan Connolly has become associatoo wilh Ihe firm. Office<;,ue located lit 160 Soulh Cc~dar Sln.-'('I, P.o. Dr.:rwcr 1129, Mobile, Alabama 36633. Phone (205) 432·3700. leon ;mnounces Ihe reloca· tion of his practice of law 10 Ihe firm of Drinlurd, Sherling " York. 1070 G<M!rnmenl Street, Mobile. AhbJma 36604. Phone! (205) 432·3531

•

The firm of Merrill & H.trrlson ;111' nounces IhJI Cary A. Hudgins has Ix.. come a p.lrtner, which will contInue under Ihe name of Merrill, Harrison & Hudgins. Offices are localed .11 119 Soulh Oail'S Street. Dothan, Alab.lma 3&301. Phone (205) 792·0061.

•

The firm of Conrad, Hammond & Barlar announces thai Ann 8, Cur1' righl hil~ become af) associate. fhe mailing addreo;s is P.D. Box 3045, Mobile, Alabama 36652. Phone (205) 433-3968.

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Kaufman, Rothfeder & Blilz, P.c, Jnnounces 111011 Simeon F. Penlon ha ~ joinoo Ihe firm, wilh office~ ;II One Court Square, Montgomery, Alah.lm.l 36104. Phone (205) 8301-1111.

•

Wilson & King .1nnounces Ihal D. Michael Sdwyer, formerly law cielk to Ihe Honor.lbl(· Arthur I. 1·lanes, Ir., has oc'Come .lssocialoo with Ihe firm, Of· fices .1 r(' located al 1816 6,mkhead· BYMS Build ing, Jasper, AI,lbam.l 35501, phone (20S) 221-4640, .1I1d 1905 1·lIh A...-enu{', Sooth, Binning. h.un, Alabama 35205, Ilhone (205) 930-9830.

•

Reams. Vollmer, Philips, KIllion, Brools & Schell, P.c. announces Ih.11 A. Lewis Philips, III, ha~ bt.'(:ome .n· sodallod with Ihe firm. Olfic.e~ all" 10-

Cilted JI the PiIIJns-Roberts Building. 3662 D<luphin Sireet. Mobil\;!. Aidbarna, Phone (205) 344-4nl.

The firm of P.lUenon & Jester .)nnounces thai Robe rt Willson lenklns has become assoclmed with Ihc fiml , Offices Me locillcd ill 117 Mobile Plaza, Florence, Aillbllma 35630, Phone (205) 764-3941.

•

lulian B, Brackin. Jr" and Thomu 0 , Bear ,mnounce the formiltion of the firm of Brackin & Bear. The mai lIng addres~ i~ PO, Box 899, Foley, AlIIbilnM 36536•• Uld the office .ldelreS5 is 201 Norlh Aislon Stl1!(!l. Foley. Aillbama 36535, Phone (205) 9434040,

•

Najjar, Denaburg, Meyerson . Zarzaur, Mol_ . Wright & Schwam:, p.c•• 2125 Morris Avenue. Birmingham, Alab.lmJ, ilnnounces Ihat RoberI H. Adilms, Ir., has become a member of Ihe firm, and W, lames Ellison, Michael C. Graffeo and Alldn l.

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Armstrong hil\le become ils!>OCiilled wilh Ihe firm, Offices are Iocal<!d .11 2125 Morri s Avenue, Blrnl1ngham, Alabama 35203. Phone (205) 250-8400.

•

R. Michael Leonard has become .1 I)Mlner in the firm of Womble, Carlyle, Sandridge & Rice al ils WinstonSalem, North CJrolina. of(Jce, Offlc~ <Ire loc(ltcd al 1600 One TrI.ld Park, 200 Wesl Second Sircel, WinslonSillem, North Carolina 27102. Phone (919)

nl·3600,

•

- NOTICEAlabama Hospital Law Ma nual The Alabama Hospital Association is contemplating updating the 1962 Alabama Hospital Law Manual, a comprehensive manual relating to various laws and regu lations governing a w ide range of health-related areas. Thi s manual includes chaplers on licensure, taxation, certificate of need, organization of hospital authorities and boards, and programs for indigents, physicians, pharmacists and other occupation s. Since 1962, there have been a number of new health-related Slalutes passed by the Alabama legislature, as well as a number of amendments, For example, the Health Care Authorities Act has been amended, the vi tal statistics laws have been amended and comprehen sive malpractice legislation was passed lasl year. Wilh th is in mind , the Alabama Hospital Assacialian may undertake to pllbli sh the manual in a new edition , if enough purchase commitments are made, For more information regarding orders and costs, contact Frank Williford at (205) 272-8781 or 1-800-392-5831.

Attention Alabama Attorneys: VV"

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A Su rvey of Alabama Law Pertaining to Closing Arguments by Beniamen T, Rowe a nd Willia m H. Pryor, Ir.

Introduction There Is a widel y accepted belief that dosing arguments in Alabama are sub-

iec! to no restrictions, Olher perhaps than those pertaining 10 R.1ss1e Rot«Its and Texas DCi!ln Millcnes, ,and arguments routinely proceed ~ordin8Iy. Too many lawyers, being ignof(lot of Ihc law or ex·

pectlng their efforts to be frull lt.'Ss, do nol object to the mon flagrantly Inappro.priate comments,

,mel

when objections

are made 100 often they are dismissed with the all.purpose respon se, ~ 11's argu· ment, I'll allow it:' In filel , there Is a vast volume of Alabama law dealing with

d osing llr8Ument, It could be improved . It is sometimes contradi ctory and confusIng. but II exists and PrtNides a reason. ably dear- and Strict-set of rules for conducting argument. This anlcle addresses 13 common tYI>es of Improper arguments ;l!\d contains a guide to dealing wlCh thcm In courl. The author5' primary purpose Is to plO'Jide oomples of these arguments and show how Alabama courts have dealt wi th them. ~ do not attempt to re<:ond ie th~ cases, many of which are simply irreconcilable, and detailed critidsm of casclaw Is not our purpose. Instead, this survey Is offered as a practical tool for l)raclilioners.1 Trials should be conducted to resol ~ disputes on a basis approximating jusllce 35 nearl y as possible, and to Impress participants and obscrvcfl with a sense of

III-served. Judge Cewin's advice on this Issue Is WOrth ~~iltlng ! "Trlllis Olt'l rarely, If !Ner, l)Cr/cet, but gross Imperfection$ should not go unnoticed. In eo.oety use Involving 1m. proper arsument of counsel we are confronted with rel~iv ity and the degfOO to which sueh condUCt ITYy hIM! affected Ihe W~3nl l al rights of la pattyl. It is betlCf to 'ollow the rules than to try to undo what has bt.oen done. Olherwlse stmcd, OJle 'cannot umlng a bell'; and nnally, '1/ ~u throw a skunk Into Ihe Jury bo~ , you can't In_ f lluel the lury not 10 smell It:'" Dunn v. Un iled Sf<lles, 107 F2d 881, 886 (5th Cir. 1962). (}.(:I 100 ~a~ ago, lustice Slone! 01 the Alllb.1!l111 Sup.eroe Court said: "II It ont 0( the hlghejl judlcl.1lfunCIlons, 10 see the law Imp(lnlally administered, and 10 pf(."';'(!nt, as far as possible, all 1mpl'Oj)tlr, f'XtraneoUJ Innuences 'lorn Ondlng their way Inlo Ihe ju,..,..box. \l\t)lffc v. M innis, 74 Alii 386, 389 (1883). H

This 5131emeru Is an approPfialt introduction to a suM!')! of Ihe law of closIng arguments In Alabama.

I. A baker's dote n Imprope r arguments \M:l have dillided examples of frequently repealed imploper arguments into 13

Iradilional, but oeces53rily subiectillC, categories. NOl surprlsltlKly, most have to

T. Rowe Is a partner with lhe Mobile firm of C.ban /ss, lohnikn/dmen

the dignity and m<1 jesty of the law and the legal process. For these reasons, among others, we cmll loy strltt evidenIlary rules for the conduct of trial s. There Is liule point In emplOying these rules during trial, h()W(!l,1!r, If the courtroom Is

to be transformed into a free-fire tone for d osing argument, where justice and respect for the 1(lW t an hardly be more The Alabama Lawyer

$/on, w rdner, Du· & O 'Neal. He University whcre he

was L,w Order

Alabama o f Ihc

do with mont!'!'. These Include I't'fcrences to the wealth or poo.tetty of litigants, Ihe f1nilnclalln tc~ts of jurors, dIe availability of Insurance, the nalure of corporations and irrelevant factol"l regarding damages. Others seck to caplt.lllze on jury 5ympalhies and prejudices. Some are plilin attempts to subYert judicial rules. In each Instance, Alaooma caselaw provides numerous lind often colorful

examples.

A. Comments on wealth and poverty References to a party's financial status

are improper. Hllliability for damages , • , must lliilidly be determined by the rules of legalliablJlty applicable, and not [by) the economic condition of ehher palty:' Allison II. Ac.lon.Elhcr/dge COiII Co., Inc:., 289 Ala, 443, 447, 268 So,2d 725, 729 (19n ). Ex.lmples are nearly endless In the Alabama cascs, An obviously Improper reference 10 d P<lrty's financial §tatus follows: " I represenl county people and poor people before the Jury, am:! Mr. Dom. Inlck, the delcodol.nt's lawyel, represents cOlporilllons; and, in the /i\C yealS of my pr.ICtlcc m the Cc-Iumb alia Bar 1 haw always been n.!1>rllsel'lling IM)()I people. ••• I repreenl wldoNs and 0rphans Ix!fore this Coull, and !he gentleman on Ihe OIher side represenls Bteat

companies."

Will/am H, Pryor, Ir., is an ,uoc;ale

with

C.baniss,

johnston, Gardner,

Dumas & O 'Neill. Nc /s a 198 7 BfiJdualC of Tulane Law

was cdil o/.in-chle( Tulane law Review iJnd iJ m~~~i;,Of Order of Ihe Co/(. During I' he wa sa/aw c/erkto/udBe Wisdom .

AI.1bama Fuel '" Iron Co. v. Bcnnan/c, 11 Ala.App. 644, 648, 66 So. 942, 943 (1914). Anolher clearly improper argument I~ fO\,Jno in Horfon v. Confinen/ill \.blkswo1gen, 382 So.2d 551, 552 (1980): "N<m we ~pc<llhe evidence 10 show. ladies arld g~rlI i emerl of the jury, Ihal )the dcfcrldantj COrllinCrllai Volk~ wagen, a smll'iprlv,lle domeslic COfl» raliorl, owned bv Mr. 'NIltlam R. Alford"I e~pecllhe evidence 10 show th~1 he Is the sole owner of Ihal business," See also Holt v. Stille Farm Mul. AuIO. Ins. Co., 507 So.2d 388, 391 (Ala. 19861, where the supreme coul1 reversed orllhe basis of dc/ense counsel's argument that verdicts based on sympathy rather Ihan "the fil cW' would drive insurance companies out of business.

In unders v. torrs, 53 Ala.App. 340, 300 So.2d 112, 114 (1974), the trial court committed reversible error in O\IeffuJing an objection to this question by the plaintiff's counsel to his client, "[Ylou are a poor m;lnr" The CQurt In Pryor v. Umestone Coumy, 225 Ala. 540, 540, 144 So. 18, 18 (1932), held, rlOtwhhstMldIng th .. lthe trial court had sustained an objccliorllo the offending larlguagc and Instructed the jury not to consider it, that argument Ihat "these rich little children have no complaillt against Limestone County" was "of th,1\ character which is so poisonous and improper as to be alm!,sl imm\,Jne from eradication." In Uberty Natlorral We Insurance Co. v. Kendrick, 282 Ala. 227, 230, 210 5o.2d 701 (1968), the court reversed where

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Be Sure The

Work)buDo Done on the (louse.

,.._~_

.. _ _ _ <lno<_

counsel remarked thaI, "Uberty National is a ~ry weallhy compal1y; .. mal'l stole a million dollars up Ihcl'(! a vvcek ago.~ 111 MClropolifilrr Ufe Ins. Co. v. carter, 212 Ala. 212, 213, 102 So. 130, 131 (1924), Ihe court reYer5Cd where counsel argued that if the jury gave the plaintiff "every nickel claimed ..• it would not hurt this dcfenO..mt:' notwithstarloing the trial CO\Jrt's sustaining of an objection to that argument. Arld in American Ry. Express Co. v. Reid, 216 Ala. 479, 464, 113 So. 507, 510 (1927), where counsel argued Ihalthe amoul'l\ awJrdcd "doesn't m(lke My dJfference to the AmericJrl E~press Comp,my ... they will still be running Goorgiarla:' the court r'C\Iersed, notwilhsI"nding Ihe "withdrawal of the arg\,Jmen!." In Hartford Fire Ins. Co. v. Armstrong, 219 Ala. 208, 121 So. 914 (1929), the court reversed on the basis of a referllrlce to Ihe defcndarll's lending and collecting money. In Taylor v. Brownell· O'Hear Pontiac Co., 265 Ala. 468, 469, 91 So. 828 828 (1957), the court affirmed the trial court's gfanting of a new trial where counsel had argw?d , ''1M;! are illter somelxxJy that Ciln pay." See .. Iso Ashbee v. Brock, 510 So.2d 214, 216 (Ala. 1987) iwhere the "Irial court properly exerci!"oed lIS discretion In prohibiting plaintiff's counsel from arg\,Jlng tl'\o1l the jury was not to consider how Ihe defendant would satisfy any judgment"). In Jackson Lumber Co. v. Trammell, 199 Ala. 536, 74 So. 469 (1917), the court revel"5ed whtlre the trial COurt h~c;I declined to granl a new tri .. 1 notwithstanding references to Ihe defenoarll as a la'lSe and powerful corporation arId 10 tht'! plaintiff as a poor man. Referenc;eS \0 finilnd al slat\,JS O.m be iml>ropcr even when they arc based on facts COntained in the record. In Allison v. Acton-Etheridge Coal Co., 289 Alii. 443,446,268 5o.2d 725, 727 (1972). Ihe court held the foitowlng remark by defense counsel 10 be Improper and reversed: "It's a great thing, folks, 10 be a very wealthy miln and 10 be able to go out and hire two J ~w firms with (our lilWyer.i." II did not matter thaI the plaintiff was in fad a wealthy miln ilnd that his eamings had lx't!rl put inlo '-'Vidence 10 prove his loss of Income. In Otis Elevator CO. Y. Slal/wor/h, 474 So.2d 82 (Ala. 1985), the remark that the dc/end(lnt could afford to hire ~n expcttln 100 C(l~S W(lrr(lnled reversal even though the January 1989

record sh()W(!d Ihal one of Its experts had In fad been hired bv Ihe defel'ldam 11'1 100 cases, Coml)Jre these c<lses whh Windham y, NC"NfOn, 200 Ala, 258, 259, 7650, 24, 25 (19171, In which the court said, "[Planies have a right to try their caUSl'$ 01'1 illegal evidence if they so d(!Sire, and if Ihev Iry it on such evidence, counsel have a righl 10 argue it ...." The Alabama COuttS ~ry often have held Ihis type argument to be in· eradicable. Sec, e.g., W,ws y, Epsy, 211 Ala, 502, 503, 101 So. 106, 107 (1924) (Statement that "defendant waS a pol>ular, wealthy man who did not 80 to see whether the plaintiff was deild or ilUIie and left her lying there like a dog" not eradicated bv ICtraction, sustaining of 01>J~tion and rcbu ke of cour!); Pryor v. Limcstollo Coullly, 225 Ala. 540, 144 SO. 18 (1932) (sec above); Blrminsham w.1!Cr \l\.brks Co. v. WlIIi:UllS, 228 Ala, 288, 289, 153 So. 268, 268 (1933) (refcrences to the l)(]v1!rty of the pll1lntlff, Ihe power of the defendant and the irrelcvilnt f,lCt of the df)fend,ml'S C!.lttin! off of Waler to il5 customers was "of Ihat class of arg!.lment thai cannot be eradicated''). But see, e.g., Daniel ConSlruc rion Co. v. Pierce, 270 Ala. 522, 530, 120 5o.2d 381, 387 (19591 (where the court deemed erJdlcable the argument that the defendant company was saying Ihat a poor man's SOn should not recO\!Cf and tnat "If the jury brings OUI a verdict less thai [sic] S50,Ooo it wouldn't be any more than a mosquito bite [0 this defendant"); Geer Brothers, Inc. v. Mary J. Wa lker, 416 50.2d 1045, 1048-49 (Ala.Cly.App. 1982) (references to the plaintiff as a "widow lady" who lived In a mobile home whh a rctarded son held 110110 be beyond the "curative poY.'Crs" of the trial court); Bloulll Broth ers Construction Co. y. Rose, 274 Ala. 429, 439, 14 9 5o,2d 821, 832 (1962) (SI<ltellll.!nlthal a S25,OOO verdict "would not be a slap on the leg" held eradicated ). "[T]he Interjection of wealth Into a Irllll . ,. Is 1'101 I>er 51.! ineradicable ... Each C.lSC must be decid· ed in light of the peculiar facts ,md circumstances Involved ... :' Ceneral Finance Corp. v. Smith, 50S So.2d 1045, 1049 (Ala. 1987). 8. Insurance "It is a general rule of long·standing that it Is error to introduce the ract of liability insurance to show thai a party

The A/aooma Lawyer

will not h.lY(! 10 ptly tht! jlJdgment." Ealhorne Y. Slale Farm Mul. AuIO. Ins. Co., " 04 So.2d 682, 663 (Ala 1981). It Is error to allow Nteslil'llOny to show, or lending to show, that defendant was In· demnified in the prem i~ in any degree or fashion, i7t' an insurance company." Co/quell v. Williams, 264 Ala. 214, 222, 86 So.2d 381, 387 (1956) qual/nS Standridge v. MattiI', 203 Ala 486, 486, 8" So. 266, 267 (1919), Mor~r, evicle:rlce lhat a ~ plalntlff has [already] received Insur· ance benefits for h i~ in juries is preiudlcial to his C.l se and should nOl be admitted:' Mathews y. Tusca/oos.l COUnlY, 421 5o.2d 98, 100 (Ala. 1982), qlJOling/ones y. Crawford, 361 5o.2d 518, 521 (Ala, 1978). In short, <tny argumenl of counscl regard ing the 3Y<llltlbl1l:y of inS!.lrilnce is entirely Improper, but S(!(! Ala. Code §12·2 1-4 5 (Supp, 1988), which l)roYldes that evidence Ihal medical bills have been or will be paid i. compe tent. The policy of Ihls rule Is clear. As stated in Standridge y. Martin, 203 Ala. 486, 466·87, 84 So, 266, 267 (1919); "There C.ln sc~tcely be made 10 a lury iI fTIOI'f! loI!ducliw and I~sidlous sugg~ 1100 lhan Iha[ a ~rdlCl Jor damage, ... will be visited, not upon [[net delen· dilm, 001 upon some il'Yisible COI'por~ 11011 whose buSlfK~S II Is to ll.lnd (Of ami pay ~uch <4IT1<1Ses.~ A sliltement thjl.\ "[h]e said if I wovld turn it CNer to the insurance, Ihey would pay for it" is objectiooable, Lloyd Noland fCXJndiHion, Inc. y, Harris, 295 Ala . 63, 67,322 So 2d 709, n2 (A la. 1975), as arc the St<lIe:rOCr\lS by OOIJn~1 in clO$in8 thai, '~ hil\lC also dismissed as to Mr. Ritch· Ie. \Nc don't wan t to penalize Mr. Ritchie. We are after sonlCbody Ihat can pay." T.:lylor y. Brownell·O'Hear Ponllac Co.,

265 Ala. 468, "69, 91 5o.2d 828, 828 (1956). And, "IW)ouldn't you feellhat the people you paid 10 prolect you should take care of this child In some way:' Colquell Y. Wi/U<lms, 264 Ala. 214, 22 1, 86 So.2d 381, 387 (1956). And, "1don't <lsk you to hurt anybody and you Wbn't. You return fair compensation to hCr and thai Is $200,000.00. You won't hurt anyone:' Prescot I Y. Marlin, 331 So.2d 240. 246 (Ala. 1976). When lhe defendant's cOlJnsel argued, however, that the defcndanl mighl have to pay the plaintiff damilgeJ, the foU(ML ing statement was not held improper: "If he wants to go InlO where Ihe money comes from, we will mcct him on it," AI/lb.1ma Power Company ~~ Smirh, 273 Ala, 509, 524, 142 So.2d 226, 243 09(2). In Mmhews Y. Tuscaloosa County, 421 So.2d 98 (Ala. 1982), however,:l Similar reblJttal argument apparently was disa ll owed, Set! also Colque ll Y. Wi/ll,lm s, 264 Ala. 21 4, 86 So.2d 381 (1 956); Lloyd Noland found.llion, Inc. Y. Harris, 295 Ala. 63, 67, 322 5o.2d 709, 712 (Ala. 1975) ("what's good for the goose Is good for the gander1. The court In Parker Y. Williams, 267 Ala, 12, 15, 99 5o.2d 210, 212-213 (1957], offered the following guidance; "There Is a prioclple In Ihis conneClion rhat If counsel vol\Jnr .."I.,. 3nd without Icsal rightlnjCCIS Into Ihe c.ale [Ilt: fact oIlnsutance carried by his OWOr~m It may be lne C<lUSC!Of 81'i1nl n8 a new trial although no motiOO or obJcctlon wa~ made u to il 011 the lime of its 0(. cum!fICe. To 11lS1~1 upon and;vgue such a mancr at Ih~1 lime would [end 10 magrllfy the Cae! In the estimatIon dtlle Jury. II would Iherclore <;Cem ~p proprlale 10 walt and makc a motion for d I'll.""" trial If the verdict b adYetSe

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Air Qualit y •• Water Q uality •• Hydrology 1040 Nonh R.mpwt St.

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and ha\le thai as one of the grounds. That would lu~t lfy a consl der"dtion of the (Iuestioo on its meritS os to whether It w,,~ InJlltlcd Into Thl! Irlal without any necessity therclor and ...,Iuntarily by CO UllSci in order to prejudice the ca ~ against the defendam. In determining that question the whole situation must be considered in order to find whether coun~el has voluntarily inle(lOO IntO the ca~ mailer wh ich Is preJudldal lind Inerildic.ble ...." In Thomas ~. ware, 44 Ala.App. 15 7, 204 So. 2d 501, 504 (1967), hO'Nevt!r, where the pl aintiff " In a y()lun t~md unresponsi ve remark" testified that he was "under tne impression that M r. Thomas' insu rance was going to pay for it;' the court of appeals held that the tri al court had not erred in refusing to gr,l nl a mistrial although "[a) motion to exclude or Strike would have been ~ 1I-pu I :' Tha co urt explained tha t " not all such references are ~nd remedy o n a Prol)er instrucUo n." Sc!! also Presco/[ v. Marlin, 33 1 So.2d 240, 246 (Ala. 1976): Cooper v, 8i5hop FreenJiln Co., 495 So.2d 559 (Ala. 1986). Alth ough It Is unc1car whcther a single reference to Insurance Is inerad icable,

able." Cru mp v. Geer Brothers, Inc" 3)6 So. 2d 1091, 1096 (Ala. 1976) (the alleg(!(/ statemen t; "I am pe rson~ lIy covered with insurance to COYer my errors''). And, ~One may milke reference to an insuran ce carrier fo r thi;l purpose of showing the filet that the witness has been retained by the carr ier fOr the purpose of preparing evidence to be used In the case:' Calloway v. I£m/ey, 382 So.2d 40, 543 (Ala. 1980).

certain ly repeated referenCI!S are highly Improper and almost certain to lead to reversal . 5ee Colquell v. Wllflams, 26 4 Ala . 214, 222, 86 So.2d 381, 388 (19 56) ("nili' her retraCtion nor rebuke would have destroyed the stro ngly prejudicial suggestions that it was an Insurar\ce company ... who should and would have 10 1>aY'; 50nla ch v. Norr;s, 361 5o.2d 1005, 1008 (Ala. 1978) ("this case hilS 10 be rever$(!(/ $0 that it can be tried in ,lI'I atmosphere frcc Of I h~ prejudicial influt:nce of insurance").

