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Vol. 6/, No.7

November 2000

On fh' Ctnw Wlnlton County Court/lolua, Ooubll 5prir!il. AlablmI _ Wi''''OIl COWIt)', n.'II,1HI In ' - 01 ell' CcMrnor John A. WiNtOn, otIen tIM b«n e&l1N "'1lIe Fm Stat. oI "~MIm· Alt~ IIOPULv It;. tnd hod it th:d Wir.w.n County t«tded from thutlle prior to the IWt of !hi eMi war, hbtorlw WI)' this _ nM'f fomWly KCQII'lIlIishtd. Itl)WtYfT. a~r.>Iity rnmiflll_ htkllt the Hie of loOOIW)"l 'nMm In lIOI1hfiQ WiNU:In Count)' In tilt tarly I ~ W, lilt _ brg)n. /lul'\drtdJ 01 PCnonll acttroed Im.t mcflIl1II iIId hwd KJ«(ha; on the thnnt that 11 AIabMN C'OUkll«tl.lr tho Union, Lhtn Winston Courl\y eouId KCfIk from AL1bimL fobny midmll of " "lNtOn CounIy dtlIlfd to be IdI out d Iht ucalatill4l eMi War. In p.Vt bt<::;Iux t"",, _n= (.,.,. r.bYn (Ind Iewtr .a-.-rtlln the COIJO· (y, and thry brllMd tIaI the Wlr _ blna /uuWlt QWf iwMoo ...tUdI did rIOI _ m them. -I'hoIQllr(Jplt bV Poul Crouofiml, JD

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PRESIDENT'S PAGE By Samuel A. Rumore, Jr.

he Executive Council of the Alabama State Bar had Ils annual retreat the weekend of August 25-27 at Calloway Cardcns. The purpose of Iht retreat was \0 review plans for the year, consider problems (acing our profession. and get to know each other better in a casual setting, The council met with Keith Norman. our executive director: Tony McI.ain. our general counsel: Ed Patterson, our director of programs; Susan Andres, our director of communil:alh:ms ilnd public information; and Colc Portis, president of the Young Lawyers' Section. Por those who do not know the makeup of the Executive Council, our by-laws authorize the b..1r president to appoint the council. The president s~ l ects II ~enio r membe.r of the Boord of Bar Commissioners to ~erve as vicep re~ j den l of our aS$()ciation. I asked Pat Graves of Huntsville to be vicepresident. Three other bar commissioners are appointed to the counci L J asked I{ocky Watson of Fort Payne, Carol Stewart of IJirminghllm and John Barnett of f.1onroeville to serve, These lawyers, together with Immediate Past President Wade Baxley and President-Elecl l..arry Morris, serve as ,,<!visors and a pseudocabi net for lhe bllT president. My observation at the conclusion of our retreat is that the lelldershlp of )lOur Alabama State Bar Is in good hands.

Renewing Professionalism

Semuel A.

Rumor., Jr.

NOVUH'1!1l 2000

Over the next few months)lOu will be hearing more about many of the. items on our agenda. I intend to appoint a task fo rct to review proposals (or a new Alabam.. Constitution. In 2001. Alabama Legal S~rvices will be conducting a fund-raising C.. lYlpnign, I~o r the fi rst time ever, our annual meeting will be at &mdestin. Florida. All members of the bar soon will receive a new bar identification num路 ber. And we will consider preparing a nt'W strate"ic plan for the Alabama Stl1lc Bar as we move fo rward in the 2b t

C~n tury.

Another area of discussion al our relteM cOflcemed professionalism. The common cord lhat binds ~1! members of the Alabama Slate Bar Is OUt profes.sionallicense to practice law, Professionalism can mean many different things, but ba5ically, as members of the legal profession, we have been given a privilege to do lhin!l$ that other citizens cannot do, With thi~ privilege comes high responslbilily. That resr,onsibHity is to the public arId al$o \0 each other in the profession. Pl1t Graves. our vlee-president, has shared his lhoughts with me on professionalism. He was particularly intemted in lawyer civility. He reminded me thai Jim notch, his law partn~r lind a classmate of mine in Leadership Birmingham, had authored "The Birmingham Pledge,"

which is a perwoal commitment by an individual that he or she wililreat all people with dillnity and respect, Pat suggested that our bar adopt a similar pledge (or lawyer professionalism. I WM most impressed by the content orllis proposal, and it will be presented to Ihe Board o( Bar Commissioners for further action. We can all Ilrofit from livinllthis pledge each day. [ share Ihe proposed pledge with you now.

Propo ••d PI.dg. of Prof•••lon.llam [ believe that our judidal system holds together the fabric of our democracy. I believe that, in order to maintain our judicial system. lawyers must maintain a high degree of professional courte$Y and decorum.

[ believe trlllt every lawyer h,Is a profusional duty to maintain ~ courteous and collegiate atmosphere in the pr"ctice o( law. I believe that a courteous Md collegiate atmosphere begins with me.

Therefore, I will • take 1111 actiol\S in good fai th. • never knO\'.·ingly deceive another lawyer. • honor promises and commitments made to tlllother lawyer. • m"int"in a cordi,,1 and respectful relationship with oppo~ing counsel. • seek 5:lnctions against oPpo$ing counsel only where required for the client and not for mere tactical adv<lntage. • not make unfounded accusations of unethical conduct abol.lt opposing cOl.lnsel. • never intentionally embarrass another lawyer. • avoid personal critid~m of ,molher lawyer. • shake handJ with the oPI)()sing lawyl!r al the close of adversarilll proceedings. • refrain from engaging in any conduct which enllenders disrespect for the courl. my adversary. or the p;lrties. • never h<lve u parle communications with the court when the opposing parly is represented by counsel. • stand to address the court, bl! courteous and not engage in recrimination with the court. • dress in prqlCr attire: durlng any court proceeding, whether in Ihe courtroom or chambeT$, to show proper respect (or the court and the law. • always rcm(mhcr that the purpose of the practice of lllw is neither an oppQrtunity to m<lke outr<lgcou$ demands upon vulnerable opponentJ nor blind resistance to a jml claim: being 5tubbornly IitiJlious fo r a plaintiff or ll. defendant Is not professi(1Il1l1. Signature _ _ __ __ _________ Oale _ _ __

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As lawytrs ....1: must renew our commitment to professionalism and I believe that such a signed pledge is a good start. We must not take the apprOllch to ''win at all costs." I'rofesslonalism begins with each one of us. If we try our cues professionally and If we treat ellCh other with civi lity, justice will hi: served and the "rule of law" will be Ule real winner. You can also view the pledge lit wWII).a/abar.o'U_ I close now with Ule admonition that we should all strive for higher Slmld.ll'ds of profeuionali sm in our daily practice. Also, M your president. I welcome ~im i lar ideM (rom all of you that I tan share with our membership_f.1y phOtlf: number iJ (205) 323-8957, f.l y (ax number is (205) 254·3267. f.1y e-mail IIddress issrumore<itoo/.com. I look forward to hearing from you this year. • N OV~ M IUR

2000 I

J~D

EXECUTIVE DIRECTOR'S REPORT By /(eith B. Norman

eUy Jean Solomrm departed this li(e on AUglISI 5. 2000. Very few bar members would have occasion to know ·'IlJ.." as she chose to be called. but B.J. worked at the slale b;J.r (or more than ten years keeping the bar's facilities ImmacullltC for $taff ,U1d visitors alike,

A Tribute to B.1.

She did not wor k (or the

~ tate

bar but

for a private janitorial company. This fact did not stop her from treating the bar building 35 her domain. 11J. took" great deal of pride in her work here. B.1. was a special person to everyone who knew her. What made her special was IhOl t she c,ned 50 much about everyone else. She always took lime to find out about how Ihc olher ~r50n was doins., and abo ut their ~pouse and

children. From her demeanor, you knew her concern for others WIU genuine and that she was touched when someone else had a problem, B.J, was the embod· iment of the "Colden Rule" and she lived and practiced it every day. She was a model for the rest of us to follow. Several )'car$ MIO D.). was forced to quit work when she lost her eyesight. A consclenllou$ worker whQ had a full time Job In addition to her part-time job at the bar building, B.J. had to endure a gradual loss of her e~esight. Surgery not only failed to correct the problem but e ~a cerbilted it. Y~t, throughout the

ent ire ordeal of her grad uall o~s of vision to her complete loss of sight, B.1. never complained or blamed anyone for the misfortune lhal befell her. ~'rom working two jobs a day to being can· fined to her house, B.J. accepted this fate with an unshakable faith and absolute trU$\ in God's will. As her health deteriorated and hOSpitalizations became more frequent, I1J .'$ faith never ebb€d and Ileither did her seJness spirit. Every time 1spoke to or visited with B,J" the first words out of her mouth were to inquire about every· one else. She would ask me about my filmily lind then ilSk about every member of the bar staff by name. In spite of her blindness and health problems, OJ. Wi15 an inspiration. Her spirit and fai th. despite her tribulations, wcre like a tonic to mc. Along with the many fri e nd~ who mourn her death, B.1. Is survived by her husband, Alfonso Solomon: two daugh· ters, Tracy and Etoeshio; her mother, Mrs, Mstlelen Brown: a granddaughter, Tihesscya: iI brother and a sister: and a host of nieces and nephews. The last few yeilrs were difficult ones for B.J. Through it all, her faith never wavered and her spirit never broke. But. she hI!! gone home now and I think the following wordsl are fitting:

"But Death didn't frighten Sister IBelly Jeanl; I-Ie looked to hcr like II welcome friend, And she whisptred to us: I'm going home, And sht smiled and closed her eye5, And Dealh took her up like a baby, And she lay In his icy arm. But she didn't feel no chill. And Death began 10 ride again Up beyond the evening star, Out beyond the morning star. Inlo the glittering light of glory, On to the Greal White Throne, And there he laid Sister IBetty Jean] On lhe loving breast of Jesus, And Jesus took his own hand and wiped away her lears, And he smoothed the (urrow~ (rom her face: And the angels sang II lillie song, And Jesus rocked her In his arms, And kepl a·saying: Take your rest, Take your rest, lake your rest. Weep not - weep not, She Is not dead: She i5 resting 011 the loving breast of Jesus,"

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ADInciaI Comuh.... Inc. u an lndepe....1 ccrtll\ed prorcuiOftilI finn spedallzIaa III buUIICP appm.1,. Oci~ R_II. owner..... tho Uptl'ltllCC IUId ~. opi1C!d indu,uy eredenlial~ 11m J>1U~hle !he hlJhe~1 quality, uj'len \'lIluauOfI) for hu"IIt,,,,, IIlId pmfc."ionaJ praclicc\ ller aml,"uon ",ith the Am('ricaR I)u.ille.~ Appr.IJI'I'II Ncl""n~ •• n~llonlll ~ll/IhllOn nf ~. intiel)(n<knt hulim~,\ _I'pnui.e,... uJmruU ller rewul"\:e~ to uffer a wide mnge of husil,ns ol>ploi\BI n.:cd~.

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"ALUAnON 5lRVlCl USlS, , UTlCoATION SUPf'ORT S[RVlCtS • tSTATE rLANNINC , M[RG£RS &. ACQ.UlsmONS , EMPLO,([[ STOCK OWNERSHIP PLANS , INVtSTM[ NT AND riNAN( ING OECISJONS

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•

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2000 I " .

BAR BRIEFS

II member of the Conference, and It rec-

• In anticipation of the University of North Alab;\ma'~ I75th ,mniveTsnr)'. Florence attorney William E. Smith. Jr. has published a trivia book entitled,

ognizes distinguished service by the recipient who has slgnincantly contribuled to the objeclives d the NeACe.

/.ooS Tali!: iJnilJefSilg of NQrth Alabama

Trivia , The book contains 175 questions

• J.O. Senlell (former clerk of

about the University lind those who have laught, attended and b<:er'l associated with the school or itJ predecessors. Profit s from the sate of the book will go to lhe University of North Alabama, WillkJm E. Smith. Jr. the UNA SchohH$hip Fund. Ihe UNA Alumni AuocialJon, and projects to recognize prominent alumni of Ihe University.

Alabama's appe11ate COUTU) was the first

John If. IWlhnort Jr.

president of the National Conference of Appellate Court Clerks and One of Its founders, and served for many years as editor of The Alaboma Utll,lger.

• WlIHafl'l I). J:u:kion, Jr., of Jackson & Jes.sup, I'.C. in Arlington, Virginia. was elected trtMurer-elect of the Bar Association of the District of Columbia in June. His term will end In 200 1, when he will become treMurtr. lit is II 1963 admiUee to the Alabama State Bar.

• James R. I)ntt, III of the Birmingham firm of Hare. Wynn, Newell & Newton. I.LP, h(ls been elected to the American Law Inslltute.

• Tracey Triglllo. purchnsing orncer for the Illinois Department of Corrections, Wll! elected to the Nallonal Lawyers M$OCiation Board of Directors during the NLA's annual convention in August. Trigillo Will admitted to the ASB in 1988. •

• John II. WilbTllon, Jr" clerk of the Alabama Court of Civil Appeals, ....·as awarded the J.O. Sentell Award at the 27th annual meeting of the Nltional Conference of Appellate Court Clerks in August, The award is the highest honor that can be given to

TM aoftwant d•• IVned by t.wyete lor IlIWpor.

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ABOUT MEMBERS, AMONG FIRMS

Du. l o !hit hU1/1f InCfWls. I" nollcf.f

for "AbtJut MemHrs. Among Pirms." Thl/ Alabama LmcYlfr will 110 lot/llilt publish odd,."sts (Illd llltl/pholle II l1mbus II/lleu the om/Olll/Nm,,,,' Nt/ates

to the opening of a IfBIIJ nr", or solo procllcli. Ploase COlltillllll to sl/nd amlQUIICflmen/s and/of' add,.,,1

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challges to the Alu6Qmu Siule Bar Mlm,bn-ship IHptlrl/mmt, ill (334)

26/ · 6310 (fax) or p.O. Box 6 71 , Montf/Onlln7l 36101,

II . Marie Thornton announces the opening of her solQ practice at 422 S. Court Street, Montgomery, 36104. Phone (334) 832-4445. Chrl8lopher R. Miller annou ncts the

opening of his of(iell al 30 N. Florida St reet, Mobilt. 36607. Phone (334) 476. 950 1.

SUlIn E. Daker announces the open· ing of hcr office at 107 Nort h Side SqwHe, l-IuntAvi!lc. 35801. Phone (256) 534·6680.

William R. Ch",ndler announces the opening of his ntw omce at .111 WlI!hington Avenue, Montgomery, 36 104. Phone (334) 834·3751.

Andl"llw A. Smith announces the opening of his new omce alBI I 21st Avenue, 1\l$caloo13. 35401. Phone (205) 349-4870. Christopher A. I)ankey announces the opening of his new omce at 42B.8 N, Carlisle Street. Albertville, 35950, Phone (256) 89 14545. lGG

N OVU MD ~"

2000

Stn<en N, Pritchett, Jr. announces the opening of The Pritchett Law ~'inn, L.L.C. OffiCe! are located al the FOrt$tdale l'rofeuional Building, 141 8 Forestdale Boulevard, Suite C. Birmingham. 352 14. Phone (205) 791 ·9991. Don~ ld R. Jonu. Jr. announces the opening of his new o{fiu at III Washington Avenue, First Floor. "1ontgomery, 36104. Phone (334) 834899 1.

Ten)' A. 'l'lylor announces Ihe OIIer'IIng of his office at Ihe Ceneva I'lace Executive Center, 106 John R, Street, Suite ~: MUKle Shoals, 35661, Phone (256) 383-5693. Jamu A. fhlO\"er announces the opening of his new o(fice located at 3800 Colonnade Parkwa)" Suile 650. Birmingham. 35243. l'hone (205) 9680222.

Among Firma l.aun Bowneu announces that she has become southern regional publisher for LEX IS Publi$hing.™ Thigpen. Tipper & Chrl8t1an announces that Jenn)' n, Hehel hll! become a member oHhe firm. The firm name is now Thigpen. TIpper. ChrllUan & Hehel. Ball, Ib ll. Matthewl & Novak announces that Allli on L. Alford has become a partner in the firm . Md'adden. !.yon & (toule. L.L.C. announcu that John T. Render has become a member of the firm , !lukell. Slaughter £: '~ung. L.L.C. announces that J. Vefllon Patrick, Jr. has

become ofC(JunSel to the finn, H, Scott Williams and ~rgia Sulli~'In Holwrwon have become members of the firm, and Ml tthew T. Franklin and S. Juon Nabon have become associated wUh the firm. Thom.. W. Chrlallan and Clarence M, Small announce the o~nl ng of their new finn, Chriltlan & Small, l..L.P, Omces are located at 505 20th Sine!. NorUl, Suite 1800. Birmingham, 35203. Phone (2()5) 795-6588. The finn also announces thai Sleven A. 8eneneld, t:rlc J. Brellhaupt. Robert E. Cool)tr. "~dga r M. Ellloll. IV, David L. Faulkner. Jr.. Suu n Soot! Uayes. Duncan Y. Manley, Deborah Alit)' Smith, Richard E. Smith. Daniel D. SPlm. Sharo n Donaldwn Stuarl. and Ahrlan Vam 'TYler ha\e joined the finn as partners, M. Alex Coldamllh. Patrick S. "' lynn, Summer H. Zulanu and Michael A. Vercher ha\e become lWOCillted with the firm, !land Arendall, L.L.C. announces that Fnnk C. Galloway, Jr, has become a member of the firm . Campbell & Baku, 1•.l•.P. announces thllt Vivian Vine. Campbell and Haymond L. Brunner haw joined the fi rm as associ :.te~ . Balch & BIngham announces that Lana K, IIIwkln8 and Clark W. Wallon have joined the firm 's partnership and that JerT)' D. Redmond. Thorn .. W. 51. John. Wl lter A. Dodgen. Kevin C. Gny and J. Andrew Wl tson. III have Joined the firm as associates, The Brooks Firm. P.C. ~nnounces that Toni J. Braxton has b~come associated with the fi rm. l¥>n•• ,'Ipel &; Cook announces that John G. Chen)'. Jr. hou become a memo ber of the fi rm.

The Schotl Law ,"' Irm announces that DaYld O. Schotl has become IISsociAted with the firm .

Bainbridge, Mimi. Rogen &: Smith, L.U'. announces Ullll Jamu W. Dayl& h:u become auociated with the firm .

Bernard D. NOlllberg, Mary. Ellen Hates and Edward L. Ihrdln, Jr. announce the forrnatlon of lIardln, Nomberg &: Battl, P.C. Offices are located at The Highland Building, 2201 Arlington Ayenue, Birmingham, 35205. Phone (205) 930·6900.

Sirole & Permutt. P.C. announces thal John A. Barran, Jamu 8. Carl, on. Galle Pugh Gntton, Michael 8 . Maddox. Charlu n. MOlu. III Ind J. Sanford Mullins, III haVf become part· ners in lhe fi rm, and KRNII Ashworl h. Christopher S. Herd)', CaMn W. Blackburn, III . Chrlltopher A. Rottcher. Kenneth M. !JUlh, Lee Martin Runell. Ru uell L. Sandidge. Craig M. Stephens. and Anthony Smith have become associated wilh the firm.

BefT)' &: AJlociatn announces that Roberl C. CI,h, Jr. and Steven V. Smith haVf joined Ihe firm as assoclatcs. Moore &: TYousdale. P.C. announces thaI Ste\ltn R. Colclough hilS joined the (itm as an associate. Meacham, Ellrlt)' &: Jones. P.C. announces that Jllon R. Watkins hl\$ joined the (irm as ~n associate. Feld. Ilyde, Lyle. Werlhelmer &: Bryant. P.C. announcts that Dale B. Stone has joined the firm iIS a share· holder and that KI)' (hw n ~ Wilburn has johled the firm as ~n associate. Roberl. &: FlIh. P.C. announces thllt Michael B. Walll has become of counsel to the firm and that W. Scott IJrower hll! become associated with the (irm. The firm 's new offite il located at I.akeshore Park Plaza. 2204 Lakeshore Drive. Suite 205. Birmingham. 35209. !,hone (205) 870·8611. Smith. Splrtl &: Peddy, I).C. announces Ihal R. Timothy E,tel and Clair Maloney CammHl have joined the firm as associates. John M. l.ane)" Jr. and Roller C. FOl ter announce the (ormation of Llney &: "·Oller. P.C. omcn are located at lWo Perimeter Park. South. Suite 404. East. I1irminghnm. 35243. Phone (205) 298·8440. Corham &: Waldrep. P.C. announce.$ that William K. Bndford hM become associated with the firm .

