At
'on Bank Tr IsOur Middle Name. Offering
Solid Trust Service Since 1901. Henry A. Leslie-President and CE.o.
III UNION BANK & TRUST COMPANY 60 COMMERCE STREET 1MONTGOMERY, ALABAMA 361()\ 1205-265-8201 Member FDIC
Schroeder, HoffmBn Bnd Thigpen on
ALABAMA EVIDENCE bV William A. Schroeder, Jerome A. Hoffman and Richard Thigpen
INTRODU CT ORY PRICE
$69 .96 Ile{jularlv $14 95
cOpV'~'11
• IIM1, 488 pag..,
6· • II I"'" ' '',. 1I&.dllOund
In KIVI' 9 NIVY Ill.,.
, - -- Tabl. 01 Content. _ _ _, Obtaining. Oft ering ond Objec ting to EV~8nc8 ' Competence • h .ammatlon of WltlWllJ88t • Relevance and I,lmitlllion$ on the AdmilliOO 01 Relevant Evidence ' PlOv"e"I'" Impeachment . hpert Tesllmooy • HeolS8Y • Authenucation end Iden tltlcalion - Rulel 90 1, 902 903 • Special Rule s Retal 'ng 10 Wit,,",,'. The Bnt Evidence Rule and the PIlI Ot EVldonce nu o' RIIIlI end DomOnSirallva EVldance ' Judlclel NOllce ' PreSUIl'lptIOIlS • Burdons or Pr oof lind Porsunlon
In this comprehensive examination 01 Ihe rules 01 Alabama Evidence, Ihe authOrS prosent an In-depth d iSC USSion o f alieree! 0 1 eVldentlarv pr OCOOUl8S from Ihe relatively simple ways to objec t to eVidence Ihrough competonce. prll/lloges, relov8nce. Impeachment , 1118 best eVidence rule and palOl evidence . M any section s contall'l II d iSCUSS ion 0 1 Fedol sl 18W and ho w 1\ compot es to Its Alabama countorpart. Case law is th oroughly clled thr oughou t the book. An excellont rOler ence 1001 for bo th th e InoxpenanCOd and voteren lawverl
About tb. Autllora _ _ _ _ _ __ _ _ __ __ _
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Buy Schroeder. Hoffman snd Thigpen on AI"bema Evidence and ge t 30 % OFF any o f the tr ea ti ses li sted below: Gamblo & Cor/ey's Alabama Law of Damao •• · 1982 (w i cur 5upp.1 -$199'- 566.96 McCurley & DaVIS' Alabama Divorce, Alimony & Child Cu.tody 8 1982 (wI cur. supp ) ~7 ~ 547 , 66 Hansford's TIII• .,,'s Alabama Equity 2nd Ed. 8 \985 54995 $34,96 HoW s Alabama Limitations of Action. & Notice Provi, ionl 8 1984 (wI cur. suPpJ .$37 ,95 $26 ,66 Hood, Hsrdy & Ssad's Alabema Workman's Compenlation 8 19B21wl cur supp I !;11 S!t S31 ,46
\ - - - - AND/O R ge t 40 % OFF any of "The Law in
serie s listed below: ----I
J6flr16S & "IIIlonson 's Collection of Accounu 8\981 (wi cur supp) S28 96 $16.1 6 Walthall's Corporations - Formetion With Form. 8 19Bl (wI cur supp) $:lS 96 518 ,16 Hnirs ton'$ Detinue, Execution' & Mechanics' Liens ·1980 (wI cur supp .) $2ii.9& 516.16 Jeffrtes ' Enforcement of Security Intere.u in Perlonal Property · '980 (wI cur supp ) ,...'"8,.'.5. 516 ,' 6 Huskey & Elhor9dgtl's Landlord & Tenent - Br.ach & Remedies 8 1981 -Ci!6 95 516 .16 Jeffries ' Wrongful Deeth Actions · '979 (wI cur supp) $2695 $18,16
Want fllst. effie/tint ssrvles? Call our tolHree WATS
1· 800·241 · 3561
THE
1;:.1 HARRISON COMPANY, PUBLISHERS 3 1to
C,~ .. I"'U
P".· P 0 6o_ 1500' NO'C'OIl, GA 30091 , 1600
87-A7
The Alabama tOWYl'f
J17
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Christmas at Arlington The Arlington Historical Association and the City ofBinningham invite everyone to "Christmas at Arlingtcn" Arlington Antebellum Home and GardellS 331 Cotton Avenue, S.W., Birmi.tlldtam, Alabama 35211 (205) 780-5656 Saturday, December 3,1988 10:00 a.m.-4:30 p.m. Sunday, December 4, 1988 12:30p.m.-4:30p.m. Arlinblfon is Binnill~h:un 's only surviving amcbdJulll strucrurc and the city's oldest museum , It will be Itstivt:ly dccor.ncd by 16 well-known decorators and associates to reflect the antcbcUum period in the south . The t'W('Kb.y (."Vcm &-a.rurcs Santa Claus and entertainment, including . chamber music, instnLmcmal soloists and VOC\J ensembles, Hostesses and children in period costumes will relate ArlinbrtOn's history in each room sclting. On Sunday a live nativity scene win be displ,}'Cd on the groundS. HdTe$hmcms will include hm spiccd rca and Arlington's s~"<:ial chct.':'lC ball, scrved from the efU'dcn room. Arlington's SJ-ft shop will be beautifully decorated for the season and stocked with a wide ..... ricty of unique gifts.
Admission: $2 adults/$I studentslUnder 6-free
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Postmaster: Send ilCldr('~~ ch.mg('\ to The Alabama lawyer, P.O, BOll 4t5<', MontgOnl NY, AI. 36 10 1,
/Iu> Aillbama 1.i1WY('f
Beware of Colombians Bearing
" ,,,,,00.... ... Gifts: Whal Attorneys Should
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Know About Currency- by Robert F. Clark and W. Lloyd Cope-land "., . 350
In an effort tQ curb druglnffickh'K, Conha~ ('1l.ICtC!<! legisl.llion airne<l .It <,ei/.\tre of the " fruib " from dru l! ~JI('~ . At· lornt!y~ r('pn'scnting defen:l.mt ~ chargl'(\ wilh drUM off('n<;('~ mu ~t be cognil.mt of thate new ( Urrl'll<), reporting reqUlr('mcn1~. grcs~
Rcvocablc Trusts- an Overviewby Jeff Kohn ......... .. 332 A Ilrol)t·r!y ~truclurcd l('vOCJblC Iru,>1 (;,I n p rovid e .1 di('nt with a mCOlns (If al/oidlllM
or minimizhlg lillI liability.
INSIDE THIS ISSUE f'lc~ ,dt:nl 'S E xecutl~('
Page Dlf('Clor's Repon Aboul M{'I11I)('I', Among Flrnll a.lt Bti('l~ BlIlld"'M AI.,IMm,l 's COllFlhoust~ Rldll"lg Iht, (1 l'('uils The Ciowl (11('01
e Ll Oppol1unlllei YOUIlIi LJwyels' 5£><:11011
320 3It 324
326 )28 )3 1 j-l-l
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IOLTA
358
Sec1l0111 COllsu it.1n!'s Comer Ik'CelH Dt'CI ~lon~ l tlll d,,!lve Wrap-Up Op",IOM of 11,(' Geller.,1 Counsel MemorlJls Clmlne<! NOllct'S
J65 368 369 373 J75 376 379
DI '>(il)l1n,ITY IIt'IXlr1
l80
319
President's Page s Ih(! Alabama Stall! Bar MO\ICS Irl10 another year, there are several ilClivilies I would like to highlight
to process the C.lSes to finali ty. This dilemma contributes 10 extended i1ppel1,lle procedures and undermines public in this repon 10 the membership, confidence In the Judicial proc:ess. Our Sta te lind feder,,1 judiciary has asked the COlm restruc turing: There is little bar to ilSSisl In meeting this crisis. The dOllbl1hilf our appeil{lle COUft sys tem is state bar and the University of Alabama f;lclnK increasing pressures (rom an ever· ~xpil!1ding ca$ell)1id. I 11m lold that jusSchool of l..'lW have cooperated In the formation of the Alabama Capi t.ll Reptices on the supreme court arc each handling ~r 150 C.1SCS II year, far 100 resentation Resource Center, Inc. The development commillce is headed by many to pcmlil the kind of lime and scholarship lhat should be devoted \0 the former Governor Albert 13rl.'V>er, who not only h,, ~ provided hi5 good intellect but formuliltion of the tcrmini.ll law of the state. V'k have II task force headed by Bert hi s inSI>lratioll and enthusiasm. The cell ter will assist those la..... yers who Nettles studyinH this problem, and your input is roli!;ilOO. ..."Iullteer for this laudable work wi th ludiclal selection: Several striking res.ources and personnel. cases of problems in the iudidlll sclC(· AIM (Allorrreys IrrSut.lrrcc Mutual): lion process have evolved (rom other Most of you kn()Y,l by n()Y,l that a 5O<allcd slales In recCllt years. In Alabama many "Cilptive insurance COml'i1ny" has been members of the bench and bar have C~· HUCKABY formed 10 wrile malpractice coverage for IJresscd concern abou t .1 grOY.'ingl)()titi. Alabama lawyers. Though the COmPilny ci7.<l tion of our courts, flleled prim(lrily is not a pilr! of the sti) tr: b<lr, itS impact by the necessity of judicial ca ndidil1es to rai se enormous is very important to its membership. for years Alabama lawyers hilve faced a volMite rmi rket for liability coverage sumS of mollt.'Y to be electl,'<i. A task force k'(l by Drt'W Rcdd(ln is takir\g a hMd look <it nur Sl;!leCtion SySlOlfi 10 wi th drama tic In croa~cs in premiums arId a lack of avail· determine If there arc w.lyS to improve il. ability of Insurance from time 10 time. Illiteracy: Our state's 11H!cracy statistics are embarra ss· AIM Is chaired by former Slate Bar President Bill Scruggs Ing. Since the inability to read and wri te (undamentally and a blue-ribbon board of di rectors of Alabama lawyers. affects ilccess to our legal system, lawyers cannol ignore The company is currently in the org/mlzational stagc, i1nd this spectacle. Jack Drake is chairman o( a ta sk force to debentures in Ihe comp.lny are being offered. Over 1,000 seek ways 10 in\lOlve lawyers in the 5Olution. lawyers have purchased debentures, but 900 more must be sold to rCil t h the 2.5 mil lion dol lilr minimum req\lired Drug ilwarene~~ : As il purdy public service project, I haY(! appointed a ta sk force under Charles Fleming 10 find 10 break eS(:row. The officers of the COm l),my are encour· agl'<i by the strong response of the members of the bar. w"y~ that Alabama l:lwy(!rS can help prL'Y(!rll drug abuse through public OlWar'(lness. Every judge iII1d pmctiCinglawAfter N(M!moor 30, 1986, ilnd before January 31, 1989, yer who deals with our criminal courts sayS Iha\ drugs .. re debentures will be so ld for $1,400, and after January 31, Ill\IOlvcd In an overwhelr\\lllg majority of all crime, I..av.oyers 1989, the cost will be $1.500, New admlttees to the bar are peculiarly equipped and knowledgeable to make a can purchase a debenture for $1,250 wi thin 60 days a(ter contribution 10 the crildica tion of drug abuse in our com· admission , munilie~. When called upon, I hope you will help, A policy (orm cannOI be submitted to the State Dep.1rt· Representation in death penalty ca ses: Alabam a has men! of Insurance unlil escrow is broken, but advisors to Cl'v"(!r 80 people on death row, and we hilve a very vrgen t the toml}.1ny state thilt they would expecl the covernge problem 111 that adequate represen tation is not available to be comparable to that offered in the market today.
A
(Coruinued on /lJge 322)
320
November 1988
Executive Director's OUf
T
Report
mail is a mixed bag
he letlcr5 that I receive at bo,r head-
qUMtcrS mc as varied as the writ路 ers. The pcnmanshil) and com路
munication skills f"ngc (rom virluilily iI路
literate to classical. The subie<:t m;l\Ier varies, but usually it focuses on some aspect of the justice SyStem---(lr the system gone wrong In the writer'S view. Some
letters are mildly anlu51ng while others are exercises In frustration-eithcr Ofl the writer' s part or mine In not being able to adequately respond,
Inmatc corrt'Spondcnce comprises {l sisniflc,lnl pOll1 of our m;JiI . Some writers arc merely seeking assist;)nce in obwinIns a copy of 11 transcript or locilting form-
er counsel. Dlhen arC! complaining ilbovt "Ineffective counsel" or "a judge who
didn't give me a fair "ial," or professing complete innocence, These are the easy 0"".'5. The lack of merit in such letters Is usua lly dirl..'clly proportional to the penitential theology wi th whlc;h such letters are laced. I slill lry to answer each leller. I alwilYS am grmeful 10 the Court clerks who patientl y review records to assure I have Ihe true facls before t respond. In Ih05e inst,mces where t do open a line of communic.ltion, I notice shortly thereafter I will get more leners from friends of thilt Inmate. I have become ilware Ihat my letter, in the form of (l ~r association response, restOres some fai th in Ihe correspondent In a system with which he has become dlslliuslor\Nf. Sometimes I have found thaI the inmaIO'S problem indeed has been lost In an over-blrrdcned bureaucracy.
The Alabama Lawyer
The funniest leiter recen tl y recelvNf wa s from one of our constitutional offi cerS len ing me know how much was gained from a con ference "we" at1ended and how meaningfu l such con ferences were. ObviOUsly, a word processor Il.ld digesled an e)(\enslve registration list and was progr,lmmed to share the writer's pleasure at being with those of us Iisll.'tI on il . I had been forced to cancel my plans 10 anend, but only after this regi strants' list was pnnted, SO while thc writer "crl loy(.'(1 being with mc," It must have been a " twin." I did not bother to respond to \hls letter. Some lettcrs from unsuccessful barcreaminccs could be lyrics for a hit country record. I can rC(ali very few, if any, where the Iac;k of success was remotely anributable to the f,lUlt of the applicant (according 10 the leller-writer). You must respond gently to these persons. I usually suggest they ,....al1 themsell/es of the review process before Illin~ their petition for m.1lldMnus or assau lting the creamlners. Mostl>ersons who do objectively rcvlew their efforts learn from their f;jilure ~nd succe~ on a subsequent cream. 1am Ihe lirstto realIze thaI our office is, to a degree, a lightening rod. We try to be sensitive to the fruslration, heartache and dis.lppointment these persons f(!(!1. The leners t really resent arc frOm those students who wilnt me to wri te Iheir term p<lpers or, wo rse stilI. do the research for a law review article or legal studies project. These persons are firm-
HAMNER Iy directed to available resource cen ters and advised we do not do legal research. Real satisfactIon comes when you get results for one looking to the bar as their last resc". II is the lawyers who respond to our requeslS for help who are lhe positive im(lge-buildcrs In these days of lawyer-bashing. A sinsle mother raising two sons wrote, saying how she felt betrayed by thc b..,,,kruptcy system . Her four-page chronology re/Illy "bugg(.'(!" me. For some reason, I bclicvNf every word. (I representNf a former employer ill creditors gatherings while an undergraduate. t recallNf Ihose ellperienccs and understood her predicament) One phone call to a lawyer who specializes In bankruptt:v found a volunteer to reI/lew her record~ and, r hope, achieve the goal for which the bankruptcy system Wil S established. (Camlnucci on ncxt 1',18(.')
321
President's Page (Continued from page 320)
Coverage will be offered only to lawyers who hold debentures, arld de-
bentures must be in the individual name of [h~ law yer. A firm ( an be (;overed if aU of its <irtorncys are insured.
All of the Sllrvey5 of the bilr h~ indicilll.'<l lhilt membership wanll..>d cOV(!r· age available from a ctlptivc company. Those who Intend 10 purchase a deben-
ture and have not done so are urged to
promptly aCI. IO lTA ( Inle rc~t on lawye rs' Trus t A£. counts): The Alabama IOLTA program
has been In effect for over il year, having been approved by, our supreme court on
the recommendation of the Board of Commissioners of the Al abama Stale Bar. This plan permit; dient trust accoun ts to
Report (Cominued from P<Jgc 321)
The aged mOlher of arl inmtlte, who was his sole remaining ad\lOcate, w rote and painted a frigh tenIng picture of small-town law enforcement. A sheriff was said to have used his position to frame her son In J suspected "triangle affai r:' I did not W\lnt 10 think such could h<lppen, but a call to a lawyer in the town indica too the wri ter's concern irldced might be real. That attorney could not get Inv(Jlvcd in th e milller, but Mother lawyer I con tacted a significant distance away had, to my suq)rise, also heard of oth er reports of <lbuse by the sheriff. He continues to pursue the case today. The l{ldy had no funds- this lawyer {lskcd for none. Genealogists frequen tly seck Information on relatlve~ thought to have practiced law In Alabama. These persons am referred to thl! Departml!nt o( Archives and History where the flies of deceased bar members are kept. The most disap" pointing Icuers Me from persons (i(MIyers included) who make general allegations of professional misconduct, but "do !lOt wilnt lO get involved." Lately, hea lth profession<lts have been writing to complaIn
J22
C(lrn interest which is paid to the Ala-
bamil Oar Foundation. The pliln applies only to those ilC(tlunt$ where 11 would be impracticable to compu te and pay Interest to the client. 1\11 01 the states txCel)t two have similar plans. As of this wri ting. 45 pcrcenl of eligible Alabama l'lw yers are particip;lting in IOLTA and O\t'er $175.000 has been mlsed for charitable ilnd educiltlonill purposeS. The trU5tees of the Alabama Law Foundation will desiHnlltl! specifiC beneficiaries under the guld('lInes sct down by the supreme court. UrwycI'S who participate hll\le no bookkcciling requirement> or coMs. The bank does all of thi s (lnd remits the Interest dire<:tly to the founda tion. Since lawyers cannot use trust flfTld s in determining compl'nSlltlr18 balarlces at a bank or r(!Ceive Interest on trust funds themselves, there Is no downside to participation. It Is an effortless way to provide funds for good works.
of rude conduct on th e part of a bar member. In moSt of these instances better manncrs on both ~ides v.ould have allevIated the need to writc such tellers. The lelters expressing pleasure with legal services or court proceedings <1 15(1 come. These are the best of all. Also, It is great fun to gel letter.; commending SOme (Jmpl~ofthe bar for a job well done; these are frequent and deserved. Unpleasant, hO\NC\lCr, arc those who look to the bM as thl' "(ourt of la~t resort" in chitd custody CilseS. like you, our mall bag contains solidI<Itlons for every Item or service thaI a
SMALL FIRM SOFIWARE FO" fBM pc" AND COMJI'AT!'US
o $!i9 ' o $99' o $1711'
TrMI& .!LUNO T~U$ r
AOCOUNlrNG
r N f(OItAT~DTr "' .
tlllrNO& T ~UIT "'01. rn!OI .... !~ 'Add 15 N."dllII~
"""*'
0 F, "
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iI"OOI'O"" ... .o 10 _ I I . 'IfNI.1 _II'\' win "".. II'IOm ...... r"ll '" _
~
Foldl ities: If you have \lisl ted the state bar headqutir1CiS r'CC(!ntly you have found tha t we arc bursting at the >earns. The b.lr membershfl) has more than doubted since our present building wa s constructed, and our membership servicC$ h<JVe inCrf.lilsed in an even greater proportion. Our Heneral counsel and staff arc locatt.>d over a mile from Ihe headquarters, causing a mal Incorwenlence and lack of efficiency. Expansion plans for the he<ldqu<lMers bUilding are being formulat{.>d, and former Pre5ident 6111 Hilimon Is chairing the t<lsk force overseeing the project. An <lrchitect has been selected, lind we are hopeful that a lurld-rals·ng effort can begIn soon. There arc many. many other outstandIng projects ongoing in your b<lr, but Sp;lce does not permit discussion of them here. I hope you will suppOrt all of Ihese good works by the volunteer members of our bar. •
lawyer, law firm or association could uSC. I am encourllgcd by rhose who write Ihe bar sMkin g help (M!fI though we cannot always respond, or respond as they would have hoped . In SOrne IIIStarleels. \W gain pen pals who reaffi rm Ihe cxpr(!ssl on "no good dced goes unpunished." It is gratifying thai our 1)." association is slill \liewed as a r~ponsl\l(! entily •.md SOu rce of inform"tion. Even though we rCC@!W far more letters from I>crsons wi th real or perceived problems, we chuckle al ones like tha t from a recen t unsuccessful carlcllda te th~nking us for a contribution we did not make tOWilrd retirement oi his camp<JIgn debt, followed the next week with anOlher letter apologizing for thilnking us and blaming the goof On anothl:r word processor "gone mad." So, "keep Ihose cMds and IClle'" coming (olks." They certainly make life Interesting and help us (ulfl ll our public responsibility. A friend, In rceOUill illS Napoleon's milil handling procedure, nott,>Q thllt N(lpoleon rePlltedly left (III lettcrs unopened for six months after whi ch he found 90 percent of the problems had solved them sel ves. It was nOted IhM the only problem With thi s procedure lay In the (ilCt one had to be Napoleon to solve Ihe remaining 10 percent. • November 1988
About Members, Among Firms ABOUT MEMBERS
The firm of Beasll..-y, Wilson, Allen
C. R()(i1("y KIl..-edehn ,mnounces the rclOCJlioil of hb office 10 711 H Street, Suite 610, Ar\chorJgc, Alnsk.1 99501. !'hone (907) 276·6700.
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William C. Daniel announce<; the 01)(:nln8 of o(flccs at Suite 2G, lyric Squllre, Anni ston, Alabama 36201. Phone (205) 236-8099.
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Andrew H. McElroy, III, ;Jnnounces the relocation of his ofiice 10 Commerce Cerller, Suire 10lD, 2027 Fif1il AV('nuc, Nonh, Blrminghllnl, Ala· b,lma. Phone (20S) 328·2669.
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H;m ), I . Maring announces the opening or hi~ office at 3940 Mont· d,lir ROile, Suite 302, Birminghilm, AI,rD;lma 35213. Phone 120S1 870-
7300.
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Gary L Blume announces the rcmOVi1I of his office to 2300 E.l,t Uni· versi ty Boulevard, TUSCillooSiI, Alobilma 35404· 4 136. Phone (205) 556·
6712.
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Clifford M. Sptnccr, Jr.,
.1!UlOll!1CCS
Ihe opening of his office.1I 1010 COIllmerce Cetller, 2027 First Avenue, North, Birmingham, AlabJlllo 35203. Phont' (205) 322-4477.
AMONG FIRMS Peter F, Burn~ nnd Peter S, Mackey ;mnounce the forma tion of:t pMtnership undel the name of Burns & Mackey, and Randall W, Nichols will be associJtcd with the firm. O(fict ,~ are located at 50 St. Emonuel Street, P.O. Bo!\! 1583, Mobile, Alab,una. Phone (2051 432-0612 .
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The firm of Powell, Tall y & Frederick ill1d Ann C. Robertson, of counsel. announce the remov;tl of their offices to Suill' 700, The New Sol,lth FtoQt-r,ll Building at 2100 First Avenue, North, Birmln!!ham, Alaball1.l 35203, dfcelive August 1, 1988. Phonc (205) 324· 4996.
& MendelSOhn, P.C. announces lh1ll
Mays R, lemlson hus become of coun sel to the firm, with omces at
IOlh Floor, Bell Bulldin& 207 Monlgomery Slfeel, P.O. Bo!\! 4160, Montgomery, Alabama 36103-4160. Phone (205) 269-2343.
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5toke:s & McAtee announces Ihat Harry B. Bailey, IU, Is 1lO'N oIssoclalcd with the film , cfft'Ctive June- 1, 198B. Officc~ arc IOCJted .1t 160 Con!!ress Street, Mobile, AL1bamJ 36603.
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Spain, Gilion, T~te, Grooms & Blan announces Ihat Harold H. Going5 has joined the firm ,I~ a Ihlrtner, and thilt Maston E. Marlill, Ir., ami Paul S. IL-onant have becllille ;modatcd with Ihe firm. Office~ arc IOColt['(! al Thc Zhhzer Building, 2117 SI.'(ond AvelIue, Nonh, Birmln8h,1In, AI;)bJnla 35203. Phone (205) 328-4100.
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Hill, Hill, Cart~r, Franco, Cole &Black iUlIlO\U1CI:! tl11Ithl!Y hiM' fortnL,d iI professional corporation in Ihe mime of Hill, Hili, Carter, Franco, Colt' & Black, P.e., and Ihat ludkins M. Bryan, Charles A. Siewart, III, i1nd Mark A, Fr.u'ICo have become members of the ftrm, ard Edwin C. Glover has become assoc ated wilh the firm, eff('Clive July 1, 1988. OffiCt.~ arc 10cale-d al 5t.'1:ond Floor, 11111 Building, Montgomery, Alabilnl,1 36195. Phorlc (205) 834-7600.
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Capauano, Wantl)()ld, Prestwood & Sansone, P.A. anno unces Ihilt Joseph N. Poole, III, formerly judge of lhl' dlwici court, BUller Counly, Alab..lmJ, has becoml'.:In a~sodatc with the firm. Offices ~re located ,II 350 Adams Avenue, P.O. 80)( 1910, Monl· ftonlery, Alab.lma 36102 . Phonl' (205) 264-6401.
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Charles W. WQodh,1Il1 i1nd Mary Fisher Gunter JIl'lounce Ihe forma·
tion of iI profQSSlonal corporation un· dC!r the nam!.' of Woodham &- Gunter, P.e., cffL><:ti'-1! October 1, 1988. Offices arc IOCatL>d ,It 113 Kirkl~nd Strcct, Abbeville, Alabama 36310. Phone (205) 585-5687.
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I. Mark While, C. Burton Dunn and Will M. Booker, Jr., announce Ihe formation of their firm , under Ihe n;'lnle of While, Dunn &- Booker. Offill'S arc localed ilt 1200 1st Alabama B,1I1k Building.. BlrminBham, Alal>Olma 35203. Phone (205) 323-1688.
• The! firms of Herbert Rubenstein & Associates, P,c', lOng & Long. P,A, ond Clcwland Thornion announce the merge!r of their firms under the name of Rubenstein & Thornton, P,C. The Arm will malnlain olfices In Washington, D.C.; Fairfa!\!, Virginia; Bethesda, Maryland; Risho'l Le Zion, l~fiIel ; and Pilfi s, France.
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Michael 8. 81.'Cfl, Jeffrey W. Smith, lames H. Andel'Slln i1nc! Mich,lcl S. Jackson announce Ihe fOrrTl,ltion of B ~rs, Anderson, Iilckson & Smith, p.c., effective luly 1, 1988. Offices Jre locJled Jt fOlbcs-Udell Building.. SUite 210, 2n Commerce Strcct, Montgomery, AlabamJ 36104. Phone :205) 8345311.
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Dayis S. Neel, Jr" recen tly was n~llled compli,lIlce officer for Cenlr,ll Bank of the South's Irwl'Stment Banking Diyision. A liylngston n,llivc, Neel is a cum laude graduate of Auburn UniversilY and the Cumber1~lld School of LlW. Prior to his CUrfent p(l$ition, Neel was with Black &. Mar· gan AlIornL~.
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Parker, Couiler, Dilley & While of Boslon i1nnounces Ihat Slephen J. Flynn has joined Ihe firm a. In 0550dille. Flynn, a native of Mobile, was
November 1988
pre~id('nt of the Mobile firm of Flynn &. I lut"(. I lels.l 1977 graduate of the UniVl!f'oily of Alab~l ma School of law,
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The (Inn of Morring. Schrimsher &1 Ril c.'Y a nnou n ce~ th,lt J. Mark Greer has Iwcome J~SOd.1!t'd with Ihe firm. Offi <;es inC loe.l!L'C at 11 7 Cllnlon AV(.,nu ~, E.I~t , HUI1IWillc, AIJbam<1.
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Th(' firm of Miglionico & Rumore ,mnounc~ its r('loe.lI100 to 1230 Brown M,lfX TCM'('~ Birmingham, Ala· bamil )5203. Phone (205) 323·8957.
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David Ge spil ~S ilnd K.ll hlecn M. lohnson anllOllllt(' thilt Richilrd l u i h.15 joil1ed their practke, ilnd they hil\l(' formed the firm of Ge~I)lJ SS, lohnson & Izzi. Oinces are located at 3600 Clairmont Avenue, P.O. Box 5502 42, Birmingh a m. Alabam.l 35255. Phont' (205) 323-5966.
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Bruce M. Green .mel l.1mes C. Pino announce Ih;"\t E,lJon Mitchell is no longer wi th the firm, "nel thc firm Ilame has bQen cil;IIlK<.>d 10 Green & Pino, P.c., with otfices .11 Suite 205, Shel by Med ical CcrHor Building, Ala· bJster, Alab.lm.l 35007. Phone (205) &63·1561.
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C.lrlton M . lohnson, lr., <lnnounc~ his ilso;oc;lalion wilh the Pensacol." Floml;l, firm of Smith, S.lucr & Walk· er, P.A., P.O. 8m. 12446, PcnSdcolJ, Florid" 32582·2446, and his admis· sion to The rlorida Bar. Phone (904) 434·276 1.
Ihat tht' firm ha~ f\'IOClted ib offices to Suite 535, 2()Q()...\ SoulhnriciKt' Parkw.1y. 81f01In8h,lm. AI .. b,lma 35209. Phone (205) 879·3033.
Quintan:1 TO\\1.'r, 1130 QulnlJld A'If}nue, P.O. Bo~ 2644, An1i~tOIl, Alab.ll'l'lil 36202. Phone (205) 2]8·8356.
The fi rm of Johnston. Barton, Proc· tor, Swt.-dlaw &. Naif Jnnounce) th,lt Allee Higdon Prater, formerly Judld.ll derk to Hon. lames H. Hancock, Unitl>cl Stilte5 District Court, Northern District of AIJbilmJ, hJ~ joined the firm ,l~ an a~sociate. Of(jce~ arc loe.l· ted al 1100 Park Place lower, Blrmmgham, Alabama 3520] Phon{' (205) 322.Q616.
KJrI W. leo announces the a~soci· Jlion of lesley or.l ekin wl1h the firm of leo & Assod atl!s. Qffii,.c) arc Joe.lled at 100 Washington Street, Suite 302, H un l ~ville, Al'lbam<l 35801. PhOnt' (205) 539·6000.
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Earle F. L15seler, fotmt:!riy with the ]udg(' AdYOCilte Gcnera l '~ Corpo;, Unit· ed S t olttl~ Army, ;lIld IlOW a~~odJIt'd with Ihe fi rm of Pope, KellOK& Me· Glamry, Kilpalrick & Morrison, of Atlanla and ColumbUl, Georgi'], ~ cenlly w,]~ elcclt'tl <;(!("'f{'tJry of rhe Section of General Practice of the Am{'ricJn Bar AS!.OCia·ion ,1t the In. nual mt't'ljn8 held in Toronto. Canildil, L:l~'>{'ler Il!"tired from the Unitt.>d St,Ut'S Army with the rank of Colonel In j,II1' uary of 1986 ilnd Joined the firm ilS
.m
as~od ilte.