Co Corporations Corporations are tem ill/ng target s [l11d improper arguments con ce rnin g them COme in a vilriety of forms. References to corpora tions as "SO ulles~" en tities iIrtl an old tactic. In Commef(; iai Fire Ins. Co. v. AI/cr!, 80 Ala. 571, 573, 1 So. 202, 204 (1 887), the Alabama Supreme COurt reversed w here the trial court had overruled an obj ection to the (o llowlng argument:

ImJ)rOlJCr ar8um~'I1 ts in this (l,ff.)iI (10 flOt have to Ix! in referen ce to an "insurance" agreement p£!r se. References to an indemnity agreemen t o r any o ther suggestion that the opposin g party will not have to P<ly a judgment is improper. Robins Eng;neerins- Inc. v. Cockrel/, 354 5o.2d , (Ala. 1977). There ilre, of COUi'S e, excepti o ns to the rule again st refe rences to an insurance agreement. For example, "a defendant's mentioni ng his li.,lbil ity insuran ce is not inad missible if it is associated with or inle~n w ith another part of his sta tt.'men! ad milling fault, so as 10 be Insepar-

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The Mutual Benefit Companies Onelr'ldepen!lenc:e PIau, Suit. 411> 8lrmlnzham. AL )5 209

JiJmriJry I !J8!J

IrI.lIhfulnl!U, and Ih~1 ollheir descen-

~:\S~~~11 ~;;:r~~$~a~:':r~~:;'

deIend;ml ln IhisC;lse, had Ch.1rged one oIlheil desreod.lnts. Ben. lee Allen. with falsehood. fraud and misrcprescnlallon In procuring Iha policy of Insur-mee In Ihis CilJe." (emphasis oodOO) M ore recently, in Southern We &Heal' h Ins. v. Sm;lh, SIB So.2d 77, 80 (Ala. 1987), Ihe courl slaled that It was Improper and highly prejud icial for an anor'r\t;ly to make lhe follOWing argumeol: ~A corporation, like I said, is a legal entity ... bUilt's not a human being. It has no conscience:' HOWC'ICr, because the erial court had sustained an objection 10 these remarks and offered to givc CUl'i'ltivc Instructions, the COU ll hdd that rovers..,1 was not ma nd:'lcd . Pelh:.ps lhe most blalanl-and famou s~m ple of thi s type argument occurred In Chrysler CorpOI'.lllon v. /-Iassell, 29t Ala. 167, 272, 280 Sc.2d 102, 106 (1973): "This Is wh;ll thl. 1~ lt Is all aboot. I.e1 me tell '«XI ~nlCth lng abool this corpOfilllon, lady and Bemlcmen. They keep !alklng about Mr. Preultt, Mr. Prl!ulll, Mr. Preu 11. Jim Preuht. a,s a,n tndllllduJI, Is nQl !)emg sued. \10k hiM! gQ(!WO cOJpOriltions here in this CiI!tt". lim Preultt Ch ~lcr CorllOr,lIloo and Ihc Chrylilcr COIIX)r<lllon In Del roll. Think JuSI a, mlnule about what iI corpDfiltloo Is. if 'rUI will. Hyou Dill peopll/, I am peGll le. Mr. Ha~se ll Is people. VoIJ have got blood .unnlng through your veins ilnd you have gol a hCilll bealing. If you slick )UUf flngel, 'fUll ble«i. One of these days, II may be lomOITOW or II may 00 yeilll frOm now. bUI you i1rt) ClYCry one going 10 die. I'm 80108 to die and M•• HlIsseli is 80lng !~ ~Ie. 'I\nd lady and 1:\elltlemun, when yOu die ilod I dio:, we are going 10 '.lce lhe ume M:lker. We are 8Qlng to ilnswer lor wha,t we did on Ihis eilrth. I'm goIng lo ilnswer Ior whall did. ll'l mIllilli you something, 11Id)' and gentlemen. A C()rI>o.~llon has no heilrt, II h<ls 1101 no SQUt. It hilS gol 1'10 /ea. 01 Hell and Dilmnallon in 100 hereil!1eC Thl! supreme court reversed on other grounds, but "for guidance in the e\lent of anOlhcr tria l ~ said, " [Tlhis argument was improper, highly prej udicial and nOI re levilnt to any Issues In Ihc case. A corporation is entitled 10 fair and equal treatment if it is II P<lrty to litigalion .~ Id., 291 Alii. at 273, 280 So.2d til 106. See al$o Alabama Electric Co-Operatille, Inc. v. Paflfldsc, 284 Ala. 442, 447, 225 So.2d The Alab,lma Lawyer

848, 852 (1969) ('Employers Mulual of W.1USi'lU Is not a persoll, Ihey don't have blood in their veins, alld you can't cut Ihem and hurt them'); Gordon II. Nail, 379 So.2d 585, 586 (Ala. 1980) (~ It doesn't hove a soul, It has a board of directors"). Other cases concern im proper slatemt:ntS abou t the conduc t or mel hods of corp ora t ions. The se argumenlS frequen tl y Involve assertions or Implications lhal y, itn~ses who art! corporate employees wi ll lose their jobs If they testify adversely to Ihe coml)1l11Y. For example, "'if defendant's employees 'NCre guilty of negligence and came Into Coutt ilnd admi ned It, they y,/()uld lose thei r jobsHwas deem(.'<.i to hilve "passed the bounds of legilimate ilrgument" in Lou isville &- N.R. Co. v. Cunningham Hardware Co., 213 Ala. 252, 255,104 So. 433, 435 (1925). See also LoulslliIIe & Nashville Rnllfood Co. v. Wade, 280 Ala. 453, 195 So.2d 101 (19671 (concerning a stOl tement Ihllt the presence of bosses In the coullroom WJS Intended 10 In· timidalC emplcrtee wi tnesses); American Rubber (0fP. v. /Olley, 260 Ala. 600, &OS, 72 So.2d 102, 106 (1954) ("if ~u told it, you wou ld lose your lob"); Birmingh,lm Electric Co. v. Cfevt!/and, 1160 Ala. 455, 462, 113 So. 403, 408 0927) (cooduCior and molorman who allcgedly Inlured boy on Cilr "J re not going to let It be known" since "they nfll nOlgoing to lose their jobs'1. In I,t)uisville &- N.R. Co. II. MIl50n, 10 Ala.Api>. 263, 271, 64 So. 154, 157 (1914), the following argumenl was deemed " highly Improper": "If)Uu reach a IICrdl\:1by makin1:\ 11 In thm wilY lby (Iuotlent], :IS soon as Ihe Jury room Is cleared, where you h;we been, lhere will be somebody Ihl'fC picking up KrOll)!> oll),1t>e1' 10 sec If there 15:1 qllollent verCl ct, 8nd, If they nnd allYlhlnsthere Ihat looks like Ihat, lhey will b.lng il In. and have it sec aside, so. when you go and gt,'I a ~. diet for thi s pl~lntlff, <xany OIher plainIlffln Ihls Slate, aS~lnSI a corporation. you hiIIIC 10 8u~rd ag.linSt C!IICrylhlng." The court rcfuS@<! 10 tl,.>verse, however, because "It docs not aPl)Caf that thc rulIng of Ihe l ria l court with respecl thereto were promptly illYOked:' Id., 64 So. al 157. 10 Moore v. Crow, 267 Alii. 325, 328, 101 So.l d 32 1, 323 (I958), the trial court oYCrruled objections to the follOYo' ing:

~Are we lIolns to let the 1000n romp.l nies in ,eifel'j(ln County Uke Ihe Acme loan ComPiiny lakl'll!Yen 00tl 01 us and throw us In iail for a elllil dl'lbt ilnd Milke uS underso !he rigors and lortures of the damnedr' The supreme court reversed, saying Ihat "v.oe think substantial prejudice ... rCSul ted" ilnd Ihill "Q\lCrruling the defendant's objections tended to pul Ihe courl'S staml) of approval upon such argument." Id.

O. A ppeals to the fi nancial interests of jurors Ills improper for counsel to appeal to the jurors' financial interests. In Williams

v. (ilYof Ann/Slon, 257 Ala. 191, 192, 58 5o.2d 115, 116 (1952), the trial court failed 10 S u ~laln all objection to the following Improper argument: "If the plaintiff Is giWfl iI verdict, where will Ihe mOlley (orne fromT II will COOle out of the city trea sury. The clly has no money of Its own. The! onty mon(!y which II has Is money which it sels from I,lxes. Alllhc Imprl'M!mcots. 1nc:llJdlng thls c;oI.lIThouse Wltre In, h:Ml to be paid 10' out oI til)(Cs- Taxes are used 10 build the! Slrre!s ilnd !he schools. All clly impfO'.'CrlletllS c;lll for I3XCS. Our mon(!y nlUSI SO for Ihose things. And li the plalnllff Is ,Iwn a \Ill,. dict loo money will have 10 come OUI ol l;J~~

Thc SUI)remC court rt.'YCl'5ed since, "(lIn effect counsel for the defendant told Ihe membel'5 of the jury Ihat if Ihey g<M! the plaintiff a verdict. thl'Y were taki ng !he mon(.'Y oul of their own pockms." /d. See also Badger II. I-Iollon, 27 Ala.App. 53 4, 175 So. 700 (1937). In Lawrence v. Alabama Power Co., 385 Sc.2d 986, 987 (1980), defense counsellTlildc the following appeal to Ihe juror'~ financial interests as uillity C1.Istomers: "10 OIherwords, Ihe plaintiff ~lU~ ImMl Iha! IlX'!Iligencel and If he 1\.;1; 00(, then 'f(lU CM not return it \IIllt!lct In his fiIvor. And than. sornCIlmes not an easy thing. and I know thaI It's nOI an MSy Ihlns 10 Ihis CiiSC. The easy thins would be [10] say. '()1.;ay, ~ feel sorf) for these people and thel'Cfol'fl wt!'ro going to return iI IICrdlcl against the PQ.o.1lI Comj).loy. Tht'Y Ciln afford to ~ It: And thai's I~, and lhe rales will be passed 00, beciluse It's a public ulility, ilnd the rilles ilre bilsed on the expenses, and It'll be 1);ISSl>d on, bUI you arl! Ihe IflW In Ihls caK', and!iO you hM! to answer the question tOO<l)';"

On appeal by the plainTiffs, the supreme

E. Appeals to passion and sympathy

cuurt declined 10 ~rse be(ause no ob-

An appeal 10 the sympalhy or passion of a Jury Is Improper. An improper, though eradicated, appe(l( to a jury's syml)athy was made in Mobile UShl &R.R. Co. v, GalliJsch, 210 Ala. 2 1 ~, 220, 97 So. 733, 734 (1923), where "[T)hc at路 torney for Ihc plaintiff in his c losing argumen t 1(1 Ihe jury SltIIl!d to Ihl! jury ... Ih<l' the plalnllff was a mother and a wife <lnd remarked Ihat Ihe jury knew whm a mOlher meant to iI home and urged the jury to increase her damages on ilccount th ereof:' See ii/SO We & CasuallY Ins. Co. v. Bell, 235 Ala. 548, 552, 160 So. 573, 576 (1938) (referen ce TO plai ntiff as "that depressing fi gure" improper but eradi cated); Alilooms Pr'.Jwf!r CO. V. BOWf!fS, 252 Ala . 49, 53, 39 So.2d 40 2, 405 (1949) (reference to father kneeling by son "dyIng In his own blood" Improper though eradicated). An improper ilPpeill to The passion of a jury wa s made in Sirmingnam Electric Co. v. M cQ!leen, 253 Ala. 395, 401, 44 So.2d 598, 603 (19~O) , where Illalntlff's counsel Slated:

lion had been madl! and Ihe coun was "si mply unable to conclude Ihal Ihe re ma rks cited when considered (llong with the entire Irlal [described as low-key and strai ghtforwardl 'Nere 'so grossly improper' and 'highly prejudicial' Ihal Itheir] evil influence and effecl (were] incradicabll! . .. by proper admoni lion:' Id., 385 So.2d al 988. See also Holt v. Stale fa rm Mul. Aulo. Ins. Co., 507 So.2d 388, 391 (Al a. 1986), In which thl! supreme court reversed where the trial court had O'IIerru led an ob jection to Ihe following argumen t: "I submit 10 you

1~3t

If you base-or

](Iries b.1se-Thelr ...erdlcTs In a case liloo This purely w T of sympaThy for The ddcndants, n()I on dle b~ SI$ 01 The fae!$, Ihm Insur;UlCf! comp.lnles wi ll 500n go OUI of business." The courl classified thi s ilrgumenT as a referC!nce to lhe 'Neahh or pcrverly of a litigant, but the remurk dearly could have been construed as an ap~a lto Ihe jurors' interests as insureds.

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216 Ala. 455, 462, 113 So. 40,), 408 (I927), The court said: ''The court cannoT TOO narrlM'ly circumscribe Ihc KOIIC and lilTitvde of Mgumeili. Counsel mUIT be allowed, wiThin limiTS. TO draw Their IM'n conclu slollS aT1d TO(')(~~ Tfleir argUlllC!lIS In Thoir Ow!! wi'Y, pf'OYlded, of course, They dQ nOTTrilVtl OUI oIlhe record or make u~ of unfair mean; To creale p~ judice in Ihe minds of Ihe jury." When "counsel Slated 10 the jury That defendant had scoured the record s of

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fNCry doctor's office in the county to get something on plaintiff, and also plaintiff WOlS as SWl."l!t as a len«n\ OOltle of Hoyt's cologne as long ilS he was PilYing In, but as soon as he got sick he WOlS a5 offen· sive as II polecat to the company," the court thought, "While the statements of counsel In llrgument might be lerml!(! rather CKtravagant, they are not wholly unSUPIX.Hted IJi th evidence." Nllllonal Life Insurance Co. of America v. Hedgccorh, 16 AL1.App. 272, 273, 77 So. 422,422.23 (I917). In While v. While, 33 Ala.App. 40), 34 So.2d 182, 18) (1948), counsel's reference to his dl(! n! (who was suing to collect a debt) as an "afflieloo [handicllppedl slstcr" did not require revcl"S<11 si nce Uthe lury wu privllcged to observe her condition" and "counsel could make comment In llfgument on this evidential fael :' Nor did the supreme court r(!YCr,;c where counsel made the fol1owlng fCmark in a medical malpr<lctice sull: HGcntlemcn oflhc jury, you 5hO\IId not lhow to the dclendant <lOY more consider-ilion on Ihls trial than he shw.OO to [the Plalntlfll when he took th~t big steel Instrument ilnd I<\mmcd It Into It he plaintlff's\ Pl'flis and gouged a hole In it:' Piper v. Halford, 247 Ala. 5)0, 531, 25 So.2d 264. 265 (1946) ('Thcnfgumcntof counsel ... merely was an emphatic W<f( of stating pla l ntiff~ contention .•• ;. See also Woly/and Distributing Co. v. Cay, 287 Ala . 447, 454, 252 Sc.2d 414, 42 1 (19m, where the court held that an Invitation to the jury to consider that "a man has been wi ped olf the earth and his fam ily cut in half" Wi.lS not so Inflamnlatory as to require rL>versal where the trial coutt had oYerrulcd objections btlt charged the jury agt.lnst deciding the case on the basis of Symp<llhy. And $C(I Windham v. Newton, 200 Ala. 258, 259, 76 So. 24, 25 (1917), where the renlark, ''Why, these men considered it a trifling thing for the boy to have his leg crushed" was "justified" by "the evidence, the Issues, or the testimony:' The following remMks by counsello'.\!!'C allowed, QV{!r objections, in a wlongful death Cllse: "1 w,n thinking of the beginning of longfellow's poe'", 'The Reaper. 1was thinking that In connectiOn, g~ntlemen, 'There Is a Reaper wl\OStl namt! is Ocath, and with hl$ cycle keen he cutS the bearded gl.ln In II brem'h and nowetS that grow between.'

i\od nelt' was iI 19-y1!ar~ld n~, and as human beings. v.e have the losses In lIIe, but you go thlOO8h a bureau drawer, and you will have In It a few Kodak picwres and iI book, and a Wiltch he used to ~ar, little scraps of maybe a pMtlcular Jhlt1 he was proud of. That Is his bure~u drawer. He II gone, he is living In a mount undet' a nlouotaln on a hillside, bol ~u can go and open that dritWtl' and Ioc:* al the leiters he used 10 write, and the pictu~ 01 his friends he used 10 toli«!, and you can think of how he ust.'<I to come In;md kiss his mother and add Joy and delight and brightness to the home:' $outlletn R.1l/way Co. V.IaN!$, 266 Ala. 440, 445, 97 Sc.2d 549, 55) (1957). Incredibly, the cout1 on appeal declined to reverse since the lem,lIks \.YCre made as an "illustration" and not as an assertion of f3e1. Stili, such appeals 10 passion or sympathy are fraught with peril. The followIng remarks of counsel in his openln.g statement wcrt"! held improper: "Now thIS accident happened back in January 1968'· ' when Susan Swan was killed • • • !Hler daddy, Col. Swan, was flying comb..lt in Southeast Mia:' Magnusson v. SWiln, 291 Ala, 151, 15)·54, 279 So.2d 4)), 42) (1973) (eradicated by prompt Instruction to jUry). And a plaIntiff's counsel's reference to his dier" as a "poor, crippled Vetelan" was held 1m· proper, though eradicated by a very strong response from the trial COUll, in American Rubber Corp. v. Jolley, 260 Ala. 600, 60S, 72 So.ld 102, 107 (1954), In 8ritf/ng Cafeteria Co. v. ShOlts, 230 Ala. 597, 597, 162 Sc 378, 378 (1935), where the trial court oycrruied an obJectIon "to thilt portion of the argume nt of plaintiff's coonsel whcfein he stolted that the plai nt iff was a poor country bov come to lown from Fooklin Count'(.' the SUI)reme court rcycrsro, saying: "The nmural tendency is to create preJudice and the arsurrcnt must be ac· corded 'lust that purpose which 111 3uthor Intended It shoutd se~ not hing less." ' · Illf it be spld thilt reversal of the Judgmtnt In such caW!S may work a hardship Ul)On allllClk't!. It results from the conduct of him who stnnds as his sponsor in thc triaL We know of no more effective vay 0( repressing the wrong Jnd fI'lahll .. lnlng the Integrity 01 the proiesslon In the ad· fI'llnlsualion of thl! liIW.~ Alabama "decisions are 10 the effect that though a fact may be in the proof, yet this would not Justify an ur\due use

thereof In order to a rou~ sympathy or preJudice.~ New Employees' 8enevolenl Soc. v. Agricola, 240 Ala. 668, 676, 200 50. 748, '55 (1941), cltinS Birmingham Efectric Co. v. Mann, 226 Ala. 379, 147 So. 165 (193)).

F, Invitatio ns to jurors tOl tand in the shoes of litigants HQnerally, an appeal to 1M jury's sympathy du ring closing argument by Inviting the jurors, IndivIdually, to stand In the shoes of the litigant Is considered Improper, Allison v. AclOn-Etlteridge Coal Co., 289 Ala. 44), 268 So.2d n5 (1972). Case law demonstrates, however, thilt the courtS hifYC nOt been ~rly ,estrie1;ve in their appl1c3tlon of this rule." Fountain v. Phillips, 439 So.2d 59, 63 (..... la. 1983). In Founf.lln the cout1 held thaI there was no b.1sis for reversal where counsel argued, "We arc dealing with lICriouS busincss . , . the same thins could happen Ie) you or to your family or .,.aur estate:' In Black Belt \>\bod Co., Inc. v. Ses· sions, 514 So.2d 12 49, 125-1 (Ala. 1986), the trial court sustained an objection and Instructed the jury to disregard the followIng ",gument: NI will <.Ipproach this task as I h;we tried to seriously JUSt as)OU wo~Jld W,lflt it if you were on the fron t r/;]oN in this courtloom.H On appeal, the Alabama SU1)reme Court ago11n stated that inviting Nthe jury to stllnd In the shoes of the litigant is considered im· proper;" bul th(! court found, In Ihe light of the tlial court's actions, that revcr531 was not w;lrrantcd.ld., 514 So.2d ilt 1254. In Hayles v. leter, 279 Ala. 28), 284, 184 So.2d )63, ]64 (1966), the plaintiff's cmlllsel invited NyoU, gentlemen, to put yourself in the plllintiff's place." ..... n 0bjection to this argument was oYerruloo. In amrming. the Alabama Supreme Court said: ~ do not So,.,. such af1\ument would be proprl. We do 001, hoNever, ha-oe before U$ enough 01 thc arsument to SitoI that the Nrt Invilallon consliCuted such a forbidden appeal 10 the sym· palhy of the Jurors as to prejudice defendant to the (!l(tcnl that Ihis judgment must be reversed." Id., 279 Alii. 1\1 285-86, 184 So.2d at 366 (emphasiS added). In AI/(!n v. Mobile InterslAte Piledrivers. 475 5o.2d 530, 5)7 (Ala. 1985), the trial court's overruling of an objection to the plaIn tiff's counsel's invitiltion to "1)ICture 15

The Alabama lawyer

a line o( people, about a dozen people,~ PUI in !he plaintiffs place and asked 10 fill in a blank cheek was held 001 reversible efl'Of because lhe argument referred to ~some unspecified Inlaginary indlvld· ual s.~

In 8rillsh CAmeral Insurance Co. If. Simpson Sales Co., 265 Ala. 683, 689, 93 So.2d 763, 768 (1957), the plalnli(( alleg(.>(j thai his Insur,mCI:! flsent had told him Ihal his property would be covered by his 1>oIIey when he moved to Tennessee, and hl$ counS(!1 argued to the lury: ~Centlemen

when you w,'Ilk Into your

Insurance agent's .•. you had ~"tCf not 80 In and say I want to insure mr automobile and fai t to~, but I am goInlilO Mke a !rlp to Florida, rlOW, wile willI call on in Florida to lake can.! of It, whllo I have It In Florldal Art yOu goin8 /0 do thlllf ~Now

the 8r,'t /5h General In5urance Company say.!. 011, no, we C,IO't insUf@ that ptOpCfI)\ ' " I~aw woold yOu I,ke to M~e tlllt M~n /0 your' (f'm· phasls ~dedl.

On appeal, the court said Ihat the remarks were nol SO improper and preJudicial as 10 requite reversal and Ihat Nlm]uch muSt be leI't In SUCh malle" to the enlightened judgment of Ihe trial court •...~ See also Crump v. Gee, BTOfhef5, Inc., 336 So.2d 1091, 1097 (Ala. 1976) ("if Ihere wa s error, il was error without Injury". In Eills Trucking Co., Inc. v. /-1am· mOlld, 387 Sc.2d 768, 773 (Ala. 1980l, however, Ihe O\Ierruling o( an objection 10 "[I]he last Slatem~nl made in dosing arglJmcnt by plahlllf~s attorney to the ef(eel that 'if somebody told yot.t that you were going 10 go through !hill wrcck~' was deemed reversible error. The supreme court held. "In the instant casc, lnere was nOl merely a bare Invitation for Ihe jurorS to putlhemsclves In Ihe placp. o( the plaintiff. There was more. T:!c argument here presen led was an appeal 10 the jure"' ft!dlngs and passion, IiInlamount to requesting the Juro" to hold In (avor of Ihe plaintiff based upon the jlJl'OfS' sympalhy (or" the plainliff. Id. 387 So.2d at 774.