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Wolfe. Jonu &: no.well announces that Randall K. Gause and 8 ehroul K. Ihhmati have become associated with the firm . McDowell. Faulk &: McDowell, L.L.C. announces that Jim T. Norman. III has joined Ihe firm as an mociate. Boardman, CIIT & Weed. r.c. announces thllt Philip ~: Hutcheson has joined the firm Il! shareholder. Martinlon &: !Jeuon. r.c. announcu thal Elizabeth Beuon ~oore has become II; partner. Capell &: Howlrd. P.C. announcts that DaYld 8. Byrne, Jr. and Roberl F. Northcutt have joined the firm 1\$ shareholden. lIelml lng, Leach. Herlong. Newman &: Rouse announces thai William R.

Su&in llick. Stewarl and Charles Andrew IIIcles announce tht formati on of Stewart &: nickt, P.C. Officn are located at 503 Covernment Street, Mobile. 36602. Phone (334) 438·2700.

Llnell!er hll! become a member o( tht: firm and that Leille G. Weeles and Loullll F. Long have become associated with the finn.

Zack. KOl nllzicy, I'A. announces thal Orion C. Call150n . '" has been nllmed equit)' shareholder In the firm .

&: O'Neal annouces thai Diane Babb

Cabanl ... Johnston. Gardner, Durnil

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Intuitive Layout, Coml)rehe.mive t~ea lure. •• Rook.Solid Ueliahility.

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Ldkovili. Itom & Ku, hner, I).C. announces that I.ba Wrlghl !Jorden, Fern II. Singer and France. Heldt haYe joined the firm as nlcmbc~. Laura E. Proctor. Jacquel),n D. Smith, EriCi L. Ualdwln, Matthew S. Geller, Nicole M. Rocco, Chrlltophu C. Hl ug, William Patton Hahn. Juon C. Edwardl, and Am)' E. Ollvl8 hllVf joined the firm as associatu.

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MEMORIALS

James Hughston Sharbult ames Hughston Sharbutt of Centreville departed this life

2000. J1917, He10,attended Vincent High School and received his law June

He was born in Vincent on Augus t 31.

degree (rOln the University Qf Alabama School of l.aw in 1950. Jimmy was in private practice at Sharbult & Williams in Childc r~bu rg until 1967. In addition to his priv(l!e practice, he was elected as delegatI: to the Democratic N:lUC)nal Convention in 1956. Jimmy served Vincent a~ mllyQr from 1949- 1967, Under his leadership, the town received its first paved streets. fire

truck, patrol orficers and patrol car. He established the city's gas board, water boord, housing authority and industrial

development Doard. He was extremely committed to the lown iLnd it.s people.

Jimmy continued selVing his profession as districlattorne)' (or the 18th Judicial Circuit Court o( Alabama, In 1970, he was elect路 ed circuit judge (or Ihe l81h Circuit. Judge Sharbutt retired in 1980 10 C<lre (or his wife, Virginia, during her !mttle with cancer, In addition to serving the law, he also selVed his fellow man. Judge Sharbutt established lhe Sharbult Scholarship at lhe Univcr~i!y of Monteval1(l, In honor I)f Virgil'lia Sharbutl and Sara Nell SharbutL I-Ie supported Vincel'l! Iligh School fOOlbllll and band programs. Judge Sharbult contributed to the Baptist Children's Home. Judge Sharbutt is sUlVived by his wife, Sara Nell Lightsey Sharbutt, Centreville: two sisters, l'lelen Kirkland and Ann Smith: and ten nieces and nephews. Memorials may be given to the Sharbutt Scholarshi p at Montevallo,

Fullan, Margaret Sparks Birmingham Admit/ed: 1953 Died: February 9, 2000

Morgan, Sara Posey Andrews, North Carolina Mmilled: 1969 Died: Aligust31, 2000

Dothan Admitted: April 23, 1973 Died: September 8, 2000

Lynne, Hon. Segboum Harris Birmingham Admitted: 1930 Died: September 11, 2000

Patton, David Uriah Athens Admitted: 1938 Died: March 1, 2000

Tanner, Robert Clyde Tuscaloosa Admitted: 1975 Died: July 21, 2000

Mizell, Frank J. , Jr.

~II~

Sheffield, Billy Joe

Montgomery Admitted: 1929 Died: April 19, 2000

Walton, William Morris Birmingham Admitted: 1950 Died: May 18, 1999

McPherson, 8l11y Jack Oneonta Admilled: 1969 Died: August 31, 2000

Young, Thomas Frederick, Sr. Alexander City Admitted: 1949 Died: August 23, 2000

NO"U""~1l

20GO

11111

LEGISLATIVE WRAP-UP By I{obert L. McCurley, Jr.

he Ir'lSlitule hu eight major revisions under study, Four are exptcled 10 bt presented to lhe Alabama Legislature on February 6, 200 1 when the next Regular Session convenes. These revisions are: Interstate Enforcement of Domestic Violence Orders, Uniform Athlete Allenls Act.

Revised

uce Article 9, and the Uniform F.lectronlc

'!'tans-lelian! Act. This article will review the fint two revi· l ions, Interstate Enforcement of Domestic Violence Orders and the Uniform Athlete Agents Act. January's article will review Revised uee Article 9 and the Uniform Electronic Tran5act!ons Act.

Inlerat.t. Enforcement of Dom••tlc Violence Ord.r. This Act will provide II uniform effective system (or enforcement of domestic "iolena protection orders ",cr055 state line~. To faci litate the inte~tate enforcement of civil and of qualified criminal domestic protection orders as stipulated is an impor· tant provision of the 1994 Federal Violence Against Women'S Act. This (ull faith and credit provision di rects states to honor "valid" protection orden issued by other Jurisdictions and to treat those order$ as if they were thei r own. Although the Fednal Violence Again$1 Women'S Act provid· ed protection and was national in scope. it left severat Impor. tant questions unanswered lind states to their own discretion as to how to set up procedures to effectively implement the enforcement. For uample, the federal Act does not answer the question of whether slates are required to enforce provisions of foreign orders thai would not be aut horized by the law of the enforc· ing st.. te. It is sitent as to whether protected individu.. ls seeking enforament of an order must register or file the order with the enforcing state before the action can be taken on their behalf. It is Illso vllilue about whether custody and support orders are included. In recent years some st.,tes hllve cn<lcted their own enabling legislation but these statutes v.. ry greatly, both in method and extent to which they will enforce fo reign protection orders. The new Act that the Institute is con!idering h..s two purpw· es. It definu the meaning of full {aith and credit in the context of the enforcement or domestic violence protection orders and it establishes uniform procedures for their effeclive Inter· state enforcement

Under this Act: • Courts must enforce the terms of protection orde~ of other states as if they were their own, unless the order expires. regardless of which state the victim has entered. • Enforcing states must enforce 1111 of the terms of the order, even j( the order provides relief that would be unavailable under Ihe laws of the enforcement jurisdiction. • Terms of orders that concern custody and visitation matters are enforceable if issued for the purpose of protection. Terms that concern SUlll>ort are not. • Enforcement mechanisms must be applied to orders i$Sued before lhe effective dilte of the Act. The Act envisions thai enforcement will require law enforcement officers in enforcing states to rely on probable cause Judgments that a v<lUd order has been violated. The law enforcement officers, a5 well as other government agtncies. will be encouraged to rely on individual judgments based on probable cause by the Acts Inctusion of the broad immurllty provision protecting agencies of the government acting In good fallh. This Act, when passed by each stale, will en<lble lI:ates to treat cases conSistently and will fill the gap left in the federal Act. This committee is chaired by Drew Whitmi re of Birmingham. Uniform Athlete Agent. Act

In 1987 the Alabama LeglslMure cst"blished the "Alabama Athletic Agents Regulatory Commission. This Act provided that no person could be an athletic agent in Alabama without first registering with the Commission. It was subsequently amended in 1994 to change the makeup of the Commission. The Act was aWlin amended to the current law in 1998 to IIdd additionlll requirements in the approved form of contracts between the student athlete and the athletic agent lnd provide crimi nal and civil pt!laiUes on Ihe parties for failure to adhere to the law. At least 28 states have fnacttd statutl'S rtgulating athletic agents. They vary in degree and do not contain registration rtdprocity. An athletic <lgent Intending to do business in each K

N O V U "'P V ~

2000 I 3D 3

SUlle 1$ currenlly rtquired to comply with 28 different sets of requirement! for registration and regulation. A unl· fo rm Act has been drafted to protect the interest of student athletes and academ· ic institutions by regulating the /lctivi· lie5 of athletic aRents. This new Act, under study by an Imtitute committee. providH the fOllowin~ : • Recipr()C.ily of regi~t rat i on .

• Authorizes denial, luspension or revo· cation of registrations based upon simil"r "clions in <llher states. DeBuy.•, III CI, U

You t Slliblish IOllls fl,}Tcrell! i nll wen hh . We he p you meet your gl,}lll ~, while profC<:fing your fum ily li nd estate through insurance and fi nancilll produ ct~.

The Comp.1ny'tOu Kccp.e 2311 IIIlJh/(l1!I1AI'I:'II Ii~ SC}Ulh S,~'II! loo Bln"ln8"~III. AL 35105

1Q519J3·QJQ1

This committee is chaired by Hobert Polls, president Of the University or North Alabama. For more information conceminilihe Institute or any of its prOjects, contact Bob f'.1cCurley, di rector. Alabama l.aw Institute, P. O. 130)( 86 1425, Tuscaloo$<l, 35486·0013; f<IX (205) 348-84 11. phone (205) 348-7411 or through thl: Institute's Web site, www./aw.utJ.etiu/a!i.

• Itegulates the conduct of individuals who contact student athletes for the purpose of obtaining agency con· tracts.

Rebert L,

• Requires notice to educational insti· lUtions when an agency contract is signed by a student athlete.

Mc.Cutl.»" Jr. Rcbert L.

MCCur ley. Jr " the dlrKtor of the

......... ""

• Provides a civil penalty for OIn educa· tional institution ilimaged by the conduct of .mathlete agent or a $Iu· dent athlete. • gstablishes civil 'IIltl criminal penal. ties for violatlort of the Act.

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ALABAMA STATE BAR

ARBITRATION AGREEMENTS

The â&#x20AC;˘

Consumer s Perspective

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P.O. Box 671 Montgomery. Al36101 The Judicial Award of Merit was established in 1987. The award is not necessarily an annual award. lt must be presented to a judge who is not retired, whether state or federal court, trial or appellate, who is determined to have contributed significantlv to the administration of justice in Alabama. The recipient is presented with a crystal gavel bearing the state bar seal and the year of presentation . Nominations are considered by a three·member committee appointed by the president ollhe state bar. which then makes a recommendation to the board of bar commissioners with respect to a nominee or whether the award should be presented in any given year. Nominations should include a detailed biographical profile 01 the nominee and a narrative outlining the significant contribution(s! the nominee has made to the administration of justice. Nominations may be supported with leners of endorsement.

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N Ovt M ICn 2000 I

BUILDING

ALABAMA'S

COURTHOUSES

By S.lmuel A. numore, Jr.

Geneva County Established: 1868

eneva Counly

eneva County's history is filled with unanswered Questions. It was estab· G lished during the Reconstruction·era as

The following continues () history of Alabama's count.1I courrhousestheir origins and some of the people who c:ontributed to their growth. If you have any pholoJ/ral)h.~ of €arl.ll or present courthouses. please {Dr · ward them to: Samuel A. Rumore. Jr., Mig/ionico & Rumore. 1230 Brown Marx Tower. I3irmingham,

Alabama 35203. 3GG NClVIlIlDIlD 0<100

Alabama's 64th county, but what was the rCll!l)n for il$ creation ? The popular view W<lS that the county was named for Geneva. Switzerland. neccnt res~arch casts doubt on that expll1nlltion. For whom or what was it named? The county was authorized by the legislature 10 change its name. Who ....·a5 the name· sake for the proposed name change and why did the confirmati on election never take place? Let us explore thcse pur.r.les from the south Alabama pine forest.

The Alabama

Icgi ~ lature

created

Geneva County on December 26, 1868. It was the 12th of 13 counties estab·

lished in Ihe Iteconstruclion'era between February 15, 1866 and DeCember 30, 1868. Land fo r the counly was L1kcn from Coffee, \)ale ilnd Henry

counties. The arCtl, der"l$e with pine foresls ilnd

covered in "wircgrass." W<lS not II particularly good choice for the creation of a county. f-1any believed the soli was unproductive. In facl. agriculture experts considered the area only fit for the pasturinJi of callie and hogs. Wilh a

population of It$.$ than 3,000, it contained only scattert<! and isolated (arms. Transportation was poor and there was the threat o( unhealthy conditions, including diseases Jueh 11$ malaria. With such unlikely prospects (or success, why was Geneya County created? The late 18605 w.u a time o( political confusion in Alabama. Iu always, there were competinll interests between north and south Alaballlll. Competition was compounded by tht era's Radical nepublican J>olitics when freed blacks were enfranchised and former Confederates were disenfranchised. Corrupt politicians bought and sold votes and partisan Cactions vied fo r control of the legislature, Counties were established, disestablished and re-estab路 Iished based upon the whim of everchanlling ~er broker~. The creation of CeneYIl County was probably based on a political deal mllde when Black Belt forces held 5....'lIy to establish lin additional county in south Alabama. The decision did have a praclical bendil because the citiu ns of this sparsely populated area had felt removed (rom their government. Wmy citizens lived 30 or more miles from thei r respective county scats in Coffee, Dale or Ilenry county. Thus. the creation of Geneva County provided convtnlence (or citizens and opened the way ror potential development. Crowth in the area began in the 1870s and 1880s. Turpentine men from the Carolina5 and ~o rgia begnn "boxing" pine trees to obtai n their "juice. Thtn the. lumbermen came to cut the H

forests. Later, farmers arrived, using (ertililers to grow crops such a5 cotton. corn and sugar COine. ru the farmers came into lhe county. businesses fol lowed and the population grew. With commercial and population growth, the railroads came to Geneva County. Between 1890 imd 1900 the population of the county almost dou路 bled. Also, with the coming o( the rail路 roads, the value of land suddenly increased from ont cent pcr acre to 50 cents to $1.50. Some land values reached the $5 to $10 range. Then they climbed to the $25 to $50 levcl.lu the price grew, 50 did the population, By 1930, Geneva County h~d more than 30,000 people. The first settlers in the area that would become Cenevil County had arrived even before Alab.1nla attained statehood in 1819. They i!yed and trad路 ed with the Indians. One of the carly pioneers was Henry A. 'jonlle. Yongc is the key to ans.....ering the question of how Geneya gol ils name. Traditional historical 50urces state that Ilenry Alexander Yonge was a native of Ceneva. Switzerl and. He came to Alabama and early on attained some prominenct. The po~lal records reveal that by 1835 he was the postmaster of Abbeville in Hem,), County. These sources stale that he left Abbeyille for a trading post in Coffee County. By 1845 he was the poslmaster (j the town of Geneva in Coffee County. The nalurlll conclusion is that Geneva, Alabama was nam~d for the famous European city of Geneva, Switzerland. Sources ranging

G0/t'1'11

P1I.mIV Ccurlhou.M (191f1-19t6)

from Thomas Mclldory Owen's 1921 Hislorll of Aluixllna to recent publica.

tions such a$ 1982's Alabama Place Names and 1989's Place NameS /II Alabama likewise credit Vonge with naming the town fo r Geneya, Sw;l~er hmd .

In 1987, the Geneya Woman's Club published Ct.-new, Alaboma- l1llisIQry, which confirms that I-Ienl')' A. Yonllt established a trading post ncar Ihe COl\n\lence 0( several streams, including what are now called the Pea RiVf!r, the Choctawh;l!chee ItiYer and Double Springs Creek, However, their research asserts thai Yonge was born in the Bahamas in 1799, (Certain census records Indicate that he may have fur-

'I OVt ... OHJl

aooo

J~O

nished information that he was born in Florida In 1805). In any event, they state thai he livtd in Florida as a child. The authors also claIm that he estab路 lished his lrading post al the site of Geneva sometime after 1819, Meanwhile, in 1820, a young doctor in New York Siale decided to experience frontier life firsthand. He moved his wife and four children to the area ne.u Eatonton, Georgia. Coincident"lly, Henry Yonge had a half-brother, Walter Yonge. who owned a plantation near Eatonton. Sometime in 1824, Henry visited Waller and during the visit he broke his leg, The doctor who set the Ie" was Or. Iddo Ellis. the man who had come from New York to Georgia. Or, Ellis had a young dallghter. Mary. who was 13 at the time. Henry and Hary fell in love, 1l11d l lc!ll'Y asked the doctor for permission 10 marry his daughter. The doctor staled Ih ~t they could get married when Hary Wj!,$ 20, Henry returned to his trading po5t but kept his promise 10 marry, The weddin" took place at Waller's home at Eatonton on December 4, 1831, Henry and his bride then returned to Alabama, The rut of the story is that Or. Ellis and his family, including ~lary. the wife of Henry Yonge, clime to the South from the city of Cencv.l, New I'ork. The authors of the Wom,m's Club book assert thall路lenl')' Yonge named the place of his tradiflg post "Geneva" In honor of Ihe fo rmer home of his new bride, t'urther research will be required

MDWn.lDen 2000

Gtr_ Couill/l Courthoost (rt<1f'vitw, 1966)

in order to finalty an$wer the question: t',om what place did Geneva, Alabama actually get its namel Henry and Nary liwd in Abbeville (or a few years. Henry was appointed the first prutmlUter there in 1833. He had also ncqIJired ~ign ificanl land holdings and he owned much o( what would become downtown Abbeville, Including Ihe court SQuare, ,.1eanwhile, his brother, Walter, became the first poslmaster of Geneva,

receiving his appointment in July 1840. Ilenry and Nary later returned to Geneva. He assumed the po5tmaster posi路 tion. In the 1850 census he Wi15 listed as a merchant, IIge 45, born in Florida, with a wife, age 38, born In New York. They had seven children, ranging In age (rom one to 16. Their eighth and last child was born in Ceneva in 1851. Mary Yonlle, the wife of the founder of Ceneva, died in 1865, She is buried

in the city cemetery at Abbeville. Henry Yonge died in 1861. He is buried buide her at the same cemetery in Abbt:ville. During the next yen. Geneva County was formed and nllmed for the town of Geneva. which began as Henry Yonge's trading post at the junction o( the rivers. The rivers have played a sillnificant role In the history or Cenev". Henry Yonge probably had some knowled"e of the potential (or nooding becau$e he built his home on the high ground 50uth of the rivfr junction. In 1864 , Ceneva consisted 01 approximlllely 150 families. Extensive rains fe ll on November 13 and 14 of that year. The village was inundated by what became known as the "Lincoln ~'Iood," since he was President at tint time. The town was almost wluhed away. Due to this calamity, the slle of Geneva was moved approximtltely one·hllir mile north to higher ground and away from the river junction. The Act which created Geneva County on December 26. 1868 named seven commissioners, These men ....-ere Thomas II. Yarbrough, Daniel Fulford. Daniel ~tiller, Asa Ray, William Bays. Ira D. Albenson, and Jonas Bell. Their task was to organite the county. They estab· 1ished voting places in Ihe county and conducted an election (or all county omcers in June 1869. The commission· ers levied II special tax to pay the pro rata share of the dellt acquired from Coffee, Dale and Henry counties. The Act establishing the county provided lhat any pending lamuit was to contino ue in the old county where it com· menced unless lhe partiu agreed to remove the suit to the new county, and that probllte mlltten, includlns the estate of a decedent who had resided within the boundaries of the new coun· ty, were to be removed to the new probilte court upon proper petition being filed. The first "rand jury for Ceneva County mel in 1869. The county did not have a courthouse at the time so the jury "ssions were convened in the local school called the Academy, located al the corner of Church and Academy st reets. The grand jury, under Judge J. McCaleb Wiley, returned 21 indictments of which ten were (or either hunting or fishing on Sunday,