•
H. OMden Williams Jild Thom.l5 W. Hafillon ilrlI\Oun~e Willi.lIll 8. HardeKree has become il partner of the firm. The firm will C(lntlllllC in the n.1me of WiUi<lms, lIaMlOn & lI.ude-Sf('('. Offices arc loe.l1oo at Surf(' 403,
•
I. Friedlll<IO, P.e., announc· es tlMt Mary Neal Reynolds, formerly wi th the U.s. At tnrnt>y-S Office, has bc<ome assod,ltL'Cl with the firm, anel OoIlKhl~
The Alabama Lal'vYCf
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Burr & Forman announcc\ thai l. Tenn(-nl lee, III, lohn W. Evans ilnd S. 0"8nal Rowe hrrvc become partners in Burr & Form,in, with the I lunlwllle o({tces of the flmlloc.l ted ~ t Regency Center, Suite 204, 400 Merldiiln Sireet, tl unlsyi!le, A I ~bl!llol 3580 1. Phone (205) 55 1·0010. The Hirming· ham office" are located OIl )000 South· Trust T~r, Birmingl1.ln, AlaOamil 35203. Phone (205) 25 1·3000. Burr & Forman ,11-;0 ilnnounces thai Sue A. Willis; Gene T. Prit'e; Orion G. Callison, III; leffrey T. Baker; Paul T. Bolus; David A. Elliott; William S. Hereford; Parkt'Y O. lordiln; lill V. Wood; ilnd Gary W. Foltris hJYC become associllwd with the firm in the 81rml1l8ham offict,.
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P,ltrick I. Gustin <lnel Lury E. Smith announce they have formt'd a I),lrtn(,rship, effective April 15, 1988. The of. fiee mailing addll'~s h P.O. Box 729, jasper, AlilbJrlla 3S502..()729.
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Dllvid B. Blank(!nship, Charles G. Robinson J ild Dinah P. Rhodes (Innou nce Ihe formation of a profe~sion ill corpor,lIion for the practlee of law unci!.'r the nilme of Blankenship &. Robinson. wilh of·lces to remain at 229 Eil~ t Side S<W"r(', Hurllsville, AI,lb.1ma 35801. I'hone (205) 536·7474.
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Richard Wilson & Associates Reg istered Professio nal Co urt Repo rters 17 Mildred Street Mo ntgome ry, Alabama 36104
264-6433
Glidewell & Assoclat <.'S alln{lu n ce~ thar Dell Rollins has joln('(1 the firm, with offices located at Sult(> 415, \1I n Anlwerp Bu ilding, 103 D,lUl)hin Slreet, Mobile, AI.lbama 36602. Pholle (205) 432·]868.
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The firm of MMy Beth Manlillly amlounc{'s thill 'ulia L. Christie and C. l ynn Chri~ lie have becol'ne aS$()o dated, with OffiCL'S ,1t 161 COllti Stt<.>et, 1'.0. Box 898, M obile, Alnl),lma 36601. phone (205) '13J-3544.
325
Bar Briefs Pointer and Wells appointed to posts in ABA Section of litigation Judge 5rtm C. Pointer, Jr., Clnd Birming" ham auomey H. Thomas ~lIs h(lve been named to posts In the American Bar Associlllion's Section of litigation, Pointer was appointed co-chairperson of the Comminee on liaison with the Ju路
dici,lrY for the ABA's Section of lilig;ltlon. He Is chief Judge of the United Stales District Court for the Norlhern District
of Alabama. He received his law degree from the University of Alabama in 1957 and is a gr,l(;h1ilte of New York University. Pointer just completed a term as member of the Litigation Section Counci l, its governing body. Wells was ilPpointed ch(llrperson of the Environmental Litiga tion Commi\!(..'e. He curren tly is a member of the ABA Standing Corrll'niu~ on Environmental law and has ~n a member of the Standing Commlttcc on Professional Discipline. He Is a partner In the nrm of Maynard, Cooper, Frierson & GOlle. and previously served as vice-chOlirperson of the committee. Well s received his law degree from the University of Alab<lma in 1975 <Inc! \mdergraduate degree In 1972.
"ACCESS TO JUSTICE" them e for law Day U.S.A, 1989 The purpose of Law Day U.S.A., cel. Imnulllly On May 1, i ~ 10 reserve a "special day of celebraTion by the American poople in appreciation of their liberties and to provide arl occasion for rededi cation to the Ideals of equality and justi ce under laws." I..'IW Day U.S.A, WOlS est;lblished by United States Presidential cbrat~
326
Proclamation in 1958 ,wd reaffirmed by a Joint Resolution of Congr~s In 1961. The 1989 theme encourages Low Day program and event planners to direct their efforts toward increasing ')6,CCESS TO JUSTICE" for all"AmeriCMS and urges all dtilens to become beller informed aboUT the legal System . State and local bar associ;ltions, libraries, community org~ni7.ations, school s, churches, law enforcement agem;ies, serviCE! clubs, legal auxiliaries and scouting Ofganl2atlorl S are ~r"I'Ion8 the many groUI)Ssponsorl "8 L1W Day U.S.A. programs and events. Tr.e events are num路 erous and varied, ran ging from no-cost legal cOrl sultaTiuns, mo<:k Trial ~ <:01'1ducted In schools, court ceremonl~ and poster and essay contests to television and radi o ca ll-in programs. Recent progr;lms h~ Included coordination with sponsors of local campaigns ilgainSt drunk <lriving. O\Jtfflilch progrilms to senior cltizeJls <Uld comrnuJllty 1)11111dlhltion in di spute resolution programs. The Ameri<:an Bar Asso<:iation, a$ thc national sponsor of Law Day U.S.A., prepares a detailed planning guide to assist Individuals find organlZillions conducting Law Day programs. In addition, the ABA makes available many reasondbly priced promotiona l Jnd e<lucatlonatlinformational material$, ranging from buttons and ballOOnSTOleaflets, bf()(hures, booklets, speech texts and mock Trial scripts. To learn more about Law Day U.S.A., wlltc for a copy of the l ........ Day Plilrlnlng Guide: Law Day U.S.A., American Bar Association, 6th Floor, 750 North Lake Shore Drive, Chicilgtl, IL 60611, or Telephone (312) 988-6134. (Th planning guide will be ready for mailing in late January.)
Torbert to teac h at UA law Schoo l
c.c. Torbert, chief justi ce of the Supreme Court of Alabama, will tetl C"h m Ihe Universi ty of Alab,lma School of Law IleKt fall as holder of the SI)arkman Chai r of Law, Ntllhilniel Han$fl)rd, dean of the liM' school, announced. Torbert plilns to retire from the Alabama Supreme COurt and Is rIot seeking re-electiun Ihis Novcmber. The Sparkman Chair, establi shed in honOr of former Alabariln Senator John J. Sp..lrkman, is held by a distingui shed vi Siting professor of law eilch year, Torbert took o(fice as the 25th chief Justice of the Alab;lma Supreme Court in January 1977 and was re-electoo w iThOUT opposition for a second siK-year term beginning in 1983. Torbert carned his undergraduate de路 gree at Auburn Univcrsity in 19S1 and his law degree al UA in 1954. l'le practiced law in Opelika from 1954-1977. His I)ubllc career began when he wa s elected to thc Atabarna legislature in t958 as a representative from Lee County. He was designated by the Cal)itol Press Corps as "the most outstandi ng freshman legislator" in 1959. In 1966 he was elected to the Alill,..,mil Stilte Senate representing Lee, Chambers and Randolph counties and in 1974 representing Lee, Chambers, Ru ssell and Barbour counties. I'le wa s designated "most effective senator" by the Capitol Press Corps Itl 1969. During his legislaTive tenure, Torbert seM.>d as chairperson of the Joint Highway COrnnlltl~, chillrpcrson of the Joint Committee on Code Rcvi.ion and vicechairperson of the Senilte Finilnce and Ta)(3 tl on Committee. He also was a memo ber of the Citizens' Conference on AlabOlm .... State Courts.
NO 路lemlit.>, 1988
As chief Justice, TOrOOrtlS chairperson of the Slate Justice Institute, chairperson of the Alabama Judicial Study Commls~ion, paSt president of the Conference of Chief Justices, paslchalrperson of the NiItlonal Center lOr State Courts and a member of the American Judicature Society. He was elected to the Alabama academy of Honor In 1979 and w.lS awarded an honorary Doctor of Laws dcgn.'C by Troy State University In 1985. Denson elected to American College of Trial L1wyers Ol)clikil IlUorncy John V. Denson, a partoN In thc firm of Samford, Denson, HorsIL'Y, Pettl'y, Mlrtin & Bilrrelt for 28 years, was inducted into the Amerlcnn CoUcge of Trial Uwycrs. EKecutive Director Robert A. Young said allorneys tapl)C(j fOr this honor "are considered 10 be h Ihc 101) 1 percenl o( lheir professioo, ard the association docs not ildmll more thnn 1 l)crCenl of any stale's lawycr populatlon. Nationwide, al)proKlmately 4,400 011torneys, less Ihan 7S of which arc from Alabama, are members of thc organization. H
late Auburn foolbAll coac;h. He was reappoimed by Gov. Guy Hunt In 198710 serve a 12~ar term or Ihe board of Irust~. He is a 1958 g,.duatc of Auburn UnlYersity and earned a law degree from the University of Alabama In 1960.
Proctor named chairpcrson-elect of ABA committee James M. Proclor, II, of Birminghilm 15 chillrperson-elecl of Iht! Commercial Torts Committee of the Tori and Insurance Practice SeClion of the American Bar Association for the 1988-89 bar year. Proctor Is an assoclale of Mayn3fd, Cooper, Frierson and Gale. A graduate of the University of Alilbama, he rccel\1!d hl5 J.D. In 1984. He also hilSscM.'d OIl vice-chairperson of the Commerciill Torts Commlnee i1nd chairperson of the Sub-Committee on Securities Regulation. The Tort and Insurance Pr;!Clice Section 15 one of Ihe largest and oldest sec· tions 01 the Arlleric;!n Bar Association. Its 30,000 members represent bolh plaintiffs and defendants. law professors, ludges and counsel (0( insurance, trarlsportatiorl and other Interested corpora tions.
Ogle elected to board of directors. American Judicature Societ y Richard F. Oglc, " partner with the Birminghilm firm of 5choel, Ogle, Benlon, Gentle and Centeno, recently WilS elccted to the 1988-1989 American Judica ture Society Bo.lrd of Directors. He Is among 4S new members elected at Ihe Society' 751h annl~r5<.lry mcetin& OIl which formt.'f United StaleS Supreme Court Assoclale Justice lewiSF. 1'cM'e11an AjS member fOf SO ~ars-spokc. A graduate of thl! University of Alabama law School, Ogle Is a member of the Alnbama L.1W Institute, the Alabama Stille and Blrmlnllham bar assoclation5, Ihe American Trial LDwycrs Assoclalion and the Americ{m Judicature 5oclmy. He serves as an editoriill consultilnt to Mal· thew Bender ,mel COml)any i1nd lectures at the Alab.lmil LiM' Institute for Continuing Legal Educmion and was a former national president 01 Pi Kappa Alpha and president of Its memorial foundation. Founded in 1913, the American Judicature Society Is a nationallndcpcndent org.lnizalion of more than 20,000 citi· zens working to ImpreNe the nation'~ Justice 5y:ilem. •
Continuing legal Education Reminder 1988 CLE Tran scripts Were Mai led The Middle Of November. Denson Denson has served as a member of the Auburn University Board of Trustees since 1980, when he was selecled to 011 the un~pired term of Ralph Jordan, the
The Alabama Lawyer
All CLE Cred its Mu st Be Ea rn ed By December 31, 1988. All CLE Transcripts Mu st Be Received By January 31, 1989.
327
Building Alabama's Courthouses by Samuel A, Rumore, jr,
The following conllnuC!S a history of Ala-
bama's counly courthouses-Ihelr origins and some of the people who contribute<! 10 their growth. The Alabama Lawyer plans to run onc counly'S story in each issue of the maga7.inc. If you have any pho log raph ~ of carly or preSc nt courtho uses, please forward them 10: Samuel A. Rumore, Jr. MigJionico & Rumore 1230 Brown Marx TO\'oIf'r
Birmingham. Alabama 35203
Marshall County Marshall County was establi shed in January 1836 frortl portions of Blount and Jackson counries and lands obtained by the United States from the Cherokee In路 diilns. The cOllnty wa s named (or Chief Justi ce John Marshall who died in 1835. The fi rst white miln to <;eule in the arCi! that is now Marshall County was John Gunter. t-ie wa s \lither il Wt!lshmiln or il Scot ~m<lr'\ who mlgr<JIcd from Ih~ Carolinas. He eventually seuleet at the southern-most point on the Terlilessee River In 1785 where he had discovered a sale deposit . Gunter traded with the Indirms, One day a local Cherokee chief broughl his beautiful 15~~r-()ld dilughtcr to exchimgc for Gunter'$ salt. Gunter 'lgreed, took the girl as h s bride ilnd I;hilnK(.'t! her Indian nam~ to Kathf'rrrll'. The chii;'f ,md Gunter, now his son-In-law, signed a treaty whereby the Indians could 11Ilvc salt Nas long as the grass grO'NS .1nd the waters flO'N." John <lnd K;lIherine had seven children. AI the time of his death in 1835 he had become 11 wealrhy iand()Wnl,!r and a p!,!rson of grcatlnfluence in Ih~ are" because of his ti(! s to both th e white and Indian
328
a
I;ommunities. One his daughters, EIi7.. .100th, mMriL>d Milrtln Schrimsher. Their daughter, MJry, married Clem Vann Rogers. One of their 8ran(bon~ wa~ namL>d Will. He died rn a plane cra~h rn 1935, e)(,}ctly lOa years after the death of his great-great-grand1'atl路er, John Glinter, The name of the settlement tha t grew up MOllncl Gunter's trading I>ost W<1~ (illIl,>d Glimer's l.iinding. It was loc.lted on the south l).lnk of the Tennesst'e River. Wherl M:.r~h<ll l County wa~ e~ t<1b1i~h(.>d, the communi ty corlsisted of no more than 20 houses, a f{!o\l storcs and d 1,lrHe w.lrchouse, The legislativc act creating Marshall County called for an elcclion where the voters VIIOuld choose 1 1)(:~ir county ~;:tt . The votes were tallied as follow~: elln ' ter'S L.l nding- 133; Gvnter's-146; SQuth side of the Tennessee River- I; Gunter's Store-4; GUnierS Warehousc-7; John Guntcr's- 116; north side o( river- I; Warrenton - I; alld Claysvillc- 282 . The voters who cast their ballots for Ihe "Gunter's" choices Ihought they were voting for the 5(1me place, However, the election o((jcials ruled that they could not add those vo tes together, and they
determined that Claysvll e received the most vol es. 50 ClaYSVille earned the dis路 tinction of being the first county seilt of Marshilll County. It wa s nam('>d for Henry Clay ;md located on the north side of the river, approximately on!) :lIld One-hl'llf miles from Gunter's Landing. By late 1838 a great number of pco1)le were complaining about the iocation of the county seat. Two-thirds of the VQters in the county had to pay ferry charges to cross the rivcr!O conduct their bus ine~s (It the courthouse. The Legislature passed an act calling for dnother dL'Clion to choose the county scat. A committe<! of cllliens wa s il l)pointed to selcct one site on each side o( the Tennessee River for the vote. Claysville on the north side and an area near Gunter's landing. c~lIed Marshall. on the ~o(lIh side were the sites sele<itcd, Mar;h,lll won by a large majority and ~l'rVL>d d~ th e county SCiit from 1836 10 1841. COllrt~ WCn! held in Milrshall in the loft of ,,11 old gin , This wii Sthl! only building large enough to hold allY 112e cr'CI'MI. The jail for the county was a log building wllh d wc;lk wooden roof, It \\oilS reported by one .lcr00nt that in M;mhall County it Wil~ hilrd to gel inlo jilil but easy to leil'/C, In one of the CilrJy trial s a convicted murderer wih sct frcL' by the court; three Ii:!s~cr crimlr\al~ were put 11'1 jail arld pronll)tly escal>Cd. At thi~ time in Alabama history, the l egislillure seemed to be preoccupied with the Marshall County Courthouse siluatlon. 011 Dec~mber 22, 1840, il lhlSsed another law calling for four election s to definitely decide th e site of the county scat. All vote~ had th e rl gntto nominulc ilny place in the county. In the fi rst election the lOp vote-getters were W,lrfcnton, White I-louse, Claysville and Beard's Bluff. In Ihe second elcctloll, Beard's Bluff wa s ellminilted. In the third ~Iec-
November 1988
Allxmv/lle lion Claysville wa~ ellmlnmed, And, In the final \!Ole, W.wrenlon W<lS dedared Ihe winner, W.menlon was a booming village on Ihe south side of Ihe ri~r al)pro~im;lIe颅 Iy five miles wesl of Marshall. II frame house W<lS rented for the courl. Though holding COUrt in a house waS Inconvenient, It W<lS a great improvemenl oYer Ihe old gin at Marshall. However, Ihe issue of the courlhouse was not laid to res!, M.lny cilizens were not s<1tisfied Ihal W,lrrenton had fairly won the election. On January 31, 16"6, the Legislature passed another act c"l1路 ing for "n election. The Issue W;lS to be "removal" Or "no removal" of the coutt路 house. If thc vote W.1S for "no remO'.'at," then thc commissioners wcre to It.... y a ta~ to build a courthouse In Warrenton, If the people VOted for "remO'l.ll," another election would be held. True to form, the residents \!Oted for no new taJCes as they voted 10 remove the courthouse, For this next e le<;tion new IllWS ~re passed setting (crt"in ground rules. Anyone caught voting illegally could be pro~uted. AIS(), on february 3, 1848, the ~15lature IncorporOltcd the lown of Guntersville. Thls new city included Gunter's landing and White House. It was hoped that nil intended ~tes for this areil now would be counted. Four sites
The Alabama lawyer
Curl/eNville were sele<;tcd for the \lOtI!, but after an eliminative election, the two nomlnl.'Cs 'M!1'e Warrenton and Gu!l\crs ... ille. As one c.,n see, tht: selection of Ihe county seat was the political issue in the early days of Marshall County. One 01> server noted that, "Every man, woman, and weaned child did nothing but talk of this hot 15Sue.~ In the 1846 campail91 for the Marshall County Courthouse, lhe promoters of W,lffcnlon stated thaI if lhe courthouse were remCM!d, their jail. which had COSt
$2,500, would have to be abandoned and, lhus, would cost the county more money. Citizens of Gunters ... ille countercd by pledging 10 build a new jail f~ of charge to the county. Warrenton then "upped Ihe 1Inl((' by declaring that it would build a court路 house at Its own expense If it wert! chosen. Residents of Guntelwille said they would build a new courthouse and a new Jail. Gunlcrs ... llie W.lS determined to win the el lion, built appeared to lack 1he necessary votes.
Samuel A. Rumore,lr., Is a gr,lduMe of the University of Notre Dame and the University of A/ab.!ma School of Law. He served as foundln8 chairman of Ihe Alabama St.ltc Bar's Family Llw Section and Is In praclfc@ In Birmingham wlfh Ihe firm of Mislionlco & Rumore.
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In 1647, Captain James M. lee set Out for the Mexican war with a company of young men from the Guniersville area, At Ihe tlnle of lhe courlhouse election, they vvcre returning home and, at last report, had adVJnced as filr as Selma, The question In everyone's mind wa s whether they would rel urn in time to \IOte in the election. Before Ihe \IOth\S endlXl on election day a bugle sounded, banners were flying and the Mexican W;J.r veter· ans rOde imo town. II was reported that every one of them voted for Guntersville. Whether Ihese votes decided the elec· tion Is unknov.n, but Guntersville did win and became the county seoill in 1646. The first courthouse In Guntersville wa s a log building constructed Ilear the river. In January 1865, Guntersville wa s bombtJrded by ledefJI artillery, and every building but seven wa s des troyed. The courthouse was burned to the ground. It W,l S five years before the county hJd recovered sufficiently (rom the war to construct a new courthou se. An oblong "square" of land was obtainl,.>d In the center of the rebuilt town . A lWO·SlOry brick Courlhouse 'N(lS constructlod costlns $9,996. It was 56 feet long ,1I1d 43 feCi wide. The second level wa s rea ched by two stilifWays In the front which led to
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the se<:ond·nOOr balcony Ihal ~rlooked the court squilre. Thi s courthou se Wil S torn down in AI.lgust 1895 ~placoo by a larger ilnr;! more elaborate building that cos t $20,000. The nl'W courthouse Wil Scom· pleted in 1896. II conslstlXl of three stories wi th a soaflllg flve-slory tOVo'Cr. This courthouse wa s a beilu tifut ellample o( the Romanesque Revival style that wa s popular In the latc 19th century (or public buildings.
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The Romanesque character of the buitding was changed in t93 5 when the structure wa s c~ ten sively remodeled ilntj enlllrgecf. LMcr, in 1946. a $100,000 ilnnex wa s added. A further modernization of the stru cture brought it to its present appearance In 1963. The story of th e Marshall COU!\ty Courthouse took ~ nother twi st in 1909. In that year the Ll:!8islature pas!'.ed a local act 'lilowing separate COurt facilities to be built in Aibertvlll~. Th e reason can be blamed on "M other Nature." Even though Guntersville WilS on th e SOuthern bilnk of the Tennessee RiYer, the back w.l1crs from the river during the raIny season cau sed flooding whi ch dlvldlXl Marshall COunty into northern and southern portions. The major com· munllies in the Ilorlhern portion were Guntersville and Arab, The cities if1 the southern section v.ere Albertville and 60a-t . Al so, the rural roads from 5and Mountain were nOI very good. 8ecaui;(! of tht! hiStorical dissa ti sfaction of Marshilll County residents with the loca tion of their courthouse, Ihe clilu:ns o( the southern ponlon persuilded the
Legislature (0 give them dleir own fad li· ty. All ' <lo ses rising In th<ll area would be heard In Albertville. Thi s ci ty wa s named for ThorllaSA. Albert, a pioneer resident who had come to the area (rom Georgiil in the 1850s. CourtSwere first held in Albertvill e in a tw(r-story building on North M<lin Street. The present Albertville Court· house W,lS constrUCled dutlng 1910·11. ExtensiV(! repairs arId r'enovatl olls look place In 1935. Court sessions now are held In both Guntersville Qnd Albertville. The circuit clerk maintains an offi ce in both places. Attempts were made in 197;1 to consid· er consolidating th e I\NO courthou ses into one modern facility because flood ing is no longer a problem In the area due to the Tenn essee V,llley Authority mId (2) bf!(;'I u ~1il the tWO court ~ou ses are less than 20 miles apart and connected by U.S. Highway 431.
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liInd WJ S I>urchilsed 0'1 the southern end of Gunteflvllle, t('Mf~ rd AlbertviUe, with a viC'N 10 construc ti rl8 new county buildings. This effort cilused quite an l!pr(w . A grQUp of ci tilen, filed "lawsuit to kl'CP the courthouse in the center of G untersville. A Stil le law \'I,lS d i~coverl:.d that a COurthOuse could I10t be built out· side the original corpol'ilte lim its of the town as they exi sted wh en the COurt· house WJ S (irst constructed . Also, there was opposition from the residents o f AI· bertville to ci oslng thclr ONn courthouse bUilding. The lawsuit wa s dropped In 1975, ilnd no illtempt has been made 10 alter th e dual courthouse statu s quo since that time. •
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Riding the Circuits Pike County Bar Association
ship dues were established to be payable yearly, in advance, on September 1 of each yl!ar. All members of the Pike
The Pike County Bar Associa!ion mel Thursday Augu st 18, 1988, and ejected the following new officers:
County Bar Association were urged 10
participate in the Interest on lawyers'
President: Frank P. Ralph , Troy Secrelaryltrt,l)urt!f; Timothy J. Magee, T"",
Members of Ihe assoda1ion appltM)(f a mOllon to meet quarterly i1tluru:h for a gcr)(Jrill business meeting. Member·
Trust Accounts (lOlT.... ) program.
for 1966·69. They are: President: Chil rl~ R, Gill(mwaters, Alexander City Vice-pn,osktenV
Hcasurer. Br;lxton Blake lowe, Alexander Ci ty
Ta llapoosa Cou nty Bar Association At a r«en! meeting. the Tallapoosa
The bar's nell:t scheduled mc.>etlng was September 6, 1988, with E.C.
County Bar Associati(Jn elected officers
Hornsby as the k(.'Ynote speaker.
•
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11, CU and M inerai l aw ~ 0Real LI""'." Propeny, Probate & Trust law
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The
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33J
I I II
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Revocable Trusts-an Overview by Jeff KQhn, Ir.
~I. KmH Tw%om,In. <';r<'JI
p/.,{"(' my ('.mhly
I. Introduc tion As discussed her!,!in, a rlNOcable IIvln8 trust can ac hieve many objCC l i~s, but It is neither a "miracle drug" nor useful to all clients. Tht! dier'll who is willing and able to transfer property to a rCVOCilble Iru$1will find the trust useful. The cl ient who Is unable or unwilling to tran sfcr
ownership of property to a 1'CVOC"l)le 1M! during his lifetime still may IIchieye some bencl'it from liS U$e. The client who Is unwilling to name anyOne olher than him.
self as trustee of such a trust cannot be
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t'(\l~ur('\ In trtH1
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assured that any of his objt.'Ctlves will be attained unless his sole objcctl\ll.l is to in路 cur substantial legal Clcpcnscs IIfler his dealh, Schlessinger, "S~n Case Histories of Re\Iocable TruSIS,H U. Miami 5th Ins, on Esf. Plan. S71-I&ooA (19m.
II . In general A. Oefiniti on-A r("o()Cable livIng (in路 ler vivos) trust is a contractur.. 1rchll ionship where one person (the 8f;ulIor) t!'<lnsfers money, securities or olher assets
10 one or more persons (the lrustee or
trustees) 10 be held in trust pursuant 10 Ihe terms of it trust agreement. The trust agreement tYI)i cally I)rovides that (1) the income will ~ I)aid to the grantor duro ing lifetime; 121 the trustee or trustees are authorized to distribute principal to the grantor or to utilize It fOr his benefit, if necCSs.lry; (3) the grantor retains the pc:1Wer to modify or amend all Or any of the terms of the trust agreement during lifetime; (4) the grantor retains the right 10 revoke and termlnatc the Hust al any
time and to receive b.1ck the ass(·ts which are then In the tNst: and (5) upon the grilntor's death, the trust Prol)Crty Is either p.lid out to, or conllnued held in trust for, the grantor's designated beneficiaries.
8. Crcation-Cencrally. an infer vivos trust is created by an 3gh.>('ment t",nsfe,. ring l)rO~rt y from the grilntor to onc or more trustees, bUI il trust eM be creat(.,(j wi thout a prQperlY transfer by having the ()YJner simply decbring himself ilS trustee of propeny for the i)cnefit of others. In such circumstances, nothing more than the milnifeSTatlon to croilte il trust Is naces~ary, unless the subject mmter is {In Interest In lilnd, in .... hlch cast! the Statule 01 Frauds requires a writing. 1 SCOII on TruslS. S17 (4th Ed. 1987) (hereinillter ciled as "Scott'" Since the grantor must outwardly manIfest iln Intention to create a trust and 1mI)OS(! equitJble dUlles on the trustee to deill with Ihe corpus for the bcnelit 01 certaIn person or persons, pre(alOry ex· 1)I'CSsions should be a-.olded. 1 Sc~ t S25. Although the gtOlntor does not need to communicate his Inten tion to creme a trust, his failure to communicate is a strong indication of the absence of a linal and definitive intention to create the trust. 1 Scolt §24.2. Obviously, the best approilch is to Incorporate all of the tcrms and prOYisions of the trust arr;lngcmer\! 11110 a written agreement properly executed by the grantor and trustee. C. Unfunded v. funded trusls--While a revocable trust technically COmes Into existence when il Is executed by the grantor and the trustee, its actual active opera tioo does not normillJy commence until it Is funded by the grantor's Irilnslcr of ilSsets to the trus t either during his lifetime or after his death by namlngthc trust ilS a beneficiary of his will , his life Insur,lnce and his empl~ rt.ltlrement plan dealh benefits,
0_ Power to modify and revokeGenerillly, the grantor c.1nnol revoke a trust if, by the terms of the trUSI, he did 1"10\ rese~ il powcrol re\lOCation. When Ihere Is no pf(Wision In the Instrument expr~sly or Impliedly reserving the power to rlMlke the trust, the trUSt is deemed Irre\lOCilble. Creel v. Blrm/ns-
ham Trust Nal/onal Bank, 383 F.2d 8n, alrd 510 F.2d 1363 (1974). If the trust Instrument Is silunt <IS t(l the grilntor's retention of a power of revocation and the trust instrument does not on its fac:e purport to include aU of the terms of 'he trust (i.e., the tru.t's terms are only partially contained in lhe written document), then £!Xtrinsic I;!Vldence 15 permissible to show the other terms, including Ihe Intention 01 the gr~ntor to reserve iI pcJNef' ofl'C'JOC.ltion. 1 ScoU S33o.l. If the po'NCr to revoke the Il'USt was omitted frOm the trust Instrument by mistake. then the g,,1nlor may Iletltlon the court for reformation of the instrument and the court may dC(rve its rflormmlon bo,Ithe Insertion of the intended retillned power to revoke. 1 Scali S332. The same prlnclilies arc applic;lble 10 modification of a trust as are applicable to reYOCation of a trust. If the grantor does not, by lhe terms of the truSt, reserve a power 10 alter, amend or nlodlfy it, he has no power to do so. Trabi!s v. First Nationa/ BDnk of Mobile, 323 5o.2d 353, 295 AI. 65 (1975J. If he reserved such a pawcr, a gr:mlat can modify the trust to the extent such reseMd power permits him. 1 ScOIl §331. Prcslmably, the p(1oYef to revoke Includes the pa.ver to modify, since a grantor can r<.'VOke the trust and creilte ilnother trust co" talning thc modified prOYisions. HOY.'CVCr, whether the power to modify includes the pawcr to reYOke may depeod on Ihe exlent of the p(M'Cf of nlodifiC<ltion. If it Is unlimited, then It probably doe~. Otherwise, it proIxlbly does nol.
III . Uses and advantages By utiliZing il rcyocabie living trUSI, a client can oblilln any O!le Or more of Ihe (ollowlng: A. lfM;l$tment management-By fuodIng a teYOCable trUSt and naming another as sole or co- trustee, the grllntor may receive profenlonal Inves tn,ent e)(perl· ence, ta x pl;lnning and recordkceping. This can be very importilnt for people such as a recent widow who has Inherit ed substantial assets, an elderly Individual apllroaching senility, a frequent trilVCler who Is abse!\I fn)m the country for long periods of time, ~n over-burdCOl!d exe<:utive or professional, a 'tOung adult who has re<:enlly received a substantial inheritilnce or the sum total of many annual exclusion gifts due to the termination of il Custodianshll> aCCOunt or il recen tly married indiliidual who desires 10 preserve inherited capi tal, es~ia ll y If dlyorce proceedings may later ensue.
B. Probilte avoldanc~The probate of thl] assets owned by the grantor is avoided to the ClClent a r(M')(able Il'ust Is funded with assets during his life. Although many statL'S now haYC slmplinl'd proOOle procedures, it may nonetheless be ben. eflclal to Select which assets should pass through pro!).lte versus which should pass outside of probate. The rt.'VOCable trust can accomlliish this objec1ive. In addition to probilte iM)i(!ilOce, the following additional adv,lntilges illso may be achieved:
leff Kohn /s a stockholder in the Mont80mery firm of l<aufman, Rothfcoor & Blill, P.C. He rccei..ro his unde'1'fildU;J1e degree from the University of Alabama, his law degree from Cumberland School of L,lW and a master of 1.1wS In laxM/an from New York University. He! Is a member of III(! MOntgomery County, Alabama SlJIe and Anwrian bar associafions.