C. Appeals 10 loca l o r racial prejudice Appeals to local or radal prejudice are improper. In Florence COIlon & Iron Co. v. Field, 104 Ala. 4n , 480, 16 So. 538,

--------------,

r-----I I I

Compare Estis, howevet with Osborne Truck LilW's, Inc. If. f.angs!on, 454 So.2d 1317, 1322·23 (Ala. 1964), where the plainl1ffs' counsel's suggestion ,hat the jurors consider whether ~a family" would accepl $5.000.000 in exchange (or allowing the children In the f~mlly to be Injured was dismissed by the supreme court a~ merely ~an allegorical discussion of an Imaginary family." Counsel's argumenl COt\Ifli ned, In addition to Ihe mylhlcal family, the Npartlcular remark, "'v'o.buld you lake fiYC million dollilrSr~ Id. The court did nOl discuss the allegorical oallJre of this language, but did M le Ihat il "has the appearance ... o( ..-erglng on appeal to the sympathy of Ihe Jury." Id. The defendants, h()W(.'\.'CI, had not objected on thIs ground, and Ihe coun did nOI consider whether the argument in (act passed beyond the \'Crge.

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/anuary 1989

S40 (1694), the $upreme court ~~ where the trial judge failed to eradicate the following ilfgl.Jment: "Itlhey came down here, a party of rich Northern capitalists, wanting to specl.J late on our property, alld are now trying to rob an elegant, chivalrous Southern gentleman of his juslly and hard-earned salary.' The court said: ~.•. the reman.: was calculated to seriously prejudice and Injure tki! defendant with the Jury. The action of the COurt Inl!xdudlng It w~s YIlry mUd and nOt a sumelent ~ntldoto to the polson that had ~n Injected Into the minds 01 the Jury .... VerdIcts ought not btl won by such m~hods, and when an anomey. In the! hNt cI ciebatto, goes to such extraordInary lengths. senerally, the court Iihould promptly SeI aside any ~rdlclthat mwy be rendered for his client. The repressive f}Ovo1ll1 01 a court, to preYl!nl such depMures from legltlmale argument ... should be vlsorOusly IIlljl tlt!d. No mere stillemenl, thaI It Is 0l.C d order or ImIXOlX'r, Clln meel Ihe eloigcncles of the case. NOlhlng shon 01 such action ... and iI clear salisfaclion, thaI lhe preJudice ... had been r\.'!TI<M.-d ffOm lhe minds oIlhe Jury, oughtll\oer to rescue a caSCI ffOm a nl!W trial. .. :'

Id., 104 Ala. at 4BO·61, 16 So. al S4().41. The supreme court affirmed the granling of a new trial In Haywood v. Ai.lbam.l Fuel &- Iron Co., 20) Ala. 550. 551, 64 So. 259, 260 (1919), on the basis of remarks thai included a reference to shareholdcrs of Ihe defendanl gathering "around thc table in Washington to divide the dividends:' In 8rOlhcrhood of PJlnrers, eIC" of America v. Trimm, 207 ;.1.1. 587, 588, 93 So. 533, 5)) (1922), the court ~rsed where the trial court (M!rruled an objection to the following remark: "You know that any member of thi§ local 1111101'1 here would gladly Pity Ihis m~n, If they had charge 01 the dlsJJursement of the money. Genllemen. you 0re nOlll!ndcrin8 a verdict 3Silinst the loeOlI union herc, butthesc people up In Indiana," In General Finance Corp. v. Smith, 505 So.2d 1045, 1046 (Ata. 1987), hClWl'\ler, Ihe Alabama Supreme Court held Ihat th e trial court adequately eradicated Ih(o follOWing argument: "Your verdict has got 10 be a big enough verdlCI so lhat it Will be heard In !1I11lO1$ ;\1 d~ c:orj)Ofale head· quarters. 50 thaI tkese folks like the Mike Houses 01 the world won't be

The! Alabama Lawyer

I.ughlng OIl .,.ou. They're laughing at

you. They're Iilughing OIl me. OIlrnleol' I~r from Phenl~ City." The court called it an "indirect Interjeclion of wealth" that was eradicated by an objecti on and curati'''Il instruction. Id., 505 So.2d al 1049. In Mclemore v. International Union, 264 Ala. 5J8, 542, 86 So.2d 170, 172 (1956), an aClion against a labor union for prcYentingthe plaintiff from working at his job, the following remtlrks ....'(m~ held InerOldicilble:

"There ure men 11'1 MOrg.m County who will not sit In a Union Hilil with .. n('tlfO. There ilre men In Morg.lll Coun· ty who will not walk .. plckef line With a negt'O. I don't blamt them. They have as much right 10 their opinion about Ihat ~~ the Union ~as to ~ contr;lry oplnlon .~

In offl/mlns Ihe tlran tinij of II ntlW trial, the court notoo with apwov.11 the trial court's confession of Its "dereliction in not aCling sua sponn~ In stopping the argument:' Id.. 264;.1iI at 544. 66 So.2d at 174. In Donald Y. MJlheny, 276 Ala. 52, 56. 156 So.2d 909. 912 {1963}, it radal "Jrgu· ment was improper. bu t nOI InCl.Jrable.N Counsel hod slaled, ''Due to the breed of the race, we were iI(rilid she would chantle her lestlmony, which she did .~ The !rial court suw~lned an objection. but N]nJo further action was irM>ked by the defendant:' Id.. 276 Ala. at 57, 158 So.2d 01 91).

H, Comments on the fa ilure to call an equall y avai lable witn ess "TheM Is ~ rule, and J jusl one. that if iI party hIlS a wit"~s possessing peculrar knowledge cJ the lr.m~llon, and supposed to be I.worilble 10 hIm. and falls to produce ~ wlmess when he hilS Ihe "'le~f1~ of doing so, this. In the au!O(!nce of all {'~p!anatlon. Is ground of 51lsplc;ion ag"lnSI him ... :'

Carler v. Chambers. 79 Ala. 223 (1665). 'i\ party canoot comnent In argument upon the failure of his opponent to call a p<lrtlcular witness if the wltnes~ is equally accessible to bolh parties.~ Donaldsol! v. Buck, ))3 50.2d 786, 787 (Alii. 19761; Set' also \¥.Ing v. Bolivia Lumber Co., 516 Sc.2d 521 (Ala. 1987); Clfy 01 Birmingham Y. /.evens. 24t Ala . 47, 200 So. 666 (1941). Determining whelher a witness is ~cqually available" is 5()nletlmes difficult.

hcM'cver. Amenability to liervlce of process Is relNanl to a witness's availability, but ~I I Is nOI Ihe sole criterion:' Don.,ldson v. Buck. 333 So.2d 786. 787 (Ala. 1982). A "reilsonablc cOrlCluslon" tha t the wilncss would be friendly 10 one party and unfriendly to the other can determine whether the witness Is equat. ly available. In Donaldson a potential whness was not equilly ;lVailable because he had filed suit against the delendanl and had cmploytod the plaintiff's counsel. Where the witness "and the Il lalntlff were obviously fri ends." Ihe witness was not "equally available." Har';$011 v. \o\bodley Square Apartments, 421 So.2d 101, 10) (Alii. 1982). Close relatiYeS also are nOl l.'Qually available. Black Bell \I\.bod Co., Inc. v. Sessions, 514 So.2d 1249 (Ala. 1986) (potential witness was son of corpora te defendanl'S owner); Waller v. SIiI IC, 242 Ala. 1. 4 So.2d 911 (19411. I'artles, of course, are nOI equally available, and "Ihe failure or refusal of a party In a civil aCl lon to testify when prI!SCnt Is ordinarily sublec1 to comment ...." Slegall v. \lVylie, 291 Ala. 1, 7, 277 So.2d 85, 90 (197)). The Mgument, "I c<ln't close, I fee l, In Justice to my client w ithout rel>Elati ng. Isn't It Slranije to you that the doctor they seled, Dr. CI)(Ie 8rOWn, has not been c,llled before you to tell what he saw jusl a (c,y seconds after lhe accident,~ was improper, because Ihe doctOfW.lSavaililble to both parties. Coopcr Y. Cubbs, 262 ;'Ia. 519, 52 1, 80 So.2d 26', 285 (1955). SI.'f! also CilY of Birmingham v. /.evens, 241 Ala. 47, 200 So. 886 (1941). Where a polemial wi t n~S'$ mediColl record en· tries, however. "clearly indicated tha t tcstlmony (rom him would be favorable \0 the defendants;' the court al>!lrc.J'.«l the trial judge's determination Ihal th e witness was 110\ "equally t.lWIliable:· Drs. /...lrJe, Bryant, Eubanks & Dulslley V. Ous. 412 So.2d 254, 260 (Ala. 1982). I . Co mments o n th e co nduct o r c har.lcter of o pposing counsel Comments concernln& OPPOSi ng counsel come in various forms and are frequenlly Improper. "I\s was said I1r Justice Gardner Inmnt v. StJle ICltillion omittedl 'We mllst not

lose sight d the f<K\ IIIdI a tfial Is al~1 \);1111(', a (omn,n In a sense ~nd oot ~ parlor SOCial iI((air.' To pul II a little diffefClltly. Il ls eI\~ thaI counsel Will

strikl! hard blows In behalf ()f his ellen! but, of COUr$t', /he blows mu.il nor be foul blows. N

A/aooma Greal So. R:.ii/road Co v. Cam· brel/, 262 Ala, 290, 293, 78 So,2d 619, 621 (1955) (emphasis added). "Remarks of counsel reflecting UI)Qn the opposing counsel for Interposing objections to proposed evidence should not be Indulgoo," Brown v. Brown, 242 AI,.. 630, 632, 7 $0.2d 557, 558 (1942). The following argument was held in· eradicilble in 8irminsham EIOC/rit; CO. v. Ryder, 225 Ala. 369, 370, 144 So. 18, 19 (19J2). "ILlet me tcll.,ou one thing, about the lJirminglmm Electric Comp.'rly. They hIM: got at1Orne'y'S up heff.', and any old w,ly to bff.'ak Irto, whco I get belOYl' thll belt, and hit a lick that hurts and tell the tru th, tIH."'!' break Imo my Une of thou!>ht, and Into my argument-lust nnyrhlng to save the company, rM!rl, when they ilre hookt-d:' An argument that "when the shoe begins to pinch a liule bit, he objects," h()<M..cwr, did not require a mistrial where the trial court had sustained (In objection, P,lcific

Mu t. Life Ins, Co. of C.1liforniiJ v, Green, 232 Al a. 50, 52, 166 So, 696, 696 (1936). At the very least, it would seem, such arguments sho\lld flQl be "lnd\IJged in, viL'Wing them from the standl)Qint of professional e!iqucnc." LouisvU/e & N.R. Co. v. Wa tson, 208 Ala. 319, 323, 94 So. 551, 554 (1922) (lhe court refused !o reverse, however, where plain tiff's counsel had simply complained of defendant's at· torney's "voluminous objecti ons" in the heilring of the jury) , Comments reflecting UI)Qn othcr taco tics of oppo~ing counse l also ha~ been deemed Improper. In Sinclair v. Taylor, 233 Ala. 304, 304, 171 So, 726, 726 (1937), tht'! following argument was held InerJdicable: "/\ lawyer should not tamper with ~ jury, an umpire or a judI)(! in lhe tr"11 of a l:rwsult ••• He (naming attorney for defendant) made a statement to the lury ••• well, that Is tampering with them . ••• I~e was making side remark s alld ~mil ing M thl} Jury, ;'!nd wa s there looking at th e lury when the witness wa s on the ~tand, and we had thought that he w.u asking the Jury a question:'

In Birminsham flccl ric CO. II. Perkins, 249 Ala. 426, 430, 31 So.2d 640, 642 (1947), th€! follcl'wlng improper st ~ tem€!nt did not require ilrarlllJlg motlOrls for a mistrial or nINo' trial ~aLlse II had been excluded by the trial court: "He (defense counsel) has got what is called a SeilrsRoebuck brand of interrogatories, about 75 of those things, and <I,king a man to make answer to each of them- he don't (sic) have to answer Ihem thai way." Nor did the foUowiflS iflapproprlatc rerliark in WL'SICrrl Ry. of Alabama v. Mays, 197 Ala. 367, 374, 72 So, 641,644 (1916), require a new tria l when It was wi thdrawn with apology and counsel faited 10 ask the court 10 exclude it; "He [(I witn ess) could not remember what had been told him; he cO\lld not remember what had bwn drilll.,'d into him." (emphaSis added). In Hilrvey Ril81and Co v Newlon, 268 Ala. 192, 198, 105 50.2d 110, 114 (1958), a remark before the Jury Ina! a statement by opposIng counsel was not made in "good faith" was "not of iUch grossness as to re<luire the granting of a motion fOf new triill;' but II WilSdeernt,'d improper. Apparently the first complaint concern·

-NOTICEState Constitutional Clea ringhouse Project hi 1987, urider a graril awatded by the State Justice Institute, the National Association of Auorneys General organized a State Constitutional law Clearinghouse Project. The association ilgaln thi s year wil1l>roduce both a monthly public.l· Uon and an annual law review, and organize a seminar on ~t<rte constitutionalliIW (in Washington, O,C., Mart;h 9·10, 19a9). Further Information follows aoout eilch of the project's aCl ivilies.

Stale Constitutional

L.1W

Bulletin

Ten monthly issues, slarllng Ihis month, comprise VoI\l me 2. A three-ring binder <Jnd subject (lnd CiI$e indiCes arl:l I!lcluded with a subsCtipllon. Each issue summarizes recent significant state constitutionalliIW dcc;;isions in two areas, governrllenlal powers and functions and individuill liberties.

Seminar: March 9-10, 1989, Washington, D.C. A I 112 day scmlnar on state constitutional lilw ISS\Ie5 hilS been schedu led . In the first yeM, iI one-day seminar includl.>d facuity and parl iclpants from the full spectrum of th ose interested in Ihe subject. Topics included the theory and hi story of sta te constitutions, effective presenlation of slate constitutiotlill law cases, consideration of indepcndent5tiltE grounds to resolve criminal procedure questions, separt1lion of J>OYICfS and stilte officials' PQWllrs·and-<luties questions, method· ologies of Interpretation and a moot COUrT argument on the constitutional bar to usc of state cred it for private purposes. One of the S\ICcesses or the S(!min!lf WilS the r;Jnge of participll ti(m- from the judiciary, the public arld prl\,ate bars, aC(ldemi" ilnd the medii!. The same breadth of representation Is expected next time. The Association makes e'.1!ry effort 10 comply with con tinuing leg.ll education requirements, and has been accredited as a J)resumpllvely recognized ClE provider in 29 stateS. Pre-registra tlori fOrms will be ayailable with the January Issue of Bulletin. The regi strJ tion fee is $95.

Annua l law Review Th€! association will publish a sC!cond collcctlon of arl ldes on stm<l conslll ullonallaw developments in the volume of EmerSJng I$su£!$ ill Stale: CorWitutional Law to be released next fal I.

January 1989

ing this rem,lrk was made in a mQlion (or a new trial. The follOYo'ing slatemCnlS are addi[ional cx'lmplu$ cJ improper comments concerning opposing counsel: "I will Hill you thi s: Whenever you see lawyer walk In Ihe courtroom and commence IryinS a case, It don't mt!an IuS! like II means when you .st.'e Ihese shock [fOOj:)S like my Iriel'ld Mcfarland come In and try a case. It don't alw;l'f5 lu~t mean cold-hearted bu5InI!SS.~

F. W. \M:lolw(uth Co. v. Erickson, 221 Ala, 5, 6, 127 So. 534,535 (1930) (Mgument held e.adlcatl!d by trial court, but key element In reduction of verdict by a!)l)ellate court.). 'IWlhen II man IIOCJ ~nd gel ~ ecorse BMnet and Henry jon(>s both (defen· dant's al1orncys), hefl gOI a bad C;ISC , •• :

Ritter v. Cibson, 217 Ala, 304, 306, 116 So. 158, 160 11926} (Objection held insufficient). In Birmingham Ry., Lisht &, Power Co. v. Brennen, 175 Ala. 338, 349, 57 So. 676, 880 (1911), the plaintiff's counsel slated to the Jury: " know Hugh Morrow [the defendant's attorneyl and 1 know what I om going to lell you about him Is true. I know that if he was on the jury trying this case he would render a verdict in favor of the plaintiff in a large amount." tn response, the Alabama SUI)reme COurt said, "It would 00 difficult to conceive of argument more 01>J('Ctlonable, unfair, and prejudicial Ihan was this, coming, as It did, In the dosIng argument, to which Ihe defendant's counsel has no opporl1,mity 10 relJly. Courts should not al low verdiCIS obtained by such argum!.>nt to stand." Id., 175 Ala. ilt 349-50, 57 So. at 880. Th~ court held the argument uneradlcated. The Irlal court had sustained an oblection, "but the court did not ex mCfO molu exclude such argument or reprimand counsel so using it." 'd., 175 Ala. at 350, 51 So. at 680. The similar statement, "I would be willing 10 hiMl defendant's law~rs on the Jury:' Ihough "highly improper" did nOI require a nt.>w trial where the COurl sustained an objection, excluded the st<llemenl and admonished counsel to confine himself to the evidence. Alabama Pawer Co. v. Goodwin, 214 Ala. 15, 17, 106 So. 239, 240 (1925).

The Alllbllnl;1 Lilwycr

J. Comments regardillg the cOllduct or character of parties aoo witnesses In john5ton 8ros. Co. v. Bentley, 2 Ala.API). 281, 287, 56 So. 742, 744 (1911), Ihe court reversed and held it Improl)er for counsel "in his closi ng argumenl to the Jury, to r(!ad The pleils filed by Ithel defendant, selling up lIS different defenses, and calUng a!tontion 10 Ihe different dates ci their flUng, and to state in the argument, i n connection with reOOing the pleas, that he (counsel) could see the president of the defendant in the law officfJ of his counsel, lelling wh(11 his defense was, and the stenographer of counsel for defendant tilking down the statement, and at a subsequent time, as shown Iyt' the alk>g.ations In a plea subsequently flied, defendal'lt's I)rosident had staled a different defense to his counsel.~ The court said: '~ .. the trial court should, UllOn f(.... qUCSl, IflSIraln coonsel within the limits oI tegilimate aliument and ... when Ihe 'I"temenl is 01 a fact pcrtment to Ike Issue. unsupported by the evidence. ~nd h-wlng a na1ul~t tendency 10 inf1uencl! the finding oI lhe Jury, a fJ,lure to do so iluthorizl!'§ • ~rsal of the caw:' Id. , 2 Alil.App. <It 289, 56 So. at 745. Tnt! OICrruling of iV1 objection to a reference in closing illiumentlo a doctor as "Inc slicknaired $50.00 witnes~," however, was permitted bcc.1use the "evidence supported the reference '$50.00 wilnC5S~' and the 3i>1)Cllate COurl nltd "no w,w of knowing how Ihe doctor's h;:lir was dressed," while the "triill Courl and jury were afforded this opportunity." TMnesree \{Illey Sand &, Gravel Co. v. Pi/lins. 35 Ala.App. 237, 47 So.2d 236, 243 (1950). The failure to strike a defense counsel referen ce 10 an expert witness as II "hired gun" In Cal/ow,ly v. Lemley, 362 So.2d 540, 542 (Ala. 1980), did nOI cons titute reversible error because the expert witness's qualifications were "hotly contes ted." The court. though, said, "By f ndlng thtll the reference to a 'hired gun' is not preJudlcltll, ~ should nOT be underslood as al>l>rOYlng its usage in a case where expertS testify and arC ~ompensated for their services." Id. , 382 )o.2d atS42. The court also suggested thm counsel's obj!.,,lion to the I~lter argument was nOl prOperly stated. In Ford Motor Credit Co. v. /aCbOfl, 347 So.2d 992, 996 (AI~.Civ.A I)P. 1977),

the debtor's counsel made an Improper reference in closing ilfKur'l'l('nt 10 another 8P1)arently similar la~il pending against the defendant, but the appellilte COlirt declined to reverse "giving due regmd to Ihe emph~ tl c Instructlor\S given the Jury to disregard. , • .In Birminshllm Electric Co. v. Carler, 234 Ala. 672, 672, 176 So. 464, 464 (193n, however, Ihe plaintiff's counsel made the following ineradicab le argument: "IH)e Idefend;l"I'S counsell brlng~ up 1htl IdCI 1hat I menlloned thm I dldn'l ever subpoena wilnes!-es where the 8lrnllngh....n Elec1rlc Company is defendant because lhel. l~tlS<ltors 80 O\.It and talk 10 them. tf you h;we had ally experience wilh IllYI'St g,1I01'$ and poople who write StatCml!flts, yoY know whal 1hey can do to II nC!8ro'~ st~temcnt. 'rou know, If you h!l\lC ever /tlven a Stiltc'llellt, 1h"tthat man write~ down everything .",U say f.M)r.lble to him and he leOl\lC5 our everylhing uniao.orable, aocl he writes II liP In hi~ ONn lolngUdge and pulJ It In ~uch 1;r.'OtJole terms that ,I 'f()u ~! go to read that st~teml~lI again hoe h.l$ got ~ all IU/lll'<l around and Iwi§ted ;!round and you don't know what you said." But a referen ce to iI delcnd~n t as a "parasite" was "jUStified by the evidence and Inferences to be drawn therefrom" where "the charge for Ihe loan was $4 per two weeks on $20,· SoutnCfn Finance Co. v. Foster, 19 Ala.AI>I>. 109, 111,95 So. 338 (1923). Similarly, in RoI.>crt M. Creen & 50ns v. Uneville Dru8 Co., 167 Ala. 372, 319, 52 So. 433, 436 \ I~IO) , the defend;lIlt's COUn$()1 "after calling attention to dlscrel>ancies in plaintiffs lestilllOny, fCf1larked, 'wh;n monUml!n"l) liars these plaintiffs Me,'" and the supreme court dcclin!.od to reYCI'SC, saying, "While we do not aPl)rovc of such langUilgc, ~t it was 3 comment on the evidence ..•." "In argument to the jury coun.el may no! argue as a fact 1hilt which I, not In (>vidence, but he may stale or conlnle!" on aU proper inferences from the evidence and mOlY draw conclusions from the evidence based on his own reasoning." I\d,lms v. 51111(', 291 Ala. 224, 228, 279 So.2d 488, 492 (197]). k . Damages Appeals to the jury to consider Irrelevant mailers In awarding damages are improper. These commenls are separable into two principal C,,[cgorles: (1) appeals 19

for punitive d amagcs when only (ompensatOry damage'S ore at iS$ue, and (2) :.ppeals (or compensatory damages In wrongful death (.;ilses where only puni tive damages are recoverable, In Hundley v. Ch<1Cllck. 109 Alo. 575, 19 So, 845 (1896), ar) action wa s filed to r(X:ovcr damagl!S (or a wrongful attachment. The complaint made no daim for punitive damages, but H[qoumel for the plaintiff, In his argument to the Jury stated, thaI 'Ihe aClion of dck:ndarlls In thi s case shOWl.'d vex· arloos, willful and nlallclo us perseculion of Ihe plollnliff; that his character had Ix.'(!n assaik'd: and that the jury ought to awat(! extraordinary damages. for the dllmage to his charaCler:'"

Id" 109 Ala. al 581-82, 19 So. 011648. The Suprerlle court, reversing,. held thot thi s "argument was well-calculOlled to im. press the jury, thilt they co uld inflkt puni shmen t, and the refusal of the CO(lri to interfere doubtless tended to emphasLl;e th is imp~ssion. The Court erred In allowing the argument," whic h "was foreign to the Issuc:' 109 Ala, at 582, 19 So, at 848. In Alab.'lma Electric Co-

Operative, Inc. II. PJflrldllC, 264 Ala. 442, 225 So.2d 848 (1969), the trial Judgc wll$ affirmL>d wh ere he h;ld property susta ined an objection to ,md instn.rcted the jury to disregard an argument (or punitive damages because onl y compensatory damage'S were ot issuf!. Arguments (or compen sa tory damogcs In wrongful d eath ~iHe s are a frequent source of aPIX!lIale litigiulon. In Hilfdin v, Scllcrs, 270 Ala. 156, 157, 117 50.2d 383, 384 (1960), w hl!r"e plaintlff'~ counsel asked the jury to "compensate her Ithe wi dow) (or the death of hcr husband " and the Irial courl overruled thc d(!fcrlSc lawyer's objection, the supreme court reversed. And in )'QunS v, Bryan, 445 So.2d 234, 237 (Ala. 1983), where ploin. ti ff's (:oun~ 1 <l sked the jury, 'What about the living victim s tllat he left!" the Irial cou rl'S failure to instruct tnc jury as to the impropriety of the latter argument resulted In reversal, notwith standin g a subsequent oral charge co rrectly defining the damages avalloble In a death ilCtion . In ESIf:$ /-/c(ilrh C(ire Centers. Inc, v, Bannerman, 411 50.2<1 109, 112 (Ala.