The first courthouse in Geneya County was built in 1869. It WIU a structure of undressed pine planks near Ihe edge of a grove of trees, where Soulh ACildemy intersects East Magnolia today. The buildin" was used (or two years until the county bought a hotel building which had been constructed by Dr. Angus r.1cKinnon. This structure, located lit the intersection o( Commerce and Magnolia, served 115 the courthouse until II new brick edifice was constructed on Ihe samt site. On February 13, 1879, the legislature lIuthoriled a change of name for the cOllllly. Act Number 200 of the 1878· 18791egislalure would have changed

the name of Ceneva County to Cordon County. The Act required approval of Ihe name change by 11 local referendum. Howeyer, the: election to approve the change neyu look place. Because the requi red referendum was not held. the county retained the name Geneya. Who was this "Cordon" for whom the county was to be named? There are several candidates. The first is Confederate General John B. Gordon. He WM a Civil War hero and also involved in railroads aller the war. Another prospect was Probate Judge OM Cordon of nearby Henry County. The town of Gordon in present-day Houston County was name:d for him. A third possibility for the

honor was Alexander C. Cordon. He was an early pioneer of the area who had 5el'\Ped In the Indian wars. was a general or the militia, and spent two years as a state representative from Henry County in 1$36 and 1837. He led troops from the area in the Cillil War. And from 1876 to 1879 he seTl/ed as state senator fo r Coffee, Dale, Genella and Henry countles. It was flot unprecedented for the legislature at this time to name a county for one or il$ own members. Apparently whoever "Cordon" was. his name had little appeal. hence no effort was ever made to hold the referendum election. Unanswered is the question of why the name change referendum never took place. The first brick building constructed as a courthouse in cenella mysteriously burned in March 1898. The fire destroyed all of the county's records. It has always been suspected that this fire Wt\$ the work of arsonists. In fact , two women saw the courthouse burn and reported that two men left the scene of the blau in a hurry. They stated that one was tall and appeared to have a wtapon. The olhtr was shorl and carried a shiny objeclthat looked like an oil can. Many in the community believed they knew who the suspects were. The two suspects were neller arrested but apparently tht crime did not /l{) unpunished. Mer the fire. the tall suspect always carried a shotgun with him. He was accidentally killed when his shotgun discharged and he shot himself. The short smpect died 5uddenly of a heart attack. Soon after his death, his fathe r atlempted to evict a woman from some property that she rented. She threatened to tell all she knew about the courthouse fi re if she were evicted. The eviction proceedi ngs stopped. While a new courthouse was being constructed, the Cenella County Commi$5ion rented a vacant building for the county. The rent was a most reasonable $12 per year in advance or $2 per month. In April 1898, Ihe commissioners decided to pay the $12 rent. The new brick courthouse was built at the corner of Commerce and Town. Th(! Cenc/JOJOli nial newspaper bCgll.ll 11 drille on May 21, 1898 to secure fu nds for a clock In lhe tower of the new In

N OV~ "O " R ~""

c..- CowI/y Jail (1911-1968) courthouse. Enough money was raised by the newspaper to guarantee payment fo r the clock, which wali ordered by the County Commi$5ion. The 1898 courthouse contained a triple-arched entrance路way under a seconMloor balcony. This portico had fou r Ionic columns supporllng II. classical pediment. Centered above the entrance was an ornately-designed clock towtr with a platform. pediment. four clock faces. dome, cupola, and finial. Unfortunately, like its predecessor. this building also burned. The fire took plbce on the Mning of January 21, 1911. ru the fi refighters fought the inferno, the townspeople heard the courthouse clock toll the time of II p.m. Shortly thereafter, the clock workings crashed into the bui lding below and would keep time no more. Also, as with the previous courthouse fire, this fi re was of suspicious origin, but no indictments were ever issued. The next Geneva courthouse was built in 1912. P. 1>1. Metcalf received the contract to construct a new courthouse and a new Jail. The contract price w.u $27,475 (or the courthouse and $19,700 for the j(lil. The courthouse was built on the site of its predecessor (It the corner

of Commerce and Town. II was of similar design but larger. conshting of three stories with a basement. The building also contained a majestic clock tower centered above the entrance-way. However. the triple-arched entrance and cOllered balcony of the former courthouse were replaced by a simple doorway and small non-cOIle red balcony. Awnings .....ere later placed on the build路 Ing. AI prtviously mentioned, Geneva is located near lhe conflu ence of two rivers and a creek. A huge flood occurred in 1864. Other m~or nood~ took place in 1916. 1925 and 1928. In 1929 Geneva suffered an unprecedented two noods in one year. The fiut dellastatin,; flood took plilce in Mllrch lind it was reported that this flood either dam路 aged or dtstroyed ellery bUJincss and home in the town. The second flood occurred leu than six months later in September. The constant flooding cauud the town leaders to seek federal assistance for fiood control. The mayor of Genella sent a telegram to President Hoover who responded by sayinlt that the request would rcceillc "most careful attention." The Corps of ~:ngineers con-

ducted a $tudy and concluded that a flood control project was feasib le. Unfortunately. it took fou r )/tars, a new administration in Washington, and tht d(orts of Senator Hugo Black and Senator John H. Bankhead, M Wi!11 as Representative Henry B, Steagall, to get approval for Ihe construction of a three· mil e long protective levee, These earlh· works were constructed to protect the eastern and $Outhern side! o( the town from future flooding. By the 19605. tht old 1912 court· house needed repair, The Geneva County Bar Asrociation pa!Std a strong ruolution staling thai Ihe courthouse was "antiquated, iu recording system obsolete, and its office space and facili· lies inadequate for the ClIpedient administration of the affairs of the county. Its courtroom 15 unsanitary, unvenlilated, and a menace to Ihe health ar"ld comfort of court officials, Jurors, parties, and witnesses, thereby hindering and delay· ing the administration of justice," It was further reported that in the past. rooms had to be fumigated in the courthou$C becau$C of fleas, m,tes and other pests. The lawyers called for a t~'O mill ad val· orem tax beginning in 1962 for five years, and a ont mill ad valorem lax for 15 years thereafter to fund the bonds that would be luued to pay for a new facili ty, N, I., Blaum Comtruclion Company and Sherlock, Smith and Adams, Inc. Architects, recei\ltd the contract for the new Ceneva County Courthouse. The courthouse site wai moved away from the downtown area to the old elementary school property, The new court· houu is a modern structure with a ground fl oor for the jail and two upper floors (or courts and county offJce5, The new courthouse was opened in October 1965. The cost of this courthouse was approMimately $600,000. In JanulIry I966, Ceneva County auc· tioned off its old courthouse, the county jail, a county omce building, and a strip of land behind the old courthouse. The county received $40,100. The old courthouse was demolished In 1966. The old jail was not tom dDwlln unUl 1968. The threat of flooding continued to plague Ceneva, The rains and the flood of ~larch 1990 Ihrtltened the town once again. The courthouse, located at Its pruent position, was not in immedi·

ate danger, However, City Hall W35 built at the site of the former courthouse. The 193O's·era levee still protected tht town. It developed leaks and a sinkhole Ihrtattr'lcd to caust.a major break. The mayor of Geneva called for volunteers and the National Guard to place sand· bags and reinforce the levee. Fortunately the le\lte held llnd Ceneva was spared, Mayor Herring WIU quoled as saying, ''Th is time, we had $Ome warning and we were able to pull together. Ikcause of th~t. I am sitting in the Cily Hall today instead of paddling a boM over the top of it. Next time, we might not be so lucky, We nud to make sure there is no next time A new question for Ceneva County is. "HOW?H •

Sources: "The Counties of Geneva Imd Coffee," Alabama Magazine, November 8, 1937, pages 12- 16: articles, The Motl'gomerg AdlJ0'lisn, December 3, 196 1, January 18. 1963, December 14, 1963, April 16, 1965, October 5. 1965. January 16, 1966. and "lay 23, 1966: articles, The Birmingham News, January 9, 1966 by John Isbell,luly 31, 1968 by Karol Fleming: "Courthouses In Ceneva County," Tile Alalwma WIIJU(/r, vol. 39, no. 3, July 1978, pages 407-4 10: Karol Fleming: A GemtIJa Countg Album, Glimpsts 01 the PaSI, Ceneva County Historical Society, 1987; Geneva, Alabama-A Historg, The Ceneva Woman's Club, 1987: article, The Blrminghum Post-Herald. Thursday, March 22, 1990, pages AI and Al.

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ETHIX CHEX BV J. Anthollg McLain, fI'."ll!rol counS4!/

he reflection in the mirror reaily is T Published survey results continue to you. Do you like .... hat you see?

If All Your Friends (?) Could See You Now

demonstrate a growing dlsSIltisfaction among lawyers who are discnchllllted with their chosen profession. We posseu the privilege of being a self-policing profession and should st rive to retain {hill right. In an effort to familiarize the memo bership of the bar with the overall process of discipline II look lit our system. its results, lind how upcoming changes may fu rther enhance our diScipline processes, are discussed below, How Bar Complaintâ&#x20AC;˘ â&#x20AC;˘ ,. Flied We presently have lOme 14,000

lawyers licensed to practice in Alabama, In 1999, th e Disciplinary Commission

reviewed 1.516 complai nts which were filed against Alabllm/l attorneys. The majority of those compl:!.inu were filed by disgruntled clients. Some complaints were filed by judges, some filed by opposing counsel. and some were rceti~d anonymousl)" or based upon newspaper articles. court orders or opinions, and the like. The Office of Ceneral Co~m se l has formulated D. screening process, an init ial "probable cause~ review. of all complaints to determine if a. full investigiltion is necessary. The results of this screening procedure have resulted in more than half of all complaints filed being screened out dllring the initial review phase. Wh.t to Do When You aet th.t Letter

I(you are one ofthe unfortunate "respondent a.ttorneys." the best advice is to cooperate and be prompt in doing so. Numerous reprimands are being administered to lawyers who refuse or fail to cooperate with ~ ltempl.i to investigate bar complaints filed against

them. which refusal or failure, in and of itself, Is II violation of I~ ul e 8,1(b). Alabama Rules 01 Professional C(mduc/.

Be thorough and forthright in your written response. and provide III)y documentation that is supportive of your response. In a significant number of CMU. the complaint is dismissed due to the detal1cd and comprehensive initial response of the lawyer. If there are third-party \\itnesses who may provide corroborlltlng information, supply their names, addresses and telephone numbers. This can reduce the time and ef(ort expended by the respondent attorney in having to deal with the disciplinary process. Lastly, don'l attack the procw or lhose who attempt to enforce the rules. In a large number of investigations, the respondent attomey's less than professional attitude t~'ard invedigators looking into the m:r.tter further ex<lcerl>.,t1:5 an already unpleasant situation. Demonstrating professionalism and cooperation better selVes the lawyer who is subject to such an investigation. Just Who Is Big BrotherlSlster? Pursuant to the Alabama Hulw 01 Discil ,/iI1(JrV ProCfJlJurll. in\'cstiltation of

n complaint is conducted by the Omce of Cenera l Counselor a local grievllOce committee, There are presenlly eight localgricvance committees: Birmlnghtlm. Mobile. f.1 0ntgomery, 1\lscaloosa, Iluntlvilit/Madison. Houston. Talladega. and Baldwin. Once the investigation is completed, a report and recommendation from the Office of Ceneral Counselor the local grievance committee is submitted to the Disciplinary Commission which determines the final disposition of the complaint. The Disciplinary Commission consists of four bar commissioners who are elected from that body for three.year terms.

The Disciplinary CommIssion can order: (I) dismi.uai of the complaint: (2) II private reprimand; (3) a public reprimand without general pubt!calion; (4) II public reprimand with general publication: or (5) fo rmal chllTges. If lhe I)isciplinary Commission determines that the lawyer should receive II reprimand, priv:lle or public, the la'.Y)'er may request that forn\lll charges be flied and a hearing held thereon. Hearings are conducted before a Disciplinary Boord. Pursulmt to new rules of procedure adopted by the Alabama Supreme Court, effective August I. 2000, there will be six such boards consialing of six members, a disciplinary hearing officer, four bar commissioners, and a layperson. The new rules provide for the a ppointm~n t of the six discipli· nary hearing officers who ~hall guide and superintend the diSciplinary pro· ceedings of the Disciplinary Boord. If a lawyer is found guilty of miscon· duct, he or she may appeal to the newly·created Hoard of Disciplln:u'y Appeals which will be composed of rive lawyers appointed by lhe Board of Bar Commi5sioners. Appeals from II decision of the Board of Di$(iplillary Appeals shall lie with lhe Alab.. m.. Supreme Court. What It I Just reu a Little White Lie? The new rules wiD also create a Pre· discipline Diversion Program conducted by the Pre-discipJine Diversion Uoard which will consist of seven members: four lawyers and three laypersons. Cnses which otherwise could be disposed 0( with a public rtprimand with geoel1ll publication or lesser sanction shall be eligible for diversion, Alawyer who Iw pre· viously been diSCiplined or who hllJi previously PIlrticipated in the divenion prQJlram shall nOl be eligible ror diversion. Can the L.wye, aelng Inv.stlgat.d Ttllk to the Complaln.nt? The best solution in all cases would be for the complainant and the lawyer to work out their underlying problem, especially Ir the complainant is a client. In those instances where the client may have retained new counsel, the lawyer who is the subject of the grievance should be aware of the ~no· conlact" provision concerninJl communication

with a represented party. Additionally, the rules prohibit a laYoycr from making an agreement prospectlVcly limiting his liability to Ii client (or malpractice unless permitted by law and the client Is Independently represented, Obviously, the lawyer should not coerce the com· plain.. nt into withdraw inA the complaint or otherwise impede the investigative process through improper influence or actions, The rules recognize the possibility of such influence, lind Sl)e<:iflcally decl .. re Ihnt disclpllnnr')' proceedings shall not necessarily be abated beclluse of unwlllingnus or neglect of the complainant to sign a complaint or cooperate in the investigation or prosecution of a charge, settlement or comprOlTise between the complainant and the lawyer, or because of restitution by the lawyer. Qrue.ome Statl.tlcs or the 1.516 bar complaints filed in 1999, 1,285 were screened out. Of the lawytn disciplined in 1999, 57 received private reprimands, 16 received public reprimands without general publiclltion, I I received public reprimands with general publication, 20 were suspended, and six were disbarred. Therefore, while Ule ovtrall number of complaints med seems substantial in view of the number of licensed I..wyers in the state, only a small percentage of the complaints resulted in any actual discipline, ,.1ore than 90 percent of the complaint$ were found to be without merit and no lawyer mi$(onduct lnvolved. Con.l.tancy. Con,l.t.ncy, Con.l,tenc), For the system of self.policing to con· tinue, there must be uniform, consls· tent discipline of those lawyers who violated lhe rules of condu~t. What Orle reads in The Alabama UJIIJVOIr in terms of lawyer discipline is ohviously a short synapsis of the case. Prior disciplinary history of the lawytr, mitigating (actors, and other elements or f)cts of each case are not always induded in the public notices or lawyer discipline. The result is that many who read the diKipline report contained in each edi· tion of Thtt tIIabama l.awger are gettlllg only a portion of the total facts and circumstancC$ involved in each discipline case. Thktn in this limited context, some

may conclude that the discipHne being meted out to lawyers is inconsistent. The recent rules changes adopted by the Alabama Supreme Court are desiglled to eliminate any possible Inconsistent concerns, and establish a refi ned. uniform approach to the disci· plinary process. Pretrial conferences. plea deadlines and ntgotiation cut·o(fs will eliminate most delays lind crute a defined structure and hearil\lS calendar within which prosecution of complaints will occur, If a lawyer is found guilty CJf violating the rules of conduct. II detailed report of the findi ngs of the OiKiplinuy Board will be prepartd. This infOl"l1lation will become a part of tht bar's disciplinary database, and will serve as the source (or publicizing of the misconduct, both in the media, and upon inquiry. to the Pllblic. Eventually, the information will contain su(ficient detail to allow more uniform discipline. and continued wurancu of due process and equal protection in all discipline easel. Did You S_ Wh.t I S.w? Hule 8.3, Ala. n.p.c., requires thilt a lawyer possessing unprlvllegtd knowledge of a violatioll of Rule 8." (miscon' duct) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon sudl violation. An increasing number of laW)'ers and judges are bringing to the attention of the D I~dp li nary Commission instances of lawyer misconduct. Por the system to be accountable to the public, those governed by the system must be responsible to the rules, Mn when such requires the reporting of another lawyer to the court or the bar. While some continue to questiOll the report ing requirement of Hule 8.3, those who understand that such is essential to milintilining the right to self'police comply with the rule and thereby eliminate further misconduct by the offending la'.Y)'er, and possible futu re ha.rm to clients and the public. The privilege of prllc-tieing law carries with It signIficant responsibilities, not the least of which is a commitment to both the substantive rules whIch govern our conduct. but also a wi11i~ness to participate u a bar commissioner, II diSCiplinary board panel member or II complainant. • NOV U"'D~"

2000,

TheVLP and t is late June in ~1ontgomery and It 15101 degrees. Ms. Adams! is siuing on her front porch as I dri~ up. She rises to IIreet me with both arms outstretched and II huge smile. "Wt'll

just sit on the porch since it's SO hoi, ~

she sa)'s. Throughout our visit [ notice that there is no ruT conditioning in tht

houst, only II few fans in small, open windows. The wooden shingle house Is tiny bullhe porch is bill, shaded and decorated with p~'nts. some real and some not. White bricks are laid neatly "long thc edge of the porch. /lrighl pink, pliUtlc nllming05 sl,md in two !)Qts at the top of th e stcps leading to the

porch. Hs. Adams tells me she is 67 years old, She Is the liveliest, most viva· cious 67.year.old I have ever met. In or out of 101°, We talk about the Internal Revenue Service. ""1,Y granddaughter, S.~rah,' she's 12 now. She's been living with me sinu she was six months old. A few }'tars ago I slarted gelting letters from lhe IRS saying I owtd them thousands of dollars 'cause of Sarah. I got /I leiter two times II month. I thought, they're going to have to put me in jail because I

didn't have the money to pay thaI." Ms. Adams heard that Legal Services might be able to help her. She visited Legal Services and was told that they would put her in touch with an attorney who could help her. That h how Ms, Ad"ms became iii client of Henry It (1·lank) Hutchinson. II tax VIper!. partner at Capell & Iiowlltd, P.C. of f.10nlgomery and voluntetr with th ~ Alabama Slate Bar's Volunteer La~rs Program (VLI').' Once Mr. Hutchinson agreed to serve as Ms. Adams's altorney. she would stop by to see him every time she gol II letter from the IRS. "Those letters worried her to death," ,.1,. Hutchinson explained, Ms. Adams agreed: "I don't like to talk on the telephone because I get con· fused. So every lime I got a leller, I would stop by and see Mr. Hutchinson. He was always there. Always ready to see me. He WM just the best." Hank Hutchinson took on Ms. Adams's case in September 1998. One and a hal( years later, after 19 confer· ences with Ms. Adams. her daughter, her son, and IRS personnel, two petitions to the United Slates Tax Court, 17 leuers to lhe IRS-nuny with llllach-

ments, a several-inches-thick file, and over 50 billable hours, the mauer WiI$ resolved, Ms. Adams owed nothing. The IRS had made a misUlke. ~'or 25 }'tars, Ms. Adams has worked althe Days Inn (lind its predecessor), doing laundry, She separates sheets (rom towels, and washes. dries and folds everything, There is no air conditioning in the laundry area. Currently, she earn! S600 per month. During the years she C<lred for Sarah, Ms. Adams claimed a low-income credit and listed lur granddaughter, Sarah, as a dependent. ~And properly so," according to Mr. Hutchinson. Apparently, as some point, Sarah's father, who had never paid child support, also listed Sarah 11.'1 a depen. dent. The illS responded by disallowing Ms. /\dams's claim of Sarah and demanding payment to the IRS of almost S2,500 fo r each of the tax ~a r5 1995. 1996, 1997 and 1998, plus inter· est and taxes totaling in excess of SI5,OOO. In addillon, the IRS withheld a refund payable to Ms. Adams (or 1999. Despite the fact that Mr, Hutchinson was able to document, through receipts retained by Ms. Adams and an a(fidavit

supplied by Sarah', uncle, lhat Ms. Adams had provid~d full care for S.uah, the IRS penisted in its demands. The IRS continued to challenge Ms. Adam$'s position with respect to some tax years, even after it had agreed that she owed no tax with respect to the two years before the Thx Court. At one point duro ing the many leiters and attempts by f>1r. Hutchinson to resolve the maller, Ms. Adams received notice that the inS Wa.$ placing a lien on her house if she did not pay $3,287 immediately. Finally. r-tr. Ilutchinson contacted Senator Jeff Sessions. Mr. Hutchinson explained. "I don't know If that helped. but within a couple of weeks, the IRS conceded that all tax years were resolved and no defi· ciencies were payable by Ms. Adams." In addition. fob . Adams received her full 1999 tax refund, which was withheld pending resolution o( the dispute regarding lhe previous years. Mr. Ilutchinson repeatedly explained to the IRS that, "r-is, IAdams] hM been extremely inconvenienced by lhe illS" and "she hM anSWEred questions and provided information to the IRS regard. ing these matters ad nauSL'Um ••• t>1s. IAdams], (or justifiable reasons, is very frustrated by the lack of resolution in her case." t>b. Adams is more colorful: "Dogi I don't know whal is wrong wilh those folks. Most folkslHe Just as good :loS you let them be. But not everyone. Not the ms." Ala single parenl. working in II motel laundry (or 5600 a month, Hs. Adams has raised seven children. She hM 11 grandchildren and three great-lI:randchil. dren. lJ~ides Sarah and SMah's molher, who live with Ms. Adams, her other children, grandchildren and great-grandchil. dren are In and out of her hoUJe "all the time At 67, t>1s. Adams still works six days II week. She smiles: "I love going to work. They are so nice there, And, I can get some pc.lce and quiet." Wh y did I-lank Hutchinson sign up with the Volunteer Lawyer5 Program? "It's just the right lhing to do." What does Ms. Adams think of r.-1r. Hutchinson? "I've been through 11 101. But the Lord's been good to me. He sent me Mr. Hutchinson.H •

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Lawyers (an Save Lives Without Going to Medical School

By Sandra Vinik

and Jock Carney

ne of the most pressing medical and social concerns facing this nation is the shortage of organ donors. In Alabama, 737 people were on organ waiting lists as of January 1, 1999, while there are more than 60,000 people awaiting transplants elsewhere in the United States,l

t;ach year, increasing nUffihers of Americans die because they are unable to obtain an orgiln transpl,mt. LaWYers. who are involved in estate planning, have the opportunity and a moral duty to

rai~e

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with their t HenlA.