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1, Maintcn1'lnCc of prl v'}cy-Th e avoidance of probate will afford priv,lCY as to the extent of the decedent's a s~ts (I)ntilined In the mI st as well as the details of the administration of his assets Md affairs, Thus, the utililwtiQn of a revocable living truSt as the central core of a client's estilte plan will preserve privacy as to the nilture of his dispositive plan and as to the details of the administration of his trust, and thus his assets, after death, The privacy featu re may be desirable wh en the client desires to support a IOVCr with whom he or she is having or has had an ex tramarital re lationship. Furthermore, th e crciltion of ~fal trustS may be desirable when there am several beneficiaries and the client desires 10 faVQr onc bt:!nefidary over Mother or he desires diffe rent trea tment of each (e.g., where one beneficiary is grJnted limiled ilCCCSS to prlnclp..ll while the others are not) while maintaining privacy among all beneficiaries wi th respecl 10 the provisions of o thers' trusts. 2. Avoid lUlceof ancillary administra tions-By placing title to assets situa too hI other jurisdiction s in an inter vivos
trust, the client can void ancillary prob.lte administmtions In tne states where such assets are located. For (!)«lmple, If a hus· band and wife own OJ condominium in Florida with all o( their o ther assets being owned In Alabama, they can convt..'Y the condomin ium tl) the r('VOcable trust during their lifetime, and upon the death of the las\ to die, the condo minium will pilSS In III;COrdilnCe with the trust document wi thout the necessity of a Florida administration,
3. Redu ction of legal fees-The inter v/vO$ conveyance of assets 10 " revocable trust will tend 10 reduce legal fees after death since there will be less time devoted tQ probiltE proceedings. Hcr.vever, the initial COSIS of establishing the esta te plan will be greater bt.."Cau~ of Ihe time and ,mention requlroo to fund the tru st. A rcwcable trus t will alieviJte the problenl of securi ng court approval of legal fees which already were agreed upon between the <lient ilnd fiduciaries. 4, bpeditious administriltion-BeCilUSt! a trust can be fundoo with certain seleclL'CI assets such as publicly-traded
ALABAMA BAR INSTITUTE FOR CONTINUING LEGAL EDUCATlON
DECEMBER PROGRAMS 1 School Law, Birmjngham 1 Bankruptcy, Birmingham 2 Character Evidence, Birmjngham 8 Estate Planning, Birmingham 9 Character Evidence, Mobile 14 federalism in the South, Tuscaloosa 15 Negotiation, Montgomery 16 Negotiation, Birmingham 19 Character Evidence, (Video Replay), Tuscaloosa 20 InsUIance for the General Practitioner, (Video Replay), Tuscaloosa For more Info rmation contact
ABICLE, P.O. Box CL, TuscalOOSA, AL 35487, (205) 34g·623O
334
stocks and bonds, real estate, closelyheld business InwIC$ts ilnd the like, est<lte administration can be handled more expedi tiously, For ex.1mple, there may be no need to re-registcr publiclytraded securities after the grantor's death.
5. Reducti on of other fees- If probate is avoided or minimizt.'Cl, 8uardian ad liwm expenscs I!lther will be avoldoo o r kept to a minimum. C. Planning for Incapacl ty-A funded revocable lifetime trust will 00 very useful in the event of the Incapacity of the grantor, w hether as a result of accident, stckness, "ge or otherwise, The trust will avoid the necessity of guardianship expenses, notoriety and red tape, while it will permit con tinuous, undisturbed management of the tru£t assets by the person or pcrsons of the grantor's choice, both pre- and pos t-I ncap~cl ty, as well as after death. Although durable jX."I\Nef"S of attorney (see Section 26-1-2, et seq., Code of A/;"rbam,l 1975) (lfe II popular method of 1)lanning (or incapacity, they are not a completely reliilble alternative for a trust. Third parties are stili $(Iml'!'Nhat r(:luctant In dealing with anomcys-In-fact and there are problems In definlnglhe ou ter limits of the anorney-ln-facl's ~f"S arId discretions. Thus, ,15 a practical matt er, the power of attorney is effective only to the ex tent Ihat the attorney-in.fact ciln per_ suade third persons to [>crmit the tran5action of business on behalf of the princi paL
D. Defeat 5pou sill elective righls-The uSe of il funded revocab le trust may be a uSeful tool 10 defc.;!t the incentive of a surviving spouse to dissent against Ihe w ill and elect to t,)ke his or herst.l1utory share. See §43-8-70, et seq., Code of A/iloom.1 (1975). Whether the tran sfer to the "USI will be effective for this purpose depends on whether Ihe transfer 10 the truSt wa s for the primilry purpose of deprivinglhe surviving spouse of his or her electiw share.
E. Avoidance of will contes ts-Since will con tests gerlerally ilrc Ir\stltuted at a time when the decedent·testa tor Is nOI available to defend himself, a revocable tru st may be an altematlve means of d isposition where a will contest appears likely. The trust milY be creil led wi thout the eYentual beneficiaries knowing about November 1988
It and if the tru$1ee is a professional and independent of the grantor, thc trustee, ClCpressly or by Implication, may be deemed to have attested 10 the competency of the grantor. Any contest during the gr;lntor's life will require the contestant to Initiate incoml>etency proceed. Ings against the gmntor and have a guardIan appointL'd at a lime when the grant. or would be available to demonstr<tte his competence and explain his moti'>e5 and objectives. If the potential conte5tant is made aW;!re of tne trust wh ile the grantor Is living. but does not challenge the competency of the grantor during the grantor's life, he or she will havc slgnlfi. cant legal obstacles to oYCrcome when the challenge is made after the grantor'S death. F. SelK tion of governln!l law-An in. ter vivos trust will l>erm lt a grantor to
choose Ihe state of I1M' which will govern the validity, interpretation and administratiOn of the Irust both before and after death. C. ConsolidaHon of document$-A (cYOCable trust may permit all estate planning documents and Instruments to be consolidated into one trust document and all of the assets of the grantor, upon death, will "pour over" into the trUSt, CX路 cept for any joindy CM'ned property passIng outside of the will. By utilizing one document for the entire estate plan, the follCM'l ng advantages arc achlCllCd: 1. Simplicity-The one IruSl document is easy to /V'Iiew. If ch,lOges need 10 be made, there is only one document to change without requiring codici ls 10 wills and changes of numerous benefl路 clary designations.
2. Claim$-Witn resl)eCI 10 lire insumnce, qualified retirement plans and IRAs, the designation of thelrust as beneficiary (as opposed to the estate of the grantor) may aYOid subjoccing these assets to creditors' claims and adm[nlwa路 lion eKpenses. See Love v. Firs! National Bank, 226 Ala. 256, 153 So.169 (19] 4), Furthermore, there win be no nt.'Cd to name continllcnt benefiCiaries, since all beneficiaries, whether primary or COntingcnt, are named in the HuSt document. Finally, the trust document may pr~ide betler management and more discretion than the settlement options permitted by the Insurance c(Jmp.lnles. The A/ab/lma Lawyer
H. Pooled liquidity-The liquidity df!fived from insuriWlce proceeds and qualified plan benefits are pooled together and held by the trustee who m,'lY utlllz.e these fu mls to m;!!.:e loans to the decedent's estate or to I)urchase nonliquid ;assets (rom the estate. Family members who may be named as benefl路 cIaries o( liquid assets mily be reluctant to m;!ke loans to or purchases from the estate. I. Funding-It may nOl be In Ihe client's beSt Interest to f!"llly fund the revocable trust with all of the assets owned by the
client. There are inst'-lnCes wily full funding should be postponed until ase dictates otherwise or until de'}lh, whictK.wr occurs firs t. Some reasons for not fully funding are as follows: 1. Management compl~i t l cs-J.Nhcn a third party trust is crealed, there are In. creased management COI'I'plexities. Even If the grantor Is also the tru st~, having to deal with a th ird party may mdke life overiy-coml)lIcmed for the gr'-In tor.
2. Expense-The creation of the trust and the transfer of substantlill assets e.ln
be expensive. RJr cx.1mple, rcal estate transfer fees may have to be paid, a§ well as legal fees for ta sks such as obtaining mortgagee consen ts to the transfer. If tnc trust Is to be partially funded and full funding is to be dcferred until lhe client becomes elderly, the utilization of a stand-17t' dumb e limited PQYJer of attorney is adviS<lblc. If the client later becomes incapaci tilled or seriously ill, the a"OI'ney-in..facl can conlplcte Ihe funding of the tru st on behalf of the dlen!. This permits the ellent to have effectively planned for disability or Impairment without Immedl2tely rclln(IU lshlng the con trol of his asselS. The attorn~ln -fact must be aware of the relationship betwccn the revocable tru st and Ihe client's will to 00 sure Ihat the funding of Ihe trust by the attorney-in-faci under th c durablc I)(M/cr of anorncy will not alter the dispositive plan cnlOOdled In the will. If Ihe beneficiaries, or If thc beneficial Interests, are created di((erentiy. then the attorney-In-fact may be very reluctant to exercise the authority gr<lnted by Ihe durable power of attorney.
J. Coordinat ion wit h " pour-()\lc r" wi ll-The I'C\QC1Ible tNst is only one pan of Ihe estate plan and the dient should consider the execution of a "pour-over" wlll bequeathing all of the clien t's remaining assets 10 the tru st as well as naming the trust the bef1eficiary of life insurance and annuity contracts and proceeds of qualified retirement plans. Under weh cln:;um$tirlcl'!S, the rtMXable trust may become the central core of a dlent's esta te plan a'ld the tru st documents, not the will, then would cont.lln <Iny ncccsS<lry formula clauses dividing the Hust into the "milrilal deduction share" and Ihe "credit shelter share" as 'M,lll as any disposilive provisions relating 10 such shares.
IV. Draftin g and other considerations A. Definiti on of incapaci ty-The defi nition of the grantor's "i nCal)aclty" shou ld be set forth In the trust document to avoid future cOnlro.oersy. Because the tru St will continue fOf the benenl 0( the grilntor during inCi'lp~cilY, 1he rights of
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the grantor, or his guardian, during such period must be defined . The term "incapacity" should Include nOl only a formal COUrl order to thaI effect, but also per_ mit an informal determinil\ion by physicians' cert ificates. It may bf! ~cia l 10 Indude In the definition Ii Incapacity the granlo(s Involuntary detention (a la the Iran hostages) and his disappearance (a la Jimmy H offa). B. CUMdianship qut.'Sl ions-ObviousIy, the righls of the grantor to alter or amend the trust Of to withdraw assets will cease upon Incapacitation. A question 10 answer is whether or nOl the granlor desires such 1)()Y.Iil~ to be exercised by his appointed guardian. If so, a provision should be 1)laced In the trust document permitting the IXlrsonal represcnt (ltlYe of grantor to exercise the ~rs to which the grantor Is entitled. If not, an exI)ressed prOll1510n should be incorpor;lIed In the tru st Instrument limiting the exercise of Ihe grantor's rlghls to the gr,lnlor personally and excluding their exercise from his guardian. Absent iI PIQh,bltlon, Alabama law would presumably permit the guardian to@xe«:iseall 01 the grantor's retained righls under the trust document. See §26-2A-108, Code of A/abo1ma (1975).
C. Specifically authoriJ:f grantor distri but ions-If the grantor is unable 10 effeet his own distributi ons, then the coor successor trustee should be directed 10 distribute funds for the wpport, health and maintenance of the grantor, to discharge the legal obllgatiom of the g"mtor and to make dislribution5 for any other purpose which the $Ul;cessor or cotru stee d()cms to dlrecti~ benefit the gr;lntor. I), Gift lax consideriltions--Under a r~able
tru st, the grantor retains the righ t to alter; amend or n:voke the tru st. Howcvcr, upon incal)acity, the gr;.ntor will no longer have such righ ts and, ilt that time, a potential mtJy Clo.]SI for the gift to Ihe trUSt to be coml)letc and gifl tax liability Iml>Osed. To a\'old this, a testamenlary 1>OWef 10 oppelnt the trust's assets among the contingent remaindermen should be inserted in lhe lrust document to il\IOid any gift to the truSI (rom becoming com ple te. Trea s. Reg. §25.2511-2(c). Also, II will be advisable for the tru St document to con tain a pro-
November 1988
vision stating that the disability or incapllcity of the grantor will not tcrmina!e the pt'lWef of re-.ocation bur merely will temporarily suspend It.
E. Planning for disclaimers-As a substitute for the will in the di spositioll of aums, the revocable tru st should alllici· pate the I>osslbillty of a disclaimer of in _ terest by th e tru st beneficitlfies and should direct Ihe dlsl>osition of the interests In i:l milnner (;on sistcnt with lhe grantor's intention. The tru stee, during the ildministratlvc period, should be aw.HC of dlsdalmN potcntlal so that the trustee does not inadvertently deliver a ~ sets or property Interests to" benefiCiary In a manner disqualifying the benefiCiary from later making [I timely discllIimer of the property or property inIQrests.
F. Ant icipate dissent of surviving spouse-With resl>ect to the Interest given to the surviving spouse by Ihe i"C!VOc.lble tru st, the client must be Informed of the possibility that the survi .... Ing spoUSe mily ek'Ct to take against the will of the decedent spouse ilnd re<:eive th e statutory Intes tate s h a!"(~ of the decedent's prob..lte estale, The clienlm:.·(_>c;ls to decide whether or not the rcyocabi e truSt sho(lld continue for the benefit of the surviving spou se who may have cle(too to take (lBain stthe will. If the client desires th'lt tha tru St not (;on tinue, a prOVision must iX! InsertC<l In the tru st instrument which wuuld termin"te the spouse's right s as a beneiiciary if she ele<:ted to take against the! decL>dent spou se's will.
C. Collec tio n of insur,lnce, payment of deb tS, etc.-Generally, th e provisions of !he tru st agMfl!ll1cn t should grilll! unll) th e tru stee or trustees the power to lake all steps ilnd measures necessary to collect Insurance proceeds and ancild to thc Imyment of certain obligations and ta~es if the probillC e$t<1te is insufficient, in· cluding the e~penses of administcring the l,."Siate, expen!I,."S of Illstiliness, funeral ilnd buriill, legally enforceable debts, tran sfer taxes and specific bequests under the grantor's wil l. H, Restricting power to revoke-To protect a client ilgainst the possible depredations "nd importuning of olhers, a trusl whi ch Is Iev(lcilble solely by the gr"ntor does not lend much prot(.'ction. Thi s calls (or a hust whi ch Is r~able only with Ihe consent of a th ird party.
Tile Alabam" Lawyer
V, Tax considerations A. Gift tax-The tran sfer of assets to iI revocable tru St is nOt 11 taXAble Bift because the grantor's pa.ver to i"C\()ke the tr(ln sier renders it incomplete for pur· poses of gift tax.l tlon. However, the trall ~ fer of assets from a revocable tru st to a benefidilry other th ~ n the grllntor Yv'Ould constltutc a completL>d tra nsfer upon whi ch a Sift tall could be imposl,.>d.
B" Income tax- During the lift;'Iime of the grantor, the funded revocable !rust provides Subst.ln tial,y the same Income tilX results ilS Ihough the grantor had retained Ihe tru St's as~ ts I>crsonally. The tru st and the grantor will h,lYe the same tax year, ilnd the grantor will report the tru st's !t\COI"ne and expenses on the grantor's pcrsonallncome tall return (in some cases, after filing an informiltion return for Ihe Incoille arId ~pcnscs of th e tru st). An <1nnual (orm 1041 must be fil!".'ll whil;h will require a sepmate tal< identification number, et«:ept Ih<1t the separ<1\fl! return and the separ<1tc identification number aM not required if the Silme indivldu:l1 Is both the grantor ilncl the so le trustee
or co- trustee under the provl slOlls of Treas. Reg. §1.671A
C. E§tale ta l<es-Upon the grantor's death, thl! assets held by the revocable tru st will be Itlcludcd III his gross estil te under I.R .C. §2038 and will receive a stel>-up in b"sis under I,R,C, §1014. Thu s, the gfimIOr'$ eWl1e wilJ not deri...e .lny estale tax benefits as a resuh of thc CrCiltion ilnd exis ten ce af thc Irust. 1·I ~r, the trU St may be established so as to avoid a seconcl estate ta l( on the deaths of Its prime beneficiaries. If they arc merely given a life Interest with a Ilmhcd access to prillcil><ll subject to an ascer· talnable standard, ul>on their deaths, the remaining principal (subject to the generiltian -skipping rul es) mil)' be Olilde la pa ss to other beneficiaries tax-frcc.
VI. COllcJ usioll The various f.l( tual situations where a revocable tru 5t may be bcnetlcl al are ..11rllost nnlltl~s and If the problems ale fully thought through by thi! allorney and the tru st is skillfully drJfted, the rcYOCilbJe tru st can be a major estate planning prob• lem-soh'-er,
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I'm the Lawyer, You're the Expert by Lloyd W, Gath ings CXpert's participJtion in the c ase. Usual· Iy, the lilw}'!r'SfailulC to control the situa· Iiouis mot lvat~ in large 11.1rt by the lawyer's h:wlng tOO much co" fidcn ce in the expen's abilities, (lr the I~wyer's failure to recognize and chI!Ckli st hIs own responsibili ties In prepari ng Ihc expert to testify. With the exception of the next sec· tion concernin g the expen's role, the re· m.linder of thi s article is devoted to 11 discussion of v.uious I)roblem areas Ihat OftCrl lm~ not covered in the rou tfne prel>'lration of an IDIpcrt witness to testify, (Ilthough they should be.
/ IntrodUClion "I'm the lilwyt!r, you're the expert"
sounds so over-si rl11)!lstlc as to be
h~lm
OfOU~, cspedaliy III view of the fact that the use of expetl~ In loday's litigation is ,1 ~ry seriou~ arca of concern. Althllugh
milny experiCI1 Ced I ri a llawyc~ have used experts with gre<Jt 51.U:;CCSS time Bnd lime ilSilin. each o f those lawyers ( iln cOIslly rl.,'(a1l 1nslanccs in whi ch they howe been "burned" I7t their own expert~. Whil e the errotS commlm.od by the5c experts romelimes (Ire errors of their own making. many of the error. are il resul t of the faU· ure of thc l;lwycr and the wimess to
undcrst.lnd the responsibilities represen ted by the simple statement, " I'm the
lawyer, you're the expert;' Every sea~unl'<l trial l<lWyer under· ;lJnds Ihill whC'n he or she subm its an expert for'dc l>osition or ilS II wlmess ;11 trial, thert! b OJ ...ery reallX1lcntial that the ('XI)f.!rl will "drop the b..111" and InOiel ser· ious damage to the li1wyer'~ case. Unfor. tunately, thi ~ aspect of litigation can nC!Vt"r be eliminated. let'S f!lee it : the ex· pert is the one who has todo the talkin g ill the depmltion and on the witl1~SS stand at trial, 1101the lilwyer prOOuclr'Ig him for dcpo~l t lon. H()I.Ve\ICr, that Is not to ~ay that the risk involved in an expert
338
dropping Ihe ball ca ntu,)t ~ ~IS ll lflcat)t. Iy redu ced.
" I'm th e lawyer" Control is the key word here. Regard· less of wha t ilSpect or a case the lawyer is dealing with, the lawyer must be the one cot)trolllng the si tuation, The impor. tance of Ihls statement can be multiplied m;lIlyfold when deaHng wi th the experts In the case. Think about the conlrol Ihe lawyer I;!XNeises in all olher aspecls of thc case. The lawyer control s Ihe ini tial client inlervicw, determines whe ther to accej)t Ihe case, determinc\ thc Itwcstigal ion r'I(.'Cess.1ry in thl;! caS(! An d determines the legal theories 10 file the case under or which arc necessary in the answer and the diSCOVt:ry conducti'd In the case. At some point Ihe lawyer also Is the one who determi nes what type of expert is necessary and who that expert will be. On many occ.1sions, il is al thi s point thill the trouble SI.HtS. Ofu!!\times, although not al ways, the lawyer who has been In total control of 1111 of the previously menti oned aspects of the C<l5e hi res a good, well-qualified expert, and for one rei.l 50n or ano ther (i1ils to exert the 5a ~ conlrol ~r the
"You're Ihe ex pert" No ma1ler how good the eX j>crt Is or
heM' ex!>erien ced he is In the particular type of liligatlon invol ved, the role of the Cl(pert is not to choose <lmong alternative fact th eories or alterna tive legal theories. Thi s is the role of the lawyer. The mle of the expert is to properl y inform the ill· torney, based upot'l the facts of the ca ~e, of Ihe altema ti\(! ractual theories, wilh all I)(!rll ncnt uc tilils n(.>(essa ry to dCterm inc the rela tl\/(! strengths or weakn~ses of the various theories. After detailed discusslo t'ls eoncemlng these theories with the att orney, it is then the attomey's role to choose which of the theories will be emphasized or clc·emphasized, and the bes t way to handle poten tial defenses. Wh alCWr ded ~ion s ill1" made during thilt confcrcnce must be adhered to by the ex· perl In I,ll phascs of his les:imony. When this is properly done, Ihe knowh:.>dgc (If the eXI>crt and Ihat of the att orney has been meshed 10 oblilln dlc maxImum impilct of an expert's tes:lr" ony, again with the lawyer controUing the sltullllon. Types o f exp ert s While the problem areas concerning cxperlle51imony arc present in some degree wilh all experts, It Is importilnlto take into consideratIon wh!!lher thc selccted experl witness fa lls into Ihat group of witnesses termed by lilwy('!rS ,15 " professional witn esses;' or whcther the
NO"emiJcr 1988
witness, ahhough cminently qualified concerning the product or fact ~IMlIlon, has relatively lillie exl>erience In testifyIng. Sl!<vcral problems ari se with each type of witness which will be accentu· aled by their differing b.lckgrounds. The expen witness who has a great deill of experience teslifying. especially with regard to the product invol\ll..>(J in the allor· ney's case, will atlempl to I<lke more Con· Irol of Ihe case and cross over Into the role of the lawyer In the case, This he cannOt be all~ 10 do. No mailer whJt his competence Icvcll~, he is nOl a masler of the law Jnd cerlainly is not accl.Jstomed 10 Ilrep.1ring a C<lSC so thJt 0111 P,1"5 of the case will mesh so as 10 ilvoid con· ((iets and I)roblems [mel co aHow for the most effective presentJ tion of ;m entire case. Most of the wl t,osses who have tcst;· fk'tl many times uefore are in substan tial dernand In various types of cases, and they tend to wotk on iIIl overbooked schedule, As a result, the lawyer has to be very Cll(ciulto be sure that they know all the significant fJ cts of., speci fic case prior to submitting them to testify. In ad· dition, such expert witnesses have testi· fied in ,1 number of Sliltes, most of which do not have the contributory negligem;e doctrine, assumption of ri sk or a negli. gence per se docHne similar 10 the Alabama b: tended Marlufacturer's LIability Doctrine. P<lrtlcular c.1(e must be lak('fl to inform them reg.1rdlng these nuances of the law in AIJb.lmJ. The second category of expert wit· nesses, those imminently qualifil.'(! concerning the product of f.1Ct sl tu:nlon, but h/lvlng linle experience tesTifying. Thero are few wi tnesses, expert or otherwise, w ho have the skills to m:nch a good TriO I Illwyt!r. In other words, It 15almost alw;l)'S a mismmch bctwt'Cn thc trlallao.vycr and the witness, wi Th the trlallaw}1ir u ~ ually having the ildv<lntlge. This Is pMtkular. Iy true with an e~ l)(!rt wiTness who has very Ullie experience teslifylng, Such wit· nesses htl\."e i"I great prOI>ensity for failing for Tactics, having lillie or no relat ionship TO the subs tance of the case, of OPIX>SIng lawyers. hl add,tioo, such witnesses tend to seek too nluch precision in their teStimony ilnd hedlle on their opinions when pressed by Ihe Ol)J)OSinll I~r, resulting in ineffccT vc testimony. Finally, whether the wiTness is an ex· I)(!rienced t(!SImer or a novice, CMe must
The Alllbam., Lawyer
be taken wilh elderly expert witnesses. It is very ea sy for the l;r.vyer to gct c.lught up in the case and work very long hours with the expert prior I(J his testimony or allow an expert ul'pmition to go on '" great length. WhUe a large numlx.'f 01 the very best experts JVaUable to lawyef$ me eld(!rly and do a Tremendous job In presenting Ihe casc, fililure to take Into ac· coun t Iheir age and the limiTations on their STamina Is a serious (!fror often com. milled by lawyers. The elderly expert wit· ness must be brough t in one or two dilyS prior to the depoSition or testimony .lI trial to allow extensive prep.lf(1tion wi Th· In re.lsonable hours, and his tcstimony in del>osltJOll must be limited to a rca· sonable number of hours per d;!y. M,my of the wi tnesses, while brillian t when working rea sonable hours, becorlle f., tigucd ilnd milke what appear to be Stupid errors when pressed beyond their phySical limitations. Basic legal concepts often misundersiood b y cxpcrl w il n esse s Trial law~rs often take fOr gr.lnted uasic legal l)rindplcs and fall to discuss them with expert wltnesscs prior to their testifying. Evcn with an expert wilr)ess who has tes tified many limes in anum· ber of juri$diCli()llS, f"ill,lre to discuss the basic 1!'giII principles wilh them is an inVita tion for disaster. 't is rMe thaT an expert wUrlCSS has any leSdI training and vef'j' few of them have done any rc.)(iing ~()ll(erning legal thear· je~, defenSt.'). etc., that Me involved In products liability ColSes or other pcrmnJI injury lawsuits. In addition, those eXI)Crt wi tnesses who do have some knowledge of the law are nOt familiar wi th the nuances of the Alabama law, such tIS the difference ootwccn the Alaooma Ex tend· ed Manufacturer's Li~bil ity Doctrine ,Hld strict liability In tort, 1)1Irticutarly as relates to the defcn Se~ of contributory negligence and assumption of ri sk. There(ore, prior to submilling an expert wit· neSS for dep(lsition or for te5tlmony at trial it is Imperative that the lawyer dl ~cu5S the legill principles Involved in the case with the eKpert. Although the follov.lng b not an exhaustive list of those principles which must be discussed wi 'h the expert witness. this Ir~t will suffice In most product liability caSf!S in wh ch an expert Is submi tted.
Burden of l)roof-YVhile the gener,,1 nature of burden of proof may \>Yell be understood by the witness who has testified m,UlY times, engineers, hired as expeI1 witnesses who h.~ nttle experience testifying. have difficulty In undl~tand· ing thi s legal concept. This is particular. Iy evident when they are asked a questi on prefaced by the phrase, "With a reasolll"lble degree of ('fIgineering certainty, medical certainty, etc.~ The trial liJWYer must explain to the expert witness the burden of proof or wha t Is mt!anl by reasonable degree of certainty In much the s.1me manner that a lawyer would u~ In his opening statement at tria l. This will prcvcnt the englneer.type expert witness from hedlllnll on his 01)lnion5 bccJuse he knows that There is some possiuility the OI)lnlon is not accur.lle 100 percent of the time In 0 givcn situ.1tion. Enginl't!rs 1lfO IOlullht to c~lcl,ll,lte things to at least four d('clmal points and have problems making clcarly<ut Stiltements when they get Into a "gray·' area. Thi s Is nOt being critiCJi of engineers, but recognl1.es their educa tional background and The mt1lhematicdl precision That they arc Taught in the (!(IuCillional process. The reasoning behind the burden of proof of the plaintiff In II ci"liltri.;ll or the defelldant on a((irm.1TIVIi! defenses is a concept which is foreign to them and COntrary to the educational process they h..we undergone. Therefo't', what Ihe author Is reilily t.... lkingllbout here Is reI.'due.ltlng the tcchni cal· or ('ng,nC>er·type expert witflC'\s SO he will be able to t~lIfy within the framework of the burden of I)roo( without 8el1ing overly concerned abou t the 5 percent c'«:cption to what he Is saying. Proxi malI.' caust. -This Is such a basic legal term 1illd Cuncept that it is hardly
Lloyd Vi
G.:lThlngs
Is a 1976 summa cum laude gradu-
ale of Cumberland Schoof of law. He is II member of the AI.lbama SlaTe, Florrda and Birmin8ham b.1fS and 1$ vice presldenl o( the Alab.lma Trial wlVyers Associa-
tion. Calhlnss Is a Pilrtne" in /he Birmlnsham (irm
01 (;a/hin,s
&. Davis.
339
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beneflc~r1es.lnsureds, policy hoIde~ debu:l~ Nve moved and
left
no fofW1rd.ng address. we v<lCk them down on a world· ..... lde lale. And If _ doIl't flnd your penon, )'OIl don't pa~ GIo~'s baiIc wrge lOt a vxe when the 11K kroown addrm It Inm yP~oId Of' leu" $180.00.
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Ft'ee
imaginable an e>lpert would f;)11 to rec· ognizc and apprec~tc that the 1)lalntlff must pr'OYC lhatthe defect or alleg«l neg. llgence of a del'endant must be proxlmatc cause of the injuries. The S<lme holds true for a defense expert testifying with regard to affirmative defc~. However, if this is not properly explalnL.od to exlX!rt wit· nesses, they can and will make admlsslolls during their testimony which cause serious doubt on I>roximate causntion of the injuries, hl)lrlin to the expert, prior to his testi· mony, the Alabama Pancrn Jury Instruc· tlon on Proximate C.1USC: ''The proximatc C.luse of an Injury is that cause which in the nature and prob.1ble sequence of events, and witnoutthe inteM..'Iltion of any new or independent cause, produces the injury lind without which such injury would not h;ly(J occurred." This charge should be explained to the expert wiln~~, as many trial judges ex· plain to the jury. as the direct cauSt>. Also, along with the same lines, lawyers nC('(! to explain to the expert witness the meaning of combining and concurring
negligence in a casc wh ch has multiple defendants. Similarly. the proposition of interven. ing causes must be CClYO'cd with the ex· pert witness In appropriate cases. Wilh· OIJf proper explanation l¥ the lawyer, the expert witness may fall to recognize or understand the difference bet'NCCn an Independent intervening cause. as referred to In the pnncrn jury Instruction, and foreseeable conduct c<lu!il'd by Ihe defen· dilnt's negligence. Contributory nCKligence and assumplil)n I)f risk-These Iv.'O Icg.11 (loctrines create problems for most e~pens for two reasons. First. most expcft witnesses art'> accustomed to consulting In cases pend. Ing hI comparaliVl' neglig~ncc states or in states where contributory negligence <1nd assumption of risk arc not defenses to strict li"bility in tort, Second. most e~· perts do 110t know and are unable to discuss the applicallon of fhe elements of c;ontributory negllgcnce.nd assumption of risk to the filcts of the case. Of course, the problem collCl.'fTling fhe Ignorance of an e>lpllrt wltllMS with regard to fhe applicability of contributory IlCgligence and assumption of risk can
-NOTICEBlack lung Manual Published App.1lachian Research and Defense Fund of Kenlucky, Inc., (Appalred) under the auspices of the National Clearinghouse for legal Services, has published "Black lung Claims Before the Depanment of labor, a Manual of Substantive law:' The manual is authored by William GoUlleb, now a Staff attorney with South Bl'OOklyn Legal Services in NC'N York, Gottlieb was a staff al10rncy with ARDF's Prestonsburg office in 1984-85, and specialized in black lung ond pension claims. He authored the black lung manual in cooperation with AROF as part of the requirements for an l lM Degree (rom the School of Law of Columbia University in New York. The first part of the rnanuallndudes basic historica l Information about the organizing efforts by miners and disabled miners which resulted in passage of federal black lung legi slation. as well as a basic discus· sion of the nature of black lung disease. The second part of the manual focu ses on the SubSIOntive law inllOlving claims before the Department of labor, Ci tations in the manual are current only 10 approximately spring 1966, when the manual was completed. Due to lack of staff resources. Appalred has not been able to produce an update at this point. Copies of the manual may be obtained for S15 by writing to John M. Rosenberg. Director of ARDF of KY., Inc., 205 Front Street, Prestonsburg. KY 41653. Attorneys participoting on a contract or pro bono panel wilh a legal services progr.1 m can oblaln a free copy by writing 10 National Clearinghouse for legal Services, Inc., 407 S. Dearborn, Sulle 400, Chicago, Il 60605, and asking for a copy of the manual under Clearinghouse No. 42880.