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1982), hO'o'o'C"Jer, Ihe court held that "compensation was nO! the mNl sure of dam· ilges rough t by Plainti ff's counsel " when he made Ihe followin g argument in closhlg; "How valu~b lu arId how preci ous Is hurn~n life! Ladles and gentlemen, how valuable and how preciou s artl the hostagt'S CM:r in IraM HOW much would th is CO~lr\t ry POlY rl) hIM! those Individuals back! "\Irould any am ount of mont'Y sufflce for those livest Now mucn are rhe IlI'eS of ~II the Cl.lban refulle!!§ that our tax dollal5 are going to support, hC7W much are they worth? They are human J:.eings also. H[A1nd I submit to you th~t Ihe life ~()n' nle Joe Cow;m had dudng his UfClime W,lS worth os much to him as mine Is to nle ami any other Individual In the world Is to Ihem ." The cou rt "Iso nOled that Ihe tria! CQuri corroctly charged tile iury concerning the proper measure or damllges and that there wa s " no evidence thai the Jul)' reUred wilh the attitude 01 awarding compt:msalOry ral her than punltlvc damages." 411 50. 2d O! 113. The tri al courts surfi ciently erJdlcated improper appeal s in M ilsnusson v. Sw,ln, 291 Ala. l SI, 154, 279 5o.2d 422, 424 (1973), where pl .. intiff's cO(JJl sel argued thallhe $100,000 he had asked for "won't P<"l)' fOr Ihis young l<ldy's life," ilnd A labama Farm Bumilu MUI. Ca$. !tH. Co. II. lIumphrey, 54 Ala.API). 343, 30a So,2d 255, 258-59 (1975)' whcre counSC11 for plolnti(( re(erred to the Nvalue" or " worlh" 01 human life os being the measure of damages.

L. Reading or arguing I"w ''The Jury ,1m to receive the law fl'l)m the COllll, and nOl Irom ei ther the counsel, or from lCl<lbook5 or adjoollt'd ca~ This Is a l);In oIlha poli ce-f)/}"M!r, 50 to speak, 01 the court, often necessary to prt.'VCnt confusion and Insure thl' orderly administration of justice in the IrllIl (Ol,lIt." M cCu llough II. L & N R. Co., 39& So. 2d 683,685 [Al a. 1981), quoting H ,m;S(ln v, Slilli!, 78 Ala. 5, 12 (1884)_ " Not Infrequen tl y counsel are permitted to argue legal proposi tions, ~n to read legal proposillons to the jury;' but thi s permi ssi on is within the tri al court's discretion, M cCul/ouSh, 396 So.2d at 685 (Ala . 1981), And <ltrial jud ge's " refu sa( to per· mit such reading is not reversible error,

January 1989

The reason for th is Is obvious. The duty of the jury is 10 Iry Ihe fa CIS and apply such filClS 10 Ihe law as given Ihem In charge by the COIJr!:' McCullough, 396 So.2d at 685-86 quoting City of AnniSfon v. Oliver, 28 Ala.AI)p. 390, 393, 185 So. 187, 189-90 (19381. The CM!rruUng of an objcction to the argument thai ")(lo put all our evidence on this side and their evidence on this side ,md all we've sot to do is tip Ihe scale just a lillie bil and we win .. : ~ did nOt constitute error in Osborne Truck Llrws, Inc. v. LAngston, 454 So.2d 1317, 1323 'Ala. 1984). Nor was It considered error to allow "counsel [10] read to the jury a decision from the SUI)reme Court of Alilbama, and fendea\lOrl to explain to the jury the means by which It might ilr. ri~ ill the proper mllount of dam;)ge5 .. :' In Cahaba Sourl)j~rn MI'ning Co. v. Prarr, 146 Ala. 245, 254, 40 So. 943, 947 0906), since "counsel h;tv(! a rlg hl to argue to the jury the manner In which they ilrc to ilscerlaln the amount of the verdict ... :' M . References to other cases References to Ihe facts and rc.'Su ils of othcr Cases or trials are gcnernlly improper. In Ford MOior Cree/It Co. v. Jackson, 347 So.2d 992, 995-96 (Ala 1977), counsel Improperly commented on a similar cause ol aCllon pending il8<linst the opposing p;trty, bUlthe prejudiclill effect of the remarks was deemed er<tdiCilted by "cmphiltic instructions" given by thc COUll. In Birmingham Electric Co. v. Bryan, 25 Ala.App. 556, 558, ISO So. 560, 562 (1933), counsel's repcilted references to facls and results of other cases that he hOld successfully litlgilted were deemed not to have been effectively eradicmed In some Instances and to h~ b(.>cn I.'froncously all()Y,lt'(! In others, and the court of Ilppe,!ls Jt.'\o'Cl'sed . In Birmingham flcctrlc Co. v. Ryder, 225 Ala. 369, 372, 144 So. 18, 20 (1932), counsel's reference to "other cases, thclr fa cts, and verdicts' re(lulred eradication by the trial court. In Rose v. MlIgfQ, 220 Ala. 120, 124 So. 296 (1929), the trial court In il wrong(ul death case PlOlJerly excluded a reference by defense counsel to a pr'(>vlous criminal trial aoo the acqulltaj of the defendant, but the court was reYelSed for alloYling the indictment to be put In evidence. It was deemed im· proper (01" an a\lomey to state "that a verThe ;"Iabam.l Lawyer

dlct should be for 'plamtiff for a substiln· tiill amount, and t'NO previous juries which hilvc tried this case agreed with me:" in Tennessee River Nav. Co. v. Wdlls, 209 Ala. 320, 323, 96 So. 266, 269 (1923), but ~l ntel'VCntion of the coort W.lS sufficient to remove dny adverse InOuellCe:' Reilding facts and results (rom other reported cases is Imploper i'liso. CiIy of Tuscaloosa v. Hill, 14 Ala.App. 541, 69 So. 486, cert. den;ed 194 Ala. 559, 69 So. 598 (1915).

II. Opposing improper arguments Although it may be c lear Ihilt an opposing counsel has made i'l r' Improper i'lllIumf;lnt, effectively countering the rem:.rk is another matter. Prompt action-objecting, requesting a curiltlve charge, rcquCsting a mistrial-Is, of course, the olwious il1d almost always the desi rable r'tlClhod of opposition. In many Instilnces, h~r, COunsel may not wish to drJw additio nal i'I"ention to il highl y prejudicial remark and requests to approach the bench to make sidC!-bar objections risk offending lhe jury. Letllng such an argument paso i\, nevertheless, perilous business, because a fail ure to object is likely to constitute 11 waiver. An attorney can respond to an improper (lrgument with another improper argul11Cnt-il reply in k nd- but this, tO(l, has its dangers. Alabama cases provide the following guidelines.

A. The method of objcclion and stalldard of review regarding imprOI)er

argumenl ':.\$ il gener31 rule, improper arguments by an illlorney are not sufl'i cient ground for a new trial ab5ent (I timely obJection ... and a ruling t h~rcon, or 11 rdU5tll by the trial court to make il ruling:' Lnwrellce v. Alabama Power Co., 385 So.2d 986, 987 (Ala . 1980). Oblr:?Ctlon should be made "promp tl y upon the ut· terance of the supposedly inlprol)(!r remarks:' Birmingham Ry., Usht & Power Co. v. Gon:ralez, 183 AI(I. 173, 285, 61 So. 80, 84 (1912); 500 also Hill v. Sherlvood, 488 So.2d 1357 (Ala. 1966) (objection waived). In addition, '1ilt is the duty of counsel to poi'lt out 10 the trial court the portion d the argument deemed oblecUonable." Pdcific Mut. Life Ins. Co. v. Yeldell, 36 Ala.App. 652, 62 So.2d 80S, 815 (1953). See also AI.l.R.elv.P. 46.

Once an obj~ion has been milde, Ihe follow ing tesls are said to apply on appeal to determine the Impropriety and Impact of the argument: "In a case oIlmvroper arsumen! where the trIal Judge Q'.'Clfule5 obloctlon and !ilils to Instruct the Jury as to the Impropi'lcty with dIrection to disrt'gilrd, tho tMt Ul)On ill)JX!ill Is not that the ill'lun'l(!nt did unlawfully In. ~ the Jury, but whcther It mlsht h_ done ~.

Estis Trucklns Co., Inc. v. Hammond, 387 So.2e1 768, 771 (Ala. 19801 (emphasis ilddedl, citing Williams v. City of Ann/$I0n, 257 Ala. 191,58 So.2d 115 (1952). "In I case where objecllon to Improper al'lllnlentis made and sust.llned, with immedlrlle lind S/TOIlS ac/Ion by /hl.' /rIal court ins/ruc/ins/he Jury /h~t such a!8untCnl IVJS not corroo and adlIIonl511111g them nol to consider iI. the tCSI on motiol1 /01 nt'w trial 311d on apo pc,11 Is whethtlr the ar)lument was so harmful and prejudicial I h~t lIS Innuence WilS not or could not be madlcatcd "" the action of the COII'I." Estis Trllckins Co., Inc. v. Hafllmond, 387 So.2d 768, 771 (Ala. 1980), cHins McLemore v. IntcmMional Union, Erc., 264 Ala. 538, 88 Sc.2d 170 (19;6). Sut Ihe trial COurl does nOI seem to have an affirmative duty to InstruCl the jury upon objection, as the laller qUOtes might suggest. "As a general rule, where a party's objection to improper agrumcnt is sustilinoo, It Is necessary (or the party to rcquc.'St a COrre<:Iive InstluClion (rom the trial COu rt as a proo ic(lte for an appeal based on the preluclitia! statement." C.llverl 8. MaNh Cool Co., Inc. v. Pass, 393 So. 2d 955, 958 tAla. 1980), citi ng Employers Insu rance Co. o( Alab;}ma v. Cross, 284 Ata. 50S, 226 So. 2d 161 (1969), and Allloom,1 Gre,t( Soulhem R:Jllway Co. v. McFa rlin, 174 AI<1. 637, 56 So. 989 (1911). When thc objection is overru led, hllWtNer, "a fu rth/:r motion .•. Is a useless formality:' Amcr;can Ry. Express Co. v. Reid, 216 Ala. 0179. 485. 113 So. 507, 512 (1927). F(lilure to n1(!ke II proper objection will nOt affect an apPc<11 if an argument Is dccm(.'<l to be Ineradicable. In Anderson v. Sidle, 209 Ala. 36, 44. 95 So. 171, 179 (19221, the COUtt said: HAn exception to the seneral rule re'Iuirin8 ilJ'lPIOI)llatfl obj~ion Or molion Invoicing co.recting !I'I SlruCllon or action I1f the trIal court Is where the remark QI' argument 01 counsel is 50 lhatr'ltlifher retraction nor rebuke IP{ the! 21

trial coul1 would h~ sinister Infl uence:'

de~t royed

Its

Nor docs it mafler Ihalan objection was sustained ilnd the jury in StruCted to disregard th e statement when the argu· ment was incmdicauie. Such 1'111 argu· ment is tOO "poisonous and Improper" to be eradicated. Pryor v. Umeslone County, 225 Ala. 540, 144 50. 16 (1932). With regard to th e necessity of statin g th e grounds for <In objoction with specifidty, the Alabama Supreme Court has said: "This C(lur! ha~ lrequently mlused to consider an objection when) it W;!S not accomp.1nled by 5petJnC BfOIlilds .. H

"HOM!\Ier. we have also f'(!Cogniz(.'(j that a spec:ific llround Is not r~quirIXI MId a lIeneral objt'<:tion will su ffice II the

lI(1)und 'is so m3ni/csI Ihalthe court and covnsel cannOl f~lIto understand II: " Holt v. Slille Farm MUI. Aulo./nSo Co., 507 So.2d 388, 391 (Ala. 1986) (citations omitted). Sef: also Oils Eiev,l/or Co. v. Sl<1l/wonh, 474 So.2d 82 (AliJ. 1965). The best l)raCUCe, however, is to object spI,.><:iflcally and to clearly state each ground of th e objection. Sre Osborne Truck Lines, Inc. v. I..1n8s/oll, 454 So.2d 1317, 1323 (Ala. 1984) ("when an o bjec· tion is milde M sp!!clflc ground s, other grounds may not be rai sed on <lPPf)al'1. H

Reply in kind It is freq uently as.wr\l.'d that an oth erw ise objectional argument con stitutCs a I)(!rmi s~i bl~ "rf!ply In kind." "Where

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Sta/6 Ojjictl/:124 NOIth 211/ St.l8irmingha,.,. AL .1S203 1011 Ptt!t· l /800/843· /688/1Nt/ax · I /326·0919/A MillIltso/a Tille Comp/my

counsellor iI pMy nlig.1nt porsUe5 an im· proper line of argunlCI'II h(! thereby in. vites a reply in kind , and statements whi ch WQuld otherwi se be objectionable arc often proper:" Smi/h v. Blanken ship, 440 So.2d 1063, 1066 (Ala. 1983). Founded upon the d octrine of "cur<Jtive i1dmiS5ibility;' sec C. Gamble, McElroy's Alabama Evidence S14.01 (3d ed. 1977) ("if <t pilrt y introduces illegal evidence, his oppo nent hii$ th e uncondilionoill ri ght to rebul ... with other Il legal evidence'1, a rep ly in kind Is aliow(.'(/ to cure the effoct of an Illegal argument so long as, il Ccording to one formulation of the rule, " the rebullill statement soughllo be offell.>d (i s) to some ex tent related \0 th t' [l mprOp!!r] stillement of (oPP05ing1 counsel ...." Cook II. /.a/imer, 274 Alii. 283, 288, 147 So.2d 831, 835 (1962). Of course, a reply In kind must be in retilliation to an Improper argument; an IIlegitl rebuUill to "permi ssible argument" Is not a fCl)ly in kind. Allison v. Actofl- Efherldge Coa l Co., In c., 289 Ala. 443, 448, 268 So.2d 725, 730 (1972) (i cfcnse coun sel re sponded to plaintiff's counsel's argument concerning I()$t income by ~i n g thllll)lalntlff "W.1S a very ~althy man'1, Though generally "(sj tatcment s or arguments of co unsel whic h art provoked or produced by statements or argumentS of OpPOSing covnse l can furn ish no ground (or complaint or corrective ae· tlorl ," Sf. Clair CounlY Bu~wcck, 272 Ala. 323, 331, 131 So.2d 683, 691 (1961), the rebu Ual may not ('xtend to overkill. Cook v. /.atimer. 274 Ala. 263, 14 7 5o.2d 83 1 (1962). E~amples of re plies In kind arc numerous. In St. Clair County v. Bukacck, 272 Ala. 323, 33 1, 131 5o.2d 683,69 1 (1961), iln appeal to the self·interest of juro rs <IS taxpa~f5 invi ted thc (o llowing argument: "'There are tWO and a half million 1>CQll le in the Stale of Alabama. It will cost you ont"!/tenth of on e cent to pay him $25,000.'" A stalemerll by defendan t's counsel as 10 how sorry ("as a man can be'1 his client was thlll the plilinliffwas injured "provoked, produced, invited, and justi fied [thi sl retaliatory argumen t": '''I dare say thaI if he is as sorry itS all IhM, hI! mightlikl;: for Mr;. Jones to get every dollal. she is asking for.'" MeQuccn v. Jones, 226 Ala. 4, 8, 145 So 440, 442 (1932). An Improper reference to the wealth of a party invi ted opposing counsel "to remark to the jury

January 1989

that the 'old gl..'flIlcmen's life and his pr0perty [are at stake]:" Smith v. BI/lnkenship, 440 So 2d 1063, 10&6 (AI". 1983). References to Insurance, hOW(,'\ICr, gen· erally h~ been held not to be proper repli es in kind, Williamson v. Raymond, 495 So. 2d 609 (Ala . 1986); Mafhcws \I. TU5ca/oos.:! Count y, 421 So.2d 96 (Ala. 1962) (defense counsel referred to worker's compenSation lien In response to statemenl Ih,ll all the proceeds of a judgment 'NOUld go 10 the minor children of a deceased workman); Co/que(1 v. Williams, 264 Ala . 214, 66 So.2d 381 (1956) (statement in l>cr50nallnjury ca se tha t jury should not take the defendant's money {lnd give it to the plaintiff did not warrant response by tile plaintiWs coun· sel to the effect Ihat the money 'NOlIld come (rom an insurance company), ell· Cel)t In highly unusual circumstances, AI/ant.) Life /nStll/l nce Co. v. SWnlcy, 276

Ala . 642, 165 So.2d 731 (19641 (where counsel far the de/cndan/ told the jury of his client's C{)<.lerilgc and dl...(endant tcsUncd with rcgmd to hIs limits in an apparent attempt to hold down the ~rdICC). But see C/a rk·Prall COllon Mills Co. v. Bailey. 201 Ala. 33l, 77 So. 995 (1918) (where the court staled In apparent die· m thtl1 a reference to an "Insurance mi.\n" who had Inspected till! plant where Ihe plalntlff was hurt could not be complained of " with good grace" by defense counsel who had argued tha t the dclen· dant was a lillie cOlporJtlon owned by citizens of Prattvl11e). Conclusio n The classific ation of Improper arguments Is. as has bi..'Cn said, oeces~ri· Iy subjective. The VJrious categories ob.viou sly overlal) and serve common policies. The analysl ~ at trial by court and

counselor a questionable comment, h()Y,'eYCr, OUghT not to be limited to a formaliSTic search through the tradiTional categories of Improper arguments; it should Il'Mllve consideration of the (undamenTal question whether the com· ment aids the jury in reaching a can· sidered and Objl'tti ve re)ult . When the answer is In the negative. ca se law and justi ce dictate an appropri,l te curJ tive ac· tlon. ''\M: know of no m o ~ effl..'CIive W"'I of rcpressingthe wrong and maintaining the Int~rity of the profession In the administration of the Iii\¢.' Blitllns Cafcwria Co. v. Sholls, 230 Ala. 597, 162 So. 378 (1935). •

FOOTNOTES ........... O<Iio; .......... (II ".,. _

A '.l ~

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7, I_I

-NOTICEMa rital and Family law Certifi cation The Malilill and FJmlly l.aYI Certification Committee haS now been appointed by the 800rd of Commissioners of

the Alabama St.l te Bnr to begin the process to certify f.lm"y law pr<ICtltlorefS.

The results the recent oor poll show that a vast miljority of Ihost law~fS respondlnll are in f<l'o'Or of a combination of e~;lmlnatlon and p(!(}f review for certification as il sped allst. In the neKt few months, the application and testing process will be dearly deflrwd and rcported. I! Is now 1)lannl>d that by Fcbru;lry I, 1989, appliCiiTlons will be available to be Complctl-d and 5ubmitloo 11)' March 31, and the tHt Is tentatl~ly scheduled In Blrmlnghilm for the morning of May 5, 1969. The purpos<! of certi fic':lIion Is for atlorney'S to voluntarily obtain certification by a statewide fC'Ylew commillce becau5e altnelr concentration, c~pefience and conllnu· Ing education In the f"mlly law area and that the quallf.,.. Ing 1l1l0rll¥ be allt:M'Cd to ilPproprla tcl y announce such certification. Presently, aPt)fOKlmatcly 12 stilles h1M! $pcclillization plans in place, 11 "ates have submilled specialization plans fOl" court appfoyai and 13 Stales are prescntly stud.,.. Ing spcclallzollion plans.

Riding the Circuits D ale County Bar Associa tion The O"le County Bar Association (!11..~tcd new officers NO\Iembcf 10 ill the monthl y bar association meetins. The n('W offlcers are: President: R.1)' Kennington, Ari ton Vk epresident; Anthony R. Livingston, NewTon Treasurer: William H. Filmore, Ozark Secretary: Donald C. McCabe, Daleville

•

Young Lawyers' Section

s pre.iden! of this section, I lim fortuniJte to

be able to at·

tend the ml!<!tlngs of the Ala-

bmna 30ard of Bar Commissioners.