Cenerally, people are In denial about their own mortality and avoid subjects connected with death. /u II result, the public has unfounded fean and unan· swered questions about organ donation. Attorneys and estate planners can increase awareness about organ donation through client counseling, since estate planners routinely discuss death and living wills with their clientJ. The

American Bar Association encourages attorneys to discu» the i» ue of organ donation during personal planning con· (erence5 with their cl 'enb,'

The Alabama Rules o( I'rofessional Conduct permit an attorney to discuss organ donation with his or her clients, First, an attorney rendering advice can refer "not only to law but to other con· siderations such as moral, economic, social and polltlcal (actors, that may be relevanllo lhe client's situation," Ala, R. p, Con, 2, L DiSClWion rewardi ng donallng onc's organs is certainly a moral and social decision that is relevant to death and estate planning. The rules also pro· vide that an attorney should explain a matter in such a way that the client will be. able to make informed dedsions regarding the representaUcln. Ala, R, p, Con. ) ,4(b), The attorney's rolc is not to increase organ donation, bul should be viewed as part of II; lawyer's duty to provide a client with complete and accurate

KNOW LE D GE . E XP E RI E N Ce;. INT EG RITY.

Mul mlzlng It. r.lum on ....I ..Iale InV9.lm,nIl IOf lind l'nde .. r,qui.., -.ound ludgm,nl and r1,k mnnng ..... nl ,xperti", One (If the btll WilY' 10 l ucc.ld I, 10 In lill on a va lunllon ' . !art who '" me ..... bflr oll ha Ap prlll.nl In, tl lule, the w(lrld ', mOil lrulled euloorlty on "II ..tall appral..1. You'll recognira our mambera by tt.. dt,ignlltionll lifter thllir nam.. MAl, S RPA. S~ Sttmd1nlil behind tt"H I,ttlr, Ira Superior Knowledge, Doc .. m,n tad EJparle~. Uncomproml.1nU Integrity, Ma mbe... of Ih, Ap prallnl Inlli lull carry thl. high degr. . 01 profaulona!l,m wi th thalr dt,ignallonll. Yoo moold .-.qui" It lor yoor IlnaM:lal prollcllon

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lind PlIIC' of mind.

Information about the Issue.' [t is important to educate l client regarding organ donation. t'ailure to discuss the issue with the client may prMntthe removal and doniltion of the orgall, even though that may have been the decedent's wiSh.' Al/lbam.'l has adopted the Uniform Anatomical and Cift Act. which permits anyone of sound mind oYer 18 years to donate all or part of his body, Alu, Code 1975 1221942(a). Certain family memo bers, in order of priority, mny also dor'll\te the decedent's organs. 122-19-42(b). Family members may make the gift in writing or evtn by telegraph, recorded telephonic or recorded message. 122-19-44(a), However, the statute aho allows specified classes of family member$ to veto the gift. Na. Code 1975122-19-42(d). 111e donation of organll m.'Iy be incorpor/lted in the deceased's will and the Itift becomes effective upon death without wait, ing for probate. In addition, the gift is still valid if the will is later found to be invalid.Na. Code 1975 §Z219-44{a). The gift can also be made by any other tioeument, including a card, but the donors must sign in lh~ presence of two witnesses, If the dOMr is unnble to sign, the document may be signed for him at his direction and in his presence and in the presence of two witnesses. who must sign the document in h:s presence. The Alabama Organ Ctnter' and the Alabama Eye Bankt have drafted sensitive brochures which are informative and inooll)Orate donor card! which convey the neeemry inform.'ltion and comply with the law.

The gift may be made to a specified donee, If the specified donee is not available at the time and place of death, the auending physician may accept the organ (unlcS! the donor has expressly desired otherwise). 11\e donee physician may not participate in tile procedures of removal or transportation. Ala. (;()(k 1975 122-19-44(b). The gift of an organ Is the gift of life and Ihe need (or ors:l.m donation in Alabama and the United States is InereMing. 1..awyers are in a unique positlon to disseminate information and educate their elienl$. It is the logical time to do so when the client Is addressing his or her own death. If la\\l)'ersacross the state Clln ow:rcome their Inhibitions in regards to organ donation, then not only will those on waiting lists In AlAbama benefit, but so, too. will those countless people aerMS the country who are in need of a life-giving gift . •

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STORIES

The Alabama Lawyer asked our readers to contribute "war stories, " humorous tales and anecdotes about Alabama lawyers andjudges, to be published in upcoming issues of/he magazine. The first ins/aliment appeared in the September issue. Here are some more!

rior to his service on the Alabama Supreme £:(Iurt, JUIllee Terry L. Bultl served 3S a circuit judge In I)ike and Coffee counties fo r 20 years. With all the attorneys crowded around the bench, Judge OuUs was calHng the criminal court docket (or trial. When Judge ButLs called one cue fo r trial , the attorney staled, 'Judge. if I could talk any sense into my client. he would plead guilty.' Whereupon, Judge Butts replied, 'I(you could tillk any sense Into your client, he'd want a different lawyer: All of the attorneys convulsed into laughter." Jut')' convicted a two·time felon of forgery of several checks. Upon his sentenCinl! hearing, Judge Butts sentenced the now three·lime felon to life imprisonment. "As the defendant was being led from the sentencing bench, another convicted felon was being brought forward fo r sentencing. As lhey passtd tach olher within earshot "A

Free Report Shows Lawyers How to Get More Clients C.Ii (. -Wh)' do .ome lawyers gt"l rict1 whi le Olliei'll Slruqlc 10 pd.)' Iheir bil ls" The an~r, ac:o:ordinll to ~ttome)', David M. Wlrd. has IIOlh ln, 10 do willi talent, rollClllon, h.rd WOI'k. 0.- evtn luck. --The: II~'" who mue the bill money are rlOl ~wily better lawyers," he: lily•. MThcy hnve 5impl)' leamed how to mll1kct their iK'rvI~I." It. l u ec c u ful .o te prtClil~r who OIKC I ITUliIW 10 .Unoel dienl$, W.rd crrdiu hi' tUmatO\lnd 10 I ~r~ nuukeclna 1)'5lCm he dc~~ II. )'C...... "I _nt from dead bn>Ite.nd drownlna in debt to camhi' 1300.000 • year, prKtlc.lly ovemlglu." he hy•. MlKt Ilwyers tlqlend on

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Ire unpredi ctable. You mllY lid new clicnll lhl' lIIonlh,)'Ou mlly nOlt he "),s. A !"tremll '),Itcm, Ward 11.,1'5. can brinll In • ltCad)' JlrellT1 or new cllenli, month .fler month.)'Car Iller )'ur. " It (0;0:1. IITQI to !lOme II) lhl: offia: every <b)' knowIna the phone will rina and new bu ,lntBwnt bcon lhe line." Ward has ttullhl hi' referral S)'IICm II) over 2,500 I.wyers worldwide. Iud hllJ written I new rcpotI. Mll ow To Gil Mo~ Ctle ntl I n A MO"lh Th.. VOII Now Gel All Vnrl whk:h revell. how an)' IIW)'tr ~rm U~ thi . I)'JlCm to aCI lOOn: elienl•• nd lfl(lrea5C lhcir InC()nlCl. Alabaml lawycl1 c.n IIct • f REE eop)' of thl. n:ptJtt b),

of Judge Butts, the appr~ching felon asked the Just.sen. tenced (cion, 'Uey. what did)lOUget?' Theju5t-sentenced felon turned back to Judge Bults and said in a loud voice. 'Th ~ s.o.b. just gave me life for writing a bad (heck.' "The district attorney spoke up and asked Judge Butts, 'Judge. lire )'ou going to let him get away with that?' Judge Butl! replied, 'I just sentenced him to life; I don't think five mOre days (or contempt will impress him.'" udge Butts once sentenced a convicted felon to 99 years in prison fo r fi rst degree rape, The angered fe lon jumped up, took a m~nacing step toward Judge Butts, angrily thrust out his finge r, and in a threat· cnlng tone said, 'I'm going to remember ),ou and I'll be back: whereupon Judlle Butts replied, 'Well, it won't be nCltt wtck.'" ")

-NJ , Cen~rtl, Cnwro, Ralph &- Butts. ThJg

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What v ry Should Knlow Recent Amendments to the Alabama Rules of Appellate Procedure

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ursuant to it5 rule·making authority, the Alabama Supreme Court has recently promulgated several amendments to the Alabama Rules of Appellate Procedure. Ala. Const. of 190 1, amend. 328, f 6. 11 . These amendment5 art extensive and will affect every blwyer's appellate prllctice. The amended rules are published In lhl! vol umes of Ult Soufhem HIt/JOrfer that contain Alabama cases from 753 So. 2d (rules 3, 4, 10,21 and 35) and 755 So. 2d (rules 39 lind 40). The following is II short summary of what every lawyer should know relating to the recent amendments:

Rul. 39. Petition. tOt Writ of CertiorariReview of Decision. Court. App•• J-Clvll An amendment was apprOVtd that completely revises Rule 39 with respecllo certiorari praclice in civil cases,l Lenihan ten ~ars aRo, many litiga. lor$ never prill;tited before the intermediate courts of appeals and never found it necewry to utilize certiorari pri1ctic~. Tht t)lptS of cases they handled wtre always appealed directly to Ihe Alabama Supreme Court. However, things hllve changed since the Jurisdic· tional amount of the court of civil appeals was rai~d and the Alabama Supreme Court can now transfer certain cases thllt are within its original appellate jurisdiction to the court of civil appeuls.Alu. COlle, 1975 § 12-2·7. ru a result, lawyen are now faced more frequently with the challenge of obtaining review by way of certiorari. However, there were also several pro· cedural hurdles that had to be jumped through in order to obtllin certiorari review, More often than not. the Ilrocedurill hurdles became pitfalls because of a basic misunderstanding of the rules, See Ex parle SU/lf! Our Sln'Utns, IIIC" 541 So. 2d 549 (Ala, 1989). 111rough the amendment to Rule 39, the court has attempted to simplify the ct:rtiorari process, Under the old Rule, in order to place a case In Ihe proper posture to file a pet ilion for writ of ctTtlorari in the Alabama Supreme Court, one first must have filed an application for rehearing in the courl of civil appeals. Under the new nule, an application for rehearing Is no longer a jurisdictional prerequisite for certiorari review by the supreme court. Ala. R. App. P. 39(bH I). ln most cases, the losing party never really took seriously any application (or

rehearing that was filed in Ihe court of civil appeals. The application (or rehearing Wil.S merely filed becau~ it Wil.S a jurisdictional prerequisite. The amendment should eliminate a time·consuming and tx.pensivt step in obtaining certiorari review. It should also lead to higher quality applications for rehearing that are filed inlhe court of civil appeals, The amended I{ule also totally altered the (orm in which a petition (or writ of certiorari Is to be filed. Ala. R. App. P. 39(d), as amended, provides, in pertinent part: (d) Fonn of )·eIlUon. The petition shall be on letter-size paper. and the color of the cover 0( the brief filed with the petition or filed in response shall be as described in I~ule 32(01)(3), The pelilion shall contain: ( I) The style of Ihe case, the name of the petition. er, the circuit court from which the cause is on appeal, and the name of the court of appeals to which the petition for certiorari is directed; (2) The date of the decision sought to be reviewed and, if an application for rehearing was filed, the date of lhe order overrulinJi the application (or rehearlng; (3) A condse statement of the grounds, 39(a)( I )(AHE), supra. on which the petition is based-and in a death-penalty case a statement in accordance with 39(a)(2)(A) and (B)- provided that: (A) When subparagraph (al( I )(D) is the ground for the petition, the petitioner must Quole thlll part o( the opinion o( the court of appeals and that part of the prior decision the petitioner alleges arc in connicl; or (0) Where it is not feasible to quote that pari of the opinion of the courl of appeals either because no wording in the opInion clearly ~hows the connict or because no opinion was [Slued, the petilion shall state specifically and with particularity how the decision conmclJ with a prior decision: (4) A copy of Ule opinion or the unpublished memo orandum o( the court of appeals, atlilched to the petition as an exhibit; and (5) A statement o( the (lICls, if II party Is not salisned with the (acts stated In the opinion or Ihe unpublished memorandum of the court o( appeals, or if the court of apptllis i!.Su~d a "noopinion" decision pursuant to Rule 53. The state· tntnt of facts shall not be incorpol'llted or lidopt. cd by reference from any other document, including the paTty'$ brief in support of lhe peli. tion. Ala. R, App. I~ 39(d). The IImended Rule clarines what musl be set forth In the petition when the ground relied upon for review is the "conflict Around. The conflict ground is the most commonly asserted ground for certiorari review, The old Rule required that the petitioner must either Quote that pllrt rJ the court of ft

NOVIiMInR 20011,353

civil appeals' opinion and thai part of tht prior case alleged to be in conmct or to state specifi cally and with particularity whert the decision was in conmet, It was difficult to quote any connict when the court of civi l appe<lls issued a nooOpinion decision. The amendment now makes clear that where it is not feasible to quote part of the court of civil appeals' opinion, the petition !hall state specifically and with particularity how the court of civil appeals' decision conmcts with a prior decision. Ala. R. App. P. 39(d)(3). The amended Rule's requirements with respect to the statement of facts varies depending on whether the petitioner filed an application for rehearing in the court of civil appeals and whether the court of appeals issued an opinion or an unpub路 lished memorandum. Ala. It App. P. 39{d)(S). This amendment changes Iht former practice under Rule 39(k) of attaching to the petition for writ of certiorari a copy of Ihe Rule 39(k) motion to adopt a corrected or proposed statement of facts filed with the court of appeals. There stili m<l;y be instances In which an attorney would want to fil e an application for rehearinQ In the court of civi l allpeals. However. if an application fo r rehearing is fil ed with the court of civil appeals, the party shall put in the petition for writ of certiorari the sttltement of facts presented to the court of appeals in lhe application for rehearing and shall verify that the st.lte-

ment of f<l;ctJ is a verbatim copy of the statement presented to the cou~l of appeals in the application (or rehearing.' If the petitioner does not file an application (or rehearing, then the petitioner may present to the supreme court his own statemenl of facts with references to the pertinent portions of the clerk's record and the reporter's transcript. Ala. R. App. P. 39(d)(5HC). Astatement of facts is not to bt included in the brief. II must <l;ppear in the petition ilM!lf. The amendment essentially elimll'l3ted the necessity for filing an ~pplication for rehearing and the old Rule 39(k) requirement! that were so fatal to many certiorari petitions. Finally, the amendment clarifies the briefing schedule on preliminal')' review and in the evenl certiorari review is granted. Ala. R. App. P. 39(1). The petitioner's brief slmll accomPi楼'ly the petition (or the writ of certiorari or ,11...11 be attached to the petition. The brief must contain all arguments In support of the petition tlult tilt petilioner intends to preStnt. including tho$e arguments that the court will corulder If certiorari review is granted. In other words. the petitioner should argue In his brief the reasons why certiorari should be granted arid Ihe merils oIhis case. Within 14 days thereafter, Ule respondent mll)' file an initial brief limited solely to the issue of whether any of Ihe grounds authorizes the issullnce of the writ. Ala. It App. P. 39(1)(2). No addi路 tional briefs will be required o( the petitioner, although the petitioner may file a reply brief within 14 d.1YS after the respondent's brief is fil ed. If the court Issues the Wrlt, the respondent may file within 14 days a subsequent reply brief addre.s.sed to the 5ubslllnlive iswes prescllted for review on Ule petition for writ 01 certiorari. Ala. R. App. P. 39(h)0). n le petitioner m:t)' then file a brief in response to the respondent's reply brief within 14 days.