340
November 1988
be cured. The importanl point here is that !>ofh plaintiff and defense experts ful· Iy underslilnd that any con tributory ncg· ligence, no maner how slight, will su f· fice to b..1r the plaintiff's claim. The second problem, ignorance with regi'lrd to the elements of contributory n~gllg~nce ilnd assumption of risk, ag.lin can be cured Iff detaited explanations of the law .1n<l Its application by the lilWvcr producing the expert witness. Both plaintiff and dcfcn~ experts must be well ver!>ed in the elenlents of contributory negligence and assumption of risk, and how to ~upport or negate each element wrth the facts of the case. Alabama h tended Manufac turer'$ liability Doclrfne-Occaslonally, the ol>l)()slng law)'(:r will ask an C>ipcrt wit· ne~ s whether the product was Inherent· Iy or urlfeasonnbly d:mgerous. Thi s Is ter. minoloHY foreign to many cxpcrt$ Jnd the wrong tlnswer i~, of COurse, catastrophic to the case. AgJin, use of the pat· tern jury instrUdions Is helpful in ex. plilfning Ihe significolnce of these term s 10 The WitnesS: "It Is the law that the manufacturer, supplier or seller who markets a ProdUd which is In a condition unreasonably danHerous to the ultl· mate user or consumer when placed 011 the market lind which remains In substantially the 5Jme condition until used by the ulti· mate consumer Is liable to one who may be reasonably expected to use such product when uS('(! for Its Imended use and who Is injured as a pro~imateconsequence of Ihe unreasonably dangerous product," APJ i 32,08 More ImllOrtant Ihan the expert's un(lcrsl.llldl"1:l of the unreasonably dangerous terminology Is rhe requlremen1 rh al the product remain In ~ubs tantiilliy the ';'1me condition as It was when II lefl the dc(endant's pos~ssion. Plainliff and defen<;e expert witnesses musl under· st<lnd Ihat thiS element is met even when subs tantial changes haYe been made If those chang~ were fOre'ieeable 10 the defendant. When the opportunity I)resents itself, the plaintiff's ClCI)ert must be prepared 10 use Ihe foreseeability lerml· nolOHY in cases defended on the basis of ch;lI'Iges made in the product, A slmll'H problem is presented from the expert'!> ~t'lndpoin1 concerning In·
tcnded uses of The product. He must un· de~t.lnd that foresee~ble uses Of" misuses of the prodUCt do nOf pl"C\'ent the plain. Ilff from reccl\l(!ring under the Alabama ExTended Manufacturer's liability Doc· trine. Plaintiff and defensc e~perts must be I)repared to use the foreseeability ter· minology In cascs defended on the ba sis of the product's being put to an unln· tcndL>(i uSf'!.
l,..1wyer 1i'Ictics and pitfalls All expert witnesses MC subject to a number of tactics and pitfalls which. oftentimes, are not ca.'Cred with the wit· ness prior to his testifying, A number of these lueas will be discussed below. 'iONCYCr, the rt!ader should be C.luTioned that the list provided is nOT an exhaustive Ust and must be used In addition to th e usual preparation of an expert witness to testify. Agrt.'t!ment with general concepts or principk>$-Any good lowyer, when presented with an unfiJ\.OriJble set of facts, will ilttempt to get the expert to agree with broad general principl(!S which ~ lillie application to the caS(!, but sound bad for the opposing party's poSition. This taClic is used extenslYCly by lawyers in products liilbility and medic.11 mal· practice cases. The experl witness must be prepart.'d to ilSrce with the broad, gCI)' erill llrlncipic when ~fUI! <lnu must IlOjnt out that the principle has no aPl)lication to the case at hand. In othllr words, he must agree with the principlll and then I)roceed to discuss the spt'Clfic facts of the case in light of that principle. know ledge of facls-Somll lawyers will sometimes run at eXIX'rts on the basis that they have no I>crsonai knowledge of th'! fa cts in\9I'w't!d in the acci· dent. Of course this is !rue-otherwise the e~JX!rt would be an L>yCWltness In· a retained ll~pert. However, stead some novice t(!Stifiers will Ilctually we.lken their opinions when this Is point· ed OUI to Them by the opposing lawycf5. The f.1Cl thaI lack of personal knowledge Is totally insignificant should be poin ted ou t to the witness before he testifies. A more serious problem occurs when the lawyer prodUCing the expert relies ul>on the t.'Xj)Crt's SI.ltemcnt that he has read the depoSitions and other materials supplied to him and knows the f.1Cts of the case. Sometimes the experts get Into a time crunch and merely scan the materia ls, OYCriookins Important pol"ts, or
or
simply do not recall significant points tha t they have read. Therefore, all Sigllifi. cant facls must be discussed with the ex· pert in the office before he testifies. In cases il'M>lvinH numerous witnesses, par· Ties or dates, It is best to help the expert make notes to take Into Ihe deposition setting forth the names of the llarties and a description of each, names of the wit· neSses and tl description of each and all Important dales. Overlv-defensive or limiting about qualificatil.:ms-Some expert witnesses, when attacked about their qualifications, will become OIIllrl y delenslYe Jnd giYe the impression they kll(7.Y they really are not qualified. This can be aYOldl..>d by the witness's admi ssion of factors which are 1'101 I)resent In his background, such as the fact that he has Ilever designed the type of product In {juestlon, and rouTlrle· Iy pointing oul his cKpcrience whi ch has some nexus with the product in question, such as the fact that he has designed control systems for similar produClS. Other expert witnesses. when attacked about their qualifications, will take Thl;' opposite approach from the QYCfIy-dcfen-sive witness and Umlt thell e~pertise to such a point as to seYCrcly minimize their usc in the C;lse. Again, this can be avoid· ed by th e witness's admls~ion of factors which arc IIOt Prilsent in his background and routinely pointlnH oul his {')iperience which has some nexus wl1h the subject of his testimony. This type of expert must be informed that he has the righ t to rely on knl}Wledge gained through the dep.ositions and other materials he has read. For example, t.~n though lhe expert's o pinion may involve knowledge of the operation of a machine and he has n(.'\ICr oper,lled Ihat type machine. he is entitl· ed to rely upon the o perator's Il1llllUill lind the depOSition of the manufaCturer's representatiYe for this knONlcdge. Prob.lble v. possible-Expert witnl..>S!ol!S often 1,.15e these words Interchangeably, not recognil:ing their leg..ll Significance. This should occur less frequently if lhe burden of proof has been explained. However, the slgnincance o( probilble \I. possible 5t111 should be covered in the preparation of Ihe eXI>Crt lor testimony. Use o f th e term " nlalpractice't..!n medical malpr.lCticc Ci!SC$ doctors retained by the plaintiff oAcn arc reluctant to testify when asked If the defendtmt ......s guilty of millpractice, although they are
",
perfectly willing to say he fell below Ihe standard of care. The word Hmalpr.lctice" has connolatloos within the medical p~ fesslon which prooobly m<f;ke it more difficult to itCCU5e someone of than murder. bplaln to the witness that "malpractice" mcans nothing more than that the doc· tor fell below the standard of care lind Ihat he should and must use this term when asked by the defense lawyer. Paid to testify-Of course, CKpt!rtS are not paid to testily, but are paid for their time away from their usual activities. However, 5(lf1le IlKI)I!r1Swill OVCflook this fact If not warned ahead of time. Opinions TeKOlrding credibility, reputation or expertise of olher witnessesThis Is not a proper area for C)(perl testi· mony. The eKper\ witness should be In· S!ructed lind not allowed to I tify reg;udIng Ihe credibility, reputation Or c)(per· lise of olher wllnesses. Further Info rmation nct.odcd to support opinions-EKpert wllrlesses nluSI be warned with regard to this taclic. If the oPPOSing lilWyer can commit Ihe e)(pert to netXllng more InfOffllation, particular·
Iy Information that is nOI available, In order 10 support his opinions, then he has eliminated the expert's lestimony at trial. EKperl wilnesses should be prepared to testify and apress opinions on thl! basis of the iMormatlon before them at the time of the deposition, although polntlng out thalther certllinly willt(lke Into consideriltion any additional Infor· matlon provided 10 them. Signiiic;mce of YilriOUSdocurncntsIn a subslanlial products liability case the expert will hiM! rt.'Vi4!'M!<i a large \()Iume of depositions and other documenls In preparatloo for testifying. Typically, the opposing lilWyer wl1l a1tempt 10 ask the wilness what Ihe significance is of eilch document or what Df'significance is In each document. Thi5 Is a game that lawyms cannOI afford 10 play. If the expert lIlI(lml>ts to testify as 10 whlll Is slgnifl. canl in each documC!nt, anylhlng he leaves out aulomatlcally will be deemed Insignificant. The el(pert should be prepared 10 respond Ihat he has read a great number of materials ,lrtd cannot list from memory all Significant Items in the ma-
ClE REMI N DER 1988 CLE Transcripts Were Mailed The Middle Of November
lerials. In other words, in order 10 pr0perly and accurately respond 10 lhe qu~ tion he would ha~ 10 go through all rna· terials line by line during the depositioo. Opinions baSed on IrN l ises or star}dilrds-lNhlle the expert should tcsti fy that his opinion Is buttreSSt.>d by Ihc lit. erature, he should nOI Illstlfy th;'l\ his opinion 15 based on Ihe literature. This detracts from his sirength as all eKpcrt and unduly limits his tcstimony.
Conclusion The areas discussed herein certainly do nOI constitute an entire IIsl of Ihe problems with expert testimony. Howi,lvI!r, disCU$siOr\ of these areas wi th the experts before Ihey lestify usuilily will bring 10 the surface problems which could prove very damaging to the case. While il is not possible to to tally insure againSI errors in Ihe CKpcrt's tcstimony, they certainly can be reduced by proper prepal'iltion and con trol ri the expert .•
COPIES OF UPDATE '88 MATERIALS FROM THI S YEAR 'S ANNUAL MEETING ARE AVAILAB LE. The following topi cs are Included in this 200-page
book: "lImlted.Purpose Admissibility and the Role of the TwoPart Jury Inslruction" " Oulline of Immigration Conlrol and Reform Act of 1986" " Federal Sentencing Guidelines"
All CLE Credits Must Be Earned By December 31, 1988
"Effective Utilization of Legal Assistants" "Alabama Deceplive Trade Practices Act- An O\lervlew" " Legislative Updilte" "Ouiline on Sports Law and Legal Action by Colleges and Universities Agains t the Agents" " UnifOrm Child Support Guidellne5" " Proposed Alabama Rules of Professional COndUCI"
All CLE Transcripts Must Be Received By January 31, 1989 342
" Intellectual Property Law" " Recent Criminal Dedsioos of tnc Alabama Supreme Court" " Recent Civil Decisions of the Alabama Supreme Court" I>RICE: $7.50, Including postage and handling. Send requcs t and check l)ayab!e 10 thc Alaooma State Bar, P.O. 130)( 671 , Montgomery, Alabama 36101.
Novem~r
1988
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The Alabama Lawyer
343
The Closet Client by Mark White, special correspondent 10 the AI.,bllfllll lllwyer
It has been a source of continuing comfort (or me, for the 1}'1SI three years, that anything bad 11m! occurred to me
ttt
,MU)J~UJq
,R3:J:tI3J)f ,JI~inin1 Dla
W35!08 s 2Y91MIOTTA WId 'II\.
344
(luring this period (;ould be blamed on Reggie Hamner. To have a 24-hour, ~n-day-a..o,.vC(!k sc;-apcgoat In my life has been all asset Incapable of being UI\dervJluoo.
I remember weU Ihe winter of 1983 when Reggie summoned me to his plush o(ftce In melropol it"n Montgomery. Up to Ihm time, it had been my great plea-
sure to ~rve as chilirmiln of Ihe ta5k force whi ch had
ius! revamlx...d
that noteworthy
publication, The Alabama Lawyer. leaning back in his designer chair, Reggie said, "You really did II great job On the new Alabama Lawyer. The new board of edi tors is aggressive, bright and dedicated, VVe hilYe ~ new image, combining solid writing wi th shilrp edi ting for 11 top-q uality publication, 6IX:ause the new boilrc/ 15 such iln au spicious and respected group, we ft>el com~lIe(l [0 guarantee the high level of cQmp(!l<!nce for The AlaIMma Lawyer ilnd, as II result, h<we just IIOtl,.>(l [0 throv.- you off [he board! "RcgrCtful- but needless to say, a 101 of thi s may be attributed to the \!Cry medi. ocre meanderings you have forwarded for publica tion by Tile Alabama lawyer," I began to I>rotes t, Indignantly, "For e)(ample, M ark," he interrupted, " wh en we assigned )Ou the topic " 'he Insurilnce Crisis: we did not an ticipate YOl.lr ret(lfning wi th some SOrt of sy llogl~ tic explanation as 10 why life Insu rance salesmen no longer give oul decentl:lens ar)d color-eoded road maps, Fortu nillely for all of us, your concept of a pop-up picture of the AIJbJmJ Svpreme Court ncvcr becilme public k nowledge, It cu lminated wi th our prin ting II form reJection stip for you th,\1 states: "vVe conclude that thi s article lacks su fficient scho larly
November 1988
appeal, In view of the author's insistence that the piece submitted be rcao aloud, slowly: ~ I Wilntcd to retort, but he juSt kept going. " Now," hc Stlid, ''here is the board's r('. commenda tion: We suggest that r.lIh er thlln le~ you to your indirect devices, we give you a Sl)OClal assignment. We di路 rect you to go un dcrc~r as a client. It's dilngerous, bu t we truSt your covert abilities. You'll Infiltrate thc ranks of ellents and report your Anding5 back 10 mc .. .QOIy upon written request, of course. "I can ooly hope that this will be more of a noblc and oonhwhile endc;r.or than your previous dabblings. Quite naturally, we request that you lei'l'le thc stall! to accomplish this." " RegSie," I said, "won't I bu mi)s(!(/f" ''VVcII:' he rep lloo, "In the word s oflhm old country cla ssic: How can we miss you, if you won't go awayl" Needless to say, role reversal wa s an interesting prospect, I decided that if I was to do Ihls, 1 should do it all the way-I would become a client and infillrale Ihe yankl.>e ranks. A friend and chent (usually the two are mutually exclusiYCI agreed 10 cooperate In whm came 10 be tnc H amner scheme, and ncxllhlng you know, off I 'NCr\t, lock, stock and barrel to Pittsburgh, Pennsyl. Y.)nla, I feel compelled to file this dispa tch even though I haI'C had no COni act with Hilmner- not even a coded message in my bran cereal. I believe thi s part of my m ission Is complete (not to mention tha t ccrta ln parts of my anatomy are frozen), and I am ready to offer profound Insight as to how clients view lawyers and what lawyers should know about clien ts. Clients do n' t like Il'lw yers Alr/ght, so it il no big revelarlon , But I tell you, brothl'r5 and sisters, I did not learn this withoui pain! I well remcmber the fint time t SM around with a bunch of other clien ts, telling peace stories about lawyers. AftClWOlrd s. I relt so cheap! My tr.msition from !awy(!r 10 client was nOI as smOOlh as one would anticipate. W ithin fi~ days of assuming my role, I recel'o'Cd a call from my ace maintenance
The Afabama Lawyer
supervisor, Franco Pastavocl , I pick up the telephone and out 01 the receiver comes the word, "hey," (every person Franco knew automatically acquired tnc first narne of "hey").
"Hey." Franco said, " the cops have a W;lffilnt ilnd want to knock dOYo'n il door In one of the ilpilrtmentsl" Anticil);1 ting some horrible public re13tions scandill, ! said, " Franco, Is It drugrela l ~I"
" Naw, more scrious. ..Invcstment bankingl" Sorncwhat rell/!Yt'd, I immediately began forming my own mental checkll ~t , maklnglhe mistake of assuming my prior legal mind-sct: I) Do they have
a warrant!
2) Is it a yalid war'.l!\t! 3) Is Ihe person $(lIVing the warrant
the duly authorized officer? 4 ) H ove I been pa id 10 carc about
the warranll Franco IntCfrupcs my IiSl,maklng. "Hey, this dOOl' Is going to cost us S761.54 to replacet Do t open it with my pa ss key, or do I lei 'um bust it down!"
It suddenly cam e Into clc(!r perspec. tive what it is to be a dien!. While as an ad\lOC.lte I had rcpn..~ntoo the p<1nlcs on bolh sides of the door, I now found my. self repre$(lnting th edoorl Fortunately I made a smaf\ m~ (by llcc;ldent and while I was buying some time to think abou t IU. " Franco, whal do )'Ou think!" I asked.
" I"ey, the lease says. we got the right to enter an ap<.lrtment Ior...um .. .Io kill vermini So, hey...why don't you declare... declare what you call a slate 01 vermin emergencyl I'll go gel a can a' Raid and my pass key and conduct an official search for vermin , The cops can enter right with me.~ " Ffilnco, are you sure thi s will work?" I asked. " Hey, don't worry;' says Franco, "I'm headed out to the dumpster 10 get a couple a' Ihrow-dOYo'n rooches." I will always fondly remember Franco for saving the day and I"e door. Unfortunately, many clien ts have good tel'lson not to like some lawyers. On approximately 20 occasions during my undercovcr role, part of my duties included hiring lawyers. I n()YCr ceased to be
amal:OO .... Take New York lilwyers- thank goodness they mdst_ God decreed that New York lawyers be CrC.lll>d to hell) all other lawyers, and their ell"nts form a common bond in thai nol only do all clienlS not like New York lawy(!~ all lawyers do not like Ncw York law',t!rs. I rccej\'t-,d
a bill for $975 from a New
York law flnll for feviewing a printed form that had 17 blanks. Not only had the firm not su!,pllcd th e form or the 17 word s inserted in the blanks, their arlSIM'.'r my complaint about the bill was, ''''Nell, it wo\Jld hiM! cost you the 5.1me if 1M'.' had df<lftcd Ihe en tire document!" For tha t, I Wil S SUI)post>d 10 be gr<llefulr
10
Mark While ;s a graduarc of Auburn UniYCfsi/y and Cumberfand School of /.zJw. Associated with /I Birmln8ham firm frOm 1974 to 1984, he tllen /Jec.)me associated with Allcghcny Center Associmes and Emerik PropertieS Corporation In Pittsburgh. In July of this year, Wh ite relocated back 10 B,fmlngham . He is a par/IIer;n the firm d WhitC', Dunn & Booker.
345
Whenever I hired lawyers, I <llways m<lde <I tX)int n¢.er to disclose tha t I had had any expmlencc In the legal profession. I made the sorry mistake of thinkIng Ihat If they believed it was my firsl lime, Ihey vvould be gentle, On <wother occasion, I was forward ed a bill for review in excess of $200,000 for servict.'$ rcnderL>d in a matter Ihal was sc:ttloo 011 arl d(.h nlnlstraliw I~I. The firm submitting the bill said thaI the bill wa s not based upon any contlact but was <l contingency fee based upon cuSlom, habit Jnd practi ce exi sting in the local legal community. When t dem,wde<l some estimalO as to the hours exp(mdt.>d Oil the case, the mte charged exccedoo $1,000 an houri There wa s no trial. no appeal, no dlS<:OV.!ry, no investig.ltion, no research, no contract, no letter regJrding the fee agreemen t, no lime sheets and, ultimately, no paymentl Over time, though, I bL>(ame 1m· pres§ed wUh lawver'S who could do the
following: 1) DemonstraTe a sense of gcography in that th¢y could givc me physical directions to th e courthouse frOm their office. Thi s confirmed in my mind that they hild, OIl least on some prior ()(ca sion, actua lly oc'Cn In the building w here Ihe dispute ultimately could be resolved.
2) t ildmired the lilWyers wno could
exptilin in dl!lail to me, as a client, what they proposed to do ilnd hO'N their billing practices and procedures would be accompl ished.
3} A lso Impressive were th ose lawyers who, eMly In the process. del11011stratcd not only a wlillngiless, bUI considered It iI necessity, \0 physic all y 80 to the location of the clien l'S bu siness. They con sidered it essenti .. 1 to see for Ih ~m$CI~s how the cllCI1I 'S business and operations were conducted. t lo'Xlu!d be remiss (nOle: Il)wyc~ always
SilY thi s just before they stick It to you} if r did nOl mention the work of somt! excelien t lawyers who represented me durIng Ihls assignment. In the future. I always will steal from one of ttwm what I have come to call his "The Wint er Of Our Discon ten t" speech. tt was del ivered to me after I had spenl approximately un hour o(rtlinlng the ("cl ual ba sis of the dispute Ihat was 80il18 to require his services. "Mr. White, it is not the be st of cases, and it is not the worst of cases. II'S taken you and your colleilgues 18 mOnths to create thi s si tuatlont I hope you can appreciate that t cannot figure out where we arc le80lly durhl8 the Olle hour thm we spend together. I can illso tell ~u thill
A lJ B lJ I{ N 1:' 111'11 \\Itlll' "
S\'I\un
EIK1ric: Sboc:k' AuIOlllotl",Aria~ EIedroI1lcs' MfdbI Dc... FalJun ' CGalpultr S"uq' MkrowIvt HuIrdIr' BkKMdkal S)'SItIIIJ '!iuman-Mao:hInc t ntnfta ' GnHraI En&IamIDI' II ....... ad SocIal ScilDall
Dr, Michael S, Morse Dr. Thaddeus A. Roppel (20S) 887-1817 (20S) 887-1814 (20S) 826-6610
t will have some idca about where you $tand within a week. "Within tWO days, I will persono lly come 10 your bu siness to review your operation s. Because my schedule, like yOurs, changes, I will call you ei ther M vvork or al home, if n!X:essary, if I cannot meet the one~ek time table we have eSlilblished, My fee for thi s initial . In th e (~nl evJluation will be )lQU need my legal SCrvlces fUfther, they will be billed at the hourly r,lte of 7C:-:;;-' I will wrl!e you" leIter today tha t will confirm Ihls finan ci al arrilngement. tl might also be nccessil ry for Mr. Doe or Mrs. Roe, of our office, 10 help me on Ihis matter, but I w II be the person who is rl.!sponsibll! 10 yOu ((If Ihe work thill Is accompllshcd. If it is to YOUt l..'COnomic adv.'lnt<lge and could expedite the si tuation to utilize Ihe ~ervices of Mr. Doe or Mrs. Roe, rhey w i I work at my dlrectionl Please take a moment (Incl consider what questions you might hOlVC, Mr. White, concerning what I hilVC sa id. When you le(lVe, t will give yOu my office and home number, and If anything cOm(! S up tha t you nC!iW 10 disclose to me, or that yOu would like to add, or modify. concerning what you have told me, ple,lse do not hesilate to call:' Being a client crente. iln inslill11 awareness that being sued is not ne;,trly as much fun for iI client as it is for a Iilwyer, Nothing change~ yOur mir,d "oout the existence 01 frivolous law suits quicker Ihal1 beinll served as il P.lrty de~ nd.mt by lhe sheriff. Part of my territory during my "'15slon included iI shOIJplngl11al1. On ol1e lovely spring aft ernoon, Sir leon Stealow elected to exit Ihe Scars .Iore with an electric AM/FM multl-cvcljlthing device, He elected to exit at a pace tha t vvo(lld have yi elded a 9.3 hundrcd'Yilrd dash. unfortu nOlcly for Sir Leon, he encountered a city pollee officer in his lilnC. On tel('\oisiol1, Sir Loon hud seen a chap vault over the rail of a shOI)plng cCnler mall. land li ghtly o n hi s Nikes and slip aw,lY throullh iI conwnlen t exit. Sir Leon at· tempted the samc maneuver with dif·
231 PI1DI Street, AubW"ll, AI.., 36&lO. ~rt ResuIDCt Wckllnl.
346
NOIICmbcr 1988
ferent resuils, later, after carciul reneelion, Sir leon recalled the chap on television v.1uhed feet first versus head first , The chap on television got his prizeSir leon came aw,lY with a broken ,ilW, fractured ankle ~l'Id a leS$On in aerodynamics, Three v.It.'Cks latcr, I am sern:.>d with a complaint, Sir Leon, you say, Wrol'lg-I expected that one (failure to warn that diving into a concrete floor can cause injury). Instead, I get popped by Doctor Noname, It seems when Sir leon left our premises. the p<llilmedics took him to the nearest hoSI)ital (no surprise there). Doc· tor Noname was the guy they got offlhe squilSh court 10 unfold, unbend and un· mutilate Sir leon. Doctor Noname was aghast that Sir leon had no major medical coverJge, "nd bcg.1n a se~rch for a deep pockel. Somehow Doctor Noname's lawyer devised a theory that anytime "nyone was transported by the city to Doctor Noname, there WJS an Implied contritc! for work and labor done with whomever owned the premises that the l>atlent was on at the time of the injury, fortunAtely, I1li ace gener(ll counsel, Mad Dog Koslns.<i, was able to u alternate dispute resolutiOn on this casco I)y that I mean Mad Dog ca lilod Doctor Non{lme's lawyer and said, "Your ahernative to dismissing this case is having us throw you off the second level terrace of the mall. I now accept that alternate disptJtc resolution Is an effecllve method of resolving frivolou s law suits. Unfortunalely for law~rs, clients very soon get their mind set that their lilwyer will beat U I) the other guy's lawyer. If lawyers hold ther'llSelves out to be hired guns, they must nC\lCr forget th.. t the man who shoots frOm the hlp sometimes hits himself In the foot , t..1Wyers should never loose sight of the fact that clients see cases in one of tWO ways, either "we won the casc" or "my I~ lost the casc. while a lilW)'el' considers a meritOrious claim to be any claim he flies as a I~r, clicnts consider a frivolous claim 10 be any claim to which the client Is a l>arty. N
H
The Alabama Lawyer
Uwally the client confronts the l3W')1!r only when in a stressful mental state. Angry, scared, abused, neglected and Ol~ pressed are fairly typical introductory at· titudes of clients. lIVe lawyers (111m com· Ing In from the cold) must be mindful of the (act thaI our role as ad'v'OC3Ies In· cludes the delicate manipulation of all of Ihe human fra iltIes. A wise lawyer once lold a client who referred to him as a mercenary, "You are mistaken using that t tic. Our role is most similar to thaI 01 iI shepherd. Unfor· tunately, sometimes we act more like a sheepdog.HThe distinction between the
roles of the shepherd and the she@pdog may be sulxle to some, but when onc ap-
preciates the distinction, onc then can appreciate the art form of law. This, my first dlsp .. tch as special cor· respondent for The Alab.l ml1 t..lwyer to you, my brothers and sisters of the bar, shOuld be clear evidence of my devotion to the mission bestowed upon me by Reggie Hamner. Bellew me, there is even more ~hor" stuff like this 10 follc)N. Ile~ each of you chomping at tne bit (0( more, ilnd I remain ever vigilant until that timc you elect to further call upon me. •
Strategies fur BorrowingIn The Late 198Os.
i\ Wly 'lll
Your client dcs.erves the best possible defense .And as an allor· Work )l lU Do ne)',)'Ou should be spending your energies on legal matters, on (h(' Ilous( '. not fimmcinl mnttcrs. How )'Our client miscs money to P.1y you is a problem Crcst.'lr Mortgage Corporntion m:ly be IIble to help resolve quickly and easily. Ifyour client owns real fSt.1le and needs to mise cash quickly, an C<luity \o.1n mny be II solution. W! offer II mnSt of equity loans thtlt will cover mOSt situations. And unHke manYOlher lending institutions, we make loans on a variety of reOll cstllle propcrties-not JUSt owncr-occ\lpicd homes. And becAUse )'Our diem may need help lit almost any time of day or night ....'!!'re hnppy to help secure funds even ifit means working Wl.'"£kcncls and lifter hours. \\t cnn also arr:ulgc 01 free semin;IT for you :md others in )'Our pmClice, so you1l fully understand how ....'!! can help. The Equity FinOlntt Division of Crestar Mort~ge Corpor-don givcs)'Ou the resourtCS of II mlljor tqulty lender with 23 ofllces Ilcross the Southeast. but wtlh the flex ibility many major lenders simply can't provide, SOc.'lU us whenever lhe need arises. )\:)u'll find that
Bl'Sun'I'Iu' Isn'( DOll!'
347
17 thursday
ele opportunities
PER SONAL INJ URY
CU RR ENT ISSUES IN ALABAMA INSURANCE & TORT LAW Civic Cenler, MOnlgomery Profe~~ional
3 thursday CURRE NT ISSUES IN ALABAMA IN· SURANCE & TORT LAW 1-II[Ion, Blrmil1gham ProfcssioMI EdUCJlion SYSlem~, Inc.
Credits: 6.0
Cost: $95
(800) 826·7155
EOUC.llton
CrL'<l it~: 6.0 (BOO) 826·7155
Syo;;tem~,
Inc.
COIl: $95
INSTITUTE ON SECURITIES REGULATION W;.\Idorf......storia, NC'W York I)filcti sing L,l W InMi lutc Cr{odit~: 14.8 (212) 765·5700
4
Cost: $545
ESTATE PLANN ING Ra nl<lda, BirmingndM Cumberland Institute for CLE Credits: 6.5 Cost: $90 (2051 87Q.Z865
8i\NKRUPTO' RiV('rview PI<l Z.l, Molill/' Mobile Bar 1\~~oci,ll ion
(wd hs: 10 (205) 433·9790
CRIMINAL LAW
Ciyic Cent ~ r. Birmingham Alab."una 8M In!>tilUlI" for elE
Credits: 6,0
Dothan
Alabam .. Bar Institute for elE (1"('(1115: 6.0 (20S) 348·6230
The Cambridge Insti tute
(n,'dils: 5.5 Cost: $295 (703) 893-8500
3<,
CO~\;
Cr('(tlh: 12.0 (919) 761·5560
(205) 262-4':174
FEDERAL TAX CLINIC Bryirnt Confer(,n((, n-n!!'r, Tu'>C.,IOQS.l Uniwr'>ity of AI.l bJnl,l Crt.'<Iih: 12.0 (600) -152· 5971
10
thursday
PERSONAL INJURY Days Inn, Mobile
RECENT DEVELOPMENTS & HELPFUL TECHNIQUES FOR THE GENERAL PRACTITIONER An.dl.1 I 1t/ lldilY Inn, G.ld~d/'n
AlabamJ TrI<l 1 L'lwycr~ (20S) 262·4974
11
A~~odOlti(lI1
friday
PERSONAL INJURY
(205) )48·6230
U95
BASICS OF BANKR UPTCY & REORCANIZATION F.1irmo1\t l-lowl, NC'W Orif'.lns Pr'l(.ti~inM l.:rw In~litut(' Cr('(h l~: 12.0 CO'I: UC)O (212) 765-5700
18
friday
PER SONAL INJURY Civic Cent(·r, Blrll1lnKh,1!l1 AI,lb;lm.1 B.lr In~l ilL1I{< for Cl E
Credits: 6.0 CO,\; $65 (205) )-18·6230
INSURANCE LAW I-toward John~n\ Motel, BirminRhar'll Cumbcrl.lnd InSli[ut(' for ClE Cost; S90 (20S) 1:170·2865 TRIALI'RACTICE UPDATE·PLAINTIFF'S PERSPECTIVE 6(">1 W>slern Confl're!l((' (l'lIll'f, Aubllm AI.1IMm., Tri.l1 L,lWyt'''' A~I,(J(iation
(205) 262-41'174
11-12
ARCH ITECHNC INEER LIAB ILITY
UNDE R ALABAMA LAW Iliholl, Birmlngh" m
PERSONNEL LAW SYMPOSIUM
Dothnn
Civic CentN, Montgomery Ala b,l m., aar Institute (or ClE INSURANCE LAW FOR THE GENERAL Credils: 6,0 CO~ t : $85
PRACTITIONER (vidt.'O rep lay)
17-18
TRIAL PRACTICE UPDATE
Cosl: $85
(205) ) 48·6230
CO~I: ~90
TerrJ(e G.uden Inn, Allant,) W.I!.;C Fort..,t UniY('l">ily Srhool of Law
Alilbilmi\ BM Institute for elE Cn.>di t ~: 6.0 (0)1: $85 (205) 348-6230
friday
ADM IRALTY !\dmir,11 St>mme... Mobile Cumbt-rl.md rn~IIIul/' for elE (205) 670·2865
AIJbJmJ TriJI 1..1WVt-'f~ Aw)Ci.l tlon
3-5
Von Br,lUn Civic Center, I llIlItwili c> AI;II)o1I'11.1 BiH In~tltut(· fOI el[ CredU~: 6.0 CO<;1: S65 (205) 146-6230
29
tuesday
PROTECTION OF SECURED INTEREST IN BANKRUPTCY
PRODUCTS LIABILITY 'v\t>~Un Ilo[el, W.l~hinKlon, DC A~socia l ion of Trial Llwy('r~ of Ameficil Cred its: 11.0 Cost: $275
HUIlIWilll'
(800) "24-2725
(715) 835·8525
National Crt-'dit~:
BU5ine~~
6.0
In'tltull', Int.