For those young lawyers who recen tly have been admitted to the bar and

for those others who might nol yet un· derstand the bar's makeup, the board of commissioners govems the Alabama Stille 8ar. Subject only 10 [he approvill of the Alabama Supreme Court, the board promulgates and enforces rules retatlng 10 admissions, rules of ethics and discipline of its memo bershlp. Today there are 39 judicial

circuits and 53 bar commissioners, rCI>rescnting all lawyers in Alabama, At the rceCIl! commission meeting

in Blrmln811;1"11, one order of busln(!Ss was the Ano' ney's insurance Mutual

of Alabama, Inc. This, of course, is the COII)tive insur.lJ\Ce COIYIp.lny that has been formed to write malJl(actice

cOl.'erage for Alaooma lawyers, The formmioo of this insurance company will play il \/Cry important role for members of the Young lilwyef1' St.'Clion, Malpraclice insurance riltcs cr('ate a great financial burden for us all and IKll'tlctJlarly the young lawyer, It Is Incumbellthat all lawyers of this state COOle together to support the forn,<uion of this insurance comp.lny, There Is a necess,lry 5tilrtUp figure of $2.5 million required TO break 4.'$Crow In the formation of this company. To date, the bar has received lIpprOlClmately $1 ,400,000, and 1, 198 lawyers have subscribed to support the Informntion of Ihl5 comp.lny, However, lhe bar needs another $ 1, 100,000 10

break the minimum escrow needed. As your presidant, I urge all membef1 of the YlS to make the nCCCSStlry sacrifice 10 support the formation of this comp.lny. It is my opinion and the opinion of the bo.ud of bar commissioners Ihat in tile long run you will more than reap lhe benefits of this Invcstmerlt. As an elCample, I point to tbe following: in North Carolina, the members 01 their bar association formed a similar corporiltion in 1977. The aver,lge filtc of a malpractice insura nce premium for an Alabama lawyer today Is around $2,300 pcr yeilr. Today in North Carolina, the average prerlllunl for malpractice Insurance for their own captiye Insurance comp;lny Is under $1,000 per year. WITh a volatile insurance market thilt is sure to Increase your premiums and dictate the circumstances under which you pay insurance, it is imper~tive thllt we all take an active role in this company. FOr those who cannot afford the Initial investmenl, be aware that AmSouth Bank Is offering to lend you the money for this investment ilt a very rcasonnble rille and with reasonable terms. I urge you to (onlacl the Alabama Stme Bar alld join today for the benefit o( us all. By the time this article apl~ar.c In print, I am hopeful that we have had another successful Youth Judicial Program. CharUe Andenon of Montgomel)' has been outst~ndlng In laking over this re5ponsibUily from Keith Norman this yeM, We ilre fortunate to have had Ilarticip.1nts from Prattville, Auburn, Birmingham, Clanton, Mont·

N, Gunter Guy, Jr. VLS President

gomety, Wetumpka, Opelika, Dothan,

Florence and Selma, This Is the Orst year that we have held this program §eparOlte (rom the "laOOmOl YMCA Youth legislature Program. Because of this fact, we are hopeful that the program wi Ube able to grow in the years nhead mxl that many of the ~tatt!'$ high school students will be able to par· Ticipate in and It!arn from Ihls experience. The statewide compe1itlon will be held the weekend of February 18, 19 <lnd 20 In Montgomery. This Is an excellent opjlOrtuniry fOf !he Iegill profession to enhance its Image in the community and to develop our leaders of tomorrow. This program would not be succcssful , of course. without the help of many lawyers from ncross the ~tllte, and on behalf of Charlie Ander$On and me, we thllnk you. Also, as this article reaches you, plans are being Onallzed fOf our upcoming seminar ill SanDestin. I urge everyone to Olttend this year's progriIm, Sid Jackson has promised to make Ihis year bigger and bettC( than (!\let. Here is a greilt wily to get your CLE credit and enjoy the social functions that we hOlve planned with your fellow lawyers. Hope to see you on the beachl _

January 1989

Attorneys Admitted to Bar, Fall 1988 Pamela Karerl "'see . , ...••••.•• Birmingham, Alabama And rew Cia) Alle n ............ Birmingham, Alabama M ary Amelia Andersoo ..... " .•••• Camden, Alabama

Wade Stephen AnderSOn ........ Birmingham, Alabama Ch l$Oram Uba. Anyanwu ...... . MOnlgomery, Alabama Allan Lamar Arm slrong , .. ..... . Birmingham, Alabama

Joseph P. H. 8:1blnglon ............. Mobile, Jeffrey Tipton Baker •• , , , , , , , , .. Blrmlnsham, Jeffrey Reed Bankston . , ............. Ozark, Michael lester Bell ... ,.,""" Birmingham,

AlabarniJ Alaba ma

Alabama

Alabama Thonlas Hart Benlon, Jr. ........... . Mobile, Alabama Johnny Vinson Berry .............. Cul/mon, Alabama

Anthony James Bishop ............... Boaz, Alabama . .. .. Mobile, A/llbama Johilnnll Klip Black ............ Boston, MasslIchuselts Jeffrey Michael Blankenship .... .... M ad"son, A/llbamiJ Robin Denise Blevi ns ... . ...... Birmingham. Alabama Michael Lyle Bloomston ........ Birmingham, Alabama Paul Peter Bolus .............. Birmingham, Alabama l aura Ann Bowness ............. . Andalusla, Alaooma Deloris Mitchell Boykin ..... .. . . Birmingham, Alabama Sonja Fa ye Bivens . , •• , . . , .

Randall Keith Botema n .. Montgomery, Alaban!a Lisa Ann Bradfo rd .............. Gu lf Shores, Alabama John Robert Bradwell .......... Montgomery, AI(Jb,lnlil Edith Annetlc Brashier ........... Tuscaloosa, Alabama Bradley Sorrell Braswell ....... Union Springs. Alabama Scan Gardner Brown .............. Daphne. Alabama Mary Smith Burns ............ , Birmingham, Alabama John Hudson Burton, Jr. ... .... . Birmingham, Alabama Clifford l ouis Call is, Jr. ......... Montgomery. Alabama Orlan Gray Callison. III, .. ...... Birmingham, Alabama ChDries Edward Calloway ..... .. M ontgomery. Alabama Andrea Oenise Campbell . , ...... Birmingham. Alabama Boyd Frederick Campbell ...... . MonlSomery. A/(Jlum(J Thomas Franklin Campbell ", ... Birmingham. II/abama Jonathan Wal'ne Cartee ......... Birmingham. II/abama David Baldwin Champlin ....... Birm ingham. Alabama James Slu r8~n Christie, Jr. ...... Birmin8ham, Alabama Andrew Chri stopher Clausen .. . Ne w Orleans, Louisiana l lndll Fay Clausen ............. ... Kenner, Louisiana Renee Mynetle Collier .......... Birmingham, Alaluma Jonathiln Hollis Cooner ........ Montgomery, Alabama Lawrence Cooper ............. Birmingham, Alabama Challes David Cottingham ....... Tuscaloosa, Alabama Kennelh W~ Cox, Jr. .......... , .... Troy, Alabama Brent Maurice Craig . .............. Deca tur, Allibama James Clayton Crenshaw ..... . . MOnlgomcry, Alabama Timothy Perry Culpepper ..... .. MOnlgomery, Alabama Ann l ee Curtright ... , ....... ... . .. Mobile, AI8bama Daniel $<Ilgent Cushing ............. Mobile, Alabama Judith Carmela D'Alessandro ....... Bessemer. Alabama

The Alabam8 Lawyer

Marye Ann Zicareill 0 'Alessandro ... Bessemer, A/ab8ma Joseph Carrel Daniel ............. Huntsville, Alabama Gregory Louis Davis ........... MOnlgomery, Alabama John Calvin Davis, Jr. . .......... Tuscaloon, A/ab.tma Charles Welch Debardeleben .... Birmingham, Alabama Richard Alan Deer ............. Birminghllm, A/.lbllma Deborah l ynn Di lle ............ Birmingham, Alabama Merry Virginia Dixon ............ Huntsville, Alabama Miltk livingston Drew .......... Birmingham, AI.lbama ThomaS Samuel Duck .... , , . , .. Birmingham, Alabama Gilbert Forbes Dukes, III •••••••.•... Mobile, Alabama linda l ee Dukes .............. Birmingham, Alabama David Alan Elliott ............. Birmingham, Alabama Hugh Raymond Evans, III ....... Mont8omery, Alabllma Rose Poulnella EVllns . ............. Ooth,ln, A/abnma Gary Wayne Farris ............. Birmingh.1m, Alabama Elizabeth Anne Forester ............ Washington, D. C. Denson Nauls Franklin, III ••..... Birmingham, Alabama Thomas Roe Frazer, II •••.•...... . Jackson, "'iu/ss/ppi M lch~1 David Freeman ........ Birmingham, II/abama Sherrl Tucker Freeman .......... Birmingham, Alabama James Guy Fullan ............. Birmingham, Alabama Erski ne R a m ~y Funderburg, Jr....... Pell City, Alabama Roger King Fuston . . . . . . . . ... Birminghllm, Alllbama Frank Coffey Galloway, III .... , .. Birmingham, Alabama John Richard Galvin ................. Leeds. Alabama Gayle Haywood Gear .............. Helena. Alabama Anthony Gerard Ceorge ........ Blrmlnsham. Alabam.. Gwendolyn Thomas George ..... MOn!gomcry. Alabama John Edward Goodman ......... Birmingham, Alabama Craig Whllfleld Goolsby ............ Mobile. Alabama Elissa I·tulson Green ............. Hunt5vllle, Alabama Stephen Keller Greene .......... Birmingham, Alabama Usa Claire Gullage ............ MOntgomery, Alabama Bert Morgan Guy ......... , .. , .. TU$ca/oosa, Alabama Mary Kathryn Hallman ." .......... Eufaula, Alabama Patricia Anne Hamillon ........ Montgomery, AlaOamiJ lames Hughes Hancock, Jr...... . Blrmlllgham. Alabama lohn Richard I-Iansen . . .... Birml1l8ham. Alabama Bart Gregory Harmon .......... Montgomery. Aillbama Sharon Eleanor Harvey ............ Camden, Alabama Robert William Hensley, Jr...... Bluefield, West Virginia William Schley Hereford ........ Birmingham, Alabama Lucy Cathcart Hicks ............ Birmingham, A//Jbama Robert Benjamin Hill ... , ........... A!lant~ . Georgia Joscmh Henry Hilley ........... Birmingham, Alabama Elitabelh Barnes Hilyer .... ,., ..... C/alllon, A/abam.l Cella Sulli van Hinson ........... Douglasvll/(', Georgia Daisy Mac Holder ............. Birmingham, Alabama Ci ndee Dale Holmes ........... Bi/minsham, Alabama Cynthia Gall Hooks ............ Birmingham, Alabama

Ernest Clayton Hornsby, Jr. . . . . . Birmingham, Alabama Steven Mitchell Howie ....... . ... ... Calves/on, Texas Donald Gene Jilckson .. , , , ..... Birmingham, A/ab.lma Jooy Kynn James , .... , . . ......... Florence, Alabama Robert Willson Jenkins, Jr. ......... Florence, A/ab<JmiJ Elizabeth Johnson . , , , ......... M onlgomery, Alabama L. Scon Johmon, Jr. . ..... , . . . , Mon/somery, Alabama James Emory Johnston ..... ... . ....... Troy, Alabama Andrew McEvilley Jones . . ..... ..... Mobile, Alabama Rhonda Gayle Jones .... , . , , .... Homewood, Alabama Julia Evans Jardan ............. MOnlgomery, A/"bama Parkey Diane Jordan ........... Birmin8ham, A/ilbama Sandra lynn Jordan .. , .•......... . Faidield, Alabama Stephen Gary Jordan . . . . . Birmingham, Alabama . . .. . Mobile, Alabama Cecily Linne Ka(rer ...... . Charles Joseph Kell ey . . .... ... . . Tuscaloosa, Alabama Constance Renee Kidd . ......... Tuscaloosa, Alabama Cavender Crosby Kimble ............ Phoenix, Arizona Brent Aid!!!) King . ....... , " ' " .Huntsville, Alabama Steven David King ......... , , .. Birmingham, Alabama Robert Edward Kirby, Jr........ . Birmingham, Alabama Thomas Owen Kolb, Jr.... , , , , , . 8irminshilm, Alabllma Cynthia Lam~ r ......... . . . ... . Birmingham, Alabama Kelley Lynn l aughlin ....... .. .. Birmingham, Alabama Robin Garrett Lauri!'! . , . , . . ..... Montgomery, Alabama Vincent Ray Ledlow .. . .. . . ... . Birmingham, Alabama Wesley Tony leonard ... .. ........ la Grange, Georgia Ced i lamar Loper ........... . Monlgomery, A/"bama Dana Leigh love ................ Talladega, A/abamil Peter loftis l owe, Jr. ....... . Moum"in Brook, Alabama Glenn Harris lubel ..... . .... . . Homewood, Alabama Je((rey Lynn l uther ....... . . . Mobile, A/,1bama Kend"U W<llton Maddox .. ... Birmlnsham, Alabama Stephen Joseph Maggio ......... B/rm/ng/Jam, Alabama T<lmeltl SIH~ree Mnrtin .•........... leighton, A/,lbama Thomas Wil son M cCutcheon, Jr. . . Blrmin8ham, Alabama John Forres t McDaniel .... , .•• , . Birmingham, A/{l bama James Glenn M cElroy ......... . Birmingham, Alabama William Stova McFadden ...... .. .. . Mobile, Alabama Ami Helen M<:;Rae . . . . . . . . . .... MObllf'!, Alabama • John Steven Meador . . . . Huntsville, AlabJma James AI;m Mendelsohn , Birmingham, Alabama Thomas Jame~ Methvin . . ....... MOnlsomery, Alabama Myron Calvin Milford, Jr. .••.••.. Five Poin ls, Alabama Thoma s Brown Miller , ......... Birmingham, Alabama Ri chard Dwayde Mink ........... Hueytown, A/"bama Stuart Lynn Moore ....... , , , , , .. . . Cullman, Alabamil Randall Hodge Morrow ........ . Birmingham, Alabama Paul Stephen Mozak, Jr. . ..... Wethersfield, Connecticut Jani<:;e Boyd Neal ...... . ... ... Montgomery, AlabJma Mark Smith Nelson ...... ...... . . Talladega, Alabama Jack Merrell Nolen, Jr . .... , .•• , , Birmingham, Alabama Cecilia Linn Norton .............. Alexandria, Virginia Mary Beth O'Neill .... , ..•. , • , , Birmingham, Alab<Jma Charles Clapp Osb(m . ... . . ... . Birmingham, Alabama James Franklin Ozment .... . ... ,Birmingham, A/ab.1ma

Thontas Jonathan Pack •. " ........... Houston, Texas Timothy Alan Palmer ........ . .. Birmins ham, Alabama Matthew James Pappas .. . . .. ... Birmingham, Alabama Jayna Ja<:;obson Partain ...•.•. . .. Birmingham, Alabama Ellz:lbeth Paige PJtterson ....... MOnlsomery, A/aboma Alison MacDonald Peeler ..• , ....... Mobile, Alabllm.l Mary Jar\e Perry ........ , .•.... Birmingham, Alabama Thomas Ru ssell PetermOln, Jf. . . ..... . Mobile, Alabama Abram lewis Philips, III ...... . ... . .. Mobile, AlabamJ Eliz(lbeth Neal I>itman . . . . . Birm ingham, Alabama MOlM ClevelOlnd Pope, Jr. .. . ..... Birmingham, Alabama Stephen Barg<linier Por terfield ... MOIIIgomcry, Alabama Thomas W i llard Powe, Jr . ....... MOIIIgomery, Alabama Deborah Guthrie Powell ......... . AlabllS/er, Alabam,l Clay Dean Price .................. Daphne, Alabama Dennis Wayne Price ...... , , .. , . Tuscaloosa, Alab"ma John DOlvid Pugh . . . . . . . . . ... Birmingham, Alabama Kathryn Ottensmeyer Pugh ...... Birmingham, Alabama Williilm Edward RllmsliY ........ Birmingham, A/Jbllma Gary Roger Real .............. Blrmln8ham, A/abllm,l Jeffrey Lang Riley . ....... . ••.. , . Tu scaloosa, Alllbam,l Gregory Scotch Ritchey ......... Birmingham, A/ab.lma Timothy ScOI\ RUchle ..•. , ..... Birmingham, Alabilmll Jo hn Steven Robcrl5On . . . . . . . . . AnniSton, Alabama Kenneth Paul Robertson, Jr . .. . . . . . . Gadsden, Alabama Christopher Stanley Rodgers , ... , Birminghilm, Alab,1ma . . ... MOntgomery, Alabama Danny Wilyne Rogers, Jr. James Robin Rogers. . .. ...... Birmingham, Alabama ........•.... Mobile, Alabama Creola Gibby Ruffin James MacDonald Russell, Jr . ..... . Greenville, A/abllmll Stevt!n Charles Sasser •... , , ........ Dec.,tvr, A/abllmil James DOMld Scars .............. Northporl, Alabilma Kmhy Elaine Segler ....... , .. Alexander City, Alabilma Gilbert Porterfield Self . . . . . . FlOrence, Alabama William 8urwell Sellers ... . . Montgomery, Alabama Kenneth Edward $exton, II , .... . Birmingham, Alabama .... . Montgomery, Alabama Lowell Landis Sexton John Walter Sharbrough, III . . ........ Mobile, Alabama Margaret SUS;)" Shepherd ......... Hun!$ville, A/ab"mil laura Scott Shores . . . . .. . ..... Birmingham, Alabama Michael Carl Shores •.......... Birmingham, Alab"m" Charles Alex Short . , .. , ...... . Montgomery, Alabama COlri Jay Silverstein .... . .... .... Birmingham, Alabama . Blrm/rlgham, Alabama Lindsay Lankford Sinor . . . Danny Lane Smith . ............ . Albertvllle, Alabama DOlvid Leon Smith, III ... . Birmingham, A/",bam'" . .. Blrmlrlgham, AlabJma Florry!;! Ann Smith . . linda Gail Smith .............. MOll!gomery, Alabama Wesley Gene Smith ..... , ••...... Bessemer, A/"b"m" Andrea H urt Somerville ......... Birmingham, Alabama Kyra Sparks-Weinberg .. , ...... , Monlgomery, A/abamil Polly Spencer . ............ . . AndreW5 AFB, Maryland Paul Joseph Spina, III, . .. . .. .... Birmingham, Alabama Kevin Scott Stapp . . .. . .. . ...... TuscalOO1a, Alabama Joseph David Steadman . ... . ........ Mobile, Alabama linda Bridgers Steadman . , • , ........ Mobile, Alabama

/anlwy 1989

Felice Ann Stem •••••......... Birmingham, Alabamil Michael Garoet Stewart , , , • , , , , , Birmingham, Alabama Susan Carol Stewart ......... . Andrews AFB, Maryland Christopher Mark Strength ... . .. . 8irmln8h,lm, Alabama lumes Warren Tarhon, IV .,. . . . , . Mobile, Alabama Jo Alison Taylor , , , , , .. , , , ... . . Birmin8h.lm, Alabama Peyton Clark Thetford .............. Mobile, Alabama William Cooper Thompson ...... Birmingham, A/atMma

lisa Carol Timley ....... ,",.,',., Mobile, Alabama Naomi Hosea Truman .......... Birmingham, Alabama Barry Webb Tucker ............ Birmingham, Alabama Joseph McNamee Tucker ........ Tuscaloosa, Alabama John Thomas Tully ..•.... . . . Birmingham, Alabama Edw;Hd Tatum Turner .............. Charom, A/"bama Karen P;ailette Turner .. ,.", ... Montgomery, Alabama Richard Oillard Turner .......... Tusc<J/oosa, Alabama Robert Barry Tuten ..•••••••••• MOlllsomery, Alawma Thomas Glenn Tuncn, Ir . ....... Blrmlngh<Jm, Alabama Joyce Whit~ Vance ...•.••••.•• Birminghilm, Alabama Jesse Stringer Vogtle, Jr. ......... Birmlngh"m, Alabama WIIII;l!n Randall Wade . ....... Russell Sprln& Kentucky

Lonnie Oolphus Wainwright, Jr... Birmin8ham, Alabama Susan James Walker ........... Birmingham, Alabama jack Booker Weaver ••••.•.•••.... Brewton, Alabama Robert Moore Weaver .... , . , , • , Birmingham, Alaoama David Falconer Webber ....•.••.... Mobllc, Alabama Helen Crump Wells ........... Mont80mery, Alabama Christopher Michael West ....••..••. Mobile, Alabama Anit" Barnes Westberry •. , ...... Birmin8ham, Alabama tarry Russell White •.•..•...... Birmingham, Alabama Stephanie Rose White ••••..•... Birmin8ham, Alabama Calvin Mercer Whitesell, Jr•..... MOlllsomcry, A/ilbamil Carleton Richard Wilkins ..••• , .••. , , Mobile, Alabama t ori Joyce Williams .............. LcxlnSlon, Alabama Richard ScOIl WlJliams.... , , , , , , , , ,ArlinslOn. Virginia Thomas Patrick Williams ........ Bay Minelle, Alabama Wendy lee WIlliams ........... Birmin8ham, Alabama Phyliss Craig Wimberly .... Chapel Hill, North Carolina Jill Verdeyen Wood , , ... , ...... Birmingham, Alabama Kenneth Tim Wyatt ...... , , , . , , Birmingham, Alab.lma Steven Joseph Youngpcter •.•••.•. Tuscaloosa, Alabama Omar Raul Zamora . , , , , ....... Blrmlnsham, Alabamil

Fall 1988 Bar Exam Statistics of Interest Number siuing for exam ........................... . Number certified to SUI>reme Court "., ....... . Certification rate .................... " , .,.,., .•. • , CertlOclltlon ptorcentages: University of Alabama ...........•••••• , , • _••.• Cumberland •...................•••••• , .....• Alabama nonaccredited law schools ............. .

..... ,',."., .... , .................. ,', .. 395 . ............. , ....................•..... 245 •••.. , ......• ,., . , •.•••.•.•.•.•.• . , .... , •• 62% •.................•••••••• , •••. " .. • ...... 70%

....... , ......................... , ........ 68,. . , .... , ................... , , ... , , ......... 33%

-NOTICEPublic TV Provides "Tax Break" Specialized tax advice for §pecinc segments of the American population will be brOlKk;ast on Alabama Public T~levl· sion in January In a 15,parl series erltitll.'Cl TAX TIPS ON TAPE, Developed by the IRS and public television, each 13 and YI minute program Is t<lrgeted ill one of 15 di stinct t<lXpayer grouP!, Including military personnel, educators, older Americans, daycare I>rovlders ond medical pef5Qnnel. APT will broadcast TAX TIPS ON TAPE from II to 11:30 p.m. Monday through Wednesday, January 9-11, and on Thursday, January 12 from 11 to 11:14 p.m. While the hour Is lat(>, APT imd the IRS encourage taping of the series for later use at ta xpayer COrl'o1!nicnce. The dates of broadca. t fo r specific taxpayer groups arc as follows: January 9

Clergy Tip Income Recil>ients

January II

Medical Personnel Oaycare Providers

January 10

I\..'()ple with Second Jobs QldC!r AmeriC<lns

January 12

Children with Income

Tnt.' A/,loama Lawyer

cle opportunities 26

thursday

PRACTICAL LEGAL PROBLEMS HMber! Center, Binnlngh.lm Cumberland InslitulI! fOr CreUit~:

elE

Cost: $95

(205) 870·286S

19-20 ADVANCED STRATEGIES IN EMPLOYMENT lAW H yatt Regency, Siln Francisco Practising law Institute

Cred its: 12.0

6.0

Cost; $425

26-27 PREPARATION OF ANNUAL DISCLOSURE DOCUMENTS WJldorf-AstoriJ l-iolCl, New York Prilc(ising l aw Institute Credit~:

(212) 765-5700

11.0

3 friday COMMERCIAL LAW Birmingham Alabama Bar lri~tl1U1e for Cl E Credi t ~: 6.0 Cost; $85 (20S) )48·6230

Cost: $450

(212) 765-5700

CHAPTER 11 BUSINESS REORGANIZATIONS Helmsley HOlel, New York Pf,lctising law Institute

Credits: 11.0 (212) 765·57GO

COSt: $425

friday

WORKERS' COMPENSATION Atl::m til Atl,m til Bilr Associll tion Cred h ~:

26-28 MIOWINTER CONFERENCE Wynfrey HOlt!l, Bir'llingham Alabama Tri al law~rs A~socia t ion Credits: 9.0 (20S) 262-4974

friday

REAL ESTATE Allan ta Allant;l Bd( A~soci ~tion Credits: 6.0 (40 4) 52 1·078 1

6.0

(404) 521·0761

25-27

6-7 ADVANCED ANTITRUST F,lirmol11 Hotel, ChiC,lE!(l Pr;tctising l;tw In~ti1u1l: Credits: 10.3 Co~t; $475 (212) 765·5700

friday

SOCIAL SECURITY VETERANS' & WORKERS' COMPENSATION CLA IMS Admir,II Scmmc~, Mobile Cumberland II1stl!utC for ClE Credit~: 6.0 Cost: $90 {20S} 87{).2R65

ANTITRUST IN THE HEALTH CARE FIELD Capital H ilton, W,lShlngton, DC National H c~l l h Lawyers Associa tion

CJ'f..'(!ils: 13.8 (l02) 833-1100

CQ~t:

$450

ALABAMA APPELLATE PRACTICE BirminKhO'lm Alab;tl1w liM In~litu le {or Ct.E Credits: 6.0 Co~t: $85 (20S) 348·6230

January 1989

22-24 OIL & GAS LAW & TAXATION 'vVc~tjn

H otel, D"Ud ~

Sou t hv.'(>~lern

Crt.'<lll~:

leg.11 found.l lion

16.5

SKI SEM INAR Pmk Ci ty, Ut<lh Alilb,1mil Trial lawyers Associ,lllon Cost: $1 75

(205) 262-4974

(2 1") 690·2377

13-15

12-16

EMPLOYMENT OISCRIMINATION Doubletree Inn, DJllas Sou thwe~lcrn Legal FoundJtlon

TRIAL AOVOCACY Momdt>Qlw 11011'1 , New Ork',Hl~ Nation.11 Col lo.'MC of Diwict AlI()rlll'ys

(7131 749·1571

12-18

(214) 690-2377

2-3

16-17

IMPAa Of ENVIRONMENTAL

friday

RECU LATIONS Mark Il opkjn ~ Hotel, S.ln Fr.lrl cisco rrJctj sj n~ L,IW In ~li lu T('

Cr('(lit ~:

11.0 (2 12) 765·5700

Cost: $425

STRUaURING AND CAPITALIZING BUSINESS ENTERPR ISES Hy.m Regency li otcl, New Orll'an~ Tulane L.lW School

(504) 865-5900

PROOUCTS LIABILITY Ity.m Regency, Nt.......