Criminal

Stress Management (omes Back to the Bar Dr. Amlram Elwork, director of the Law-Psychology Craduate Programal Widener University, returns to the Alabama StateBar on Friday, December 8. He will present the highly acclaimed four路hour ClEprogram, 'Stress Management for Lawyers: A(hlevlng Personal a Professional Satisfaction In the Practice of Law,' designed to help lawyers Ill1nage their lime and pracllce more effidentIy, balance their professional and personal lives, and more. For " , . . . . 1 _ or to ~, ",II Sondra ao"o"ts IIIn41 26!1-1 515, .... 302. n le seminar IS sponsored by the ASS law Ottke Management Assistan<e Pfogram, the Lawyer Assistan<e Program, the Volunteer Lawyers ProgJam and the Lawyer Referral Servke. JU " Ovt .. om. 'coo

The amended nule changes the standard fo r certiorari review of crimil'l31 cases in which the death penalty is imposed. The amendment removes the pTO\li5ion in former Rule 39(c) that provided that a petition for a writ of certiorari to the supreme court in a case in which the death penalty was im~d would be grant~d as a matter of right. With this amendment, review of death penalty cues is not "automatic" butln~ telld wlll be M the discretion of the supreme court. The amended nule requires lhllt counsel who represented the appellllnt on the IIppeal to the COllrt o( criminal appeals or Sllccessor counsel sholl prepare and file In the supreme court a petition for writ of certiorari {or review of the decision of the court of criminal appeals. In other words, a petition fo r writ of certiorari must be fil ed in every death pen.llty case but instead review is discretionary with the supreme COl,lrt. The supreme court retains the authority to notice any plain error or defect In the proceedings under review In those cases. hl lhe death penalty tase, the petitloner must concisely state the grounds when review is sought baled on a failure to recognize as prejudicial any plain error or defect. Thllt statement must include a descri ption of the issue and circumstances warranting plain-error review. The supreme court also retains the authority to enhuge the time (or filing a petition for II writ of certiorari in a death penalty case. "'inally, tht supreme court may notice any plain error or defect in the procudings undtr review. no matter if the issue was brought

10 the attention of the trial court or the court o( criminal appeals. The amended rule is applicable in ali dellth penalty cases in which the petition for certiorari review Is flied in the supreme court of Alabama on or after May 19,2000. Rule 40. Appllc.Uon. tor Rehe.rlng The amendment completely reviHs Rule 40 dealing with applicaUons for rehearing. As previously discussed. the most significant chnnge In Hule <10 is that a party need not flIe an application (or rehearing with the court of civil appeals in order to obtain review by certiorari In the supreme court of a decision of the court of civil appeals. If, however. an applica· tion (or rehearing is flied with the court of civil appeal$. the application must comply with Hule 40(e). An application for rehearing remains a prerequisite to review by the Supreme court of a decision of the court of criminal appeals. except in lhe case o( a pretri,,1 appeal by the state. Rule 10(F). Supplementing or Correcting the Record--Clvll The old Rule required that a motion to supplement or to correct the record on appeal in a civil case must be flied with· in 14 days after the completion of the record on "ppeal or. if the appellee is filing the molion, wiUlin 101 days after the flI· ing of the appellant's brief. The timt deadlines proved to be unworkable. Rule lOIn has now been amended to delete the 14·day requirerrenls for filing a motion. The amended Rule now requires th~tthe motion 10 supplement or to correct the record be flied "within a reasonable time.'" The time fot filing briefs is not toUfd during the pendency of a motion to sup· plement unless the appellate courlso orders. Ilov.'ever. the amended rule now provides that in those Instllnces in which a party has requested III' e~tcn$ion of time in which to file a brief pending a ruling on the motion to supplement or to cor· rect the record, the party can indicate in its brief, by footnote or otherwise, th~ t a motion to supplement is p!:nding and that the brief will be amended to Include the referencC$ once lhe motion i5 ruled on by the court. Rule 21. M.nd.mu. or Prohibition to • Judge or Judge.i Petition for Writ; Service .nd Flllngi Time for Filing TIle 11ll1endment to subsection (a) of nule 21 adds three sen· tClltes relating 10 the lime allowed for nling a p!:tition for writ of mandamus or prohibition.' The old Itule was silent as to time deadlines and th~ SUI)remc court had nMr established a strict time frame in which a party must file a petition Heking man· damus relief. Sce:Ex porte Smith. 136 So. 2d 604 (Ala. 1999). The itmendment's effect is to incorporate into the RulC$ of

Rh.ond. Pitt. C.... mb .... ~ PmI CNombtr. it .uoc"'1(1 WllIIlII\'IOI' & lIIyIOt wllh DIrIcM 01 BIrrTWIgham _ Pr.~ &.. ~ Iltf DIC,,*,,'I ~r.. from JuMon ~ In 1!IeO..-.d her Itw ~ 1>Vm Cumberland SChool (II llw 011988 SIMI..,...I •• erlll, 01l1'li Siandfr,g CoII'ImIII.. on I/Ie AlIbIlTlll RuIH cI AppeII.,. ProoeOuI,

Appellate Procedure the requirtment that a petition for writ of mandamus or prohibition be filed "within a reasonable t ime,~ Where a petition for the writ of mandamus challenges an action of the trial court. the amended rule adopu as tht presumptively re3SOf\abie time the 42-day period (or appealing from II fin:al Judgment in a civil case, unlm the time (or lIpPfll1 is shorter. Ifa petItion is filed outside this presumptively rellSonable time. It shalllncludt II statement o( circumstances constitut. ing good cause for the appellate court to consider the peti· tion, notwithstanding that it was flied beyond the presumj)' lively rea.sonable time. The Committee Comments indicate lhat the court should weigh factors such lIS the prejudict to the petitioner of the court's not accepting the retition and the prejudice to the opposing part)' of the courl'S acctpting it; the impact on the timely administration of Justice in the trial court; and whether the ilppellate court has pending before it other proceedings relating to the same action and lIS to which the jurisdiction of the appellate courl is unchallenged.

Conclusion The Alab.1ma Supreme Court encouragcs the bench and bar to submitllny other suggested amendn\enl$ to the appellate rules to the Standing Committee on the Alabama I~ule$ of Appellate Procedure. It is hoped Umt this article has provided an understandin" of the amended I~ules that wi1lllffect every lawyer's appellate practice. The reader should consult the amended rules that are published in the Sou/hen! Reporter. • Endnote. 1

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FORENSIC SCIENCES CONSULTANT Lonny Harden • Flrcarnu • Crime Sc~ n e RNonslrnelion • Gunpowder R~s idu e.~

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• Court Testimony

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n just over a decade, subrogation law in Alabama has come full circle. In the recent decision of State Farm Fire and CiJsualty Co. v. Hannig, 2000 WL 46161 (Ala. Jan. 21, 2000), the court reversed Powell v. Blue Cross and Blue Shield, 581 So.2d 772 (Ala. 1990) and reinstated the rule from International UnderwritersIBrokers, Inc. v. liao, 548 So.2d 163 (Ala. 1989). Whereas a plurality of the court in Powell ruled that parties to an insurance contract could not contractually avoid the application of the "made whole" doctrine, a plurality of the court in Hannig declared the made whole doctrine to be a default rule which can be modified by the parties' agreement. This article explores the practical implications of Hannig, analyzes the trend evidenced by these three decisions, and explores whether an alternative resolution of the issue might be available. " OY~"IIEA

2000 ,3.,

Background A. Subrog.tlon right.

Insurance companies often claim subrogation rights for benefits they paid to the insured for a loss covered by the pol-

ceeds were not to exceed the amount of the insured's medical bills, the insured would not be (ully compen5i\ted (or her pain and suffering and other uncompensated losses. Under thest circumstances, if the made whole doctrine were to apply. the: insurance company would not be entitled to subrogation.

icy of insurance. Subrogation involves the right of the insurer

to step into the shoes of the insured. An insurer tKtrcist! adive subrogation rights where it u!lumes the insured's right to pursue a legal caU$( of action against a third part)' who (Ilused the insureJ's los5. An insurer exercises passive subro· galion rightJ where it IIMt!rls a right 10 be reimbursed out of the proceeds of a suit brought by the Insured aRains! a third parly lorlfeasor. An example of active subrogation Is the scenario in which an insured's home is destroyed by II fi re negligently set by a neighbor. If the properly imurer pays the enUrt amount of Ihe loss, the insurer may then bring suit Clgnin!t the neighbor to reCover the benefits paid. An uamplc o( P.'155ivc subrogation is the common sccnllrio in which a thlrd-p.1rty tort(casor causes an insured to be injured In an automobile accldcntllnd it health insurer pay5 the insured's medical bills. Tht Insured has an incentive to bring a tort action against the tort(easor to reCOVH for losses, such as his pain nnd suffering. fo r which the in5urance benefits did not compmsate him. In such situations. insurance companiu may be entitled to be reimbursed, out of the insured's recovery (rom the third party, (or the amourlt o( benefits paid. Subrogation rights can be either equitable or contractual. That is. the rights can arise from a court applying ruin of equity or from exrrtss prO\lisions in the contract of insur· ance. Typically. h<M>eVtr. the insurance contract will contain express language providing (or subrogation rillhts. 8. Th. mad. who•• doc.rln. The made whole doctrine is an equitable concept. Where the made whole doctrine applies, insurance companies are not allowed to pursue thei r subrogation rights unless and until the insured is "made whole," or fully compensated (or all of the insured's losses. That is. where the total compensation received by the insured Is less than her loss, the insured has not been made whole. and the insurance m~Y,l!:01 Its subrogation rights if the court applies the made whole doctrine. ~'or example, in the classic scenario of the insured who is injured in an automobile accident. If the tort(easor were judgment. proof. and if the avail· able underinsured motorist coverage pro-

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mark c:: •••• Three primary cases, Liao, Pooxtl, and Hannig, addreS$ tht i$$ue of whether an Insurance company may contractually avoid tht application of the made whole doctrine. Insurance contracts often contain language giving the insutanct company Ufirst priorityfl over proceeds recovered by the insured from a third party for losses covered by the insunnce contract, regllrdleu o( whether or not the insured is made whole, The question is whether such contract language is en(orceable. In In/emotional UndorllJrftlJrsllJrokors, Illc. /J. Lino. 548 So.2d 163 (Ala. 1989), the Supreme Court of AlabMna fi rst addressed the i55\le. In that case, the insured was Injured In an automobile accident. She sustained permanent brain damage. Her health insuTlmce company ",'lid medical benefits of $75,000, which was the total amount of benefits to which the insured was entitled under the policy. The Insured incurred a total of $200,000 of medical bills. She entered intt! a settlement with the tortfeasor (or the 10rUeasor's liability policy limits o( $375,000. The helllth Insurer reduct<! its 5ubrogatlon claim to $43.000, by the amount o( its proportion.. te share of attorney's fees. The trial court. presumably applying the made whole doctrine, reduced the health insurer's subrogation interest to $7,500 under the facts of the case. The h~al th insurer .. ppe.:.led, cI.. iming that it should recover the fu ll amount of its subrogation interest bec.1use its c1.. im to the right to subrogation arose from contract ralher than from equity. Thus. it argued, equitable principles such as the made whole doctrine should not apply to reduce its contractual cl .. lm. In the Supreme Court of Alabama, II Pilnel or five justices unanimously held that the made ....-hole rute applies to all claims of subrogation, whether arising from equity or contract, unless the contract tllpreuly provides otherwise. Becilllse the subrogation agreement was not In the record. 'lnd the court assumed thllt it would not modify lhe made whole rule. the court held under the (acts oI'the CMe Lhatthc made whole rule IIPplied and precluded the insur..nce comp;lny from rccovcring Its subrogation Interest. [n Powell, one year after the Lino decision, a plurality of lhe court held that an insurance company may not enforce contract language which sought to Ilvoid the appl!cation o( the made whole rule. In that case, Cynthill Powell was permanently injured in an automobile accid~nt. lIer health insur..nce company, Blue Cross and Blue Shield o( Alahama (BCIIS). paid health insurance benefits of $27.080.26. The insured settled her claim against the alleged tortfeasors (or the: $100.000 limit of their Ii.. bility insurance policy. The par· ties stipulated that the amount o( the settlement did not make whole "15, Powell. BC8S claimed that Ms. Powell should, nevertheleu. reimburse it for the $27,080 in benefits

it paid. BCBS b1\sed Its claim on language in the contracl of insurance which prollided lhM BCBS was "entitled to the reimbursement o( any amounts paid by it (or the benefit of its insured. This reimbursement is due ellen though the insured is not paid in (ull , or made whole by any recollel")' (rom a third party.~ The court held that BCBS could not cnforce the language in the contract which attempted to cir· cumvent the made whole rule. Ten years aRer Ihe Powell decision. the court revisited Ihe iuue. In flo/mig, a plurality of the court held that Pou.oell should be ovtrruled and lhal the parties to lin insurance con· tract may alter the made whole doctrine by agreement. [n so holding. the court reinstated the rule from /.iao. In Hannig, State Farm iuued a policy of property insur· ance to Belmort. who had contracted to buy a house from f.1r. lind Mrs. Hannig. The in5urance policy became effectille immediately following the clOSing o( the So1 1e, bul Uelmore was not to take ponession until some time later. Afler closing but before Belmore look posses5lon. II fire damaged Ihe home while the Hannigs were still In possuslon. Stale Farm paid benefits to Belmore under the lerms of the property insur· ance policy, lesl the $250 deductible. State Farm lind Belmore agreeli lo join as plaintiffs in a cilli l action against the Hannigs and ""reed that the amount of Belmore'S remaining pecuniary Interest In lhe claim was $5,250. This amount comprised the $250 deductible plus $5.000 to com· pensate 8elmOll: (or his lou of ust of lht house and olher consequential damages. The trial court and courl of civil appeals held that summary judgment was proper for the HanniQ:5 again5t Stale Farm, because Belmore had not been made whole by Slale Farm. The Supreme Court of Alabama a(firmed. holding, ~ll lf we apply the l'owfll rationale to the facts and circumstances of this case, lhen \\'e must conclude that the trial court and lhe Court of Cillil Appeals reached the corru t result .... Time has revealed the inherent inequity in applying the Poowll rule: therefore. 'we are convinced beyond ... doubt that IPowell and the other cases listed above that apply the Powell rulel were Iwronglyl decided' land I lhat they should be overruled .... " Hannig at 2·3.

Pradicallmplications What are the likely prilctical consequences of the Ilmmig rutlng? Only a few clues can be garnered from the small number of casel which rely on it. /-Iollnig leR open a number of questions fo r practitioners wh ich remain, (or now, unan· swered. Many lawyers will likely need to make some adjust· ments. It is unl kely, however, that llallnlg and its progeny will substantially affecllawyers' practices. (Note that this dis· cussion does not apply to ERISA or workers' comptlUation death benefits cases.) A cQmparison of the pre· and post.flO/mig rulings reveals one possible trend. ARer I-/elllnig, courts will be more likely to allow insurance companies to sue third party tort(easors or to parllcipate as co·plaintiffs In suits by thei r insureds against third·parly tortleasors. Whereas most decisions relyinll on

POllx!!1 were unfriendly to insurance compllnles seeking to bring or !)<lrticipate in such suits, Hamllg and its progeny have been ITl{)re In5urer.(rienlily in tone, if not in result. Casu decided during Ihe l>olwll era held Uut an insurance carrier ....,ould not bt entitled to intervene as of right, pur· 5uantto Rule 24(01). Ala.R.Civ.P.. In the insured's suit against a third.party tortfeasor unleu and until the insured had been fu lly compensated (or his loss. tvtn where the insurance car· rier claimed a contractual right to subrogation. See Alfu MII/llul hUllraflal CO. II. flood. 655 So.2d 975 (Ala. 1995) (denying insurer's motion to intervene): Gelco Insurance Co. u, Lyons. 658 So.2d 445 (Ala. 1995) (accord). But st'e McK/~roy u. WilSOll, 581 So.2d 796 (Ala. 1990) (holl1ing that II trial court which allowed plaintiffs insurer to Intervene under A I~C [l 2" (b ) did nol abuse its discretion where the insurer claimed a contractual rlQht to subrogation), In those cases, where the trial court denied motions to ~lIow plaintiffs insurance company to intervene in tht suit. the supreme court refused to issue a writ o( mandamus to allow the Insur· ance comp.lny to p.lrticip.1te in the suit. The courl concluded In fleod and 1,1I0llS that the insurer had no clear right to intel'llene under AHCP 24(a) and that the trial court did not abuse its lIiscreHon in refusing to allow permiuille Intervent ion under ARCI' 24(b). The court reasoned that, pursuant to the rule in Pou.'4!Il, "!tJhe insurer has no right to subrogation unless and untillhc insured has been made whole for the loss." Head at 977. Until such time as the subrogation Interest arises, the insurance company does not Mile a direct, subsUantial and protectable interest suf(icient to require the insurer', presence in the suit. Id. Thus, the court concluded, the insurance company'S interest was not great enough to justify intervention o( right or to imply an abust of discretion by lhe trial court in refusing to allow permissivt Intcrvention. Similarly, in Ex Parte Brock. 734 So.2d 998 (Ala, 1999). the oourt found that compulsory joinder of plaintiffs insurer wu not required in such a case. Although the defendant urged the court to construe Ala.R.Cill.P. 19 together with A1a.R.Civ. P. 17(a), which provides, "[n subrogatJon c.ases... if lhe $ubrORor still has a pecuniaI")' interest in the claim. the action shall be brought. in Ihe names of the subrogor and the subrogee." the court reasoned that il could not disregard CMes dealing with the substantille law of 5ubrogation in applyi ng rules of procedure that turn on substantille rights. !tuling., entered after the lIall/lip decision halle different in tone if not in result. In f.'x Parte Cassidy. 2000 W1. &11 107 (Ala. May 19.2000), lhe defendllntlln a tort suit mOiled to join the plaintiffs automobile insurer as a real party in inter· est. The court held Ihlll the trial court did not abuse its discretion in refu sing to join plaintiffs automobile insurer as a co-plaintiff, because no subroRation agreement was In the record. The court reasoned Ihall/onnip and t.iao require that lhe court study the subrogation agreement to lIelermine whether it permits subrogation before the plaintiff is made whole. The court held, "Until .....e conclude that this agreement does permit such subrogation. we cannot Issue a writ of mandamus directing lhe trial court to order the joinder of NOV~"O.A 2tICIO

I UD

Iplaintifrs insurer] as a Ico]plainti((.~ Id. at 1. Tellingly, iTr dicta the court further stated, M this decision may not preclude further IIction under Siull! Farm and Uao once the pol· icy h/15 been produced and the trial court has had the opportunity to review the subrogation agreement." /d. at 2. The court's statements in Cassidy suggest thatlhe court may be more willing to allow joinder of plaintiffs' Insurers in suitll by the Insured against a third-party torlfeasor where a valid subrogation agreement is in lhe record and where the trial court determines thilt the ilgreement has the effect of modifying the nut.le whole rule. The interpretation of Alabama law, post-Nannig, by the U.S. Oistrict Court for the Middle District of Alab3ma supporlJ thill infcrence as well, In Siory II. PionCfJr Housing Syslems, Inc .. 191 ER.o. 653 (,.1./).

Ala. March 2, 2000), under faclJ analogous to those in Cossldy, the district court held that under Alab3ma sub$lanlive law thc insurer could not be held to be a real party in interest abSL'I11 5OI11C evidence in the record of a cont ractual provision which would Jlive the insurer II contractuallnteresl in any recovery by the pl"in\iff, The districi COlirt implied, without deciding, that if $uch a subrogation Mlreement were in the record, the court would considH allowing joinder. In Allstote IlIsul'Ont:e Co. /J. Nugh Cole Builder, Inc., 2000 WL 709509 (Ala. June 2, 2000), the Supreme Court of Alabama suggested that it may view more favo rably the insur· trS' right to exercise active subrogation rlghlJ. In that case, the Supreme Court of Alabama allowed an Insurer to sue a third.party tortfeasor although the insured had not been made whole. [n Hugh Cofe, the Supreme Court of Alabama answered the following certified Question from the U.S. I)isl rict Court for lhe Middle District of Alabama: "Does the 'made-whole' rule prevent a property Insurer which hM paid iu insured under the policy. and obtained a subrogation agreement, from maintaining a timely filed subrogation suit against a third·party which allegedly Clltaed the damage, where the insured has not been made whole, but has allowed tht statute of limitations to run without filing any suit against the third party?M The court answered th ~ c~ rtified Question in the a(firma· tive: "Assuming the existence of an agreement allowing !the Insurer! to be subrogated without Ithe insured'sl havin" been made whole, we conclude Ihal Ilhe insurerl would be entitled to subrogalion ." Hugh Cofe at 2, Significan tly, the court ba5ed illl holding on the rationale that under Hanllig and Liao, an insurer may contract with its insured for subrogation against a third·party tortfeasor even before the Insured has been made whole. Thus, the court concluded, whether or nOlllle insured's claim for uncompensated damagu was time·barred Is IrrelevlIOt to the issue of whether the insurance company may mainUin the suit. The lauer decisions seem consistent wilh the decision in lIufmig, Notably, in Hmmig itself, the practical dfect of the court's decision was to allow the insurer to parllcipMe in the suit with the insured ilgainst the thi rd·party 10rUeasor, although the insured had nol yet been made whole, The IrerId 300