CO'1: S98
Novcmb('r 1988
7
wednesday
BASIC REAL ESTATE LAW IN ALABAMA
1 thursday
Montgomery Natlon.1I Business Institute, Inc. Cred its: 6.0 Cosl: $85 (715) 835·B525
BANKRUPTCY Civic C~ntl'r, Blrmingh.lnl AI.lb.ln1.1 B.1r lmtitutc for eLE Credib: 6.0 Cos!: $85 (20S) 1<18·6230
REVISED REDEMPTION LAWS IN ALABAMA Coun ty ourthousc, M ontgomery Montgomery COllll ty Bar Associiltion Cred ilS: 1.0
(20S) 265·4793
PROTECTION OF SECURED INTEREST IN BANKR UPTCY Mobill' National C"->di,~:
Bu~in('<;ses In ~titutc,
6.0
Inc.
COSI: 5098
(715) 835-8525
2
STATE & FEDERAL RULES
Hurbert Ceiller, 3irmingham Alabama Bar Institute for e lE (205) 348-6230 I'ROTECTION OF SECU RED INTEREST IN BANKRUPTCY Blrmlnsh.,m Nil\ionOlI Bu~in~s hlstllutc, Inc.
friday
NEGOTIAT ION Wynfrt:y Hotel, Birmingham Ala bama Bar Institute fOI CLE (205) 348-6230
EXPERT WIT NESSES
8
Riverview 1'1(17;1 Hotel, Mobi le
thursday
Mob!!c Bar Associil lion Credits: ),0 (20S) 433-9790
CoSI: $98
COMMERCIAL LAW Wynfrl'Y HOtel, Birminshil ill CUllloorl,md Institu te for CLE Co~t : $90
(205) 870-2865
ANNUAL TRIAL PRACTICE UPDATE M"di;,on Hotel, \o\ontgomcry AIJbam,l ld,,1 I ;"'vye~ A~soci,Ulon (205) 262-4974
Birmingham National Business I n~ t i 'u'e, Inc. Credits: 6.0 Co~t $98 (715) 835-852 5
9
friday
LABOR LAW Ramada, Birmingham Cumberland IilSl ilutP (or CLE COSt: S90 (205) 870-2865
tuesday
BASIC REAL ESTATE LAW IN ALABAMA Mohile N,llIon,,1 Uusint's.
In~ti\Utc,
CO~I:
Inc.
$98
17 1S) 835-6525
6-9 SECU IUTI ES REGU lATION Th.:> Wt:~tin, D'I II~~
Soutn..ve)lNn leg)1 Founcl~tion
(2 14) &90-2377
TIu.> Alabamo Lowycr
7-10 DIVORCE LAW UPDATE
EM PLOYEE BENEFITS IN ALABAMA
(7IS) 835-8525
er!'dils: 6.0
16
ESTATE PLANN ING
CHARACTER EVIDENCE: COMPARING
6
8irminghalll Cumberland Institute (01 CLE Crt!dit~: 6.5 Cost: $90 (205) 870-2865
I-t,lfbcrl Cen tcr, BirmlnKham AlabJma Bar hutitu'(' for eLE (205) ) 48·&230
friday
(r(>eliIS: 6.0
PROFESS IONAL RESPONSIBILITY, DISCIPLI NE & MALPRACTICE
RECENT DEVELOPMENTS FOR THE TR IAL LAWYER
Sller.llon CI I~tonc Inn, Tuscilloosa Alab..lma Trial L...l'N~K Association (205) 262·4974
15
thursday
NEGOTIAT ION Civic CentN, MOnlgOlllery A(ilbJma Bar Instilul/! for CLE (205) 348-6230
Westin Hotel, V.IlI Law EdLlcation Insl itutt>, Inc. Cred its: 13.3 COSt: S395 (41 4) 961-0323
9-13 ESTATE PLANNING INSTITUTE Midmi Law Cemer Sheraton B<ll HMbour !-(olcl, Millmi Cn_ -dl t§: 23.3 (305) 284-4762
15-22 MIDWINTER CONVENTION
Roy.11 L.lncaster, london
A ssocimion o( Trial LdW~-s of America (800) 42 4· 2725
26-28 MIDWINTER CON FERENCE Wynfr('y Hotel, Blrmingha'll Alab..lIna Trial LawYCI"l> Association (205) 262· 4974
349
Beware of Colombians What Attorneys Should Know about Currency Transaction Reporting Requirements
350
NovemOOr 1988
Bearing Gifts: by Robert f. Clark
and W. Lloyd Copeland In an unfortunately all too typical
display of Its usual wisdom, Congress de<:ided in 1984 to require that all cash Ir'JnSa<:1ions of more than S10,000 be reported 10 the federal glM!mml!nt. This reporting Il,!quircmcnt IS yet (mo ther step
In the currently fashionable "drug exception" 10 the Bill of Rights, We all should know, and all 01 us en路 gaged In the active prJctice of criminal law do know, th at the Fourth Amend-
mem has been eS5entiaUy nullifilod, while the hysteria creil'~ by drugs and drug ab(l5e literally runs wild Iluoughoul tho land. TI tle 26 u.s.c. Section 60SOI, the Currency Trilnsactl()ri Rcportil18 Act, Is a further malll/esTOnian of the ongoing hysterical response to a legitimme soci.. 1 problem. The privacy.lntrusive aspectS of this 51,llUIe are apparenTly considered unImportant due to 115 use as an anti-drug weapon. It hilS as Its Iluq>oS{! the creation of an effeclive Irrpedimcnt fOr drug deiller$ In their atl!!mpT~ to usc cash mont:y r(..'Ceivcc/ In drug trilnsoctlonsi thOStllndivldui'lls dealing In dfug~ are (ar from dellghtOO ot the prospect of having the Intemi'll Revenue Service Informed they 'NCre In possession of over $10,000 of otherwise unTraccilble cash money. UnforlUnillely. the act is illsa laden with potenti al traps for The unwary attorney. Even more unfortunlltely, the act can be coupl(.od with v.uious federal criminal statutes so as to make criminal the conduct of persons not intending to violaTe the law. Most d.lngerous of all is the rilcl Ihat the act is P.lrticularly suscep'ible to use, and in fact has I>e<ln utllil(!(I, by ft'<leral Iilw enforcement authori ties to dire<:t entrapment a~ivities of the mOSt offensive kind toward allom(!)'S with no evidence of prL'dlspo;!tiorl toward crimInal aCllvi ty. As has oflen been aptly obsefVf.XI, Ihose who fall to slUdy history are destined to repeat It. II would appear that this Congress and t'll! pilst fl'w Congresses altogether hm.e forgonen Senator The Alabamil L"wyer
loe McCarthy in the 19SOs when what we now know as the "Red Sc<lfe almost H
devoured the nmion_hat should have been an enduring lesson in taws motivated I1t' hysteria. WIth very fC'N exceptions, ilOY person who in the course of his Irildc, business or profession receives cash In excess of S10,OOO In anI! lransactlon (or two or mOre relilled lransactJOrl s) Is required 10 nle a currency transaclioo report. It is 1mmaterlili lhat the person fl'Ceives the cash as the agent for someone else, or in the course of his business rt!Ceives clISh in excess of $10,000 for the account of someone else. For ('XiImple, the attorney who engages in coll(.'C'ion of past-due accour\l~ would be r~ulred 10 report If he rl>Celvcd In excess of $10,000 cash, ~n Ihough it was for the account of a client. There arl!, however, cert.,ln excepTions 10 this reporting requirement. One exception Is thai a jX'tSOn Is nOI required to report if (I) he receives cash in excess of S10,000 ilnd use allthe c.lSh wi th in 15 days In a cash transaction which would be reportable by Ihe person receiving Ihe cash from Ihat jX'1'SOn; (2) a person discloses the name, address .lnd taxpayer ldentin e(ltion numbm of the pcr$On from whom he received The cash to Ihe perSOn 10 whom he paid the c<ash; ilnd. (3) a person pays the person by cash and rIOt In some other form. for example, If an
Raben ,.. Clark Is a 1970 sri/duille of Illl! Un/vcrsily of AlabMua Scnool of /;n\l. 11(: ;$ the CU ff(:nI presiden! of the Alabama Criminal Defense I..1IVyt'fS Assocl.u/on and was named as a Fc!lIcw of the American BoordofC,lminal L:.lVyers. CIMk is a I),ulner in rile Mobile firm of C/ilrk, Deene &. Copeland, P.e.
a" orncy ~ei~ more than $10,000 cash in truSl to purchase rl!al est,lIc and within 15 days 01 receiving the $10,000, he pays The $10,000 to the seller 0( the real eslate, provides the seller the purchaser's name, address and taxpayer identification number and pays the seller with the actual cash rather than by check, he then v.oold not be required to make lhe ft'POr1 required by Section 60501. Another exception arises in the contexi of multiple cash Pllyments. Under the Code of Federal Regulmion s promulgalcd to enforce this SC(1100, the receipi of cash deposits or cash inSlaliment payments relating 10 a singh;! tran saction (or two or more related transacllons) Is reportable. If Ihe ini'ial p;lyment Is In excess of $ 10,000, then the initial payment and any subsequent payments in excess of $lO,OOO must be reporll'd. In other \oVOrds, If an nl10rney charges $25,000 for services and receive In excess of S10.ooo initially, he mus' reporltha, trans"lction; when subsequent monk'S are paid, If tht.')' are pllid in installments In exec,s of $10,000, each installment must be reported 5(!parately. However, if the Initial payment 01Ceeds S10,000 but no subsequent payment exceeds $10,000, he only has to report the Inlti31 1"'1ment and not any subsequent payments. 1>\11 another w.ty, each indivld\lal paymenT ~r $ 10,000 must be scp..lralely ret>orted, while in th e case of Indlviduill t)3)'merllS of less than SI0,000, only thaI l>articular ~mcnl which renders Ihl' aggregate in excess of $10,000 mUSt be It'portcd. The term "cash" mea ns the coIns and currency of the United States, or of any Other country, which circulatcs in and is customarily used and accepted as mont.'Y
W. LlOyd Copeland is.1 1975 gradume of
the Unlvcrslty of AlaiJ..lma School of un\!, where he lVas a HtJflO L Black sclloill" /-Ie has served a.s an assislant allorncv general for the Sf,lIe of A/ab.lma and 01$
an aU/SI.1111 dlmlcl
.1II0rn~
lor Mobile
Coun/y.
35.
in the country in whi ch issued. That Is to SIIy, cash means United States coins and currency and in additiOn, ,my coins or currency of ally foreign country. P.'yment of over $10,000 In foreign coi n or currency th erefore would ~ required to be nmorted a5 a cash transaction. How~r, cash does not include bank checks, travelc!; checks, bank drafts, wire trail Sfers Or Other nego1iilble or monetary in. strulllents n()t custOmarily aCCepted as money. The tcrm "trfinOllction" includeS, but Is not limited to, a sale of goods or services; a sale of rcal pre>pertYi a sale of intangl. ble property; a rental of rca l or personal property; eKchange of cash for o ther cash; th e establi shment or maintenance of or contribution to a custodial, trust or ~row llrrangemelll: iI p(lyment of a pre-
existing debt; a cOlll,cnion of cash to a negotiable instrumen t; Ii reimbu!;ement (or expenses paid; or the making or rep(lyment of a loan. A transaction may not be dividl,.>d into multiple transactions In order to av()id rCltOrting under the statute. As previously mentioned, the reporting requirements apply not only to any one transaction where Ihe ca sh re(eiwcj exceeds $10,000, but "Iso to any two or more related tran sactiOl's of over $10,000 (ash in the aggregate. " RC!iatcd tran sac· tion s" ;'Ire bas icall~ any tr;msactlons where cash Is received durillg a period of more than 24 hours, if the recipient knows or has reason to knO'N th(lt each tmnsactlon is one of a series o( (onnected tr'ln sactions. For CX<lml)le, if an attorney agrees to rep~sent a cllellt ;'It ;'In
LOSING YOUR TnLE CAN BE SO INCONVENIENr Leaving your home isn't easy. But if you lost your title, tha ~s exactly what you'd have to do. A title must be defended when challenged. With Mississippi Valley 'rille Insurance protecting against any challenge ~ to your ownership of property, you won't lose your tilJe, or have to leave your home! Mis.is.lppl Vall.y TftI.
e
Star~
Oflia/.124 NQrth 21$/ s/.!Bin" i"ghlllll. AL 35203
7l!1I Fre" 1I800/843·1688/ Tnqfax ·1I32MJ919/A MimleSQla Tille OJlllfltJ11J
J52
hourly rate of 5100 an hour, and submits various monthly bills which are paid in cash, the attorney C(lnno! filii to rQport when the aggregate of the $100 hourly fees exceeds $ 10,000. on the theory th;'lt the blll~ ..wre sent;'ll different times. The furni shing of legal services where cash ptlymen ts exceed $10,000 Is subject to the requirements of Section 60S01. and 11 is dangerous In the extreme to attempt to vie-w the same or interpret the act in any manner so as to render the p(lyments non reportable, There are other exceptions 10 the currency reporting requirement whi ch btIsic;'lily deal wi th financial Institutions and certa in ca sinos thaI have revenue in CK' cess of $1,000,000. The autho!; regretful ly submi t thaI most lawyers do not fall within thi s ca tegory. There is another ex· o;)ption thill is or interest to practi cing attorneys, and Ihat is where cash in excess of $ 10,000 is received by a pcrson other th,1n in the COUI'$e of the business or profession. For example, if a per10n sells a car, boat, re;'ll estme or arlythlng clse of value for cash In excess of $10,000, it does not have to be rel)OIted unless he is engaged In thl! business of selUng such items. The only other eKception of inter· est Is that if the entire tran S(lCl ion takes pl(lce outside the continental United Slates, it does not have to be reported in thi s CO\lrltry. The rel)Ort mu st be nlack! to the Inter· nal Revenue Service wlth,n 15 days after the date the cash Is received. Interna l Revenue Service Form 8300 Is required to be fllled out and rewrned to the IRS. Form 63OOC3n be obtained from any IRS Fornl Distribution Cenlef. The person rel>orting the transaction must verify the identity of Ihe 1)('!;On tran sferring the cash. If the money Is paid by an alien, the passport, alien identification c"rd or other offi cial docUmc!l ts (!Vldellclng na· tion(lfjty or residence m\IS! be ellJlmlned. \l()rtific;atlon of the identity of any other person mlly be made by examination of a documcl'll normally acceptable as a means of Identiflcatloll when c:lshlng or accepting checks, For readers who al. ready are thinking about using a "straw man;' the Code of Fede",1 Reguli1lions requires th", if the person making the reIUrn knO'/lfS or has reason 10 knovY that an agent Is conduClingthe cash trallSA C' lion for a prillcipal, he mu~ Identify both the principal and the agent on the form. November 1988
Anyone making these cash tran:Xl ction report s must kCEp them for a period of five years. In addition, one must send to the persol'l from whom he r~eived the cash a report that sets (orth the name and address of the person who made the return, the aggregate amount of reportable cash recei\lCd by (hilt person in the calendou year ;lnd Ihe statemen t that the information is being turned over to the Inlernal R(.'VUnuc Servi ce. This rnport must be furni shed to the person who gave Ihe reporting l1idlvldual the cash by ,.mu.'II'Y 31 of the year following the transaction, The penalties forfailure to report a cash transaction in e~cess of $10.000 are found in Title 26, Section 6676, United States Code. The maUers set forth abovl:! arC the basic rcqulremcJ'ilSfor thc currency reporting tran sacllon, but here Is a cavcat to those who are or the opinion tha t Ihey are InteJlccluaJl)' superior to the mere mortals constituting the remainder of the bar, and can "beat the system." The reader will recall Ihat, earlier in this arti·
cle, tht:! authors advised Ihal the purpose behind the reporting requirement was 10 make il e~tremely difficult for lX'Ople InYOlved in drug tran$ilctlol'lS to do anything wilh the cash money they receivc. Nol only is that Congress' Intent, but CI)I'ISft~SS and the executive branch of the government further Intend to punish in a draconian (ashlon those who are inyolYCd In auemptinglo thwart or ev<lde the Currency Reporting Transacti!)n Act. The autholl ca ll the reader's attention to Til le 16 U.S.c. Section 1957, commonly known as the money-laundering statute, which makes il a criminal offense for anyone 10 "knowingly cngnge or onempl to engage In a monetary tranSoclion in criminally derived p'operty that is of iI value grC<lter than $10,000," The real " fang5" of TItle 16, Section 1957, arc in subl)aragr(lph "c" therlXlf, which sta tes lhal "in a pmsccution for an offense un· der thi ~ section, the govcrnmCrlt Is not n:!(lulred to prove the defendant knew tha t lhe offense fmm which the criminal ly derived property was derived was specified unlaw(ul activity."
Wh<lt does this me<ln ~ Flllt, it means thaI a person can be criminally prosecut, ed for ilccepting iI cash fee without the government's being required to prove thm he knew the monies were derived from a specific crime or type of crime. II i1lso means thm Congress not only has set out to prevent anyone from being able tl) use criminally derived cash to buy anyth ing. but more sp(!Cifically, It h;!sset out t" prevenl the u ~e of such cash to purchase legal services. Anyone can sec (rom the alxNc Ihat the II110mey eng.1gll'lsln Imnsactions vlolativc o( the relJOning requirement also ciln be considered to be engaged in money laundering. which would subject him or her to penalties under TItle 18 U.S.c. Section 1957, of imprisonment for ten yeall and a fine of twice the value of the property involved In the trlln5aClion. If lhl s docs I'IOt haY(! a chilling effect on representation of cl ients by those crim inal defen se lawyers who accept cash fees from reputed drug dealers, then nothing can. Wh<lt the <luthor'S "re talking "bout is a direct, front,,1 ilssault on Ihe SI ~lh Amendment right
BUSINESS VALUATIONS employee llOCk ownenhi p plw lCquiJ ilionJ/<livutimfU u(>ckholder dispu lU divorc:u • chuiuhle glnl eSlate.s - Inlanglble .nelS
Contacl: Mitchell Kaye, CF A, ASA 800 88B·K.A YE (5293)
Member American Society or Appraisers Past President·AlIanta Chapler The Institu te orChllrtcred Financial Anal ysl$
• Court Testimony
and I.R.S. Experience The Alabama Lawyer
353
to cOul'lsel, arId It gets worse. Even more serious problems wilh failure 10 comply with rh ~ cur~m;y [r,lIlSaCl lon reporling requirements are crimi· nal liability under Title 16 u.s.e. Section 2, which i ~ ilidlng ilnd abetting. and TI· tie 18 U.s.e. SC(tion 371, which Is the geMrnl conspi racy sintute. 60th of these stJtutr:!S can be COUll ied with Title 18 u.s.e. Section 1001. which proscribes making false reports or causing fal se reports to be made to any federal allen· cy, and with Ti tle 18 USc. Section 1343, which criminalizes wire fraud. Structur· ing tran sactions so as to evade the cash reporting requlremr:!nt, or s!ructurlng transactions so that a finan cial institution will not have to report them under Title 31 U.S.c. Section 5311, ct seq., can result In severe c rimin~1 liability. In the c<,se 01 Uniwd SIMes v. Heron, 816 F.2d 1036 (5 Cir. 1987), a Tex.1S banker WolS prosecuted ~n though he declined to gr:!t Involved in a fim;mcii'll scheme to prevent the reporting of cash tran saction s. He had refu sed to succurnb to the blandi shments of a government Informant in an IRS "sting" operation, but did plrt the infor·
mantln contact with anoth/;lr defendal'll. For this, he wa s prosecuted (or con· spiracy to commit wire (raud. Another very interesting case which shO'NS lhe pit. filll ~ Inhemnt in srrlr cturing trilnS<lClions so as to avoid reporting requirements is United Slates v. Nerscsian, :::.,-,:::-c,;:F.2d 41 CrL. 2310 (2 elr. 1987). which vses il con toned logic 10 creilte ;! conspiracy to make false reports 10 the lIovI!rnrnl!nl. The worst news yet, hl)l.V(M!r, Is the self· fighteous i1buse which thc currency IeIJOrting reqviremCrll' and thei r allied criminal statutes may be made to serve by overzcalous bureilucril\S. The real problem attorneys have today Is that the federal government is lilerilily \afg~ting attorneys in variovs sting opefiltiollS in order to insure compliance with curren· cy reporting rcqlriremcr'lt s by making e)(· amples of the targets. R~en tly, a Miami ;!uorncy was contacted by a government informant POSir'S as all Arab sheik, who solicited help In C\r.ldlng Ihe curren cy reporting requirements. VVeII·reali zing Ikat all but salnls have their price, and thaI saints are few "nd far between. tke
informant brought $2,000.000 in cash in a suitcase 10 a hotel suite, where he and the attorney met and discussed In a car'Cfully slaged conVt!mtlorl (where the in· formant did 99 percent of the talking) how 10 a\lOid the currency reportin g requirement. At the end of Ihe conversa· tiOrl, the ilttornt.'Y WilS~ fflo!Ste<1 ,lIld later indictt.>d and tried for moncy laundering In viola tion of Title 18 U.S.c. 51..'(lion 1957. The atlorn~ ~rHually was itc· quilled under his defense of governmen· till entrapment. because the sting wa s dl· reeted agai nst a lawyN who had no previovs Involvement of any kind In any criminill i\ctivity whillsoever. This is what Ihe authOIl mean by the literal t.1fgetlng of attOrn(')'S by QVCrzeil lous governmen· tal fun ctionarie5 with il Sclf'i\warded monopoly on virtue, in ordcr to cause compliance with the r'Cpofting requir(>ments by the creati on of examples. Incl· denwJly, the informant WJ~ "working off" his own crimina l problems by trying 10 set vp some unsusl>ccting lawyer, at the direction of the government. Be wary of Colombians bCilring gifts. •
4i L
son
M<;:Gowin inc
rOREST MANAGERS 6.. CONSULTANTS
Beneflttlng .,((orneys M Id theIr client:;, with the fOllOWIng prO' lessio,,",1 services:
If they awarded PhDsin real estate appraisal,
this is how theytllook.
There is no grcatcr honor In real a;l!ItI' lIppM)is;IJ lhan to WW' the pin of M MAl or lUvl These desljI'IIldona 11ft taI'ned
on1y aftcr yeM of sl\.ldy and on·the-job
,,_
MAlI 11ft opera In all art'a$ of real nmlf: lIppr.IisaI. RM& tift sp«i.l1iI;li In residential property. BoIk ~te aaxlI'dln" to a ~trIctly mf~ CodeOfEthlaand Standards of
Profn.4onall"nlr;:tb. MAts lind RMs repreImt on1y 3% 0( the appraism In i\merlc:a. YI!!. It Is on t~ that 0\11' ~trt$, govmunmt a lencIing Instlrulloos. ~r1.a real Cltillc: I:rokm: ha....:: for I)W!' SO yean. • a profcalonal rtaI tillite aooralsaL dlC(:k the Yellow P;.,p for bc::Il MAl or RM memben In your arm.
IW I free directory oon1lltt.
executive S«r~mry. AI..A[}AMA CHAmR. P.O. Bo~ 2007. J3bmlngtv.lI\. Ai 35216
IJI .
354
• • • •
r ROrtRlY OMSIONS LAND OR TIMBER Al'PRAISAl.S [STAT£. OR TNC I'LANNING f'.Xf'£RT WITNESS TESTlMONY • LAND SAl[. f'.XCHANGE OR
ACQUISITION • f'HOTOCMf'HIC INTtRNl.ETATlQN • SEISMIC. OIL OR MINERAl.
I\Q\,1C,
• TlMBER [sTlI'v\ATI.S
• FEASIBILITY SnJOIES • FORESTRY CONSUl11NG
p.O. Bo:c 2:143 • MOUIIe. Al. 30052 438·458t
AME RJCAN INSTn'ln'E OF REAL ESTATE AI'PRAISERS
.r .... NAr rONAL ...wx;rAl'IO>l 01' .~""_TO ...•
NOI'cmbt1f 1988
Young lawyers' Section
A
s I assume this office for the coming year, I feel very hon-
ored and cxciILod that I have been selected as your president II is
very humbling 10 be a pall of such a select group of individuals who have been presldeot of the YLS over the paSt 50 years, Much credit and apprecl. :l1 ion goes to Charlie Mixon (or his OtIlstandinlj leadership during the paSI year. I hope thilt I can continue thm excellent t,... dition and, through my
leadership, brlns 10 OUt St.'CIlon the highest Idea s of professionalism and public service. I hope 10 f!\CCt this 80.11 by Ihe contlrlUlty and development of our YOU1h legislmive judicial progr;ul'l, which hilS been a huge success In Alabama. This progf,lm is an excellent
way to (!(Jucalc our young pe<)J)le and the public on the methods of our Justice sys tem. To proYide a service 10 members of the bar, our section will
continue 10 emphasize Ihe dl!Y(!lopmenl of interesling and valuable ClE programs, such as our "Bridge-theGap" seminar and OUt annual HSemi· nJr-on·the-Gulf:- OUt secUon will con tinue to wotk to develop better reliUions, insight and leadership within the American Bar Association so Yo'(! may be a voice in mailers 0( Interest where otherwise Yo'(! mlghl be forgol. len. I also have goals to fulfi ll our du· Iy 10 Ihe I)ublic and create a positive Image of our profession through such projects as a himdbook for Ihe elderly and a legal services I)amphlel. In his opening remarks as Incoming president of Ihe slate IxIr, Gary Huck· aby e~pfessed a deep concern over what he considered iIn " ominous trend on the oorizon,,. thilt is, our loss of the concept of professionalism. There is a need for all of Ihe b3r. In· cludlng young lawyers, 10 e~hlbltlhc highest Ideals of profesSionalism In our services 10 the public. The young lawyers indeed are the founda tion d this bar as we comprise almost 50 percent of the tolal bar
The A/" bama Lawyer
membership. It is our duty to advance, preserve and foster our ideals as a profession and as iI group dedi· caled 10 public $Crvice. President Huckaby mentioned in his opening remarks lhal hlslory has not(,.'(1 lhatthe downfall of most once-greal societies is Ihal they " forgot where they came from." We should nOI forget where we came from and we should work together closely, particularly as younger lawyers, to grow and develop as lawyers who liymbolize Ihe word "profesSional." Recen tly. I had the opportunity to meel with Ihal exttlimlily lalenled group of young men and women volunteering 10 serve on the Executive Committee or this section. We lire ex· tremely fortunale 10 have a dcdicatL-d group interE!$Ie(! in making a contrlbu· tion 10 our section, both indi vlduJls who are e~pe rienced in Ihe work of Inc Young lawyers' Section al)(! some who are involved in the section for the nrst time, but bring with them Cfl· thusiasm 3nd energy Ih(lt Is helpfvl to us aiL The E~ccutive Committee is your sounding board and method of communica tion 10 Ihe senior bar and to our section , 'I is a make·up of individuals throughoul the stale, and therefore. someone (rom your area Is rcrtdy to be of service to you and your needs. Those compri Sing Ihe memo bership of our E~eaJlive Committee for this year and the v;:trious subcomml ttccs which they chair are:
N. Gunter Guy, Jr. YlS Pr/!'s ident Kei th B. Norman Alab.1ma Slate Bar 4\ 5 Dexter Avenue Montgomery. Alabama 36104 Treasurer Charles R. MI~n . Jr. Johnstone, Adams, Ba iley, Gordon & Harris P.O Box 19BB Mobile, Alabama 36633 Pasl president Charles L. Anderson 'Nood & PJrnell 641 Soulh lawrence Street P.O. Bo~ 4189 MOntgomery, Alabama 36103 Youth Judicial Program
James H. Andersof) Beers. Anderson, Jackson & Smilh P.O. Bo~ t988 Montgomery, Alabama 36102 Pfl'sidenl'ele<;1
Robert R. Baugh SlrOle, Pc rmut1 , M cDermo tt, Sle pl{ln. Friend, Friedman. Hctd & Apolinsky 2222 Arlington Avenue, South r.O Bo~ 55727 UirmlnKham, Alabamll 35255 Grants
W. Percy Badham, III Maynard. Cooper, Frierson & Gille 1200 Watts Building. '2th Floor 3rd Avenue North & 20th Stroot Birmingham, Alabama 35203 Secretary
R. Preston Bolt, Jr. Hand, Arendall, Bedsole, Greaves & Johnston P.O. 80)( 123 Mobile, Alabama 36601 Sandestin Seminar
355
Rebecca Shows Bryan Kinder-Care Learning Centers, Inc, 2400 PreSi(jt!ntS Drive Po. Box 2151 Montgomery, AlabamD 36 197 Bar Admi ssions
Frank B. Polls Polls & Young 107 East Collcge Slree t p.o. Box 1760 Florence, Alabama J5G31 Annua l Bar Meeting- Huntsville
laurJ L. Crum H ill, Hill, Cartel. Fr;mco, Cole & Black P.O. Box 116 M On tgomery, Alabama 36195 Bilr Mmlsslons
Stephen A. Rawc lange, Simpson, Robbl son & Somerville 1700 First Alabama Bank Building Birmingham, Alabama 35203 Continuing legal Education Robert J. Russell, Jr. City Artorn (.'Y P.o. Box 1111 Montgomery, Alabama 36 192 By-laws Commht<..>(!