Orlcan~

"'UI,IIlC LilW Sc.hol.ll (50·'1 865-5900

WORKERS' COMPENSATION R.lmdda Civic Ccntl'r, BifrninKh,lnl Cumbt.·rI,md ln~t iM(' (Of Cl[ Cr(o(H t ~; 6.0 Co~t: $95 (205) 67()'2865

5-8

MEDICAUlEGAL UPDATE· SKI SEMINAR lake Tahoe A~~()("iillion of lrlill lolWycr) of

BANKING LAW Birmingham Aldb.1mil B,lI Institute for elE

Anlf'rk.l

(800) <1 24·1 725

17-18

BRIDCE·THE-(;AP

ADVANCED FAMILY LAW 6irmin!:lh<lm Alilham<l 8M InslilulC ((lI Cl E Credh\: 6.0

BInnln!!h.lr'J'I AIJIMmil Bar I n~tllutl' for elf

Cr!'(lit~:

12,0 (20S) )48·6230

ThtJ II/abama LawytJf

friday

1205) 148-(2)0

friday

Cr cdil ~: 6.0 (205) 348-6230

Lawyers in the Family

Ch/llies Alex Shorl (/988); Amy Williamson Jones (/987); John Fletcher lones (1953); lohn Flc/cher lones, Jr. (1987) (admit/ee,

Clllvln M. Whitesell, Jr. (1988); Chrls/illc W. Lewis (1981); Calvin M , Whitesell (1951); Timothy Lewis (1988); lind Bill Prendergil st (/980) (lIdmill~, siSler, (,lther, brothers·in·law)

sisler.ln.law, fa "1t~r·ln·law, brothe,./n·/aw)

Ion.llfmn W Caltee (1988); Senator Richard Shelby (1961); Michael I. Ca rlee (1979); David D. Shelby (1978) (admillce, uncle, brollwr. cousin)

William S. McFadden (1988); SIOVii F. McF;uJckn (r95S); Beth McFadden Roose (1978); Robert H. Rouse (19BO) (adm/llee, father. sisler, brOl.her-in-law)

front row-Gregory 5. Ritchey (1988); A/berl f. Ritchey rI9S9};

Michael G. SI(.Wdt1 (1988); Amy W. SICWMt (/983) (admiuee, wife)

Ferris S. RUcher, Jr. (951); Ferris 5. Ritchey, 1/1 (1984) bllck row-Roben M. Rlrclwy (1985); George M. Ritchey (1978); ferris \Iv. Srephens (1981); Josepll T. Rlrchey (1981) (admillcc, (ilrller, undo, cousins) January 1989

I. 'lbungpeter (1988); Yoongpe(cr (1987); Laura L Yoongpelcr (1987) (admi/lcc, brolher, siner-jn路law)

David B. Champlin (1988); flizab<!lh m/llee, sis ler)

f.e. /olomsby, Jr. (1988); f.e. Nomsby, Sr. (1960) (admillee, (dlher) The Alabama Lawyer

ChiJmplin (1984) (ad-

Jack Merrell Nolen, Ir. (1988); Jack M. Nolen, Sf, (1952),路 Theron W,lync Nolan (/982) (admit/ce, (,l li!er, brother)

Ilimes \IV, Tarhan, IV 11988); I{Jllles \IV, Tarilon, III (1961) (admillee, (alher)

Andrea Campbell (1988); John A. /.cnline (1987) (ac/mil/ee, (jllnct)

Chrislophcr 5~ n/ey Rodgers (1988); W 5fil nley Rodgers (1964) (admillee, lil /her)

Frank Colfee Galloway, II/ (1988); Frank Coffee GJlloway, I~ (1962) (adm/llee, lalher)

A. LelNis Philips. 11/ (1988); Abram

Philip5, Ir. (1959) (ildm/llCe, lalher)

James H. Hllncock, Ir. (/988); Judge Jilmes H. Hancock (1957) (adm/llee, lil/her)

Joseph McNamee Tucker (1988); 8illie Anne Crouch Tucker (1959) (adm illto(!. roolhN)

D. wiSh Love (1988); 8ell y lQYe (1965); Hue/Love (1949) (acJ. miucc, mOlher, (alher)

Rllnd,lll Kelrh B01.em,ln (1988); Judge A. Ted Bozeman (/967)

(.1{/mIUcc, f.ltl1crj

Jilnuilry 1989

w"",,,

'''''''"

Eli:abelh Barnes Hilyer (1988); Charles H. Barnes (1963) (admlu(lC, falher)

Cilrletoo Richard Wilkins (l988); Robert 8. ~'''IJ; B. Wilkins. If. (1980) (l.Idm iUce. f.uher, brolher)

Alison MacDona ld Peeler (l9BB}; D.wld Rowles Peeler (l9BJ) (admiucc. husband)

/. Guy FtJllan (1'}88); ~lmcs M. Fu/lan, Jf. (r950); Ma'8.1ret 5parks rut/an (1953) (ildmlll~. f.llher, mOlher'

P.Jmela Karen ASlle (1988); Willil.lm M, Acker, III (1986); ItJdsc WiIIi.1m M, Acker, /r, (1951) (admilrce. htJsband. falher路in路law)

JJmes Ma cDona ld RUS5C!1I. /r. (1988); P. Richard N;mley (1971) (~dmilfee, uncle)

The Alabama Lawyer

Glenn H. Lubel (1988); EdwJfd 8. Raymon (1973) (adm/uee, brol her路In路law)

E. Toltum Turner (1988); EdwJfd P. Turner, Ir. (1955); Halron W. Turner (/984) (admiUef!, f.l lher, brol her)

Kend.ll/ Wal/on Maddolf (988); JuStice HuSh Maddolf (1957) (ad-

mlllce, cousin)

Judi/h C. D:4lesSo1ndro (1988); Maryc Ann ZICirelll dro (1988) (i1dmlllees!slslefS路ln-law)

L1um S. Shores (1988); luslice Janie L. Shores (1959); lames L. Shores (1956) (admillee, mother, f.l/ lwr)

(iJdmlueeslspouscs)

K':lIhryn

D~leSSdn颅

Oucllsmeyer PuSh (1988); lohn DavId PuSh (/988)

January 1989

Rhond,l !OIlC5 (1988); R.B. Jonc5 (/953) (IJdmillee, uncle)

Donijld G. Jackson lack50n (1975) (admil!re, b,o<o.,)

Richard D. Turner (l'J8lJ); iDu;sc /, Turner (1953); lames A Turner (1952): J,JnK's D. TurllCr (974) (admillee, mOine" fathet; bralher)

Androw Chri510pher Clau50n (1988); Unar Fay C/.JU501l (1988) (~dmll!eesJ$pou5C$)

For extra copies of these family photographs or group photographs contact: Margaret Lacey (205) 269-1515 David A filion (/988); Edgilf M, Eli/aI!, III f/95J); E,M. EIIIOf.I, IV (1982) (adm;fl~. (,lfhcr, brOlher)

The A/aooma Lawyer

Building Alabama's Courthouses by Samuel A, Rumore, Jr,

square wooden bllsc and topped with

a Wl!ather vane. The rOO consists of tke The following continues a history of Ala-

bama'i

cou nl ~

uw~r

plans 10 run one counly's story

courthouses-their ori· sins and some o/ lhe people who contributed 10 their growth. The AI.lNm. In each Issue of the magazine. If you have any photographs of early or pr~

cnt

courth ou s~,

please forward them

10:

5.1muel A. Rumore, Jr. Mlglionico & Ru~ore 1230 Brown Manc Towt!r Birmingham, Alabam.l 35203

Morgan County Mor!!ll" County Wil S originally named Cclaro County. The Alalmmtl Territorial Leglst"tu (;o'al(.' (1 ( 01.1(;0

County in February 818 IlQm land ~ ceded 11,0 Ihe Cherokee Indian\ in 181b. Oifferent !.Ources iI\tri bute Ihc name NCOlaCO~ 10 an Indian chicl lrllhcJrca, his tribe or a large creek Ihal /IDYlS

through Ihe north~ilSlern pari of the county.

The first court session convened )line

8, 1818. The building Llsed W;l S a fornwf stagecoilch exchange or inn. Its lOcati on wa s near the Eva COn1mUliity, and the Structure today i$ known .l~ the 'White H o u ~:' Tl)b building W.1S mCl\led from Its original location ,Md now Is used u a residence. It i ~ con· sldered one ()f Ihe oldest slrudures in the COUnty. The neJolt session of the court con· ¥aned In the town Or Somerville on September 14, 1818. The lown Wil~

named for Lieutenant Robert M . SUIllmerville o( TennC'<;ee, who dit'(l ,lithe S.mle of Ho,.;eshoe 6l.'nd Milr<:-h 27, 1814. The spcllinR of th£! town'~ name wa s I:Ucr d-1ilnSC<1. It I~ ~pccu lated th at the home of William VJughJn In 50m. erville wo1!. the !>Ite of the court SC$slons, On June 14, /8 21, the n;'lme (otaco County WilS changed to Morg.111 Coun· Iy in honor of Gen{'f,,1 Oan i(,1 Marg,1Il of Pennsylvania who v.r.lS ,1 famou~ Rtvolutionary War 1eOIler. He h.KI defeilled the British ill Ihe Saltle of Cowpc:!ns, South Carolina, on lanUllry 17, 1781 . CourtS were hdd In Somerville In a frilme building th;'lt burned , The wooden structure wa~ repl act'(i by J brick bulldirlg constructed around 1637. This Somerville courth ouse rcmilins stundlng today, ;lnd is 1)('lit'\lC(ito be the oldest e1(isting building construtted as a courthouse in the State of Alabama. The old Somerville courthouse Is listed on th e National Register of HIstoric Plac~ It Is a ty,().stol)' te<:tangu1ar brick building COrlStru Cled In the Fed· eral style. It has a hipped roof surmourlted by an octa gonal cUllO!a on a

origll'lal rolled copper plate. Since it ceased to serve as a courthouse, thi s building also has been used as a mlli· tal)' college, high SChool, junior high school, elementJry school and Mmior citizen's nutri tion cenle r. The town of Somerville served as county sea t for Morgan County for IM.!r 7Q years; hO\Nt'VCr, Somerville was in a I 'l~d-lockcd location, and other areas of tre county wefC I"Jpldly growing. O n F1!brw"lry 10, 1891, the legisla ture ill>p~ an election to determine the site for the seat of justice. The choices....-ere to keep the courthouse at Somerville, move it to the more central locatiOn of H.utselle or transfer it to the fas test growin area at Decatur. Senle had lived In the Decatur area known a Rhodes r-crry J..l nding ilS early o1S lllU!. ~n March 22, 1820, the famou s AmQfl can nOlVal officer Stephen [)(?catm, hero of the Tripoli War ilnd the WMof 181 2, was killed In a duel. Soon afler this tragedy, a group of Morgan County developers took the name Decatur L..a fld Company, They sold their first lot IJly 9, 1820, and lheir town on the Tcnne$see Ri¥ar steadily grew. By 1891 more than half of MOfBan County'~ population rt.'sldL>d In Decatur <tnd its twin ci ty of NL'W DeCo1 tur. The f(.'suh of th t! cuurthou se clCCtiOrl wa s II (OrL... gone conclusion. The residents of Hartselle still objected to the move of the courthouse to · Decatur, so COUllfY officials transferred their records alld offices (rom Somer· vi lle to the new county seat under~r of darkness by Wilgon 10 .:M;)id any conflicts. The first COurts in Decatur were held on the third floor of the John Bank

January 1989

•

Somerville

drugstore build ins located ~t the cor· ncr of Oak and Cain street s. This buildIng 51111 stands and Is known <IS the

McEntire Building. Fire damage caused the removal of the lop story. The building was used for 3pal'lrnenlS unlil 1988, and It currently Is under renovation.

A nl...... co urthou~ was occupied by the county in 1893. II W,lS a four-story brick Structure loc~ led on Ferry Street

and cost approximately $45,000. The building was topped by a clock to.vcr. Inside the building, under the rotunda, stood a bronze statue of Justice holding scales in he r lefl hand and a sword in her right. This COUrthouse was reo moddl.'tI in 1918. In 1927 a fire 8uned the Interior of the building and the dock tOYo'ef cr.)Shed Into the structure. The citizens of I-hlrt·

selle Immediately sought to hilw the courehou se removed 10 their lown as their fathers had tried to do In 1891, and the rival towns conducted voter rl'gistrillion drives. HO\'¥'eYe!; the majority again chose Dt.'Catur as In 1691. The court· house was rebuil t in 1926 on the ruins of Its predecessor. The statue of Justice was ~ to the lawn facing ferry Street, but she had lost her Kales and sword In the fire. The most slgnl fi c.lnt procC(!(!lngs

conducted In this Morgan County Courthouse were the "$co"sboro Ek1,1~ trials. The initial trial had bet;!n held in Jackson County. The f'(!·trlals WCfe all heard In De<;atur. The second trial com· menced on March 26, 1922, and was

The Alabama LaW)'cr

Decatur presided over by Judge James E. Horton. A third trial commenced on November 17, 1934. A fourth trial beg,lh In 1936, and resumed on July 13, 1937. During this time the t!)(!s of the nation were fixed on DecaTur and the Morgan County Courthouse, and press c~ragc was extensive. After a conviction was Ieportl.'<I in one of the tria ls, W,litQr Win· chell, possibly kllOYllng lhe story of the statue, told his radio IinenerS, "Justice in Morgan County has flO scales." This courthouse, which had lx.'Cn hasti ly erected in 1926, scf\/Cd Morga n County for almost 50 years. II was a two-story StruCture bui lt of orangecolored brick. The main entrance was Oankcd by a pai r of Ionic columns which supported a Classica l pediment, By 1972 the building w~s no longer adequate for the needs of the county, and

a bond issue was a pp~ for its replacement. SeverOlI groups prOl>osed thOlt the old courlhouse building be used for a county museum, uut the st ruClu~ was demolished and the site is now Cotaco Square P.uk located 00hind the present-day courthouse. The new Morg.ln County Courthouse was designcd 11)1 <lrchitect Waitcr Hall ollhc fin'r'l I-Iall & Colvard. The contractor was Gresham, Williams &- Johnson Co. of Decatur. The building is o( con· temporary design consisting of fou r stories and a b., scment. It w.n occupied by the county In April 1976, and the for· mal dedication took place Sunday, September 12, 1976. This modern edlnce Is a filling monument to the county where three I)r!or structures, which have scr'VCd as the county courthouse, stili survive.

•

Samuel A Ru more, Jr., is a graduate or fhe Un/versity or NotIC O,ml(' and the University of .... tabama School 01 Law. He served as founding chairman or the Alabama State 8ar's Family Law Soction and /s in practice in Birmingham with the firm of Mig/lon /co & Rumol'C.

Recent Decisions by John M. Millin" Jr., and Dilvid 8. 8yrnf', Jr.

Recent Decisions of the Supreme Cou rt of AlabamaCriminal Is there i time limit on making a Batson oblectionl Bell v. ScMe, 22 ABR 359S (September 9, 1988)-The Supreme Court of Alabama granted the state's peWlon for wri t of certiorari to consider whether Bell's Bailon objection was timely. In Bell, the defense counsel did not make the BMson objection until after the jury was selected and sworn. Afler the Jury was excused for lunch, defense counsel IllO\II!d to qu.lsh the jury on the basis "thm race played iI part in Ihe strikes exhibited

and u~ by the District Attorm..'Y's offlee •••• " The Supreme Court of Alabama, In a per curiam opinloo, reo.oersed and remanded; in doing 50, the court has giYen us a "brightline t(.>$I" rf!gJrdlng the timeliness of a Batson objection. Following Ihe rat ionale of the Alabilma Court of Criminal Appeals In William$ v. Slale. [MS. 3 Olv. 305, M arc h 8. 1988) __ So.2 d__ (Ala.Crlm.App. 1988), the supreme cOurt held that "in order to prescrw the issue for appellate r'C'J lew, a &1/S01l objectioo, in a Cit5€! in which the death penalty has not been Imposed, must be made prior to the Jury's being sworn." The SUpK!mC court rcvened

.. ~

.~. .)11

John M. Milling, Jr., i$ a member of the (jrm of Hill, Hill, Carler; Franca. Cole &- Black in MOnf8omcry. He ;s a 8radva le 01 Sprins Hili Col/esc and the UniV'CfSily 01 Alabama School of /.D:w. Mi/llns CO\lt'fS Ihe civil portion of Ihe decisions.

D,1Vid B. Byrnc, Jr., Is a gradu<1lc of Ihe UnlverSi!y of Alabama, where he received bolh his

unde'8raduale and law degrees. He is II member of the MonlSOmery firm of Robison &, Bel$er and cewers Ihc ( nm ifllll porI/Oil of Ihc decisions.

QIld remanded bec.luse the ddl.'fldant's Batson objedlon c,1me too late. Compe te ncy to sland Irial-

mOl io n for psychialric exam ination; the raHonale of Div;$ Yo State extended Gordon v. SUI/e, 22 ABR 33 12 (August 26, 1988)-Gordon appealed (rom a denial of her motion for psychiatric ex..1mination. She mainmined that she W'l S Incapable of "aldinM or assisting" her attorney In the prep<lralion of her defense. Cordon pled guilty to a theft chtlrse following the trial court'S denial of her motion for psychiatric examination. The Supreme Court of Alabama granted cerliorarl to review whether the Irial court err(!(i in denying Gordon's request (or psychiatric exJmlna· lion. The COurt, In a per curiam opi nion, r~rsed and remanded. At the outset, the court noted thai the matter of court-sanctioned psychiatric examination is addressed in §IS-I6-21, Code of AI/I/)am.1 (1 975). Our supreme court haS held that requests for psychiatric examination are within the trial courl'S disc~t lon which will remain uooislVrbed on al> pcllate review absent a clear abuse 0( that discretion. Pilce v. State 284 Ala . 585, 226 5o.2d 645 (1969). The St.lte maintained thaI the evidence supporting Gordon'S request for

January 1989

psychiillric evaluation lacked the necess.1ry elements under Davis v. Stille, 354 So.2d 334 (Ala.Crim,App, 1978). In Davis, the Alabama Court of Criminal AI>I>cals held that three factors wcre to be considered by the trial court In (lvaluating an accused's competency 10 stand Irlal: I. the existence of a history of Irra· tlonal behavior; 2. prior medical opinion; and, 3. the accused'. demeanor at trial. The Stale contended Ihal Gordon failed to satisfy the Davis requirements because no evid~lce of irrational behavior or prior medical o pinion was adduced. In Cordon, three aUorncy5 who had personal encounters with Gordon testified thaI $he W,l SIncapable of aiding an aUorney in her defense. After careful· Iy reviewing the lestlmony of Ihe th ree lawyers, the Alabama SUl>feme Court suggcsted thai the Davis f,1ctOrs were not all·i nclusive and extcndl.>d Ihe rati onale of Davis as folla.vs: ~, , . To suggest Ih.1l an accused's com· petency can be ilSsessed b<l'lt.>d solely on such a reSlficted analVl'l$ defies common rea soning, The three OIl~I$ clements, namely, 1) an accused', history of Irrational beha~ior, 2) prior nW!dlcal opinion about the llCCust!d, and )} an KCused's demeanor attllll, are all re1l'Y'i1n1ln determining whe1hef fUflher inquiry Is required , , , , U1<:I'NCM:r,] It)here are. , . no fl~ed or Immutable signs which Invariably In. dlcate the need fOf fu rther Inquiry to detemtlne fi tness 10 proceed; tt\(! question Is oI"lCfl a difficult one In which a wide r.lInge of mllfllle!itations and subtle nuanc;e,; pre Implicated. That they art! dilncult to ev~ l ualc Is sugge:slt'tl by the ..... rylng opinions IraJ"oo I>sychi. attlsts can enteftlin on the same (aclS,"

Drope v. Missouri, 420 U,s. 162, 175 (1975), The court Concluded thm the evidence presented to the trial court clearly warranted further Inquiry into Gordon's men. tal competence. The judgment of the court of criminal appeals therefore was reversed (lnd the Coiuse remanded .

A labama firearms enhancemenl stalute Iriggered o nly by element of intentional c riminal conduct McCree v. SUlle, 22 ABR 3617 (September 16, J988)-Defendant wa s convicted (or manslaughter and senIcncL'(! to 10 years In prison under Alabama's Firearm Enhancement 5\.3tute, §1JA.5·6(a)(S), code cI Alabama (1975). IV. trial, defendant's attorneys moo a writ· ten Ill(){lon to bM the use cI the enhancement prOVisions in determining his sentence, The trial court denied the motion. Defendant OO'l.lncecJ two argumeolS In support of his contention Ihat the trial court L'fred In applying the enhancement prOVisions of the statUtc. First, the language of k!ction l JA.5·6{a)(S) allows enhancement of the sen tence only when a de(endant is convicted of a felony Ihat iflYOlves the use 0(, or the attempt to use, a weapon "In the commission o( {that} felony." Defend,mt next argued that the element of Intent is a necessary element of ;any fel ony to which the enhancement statute is sought to be applied in order (or the statute to have a deterrent e(fect on the use of weapons, especially firearms. The State, relying on Hol/oway v. S(iJte, 477 So.2d 487 (Ala.Crlm.App. 1985), maintained that the appl ication of the enhancement statute Is mandatory with the only requiremen t for its application being th tH the jury find Ih(lt the defen· dant used a firea rm In the commission o( a class 8 or class C felony.