NOV~"O~";ooo

is toward allowing insurance companies greater freedom to bring and partlcipatf: In suilJ against third'party tortfeasors, As a ruult. practitioners can probably expect a few changes. First. insurance companies rlOW have every incentive to always include language in policies of insurance which will tnt it Ie them to a first right of recovery against thi rd parties. Cassidy teaches that insurance companies who "Ish to inlervene or defendants who wish to compel joinder d plainlifrs insurer In suits by the insured against third parties must (I ) submit a copy of the subrogation cont ract into the record, and (2) Idelltify fo r the court the language which contracts around the made whole rule. Although the plaintifrs lawyer may resist the defendant's attempts to obtain the Insurance contract during discovery, the court in Cassidy implied that a motion to compel the production of plaintifrs contract rnlIy be proper. If insurance comp.ln!es may now enter into contracts with their insured to avoid the application of the made whole doc· trine, insureds may well t hllllenge the validity of such con· tracts uSin" traditional contract defenses. Altho u~h subrogation contracts are sometimes negoliated after II loss occurs, more often subrogation clauses are Inserted into insurance policiC! before any loues have occurred. In the latter case, practitioners may expect a wa\Pt of challenges grounded on, for example, public policy or unconscionability. Some attorneys believe that inteMntion or joinder of an insurance company with a subrogation claim may be detrimental to the plaintiff if the case proceeds to trial, The risk is that the preunce of an insurance company who has paid part of plaintifrs damages may lessen sympathy fo r the plaintiff and reduce the verdict. Plaint iffs attorneys who espouse this view will wllnt to take ~ t cps to attelllpt to limillhc insu rance company's participation In the trial. Such 5tep~ could Inclode petitioning the trial court to put conditions on the insurer's inteMntion or to enter a pre·trial order which provides that the insurer must not disclose to the jury that the plaintiff receivtd insurance benefits, must not disclose its interest to the jury, and must not present any evidence to support ilJ lien in the jury's presence, See Amcr"icOll l.egion II. LMheg, 68 1 So.2d 1337 (Ala. 1996) (hOlding statute unconstitutional which allowed introduction in personal injury actions of evidence that plaintifrs medical or hospital expenses have been or will be paid or reimbursed by coUMer,,1 source): Cole/llull v. NamlftOIl Storage Co., 180 So, 553 (Ala. 1938) (holding the trial court erred In admitting evidence that the plai ntiff had received workers' compenSJtion benefits): Soull/(>rr'/ /J, Plumb 7boIs. 696 ~~2d 1321 (11th Cir, 1983) (accord); Advisory Committee Note to the 1966 Amendment of Fed,R,Civ,P, 24(a) (recognizing that intervention may be conditional), Overall, however, few subSl<Intial changes to lawyen' practices will likely materialize. Lawyers who represent insureds in claims against third· party tortfeasors typically negotiate with insurance subrogee5 in an attempt to reduce the amount of the claimed subrog,,-tion interest , Although it might seem that insurance subrogees, who have contractually mod ifi ed the made whole rule, rlOW have grcater leverage in such negotiations, in practice

Despite lhe likelihood that insurers will now have greater freedom to intervene, as a p r~ctica l mlltter insurance companies will not likely d() so on a routine basis, due to lhe costs inVQI~d , As before, imurcrs will likely negotiate with plaintiff lawyers to reduce the subrogation claim by the amount of attor· ney fees or other collection costs they would other· wise ineur, in return for plaintifrs agreement to pay the claim if he recovers, this will probably not be true, Even in cases in which the insurance company intervenes, the insurer typically dots not p;!rticipate in discovery and does not have the information necessary to try its subrogation claims to II Jury. As a re$ult, plaintiffs continue to have leverage againsl insurers, but of II. differcnlsort. If insurers 11Ilve secured subrogation agreements which allow them 10 sue thi rd parties before the insured has been made whole, they have the right to try thei r subrogation clam, to a jury, wilh or without the plaintiff. Thus, plaintiffs and defendanu may threaten to seUle with each other before trial, leaving the insurer without the means to prosecute its case. Such threats will likely have II. powerful e{{ect in pre·trial negotiations to reduce the amount of lhe subrogation claim,

Lessons learned from Liao, Powell and Hannig Although /..iuo, Powell and Hunnig seem doctrinally opposed. the decisions reveal a strong trend in the .same direction. In ellch CIIse, the Supreme Court of Alabama apPi!ared to have been prlm<ITily motivated by equitable con· siderations. The flleu lind Interests a\ s\<lke in Each case seemed to make the difference in the outeome5. Iflhis is true, equitable COnsiderations wU] likely continue 10 affect the futu re direction of subrogation litigation. At stake in Hannig was whether the Insurer WIIS tntitlcd to participate in the Insured's suit against lhe third.party tortfeasor. The factUIII scenario in Hmmig represented an almost

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CLE Rule Change Supreme Court of Alabama August 23, 2000 It is orOOred that Rule 9 A., Alabama State Bar Mandatory Continuing legal Education Rules and Regulstlons. is arrended 10

read as follows: "A. Within twelve (121 months of being admitted to the Bar, or within twelve (12) months 01 being licensed to praclee law in Alabama, whichever shall Iss! occur, each lawyer shall complete a six- (6-1 hour course in professionalism; provided, however, that lawyers 'MlO are exempt from these Rules pursuant to Rule 2.C.l. shall also be exempt from the provisions of this Rule 9A while they illB so exempt Once a lawyer's exemption under Rule 2.C. l . ends, the lawyer must complete the course in prolessionalism during Ihe calendar year following the year in which the exempt status ends: It is further ordered that this amendment IS effective Immedietely. It IS further ordeled that the following note Irom the reporter of decisions be added to follow Rule 9: "Note from tile reporter of docisions: The order amending Rule 9.A" effective August 23. 2000. is published in that volume of Alabama Raporter that contains Alabama cases from __ So. 2d: Hooper, C_J .• and Maddo~. Houston, Cook. See. lyons. Brown. Johnstone. end England. JJ .. concur.

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classic case in II.hich true subrogation hll5 traditionally been thought appropriate. In Hannig , the insurer had paid $64.884.93 In benefit!, rully rei mbursing the insured (or the property los$ except (or the $250 deductible. The insured and insurer agreed that the insured's consequential llnd other unreimbursed dlmages amounted to no more than 11 total of $5.250, Where the in~ rer has paid the entire loss, the insurer tra· ditionally was entitled to usume the rights of the insured against any third party and file suit against thi rd parties to recover the benffil5 paid. In such situations, where the insured has recovered (rom the insurer almOst thc entire amount of his loss, he has little incentive to pursue any thirdparty tortfell5oTl hlmsel(. In such situations, It has lradilionally been held appropriate that lhe insurance company should have the right to file suit on the Insurer's own name IlI\d for the insurer's own account. In HanlJl:q, because the Insured's remaining pecuniary interest was vcry small cOlllparatively, the situation WilS very close to lhat in which the Insurer has Iraditionally been allowed II) bring suit, Thu5, to apply a rule which would seemingly require th:tt the Insurer be dismissed (rorn the suit altogether seems unfai r. Whereas the insurer would ha~ had the right to punue the sui t In its own narne, but for tht insured's remaini ng small remaining inte re~ t , the defendant! claimed that the insured's remaining clai m should preclude the insurer (rom participating in the suit altogether, The court ruled that such a result would De inequitable and refused to affirm summary judgment against the insurer. The court was also clearly motivated by the (ad that the subrogation contract constituted a real meeting o( the minds, State Farm and Belmore re"ched a subrogatiQn agreement affer State Farm had paid accQrding to the terms of the poli. cy. According to the terms o( the agreement. State Farm would obtain counsel to represcnt both State Farm and Belmore, State Farm would pay all the costs of Htigation. and Belmore would receive $5,250 o( any recovery, Given the evi· dence of real bargaining between the insurer and insured, the court WilS unwilling to undermine the parties' right to con· tract. The driving issue in !'owell was quite different. At stake in that case was whether an Insured who had not bten fully compensated ror her loss must rei mburse her insurer for the benefits she had received, That situation presented the CIMSic case in which equitable pri nciples were traditionally applied to prevent such a result. The doctrine of subrogation arose (rom the equitable policy Ihat. as between the insu rance com· pany and torlfeasor, the wrongdoer should ultimately bear the 10$5, 1·lowevtr. the made whole doctrine, also a rule of equity, arose (rom the position that, "Where either the in$urn or insured must to some extent go unpaid, the loss should De borne by the insurer (or that is a risk the insured has paid It to assume," !'owell lit 177 (quoting Rimes v. State Farm /ttutual Automo/Jile Insura"ctJ Co" 316 N,W.2d 348, 355 (Wis, 198211. Notably, Ihe insurance company's right to participate in the suit was not at i$Sue in PofL-eIl. In fact. the insurer in that

case. BCBS, had intervened in the suit. and no party had appealed the trial court's decision to allow IJCuS to intervene. The sole practical issue was which party(·its) were entitled to the procuds of the recO\li!T)' from the tortfeasor. The plurality of justices believed that the equitable result was to deny the iruurer Ule right to reimbursement where tht insured had not Deen (ul1y compensated for her Injuries. In /";00, Significantly, regardless of the court's language regarding whether an insurer may abrogate the made whole rule by contract, the court held that under the racts of that case the made whole doctrine should apply, That case was a situation similar to that of Pou-ef{, Thus. each time it has been confronted with Ihe issues dis· cussed here. the supreme court has striven to reach an ~qui table result under the facts with which It was presented,

Was the Hannig ruling required by PowelR Is it true that application of the Powe" rule to the facts of Hannig would have re(luired the court in N(lnnig to affirm

the decision to dismiss the insurer from Ihe case? The plurality clearly believed so: "l ll( we apply the Powell rationale to tht facl$ and ci rcumstlmces of this case, thtn 'o\.'t Illust conclude that the trial court and the Court of Civil Appeals reached the correct result. ~ Ha"nig, at 2. Perhaps the Supreme Court of Alabama could, however, have reached the desired result in Hannig by slightly modifying, rather lhan overruling, Pofuell. Although the Powell plurality ruled that the insured does not become entitled to reimbursement of the benefits paid until the trial court finds that the insured has been made whole, that holding is not tantamount to a ruling that lhe insurer can never have a legitimate interest justifying intervention or joinder in the suit. Despite the rulings in Head, /"vons and Brock, discussed above. the !'owe" rule would not always prevent the insurer from participating In 115ult against a thi rd.party tortfeasor. Indeed, under (acts analagous to those involved in /"1I0IlS, Nead and Brock, the court held in McKferou II. lVilsOIl, 581 SO,2d 796 (Alii, 1990), that it was not eTTor fo r 8 trilll court to :tllow plaintiffs insurer to intervene, That c(lse wa~ decided the same d(lY as POIII(!", Under the 1>01.0011 ru l ~, after a faYOrabJe verdict or selllc· mtnt agai nst the tortfeMor, the insurer would be entitled to reimbursement In every case excclltthose In which the plain. tiff is not made whole by the verdict or settlement. It is true that the insurer must overcome one hurdle more than the plaintiff in order to recover. The plaintiff must simply obtain a favorable verdict or settlement. whereas the insurer must alMl obtain a court ruling that the plaintiff was milde whole, The insurer's Interest In the outcome will sometimes be as substantial and likely to succeed as the plaintiffs interest, however. For example, under the faeu of n annig, where the insurer had paid $64,884.93 in benefits and the insured's uncompensated claim was stipulated to be only $5,250, it Nove .. oeR:ZOOO

30J

would bt counterintuitive to hold lhallhe Insurance company's Inltrut In the O\ltcome was not a direct, subsUintial and protectable interest. Under those filCtS, if the Jury entered a verdict fnvorable for the plaintiff, it almost certainly would be one which would mllke: whole the insured, and the insurer would have a right to reimbursement out of the excess recov·

.".

The doctrinal problem with allowing an insurer to inter· vcne before the insured has been made whole, however, is thai if the insurer were it party in the suit, how would one charncterb:e the insurer's status? I( lhe insurer has no right to assert a cause of action until the plaintiff has been made whole, It makes no sense to characterize the insurer as it co· plaintiff, Nor would any basis exist (or chllrllcterizing the insurer as /I defendant. The 50lution would be a narrowe:r cotlstructloll of Powell. Although Polw/l stated that no subrogation rights arise until the insured has been made whole, a narrower possible rule would be that no distribution rights arise until after the insured has been ITUlde whole, On this view, an ill5urer would not be entitled to share in the distribution of the third.party retovery unless and until the insured has betn made whole. 1'Iw insurer would still have s\.t)rogation rights, but anything the ill5urer movers itself would be held in trust (or the benefit of the iruured. The insum ....'QUld then be entitled to distribution of the excess recovery aner the insured hall been made whole, T hi~ po~ition Is somewhat supported in the law as It stood before Powell. The court held, "in contemplation of law, the Insured and the insurer are, in regard to the loss. one person, and the distribution of the proceeds 15 a matter concerning only the Insured and the insurer; therefore, upon paying a

loss, an insurer may sue the per$On negligently tauslng the damage, using the naml: of the insured, for the resulting dllmages, and retain from lhe amount recovered the sum 1)3id to the Insured, and turn the balance over to him, Or the Insured may sue thl: wrongdoer for his own benefit. and that of the insurer." Hudson and Thompson u. First Farmers and Merchants National {Jank, 93 So.2d 415, 417 (Ala, 1957). On this reasoning, the cOurt held that. where an indemnitee had assigned a p:!rt of his c:.use of action to his indemnitor. lhe indemnitor and indemnitee could sue separately without splitting their cause of action, In thaI case, the indemnitor sued the alleged wrongdoer in federal court. and the indem· nitee subsequently sued the same defendants In 5Iate court while the Indemnitor's suit was slill ~nding. The court sllccifically noted thatlhe siluation was no diffwt"I\ thlnl a situation involving an insurer and insured, Such a view would allow the equitable result In both Powell and in Hannig. Although the court has entertained similar arguments, It did not directly confront the issue. See Complete Ill!f1l1h, Inc. 11. While, 638 So.2d 784, 789 (Ala. 1994Wln Powell 'Nt made no such distinction.").

Conclusion The 110llnig decision has brought Alabama Into a brave new world of subrog,,\ion law. To date, more questiom have arisen Ihan answers. Practitioners will look forward to the furth er development of these issues, •

Olend. J e nnif er L. Hawa ret Jeorw"oIet Howard QlIduoIItd '""""'" C\,m ~ ~ I e.... oeorM ItoIII \PtIfIdoeIblil \JI'IIIIeI ...... _ _ otv.d • J 0 tItII'" cum ~!rom lilt Ur'o!y,l.,.1ty 01 a.o.gl. ScI"oOCll d u.w She '- • membel oIlhe AJabama Stll' 68, Ind II In "1OO1~lO with I~ I~m of Coc/1"n 110 AMOCIII'. ~ Bilrnlngham.

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Settling Federal Cases On Appeal:

rap or t e nwa By Scott B. Smith

he scenario is fa miliar. Despite the be~t efforts of trial counsel, your client loses in Ihe trial court. To make matters worse, the district court writes II terrible opinion that, if left undisturbed, could haunt your client for years in other C3ses. So you file your notice of appeal. Then settlement suddenly becomes an option while the case is on appeal. oftentimes al the behest of the court of appeals' mediation omce or after )'ou selVe your adversary with your brief on the mull!. The slk king point from your client's pers!)â&#x201A;Źctive is the district court opinion. AMuming you alii get that opinion vacated, your client is happy to settle. So. what do you do? Make vacatur a condition of the stHlemenl? Ilave the scttlemcnl ~perl executed and then move the courl of appelll~ to vacate lhe judgment on ~ppeal? The answers to thele questions may surprise you.

Typically, when a ca5f. becomes moot while on appeal, the appellate court will ~ reverse or vacate the judgment below and remand with a direction to dismiss." United Stales u. Munsingwrur, 340 U.S. 36,39 (1950). A different rule applies to appeals mooted by settltment, however. These days, obtaining vacatur of an unfavorable opinion is an exceptional remedy after the parties satle M appeal. Unwary lawyers therefore need to learn how to use Federal nule of Civil Procedure 6O(b) to obtain vacatur of a district court opinion a! part of an appellate settlement.

The Bancorp Rule Severnl year1 ~go, the U.S, Supreme Court made it more dim· cult to get the judgment on appeal vacated as part of the settlement. The Court's unanimous opi nion in U.s. IJ(lllcorp Mortgage Co. /J. BOflfler MI/I/ Partnership, 513 U.S. 18 (1994), $everely restricted an IIp~lIate court's authority to vacate a lower court's opi nion as part of II settlement. In an opinion by Justice Scalia, the Court held that "moot· neu by reMon of ~c ttl ement does not jusHf)' vacatur o( II jlldgment under review," fd. al29.

The procedural history of Bancorp is instructive. &ncorp held a mortgage and successfully petitioned an Idaho bankruptcy court to smpend lhe automatic stay of a foreclosure sale "-Pill$t Bonner Mall. On appeal, the United State5 Oistrict Court for lhe District of Idaho reversed, IIr'ld the Ninth Circuit affirmed, Bancorp then petitioned for a writ of cer· tiorari. After the U.S, Supreme Court granted certiorari and received briefing on the meriu, the parties stipulated to a coosen.rual plan of reorganization, which the bankruptcy court apprO\'td. The parties agreed that their settlement mooted the we. Thereafter, BMOOrp filed a motion asking the Supreme Court 10 vacate the Ninth Circuit's judgment under 28 U.S.C. § 2106, which allows an ~ppell ate court to "affirm, modify, vacate, set aside or reverse any judgmtnt. decree. or order" on appeal. Bomer Mall opposed the molion, The Supreme Court then set the vacatur question for briefing and argument to re~o lve a split of authority in the clrcuill. See /tumi $eimilsu Kogvo Kabushiki Kaisha II. U.s. Phflips Q)rp.. 510 U,S. 27, 30 n.2, 34 (1993) (fx!r curiam) (recogniling the cir-

cuit split on vacating judgmenll fol · lowing settlement on appeal, but dismiS5ing the writ or certlorllrlll$ improvidently granted). The fact thilt the parties cntertld into Oleir settlement before Bancorp ...&111""""" of the Ninth Circuit's because the

to any of the PMties, the Court in Ikmcorp held: "Where moot· ne.$.5 re$ulls from sett lement, however, the l05ing party has voluntarily forfeited his legal remedy by the ordinary processes or appeal or certiorari, thereby surrendering his claim to the equiIlIble remedy of vacatur." Id. at 25. The &mcorp rule is especially broad. 5fN1 13A Wright, Miller &; Cooper, Federal Practice and Procedure: iuri$diction 2d f 3533. 10 (Supp. 2(00) (criticiting the breadlh of lhe Banco", deci5ion). Hegardless of whether the settling parties are seek· ing vacatur of a district·court decision or a court of appeals opinion. the rule is the same: "jl'oljootne» by reason of setlle· ment does not jUitify vacatur of a judgment under review." Banco"" 513 U.s. at 29.

The Reason for the Rule Though recognizing that Its rule cou ld discourage sell Iement of cases on appeal, the Supreme Court chose to elevate the "public interest" over the "systemic value of 5ett lement. ~ In Justice Stevens's words, "Judicial precedents are presumptively correct lind vnluable 10 the legal community as a whole. They are nOl mer~ly the property of private litigants and should stand unlns 11 court conclude~ lhat the publ ic inte re~t would be served by vacatur." Izumi. 510 U.S. at.t O(Stevens. J., dissenting) (quoted in IJanco"" 513 U.S. 01126027). In Ju~llce Scalia's words, "To allow II party who steps off the statutory path [of appealsl to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment wouldquite ilPlIrt from any considerations o( fairneu to the parlie.s-disturb the orderly operation of the federa l judicial system." Ikmcorp, 513 U.S. at 27. Aoo in lhe oft-quoted words of Judge Frank ~:a.ste rbrook: "History cannot be rrwritten. There Is no common law writ of erasure... . When II clash betwten lIenuine adversaries produces a precedent, ... the judicial system ought not allow the social value 0( that precedent. created at cost lOthe public and other litigants, to be a bargaining chip in lhe process of settlement. The precedent. /I public act of a public official, is not lhe parties' property." Mu/terofMcml. lIasp. oflowa Cmmlg, Inc., 862 E2d 1299, 1300, 1302 (7th Cir. 1988). As a matter of policy, therefore. the parties are free to sellie their difrerenccs at. any time. But OllC\! a judicilll opinion iS5ues. posterity trumps peace.

sion of his opinion: "Of course even 11'1 thc abstnCf: of. or before considering the existence of. extraordinary circumstances, a court or appeals presented with II request for vacatur of a district court judgment may remand the case with Instructions that the district court consider the request" under Rule 6O(b).ld. After Ikmcorp, a few courts of appeals havt remanded settled appeals in this fashion. See Presslell Ridge Schs. v. Shim4!r, 13.t ~~3d 1218, 1222 (4th Cir. 1998); Nahrebskl II. Cincinnu/i Mil/aeron Murkeling Co.• 41 f-~3d 1221,1222 (8lh Cir. 1994).