D. Taylor Flowers Ley,tis, Brackin & Flowers 114 South Oaw! Street P.o. Box 1165 Dothan, Alabama 36302 lOcal Bar L1alson·South
James T. Sasser Wood & Parndl 641 Soulh lawrerl ce Street P.o. Box 4189 Montgomery, Al ab<lm<l 36103 Projects and Public~tions
A. l ester H ayes, III Melton & Espy P.O. Box 1267 Monlgomery, Alabama 36102 Proiec;ts ;md Publications
Stephen W. Shaw Reddin, M i lls & Clilrk 940 FIrst Alabama Bank Building Birmingham, Al abama 35203 Continuing legal Educ aliM
H. Thomas l;efl in MurlSey, Ford & Heflin 110 East 5th Street P.o. DraWi:r 409 llJscumbla, Alabama 36574 Local Bar Llalson·North Sidney W. Jackson, III Jackson & Taylor 61 5t. Joseph Strcet, 151h Floor P.O. Box 894 Mobile, Alilbilm,i 36601 Sandes tin Seminar Frederick T. Kuykendall, !H Cooper, Milch, Crawford, Kuykendall & Whalley 409 21st Streel, Suite 201 Birmingham, Alabama 35203 Projects and Publications J. Terrell M c;Elheny Dominick, Fletcher, Yeilding, Lloyd, P.A. 2121 H ighland Avenue P.o. Box 1387 Birmingham, Alabama 35201 Meeting Arrangements
356
Wood &
Mny A. Slily(!cn 407 Franklin Street, Sou theast Suite Two H untsville, Alabam;) 35601 Annual Bar Meetlng- I'l unlsvilie William O. Walton, III WJlker, H ill, Manu, Umbach & Meadows 294 South 9th Street P.O. Box 2069 Opelika, Alabama 3680 3 Projects and Publications Duane A. Wilson Tilnner, Guin, Ely, I.<Jry & Nei s'NCnder, P.C. Suite 700, CapitJI P~ rk Center 2711 University Boulevard P.o. Box 34B7 Tu sc<lloosa, Alabama 35 403 Projects and PubllClll io ns
Ernest F. Woodson Turner, Onderd onk & Kimbrou gh 1359 Diluphin Street Box 2621 Mobile, Alabam a 36652 SandeStin Seminar
P.o.
It (Ippeilrs Ih,l\ we will h.1.....e Mlolher very active year for our YLS. Jim Pries ter of Birmingham has offered his services as clmirman of one of C1ur public serv ice projects 10 develop., senior c:i ti.<:ens' handbook. Chadie Anderson of Mont· gomery has taken over the Youth Judici al Project and Is working to m<lke It oolwr than ever. Frtlnk Potts ilnd Amy Slayden agreed to put together another exci tin g annual bar meeting In I;untsville In July of 1969. Eac;h of us, as members of the bar, ()\oV(;!S a deep debt of gralitude to these lilWyers for dorlallng their time tlnd helping 10 give our profession a brighter image In the public's eye. If you .ue in· te~ted In contributing to one of these projccts or In helping their ef(o rt ~, plca!le contact me or the Exec !,l l i~ Committee member in charge. Our sf!cliCln has received some excel· lent Ideas to beUer serve the profession and Ihe public from tile VMlous Jffiliate outreach 11roject meeting; provided by the Young lilwyers' Division of the AijA. We hope to continue to send delegates to these meetings in order to ensure our recognition with the ABA and il lsa to df..wlop ideas for some of our future w o. jf..'Cts. This jI(!:II'S pllmncd meetings for Af· filiate OutreaCh Project scrrrinars, a pro. gram sponsored by the ABNYLD, are Dallas, Texa s, and Memphis, Tenn essee. Please remember th(1t the YlS offers an ideal oPllOrtunity to beco"le an integral p;lr\ of our profession<l l association <lnd reap its rewa rds. O ur Proiects and pro. grams offer <In excellenttr~inin g ground for future ICildership, ilnd I hope you can t<lke il small amount of ti'l1e and make a contribution. •
THE BEST STRATEGIST THE REAL ESTATE INVESTMENT GAME ALABAMA CCIM DESIGNEES '1m'IllIg bam
Doth...
JEFfREY A. BAYER, celM
E. PORTtA TltR(M'ER, CClM
A08(RT l . BOHORFOUSH, CClM BfN l . CHENAULT, CClM
WESLEY R. CLINE, CCIM ROBERT A. OONNER, celM
C. COLEMAN DANIEL. II, CCIM ALA" D. DATHOFF, CCIM
F1011nc. BECKY MAULDIN, celM GREGG POUNDERS, eelM
Dull 8hDfl.
JOHN £. HAlL, JR .. CCIM JOSEPH A. LEHMAN, CClM WILLIAM TRO'( McClENDON, CClM JOHN C. STANLEY, celM
-,....
MICHA£ll. CARROll, CCIM
J. RANDLE McKI NNEY, celM
RHnok.
w. tEllL FOX, CCIM
Hunb¥lII.
JOSEPH B. TURNER, CCIM
CAREY p, GILBERT, II. CCIM
MICHAEL GRISHAW, CCIM
R08ERT M. GIVEN, celM JACK HENDRIX, eelM WILlIAM A, HOTZE, eelM STM HOUSE, CClM
RUSS RUSSELL, eelM
JUN~
M. FLEltHER. CCIM
WILlIAM w. HYATT, CClM C. AUSTIN JOHNSON, CClM JOH~ N, LAURlEu.o. CClM THOMAS H. LOWDER, CCIM DON MILTON. CCIM
WILLIAM H. MOSS, eelM SAM E. RUSSEll. JR., eelM
CHARLES B.
TQOO,
CCIM
W.A. WAllS. lit. celM
CHAALES F. WHITE, eelM
The Alabama Lawyer
Millbrook JOAN PARTRIDGE, eelM
Mobil. BIll IlARNH1Ll, CClM J. GAINES BETBEZE, eelM liEN TOM R09£RTS, CCIM EMilY H. SOMMER, eelM RICHARD H. weAVl, CCIM MonlQomary JIM COfER, CClM MICKEY GRIFFIN, CClM
~mIfII
"- (1l1li, COIIId
A ~ or I1le CommercIaIoI""lllmtnl Real ESlIIe CouncM, lilt ~ iItlI1lor CGIlImtrclal and ~mtm rell tllill - - . tJ FIeIIIm NaIIOnII M~ lfI. mut. (RNMI) I/\CI iI1 PlrtflI orollllulion, till NIIIonIl AssOdItion 01 Rla/lora.
Honor Roll of Attorneys Participating in IOLTA (As of September 2&, 1988) The Alabama Law foundation, Inc. an· nounces that the following attorneys and l;r.v firms are particlpmlng In the IOlTA progr.1m. The (oLlndal ion thanks those
BUTLER Hanley &. Hickman Jones. Kennelh R. Williamson & Williamson
particlp'l!ing (or their support. CALHOUN AUTAUCA
CUNeland, Clifford
w.
W.lhhall, George p" Jr, BALDWIN
Armstrong. vaughn &. Floyd Booker & Lassiter ChllsOJ) & Chason
Ferrell, Kath ryn D, Fleming. TIm W.
Floyd, J. langford
foSler; Wills, Bo"on, Dyson &. Swaim Hoiles, Sharon R. Irby &, Heard
Klyce, Thomas W. legal Services COfl)()ratlon of AIOlbama
McKinney, Randy Murchison & Sutley Reid, Stein, Smith &. Bass Shepherd, David P. Slade, Charles ~nnelh , Ir. Stone, Granade, Crosby & Blackburn S~t, Jilmes H. Wilkins, Bankes!!"!r & Biles Will s, Robert A.
BARBOUR Cahon, Jimmy S. Irby, Russell t . Jackson, lynn Robertson Martin, James L. McKinnon, Donald J. Neville, William V., Jr. Pappas. Chri § l l~ G ,
[J,lnkson, MannOn G., Jr. Bolt, lsom, Jackson & Bailey Boozer, Colvin & love Brooks & Brooks Broome, William H. Burnham, Klinefelter, Ha lS(.'Y. JOnes & Caler Campbell, jam~ M. Ghca & Associates Hughes, Patrick P. Knighl, Thomas J, lan(', Wil(ord J. Levinson, Stephen Brian long. HMry P. Lybrand, Fred Ray Mastin, Michilel O. Reid & Th oma ~ Semmes, Thomas M. Sid(.~, Oiliesby, H('ld & Dick StCWMt, V.1ughn M ., II ThOfnllson, John C. V.1rdaman & Vardaman W.lISan, M. H., Jr. Williams &. Harmon Wilson, Pumroy, Rice & Adams CHAMBERS Reynolds, Charles C., Jr. Tucker, Bill ie Anne W.l iton, Wtlllilm 0., Jr. C H~ROKEE
Lmham, Bert McWhorter, Robert 0., Jr. CHILTON
BIBB Hellums. Clarence T., Jr. McElvy &. Ford BLOUNT Bentley, J. Rober! NIlSh & AssodaleS
BULLOCK Jinks, Lynn W., III Rutland, louis C.
358
Bowers &. B~rs Higgins, John M . Jackson, john Hollis Latham, William D. Moorc, C. Richard, Jr. Rogers, joel S,' III CHOCTAW Ezell, Mark ThomP'iOn & Thompson Utsey, McPhearSOn & Christopher
CLARKE DuBose, Sluart C. Keahey, Ronnie E. Kimbrough, William E. Mason, Phillip E. McKinley, Edmon H. lUcker, James A., Jr. CLAY W.ur<!n, John Keith
COFFEE
Blair, SI(.""",n E. Cassady, Fuller & Marsh Li nds('Y & Jared Mci.£!an, D. Bruce
Rowe, Rowe & Sawyer Shirley, l , Merrill
COlBERT Ga rgi s, H. Alan Hcwlett & BliJck McOonnell , Williarn F. Mock, Terry l. Munsey, Ford & Hefl in P.mon, McKelvey & Kenremer Pins, William N, Rosser, Gardner & M a rth~ler CON~CUH
Chapman, William T.• II COVINGTON Albrittons, Givhan & CII(ton
Cook, Allen EdwJfd Grissett. Larry R, Laird, Wesley L. Murphy, Murphy & Bush Powell, f>ooNell & McK.1than R.lbren, Wanda M. C R~NSHAW
Jones, Michael E. Mitchell, Wendell W.
CU LLMA N Brunner, I larry E, Jr. Knight & Grlmth Sapp, Robert A., Jr. Smith & Smith November 1986
DALE Adams, loe W Brogden & Quaulebaum Corbin, lack Fuqu<l & Kominos Garn!!r, W, SMnley Kennington, Ray T. lanier, Robert W. Reese & Reese Robison & Livingston Steagall & Filmore Williams, Bryant F., Jr. DALLAS Chestnut, S<lnders, Sanders, Turner, Williams & l'eniIWiIy Faile, William T. Gambll', Gamble & Cillame Hobbs & Haln Legal Services Corporation of Alabamll Reeves & Stcwafl Sikes & Kelly DEKALB Cooper, John W. legal Services Corporation of Alab.lma McGee & Bussman Millican, Carol I. Noles, Stcvcn Sawyer, c'MJ., II Scott, Charles M. ScrlJggs, WIIII;!!n D., Jr. Wiltson & W,ltson Wtlilr & Wem ElMORE Benson, Unda D. BoYJles & Cottie Hornsby & Schmitt Macon, Joe A., Jr. Scarborough, loseph T., Ir. ESCAMR IA Caffey & Byrd Godwin, Chades R. Stokes, Jernigan Bo· Slakes Stokes, William ROy White, Earnest Ray ETOWAH Copeland & Copeland Cunnlngh<lm, Edward Floyd, Keener, Cusimano & Robens Gannon, Leon Hudson, William D. Inzer, Suttle, Swann & Stlvender Klns. Robert H. Legal Services COlporation of Alabama Millican, Allen The Alabama Lawyer
Pruett, Tumbach & Women Rhea, Ik¥l & Rhea Rhea, DOr'Iaid R. Robens llI'N O((ices Simmons, Ford & Brunson W.men, Kathleen M. White, George B., Ir. Willmd, William R. fRANKLIN Porch, Jerry
c.
GENEVA Kelly & KnoYJles Lee & fleming HOUSTON Bennett, Don P. Brown, Michael B. Buntin, Cobb &- Shealy Connway, J. Michael farmer, Price & Smith Hardwick, Hiluse & Segrest Johnston & Hinesley legal Services Corporation of Alab.'lma lewis, Brackin & Floo.vers Merrill & Harrison P.ukman '" Adam s Ramsey, Baxley & McDougle Smith, J. Earl W.lfd, Jilmes A., III Whitehead, Joseph O. JACKSON Arm strong, Tommy Dawson & McGinty Drummond, Ronald A. Livingston, Porter & Paulk Proctor, John White, ,. William JEffERSON Abele, Mary lee Ainsworth, B. Neal, Jr. Alexander, J. LcstN Alvis, W. Barry Asman, Harry Bains & Terry Oalch & Bingham Barnett. Noble, Hanes, O 'Neal & Cotton 8erkowill:, Lefkovlts. Isom & Kushner Bishop, Colvin & Johnson Blackshet, lames U. Bradley, "'ant, Rose & White Brewer, lohn H. Brower, William J. Brown, H1I)'Cs D. Brown, Jam{.'S N .. III Burford, James F., III
Burr '" Forman Synon, Robert POI Jr. C<ll)<Inl$$, Johnston, Gardner, Dumas & O'Neal Callahan, N.P., Jr. Campbell, John 1 Carson & Steed Cha/'llbers, Michael L. Chamblee, Harris & Coey Chestnut, Sanders, Sanders. Turner, Willl;lms & Pettaw,1y Christ, Chris S. Clark & Scali Clary, J. Carter CI(.'\.(!land '" CIC\'Cland Corley, Moncus & Bynum Cornelius. Walter Costello & Stott Cr.lWford, J. Thomas Damsky, Mitch Oavidson, Ronald A. Davis, Dannie Ray Davis, J. Mason Dawson, William M ., Jr. Dickerson, Onnle D. Dinsmore, J. Wilson Dodd, Hiriam, Jr. Dominick, fletcher, ¥eildln g, Wood & Lloyd Ellis & Fridlin Engel, Hilirston & Joh,mSOl1 Ennis, John 1 , Sr. Eubalik, Robert B. Evans, G. Daniel Falkenberry, John C. F<lfish, Frank R. Fields, M ichael E. fr iedman, Douglas I. fuhrmei ster, James W. Ganus, Gerald A. Gespass, Johnson & Izz l Giortilndo, Charles H. Golden, CasSilndtil Colden, John Gordon, Silberman, Wiggins & Childs GOrham, Willdrep, Stewart, Kendrick &Bryant Griffin, Alli SOn & May Halcomb, Larry L. Hampe, Dillard & FerguSOrl Hare, Wynn. Ncwcll & Newton Haskell, Slaughter & Youn& Haynes, Alicia K. Heal)S & Rilmscy Heninger, Burge & V.u go I-IiSKinbotham, Goorge M. Holliman, James A. Hornsby, Bobby Howard, Calvin M .
35'
Izard, Craig R. Jaffe, Burton & DiGiorgio James, Drayton N. James, forrest H., III Jenkins. Cha5t.ln & SmiTh Johnson, David Cromwell Johnston, A. Eric Johnston, B(lrton, Proctor, Swcdlaw & Naff Johnston, Conwell & Hughes Jones, Clyde E Jonei, Don(lld Hugh Jones, Marcus Andrew Kelley, CI(lrenee S. Kerr, Charles King & King Kramer, James R. Landrum, Roy G. Lange, Simpson. RQbinson & Somerville LanIng & Laning large, E. Ray Lee & Sulll ...an livingston & B.1r1leS London, Yancey & EWol1 longshore, Ev.-vlS & Longshore loran! & Hoillng5WOnh Maring, Harry B. MathIs, William L., Jr. Maynard, COOI)(!r, frier$On & Gale McDougal, Jackie M. McElroy, Andl1!W "I. , III McGowen & McGowen McNamee, Jack B. Mile5, Howard M. Moncus, James R., Jr. Monroe. Jack W, Morri~ & Vann Myers, frank W. Newman, Miller, leo & O'Neal Norlon, Charle. f. Ovson, David F. r.lden, Jack G. Paden & P"den "(loons & Guylon r.lle, lewis & lloyd Panon & Goodwyn
PickOlrd, fred
Pope & Natter Porterfield, Scholl, BainbrIdge, Mlms & Harper PrindoUa, Morris J., Jr. PriTchilrd, MCCillI, }ones, Spencer & O'Kelley Quick & Battles Redden, Mills & Clark Rccvcs & Still Resha, Salem N .. Jr Risner, Rick A. Ritchey & Ritchey RiTchie & Rediker Samsil, D.M . S,lUerwhite. Wayne R. Scalld, Mall School, Ogle, Benton, Gentle & Centeno Sellers, Gene M. Shelby, David Shores, J(lmes l, 51 rote, Pcrmutt, McDermott, Sleplan, friend, Friedman, Held & AIx>Unsky Smilh, Hynds, Blcxker, l oY/thcr & Henderson Smith & Taylor Smith, W. Wheeler Smyer, WhIte & Pull Snable, Anthony D. Snable & Tucker Spain, Gillon, Tilte, Grooms & Blan Spencer, Clifford M ., Jr. St"rnes & Atchison St(.'W:m, Juliil Smeds StockhOlm, Richard J., III Stone, Pill1on, Klercc & Kincaid Stropp & Nakamura Stuckenschnelder, Ted Summerville, Sarah Thompson, Griffis & Hooper Thompson, Ronald F. Tingle, Sexton, Murvin, Watson & Bates Tipler, SII.."A!n D. Tippins, Mark Emon TII>Ion, Guy l. TlolWlck & Eason
Trucks & Trucks Turberville & Maxwell Vilos, James D. Vincent, Hasty, Arnold & Whaley \bY.Iell, Meelheim & McKay WJde, Jeannie Wallilce, Brooke & Byels Wanerson, Singer & DiVito Wear, Sam Bllrke WertheImer, McCord, Feld & Hoffman Wigin ton, Don f. Wiley, John H., III Williams, Carolyn l. William ~, Taliaferro & ledbetter Wilson, Wheeler Winingcr & Wininger Yearout, Myers & Traylor LAUDERDALE Bentl, John R. Burdine, Robert l., Jr. Colebeck, Y,lIes & Mitchell Doggcn, Edw.ud W. freemiln, C. Michael Gonce, Young & Westbrook Harris & Ha s~Jtl ne Hilt/is, Johl\ c., Jr, Hill, Young & Boone Holt, Donald E. Legal Services Corporation of Alabama LeMaster, Smith & Malone Morrow, John 0., Jr. Odem, D,w id Odem, Dennis N. Peck, Harold G. PoellniTz. Cox lit Jones Schuessler & Sandlin Simpson, Curtis Smith, Robert F. Slilnsell, Jim Wilson, Marvin A. LAWRENCE Milrlin, D.l. O\~I\S, William A., Jr.
FORENSIC AUDIOLOGY
._-
MICHAEL F. SEIDEMANN, Ph.D.
TRAFFIC ACCIDENT RECONSTRUCTION
EXPERT WITNESS
• HHrInQ loll Cue.
ALBERT MEDINA ~ Q( / .. /~" · .. b,,.v.9i?.·. ·d ~0 . 1OX
360
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• AlII.tWIC. 10 counMl In r~', Dteper.1Ion to!' tr'-I '" ~.". crMeal. II:fdfmle. ~aI. , .....rclt .(p.rlfllC. 1 2 ~. CV ,y.llf,bII PAST PRESIDENT · 6 tta", national, Jntef/lllriontrl or~~lrkIn. 26 M.o.r. C1. Kenll6f , LA 70005 (504) 443·5870
November 1966
Rogers, W. 1-1 . Spc;,ke & Spc:lkc White, Don R.
MADISON Bilrclay, Jerry Sanford Bcrry, Ables, T:ltum, Little & Baxter Bradley, Arant, Rose & White Caylor, lohn W, ( I:lrk, Scott, Spurrier, Rice & Henderson Clcary, Lee, Morris, Smith, Evans & ROY.'e Davis, W,l lter Allen Ford, Caldwell, Ford & Payne Gritce, Gary K. Creen, John W , III Harrison, John Wyly Hathcock, Douglas W. Herrington, Forest D. Hornsby, Blitnkenshlp. Robinson & Mcginniss Humphrey, Currun C. K.wanaugh, Milrilyn S, King. Charles C. Llmmons, Bell & Sneed l..1nler. Shaver & Herri ng Leo & Associates McDilOlel, Mark McDaniel & Mc Danl~ McDonald, Thomas D Parsons & Eberhardt Pattcrson, Robert E. Poller, Ern~1 L.
lEE Brown, MMgaret y, 1" <l'fKood, Benson, Cleveland & Pierce Jones, Thomas E. Legal Services Corporation Of Alabilmil McNeill, Marrt!lIl. SeMCY, L. Du ke Spear & TCilgue Thrash, /ilmes R. Whi ttelscy, Ray & Tipton Winter, Candace E. LIMESTONE AI(!KJnder, Corder & Plunk Croomes, E. Stc-.t!n Pillion, Latham, Legge & Cole OlNens, William A., Ir. Ra1l.>y, Landy Sherrill & GilliS MACON Bulls, Albert Clarence, III Gray, Langford, Sapp & Mc(joy.tan Rayn'l()n, Nath:lnson & Raymon
Price & Smith Riley, Trey Sandlin, MMk Simpson, Fred 8. Slayden, Amy A, Smith & Waldrop Smllh, GalnC5, Caines & Sabatini Stcl>hens, Millirons, Hilfflson & Williams Suther!!n, Jerrllee P. Uhrig, Munger & HO'Ward Wa tson, Gammons & Fees W,l tl $, Salmon, Roberts, Manning & Noojin Williams, Goorge K. Willis50n & Tucker Wilson, Stephen M. MARENGO COI)lI n, William T., Jr. Lloyd, Dinning, 80ggs & Dinning Manley & Traeger Poole, William S., Jr, MARION Fite, Oavis, Nkinson & 8entley 150m, Jackie O. Vinson, Guyton & \M>od
--------------The Avis Associat iOn Member Benefit Pl'08ram offers special low rates, repre senting a sreat savin$5 opportunity. That. along with many time-saving servrces, makes AVIS an extra - and valuable benefit of your membership. Whether you're traveling !of business or pleasure. Avis is the easy and economical Wfri to go, all year 'round. And now, when you present this &d at Avis the next time you reserve an intermediate or lull size, 2-doof-WOOp car, YOU'll be upgraded to the next higher car group at no extra chargel Just be sure to mention your Avis Ylbrldwlcle Discount (AWOl numbef when you call lor Avis reseMtions:
MEMBERS OF THE ALABAMA STATE BAR NA530 100
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the !wls "Specfal Promotion" reservation number:
1·800·831·8000
..
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i:I take advanlaie of this special upgrade offer, <:till
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The Alabama laW)-er
3.,
MARSHAll Barnell, Hundley & Driskill Beard & Beard Bryan, MlchaelB. Burke & Beuoy Ev,lns, David J., Jr. Gullahorn & Hart! Jones, David lee Ogden, E. Charles, III Walker, James D. Warnes & Roadruck MOB ilE Alcx.lndcr, Richard Alldor, Gary P. Allen & Fernandez Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves Bradley, Ma rc E, Briskman & Binion Brown, I-ludKcns, RlchlHdson Brunson, Joseph 1 8ry;lnt, Thomas E., Jr. Burns & Mack~ Cabaniss, Johnston, Gardner, Dumas & O'Neal Caddell, Henr~ H. Clark, Deen & Copeland Clark, Scott & Sullivan Collins, Gall(M',l)' & Smith Conrad, Hammond & 8arlar Crosby, Saad & B~bc Cunnint\ham, Fr;mk D. DMIJy & Danner Deas, Thomas A. Delancy & DeLlncy Doyle, Pilul & Smith Doyle, Thomas I'. Drinkard, Vau~an , Jr. Edington, Robert S. Engel, walsh & Zoghby Flynn & Hu('y FrlLodlander, Gregory M. Friccllander, Nathan P. Furman, John Grodsky & Mitchell Haas, Thomas M. Hall, Theodore l . Hand, Arendall, Bedsole, Greaws & JohnSton Hanley, Nell l. Harris, William H. 1路larrison, Thomas Hawkins & Clarke HIli & Hill Holberg & Danley Inge. McMillan, Adams, CoIl'Y & ledyard Ingc, Twilty, Duffy, Prince & McKean Jackson & Taylor 362
Jackson, Sidney W.. III Johnstone, Adams, Bailey, Gordon & Harris Kulakowski, Joseph 0. La1!Qf & Gardner Lcll<ll Services Corporation of Alabama IQ.ocless & Banks Madden, Arthur J., Ut Mantiply, Mary Beth Marr & Friedlander Matranga, Joseph M. McDonough & Broome McFadden, Wil loughby & Rouse McKnight, Charles N, MCRight, Jackson, Myrick & Moore Mills, James David Mitchell, S. Fehoo, Jr, Moore & Downing Mooresmith, John T. Nelson, Edgar R. Nel1lc5, Barker, Janecky & Copel,md Noojln, Bert P. Pilte, Richard F. Pennington, AI Pennington, McClcwe & Pal1erson Perry, Linda S. Perry, R. John Pillman, Craig S. PoS1.'Y, Meli ssa A , Ratcliffe, David L. Shields, Richard E. Silver, \bit & Ingl! Slnt1, Campbell, Duke, Taylor & Cunningham Spears, Janice 0, Stein & Brewster Stockman & Bedsole StrCCt, Charles S. T.l)'lor, Richard H. Tcrran(]\'{l & Seelnlan Thetford, Joseph D. Tibbets, Edward R. Thrner, Onderdonk & Kim brough Tyson & Tyson Vickers, Rlls, Mu rray & Curran Watson, Slade Wilson, Roben C. York, Jay A. MONROE Hare & Hare MONTGOMERY Anderson, Waher Mark, Itt Balch & Bingham Balske & Van Almen Beers, Anderson, Jackson & SmIth
Benkwith & Heard Blanchard, William R. Bowen & Carr Campbell, MJrvin H. Capell, Howard, Knabe & Cobbs Carroll , Man;el E. Cates, John D., Jr. CI;lrke, Janic Baker Copeland, Franco, Scf(!W$ & Gill Craven, larry E. Diamond, Stlm l. Freeman, Douglas C. Fuller, J. Doyle Gobrecht, william W. Htlrris & Harris Haskell, Slaughter & YOllng Heller, I-Ienry I-Ioward, Albert Oscar HumphrIes, Roben L. legal Services Corporation of Alabama Livingston, Edwin K. Mandell & Boyd Massey, Means & Thom.lS Mclnish, Bright & Chambless Mclain & Hampton Mclaney, C. KnOlC, III McPherson, Vanzetta ~nn Mehon & Espy Mooneyham, SJrJh B. Moore, Kendrick, GlasSIOth, Harris & While Parker & Brantley Parker & Kotooc Pool, Jimmy 8. Powers & willis Reaves, Randolph p, Rushton, $tilkely, JOhllston & GiHrcti SchrOl.>der, lanet S. Steincr, Crum & Baker Stiller, Mlckl B. Teague, Barry E. Turner, Wilson & Christ an W,lkefleld, George I-I., Jr. Wood & Pilrnell
MORGAN Brown & Willman Cauthen & Cauthen Chenault, 1路lammond, Buck & Htlil Coleman, A.J. Dillard, J. Tilden Edwards, Bingham 0, ~nder,
Wesley M.
lentz, Nelson, Whitmire & House McBride, Calvin Propst. J05(!ph W., III Roby, Norm(ln November 1988
Terry, Michael F Tweedy, Roberl F.
PERRY Barnes, James M., Jr. Chestnut Sanders, Sanders. Turner, Williams & l'enaw:.y PUCE Calhoun, Wl tkins & Clower Ctlrvera &- Ralph Dickert, Don C. Jones, Allen C. Magee, TImothy J. PeJ(rey, V. Lee RANDOLPH Hamner, lewis H. Tinney, John A. RUSSEll Btlilamy, Michilel J. Cornell & Ivins Graham & E~dl landreau & Brown Lcgal Services Corporation of Alabama Phill ips & Funderburk SHELBY Brackin, Unda Causey, V. W.lyne Fuhrmelster, James w. Gn..>en & Plno Griffin, Allison & MJY Jackson, Ronald E. Joiner, J. Michael Lagman, McBrayer & Fuhrmelsttlr Medaris, John E. Morlon, Wadc H. , Jr. Shu leva, Richard C. Speart, Mllchell A. Swatek, William E. W,llden & Wdldt'!n W,lllace, Ellis, Head & Fowler SUMTER Upchurch & Upch\lfI: h TALLADEGA
Bell & landers Robbins, Ray f., II Thompson, Bill IIwboten, Thornton, Carpenter. O'Brien & Lazenby
TUSCA LOOSA Adam s, Donald R. Barton & Maddox Bax\(!r & Wilson Burns, Claude Mo , Jr. Burns, Elli s, Copeland & Usenby
The Alabama L.1wyer
Cartee, Michael J. Cockrell & Cockfl!U Corbett, Mary Ann Croo.vnQYer & Coleman deCraffenried, Tipton & Donaldson Dishuck, laCoste & Black Donald, Randall, Donald & Hamner Drilke, Kn()INles & Pierce Cilrrett, Ginger E. Gray, Esl1t' & Nettles Hilrdln & Wise I-Iarris, George W. Hawkins, Hank Henlf!y, Walter Hubbard, Waldrop, Reynolds. O,wls & Mcilwain Hudson, Jerry Kennedy, William H. L1W School Clinical Program Ll.'e, Barrett, Mullins, Smith & Smithart legil l SQrvices Corporation of Alabama Mountain & Mount;,in Phelps, ~nS, Jenkins, Gibson & Fowler Prince. McGuire & Coogler Ray, Oliver, W<trd & Parsons Rosen, Harwood, Cook & Sledge Smalley, Donna Wesson Smith, James D. Smith, Reginald W. TJnner, Guin, Ely, lary & Nciswender
Thompson & Stil$On Watson & Harrl$On Whitehurst & Whi tehurst Williams & Pradat Williams, Wayne l. Williams, Willi;HllS, Williams & Williams Wooldridgc, Wooldridge & Malone Zcanah. Hust & Summerford
WALKER Be<lird, Thomas & Higgins Elliott & Ellioll GUSlin &. Smith M<tddox, Maclaurin, Nicholson & Thornley Robinson & Nel$On Selman, Beaird & Selman Wilson & King WASH INGTON
Llurie, S.I. Odom, H<lfold Turner, Onderdonk & Kimbrough Wolf(! & Ware WILCOX
Bonner. W.J., Jr. WINSTON
James & lowe Richardson, Ann R.
â&#x20AC;˘
ALABAMA BAR INSTITUTE FOR CONTINUING LEGAL EDUCATION
CHARACTER EVIDENCE SEMINAR A Comprehensive Approach Compari ng State and Federal Rules
featuring
PROFESSOR CHARLES GAMBLE Friday, December 2, 1988 Harbert Center, Birmingham Friday, December 9, 1988 Ramada Inn, Airport Blvd., Mobile For more information contact
ABICLE, P.O. Box CL, Tuscaloosa, AL 35487, (205) 348-6230
363
Honor Roll of Financial Institutions (Asof September 26, 1988) The "Inbam.. law Foundallo", Inc. an· nOunces thallhe foll owing flMnclol in· stllUlions are P<lrlieip..1tinS In the IOlTA
program. The fourKIation thanks these instit utions for the r partlclp.1'ion.