The Supreme Court of Alabama disagret.'Cf and reversed. Justice Jones foc used the Issue as follows: ", .. The resolution of thll I~sue rtlquiJ\.'S ;ll'NO-SIep pnxe!is. First, Implicit III the lansuagc of §tJA.5·G(a){5)~ nrcarm Ot delldly ~apQn WilS UM.'tI Of illtempted to be use(lill the COlllml" slon of the fc~ls the requ l rell~t tl\3tlhe undcriyillglclonv lor which the defendallt IJ convlcled hIM', as one 01 its necessary elements, the element 01 Irllf:rII/onal criminal conduct, T h~reforo , MCCf(l((s re ckless or negligenl conduct, which resulted In manslaughter, while wlnclent to SU I~ ply the Cllmlnal scienter 10 suppon a convk:tlon 101 a Class C f.."'4ony, does nOi require a flrtdlng that he Intl!ntlon. aUy used the firearm /0 commIe the fclorry, and thuscalmot suppon the al~ pllcmloll 01 Sl J..\.s.6(aH5)." In Qther word s, the court construed subsection (a)(S) to mean Ihat convlc· tions for those underlying felonies that are commi ttl.'CI without Ihe Intentional usc of a deadly weapon do not fall within the Clllcgory of convictions that Invoke the enhancement prOVision of this st,ltute, Second, "enhancement;' as thaI word is used to describe the effect of §I)A.S·6(tI)(51. necessarily means that In addition fO the culpability ol lhe offeltse for which the defendant has been con· vlCled, the defendant's conduct Is necessarily the result of a higher degree o( culpability because of the lury's fi nd· Ing that a "fjre;ttn\ or deadly W(.>apon W<l5 used or attempted to be used In the com· mission of the felO!ly:' Indeed, the use of

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flectric: Sbod; • AlrtOmothWA"tIoD'MaMe EItccrVIlkI· M«IkaI Dmct F.uutt • CGlDlputerS,.....· Mlaows.c HuIrdI' BbDtdk:aI S""""umID-MKbiDe IAttrhft·

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Dr. MlcbaeI S. Morse Dr. Thaddeus A. Roppel (20S) 887·1817 (20S) 887·1814 (20S) 826·6610 D7 P'.I,.,5nd. Aub ........... 3MJO . EIrpert RtIu_ Wtla:me

The Alabama Lawyer

a deadly weap(ln 10 commllthe underlyIng (elony Is the cl assic sl/u;lI lon In/end. ed by the legi51ature to Invoke Ihe enhanced penalty. Here, the jury returned a verdict of manslaughter against the defendant. By virtue 01 that finding. the Jury eliminated the element of defendant's IntentiOnal use of a (irellim as a means 10 take human life. The culpability of defendanl (or recklessness was eSlabllshed by Ihe Jury's verdict. Therefore, the trial court was without aUlhority 10 sentence defendant under an enhancement statute Ihat, bv ils very terms, Is Invoked by a culpabiliry higher Ihan thaI for which defendant had been found gui lty.

Ineffective assistance of counsel FoSler v. Sla ll.', 22 AaR 2788 Uuly IS, of rape, robbery, kidnapping and sodomy. On ap. peal, the Supreme Court of Alabama granled certiorari as to the issue of whethcr defendant should have been granted a hearing on his pro SI! mOl ion for a new trial on the basis of Ineffective assiStance of counsel. Defendant's motion alleged that his counsel did not bring out at trial: (1) thaI the victim had a history of mental illness; and, (2) that th e Montgomery w.uranl clerk's office had POSled a sign warning officers not /0 accept complaln lSfrom this pro~ecu[rix becauS(! she had a history of making false complain ts. In Strickland v. wash/nston, 466 U.S. 668 (1984), the United Slaies Supreme 1 988)-DeI'end~nt was convicted

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Court estab/lshed the slandard for the review of an ineffective assistance of counsel claim: "I". convicuxJ defendant', claim Ihilt C()I.m~I 's assistance WilS sodc(<<ti\1l as to require Il!YI!fSaI 01 iI convlcllon Ot de"th sentence hal tYlO components. fl~, the defendanl mUSt show [hat C~tnsel's perform~nce was defk ient. This requires shoNilS that counset W.:lS not fun ctloninll as the 'counsel' lIuar;l'lIced the defendant by the Si~th Amendment. Second. tho defendant must ' hON that the! d<:flclent performance prejudiced the ddense. This requires showing that counsel's erlllO --ere SO serious as 10 deprl~ defendant of a fair [rial, a trial Wh05e result Is fIlllable. Unless a defendant makes both ,howlngs, II cannOt be said [hm [he convil:;tion or death SCII[CnCe resulted from a bfll~kdown In Ihe advcrsary process 111.11 rend('fs the te'iult

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unretlable.~

In reversing, the Alabama Supreme Court held Ihat Ihe trial judge incorrectly held, in his order denying the motion (01' new trlal, that the flOll ce POSled in lhe warrJn t clerk's office would not havc been admissible In Ihe casco Justice Maddox reasoned Ihal, "The evidence FOSler says he can present regarding the notice In the warranl cleri<'s office would be admissible, as It relates to the prosecutrix's reputation for truth ,lnd veracity. A wi tness, by taking Ihe SI'lnd. puts in Issue his character or rel)Ulallon for Irulhfu l nt'Ss.~ Allcn V. Stme, 382 So.2d 11, 23, (Ala.Crim.App. 1979). ~Second , foster alleged Ihal the prosecutrix's psychiatrist would state Ihat she was not compelenllO lestify. Of course, such evidence would be relcvant and could ha~ changed the outcome of the triaL" upon misdemeanor arrest requires th at the of. ficer have actual possession of misdemeano r writ of arrest BrOIvnlee V. Stale, 22 ASR 3688

Sea rch predicated

(Seplember 16. 1988l-De(endant was arrested on a writ of arrest issued (or his (ailure to P<ty a fi ne on an earlier misdemeanor charge of driving while his license was AM}koo. At the police department, a small quantity of marijuana was

found In defendanl'S posseSSion, and he wa s subsequently churged with unlawful possession of marljuMa. Defendant moved to suppress the evidence of the marljuiIOa on grounds thaI the arrest wri t on the misdemeanor was not In possession of the police officer at the time of his arrest as required by §15-1O..3, Code of Alabama (1975). On IIppeal, the issue lor review was whether the St(l\~ bearS the burden or proving the existence of a valid writ of arrest i1t the lime and place 01 defendant's arrest, and, if so, whether the triill court erred In denying the motion to SuppreiS the cvldence 01 marijuana. For an arrest 10 be valid on a misdemeanor offense nol w;In (!ssOO by the ar· resting officer, Ihe offlccr must have the arrest warrant In his IlOSscsslon al Ihe lime of arrest. EI( parte Talley. 479 So.zd 1305 (Ala. 1985); scc also Ex parte Edwards, 454 So.2d 503 (Ala. 1983). Thus, when a pollee oft'lcer arrests without a warrOlnl and Ihe defendanl ob jects 10 the In!roductlon of the evidelu:;e S(!lzed as an incident 10 Ihe arrest, ~ I hc burden Is on the St,lIe to shaw that the arrest W;lS law(ul:' Dunc.. n V. State, 278 Ala. 1435, 161, 176 So.2d 840, 855 (1965). The Alabama Supreme Court, in a per curiam opinion, fOund Ihat where a defend,lOl pmperiy obJetts 10 testimony pen;!!nlng 10 a search ami the admission inlo evidence of the hfrul!S~ of Ihat search on Ihe ground Ihal there was no search Wiltfant, Ihe objection places upon the

Richard Wilson & Associates Registered Professio nal Co urt Reporters 17 Mildred Street Mo ntgomery, Alabama 36104

264-6433 January 1989

S!ate the burden of ~hO'Nl n g el!her a W,Jrr<Jnt or one of the exceptions to the reo (Iulrcment of il Wil"ant, Ex p.:lrlC />.JScha/, 36S So.2d 661 (A ta. 1976). By properly raising this objection as to the admissibility of the marijuana <IS evidence, the supreme court reasoned thll t defendant sh ftt.>d to the St<lte the b urden to show thdt the seizure of the mari juanll was lawful; in o ther wo rds, the Sta te had th e burden of showing that the selzurc was the product of an arrest by an ofncer with actual possesSion of the misdemeanor w rit, In light of the testimony from the ,lrresti ng officer that he could not re member defendant'S arrest, the defendan t himself or w hether he possessed the wri t at the time of dle arrest, and the fur· ther testimony from the booking ofncer after defendant WiIS taken InlO custody, the State falloo to mee! its burden of p(O\Iing the existence of il v.lUd writ at

Notice Is given herewith pursuant [() the A/llbllma Sl ate IJM Rules Goyemlng EIt..'Ction of Presiderllo{!/ecl lind COlllmis-

sioner for 1989.

Pres id ent~ l ect

The Alabama State 8 ar will elect a I>residen t-elcct in 1969 to assume the presi dency of the 1).1r In july 1990. Any cand idate must be a member In good sta nding On Milrch 1, 1969. Petition s nominating a candidate must bear the signature of 25 members in good standIng of the AlilOOma StOlte Sar and be received by the secretary of the state bar on o r before March 1, 1989 . Any candidllte for th is office al so must Submit with the nom inating petition It black and whi te photograph and blogral)hica) data to be publi shed in the May Alj}b<lm~

Lawyer.

The A/oimlllo Lawyer

the time ,lnd place of Brownlee's arres!. The supreme court, therefore, concluded that the trial court erred in denying the motio n to Suppn!S~. What price " conviction} a treatise o n Agurs and Strid/,ffld Ex Parle \l\bmilck, 22 AIJR )440 (September 2, 1988)- Thc supreme court cataloged a 14th Amendmen t yiolation by the district allorlWY's offlcf" from Montgoll"-.ery County, A)ab.lma, In failing to pfO\llde exculpatory Information within its control and, second, found that defendant wa~ denied his Six th Amendment right to counsel. In the o pinion of this writer, this case represent s a truly slgnl(jcant d eci si on In the area of c rlm · ina) procedure, Every Alab.:lma Inwyer should carefully read thi s en tire opinion if they practice crimin"I I.1W in this stale. On Fcbruilry 2, 1961, the City Curb Market, localed In Montgomery Coun-

Notice of Election Ballots will be mailed between May 15 and June 1 ilnd mu)t be received at ~t ate bilr headquarters by 5 I).m. on July 19, 1989. Commi ssioners Bar commissiOners will be elected by those la..vyers with their principal o(fices on the following circuits: 1st; 3rd ; 5th; 6th-Place' 1; 7th; 1Olh-Plllces il3 and 6; 13th·Place '3; 14th; 15th-Places 111 and 3; 25th; 26th; 26th; )200; and 37th. Ad. dltlonal commissioners will be elected In these cirCuitS for cilch )00 members of the state bar with principal offices therein, The new commissioner posl-

Iy, Alabama, wa s robbed by someone who kU!ed the owner. Although there were no eye wi tnesses to the crime, the State ca lled as witnesse s several cuStomers who v..oere in Ihe Storc JUSt before and just after the crime.

Dclendant's most serious allegation the Stol te'S failure to produce exculpatory Information involved 5uPIl ression of iI plen bargain with bolh Neal M nrtln and Rex j ones before their grimd ju ry testimony. AI the coram nobi5 heilring. the attorney who defended Martin testl· fied that some time after Martin gave his grand jury testimony, Martin sent him a letter indicating thill defendant WitS innocent and that the grand jury testimony wa s (;"iIS(!, The attorney's testimony was corroborat(.'(/ IJy the leiter that Mart in sent to him while Martin w.lS In prison. The letter, which Wil S authenticated by Marlin at the coram nobis hearing. was not o nly excull)atory of the defendant,

tions will be determined by ~ cen sus on Marc h 1, 1989, and v<lcan c es certified by the secretary on M llfch 15, 1989. The terms of any incumbent comm i ~ sloners arc retained , All subsequent terms will be for three years. NOmir'l.1tlons may be made by petitiorl beilflng the si gnatures of five members in good st.lllding with pri ncipal o(fices In the circui t In which the e ecl lon will be held or by the candidate' s wri tten declaration of candidacy, Ei ther must be received by the secretary no later than 5 p.m. on the last Friday In April (April 28, 19891. Ballots will be prepared and mailed tQ members be tw(.>en Ml;ly 15 and June 1, 1969, Ballots must be voted lind returnt.'tI by 5 p.m , on the second Tuesday in june Out)(! 13, 1989)10 stille bar headquarters. •

but strongly Irrpllcated both Manln and Jones. The Supreme Coort of Alilbama found constitutional error and the requirement for a new trial based upon Giglio If. United Slalcs, 405 U.S. 150 (1972), and Nllpuc v. illinois, 360 U.S. 264, 271 (1959), The wpreme co urt critically noted: "There was vuluminou'i flYidtnce presenled allhe cor...m rrobi~ he... ring 10 the efle<l that lhe disulcI alIorney'5 office had negollated a pleil bilrgaln with both Neal Milltin i1nd Rex Jones bdOfll their ,rand Jury tcstimorry, but lalled to disclose those plea baf8lllns to \o\\>mack'~ attorney; JUSt as In CiS/lo, Ihc prosecu tor In \o\tlmad aggravated the I>f'eo judicial effect of the suppfC§slon of thc plea bargain by af(irmlltively represen ti ng to Ihe jury that Jones had no deal with the Stille.

BUSINESS VALUATIONS emplo)'1lllllock ownenhip plans r.cqu iI it iolil/di ves Ii IUl"U ltockhokk:t diJpIllu d~On:d • eh.illblll &i[1I dillea ' inlllllible UJtIS Contact: Mitchell Kaye,

CFA,

A SA

800 888.KA VB (5293)

Member American Society of Appt1l isers Past Presi(lcnl-Atlanta Chapler Tho TnstitulC ofChartCfed

Financial AnalysIS

•

Court Testimony and

In summary, Ihe Supreme Court of Alabama fOU r"ld a denial of due process for th roe essential reasons: ~1 . FI~I, due proce>s

precludes the use of perjured tC$llmorry by thc pm· secUlion in i1cqui rlns a COIlVICIlon, We have concluded, In thl~ ftS8rd, th .. t Ihll Slale'i misrepresenllltion Ihlll It had no p ea b;J'lJiIln or olher arrangements wl lh lone'i ilnd Mar. lin al the lime of trial w,)s a denial of the conSl llu'tonal "ShIS 01 Ihe accused. H2. 5lmUarty, 'COnSlllul;on~1 error' occurred when lhe p~utor krlONo Insly wpp!tssed cYldence Ihal Mar· tin WJS guIlty of Ihe crime and solicited reltcratlon atlrial of MM· ti n's dubious IIfand Jury lestlmorry. MOJ'OO'ooflr, duc process roqulres the j)n)(I\IC110n of exCU1P.llory evldencc that Is Ihe subject 01 a ~ JX.'CHlc preiriaireque sl 'NIl have conclud· ed. therefore. th;1I 11 was ~rslbll! erfOf" lor the Illal court 10 rt'ject \o\bmack's con!ilitulional ar(jumcnt wllh fl'8iIrd 10 the St,)le'~ Suppres,iO<'l of police epor\s Ihill 'ihorM!d lnconslSleflCies with k>oes's artd Martin's Iiller SLttl!menll bd"0ff' the grand Jury and the trial court .. . HJ. Dull proooss re<&uln..'s Ihc disclosure (II elt(;l,Ilp,1lory maller, I!YI!n In Ihll ilbscnce 01 iI retlue~t, if it crellIl'S~ reilsonablo doubt nbout the defen· dant'~ Innocence Ihal did nOl olher· wise c~lsl. We have conc1ud..od Ihal II was I1!YCnib1e error lor Ihe trial COUrI 10 reject 'WofTUlck', due process ar(jument With regard to Ihe prosecutor's supprenlon of C\lldence 01 Manln''i allMlpltO recant his 8r~l""d Jury Icstlmooy. Simll')rly, II W~ 'constitutional enOl"' rOt the Slale 10 ,uppress the Roben Glenn memor.lndum, which alw Indicall'<l that lones and Mllrtln had oommlned the crime." The supreme cou rt also found thilt the SI~th Amendment right to effective assistance of counsel requirt.od rcvcts.ll under the m,lI1dJle of Sulek/and v. WdshinSton, 466 U.s' 668 (1984). The court concluded thm, ~ It was con stitutional error under the Sixth Amendment for defense counsel to voluntarily take the stoand and testify against his client. Second, reversible error o<;curred wher) defense counsel 1.11100 to present the

tCStlmony by James Williams th at would haYe impe')c hed the testimony of Jones and Martin and imillicatcd them In the murder. Third, It was constitutIonal error for the defense counscllO Ignore the ex· culptltory evidence that Robert Beno possessed bu t which was protected by the att orney.cllcnt privilege: ' II Is significant to note thai the Supreme Court of Alabama did not create any new Slrictu~ to appl y In criminal trials. Rather, the court applied the protection s that thll United States Supreme Court has requ Ired for nearly 20 years under the Sixth and Fourteen th amend ments to the COr"lstltution.

Recent Decisions of the Supreme Court of AlabamaCivi l C ivil procedure . .. interrogee may introduce its inlerroga tory ilnswers which l en d 10 explain answers introduced by other party Cody v. Loui5vl/lC & Nashville R<1l1rood Co., 21 A8R 3222 (August 26, t988). Cody WJS Injured while workIng. when a boxcar door fell on him, He sued l&N, owner of the boxcar. During the trial, Cody's OlltOrncy read to the jury 42 of ss interrogatories and answers that Cody had propounded to l&N. Thereafler, l&N offered I\YO of the questions and answers thai Cody had omitted. The I\YO questions ~rded prev;ous Instanccs of the boxcar doors failing. Cody obJected to l&N's offer on the srounds that the imswers were SIllf·scrvlng declarations. The trial court admilled the answers into (>vidence over Cody's objection. The supremc COurl held Ih~t the trial court did not err. In a case of initial impression In Alabama since adoption of the ....Iabama Rules of Civil Procedure, the suprcme court adopted a New Mexico COllr"s holding that when a party submitting written interrog:lto rlcs offers i nto evidence part of the answers thereto, the

I.R.S. Experience 46

January 1989

Inlerrogcc has a rlghllo Il'IIroduCc or 10 haw inlroduced all o( Ihe Il'IIerrogalories which are relevanll O, or which lend 10 explain or correct, the answcrs submit· led . Prior Altlbtlma practice held thaI thc examini ng pany hold Ihc option o( in· trodudng answcrs 10 InlcrrogMories, but that If he did so, he had to offer the whole afld could nol selecl Ihc ilnS'NCrt or P.lrts of answers suited to his purpose. Ci\/il procedure ••• pre-trial motions may ser\/e answer

[;c parte United States Gymvm Com· pany (In Re: Cil y of Enterprise v. United SWtes Gypsum Co., et al.}, 22 ABR 3537 (Sel>tember 9, 198i). U.5. Gypsum was

sued as a manuf(1cturer of asbestos products. u.s. Gypsum filed numerous pretrial motions Induding (1 motion to dismiss, a motion for judgment on the pleadings and II motion for s\Jmmal)' ludgmcllI. The motions r;lised Ihe statute of limitations and Iml)r'Opcr U!i(! of fi co tltlou5 party rules. The trial court denied all motions except (or the mOlion (or summaI)' judgment and the motion for judgmerlt on the p e"dings. Thirteen days prior to trilll, U.S. Gypsum flied an "answer" which rai sed Ihc same Issues rai sed In the pre-trial motions. The City filed a roolion to S(rike the answer, which alleged that the answcr wtlS untimely and afforded the City In· suffident notice of Ihe defenses to prepare for trial. The trial court gr,wted the motion. U.s. GyPSU'll flied a petition for wri t of mandamus to decide the dispute. The supmme court gl"llnled Ihe wrlt and held that Ihe pre.lrial motions served as an answer and were suffldent notice to the City that U.S. Gypsum intended 10 ril i~ the defenses at Irlal. In dic(a, the supreme court also noted thaI Rule 12(a), Ala.R.(Iv.P., alters the ]O-day period for mlng an answer under certllin ci rcumstances when a "motion permi tted under this rul e" Is flied. The motion for judgment on the pleJdlngs filed by u.s. Cypsu"TI is cleilrly a "m0tion permitted under" Rule 12. The supreme court also noted thiltlhere is per·

The Mahama Lawyer

suasive authority that \IoIOuld treat a preanswer Rule 56 mOlron (or summaI)' judgrnent similarly 10 a "Rule I2H mOllon. Ci\/il procedure ••• rul e 12(a) and S6·5-440 applied EI( parle Cana/lns. Co. (In Re: Sparks v. Canal Ins, Co.}, 22 ABR 3532 (Seplember 9, 1988). CMal insured Sparks and his truck. Sp.l rks had an ac· ddQnl and (lied II sworn proof of loss. Canal disputed the claim and (jled a dedaratory judgment <1etlon in (cderJI court seeking a declaraTion of ils obliga· tlons under the policy. Suoscquenrly. Sparks nled a suit in state court alleging breach of contract, bad faith, etc. Canal mOIled to dismiss thc st.lle Court aClion, asserting that the prior federal court ac· lion b.,rrcd the slate court action aT~ the mailers alleged in the state court action were I)!operly mal1(!fS of a compu lsory COurllCrdalm in the fI..'tIeral action pur· su,mt to fed.ROv. P. 13(a). Eventually, Sp.uks nled a coun tcrclalm in federal court and a ll~ breach of contract, b."lCl faith, etc, Canal petitioned the supreme COllrt for a writ of mand;lJI1US dlrectin8 the SWle court judge to dismiss the st'lle (ourt suit. The supreme court granted the writ . The suprt"'me court SI<11t.'(I that under both the Alnbarna rules and the federal rules, Sparks' suil was" compulsory countcrtlalm to Canal's declaratory judg. ment action. The suplemc COurt also stated that because the mailer asserted in the counterclaim Is subject to the man-

date In rule 13(a), Fed.R.Clv.P. , 56-5·440, Ala. Code (1975), requires the dismissal of the 5ubseQuently filed stale court ac· tlon. The federal court acquired jurisdic· lion of thc controversy before the stale court actloll WOlS filed and §6-5·440, supra, forulds Ihe prosecution of \Y.'O actions In the courts of Ihi5 state at the same lime for the Solme cause ilgainSlthe same I>mty, "Courls of Ihls state" as used in this section includes a United S ~11l'S District Court within this sta te. Civil procedure •.. parly must mO\le 10 51rike aUida\/il that \/iolales rule 56(e), or he wai\/cs objection Perry v. Mobile County, 22 A6R 3777 (September 23, 1988). Perry was Injured In an accident thaI occurred at an In· tersection in Mobile County. He sued M.L. Risher. an engineer t.'fT1ployed by the SIMe of Alabama Hlghw,lY DepOlrt. menl, and alleged Imer aUa thaI ~i sher had negligently or wantonly failed to alter, modify or change the Inlersection prior to the accident. Risher flied a mOlion for summary judgment, and plain. tiff flied a motion in opposition and an Mfidavlt that contained speculative and condusory statements. The a/'OdINi t was nOI bilsed on personal knowledge. and it was accomp..lnled by documents which were nOI certjfi(!(j 01 olherwise authent icated . The trial court granted Risher's motion for summaI)' judgment, and the issue of the admissi bility of the evidence In opposilionlo the motion for sunlmary judgment was raised for the firsl time on appeal.