Using Rule 60(b) The ironic lemn to be learned from /Jancorp is thai an appellanl who wishes to condition an l\I>peliate settlement on vacatur of judgment below should not allree to a settlement, al lean not unconditionally. Under the Bancorp rule. if the appellant agrees to a settlement while lht case b on IIPIX:III.lht settlement itself moots the appeal and prevenls vacatur. Considering setllement but refusing to finaH ~e an agreement until the judgment below is vacated. however, avoids the mootness problem by keepinllthe case aliVf. &c Mol/a u. Disf. Dir. of Imm(Qra/iOIl. 61 ~~3d 11 7, 11 8 (1st Cir. 1995)jNcsllc Co., Illc. II. Chester :f Murke/, 756 P.2d 280, 282 (2d Cir. 1985). Absent extraordinary ci rcumstances. Rule 60(b) now pro· vidn the only means to protect the appellant's right to appeal the ad\l(!ru judgmcnt and simultaneously cnter into a settlement conditioned on vacatur. But be careful. Using Rule 60(b) in this manner requires attention to procedural details. Once the Case is on appeal. the district court, as a techricral maUer. no longer has jurisdiction to hear II Rule 6O(b) motion. To fill this gap, the courts of appeals and commentators have recog· niud a procedure under Rule GO(b) to further both the settlement and the appeal. See 11 Wright, Miller & Kane, federal Practice u1ld Procedure: Cillil2d t 2873. at 432 & n.6 (1995) (credilingSmilh II. PoIlln. 19.t ~·.2d 329 (D.C. Cir. 1952), and Pernll v. 7ruifmobife. Inc. , 223 F.2d 697 (5th Cir. 1955), with de\l(!loping lhis ~Stl li sfact ory" procedure). This procedure. in essence, fosters a dii\logue between the di51ricl courl and lhe court of appeals under the auspices of a Hule 6O(b) motion.

'"C.,

The Procedure The Exception to the Rule Luckily. there b a way to avoid the /Janco,." rule, albeit a one. Uecause the decision 10 vacate the judgment of a lower court "is an equitable one," the Court in Ikmcorp recognized that "exceptional ci rcumstances" may justify vacatur in certain ca~es. /Juncorp. 513 U.S. al 29. The Court cautioned, however. "that those exceptlonal cl rcum~tance$ do not include the mere fact that the settlement agreement provides for v3catur.~ (d. Thus the mere (act that the parties agree to a settlement will not justify vacatur of the decision below. In the context of the usual appellate settlement. the only opening left after &lIlcorp seems to be through Federal Rule of Civil Procedure 6O(bl. As Justice Scalia wrote at the coheluflilTrOW

NOV . .. I1U A 2'000

The procedure works as follows. fl rsl, counse l f()r the appel· lanl (or 1111 coun~e l jointly, If all the parties allree to vacatu r as a condition to the settlement) flies a null! 60(b) motion with lhe district court. requesting IhMlhc court vacate tht judg. ment on nppeal to furthe r the tentative settlement. There is no need to obtain leave from the courl of appeals to file lhe Bule 60(b) motionj the district court has the power to consid· er the motion because it i5 in furthe rance of the appeal. See Stone v. I.N.S., 51.t U.S. 386, 401 (1995)j wirM!1I II. AdlJ(Jnce Abrasives Co.. 542 F.2d 928. 930. 932 n.3 (5th Cir. 1976). More importantly, the district court is not bound by Iht /Janco", rule. ~cauU that rule. by its terms. applies only to the appel. late vacatur power under 28 U.S.C. f 2106. not Iht district court's discretion to vacate its own Judgments under Rule

the "exceptional circumstancu" necessary to justiiy appellate Wl.calur under Hal/COrp. &e Major League Bose6a1l Prop. , Inc. II. Pacific Trading Cards, IIIC. , ISO E3d 149. 152 (2d Clr. 19981: Mol/a /J. Dist, Dir. of/mmigratioll, 61 F.3d 117. 118B 19 (1st Cir, 1995): cf. Nes/le CO" /IIC. 11. Chesler 's Market, tnc" 756 F,2d 280, 284 (2d Clr. 1985) (pre·Boncorp holding that the district court

60(b). SR fiuncorp, 513 U.S. at 21. 28; Vt-lforQ Ti!m!slr;af Corp. /J, Polgo, 2000 WL 432382 at "385 (4th Cir. April 20. 2000). Second, counsel should filt II Motion to slay in the court of appeals. This motion $erve5 the dUlll purpo$e of notifying the court of appeals of the pending Rule 6O(b) lind requt'$ting that no aclion be taken on the appeal while the motion is pending, See l.oirsey. 542 F.2d at 932.

Third, the district court mU5t decide whether to deny the Rule 60(b) Motion, since the district court h35 the power to deny the motion. but has no jurisdiction 10 grant it while the appeal is still pending. $4!e II Wright. Miller & Kane. supra , § 2873, at 434B35 & n.8 (collecting cases). If the district court denies the moti(ln. Ole notice of appeal from such a denial can be consolidated ..... ilh the appeal already pending. See Slone, 514 U.S. at 401: fabian IJ, Storage Tech,wlogy Corp. , 164 ~:3d 887, 891 (.Ilh Cir. 1999), On the other hand. if the district court is inclined to grant the motion in furtherance of the settleMent, it should i$Sue a short memorandum so stating. The nlovant can then file a motion with the court of appeals asking for limited remand o( the pending appeal to obtain the vacatur, &e Fob/arl. 1&1 F,3d at 891: Washington IJ, Bd. of ErlIIC., Sch. Disl. 89, 498 F:2d 11, 16 (7th Cir. 1974): Sl.'e flIJn · erally 12 Moore's Federal Praclice § 6O.67!2Hbl (3d ed. 2000) (coliectinJ{ cases (rom every federal circuit).

The Benefits The procedure outtin~d above is especially effective (or an appellant who ;s concerned about the precedential effect of the district court's decision. Under those circumstances, vacatur is the appellant's primary concern: settlement, while attractive, is secondary to pressing the appeal on the merits, Using Rule 6O(b) to obtain vacatur from the district court protects both concerns, J( the district court deniu the motion 10 vacate, the appellant stands before the court of appeals havIng done everything possible to settle despite an intraMlgent district judge. Moreovtr, there is some authority that the disIrict court', re(u~1 to vacate its judgment, in the face o( the parties' d(orts to conditionally setUe their dispute. presents

abused its discretion by refusing to grant a joint I~ul e 60(b) motion to vacate), If, 01\ the other hand, the district court is Inclined to vacate its decisIon, lhe contiition precedent to the settlement can be obtained with minimal effort ~nd expense, O( course, appellants who are not concerned about the prtee· dcntial dfect o( the district court's decilion May simply settle their CII$~ and Ihen move the court o( appellis to dIsmiss the appeal as moot under Ikmcorp , In that situation, resort to Rule 60(b) is unnecessary.

Conclusion Although the Rule 6O(b) procedure discussed above is the mi\iority nIle, some courts may prescribt 1I different procedure under Uule 6O(b), See Wright, r.li11er & Kane. su;/ro, § 2873, at 430035 & Supp. (collecting cases): 12 M()()te's Fl!dllta{ Practice, supra, § 60.67! IIBI21 (collecting cases to show that virtually all of the circuits follow this procedure, exccplthe Ninth Circuit), IIlso, the appellate procedures of state couru lire beyond the scopt o( thi~ article. Finally. OIPpeliate counsel should be aware lhat at least one court has imposed sanctions (or filing a Rule 6O(b) motion that essentially duplicated Issues rai~ and briefed on appeal. See Cosleffo. Porter, Hiff, tlesterkamp & IJushnell /J, Proufdars Fidefi/y Life tns. Co., 958 1'~2d 836, 840 (8th Cir, 1992). That deci~lon !hould be easily distinguishable In the context of a Rule 60(b) Mution brought pursuant to a tentative appellate settlement after IJoncorp, In sum. Rute 6O(b) provides an appellant the only effective WilY o( preserving its right to appeal, while, at the same time. pursuing an amicable S€U lcmenl of the dispute. If the p;!.rtles settle before seeking vacatur of a federal decision, &mcorp will prevent them (rom wiping the adverse judgment from the books, Although the /J(11ICOrp rule bolh discourages settlement and creates a trap for the unwary. it is now the law of lhe land, Following the delicate procedural steps under Rule 6O(b) Ilppears to be the only way 10 fil\lllite a settlement conditioned on vacalur, •

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Military Law CommitteeCleanup of Phenix City O n August 19, mtmbcrs of the Alabama StlIte HilT Military Law Committee meeting in Tuscaloosa at the UniVt'rsit)' of Alabama School of Law heard (rom 1'>1.'0 memDen of the ASB who told of their active involvement in the cleanup of Phenix Cit)'. Alabama in 1954. Pormer Governor and retired Judge of the Alabam<l Court oi Criminal Appeals lohn Patterso n and Enterprise aUotney Joe ClISsady, Sr, spoke as members of a panel discussing t.he role of Ihe Alnbllm/l National Cuard in the cleanup. Particularly. they addressed the role judge advocates plilyed In lhe prosecution of gambling and related casu during this period WIth the panel moderlltcd by Colonel Bill Baxley. thc senior Judge advocate in the Alabama National

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8ritJat&r G.ml.'l'u/ 1Ilrn H"1I r«oflllild Ju. Ou.siIdsIi cunlrlbl.jllom 10 IMlI'hmbt CIIII clil/lflUll. euard, who has served as a military history lecturer at previous Military Law Commiltte sympOsiums. The sympOsium was attended by over 50 acti\lf, guard and reurve military attorneys and hM Deen held each August for lhe IMl 11 years. Also in attendance were Brig,ldier General ( I~etired) Richard Allm, who presently serves as lhe chief deputy attorney general and as the civilian aide to the Secretary of the Army. and former Alabamll Adjullu\t General Clyde I-tennies. Since both Baxley and PattctsOll had seMd u allorney general, the discussion portion of the panel was ...ery interesting, Gambling and other associated crimes flouri shed in Phenix City before and following World W~r II but the corruption began its swift decline with the assassination of Attorney Gel'leral-elect Albert IJatter~on, (ormH GOI'crnOT Patterson's (ather. shortly after his nomination as the Democratic nominee in June 1954. [n response, Governor Cordon ['eTsons called the Alabama National Guard into state active duty on July 22, 1954 and directed that the Guard assume ~ martial rul e~ over the Russell County and Phenbt City governments. Governor Persons also appointed an acting aUorney general and special prosecutors to

handle the gambling lind relMed cases. and the supreme court appointed Judge Walter B. Jones to preside as acting circuit judge, Oiscussion at lhe symposium cen· tered on the key role that the adjuulnt general, Major General Walter J. l'lanna, and the Cuard played in the six months that they occupied Phenix City. l-Ia_nnll and his staff used every asset available, including the Air National Guard. to locate witnesses necessary (or the prosecution o( 11l1eged ...ice-related crimes and recover evidence of the gamblingdice tables. slot machines and other (I:lmbling equipment hidden throughout the Phenix City IIrea. The Alabama National Guard and other !pedally aPllOir\led attorneyS arId judges finally brought law and order to an area of the state that General Patton had threatened to flatten with Ulnks for the crimes committed agaill5t his soldiers prior to World War II. Former Governor Patterson noted that his role in the cleanup resulted in his C41retr In public st:l'\Ilce lind Joe Cassady stated that this was not the normal two¥''Cek summer C41mp but rather an intense six-month period a....ay from his new law practice, Alabama Slate Bar President Sam Rumore, himself a retired colonel and judge advocate in the USAIt expressed the deep debt of Qratitude that all Alabamians owe to (onner Governor Patterson, his III\e falher. Joe Canady, Sr. and the counilclS other attorn cy~. Cuardsmen and officials who cleaned up this terrible situation. Brigadier General Tom King, a Birmingham altorney, presented plaques to panel p,lrtic;pants on behalf of the Adjutant General and the Alilbama f.1Hitary ikpartment. Committee Chairman 8. Boozer Downs was assisted by Jack tlllrk. an wislant attorney general, and Lieutenant Colonel Bryan f.lotg;tn, starr Judge advocate ol the Alabama National Guard, in the planning of the symposium which annually addresses military law-related topics. •

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with his client, and aoondoned the pmctice of law. IASB No. 99-37(A)J • The AJaball\lJ Supreme Court, ba5ed upon the decision ollhe Disciplinary Boord. suspended Wetumpka IIHomey Vll'l1lO1'I WlllIOn J ~'i from the pl'lIctice

of law in the Stale 01 Alab.1rna for II period of six monlhs, effective July 5, 2000. Jaye w;u retained to prepare II gunrdianship lor an elderly lady who was tivin~ wi th his client. The client p.'lld Jaye $300 or his $750 fce and he fiSSured her ht was working on her case. Thcreartu, Jaye (:ailed to perform the legal serviCH for which he had betn paid, (ailed to COMmunicate

• Tht Alabama Supreme Court, based upon the decision of the Disciplinary 1100rd. suspended Wetumpka atlorney Vint on WII, OI1 Jaye from the practice of law in the State of Alabama for a period of 91 days, effective July 5,2000, as rec'llroc.,' discipline pursuant to I~ulc 25(11), A.R,D.P, This di$cipline Wi'S based upon a January 19, 2000 order of the United States Court of Appeals for the 11th Circuit indefinitely suspending Jaye from the practice of law for his dilato!)' conduct in ming appeals before the court. This suspension is to run concurrent with the six-month su~pen5ion in ASS No. 99·37(A). [Rule 25(a); Pet. No,

00-021 • Former Dothan attorney Edwlrd Michael Voung was suspended from the praclice of la... for 91 days, effec· live May 19, 2000. On July 5, 2000, the Alabama Supreme Court adopt-

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ed the order of the Dbciplinary Board of the Alabama State Bar. This suspension was the result of a conditional guilty pita tendered by Young in resolution oHwo pending disciplinary tases, Two clients alleged willful neglect of their legal malters and a lack of communica· tion by Younll, Younll also failed to respond to the aUcg<ltion5 in the complaints in spite of requests from the bar that he do so within 30 daY$. At lhe lime of his plea. Voung was living in Columbus, Ceorgia, lie had. in effect. abandoned his practice in Dothan. Alabama. IASB nos. 98-256(A) & 98·257(A)[ • Birmingham attorney SU811n M. Donovan was interimly suspended from the practice of law in the State of Alabama ]lUrsuant to Ilule 20(a), Alabama nules of DI~ciplinary Procedure. by ord{!r of the Disciplinary Commission of th{! Alabama State Bar dated August 10, 2000. The Disciplinary Commission found that l>onewan', continued

Notices • Clarence ChriMollher Clanton. whose whereabouts are unknown, must answer the AlubiUna. Sl:!.te Bar's formal discip1in.lry charges within 28 days of November 15, 2000, Or, thereafter, the char~es contained therein shall be deemed admitltd and appropriate discipline shall be in)med against him in ASS n05. 99-243{A) and 0077(t\) before lhe DisCil)linnry Uo.1rd of the Alabama State Bar.

• RichDrd Jude Spurlin. whose whereabouts are unknown, must an$Wer the Alabama State Bar's formal disciplinary chalaes within 28 days of November 15, 2000, or, thereafter, lht charges contained therein shall be deemed admitted and appropriate discipline shall be imposed against him in ASB nos. oo. l 54(A) and OQ.155(A) before lhe Disciplinary Board of the Alabama State Bar,

practice of law is causing or is likely to cause immediate and serious injury to her clients or to the public. IRuie 20(a): ASB Pct . No. 00·061

Commission mitiAaled Murphy's discipline due to the (act that he had been medically diagnosed with major depression disorder with aleo· hoi dependency, No prior discipline was Invoilled or considered. lASH No, 98·025(AII

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Public Reprlm.nda • Centreville attorney Michael 4'nn Murphy re1:elved a publk reprimand without general publkation, "lurphy was rel<lined in 1993 to handle an estate lind fil ed the wi!! for proln1te, In 1995, Murphy sold the decedent's house and distributed the proceeds, Thereafter, v.'hen nothing elM: was done. a complaint against "Iurphy was filed in 1997. The Disciplinary Commission Instructed the bar to contact r-lurr.hy about geu lng the estate closed, After many attempts, Murphy (inally closed Ihe estale in Novem~r 1999, The Oi$ciplinary Commission found Murphy's actions constituted a violation of rules 1.3 (willful neglect) and 1.4 (a) (failure to communicate). The Disciplinary

• Birmingham attorney Dallid Elliott lIodgu r«.tilled a publk reprimand without general publication (or not prolliding compNent representation and neglecting a clienl matter in t994 , I-lodges did ,'01 file a response to a molion ror summary judgment. c.lusing the case to be dismissed. Ht th~n advised the court that he was und~r $uspension for fai1ur~ to com· plct~ his eLF: r~quir~ment5 . The courl gave him additional tim~, and h~ again falled 10 m~ a response, causing the case to be dismissed with prejudice. lIodges's conduct constituted a lIioiation o( rules 1.1 (competence) and 1.3 (willful n~glecl ). No prior discipline was inyo111~d or consider~d . IASB No. 98· 140(AlI

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In my life, there are mallY exciting times ahead, M051lmporlanlly, my wife and I are expecting a baby girl in January 2001. In addition, [look forward to serving the Young Lawyers' Section of our slate blr as its president. t, along with the Executive Board. illtel1d to use 0\11' time wisely and effi路 ciently to make a difference in our profession and in ou r state. Our Ilrimary concern thi$ Yl:<lr is to promote professionalism and civitity. For elUlmple. durh\g the Young Lawyen' Sandeslin Seminar. scheduled for May 18路19, 2001. many of our speakers will emphasize these topiCS. Although the seminar is in the planning stage, J hope that you will mark these dates, in ink, on your calendars. If you have never attended, just ask someone who has: 1 a$5u re you that they will lel! you that this is Ihe besl 5eminar (or you to attend. I will ~ har~ additional informalion aboullhe Acminar in the rlexl issue of The Alabama UJl/lyfJr. In addition, each year lhe YLS orga路 nizes a pre.law minorit}' high school conference on the campus of Alabama Stale University. Last year, Jock Smith and J.L. Chestnut motivated the studenu to be outstanding citizens. to work hard in ~c hool. a~d to dream big dreams. This year's event, spearheaded

by LaBarron Boone, will build upon the successes of past conferences. These are but two projects that we sponsor. Alabama's YLS is blessed \0 be involved in many activities that possibly influence others. We ilre committed to improving our profcs$ion as we press forward inlo the future. This year, please let me know (.If any concerns or suggesllons you may have. You may contact me by mail at P.O. Box 4160, Montgomery, Alabama 36 1034160, or bye-mail ljcp @bwomc.com). You may also want to contact other members of the ~:xecutlve Committee listed below: Thomas A1brluon (tba@albriuons.com)- Andalusia Nolan Awbrey {nolana@hwnn.cOm)-Birmingham Robert N. H~lIey

(rnb@lfsp.com)-Hunlsville LaBtl.rron Boone

(Inb@bwamc.com)- Montgomel')' Benjamin Dowden (bhowden@albrittOIl$.com) -Andalusia Bl1lnnon Buck (bb\lck@mcglaw.com)--Birmjngh~m

KImberly Calanlllui (kca lamelt i@gmlegal.com)- Mobile Uryan Cigelske (bryan@jtmlaw.com)-MQbile ChrIsty Crow (cdc@j inkslaw.com)- Union Springs Paul D~Marco (paul@pljpc.com)- Birmingham

Suunne DoneU (dorsett@Watlaw·hsv.com) - 1'lunlivil1e

CLE Opportunities

Jim Uughey (jhughey@1fwlaw.oom)- Birmingham

The Alabama Mandatoty ClE Commission conliouelly ovalu· OIllS aod approvtls in·state, as well as nationwide, programs which orn maintelnrxlln e computer database, All ore Identified by sponsor. location. data ,ne! specialty area. For e complete lisl· iog of curnml elE opportunities or a calendar, conta:1 the MetE Commission office at (334)269·1515, exlension 117, 156 or 158. or you may view a complele listrng of current programs at lhe state bar's Web srte, WWW.S/Dbat.org.

Stuart Luckie (syl uckle@dalasync.com)-Mobilc SteW! Marshalt

(mcmar@loc.~laccess.net)-CurlleT$vitle

Cnlg Martin tcdm@ajlaw.com)- Mobile Patrick McCalman (psmesq@alaweb.com)-Andatusia Robert Methvin (rgmlaW@aot.com)-i1irmimtham Allllllah MI11 u Jlf (owenSlllm@dblech.net)- 'fu$caloosa Michael Mulvaney (mmulvaney@mcglaw.com) - Birmingham

Do You Need a Tree Expert?