" lab-1m3 EKchange Bank, Tuskegee AltU5 Bank' AmSoulh Billlk· Auburn National Bank
Bank Independe'lt. Florence Bank of Albenville Bank of Dadevil e
Bank of Mobile Bank of Priluville Granlll.." • Bank & TrUSt Company (nh;II)(I Bank & Trust
C" mden Nat ional Bank Cenlf;!1 Bank of the South"
Central State Bank. Calera Citizens Indepeodent Bank Ciliz('n's Federal s..wings Bank CItizen's Na!ion~l Bank of ShllWmut City Feder\il S(Wings & Loolll Assocation
Colonial Bank· Commerci(ll Blink of OZMk CommCr(ial Bank of Roanoke
Commercial National Bank, Demopolis Commonwealth National Bank
Covington County Bank E;.;change Bimk of Attalla filrmers & Merch;lO ts Bank, Ariton Farmers & Merchilllts Bank, laFayette Farmers & Merl;hantS Bank, OZiUk Farmers & Mermants Bank of RlIssell County First Alabama B;ink· First American 8ank, Oocatur First American 8ank of Pelham Firs t American Feder.ll S<wl ngs & loan, Huntsville First Bank & Trust, GrO'v'C HIli First Bank of Baldwin County
364
Fi rst Citlleru Bank, tuverne First Commercial Bank, Birmingham First Community Bank, Chatom First Federal Savings & Loan, Gadsden First Federal SilVings & lOan of Bessemer First Feder.al Savings & Loan of Florence First Federal Savings & loan of Russell County First FI.'deral Savings Bank, Decillur First MontgomC!ty B~nk First National Bank, Ashland First National Bank, Brewton First National Bank, Opelika First National Bank of Atmore First National Bank of Brundidge First Nillional Bank of Columbiana First Nationa l Bank of Florence First National Bank of Hamilton First National Bank of Jasper First National Bank of Scottsboro First National Bank of T.llladcga First National Bank of Tuskaloosa First National Bank of Union Springs First St:lte Bank of Bibb County First State Bank of Tuscaloosa Fort Rucker National BMk Jacobs Bank, Scottsboro MJrlon Bank & Trust Coml>"lny Merchants & Planters Bank, Montevallo Merchants Bank, Jackson Monroe County Bank Nallonal Bank of Commerce, Blrminghllm Peoples Bank, Elba l:troples Bank & Tru~t, Selma Peoples Bank d CuUMan County Peoples Independent Bank, Bo.1;I; Phenix Girard Bank Pike County Bank Robert son Banking Comp,my, Dcmol>o!is Stocor Bank· Southland Bank, Clayton
Southland Bank of Dotha'l SouthTrus t Bank, Auburn SouthTrust B3Ilk, Tuskegee SouthTrust Bank of Alabama SouthTrust Bank of Andalusia SouthTrust Bank of Arab SouthTrust Bank of Ba ldwin County SouthTrust Bank of Calhoun County SouthTrust Bank of Cullman SouthTrust Bank of Dothan SouthTrust Bank 0( Elba SouthTrust Bank of Etowah Coonty SouthTrust Bank of Hunlsville SouthTrust Bank of Mobile SouthTrust Bank of Montgomery SouthTrust Bank of Ollark SouthTrust Bank of the Quad Cities SouthTrust Bilnk of Randolph County SouthTrust Bank of Selma SouthTrust Bank of Talladega CQunty SOUlhTrust Blink 01 Tuscaloos.l County Sweet Water State Bank The "'morlean Bank, GenC\lil The Bank of Tallassee The Choctaw Bank of Butlor The Cltlllens Bank, Enterprise The Citizens Bank, Moulton The CltillenS Bank of Valley Head The Peoples Bank, East J.ltrassce The Peoples Bank & Trust, Grcenvilll! The Peoples Savings Bank, Clanton The Perry County Bank Troy [Jallk & Trust Company Tuskl!getl f ederal Savings & loan Association Union Bank & Trust Company, Montgomery Union Stilte Bank, Birmingham United Security Bank, Butler Winfield State Bank, Win field *Financlal Instltul lons p."tlcll>tltlng stat('Wldc •
November 1988
•
q
One of the strengths or the Alabama Slat(! Bar Is lis SOCtions. AlthollSh membership in state bar 5eCtiOOS Is high, not all lawyers arc members of seCtiOM. Bclnga member of a bar section assists you In )'Our particular area or areas of practice and also allows you to participate in the dC\lelopments occurring In your practice areas. If)'Ou prt.'SentIyare not a member of a section, you <Ire encouraged \0 join. Below are the sectiOnS of the stale bar, their orficcrs for 1988-89 and information about each:
Adminislralivc 1..1W Section Chairperson John T, Moorcsm ith
2970 Conage Hili Road Mobile, AL 36606
120S) 479-0953 Vice-chairl>erson
Ronald J.
~cn
201 IIllmlnlstralive Building Montgomery, AL 36130
(20S) 26 1·)350
Chalrperson.elect AI L. Vreeland
P.o. Box 2716 lUscaloosa, Al 3540) (20S) 345-3440
Secretary.treasurer M. Frank Caskey P.O. BOIl 1910 Montgomery, ill 36102
(205) 264·6401 Executive commln(!C Alvin T. Prestv.ood P.O. Box 1910 Montgomery, Al 36102 (205) 264-£'401 Charles Wasner Jefferson County Courthousc 716 North 21st Street Birmingham, Al 35263 (205) 325·5688 Georgc E. Hutchinson 2368 ralrlane Drive, Suile E·37 Montgomery, Al 36116 (205) 27()'9606 Admlnlwation law Settlon members are lawyers Interested In admlniSlratiyc I)rocecdlngs at the (e<!cral and stale 1t.'VCls. Members Include 8O'JCrnmcnl illlorn(l'1'5, as well as priva te pr,1ctltioners. Thi s scction l)resents a program during the annual mceli ng o( the Stilte bar Q!ld has been active in Ihe Iml)lementiltion of the Alabama Administrative Procedure Act. The §Cetion also sponsors the Eugene W. Carter Med.lllion, given an. nually to a former public smvant lor exTile Alabama La\\o)'er
cellence in balancing Ihe rights o( individuals a8ilinSt the Ir'ltcrests of government. Annual memlX!lship dUiK MC $2Q
Ba nkruptcy and Comme rcial law Section Chairperson lee R. Benton P.O. Dlawcr 1865 Birmingham, Al 35201 (20S) 324-4893 Vi cl.'-Chairpcrson E. Tcrry Bl'OYo'n P.O. Box 347 Montgomery, Al 36101 (205) 834·1180 Sccrel,lfY Robcrt 11. Rubin P.O. Box 55727 BirminHham, Al 352SS (205) 913-n11 Treasurer Romaine S. Scou, III P.O. Box 106 81rmlngham, Al 35201 (205) 251-6100 The primary purpose of the Bilnkruptcy and Commercial !..lW Section is to fa· cllltate communication "mOOH Its members concerning bankfuptcy and commercia I law molttcrs ar'ld legal dl.'Cisions, with a view toward promotingconslSt~nt ilPI)llca1ion of these laws In Ihe v.ulous districts ilnd circui ts o( "Iaoomil. The SC(tion h;r~ four standing committees: oonk· ruptcy practice; commercial practice; ClEiannual meeting: and communlcatlooslncwslettef'i. Additional committees are appointed On an ad hoc basis. The section also Is Involved in prQmotinH legislation needed in Ihe commerclallilW pr.lctlce. The anr\ual dul'S (or Roetion membe.... are $15.
Business Torts and Antitrust Secti on Chairperson Andrl."W P. Campbell 425 1St Alaoom3 Bank Building
Birmingham, Al 3520) (205) 251-5900 Vlce-chalrperson LInda A. Friedman 1400 Park Place Tower Birmingham, Al 3520)
OOS) 252-4500 Secretary-treasurer Johnathan H. Wdller 600 Flf'!ot Nat'l. Sou. NillUrOlI Bldg. Birmingham, AL ]S203 (20S) 251-1000 Newsletter edItor Carol H. Stewart 3000 SourhTruSI Tl)Wt!r Birmingham, AL 35203 (20S) 251-3000 This section is concerned with busin(.'Ss litigation, Including antitrust, trade reHulation, interference with businc§Srelations, def;lma!ion of business, stock· holder litigation and employment relation s. An ar'lllual seminar u'ually 15 held, and meetings also are held during the ,InnUill meeting of the mte bar. Section duc§ are $15. Criminal l aw Section Chairpeoon T. leff Deen, III P.O. Box 2705 Mobile, Al 36652 (205) 43J..5660 Immediate paSI chairperson V. AI Pennington P.o. Box 342 Mobile, ill 16601 (205) 412-1661 The Crimlnall.."rW Section Is comprrsed of b..1r members having an inlCrC5l ln mat· lers relating 10 the criminililuslice s~tem of our stilte and federal courts. No dues are required, and memlx>N1lp Is open to all mcmben of the S!;ltC oor expressing an Inlt"rcst. The aroa of cri"lnal liI'N is constantly changing arId prO\lidcs many 0PllOrtunitlcs for active discussiOn and Input. Involvement In this scctlon will pf'OYide members wrth contacts through· out the state. Environrnc nlai law Section Chalrpcrsor\ T. Bruce McGowin
l65
p.o. Bo)( 123 Mobne, Al ]6601 (205) 432·55 11 Vice-chalfl)e rson I. Ross Forman, III 3000 SoUlhlrust TO'NCf Birmingham, Al 35203 (205) 251-3000 Chairperson-elect R. Craig Kneisel 11 South UnIon Street Montgomery, Al 361 30 (205) 261·'406 Secretary Robetl R. Reid, Ir. 1400 Park Place Tower Birmingham, ,4.l 35203 (205) 252·4500 Trea ~ urer
O. 1'1TlleS Goodwyn, Ir. 64 North Union Street Montgomery, Al 36130 (205) 261-3165 Membership chairperson Ronald W. f,uley 1751 Federal Drive Montgomery, Al 36130 (205) 271-785 5 Progrilm ~
ch.'\ltpf:rson Neil C. lohnston P.O. Box 123 Mobile, Al 36601 (205) 432·5511
Services and activities of Ihe Envlronmenta) Law Section are professIonal 1m· provcmcnt in the field of environment,,1 law, ,lnalysis and reponing to members of developments in thc field and com· munication with other lawyers practicing In the environmental law area. Annual dues are $15.
Huntsville, Al )5801 (205) 536-9900 Treasurer J. Michael Manasco P.O. Box 5022 Montgomery, Al 3610) (205) 26)-23)3 Secretary-ed ltor J. Ronald Boyd SIC. )02, 2801 University Blvd. BirminKham, Al 352)3 (205) 930-9000 The Family law Section of Ihe Alilhama State Bar Will established In 1984. It publishes a newsletter for the benefit of family law practitioners. It also has a legislation subcommittee whose fun ction Is 10 consider state and feder'}l legislation In Ihe 3rea of f3mlly IlIw and lhe lilW o( domestic relations an05UKI:\eSI needed refo rms. The section has a leglll education subsection which presents programs for the members. Annual dues are $15.
labor Law Seclion Chairperson W. Bra)(ton Schell, Jr. 1400 rark Place Tower Birmingham, Al 35203 (205) 252-4500 Vtce-chairpef'5Qn J. PatriCk logan 3000 SouthTrust Tower Birmingham, AL 3520) (205) 251·3000
Past chaIrperson loseph C. Su llivan, Jr. P.O. Bo)( 1743 Mobile, Al 36633 (205) 4)2-751' Chalrperson-elect lcrrilec P. Sutherlin 112G South Side Square 3••
This section includes lawyers from throughout the stille wh:lse prJctice involves work in the areils of labor Inw, (air employment law, employee bene(Jts law and occupational safety and heallh law. In addition to providing a forum for Ihe exchange of Information and Ideas, the section sponsors an aflnuill, two-day labor law seminar lind, wllh the 13bor law sections of v{lriOIJS other state bars, co-sponsors an annual multl-stilte labor and employment law seminar. Dues are $25 for lawyers with five Of more years of practice and $10 for lawyers with less thM live years of pracUce. litigation Section Chllirperson Carroll H. Sulli'l;1O P.o. Bo)( 1034 Mobile, Al 3663) (205) 433-1346 Vtce-chairpersoo John P. SCOtt, Jr. P.O. 8 0)( 306 Birmingham, Al 35201 (205) 251·8100 St.-cretary-treasu rer Charles M. Crook 1'.0. Bo)( ?'8 Montgomery, Al 36101 (205) 834·&500
J. Richard Carrigan
The litigation Section S(.'()ks 10 (1 ) provide a forum where all trial aUorneys may moot and discuss common I)roblems; (2) provide an extensive educational program to imprO'ol'e the competency of the trial bar; Md (3) Impl'OYC the effiCiency, uniformity 3nd economy of IIt;8<1Iioo 300 work to curb ilbuses of the judicial precess. Annual dues arc $15.
P.O. Box 306 Birmingham, Al 35201 (205) 251-8 100
Oil, Gas and Mineral L.1w Section
SccrClary.trcasu rer Joe R. Whatley, lr. SIC. 201, 409 North 21st Street Birmingham, Al 35203 (205) 328-9576 E~()cUli'o1'!
Family L.1W Section Chairperson G. Richard Fernambucq Ste. )02, 2801 University Blvd. Birmingham, Al )5223 (2051 9)0-9000
Birmingham, Al )5203 (205) 322·1100
commll1l'e
PaulO. Myrick P.o. So)( 2846 Mobile, Al 36652 (205) 4)2·3444 loseph W. Spransy P.o. Box 10406 Birmingham, Al 35202 (205) 254-7252 John C. Falkenberry Slh Floor, 300 21st Street, North
Chilirperson John W. Donald, Jr. P.o. Bo)( 1743 Mobile, Al )6633 (20S) 432-751 7 Vlce-chalrperson Oil & Gas David E. Hudgens P.o. 80x 290 Mobile, Al 36601 (205) 432-6751 November 1988
Vic::e-chalrperson Hard Mlneral ~ Harold D. Rice, Ir. P.O. Box C-79 Birmingham, AL 35263 (205) 254·746 1
and probate maners and reports other matlers or Current interest relating to these loplcs. A yearly seminar Is held in con junction with the annual mt-'Cling of the state bar. Dues are $10.
S\.'Cretary Stephen W. Stili P.O, 801( 25&3 Birmingham, AL 35202-25&3 (205) 325-7102
Ta xation Section Chalrpersoll 8ruce P. Ely P,O. BOl( 2487 Tuscaloosa, AL 35"03 (205) 349-4300
Trei\su fCr DOlbncy Brasg Foshee P.O. BOl( 290 Mobile, AL 36&01 (205) 432·&751 The Oil. Gas and Mineral law Section was established In t97& ilnd consists o( an 011 and gas division and a hard minerals dlvisioll. The primary purpos~ of the section Is to keep Its members apprised of developments In Ihe law, and this Is acconlplishoo Iyt' co-sponsoring with the Atabolm~ Bar Institute (or CLf an annual seminar on all, gas and mlner,,1 lilw, as well as sl>onsorlng il "mlniseminar" 3t Ihe seelion meeting during the ilnnUill meeting 01 the stilte bar, 11.11nual dues are $15. Real Property, Proboltc and Trust Law Seclion Chalrpcrsoll WIlliam K. Martin P,O. BOl( 20&9 M0n1g0mery, AL 36197 (205) 2&2-1&71 V1ce-chil i rperson Charles R. Smith P.O. Box 68 I-tWilSVIlIl!, AL 35804 (205) 53].9025 Secreta I)"treasurcr Romaine S. SCali, tu P.O. Box 30& Birmingham, AL 35201 12051 251-8100 This section cooperates with and assists the Cumberland Institute for Contlnuinglcg.ll Educa tion In PfCp;lring alld presenting programs relating to real properly, nust and probate mailers (or members of Ihe Ala~ma Slille Bar. The section, also In cooperation with the Cumbelland School of Law, publishes iI peri. odic nev.-slener ~iewing recent court decisions dealing wilh real property, tru$t The Alabama Lawyer
Vlce-chalrpcrson Roy J. Crawford 1900 Flnl Nat'I.·Sou. Natural aldg. Birmingham, AL 35203 (205) 252-8800 Sccretary.-treasurer Ilcnry Hamilton Hutchinson, III P.O. Box 2069 Montgomery, AL 36197 (205) 241-8070 Membership in thi s section is primari. Iy compo5(!(l or tal( practitioners. The sec· tion gives special emphasis to Alabama tax maners and has been in\lOlvcd in changing Alabama law ilnd assisting the Dcp..1rtmCnl of Revenue In wrlling lax regutatlOrlS. A program Is held each ".,:-ar during the annual mooting of the state boIr, Section dues are $ 10. Young lawyers' Sect ion President N, Gunter Guy, Jr. P.O. Box 307 Montgomery, AL 36104 (205) 2&4-8118 Prcslclcnt-elect James H, Aooerson P.O. Bo)( 1966 Montgomery, AL 36102 (205) 634-5311 Secretary W. Percy Badham, III 12th Floor WailS Building Birmingham, AL 35203 (205) 2S2-2889 Treasurer Keith B. Norman P.O. Box &71 Montgomery, AL 3&104 (205) 2&9-1515 P,lSt presldellt Charles R. M ixon, Jr. P.O. BOI( 1988
Mobile, AL 3&&33 (205) 432·7682 The Young Lawyers' Section of Ihe Alabama Slate Bar Is composed of all lawyers who arc 36 yeal'5 of agc and under or who have been admlnoo to the b.lr fOt three years or less. The section conducts various seminars throughout the state for lawyers and other professionals. It also sponsor$ selVice projects designed 10 aid the publiC in their urlderst,mdlng of the law alld assists in sol .... Ing legal problems. There arc no dues since I>coons who arc members of the Alabama Stale Bar and ful fi ll the age or admission requirements automatically arc members. Anyone interested In becoming actlYely involved in projects of the Young Lawyers' Section should conI.l et N. Gunter Guy, Ir., pre.ldent 198689. °No o(fiCCr$ ~re eleclcd for Ihe COr-
poral/on, Banking and Business l.aw Secfion for 1988·89. . , • M ore commiHecs and task forces In oddition to the commlnees and task forces IlPl>earlng in the last edition of The A/,lbtlm" liIwyer, President Huckaby appointed bar members to serve on Ihc follr:M'ing committees i.\nd task forces for 1968-89: Federal Tal( Clinic L. Lister Hill, Montgomery Robert C. Tanner, Tuscaloosa Jackson P BUI""VVCII, Hu ntsville L.B. Feld, Birmingham Zebulon M ,P, Inge, Mobile William E. Shanks, Jr., Birmingham Gerilld W. Hardey, Montgomery Richard I. Brockman, Birmingham Scott E. Ludwig. Huntsville Keith 8. Norman, staff liaison, Monlgomery Task Force on Ihe Annual M eeling Robert Sellers Smith, cl':alrperSOn, Huntsvi lle Douglas C. Martinson, Huntsville William K. Bell, Huntsville Paul A. Polte, Huntsville Reginald T, Hamner, staff liaison, Montgomery Task force o n Implicalions of Compulsory Bar M embersh ip Ben H, Harris, Jr., chairperson, Mobile WIlliam D. ScI\l885, Jr., Fort Payne M. Roland Nachman, Jr., Montgomery Reginald T. 1-iamner, staff liaison, MOntgomery •
367
Consultant's Corner The fo llowing is a
r~iew
of arid com·
me"t.u), on an office automation issue with current imporl.lrlce to Ihe legal
community, prepared by the office a utomation co nsutlilnl to the slilte bar, P.lul Bornstein, whose yiew5 ilrc nOI nt.'Ccssaril y those of Ihe slale bar. This is the ni nt h ilrlide in our "(I)nsultanl's Corner" series. We wou ld like to hear from you, both In critique of the
article wrillen and suggestions of topics for future art ides.
Operating
variety of names, be it XENIX, CTIX, as along as it ends in '·IX." It is the sY5tem generally regard(od as th~ pr('micr one for scientific and technical applications. The "knock" on UN IX-type operallng systern s is that they are relaliV('ly dimcult to utili7.e (true). This is not a particularly Significant conslderiltion for engineers and scienti sts, bu t it is for mere mortals. Ir"ercstlr'gly, two of the big-time legill Industry play<!r'S, Lanier and InformaTics, recen tly h:wc made strategic decisions to shift from UNIX to DOS. Th(> shift doos not signal abandonment of UNIX·based (lpplication s, but it does begin to loll the beginning of the end (or them .
d:lims of the rel.!live efficacy of various
olX!ra,1r18 systcr'llSI Afe they truly dlf· ferent/ Will one become "the sIOlndard"
and relegate the rest to the status of "obsolete?" Does il matter?
Wh", Me OI)Craling systemsl
368
052- is IBM's dcspcI.ltc gamble to churn the PC market and try to Induc(' users to junk whatever they hO\lC In favor of the new P52 fJmUy of products, Firs t, 052 is not yet available, and may nOT be ul'll il next yeilr, Second. trade sources reporl that OS2 currently requ ires 4.5 megnbyles of main memory 10 e~ecu t e. Third, 1101 all model~ of the P52 fam ily can support 052. There was a time when IBM could scI! ar'lythlng they made, simply on the strength of (heir mptJt.ltlon. That time ended with PC jr. DOS-for all Its shortcomings, this probably is going to re main as close to an industry standard as there is for the next sC\lCf(ll ye(lrs, More importilntly, it is Ihe operatin g sys tem for which the OIl>plic.ltion IIfo!ndors have written the prepond(>rance of their USCI' progrdr'll$. True, 110t all legal software is PC-based. All the rna/or vcndors h~ mini<oml)Uter·based systems specifically designed for "big" law firms, All these mini-based systems run under proprietary IICndorspecific operating systems (Wang VS, IUM OSNS, 61lrrister 60S, etc). Equally true, the so-called "super-micros" rapidly Me approaching the capability of minicomputers. In this envirOllment DOS is the dominan t opera ting system and is likely to mmaln the dominant operating system for the next five ~ars.
~ySlcm s
Uni)(/ Xcnix/ DOSI Network 0051 Milclnloshl 0521 Whil\ Cfl ll (S hould) iI mere mOrtal do fi'lced wi th competing
Cood Question. There currently are four major opcr~ting 5~ tcms competing for the t i t l~ of "industry ~t;mdard'!....UNIX , DOS, 052 and Macintosh. All oper.1tlng system Is a computer's tramc cop, controlling such (uncti olls as screen Input data format stora ge, printer (and 110 tasks), graphics support, etc, They are distinct from applica tion softWilre, the programs thilt InVl,llve the manipulation of data into fik'S and reports. Ol>crating s~tcm5 arc supposed to be "hlm/w.ue ind('l:.end('r'1I:' They are not (exactly). They are supposed 10 be ~$Ortw.l re Independent," They are not (exactly). Taking a look at them in no particular order: UN I X-i s an opera t ing sys tem dC\lCloped by Bell Laboratories and Iic~n~l)'d to miln)' other vendOrS wld!)r a
not one abou t which the legal communI_ ty should be O\Ierly cOl'lcernC!<L
Borl'l s t ~in
Macintosh-based systems 11ever have been a significant fac tor in the legal markeT, primarily beciluse of the pauci. ty of almlicill ion progrilms that meet the particular needs of the legal profession. It is a viable (though long-shotl contender for the lill(> of "induStry st.ll"ldard;' bu t
Summary If you are considt;!ring a sigrl!Ocal'll decision on (I nt.JW computer syslem, whetht;!r primarily data or text, play it safe and Slick with a prO\leI\ foundation, an appllcatloll package tha t is DOS comI>atlble. Not only will ~'Oll be "in the mainstream," you will be positioned to take advantage of the bountiful array of applicable, lesal-spedfic s,oftwMC. •
November 1988
Recent Decisions by John M. Milling. Jr., ilnd David 8. Byrn", Ir.
Recent Decisions of the Alabama Court of Crimina l Appeals
Ot her acts of misconduct- prima (dcie inadmissible Hili v. Stat!:!, 7 Dlv. 844 Uune 28, 1988J-Dclendilrlt was convicted of SCJ(' ual abuse in Ihe second dcgrce. 1115 con· viction was pl'ediColled upon evidence Ihal lhe defend.lnt had come home drunk and comoolio,e and ntTtsically abused 5eJo Crill Qf his children. His 12.year-old daughler leslified !hal he pinched her 00 hcr breast and in the pubic are". N. Irlal, the Slale offered cerlain evidence for "Impeachment" purposes. Amorlg other Instances, the St.lle sh~ Ihal Ihe defendant's lI-year-old son earll· er had given a statement to an Investlga· tor wherein he Staled thal when he was five or six years old, he was In the woods with his f(lther, and his father tried to make him pull off his clothes, and "Ihen he lrilod 10 stick h's peeker up my tail." Judg!:! Taylor, Writing for a unJnlmous court of criminal apl)eals, revcrsed ;lnd remnnded. The Supreme COUrt of Alab..lm3 recen t· Iy has prO\lided considerable guidance in the area of whal prior bad acts may be pr(l\.'(!(j ag.llnst an accused 1)e/'SOn In or(ler to l)fOVC the charge In the Instant case. In Anonymous v. Sftlte, 507 So.2d 972 (Ala. 1987), the supreme court stated: "The seneral evidentiary pi'lnclple, Ions adhered 10 In Alabama. which must be applied In this case m..y be staled is follows: In a Pfosecullonl(W one oIfen~, evld~ncc of collateral crimes or acu Is 8ener~Uy Inildmissi· The Alabama Lawyer
ble to pl'<M! the guilt of the accused. St'i1 Ex /ldrlt· Co(c~ 440 So.ld 1121 (,-\111. 19631; Ex pMe Killou/ll, 436 5o.2d 333 (Alp. 1983) ... In fac!. II has been SI;!t. cd that such evidence Is prlmll (acle inadmissible. "As was explained 10 Cofer: 1"his is a ~'ner.ll o;clusiooary rule which ptevef"lli the introduction c:i [collaterall crlmlnal .w:ls lot IJlc sole pu~ 01 suggt:§ll~g cu~ is ITIOf1! likely to the crime in ~iOr1 .
that the atbe suilry 01
This rule Is generally ;tppllcable whether the OIhct crime was COftlmlned beIote or af1('f" the 000 for which the dekond<iot is p~'ntly bcinS tlied: 'This ex(1~ nIle is simply an appliC3tion (Ii lhe character rule whiCh forbids the stite 10 pnM! the accused's biid chatilCUlr IPf partiCuI..u <keds. TJlc bolsi' for the rule 1ie5 In the belief that th~ Pft'iudiclal e(. fect rJ [collalelJI) crimes wllll.lr out· 'M!igh any pIOb.'ti~ 'lalue Ihm might be gained lrom thtm. Most Jgretl Ihlll such evidence of Icollateral) crlm.:'S h.1S alm(lS1 M Irl"(MlfSiblc 1m... pact upoo Ihe minds. of the Jurors.'
lohn M. Milling. Ir., is a member of the firm of 11111, Hili, Carter, f,an· co, Cole & Black In Monlgomery. He i$ a 8rilduale of Sprin8 Hill Col/esc
Accordingly, the evidence of homosexu;tlwodcncies of the defendant, five or six years before the Incident, Is n()t evidence of a plan, scheme, Intent or design to commit St.'XwII abu$C in the sec· ond degree upon his daughtN. II amounts Simply to an attempt 10 prove gulh on Ihe basis of a prior bad act.
Juror misconduct- faiJut't to respond to voir dire Johnson v. Sidle, 2 Oiv. SI1 {5epfember 20, 1988)- John5On was Indicted for mur(ler foll<1oYlnglhe strangulation death 01 his wife. Johnson a~scrted that the Iriill Judge erred in denying his motion for a new trial based upon a juror's failure 10 respond 10 a question durlflg voir dire. Defense counsel explained at the out· SCt of his voir dire that his question applied to family members. Johnson's lawyer asked the '-'!nlre Ihe following (jUeslion: "15 there any member of Ihe panel who Is a police officer or a former police omcer~ That Question would apl)ty to
David 8. Byrne, /r., is a sr;JdW le of the
UnlversilY of AI,l' bama, where he received both his
undelifJduale and
and tM Unlvel"$ltv of Alabama School
law de8rees. He is a member of Ihe Monrsomery firm of RobiiOn & Belser
of L.:Jw. Mil/ins C(J.ICfS lhe civil portion of Ihe decisions.
and CO\ICl"$lhe criminal portion Qf Ihe decisions.
369
your wife or husband. Any kind of Iilw enforcement: highway pdlrol, deputy sheriff, ci ty police?" At the hearing on the mOllon for new trial, a Juror testiOed that his sister·in·law was a Pickens County Deputy Sheriff and was so employed when the defendanl's trial look place. The juror further observed thil t his ~ister-in-Iaw sa t in the counroom during the enlire Irlal. Judge Tyson, in a carefully-word!..od opinion, rc~rsed Johnson's conviction. At the outset, the court of appeals crltl. c.,lIy noted that "not C\'CI)' failure of a \/Cn· lreman to respond correctly to a voir dire question will en title the losing party to a new trial:' Ci ting Freeman v. Hail, 266 Ala. 161, 236 5o.2d 330 (1970). tn John· son, the juror Wil5 tht;! brother·in·IM of Ike Deputy Sheriff ci Pickens County. The Jur. 0(5 failure to disclose thi s relationship was highly m(lterialln light Of the defe!l(lall t's defense that the Pickens County Sheriff's Dcpart merll, from the beginning. cen· tered It5 entire investlgalion on the defenda nt and did notlnllCStigate any other suspects. Judge Tyson also noted thilt the facl tha t Ihe juror testified at the hearing on motion for new trial that his I\!lation· ship to Ihe def)l.lty sheriff did not affC1;:t his abili ty to judge the defendant fairly would not overcome tht;! IIPlli"rent pre;u· dke to th/'! accused.
In thi s case, Ihe juror testified (h{lt ~n thollgh she felt the defendanl was gui Ity "to slart With," she ch'lngcd her '\~rdkt " after Gond\Jcting the home eJ<1>crlmcnt.