SMITH-ALSOBROOK & ASSOC. EXPERT WITNESS SERVICES

• nro consulting • Rlmltlre explOSions • Traffic accldenl r8COr'lsiruciion BOBBY D. SMITH, B.S., J .D., Pr••ldent P.O. Box 3064 Op*likl, Al 36803 (205) 7<49-1544

In a motter of Initia l Impression In Alaooma, the supreme court adopted the language contained in C. Wri ght, A. Miller and M . Kane, Fe<Jeral PmQice ;tnd Procedure: Civil Second, Section 2738 (1983), wh ich StOl tl!S thOl t 'a party must m O'\le to strike an affidavit tha t violates

Ru le 56(e); If he fall s to do so, he will waive his objection and, In the absence of a 'gross miscarriage of j ustice,' th e cou n may consider the defeoive affidilVit: The supreme court noted thatlhe foregoing is ilPplicable equally to tho se OIffidavits in support of a motion for sum· mary judgment and to those in opposi· tlon to such a motion. labor •••

whf.'re they concern thl! private sector employees, the court held that the slatutory scheme enacted by Congress ga.'ernlng such claims in the con text of

federal governmen! employment preempts stilte cou rt jurisdiction. The su· preme court relied on authori ties in lhe Eleventh and Ninth circuit courts of appeals but acknOYJledged Ihalthe Issue is di sputed and Is presently before the United States Supreme Coun.

state courts Illck jurisdiction of

disputes invol\'ing federal govern· ment employment

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Mims v. Americ~ n Federalion of Gov· emmenl Employee5, 21 ABR 3302 (AugUSt 26, 1988). Mims, an emplOy'CC of a Veteran s Adm lnlsl ralion hospital, wa s flr'ed. He requested Ihal his union chal· lenge his termination pursuanl10 union grievance procedure s. The vnion filed a grlev<lnce which wa s rejected by man· agemenl, and the union refusl!d Mims' re<lu~t that the ma:ter proceed to arbi tra· tion. M lms filed thi s action In stale court ;rnd cOrihmded Ihat the union breached its duty of fair representation, a duty recognized under federal labor law. The trial COutl dismissed M ims' claim against the union on the basis lh<ll Alab..lma stale courts lacked subject-matter jurisdiCtion over such a lawsuit. Th e supreme cou rt affirmed. The suplf~:me COurt nOted that although It had held that stall! courts have subjectmatter jurlsdlcllon over such claim s

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Torls." AEMLO discussed Sanders v. Ingram Equipment, In c., 22 ABR 3341 (September 2, 1966). Sanders, sanitation worker, WilS injured when he slipped off a gilrbage truck's running i.Jo:Ird and Wil$ run (JIIIi!rby the truck. The truck WolS manufactured by General Motors. The lruck carried a garbage packer manufactured hoi The Hell Company. The Hell Company mounted the gilrbage packer on the. GM tru ck and sold the unit to third panies who sold it to Sanders' employer. S~nd ers sued Heil and Others under th e Alabam;1 Extend· ed Manufacturer's liability Doctrine (AEMLD) and contended th <tl the gar· bage packer wherl mounted on the GM truck cons1l1uted a "comp leled vehicle" and tha t the "completed vehicle," taken as a whole, was dcfecll'<C. The trial coun disagreed ilnd granled Hell's molion for summ<lry j udgment . The supreme court affi rmed. The supreme court SI<11ed that the issue Wil S whether someone who manufac· lures il non-defecl ive componen t, and Ihen p.:lrlicip<lti!S in IIssembling the componen t onto a defective product, can be held liable under th e AEMLO for injuries occurring as a result of the defect In the component not manufactured by thaI party, The supreme court said no <Inc! held that a distributor or manu facturer of a non-dcfectlve component is nol liable for defects in il product that it did not m<lnufilcture, sell or otherwise place In the stream of commerce. There was r'o evidence that Hell manufactured or sold a defcctive component, and there was no w oof of a causal re lationship between 5.1ndcrs' inj ury and Heil's action s, • il

January 1989

O~inions

of the General Counsel

QUESTION, A solo prac titioner with a n active Irusl account died. At· lornt.'Y A was appointed executor and undertook 10 wind up the prac tice and distribute the funds from Ihe Irusl ac-

count. The solQ pr;t(tilioner maintained an accounts ledger of the trust account, bUI the balances did nol rl'Concile with Ihe bank aCCOunt. After seYeral yean A w.u able 10 dclermine the cUc rllS who owned the vario us accounts, lind ap-

propriate disbursements were made. He was unable, however, 10 determine the owners of some of the funds or the whereabouts of ccrlain clients. What distribution should A make in order to close the a((ounll ANSWER: There are two categor!L'S of funds in the <lecount. The first ca tegory Involved Ihose fu nds thaI ca nnol be allributcd to iI p!lrlkular client. Aft!!r a reasonable and good faith !!ffort Is made to determine the ownership of the funds, and after holding the funds a. long as necessary 10 assure that 00 un· Idt!ntlfied client could make a successful claim against the account, A may distribute the funds to the solo practitioner's estate. The second category of funds In the aCCOI.lnl are those that can be attributed to a client but the location of that client is unknown . After making iI good faith and rea sollable effort to locate the client. A mUSt hold the funds until thcy are presumed ab.... ndoned under Slate law, at which time he shou ld turn them over to Ihe state. OISCUSSION: Attorney A firsl should make every reasonable clfort to ascertain the identity and location of the clients entitled to Ihe fun ds. This 'NOuld include Ilubl1ClltiOn of a notice In a newspaper of general clrtulallon, not only In Ihe area where Ihe decf.'dcn t practiced but also In the last known area whe(e the client or clients reside or do business. Regarding the fu~s that cannot be attributed to a client or clients. seY(lfdl state ethics committees ~ held that after reasonable and good faith allempts to ascMaln the owner· ship and after holding the funds long enough to insure thill no unidentified client could make a claim against the funds within any applicable sliltute of limitations, they may be dis· tributed to the allomcy's personal account or his est.1ti!. Unldenti(jf.'d funds In a trust account could properly be funds deposited to pay 5eNic@ charges lOR 9·102(A)(1)1 or to avoid any possibility of a shortAge In the account or fees earned but not withdrl.lwn lOR 9.102(A)(2JI. The Alabama DiSCiplinary Commissioo addressed 11 similar queStloll In R0-82·649. In that case there wem several thousand dollars In a dece<lsed ullorm.'Y's trust accoun t that could not be "traced to Its rightful owner:" The commission held that: ~ type at legal proceedlnB should be Instituted whereby nQ(lce by publication could be B'~n to potentioll clalmolnts. Although Q(her pnXeedings miJV be iW,lilable "'11 SU"~t tholl

The Alah.1ma Lawyt'r

by Ro~rl W . Norris, Ge neral Couniel

tho pmpetty could be disposed oJ under the Alab.lma Unllorm Dlspmition at Unclaimed Properly Acl, Seclion ]5-12·20COlle 01 AI,bam.l, 1975,~

In this case the commission assumf.'d that the funds were clierJ t funds and ~re " nOI earned attorney"s fees which tthe atlorney] deposlled In a trust account pursuan t to the provi. sions of DR 9·102(A) ;It\d failed to withdraw therefrom." The opi nion then cites an earlier opinion where the client was knov,," but could nol be located. In the case al hand, wt make no such assumptions <lnd hold that where It cannot be determined that the fund s are client funds by reasonable, dmgent and good faith efforts. including public nOllce In a newspaper of gener;!1 circulation and after holding the fund s 10llg cnoul!h to assure that no successful claim will be filed by an unknown client, lhe fund s may be distri buted 10 the deceased al1ofllL'Y'S estilte. The second category of funds in the trust account are those that can be attriooted to a client but the whereabouts 01 the clien t are unknown, In this situation Attorney A does not h3'Ye the option of distributing the funds to the deceilsed ilttorney's (!State ix.ocause the money clearly docs OOt belong to the d~ ce~scd ,morney. In situations such as this, numerous opinions of state bar ethks committees. Includhlg the Discil)linmy Com· mil510n of the Al ab<1rna State Bar, have held that the fund s milS! be retained until presumt.'d abandoned under sti lle law at which time the funds must be turned oo.er to the state. The Office of General Counsel and the Disciplinary COm· mission haYC, In a number of opinions. held that whelC fundi In a trust account miIY be attributed to a cliem but the loc<l· tlon of thc client is not known, some type of legal proceed· Ings should be instituted whereby notice IlJ' publication could be given to the OWner of the deposited funds. The opinions a1so hold that although other proceedings mny be available, Ihe property could be disposed of under the Alabama Unl· form Disposition of Unclaimed Property Act, §35-12·20, Cexle of Alaooma, 1975, (RO·82·649, RO·63·14, RO·84·26, RQ.84-"18, RO·83·146 and RQ.84-106). In situations where the client Is known but cannot be found the monL..,. cleady does no/ belong to the il1\orney. Consequen tlY, the lawyer has no alternatlYC but to retain the funds on the client's behalf at le.1st until such time as the funds may be considered IC!golily abandoned. Consequently, in the case at hand, we hold that attorney A must take e'o'Cry reasonable effort to locate the client, including public notices In a nCWSl)olper of general circulation in the Mea where the deceased lawyer practiced, as well as In the are., where the client maintained his last known ad· dress or business. If these effons are unsuccessful, then Attorney A must hold thc funds until soch time as they may be con· sidered abandoned under the Alabama Uniform Disposition of UnclalnlCd Property Act, Ch.lpter 12, Article II ollitle 35, Code of Alaoom.1, 1975. •

Increase Income with the Alabama Lawyer Referral Service by William D. Owings So you want to Increase your income, but you find legal ad'w'ertising to be of(ensl-..e, and )OU C<ln only talk SO many limes to the Rotary ( Iubi Join the lawyer Referl'ill SelVice of The Alabama Siale Bar, First, Ihls Is what it is nof. The Lawyer Referral Service Is nOI IC!gai aid, and Il ls nOt a buroJUCI<1CY with many regulations about hcr.v 10 practice law, W hat it is Is a loll·free telephone number for people

to call who want a lawyer and do nOI know one. The LRSgives them the name

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Effective January 1, 1989, the attorney admlsslolls fee Increased to $40. In compllan<e with order oi this court, daled November 21, 1988, a $20 special altorney admission fee will be assessed In i'ddilion to Ihe $20 general admissions fee presently required by the Judid al Conference of the United States Courts, IJUl5Uant to 28 U.S.c. S1914. In addition, the~ wi ll be a $10 fee forC\o1!I)' prO hac vice admlnance. A copy of the Plan for the Creat/olland Admin· Istrallon of /I Special Attorney AdmlssiOn5 Fund Is available for inspection by counsel In the Office of the Clerk, United States District Court for the Middle District or Alabama. Montgomery, Alabama. Phone (20SI 832-7308. - Thomas C_ Caver, cleric

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January 1989

THE ALABAMA STATE BAR LAWYER REFERRAL SERVICE Phone:

Name: Name of nrm Omce Address: (Street Address)

(Building)

(City) (State) (ZIP Code) (County) Year 3dmlttcd to bar: Year admitted 10 redcr<11 CQurls: CQurts in which you pr;lctice: Other states in which you are admitted to practice: Will you accept caSC5 Legill Services Corporation refers to usf If yes, will you walYc the 520 consultation (C(!l YES '0

YES

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AREAS OF PRACTICE PREFERENCE (Choose no more than IO-please Indicate by marking with "X") 1. __ AdmlnlstriltiYe law , . __ VeWilns ' rights b. __ Unemployment compensation 2. __ Admiralty J. __ Bankruptcy 4. _ _ Civil rights 5. __ Collections & repoSSl.!SSlons • . __ Consumer affairs 7. _ Contracts 6. __ Corpor" tion 9. _ Crim inal 10. __ Estalt.'S, truSts & wills I I. _ Family law , . __ QIYOrcc b. _ Adoption <. __ Guardianships Paternity d. _ 12. __ Immigration & naturallZillion 13. __ Insurance

14 . __ Lllbor relntlons ,. __ MIln3gemcnt b. _ _ Unions <. __ Wage & hoor d. __ Employment discrimination 15. _ Landlord·tenant I•. __ Mal practice a. _ leglll b. _ Medical 17. _ _ Military law 18. __ Negligence 19. __ Patents, trademarks 8. copyrights 20. __ Prison law 21 . __ Real e51alt! 22. __ SocIal Socurily 23. _ Taxation 24. __ Torts a. _ Personal injury b. __ Workers' COmlK!nsation 25. __ Trilffic 26. __ Other (please specify)

AGREEMENT (I) thereby applv for nlembershil) In the lawy1!r Referral Service of Ihe "Iabama State 8ar. I am licensed to practice In "Ia!>.,ma and cng.lged In I)rfv~te pracllce within lhe mlc. I am covercd by II profes~lonal lIabilily Insurance policy with Ilmit§ of not less than $100,000/$300,000 (anach copy of certlll c~te) . !2) I \Jnde~land this appllCllIlon Is made only on my behalf and nOl on behalf of my film or ilny of my associates. "«ordlngly, I agree Ih,1I1he initial consultation In COIlne<:tion with any referred maner will be with me perso~lIy, ahhough olher cou n~1 may be anoc:laled 10 l>erform all or a portion of sui>se<lucnl prok.-ssional services agreed upon, if Ihe fe'elled ellem agrees 10 such as~lallon. mIn my opinion, I am qwllfied 10 handle c.Jst'S I have designated in the areas of "practice preference." (4) I agree 10 abide by the Ivies 0' the lawyer Referral Service Ilnd to act withIn the spirit of Its pul~ . I agll!c to be bound by the following rvh~) concerning fees. (a) " fee of $20, which may be waived, will be chargl!d for the Inhlal one-half hour. (!)} Should My dl;llutc concerning re(!s arise between II client i1!'!d me rcfem..'tI to me by the I.awycr Refclral Service, such dilpule will be ~\lbmitted to Ihe "Iabama lawyer ~eferral Board and I agree to be bound by its determlnallon .

(DatI')

(Signature of "pplkant)

Ple.. ~ enclose reglSlr;nlon Ie(! of $)7.50 payable to the Alabama Stale 8al and a copy of your CurrCnt coverilge binder fm professional lIablihy and mail 10: lawyer Relerflll Scrvh:c, P.O. DOli 67 1, Monlgomery, Al36 101.

Legislative Wrap-up by Robert L. M CCurley, Jr.

Alabama Rules of Evidence The Alabama Supreme Court. within Ihch fulcmaklng authority, has 31)pointed an advisory commince 10 draft ""'lnOOma Rules of Evidence; the Alabama law Institute serves 35 ~n agency designa ted 10 c.m y out the order of the supreme court rcgMdlng this study. Pat Gra\G of Ihe firm of Bradley, Ar,1nl, Rose & While was nilm!;:1Cl chairperson of thc cammi!!ee. Other commilll.'C memlx!rs are:

Judge .Ioseph Colquitt-Tuscaloosa Gregg Cusimaoo-Gadsden SeniltOI Mic hael Figures-Mobile Charles Gamble-UnlllCrslty of Alabama 5<:hool of

"'"

ludge SaUy Greenhaw- Montgomery Judge Arthur '-Ianes- Birmingh"m

Brooks Holmes- Mobile A. Ri chard Igou-Fort Pilyne

Ralph Knowles. Jr.-Tuscaloosa L. Tennell lee, III- Huntsville Howard Allyn Mande ll- Molltgomcry Willi"m H. MillS-Birmingham Bruce J. McKee-Cumberland School of Ulw Frank B. McRight- Mobile Richard Ogle-Birmingham Abner R. Powell, JU-Andal\lsia Ernestine Sapp-Tuskegee Clarence M . Small, Jr.-Birmingham Judge C. Lynv."OOd Smilh, Jr.-Huntsville Bill CI ~rk- B l rm ln8ham

Professor Charles Gamble, former deiln of thil University of Alabama School of Law, W,lSnamed reporter. Professor Gamble Is the editor of McElroy's Alabama Ev;dence, Jrd Edition, and aUlhor of nl.lmerou$ other arTicles on evl· dence, Professor Gamble teaches at the University, aoo Is a frequent loourcr on the subject at conTinuing legal cducatiol1 progrOlllls. The first Item on the committee's agendn was II) dCtermine which model 10 use (or the project. The aitl'!rnatlV('s were Ihe Uniform Rules of Evidence and the Feder;'ll Rules of Evidence. The consensus of the commi ttee was the nlodel should be the Federal Rules o( Evidence which be-

c,lme effective July 1, 1975, and have been ,lmended through November I, 1988. It was agreed that the commi ttee would use the structure of the fooeral rules, and that the wording of such rules would be adopted unless there ~i5 ted a substantial stale policy or prcferilblc Alabamil Rule of Practice or Rule of Evidence which lustined dovi;uion. Considerable thought and discussion h~ gone hllO the question of \Vhi'lt iml>ilCI Ihe adoption of Ihe Alabama Rules of Evidence 'NC/uld h~ upon pre-exisl ing statutes which con tilined lules of evi· dence. It was agrC<!d Ihat no specific position \Wuld be taken iltthe OUtS@(, but that such stiltutes would be charted throughout the drafting process. Thitty-one states have "dopted the Federal Rules of Evl· dence, Including neighboring stiJtcS of Florida arid MIssissippi. Anyone with suggestions or comments concerning these rules should con tact a IllOlllber of the commince or write the Ali'loomil Law Institute, P.e. Box 1425, TuscalooSol, Ala· b.lma 35487. The Alabiama Lcgisl;uure co~ nes for their regular session February 7, 1989. The Law Institule is expcc\t.'d to In· troduce a revised adopt ion law, I\,.... ised condominium law and a rrauduicill transfers act. •

R006r1 t. McCur/s)( Jr, Is ,he cimx:/or oi the Alabama I..Jtw ilWrtul8 at the UnlwJrsl/y oi Alabama He received his unciefgracJU/lre and law ciegf($$ from tht University

Jllnuary 1989

Memorials

Theron Euge ne Hu rlS, Jr,-Ci ncinna ti, O hio Mllllned: 1949

Died: October 2, 1988 11 1(11'1> ( , \RI)' I R. II(

Donald Wilburn Slrlckland8irmlnllham Admitted: 1925

DiL'CI: Oclober 14, 1988

Luden D. Ga rdner, Ir.-Birmingham Admitted: 1924 Died: Ocwber 29, 1988

A. LamOlr Rcid- Blrminsham Admitted: 1949 Oied: November 25, 1968

These nOllces are published Immedl· ately "fter reports of death are received . Biographical information not appearing In this l$Sue will be published at a laler dale If information i5accessible. ~ ask you to promptly report the death of an

Alabama altornty 10 the Alabama State Bar; and we \.'o()uld appreciate your assist· ance In providing biograph lcal lnforma·

tion for The Alabama Lawyer.

The Alabama Law}'cr

Aftcr 64

~ars

as a memberoflhe Ala-

bama St.lIe Bar, Luden D. Gardner, Jr., of Birmlnghanl, passed OWily OClober 29, 1988, He was the fourth generiltion In <1 family of AI<lOOma lawyers ')nd was the son of the Iilte Chief Justice lucien D, Gardner, who served on the Alabama Supreme Court for 37 ye<lrs, He was 11 graduate of Ihe University of Alabama MId the H,)(v"rd Lnw School and was admitted to the st;'!tc!xlr on July 20, 1924, ill Ihc age of 21, In 1929, he ioined the firm naw know as Cabanis5, Johnston, Gardner, Dumas & O'Neal, i1t which he engaged In the active practice o( law unllll'NO v.<eeks before his detllh. His con tributions to the legal w ofesslon Inc1udt.>d serving as president of the Birmingham Bar Association and establishing the Chief Justice lucien D. Gard· ncr Scholarship Fund at thc Uni~ity of Alab..1ma Law School. He was Ihe recipient of the Birmingham Bar Association's award (or Outstanding Meritorious Service. When the United Stdles entered VVorid Wdr II, he volunteered for service In the Army, In which he attained the ran~ of lieutenant colonel.

During the majority of his CMeer, he was an active trial I~r and was rec· ognlzed rOt his courtroom a!);lities bt beIng elected a Fellow 0( the Amerlcan College of Trial Lnwyers. He was a faithful member of the Cathe<lral Church of the Advenlllild served as semlor warden of the vestry of the church. He bellCMld in and exemplified Ihe best attributes of our profmslon 0( diligence and dedication in the reprosentalion of clients, adherence to Integrity, Insistence on a thorough mastery of the facts and the law of every case ,lIld courtesy In all relationships with his fcllO\o'l members of the biH. He Is survlYCd bt his wife, Ann Gallion Gardner (whose brother is MacDonald Gallion 0( tho Montgomery County Bar), his son, W1lllam F. Gardner of the BirmIngham Bar, t'NO grilndchlldren and his partners and members of the Alabarna Slate Bar who will miss him, -William F. Gardner BirmIngham

•

The deadline for getting in copy for the March 1989 issue of the

The Alabama Lawyer is January 27, 1989.

Disciplinary Report Disbarment • Effective NOYember 15, 1988, Birmingham lawyer Oan W. MCCoy was disbarred by COr'ISCIlI, pursuant \0 the provl· slons of Rule 15, Rules of Disciplinary En(orcement, by order of the Supreme Caurtol Alabama, IA58 Nos. 87·196 & 87·2541

Suspension • Mobile Iao.vyer Major E. Madison, Jr., is suspeoded from the practice d law In the State of "lab-1ma for a period of four months, effoolYC December 28, 1988, by order of the Supreme Court of AlaOOma. The suspension is based upon Madison's conviction be'ore the Disciplinary Board of the Alabama Siale 8ar of various ethics violations. IASB Nos. 86-303, 86·59', 8&-709 & 86-718J

Private Reprimands • On October 7, 1988, an Alabamll lll\orncy roceived a prlvJte rCI)rlmand for violation of DisCiplinary Rule 5·101(0

and DisclplinJry Rule 9·101(81 of the Code. II was determined Ihat the anorney in question had, while serving as diStrict a[torney In a I__ dicial circuit of Alabama, prosecuted an In· dividual ()O cnminal charg and it was further determined that this attorney, __ pori leaving his publiC oUice, entered Into the defense of this same individual in a civil action ariSing from the s.1mc set of facts. The Commission deemed this to be a conflict of Imerest in violation of DR 5·I01(C) and acceptance of (!mploymcnl In a matter In which the nllorney had substan· tlal responsibility while a public employee in violation of DR 9·101181. [AS8 No. 88-84J • On O<;Iober 7, 1986, a lawyer was privately reprimanded for engaging in conduct Involving dishonesty, fraud, deceit, misrepresentation. willful misconduct an,d other con· dUCI which adV(!rsely tcllecl~ ()(I his fllness to practice !<MI. The

FORENSIC AUDIOLOGY

l<lW)'er delivered the individual tax records of 11 polltlca! can· didate to several media outlels. He was subsequently Indicted for thc felony of attempting to Innuence the outcome of an el(!ction by attempting to make public the t~I( records Of a political candidate, and (or aiding ,lnd abetting another in per· petr.ltlng this same offense. Subsequently, in l.'Xchange for thc felony ch.uges being dismis5ed, thc lawyer pled guilty to the misdemeanor violation of making lal( returns of a taxpayer public, [ASB No. 86-664) • On October 7, 1988, 11 lawyer was privately repri· manded for eng<lging in conduct thaI adversely reflecled on his fitness to practice law_ In 1985, the lawycr wrote 8()().I,OOO associiUC5 in law nrmS throughout the Unlled Siales soliciting $250 from each recipien t 0( the leller. In exchange for the $250 the lawyer offered to negotiate for and on behalf of the assoclales with their employer law firms and demllnd Ihm the 1"11'1rlershlp decision-making process be ch,ang(.'Ci in a way which \.<,IOuld result in more associates becoming par1ners thall 'Mluld otherwise be the case under the then-cxlstln& nrm policies. Even though Ihe leiter stated Ihat tnc $250 was being solicited from each associate, the letter was In fact senl lO only a ran· dom number of associatM in each firm, The lawyer admitted that In the e-.1!"t he did not recelV(! $250 from half the associates. hc Intended to keep the $250 fee received (rom each associate, CV(!n though under thOse circumstances the lawyer .....auld not perform ally negotiations for and on behalf of the associates. [ASB No. 65·2381

Reinstatement • It Is ordered thai Thomas E. 8addlt.oy, Ir., be rein Slated on the roll of the Alabama Supreme Court as an il\lorney authorized 10 praClice law in the CO\.lI'1S of Alabama, efft.>elive eclober 19, 19BB.

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J(lnuary 1989

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• "

Check .. line 310 Dr 220 On Your State Income

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lanuary 1989

1987 SUPPLEMENT TO

McELROY'S ALABAMA EVIDENCE, Third Edition

The Continuation Of A Tradition

Ord~r

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N.mo _ _ _ _ _ _ _ _ _ _ ____ Addrou _ _ _ _ _ _ _ __ _ __

Mull To:

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M«(lroy's Alal)jll\jO IOOUI<e</IoIo

(.-I(Ief\(~

Dt~.O . b 1l1l

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COUI

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