Romln Shaul (ras@bwamc.com)- Montgomery

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Sarah Slewlrl (shsp@aot.com)- Hobile Todd Slrohme)'\"!r (tss@simsgraddick.com)- MobUe

1.181 Van Wagner (webbc ley@minru;prinlt.com) -r-lontgomery Harli n Wlnn (hwinn@burr.com)- Birmingham

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1ft(

wrirren

They were wrluen 10 help leaderl Imrrove their Ilvu und the livtt ollhc people 1I1011t luden tcl"'·e. ACIOp'1 {abltt coax leaden 10 ""Ike cOOlcn between wch thin", lIS II~I pnd giving, arTOllBoce Ind humility, ~ nd I(:Ifl~h Indifference and tompassior.. Ptop~nton lo'l

new rclell5C', whh foreword by Robert F. Kennedy,

Jr.. txplotet Ihe delall. ri Ihe IimclC15 wbdorn krl by AeJOp. He Invllttlpwyt'n to Ihhlk NOOu' chala(tcr qual!!lel thAt

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CLASSIFIED NOTICES Rates: Members: 'TWo free IIsUngs 01 50 words or less per bar member per calendar year EXCEPT lor "pOsition want· ed" or "position offered" IIstings-S35 per Insertion 01 50 words or less, $.50 per additional word; Nonmembers: $35 per [nserllon of 50 words or less, $.50 per additional word. Classified copy and paymenl must be received according to the following publishing schedule: November 2000 Issue-desdllne September 15, 2000; Janu<lry 2001 Issu&-deadllne November 15, 2000. No dead· line extensions will be made,

Send classified copy and payment, payable to The Alabama Lawyer, to: Alabama LawyerClasslfieds, c/o Shannon Elliott, P.O. 60)( 41 56, Montgomery. Alabama 36101.

SERVICES DOCUMENT eXAMINER :

EK(lmlnatlor'l 01 Clu9Sllone<i document•. Certified loren,1e hOndwrlUng and documenl examlnef, Thirty-three yoars' experience In al lorenslc document problems. Formerly, chlel questioned doculTI9nt analyst. USA Criminal Irwesligotlon LaOOfotorles. Diplomato (certillecl)·ABFCE, Membot: ASODE; IAt, SADFE: NACDL, Resume and lee $Chedule upon request. Hans Mayer Gldlon, 218 Melrymont Drive. Augusta, GaotgiA, 30907. Phone (706) 860-4267. ENGINEERINGICONSTRUCTION EXPERTS: drainage. structural, mechanical, electrical, procen chem!· ctll, EIFS (stucco). HVAC; lor Industrial and chemieal plant facUitles, p1pelinas, compreuor sta~ons, commercial buildings, residen tial hOusing. and pon structures. ProvJde export construction claIms and dispute analysis. Experienced teJlilylng experts with licenses and credentials. Compony engineering and con tractor liconses In Al oboma and LouisIana, Contact Hal K, Cain, Mobile, Phone (334) 66 1·2605. E·mall: hkcalntllar.net. Web site: www.tralcaln.com. ELECTRICAL EXPERTWITNESS: 'TWenly·lour years In tno electrical Industry. Member 01 BOCA, CABO, IAEI, ICBO, secci. OSHA·authOrized Instructor. LPI-cenifled ~ prolection. NICEToee(tllled. MaslGr elGctr\claNcon· tractor In 39 stalas. Fee basis only. Contact Sleven J. OWen, electrical consultant. PhorIa (205) 987·2502. Fax (205) 982·96 13.

TRAFFIC ACCIDENT RECONSTRUCTION 1ST: Eveluetlon 01 highway design. This engineer haa reconSlructed over 3,000 accldenl8 In 20 states on hlghwaVs, sireels, (alt· roads nnd highway construction zones Involving trucks, va09, cars, pedestrl· ans, end farm Implements. Computer animation and CAD drawings prepared 10 IIluslmte his opinions. Ovar 42 yoars' englllOOrlng OIIperionce, Registered professional engineer and full ACTAR cenlflc<ltl()l'l. Contact John T. eates, P.E. ToIl·lree (800) 299·5950. FORENSIC OOCU~ENT EXAMINER: A director 01 and O8ltllled by the American Board 01 Forensic Document Examiners. President, Southeastorn AssocIation 01 Forerslc Document Examiners. Member American Soclaty ot Ouestlonod Documont Examiners, AAFS, IAI, 'TWenty·two years' e~peri· ence civil and crimll'l$l cases and In 19deraVstate court•. Carney & Hammond Forensic Document Laboratory, Inc., 4078 Blltmoro Woods Coun, Bulord (Atlanta), Georgia, 30519, Phone (770) 814·4440. Fax (770) 27 1·4357. INSURANCE EXPERT WITNESS: Fee·only expert witness. 'TWenty years' experience In risk mOinagemenl Insur· ance consulting. Pr.tillng evaluation. deposition aJ\d trial. Policy coverage, captives, e~cess, deductlbles, selt Insurance, agency ~ratjons, dlfect writers, property los, preparation. Member S. A.M.C. Contact Dougla. F. Miller, Employers' Risk Management. Pnone (205) 995.()002. Birmingham or WATS (800) 462-5602, ARBITRATORIMEDIATOR: OuiCk, cost·eltectlve methods of "'tliflg

claims, disputes or litigation. CertlUed mediator and arbitrator. mamber of Iha Alabama Slota Bar since 1986. Any type of dispute, Including contract, p9r· sonallnjury, labor/employment, com· merclal, prodUCIS lIaolllty, property damaga, and domestic relallons. Call John B. Baugh at (256) 768·0724. No representarlon Is madfl rllar the quality of regal se~s 10 De perlormed Is QfOIJtM /llBn thO quality oIlfgal S6I'VIces /0 De perlormed ()y afher lawyers. FORENSIC DOCUMENT EXAMINATIONS: Seventeen years' IOronslc document examinations; 27 years' tOlallOronsic e~perlence. Retired I18nlor documents examiner and dl$Clpllne COOfdInator. Alabama Department 01 Forensic Sclences. Member. Questioned Document Section-American Academy ot Forensic Sciences; Southoastern Assocle!lon 01 Forensic Document Examiners: Southern Association 01 Forensic Scientists: Alabama Sl8le Assoclallon of Forensic Sclonces (pasl presldont). Contact Richard A. Ropor, Ph.D., 7956 Voughn Road, .t 41, Montgomery 36 116. Phone (334) 260· 2552. Fax (334) 260·7929. E·mall: richroperOao/.com. EXPERT WITNESS: RoaltorlDeveloper/ CCIM covering the United Stales specializing In the valua' tIon 01 commercial and lmeslmant real estale, emlnenl domain, hgheSl and best use, 8S weN as sale·l&asebadls, atc, or tno approximate 125,000 commercial real estate pt8ctl1lonets In the United Stales, only about 8.000 nave earned the CCIM dasigna:ion. CaU Jason B. Stinson, CCIM, with Commercial Realty ServIces 01

Alabama, Inc. Phone (256) 549· 1894 or (BOO) 8 19-9487. HIGHWAY SAFETY AND TRAFFIC ENGINEERING: Highway sarety and trallic engineering In the roadway environment, construction work zonas, roadway ha%ards, roadside hazards, RR grade croutngs, tralllc controls, hlgnway englneerlng salety standards, accident reconstruction, driver reactions, and eXpec!atlons, GE Lohr, PE, Box 12339. Charleston, South Carolina, 29422·2339. Phone (843) 795·7218, E·mall: rohrgOmsn.com. HANOWRITING EXPERT/FORENSIC DOCUMENT EXAMINER : ABFDEcertilled, Formerly Chlel, Questioned Documents Division, U.S. Army Crtmlnal Investigation Laboratory. American Soclaly 01 Questioned Document Examlnera. Amertcan Academy 01 FOrensic SclerlCes. Civil and criminal cai8S accepted. Farrell Shiver. Shiver & N81son Document Invostigatlon laoorotory, 1903 UIA.: Ridge Drive, WoodstOCk, Georgia, 30189. Phone (nO) 517-6008. LEGAL NURSE CONSULTANT: Medical malpractk:e cases: review and organize medical records, Inlorrogatorles and dopositlons Pertorm modlcal research, Evaluate liability and causation. Assess daMages and value the case. EUmlnate non·merllorlous cases. Expedite "nlement 01 merttOl'lous cases. AUlst In case strategy. ObtaIn expert report. Aaal 9t In prepar8t1on or plalnt"'s and experts for trial. Contact Susan E. Baker, R.N .. J.D., 107 North Side Square, Huntsvilio. 35801. Phone (256) 534-6680. Fax enS) 52 1.9260. E-mail: bakermjdOmlfldsprlnfJ.com No reprosenlsOOn Is made IhIJ, 100 qtJlflifY 0( I6gaI SMvIces 10 be Pf/rlOrmed Is groo/er IhlIn It!t!I qualifY of /&gal services performed by other /ewysrs. STATISTICAL EXPERT WITNESS: Sta!lsUcal Oxpert witneu with data and conclU91ons reiovonl to cases Involving discrimination, &COnOm1c Impacl Of advertisement omissions, medlcal cl.!llms, environmental mIshaps, bYsl· ness Iollllell, pharmaceutlcat claims. Member ol lhe Amork:an Statistical Aasocle.tlon and Amorlcan Socloty 01 Clinical Oncology, Contact AI BartoluccI. Ph.D., 5508 Hunlers Hili Road, Birmingham, 352 10. PhOne (205) 956·8145. F~ (205) 958-7356. RESEARCH, WRITING: LegaJScopa Resoarch provides you with effocllva,

concIse and commanding !&gal research and wrlllng. Outsource those memos and brtels. Call (94 1) 518-6785 or vlsll www.le(}8/$oopeR6S6t1rch.com DEVELOPMENTAL DISABILITIES: E~partt8stlmony provldod related to administration 01 programs lOr mental retardation. dovaIopmenltlJ disabilities, mental health or spoelal education. Particular emphasis pl8Ced on proprl. aty of policies. procedures and Indlvld. ual treatment In putflc or private resldentl81 18clllllas, community living liettlngs and public school special education. William A. Lybarger, Ph.D. Phone (3t6) 221 .8415. REGISTERED FORESTER: FOI'ty-one years' e~perlance In private, Industrl81 8nd lederallorast msnagement and practices. Spec181!zln~ In timber trespass evaluations 9nd 8cqulsltlon appraisals. Etwyn A. Spence, Anniston. Phone (256) 237-4309. EXPERT/ACCREDITED COURT INTERPRETER: Accredited Spanish Interpreter lamIRar w th worker's COmpensation, Immigration ISSuell, Q8neml translations. otc. OVilr 20 yoars' exporlerlCe. Contact: Jose CSa8nOV8. Phone

(205) 979·REA0(7323.) E-mall: jeltSIJf'tOW Omindsprlng.com

CONSULTING ENGINEERlEXPERT WITNESS: Professional engineer wfth 24 years Of Industrial, construction, salOty, rn&ehlr.el'y, pulp and paper eKparience. Indulltrlal 8CdOonts, OSHA, building codes, automobile acddanls, pnxlJct Iia· bility. and delansa. RIchard T. TOlbert, P.E. Phone (205) 856-992,2,

POSITIONS OFFERED ATTORNEY JOBS: The nation's It l job.huntlng bYlletin lOr attorneys's now online at AnomeyJobsOnl/ne.com. Subscribe online 01' call us: 1-800-296. 961 1. E~tenslve Web site presents thousands 01Morney and law-relalod Jobs natlOllwlde Md abroad at all levels 01 exparlance In public (fedoral, state and lOcal) and privata sectors. Sponsored by West Group. ATTORNEY posmONS: Throe-attor-

ney IIrm soaks attorney lor COfPOl'8t&l estata and business plannng pmClice, Will consider flOW or r&eef1 graduate with LLM In taxation. Doug Friedman. 2000-A SouthBridge Parkway, Suite

'".; Sf; 111('11 ., ,,,,,', ',,,.

ISS'S ', '.I \('t;

Katherine S, Weed p.o. Box 590104 Birm ingha m, A L 35259 (205) 941-1496

.Rale: $35 per hour · No Minim um

• Admitted 10 Ih~ A labama Sia le Bar, 1979 ·J.O. Summa Cum L..,udc, 1979 Cumberland School of Lc.1 w · Sc rvi ng the resea rch nnd w rit ing needs o f Alaba ma attorneys si nce 1997

f'AST, £f'f'£(;Tlt'f:, t ; t 'I' IUENT Nt) repfCS('ntation is made thllt the quality of the legal services performed is greater than the qualit y

tlO\l~"DUl

2000,

.or

plBAse rrom new 01' recent graduates, ATTORNEY AND PARALEGAL POSITIONS: Metropolitan Allants firm with Alabama olllce seekilleansed aUorney with ()'2 yea~' eKperlence In creditor's r!ghtslbankruptcy and parate· gal with 1-5 yeal'$' experience in Atlanta office, Send resume In confl· dence with rel.ranc.s to Admlnl.trator, 3675 Cr'llWOOCI Par1<way, &lila 110, Duluth, GoorQiI, 30096. ATTORNEY POSITIONS: Judges, prl· vate practitlonlll'$, In·house counsel and government lawyers throughout Alabama and Georgia serve In lhe U.S. Army Reserve's 213th Legal Support Organization. A wGekend each month provides challonglng work, great professional contacts, generous pay, access 10 oUI,landlng beneliis (Ille Insurance and retirement), and Ira· quen\ educallonal opporlunltles, Includ· Ing CLE recognized by all Jurisdictions, No prior military oxperlonce necessery. For more Information call Duane Canlrell at (256) 840-2749. CLINICAL PROGRAM DIRECTOR : ThO Unlvorslty 01Alabama School 01 Law seeks candlclotes lor the Clinical Program Direct)(, a tenura-track posi· tlon. Salary Is nationally competitive with axcellant benef"a and academic support. The Individual's badtgroond and qualifications will determine her or hi. Initial academic rank. Minimum qualIfications Includa a J.D. degree from an ABA-accredited law school. a dlstln· gulAhad aeaoarnlc record, and eKP8r1· enee as a Clinical lawyer at an ABAaccreelileel law school or subslanllal practice eKperlsnce. Candidates also must either be licensed 10 practice law In Alabama or become Ilcenseel 01 soon alter accepting the position 8S Is reasonably po88lb1e, We oncourage applications from candldatos who lur· ther woold diversify oor laculty. Contact: Please send applications or nomlno· tlons, with res~e and social security number, 10 Pro'oesor Bryan Fair, 80K 870382, Tuscaloosa, 35487-0382. EXCELLENT OPPORTUNITY FOR EXPERIENCED ATTORNEY: Small law Urm doslre. to assoclale partner wllh own client base, Currenlly Ilrm handles civil delense, .....om"a compensatIon and general corporate malters in Alabama and MllSIUlppI, Excellent banallta provided. Salary commensurata with conrrlbution to cllont base. Interested parties should reply to 1901 SiKth

Sulle 1500, Birmlng,am, 35203. Repfles will be kept conlldentlal.

FOR LEASE/RENT

ASSOCIATE ATTORNEY: Established Birmingham lirm with satellite ol/Iea In Huntsville 16 &&eklng an aSSOCiate 101' lhe Huntsville offICe. AppIlcanlS ,hOuld have 1·5 years' 8lCptrlence. All rep!ie, will be kept confidentiaL Fax to (205) 250-5034, Allenllon: Recruiting. BIRMINGHAM LAW OFFICE; We are a highly-rated, super-rtg!onaJ ptOpGrty and casualty Insurer seeldng a quaJiIlad attorney with three to live years' trial experience to &&rve all In·house trial counsel lor law ollie. located In doWn· town Birmingham. Insuranco dolonso ntl· galion bacIIground ~ferred. We oller a compolltlve salary arid benelits paCkage. Send resume and salary requirements to: M,uk J. Huller, &lnlor Counsel, The Cincinnati Insumnca Company, P.O. 8oK 145496, Cincinnati, Ohio, 45250·5496. Equal Opportunity Employer.

LAW OFFICE AVAILABLE: Five Polnta, newly remodeled, South&k:le law ol/Ice available lor solo attorney(s). Fast OSL Inlernel aocass. 117 22nd Street, South, Birmingham. New phone aystem, etc. "VIrtual" oUIce or "corporata Image' also evallable lor those nOedlng limited conlerence room lime, Receptionist lind Olher IInclllary services provided. Olle nat lee thai Includes phone, utilitiol, .'C. Cali Tom PIouIl, eaq. 81 (205) 939·0000. BlAMINGHAM OFFICE SPACE· SOUTHSIDE: Nice, furnished oIIlco space In Southside with II'M parking. Phon&-&8CJ'6tary available, utilities, IUf. nisheelllbmry and conloronce room ovalloblo, copier, 18K. reception. Localed af 2153 f41h Avenue, SWh-Hlghland Avenue area. Phone (205) 939· 1327. •

FOR SALE LAW BOOKS: William S. Heln Company. More tho, 70 yelHS 1(lIer, still your.1 source for buying/seiling taw books. 50%-70% savings on ma)or sets, Intemalionaliaw, rare/antiquarian law. Appraisal service avalleble. Call: (BOO) 496-4346. Fax (716) 683·5595, Web site: W\4oW, ws/IM,COffl.'\Jsed.l;toc:Jk5.

Career Opportunities For Lawyers Good lliwyers hnve mnny options in tOOny's legal nmrkct. unci nUOnlcy compensation hns ncver been higher. Firms nnd eOrp<mltions hnve immt.'dinte openings for lawycrs lit all levels of expeCe!!cc in the following areas: • litigatioll • cmploymen t lnw • corporat e trunSllctions lind real estllte ' lax and estate planning • intellectual property

All inquiries nre strictly confidential. Please contact Richard G. Brock, Esq. al Acymtech. Phone (205) 87 1-3223. Fax (205) 871 ·3224, E-m:lil; richurd@j!cYllltes;b,com.

A~_ :::'~'N~":th~',-.,-_============================= 1?w AWor_ '-rIr

101lU' clieltl-ts JiJn't retam ''just any attorney" to represent then· legal[ mterests. Don't retam ''justanyvaluationfirm'' to advise and assist Y-1!'J1l. IN cowrr 0« OIr r , LlTICoAT1QN SUPPO I{T Oil ESTATE PlANN ING, \'OU SII OU LD ,\LWArS n~

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REI,)' ON D IXON OIXlM . W I: Aln: A NATIONALLY RECOGNIZED ACCOUNTING, VALUATION AN D CONSULTING FI RM WI'I'II "'I IF. S'l'ltONGES'1' CREmNI'I,\UlD I'IWIIF..SS IONALS IN A J.,,\HA.\lI\.

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AVIlNtl f. SOLT" I I, SL'IT'll 400 • Til.: l'AltK III II ~lll~(l ' III IUtJNf1I1A,\I, M ,,\ n,'~I,\ J~2()!\ 9.1(}'91 II • (800) 8H .8552 • •·A(~'1 I~III .f. (lOS) 9.10.? 177 ' II'1.;11Sln: "",w. dl~()",,.J,-I,,, .~~I,,,

Web site v. FirmSite@ BuIkIIIlI' Web .It~ lOr your ptlIClicl! ClIO ItlfllCt pot.~llial dlt'ntl. Dul with a F'ImSlle.)OO1I lillY!!! mou~ pull.

CorutrucUng I .Ile ~nd gctU118 Olilhe Inwnll' .. only the hl>g!nnilli- A Pum.<;,lf::' from W\.., J.rg:II I)II\"ttoryofl't'I'J k-gIsIl'roli.'«IOIIlIlJ • romprehenllVl' Intcmct rrarkrong DUtJon. . Uulld II IIl/1lnlllln )u"rJ~" Unhklo ..~rdll$t.l. "'" oonAlnK:l ,It.,. (mt)' ~ I.ht-

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We lI~h~r prt>8pt'CtlVl' dll'm. to your ~11t', not )Ult trafT\c. Unlike QnY'I/l\cl provider. we 00111)('1.1 ),ou tcon~ orthe IIDtlon·. I~IKIII\R 1('j)Ili

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1\,-.:1)' FlrmS;!c Cd" 00 foull<! M wl<Vffict.>,oom ~ the Woo IIddrt'U Ilt'OpIe go to for IcKollnformation and help. And thatl why your practice IlI."I'dI to be II1<'re too.

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