Juror experiment- ex pdTte Lasley reaffirmed Reed v. S1.11e, 1 Dlv. 636 (August 23, 1988)- Defendant WJS convicled for the sale of cocaine. On {Ippeal, defend{lnt argued thJt hi5 mOl ion for new trial should h{l\l(! been granted because J jurQr CQndu(tl..oQ iI home experimen!. A unanimous court of criminal appeals agreed and reversed. AI trilll a police corroborated a witness' identification of the defendl1nt and testified that he observe(! the transaction, which occu rred at night, through the linted wlndC1Ws of a v{ln. After the jury had begun Its deliberJtion$, it wa s re· cessed for the night. During the recess, one of the jurors returned home and "looked QUt [her] van to sec if you could see out windows that \'tCre tinted at night because [t]herE' wa s a question in [her] mind (IS to whether the officer could sec out the window of the Viln, a timed van at night." She stated Ihal lx!fore she looked through the wlndQ'NS she was
Sentenc ing error jurisdic ti o nal and no t subjec t 10 waiver Blair v. Sldre, 7 Div. 901 Qune 26, 1988) - Defendant wa s convicted for the sale of cocaine and sentenced to life im· prisonmen t under the proviSion of the Habitual Felony Offender Act During the sen tencing phase of defendant's trial, his ( Oun$(,>1 did nut objoct to the defctldant's being sentenced under the Habitual Fel· OrlY Offender Act. Counsel (lId make objections as to the renloteness of some of the prior convictions and to some of the Information contained In the pre-sen. ten ce report. However, counsel did not object, based upon the Alabama Supreme Coun's ruling of Ex parle Chambers, wherein Judge Seally stated th"t on· Iy th(! Alabama Uniform Con trol Substances Act, §20.2.1 el seq., controls enhJncement of sentence In drug cases. Judge T.lylor rlO ted tha t the precise issue rai sed in Chambers wa s not preserve(! for ilppell<lte review. H()W'!NCr, a unanimous COlirt of criminal appeals
370
having "some problems" wi th the police officer's testimony. The juror further explained that she told the other members of the luI)' about her experiment only after the \/Crdlct had been returned. She Slated, "The o ther man asked me why had I changed my verdi ct and t told hi Rl. I fe ll the man WJS guilty to stan wi th:' Presiding Judge Bowen, in reversing, relied upon the legal principle SCi forth In Ex parte Lasley, 505 F.2d 1263, 1264 (Ala. 1987). In Lasley, supr,l, thl:! Alab:Jma Supreme Court criti cally focused the Issue a5 follows: ''There is no doubt that the home ex· pcriI'l1C!HS constituted juror miscon· duct. The only question Is whether the miKonduct rl.-'qulmS a new lrial. The st~ndard (ordCtCfmlnlng whether juror misconduct requl!1!'i a new tri~1 is sCI fOt1h In Roon v. Stolte, 225 Ala. 426, 435. 143 So. 454, 460 (1932). Thu It'llt of vltl31lnglnl1uence 15 not thai It clld Influence a member of the Jury to act withoul thil wlde!~e, but that il miShr h;l\ll.l unlawfully In. fluenct'd thm JUfor and othel'S wi th whom he dellber;ltoo, and mlghl have unl;lwfully Influenced its Vttrdict rendered." H
•
••
held that Ihey <:onsidered the scillencing error Jurisdictional and, therefore, nOI subject to the waiver doctrine under Ex parle Biddie, So.2d _ _ (Ala. 1967). Accomp l ice testimon y compounded no t enough to establish c orrobora· ti o n <'I S a matter of law Haslxmy v. Stilte, 2 Oiv. 620 Uune 28, 1986)- Defelldant wa s convicted of receiving slolell prol>erty In the second degree and second degree arson. Defend· ant contended on appeal Ihat he was COrl· victed solely on the testimony of tWO ac· compli<:e$, One of the ac(Omplices, Scott, first stated to the police 111Jt he set the houSi! on nre, and then he said he did it at the direction of defend'ln!' later Scott statL>d th"t he started the fire to prott.'Ct the defend an\. The se(ond accomplice, Oden, who pled guilty to the offellscs of burglary alld arson of the house In question, testified thm he discussed burning down the house, but th(] t finally the defendant did it. The testimony of defend· ant's use of an Jccelerant to start lhe fire was contradicted by file in\o1;lstigators who found no evidence of gMoline or other ilccelcrant ~t t h~ fire S(~me. A unanimous court of criminal appeals reversed and rendered defendant's ~rwn conviction wi th the obSer'V<ltion thill defend'lIlt was convictccl solely on uncer· roOOrat(.>d aCCOmiJ/ice testimony. Section 12·21-222, Code of Alabama (1 975), I)rovides In pertinent part as follows; ." conviC1l00 0( felOny cannol be had On Ihe teStimony of anllccompli(t U!l· h~S$ corrobor,ued bv O~lI~r evidence tending to conncctthe defendant with the commission 0( the offense, and soch eorroboratiw l.'Viliilnce, if It merely $hOWS the (ommls>I()I1 of thC offC!ISC Of rhe cl rcumstnnc~ rhereof. I~ not suffi· cient:' In thi s case, the 1(IW's requiremen t of corroboration was not met by the com· pounding of accomp lice testimony. Prosecutorial miscondu c t- c ross· exam ination of unc harged ac ts of misconduc t without f" c tu al basis Daniel v. SW le, S Div. 339 Uune 28, 1988)- Delend ant wa s convicted of tWO counls of sexuill abuse. The single Issue in his appeal rela ted 10 prosecutorial misconduc t occurring during the cToss-e)[.r"lmintlliOn of thc acc u~ed .
NOvem/x,'r 1988
On (:ros~x.1minaril)n, the defl;!nchlne was asked the follow ing question: Q: Isn't It a fact_lei me ask you this first 01 all: Isn't il ~ f.Jct that )Ou gal Willie Frank P.uker to offer Helen March two thouund doIlaJ'5 b drop these cnargesl
A: No. t didn't
Q: Thm'$ not tlUtf A: H's I'IOt true.
Trial defense counsel Immediately moved for mistrial. The oourt of criminal appe"ls I"CYersed and rt!mandt!d and stated that the alleged proseculorlal misconduct consisted of making prejudicial allegarlons without being able to prove them by lawful evidence. The "lawful evidence~ siandard applies In Alabama, and the good f(lilh of prosecutor or lack thereof Is not the test Judge 1,1)'lor, writing for a unanimous COurt, ft'a5Olled thM this case W(lS governed by thc principles SCt (orth In \IVy$_ Inger v. St.1/(!, 448 So.2d 435 /Ala.Crlm. App. 1983). 1/) \fv\.'singcr, supra, the court held that for Ihe Stale's auorney to ask a quesllan which Implies the existence of a factual predicate which the examiner knows he CilnnOI 5Upport IJ)' thl;! evi. dence is un professional conduct. See /liso Bezal/c v. Sl<1te, 358 So.2d 521, 525 (Ala.Crim.Alm. ]978l.
Constructive possession drug caseawareness of narcolic nature of substance Perry v. SI,lIe, 'I Dlv. 991 Oune 28, 1988l-ln Perry. Ihe Alabama Court o( Criminal Appeals reversed and rendered Perry's conviction for possession of Tal. win. On appeal, Ihe only evidence before the court eSlablished the defendant's presence In the CON' and the visibility of the pills. Nothing was presented by thc State establishIng any statements or con. duct by the accused or any other evidence indiCiiting that the defendant knew o( the narcotic nature o( Ihe pills. Judge Patterson, writing for a until'll. mous court, reasoned as follows: ~ cst,lbUsh ConStlvctl\lll J)OSW!S'lion,
tIM! stllte mUSt Ilfo.-e beyond a reason. able doubt that the ilCcuscd had knowloolle of the presence of the 1IIcgai substiloce. Y.lrbiooSh v. Sf.tle, 405 50.2d "2t (Ala.Crlm ..... IlP.), C:IJIt . denied, 405 So.2d 725 (AI~. t9811. An ~~nllal e/(!m(!nl 01 the defendanl's knowledge of the presence of Ihe II.
leg31 substance 15 his iIW.lfeneS5 01 the na/rotlc nature of the substance which may be shown"" direcl or circumstantial evldll!lce." The court observed that there was no evidence to connectl he defenda nt with Ihe pills, other thiln h 5 presence in the automobile. Close proximity to an Illegal substance Is not enough alone to es. tablish conStructive possession. Entillement 10 lesser-included of. fense charge Allen v. Statc, 4 Olv 699 (September 20, 1988l-Defendant was convicted of murder and sentenced 10 a lerm of 40 years' Imprisonment. Judge McMillan, writing (Or II unani. mous COUft. reversed and remallded because the record of the case contained evidence which, If believed by a jury, could reasonably Suppon a conviction of manslaughter. In this case, a charge on the lesser Included offense, which was refused IJ)' the trial judge. should have ~n given. ludgc McMillan suoo nctly set forth the legal principle as follows; '~n ;I(;:C II~ 15 entldl'(! 10 h;rvc thc coun chllllle on les5el" Included of. fenses where 1here Is a leoil50nable theory from the cYidcoce 10 StJppOfl his posillon, ·feg'lldless 01 whether the State or 1he defendant offeJ'5 the (.'YI. denc~: Pruitt v. St.1t~, 457 So.2d 454, 45,. (Alll.Crlm. A pl~ t964)."
Indeed, "every accused is entitled 10 have charges glycn which would not be misleadIng. which correctl y St.lte the Irr.v of his case, and which are suppo rted bv any evidence, howcvcl weak, or doubt. ful in credibility." Ex Parle Stork, 475 So.2d 623 (Ala. 1985).
Recent Decisions of the Sup reme Court of Alabama-
Civil
Civil procedure •• . section 6·3-21.1 applied, "'arum non-convenicnJ"
Ex P.we; Smith (In Rc: Smith v. KJ. &R., Inc.), 22 A8 R lOll Ouly 29, 1988).
Smith petitioned the supreme court (or a writ of milndamus direcUng the Madl. son County CIrcuit COUrt to vacate an order transferring a case from Madison
COlmty to Lauderdale County. The suo preme court denied the writ based upon 5e(tion 6-3-2 1.1, Code of Alabama. SmIth filed suit alleging inrer alia a COlml fa r waf'll and I(lbor. He alleged that a substantial portion of the wof'll was per. formed In Madison Cou nty and he could elee! 10 bring sui! In Madison County under Section 6·3·3, Codt! of Ala/lama, which provides that Hln aU actions for work and labor done ... the .1ctlon may be commenced In tnc county In which the work was done ..• :' The defendant corporation filed a mOfion to transfer tnc case to Lauderdale County based on the convenience of Ihe p.lrties. The defendant did business in 1..1uderdale COUnty, but did noe do business in Madison County. The contract which was the subject of the suit concerned em. ployment In Lauderdale County, AlOrn)ing the trial court, the supreme court nOled IhM on July 11, 198'1, Secllon 6-3-21.1, Code 01 Afabama, became ef(ec. tive and provides that a court "(or the convenience of the 1)CJt1ies and witnesses. or In the interest of Just ice" shall tr,1ns(er any civil action 10 any court in which the aCllon might have been I)f()perly meet in the flrsl place. The court staled thill the tria l court did not abuse ils discretion by Iransferring this caSt', and, therefolc, Ihe writ would not Issue. Eslatcs • • . co-excculors and co-.ldminislra.
tors must sue and be sued jointly Stone, as Co-executrlx v Jones and AmSou/h Ban k, N.A., as Co-eHccu/ors, 22 ABR 3122 (August 5, 1988). CoCX(.'Culrix Stone filed (I claim on behalf 01 her mother's eslale a8<linst the Cc:>-excc. UIOfS of anolh!!r esttll(!. The Other coex«:utOr allhe mother's estare rt.ofused 10 Join in the claim. The d~fendants flied a motion for summary judgment allegIng thai Stone was without authority to file the claim because the other coexecut rix refused to join In or concur In thc filing of the claim. The Irial COurt granted the motion for summary judgment. In II casc of Initial lmpfcssion In Ala. barna, the supreme COurt stated Ihill the Co-e.:ecutors must joint ly file the clillm. The COUll noted thai It is generally rec. ognlzed one co-executor may act alone only in m<1lters which are of a ministerial nature. Ac!s which call (or exercise of
The Alabama Lawyer
371
;l,Jdgment and discretion require unani· mous action. Conscquenlly, Ihe supreme court held that In cases In"Olving the use Of di ~cretion In decision-making not within the regulOlt course of administerIng the estate, co-cxecl,J tors must act unanimously in reaching those decisions. The fi Ii ng of il l<JWSui t is (liSCrf!tif)n<lry, not ministerial, In I'I..lture. If a (;o-executor refuses to voluntarily join in the filing of a Suit, the Co.eceCutOr nilght p!)titlori the court either to coml>c1 the joinder of the c~xccutor pursuant to Rule 19, Ala.R. (lv.P., or to dismiss the co-cxecutor from his or her duties through a judgment of sevcf.lnce, th ereby allowing the lone coeKeCutor to proceed. Evidcn(;e ... ta x records of non-part y CXI>4;!r1 en· joy qualified privilege from discovery Ex f'Jrre: Morris (In Re: Morris v. Craddock, e( ill.', 22 ABR 2898 Uuly 221988). Morris (led il medical malprilc. tke a(;tion ag,linst respOndents. Respondents throu gh disc()V(!ry sought federJI ilnd state income tax records from the 1)lainliffs exPCrl wi triCSscs. The trial court ordered the production of the tax rec· 01'(15, and petllimer field thi s writ of man· dilmuS asking the supreme court to vacate the trial court's order. The court gr.anled the writ iln(l v<l c:;ate(l the (Irder compelling plJintiff's experlto produce their financial record s and Income tax rewrn ~.
The supreme court slaled that the question of whether <In expert witness's h,come tax recor(ls are "privileged" is a questlon of fi rst impression in AI"bilma and looked to the fcdcr.ll couns for guidance. The court fi~t n ot~ that the Unit· ed S!<Ites Supreme Cl"Ju n has held that tax record s are not absolutely privileged. Ncvcrtheless, th e k>dcral courts h;l\lC recognized the sensi tive nature of tax rec· ord s and not ordered prod ucti on unless cletlrly t'C(julred in the Interest of justi ce. The Alabama Supreme Court weighed the Ilber<lIIXllicy of th e (lis(;overy rules against the emerging Q(I.)lifiC(i privilege disfavoring disclosure of one's Income ' a~ records, The incremen tal value that such informiltion would proliide rC$f)ondcnt for purpose of showing bias is Sllbst:ll1· tlall y ou twei ghed by the prejudice that wol,Jld be imposed on II person not a par· ty to the proc~lIngs.
372
Insurance, , • "backpay" awarded in Title VII covered in policy affording cover· age for discrim i nation National Union Fire Ins. Co. v. City of Leeds, 22 ABR 2920 Ouly 22, 1988). Leeds wa s sued under TItle Vil 01 the civil rights act by iI former city eml)loyce. He dilimoo he had been wrongfully dis. charged from his Job and sou.!Iht rei nsta tement and badpay. The trial court ruloo in hi s favor, and the City sought paymer,t from National Union. National Union denied the claim Md brought this sui! seeking a declar;nion of its rights uncler ils polit:)'. N~ti onal Union's policy reql,Jired it to pay d~mages as a result of discrimination Jnd defined "damages" 10 mean monl)1ary damages, but not 10 Include "1!(luitable relief:' National Union contended that federal CourlS h<'I'v'C held th at "backpay" Is equitable relief and, therefore, excluded The trial court dis<agreed, and the supreme court ,,(firmed, In a GlSC of firs! Impression in AIJiJ.lma, the supreme court noted th~t the polit:)' pt(NiSions must be (onwl,Jl,.'(i in the light 01 interpretation thaI ordinary men would phll:e on the langullge l,Jsec! therein. The definition of damages includi!'S monetary damages and, therefore, was broad enol,Jgh to cover the mOriClary award of b.lckpay, (!',(!n thougn the a<.v.lrd could be classified as equitable relief. To ullow the InSUratice carrier to escape IiJbililY on a tcchni(;alleg;ll definition would be (;onI/'(Iry to what the Pilrtie~ rC<lson<lbly expected. Property ... st.ltut e of l im itations for libel and slan der apl)l icable to slander o f title Hosey v. Centr<ll Balik o f Blrmingntlm, Inc., 22 A8R 2554 (July 7, 1988). Cen11.,1 Bank obtained a judgment agJinst Hosey's 50n (lnd i1uemptcrJ to (;ollectthil t judgment by selling property that was IIt.'Vt.od to have belonged to the son. Central 8arik purchMed the properly, and sheriff's deed wa s execu ted .md filed May 14, 1982 . The Hoseys subsequently learned thi s fa ct and Informed Centra! Bank of the mistake. In January 1986. the Hoseys filed suit for sl(lnder of titl e. The bank plcrJ the StalUle of limitations as a (lefense claiming th~t the statute for libel and sli'lndl.'r wa s applicable to an action for slander o( title. The trial cOurlgrantoo
oc"
Ihe bank's motion (or summary judgment, ilnd th e supt'Cme court affirmcrJ. Th~ suprf!me Court held that the statut e of limitations for libel and slander Is applicable to actions for slander of titl e. The coun noted that the weight of authori ty from other jurisdicti ons holds thilt in the absence of J statute expressly made applicable to such actiom, the statute of IImitiltions fOr libel and slander is al)pllcahle. The supreme court also held that the cause of actlor' accrued, and the statute began to ru n May 14. 1982, the date the sheriff's deed wa s recorded. AI thtl t point, thct'C was a cloud on the Hosf¥' title even though the full measureof damages was unknown. Wor ker's compensa ti on •.• lurnp sum a llo rn ey'~ fee must be based o n compensation awa rd reduced to present value EJ( PJrle: SI. Regis CorporJllon (In Re: 51. Regis Corp. II. Parnel/), 22 ABR 2822 Ouly 15, 1988). Parnel1 W.lS Injured on the job and filed a worker's compensation action, He received temporary tolal and permanent tot(ll bencfi tJ prior to trial. After trial, the trial courl fo und Parnell to be l:H!rmanently totally disabled an(l awardt.>d him future benefils at a cenaln r.lte for the rest of his Ufe. The court found tha t his life expectancy was 40.64 years. PJrnell's lawyer filed a motion for a IUml) sum awart! of his attorney's fee, and th e court, acting within Its di scretion, awarded the lump sum attorney's fee pursuant 10 Section 2~5-90, Code of Alabama, in the Jmount of $62,957.6Q. The courl of dvn ilPpeals affirmtod the trial court, i'lnd th e supreme Cl"Jurt grant· ro certiorari and reversed the court of civil appeals to the extel1t that It did not redu ce the lump sum awMd of attorney's fees to Its present value. Th e supreme COUft noted that the trIal court may commute accrued compensa· tion benefi ts to iI lump sum payment \Ising In ann\lill discount rate or 6 per· cent, Section 25·5-83, Cock! of Alilbama. The (;Ol,Jrl rt'asoned thillthe pr(Wisions of Section 25-5-83, supra, also are available to Ihe altofll~'s ptlrt of the award. Consequelitly, for purposes of figuring the lump sum Jttorncy's fee, the trial court should redu ce the compensiltion award to its present value, ~nd Ihe att orney is entilled 10 a maximum of 15 pert:ent of thilt figure as his or her fee. •
November 1988
Legislative Wrap-up by Robert L. M cCurley, Ir.
First Special Session 1988 Unable to pass appropriation bills 10 (und education and stille goYCmmt!Ol during the 1988 regular session, the leg. islature was catted Inlo a special session. This session, although dominated with efforts 10 raise ~nue and PilSS
budgets, also included a new campaign disclosure IiIW and the IhlSSJgC of (our Law Institute drafICd bill s.
Powers contained in mortgages Currently, Alabama authorizC5 the Inclusion of a power of 50lle agreement in morlg<lg~ 1§35-1Q-n. The statute fur· ther prCNldes for a forcclosurt! with notice by publication
when there is no power of sale contained In mortgage or deed. (§JS·I().2 and 3), Some "experlS" fdl thaI the inclusion 01 statuIOf)' language allowing for lhe ioredosure
by publication thill Wi15 not contracted (or by the parties might be deemed "state aClion:' Therefore, to pr01Cctthe constilutionalily of article 1 of chapter 10 of ti tle 35, the article was rt.... lsed. The Institute took the l)Osition lh<l' i, would be best to continue the currCnl law as is for Ihe mortgage currently in existence. New mortgagl:':S after Janu<lry 1, 1989, would be governed by the new powcrof sale laws, which would be added as anicle I(A) of chapH!r 10, title 35, Code of Alabama. Essentially, the new law merely restates the currenllaw regarding Ih~ I11Of1gage5 that include a ~-of-sale pr0vision. t-IOW(!o..«!r, the new law does not carry (ol"N,ud the plU"lislons of tht'! old law that allowed for a foreclosure wllh notice by pubtlc;nlon in mortgages without powcr~'-sJ le provisions. TIle effect of this will be 10 require creditors Md mongagees who did not Include a power-of-sale provi sion in their mortgage or deeds to usc a ludlcial (oreclosure. Thi s bill (House Bill 9) was sponsored by Representative lim Campbell and Senator Rick Manley. Cha l¥j)crson of the Drafting Committee was Hugh Lloyd 01 Demopolis. and Professor Harry Cohen of the Uniwrsity o( Alabama School of LlW WilS the reporter. Trade names tn 1977, Alabama enacted a trademark regi stration Slatule. This act amends lhls law to add trade names. Under both Alabama and federal law, tradcmnrks .. nd service marks arc rcgi stfilble. Such m(lrks, however, must be the
The Alabama Lawyer
names of products or services. Names under which pc:rsons or companies are known imd do business are not registrable. (If the same name identifies both a product and a business It may be regi stered as a Imclemark, but not as a 'racle name). Thus, thNe 15 1\0 ef{(,'Ctlve means for it Olrsin(.'Ss to 1)\11 othel'S on notice of Its claims 10 Its businl.'S$ name. Twenty-four states, Including G(.'Orgla, lOulsl"na and South e Molln." recently provide for trJdc nam(!S. Existing lr;lde names are unaffected, The act, however, revises thc classifications which is In keeping with recent ((.'\Ilslons in the federal and international tfildcmark cla ssifications systems. Thetl!rotl!, trademark renewals. which are required every ten years, mUSt be classified under this act. This Is a registration statuII.' only, and the common law of first use still prevails (or use. The aClls effec tl..-e January I, 1989. This bill w.-rs spcm!rOrcd by SemltQr Earl Hillinrd and Rel)o rcsentilUve Ueth Marietta. Chairperson of the dt<lfting comminee WJS Vastine Stabler of Birmingham with Professor Harold Sec of the University of Alabama School of law as the teJporter.
Cuardianship Olnd conservatorship ame ndme nts This bill makes clarifying amel\dmants 10 the "Uniform Gu.. rdianshlp and Prolecllw Proceedings" bill p.1Ssed last ~ar. These amendments were required by the Department
Robert L McCUlley. Jr, is 1116
olfeclOr oI lhe Aleoama I..Bw /nSlr/ut8 8t the Unlw#sJtt 01 Alabama He receMKJ his unaergraoua/o aOO law deQrees from the UnlvefSity
373
Memorials
WiIIiilm Headley (Md, Jr.-Mobile Admitted: 1960
Oit.>d: Augu st 1, 1968
Wymim Oscar Gilmore-Crove Hill Admill('.od: 1951 Diro: October 3, 1988
Alell'.lndcr Williamson JonesBlrmingh.lm Admiued : 1938 Died: October 10, 1988
Jo hn Edgar lunsford - Birminghilm Admitted: 1933
Di(od: S'm'(!miJer 8, 1988
Dabney Rarnscur, Jr,-Panama City, Florida Mmined : 1965 Died: Augu st 19, 1988 Me rrill Cra ..... fo rd W,.II- Wl!lumpk;i Admitted: 1937
OiL'l:I: $cptt!mbcr )0, 1988
These nOlicf1 are published immed i·
"tely ilfter reports of death arc received. Biographical information not appearing
in this issue will be published at a later dille If Information is accessible. We ask
you 10 promptly report the death of an Alabama attorney to the Alabama Siale Bar, and v..'i! would :.ppreel4lte )'Our assistance in provi ding biographical inform ..lion for The Alabama l.awy(!r.
376
\\11111\\\ II ( I\IU ), IW: ,
WHEREAS, Williilm H, Citrd, Jr" son of William 1'leadk'Y Card and Mabel JefferieS Ca rd, w(lS bom in Tuscil loosa, Alabama, October 4, 1932, moved to Mobile al a tender age and lived his life in service to his adopted communUy and to hi s profession . WHEREAS, the Mobile Bar Association desires to remember his name and recogni7.e his contributions to our profession ilnd to tl1i$ community; NOW, Ti-IEREFORE, BE IT KNOWN, that William H. Card, Jr., deplJrtcd this life Augu st I, 1988. During his high school years Card atlcnded U.M.S" Citronelle High Sc:hool and Anc:horage Private School in An chorage, Kenwcky. He e(lrned an A.e. in history ilnd economiC$ from the UniversitY of Alilbilmil in 19S4. He al so attended the University of AllJbama S<;hool of Law frQm 1957 until 195a He received an LLB degree from Jones law School In MOlltgomery, Alabama, In 1960, where he was employed as a law clerk to the Ilow-deceased I'lonorable David F. Stakely, assoclilte justice of the supreme court. He became Ii· cenS«! to prClctice I<M' in the Stilte of Alabama that same year, and was associated with Alex FOf{!man and Alton Brown, prac:tlclng ullder the film Ilame of Foreman and Brown from 1960
throu gh 1962. He wa s also partners with Keener 1. alac:kmarr from 1962 through 1964, ilnd with John Tyson from 1964 throu gh 1966. Card served as special assistant to the Attorney Generill of the Stale of Alabama Md On the G~rnor'5 staff from 1964 until 19n. He WitS a role pr.lctWoncr f!'Om 1966 until hiS death. C.lrd served thf'C(! years In the Unitt.>d Stilles Naval Reserve, one year In the Alabilmil Army Niltional Guard, four years in the Reserve Officer5 Training Corps, two )'Cars in the United States Army as a lieutenant, five years in the Alilb<lmil National Guard and United Stales Army Reserve as II captain arId four yea~ in the United States Air Force Reserve as captain . He Wil5 a member of 51. P.lul's Episcopal Church located on Old Shell Road, and a member of the Full Gospel 8usinessmen's Association. C.. rd also was a member of many local and profe5sional organizations including. but not limited to, the Mobile Area Chamber of Com· merce, Ameri can Bar Associa tion, AIIIbama Alumni Association , Alabama Slate Bor, Trial lawyers Association, Navy league of the United States, Mobile County Navy Leilgue and National Fed· eration (If Independent Businessmen. Cilrd W3S iI member of the we Care Board of Direttors ilnd devoted a consld· emble amount of time to chari table work with relation s organization s and other d(!S(!rving organizations, including chilr· i\able legal work (or life Church, We Care. Winds of Life ilnd the Girl Scouts. He also belonged to Ihe legill assist<mce program sponsored by Legal Services. He WilS an able law~r possessed of a quiet dignity, sincerity and integrity which were (lutstan(lln a. He pu~ued his clien t's objectives, yet always stayed within the bounds of elhlc:aJ considerations. He wa s a gentlemen and a com· passiollate Individual who will be gI'Ciltly missed by his family and by his r'nilny friend s, to illl of whom we e~tend our sincere ilnd deepest sympilthy. THEREFORE, we, the members of the Mobile Bar Association, do hereby honor November 1988
Please Help Us ... ~ have no WirY of knO'vVing when one of our membership is deceased unless......-e are notified. Do not wail fOr someone else 10 do it; if you know of the death of one of our members, please lei us knaw. Memorial Information must be in writing with name, return address and telephone number.
the memory of our friend and fellow memoor, and retlUl!SllhallhiS resolution be 51)read upon Ihe minutes of this association and of the AlJbJma State Bar and that a copy be presented to thc family of William H. Ca rd, Jf. - So:lIllucl l . StockmAn Preside nt, Mobile 8ar AssociaHon
Uniwrsi!y o ( Virginia With an undergrad.
wile and law degrct!. He received his ROTC commission Immediately after law school and W.lsan armor CilprJln In Vier· nam. His admlnlsrrJti veasslgnmenl W.lS not to his liking, so he volunteered for aUilchment to the Sth ARVN R.1n8er 6a· tall ion. He served with distinction In the field until 1969, when he returned to be Judge Ff<lnk McFildden', (irst law clerk. Don worked with the National labor Relations Board hI Allanta and Birmingham (rom 1970 to 1977, and t1en entered private prilctice in Birmin gham as a labor li.f'N)'Cr. DQn Davis beli/NCd in a "I ~I playing lleld,H and went about preparing and trying his cases with a qu et competence and t ou8hn~s. Lawyers of the Birmingham Bar remember him with admlrJUon and deep respect. It is especially tragic when a member 01 the bilr, a family man
with deep local roots, passes ~ in the flower of his practice of nillural causes thill usually strike us In later '((!ars. Rich· ard Ogle, Alva Caine, Bill Smith, Bob Moorer, Butch Powell, Peyton Lacy and so many others who knew Don as both ,1 fellOYl pro(csslonlll and sorlleUme-ad· versary nx:ognlzed his passlon;!!e belief In filir play within the ad\IC~ ry system and his firm belief in the excellence of the 61rmlngham bench ilnd bar. L.1W)1!1"5 and (ricncls o( hi s generation wme particularly stunned at his passing. Everyone who knew him will miss him dC!eply. He was an Ideal or Integrity with a Ane moral compass who practiced by tradITional standards. For those who did not knOYl him, please trust that the Ala· bilma State Bar sufrered a true loss at his cleath. -Douglass Culp 8irmingham, Alabama
-NOTICEClient Security Fund On May 17, following a successful out· come in a labor case in OCCiltur, Ala-
bama, Don Davis was on the way 10
The Client SeCllrity Fund of the Alabama Stat e Bar is
lunch with his clien t when he suffered
now funded and opera ti onal. A committee has been ap-
a severe heart anack. He WilS nown 10 the
pointed to process and determine the eligibility and validity of any claim filed. The state bar headquarters, as well
U ni~f'I,l ty
of Alabama-Birmingham Hos-
pilal, where he underwent bypass surgeI)' and valian tly fought back on a respirator untU he died July 25, 1988. Don's grancifilthcr, William C. Davis, pracliced liJW with Senator Bankhead In Jasper; and his great.uncle, Edward livingston, w.\S chle( ju>tice oi tnc Alabama Supreme Court (or many )1!ars. Don graduated from Ramsay High School In Birmingham and then (rom the
as local bar associati ons, have brochu res expl aining the
fund , the rules of the fund and claim forms. If you want any informa tion about the fund or how it
operates, contact either the state bar headquarters at (205) 269-1515 or you r local bar association.
377
REMINDER
Kenneth H. Wells & Associlltes, Inc. Structured Setrlement Specialists
THE STATE OF "LABAM!\-JUDICIAL DEPARTMENT IN THE
Providing rapid, exp ert, p ersonal service w hen it counts . .
SUPREME COURT OF ALABAMA
OCTOBER I, 1984 The !-Ionorable William H. Morrow,
Gencral Counscl for the Alaham,') Siale IJJr, h.1S presented to the SUI)1'Cf'I1e Coon a request for .an InlerprCMtlon Qi Dlscll>-
Unary Rule 2-11 IAH2) oIrhe Code 0( Professional Responsi bility 01 the Ala-
q uality struc tured settle me nts.
b<!ma St~u~ 8M lIS to whetlloel on terml· nation of an :Jllomerc1lenr relationship.
O ur free services :Ire unmatched in th e industry :
a coun-lIP1lOhted aHor!1e)' should upon ft.'qlK!St by an Ind igent criminal defend·
• annuit y q llo l:ll ions in w riling w ilhin 24 hours • personal assiSI:lllce :1t SCII 1cmc nc co n fer ences
ant, rCrum to thai delendant the copy of the transcript fumlshed at the fl(pen~
• coordi n al ion and complc lio n o f SeUicmclU ducumcnls
oIthc Siale p!JrliU.lI'lt to Section 12-2 2197. Code 1975. IT IS CON SIOERED AND I) ETER.
• in·d ....p'h seminars ror your Siaff
MINEO by the Coun Ihm II Is appropriate for an allorney In this situation to retum the uilI'Iscrillt to thc dt'fcndanl.
MI!G IUN/\ I. OI't'ICI',S N/\ TlON'Nm F. lIIitMlNGIIAM OI'I' IOl-GMF.OOMY MO UINSON l Mw.....". l>ri..., · ~I I ~ ., • • IlInninghun,/\1 'HltlY lU5'M7U' O'}U
101001, CJ. . Maddox, Faulkn('r, IQflCI, Shorej, and Ad.:rmj, /I., concur. Almon, Cmb,y, lind 8c;auy, /I.• no! sill tnS
COMI'OMA1'1l lll!APQI IAJtTEkS 1l""'''',CoIundoI I ' Il00' '''' ·~WII
------------------------------------------------, ALABAMA STATE BAR SECTION MEMBERSHIP APPLICATION
To join one or more sections, complete th is form and attach sepa rate checks payab le to each Se(:ti on you w ish to join, Name: __________________________________________________________ Firm or agency:: _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ __ _ _ __ _ _ _ _ __
Office add ress:: _ __________________________________________________ location:: _________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Office number:: _______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ Offi ce telephone
I I Section Annual dues I Admi nistrative LilW 120 I Bankruptcy and Commercial Law $15 I I I Corpor;1tion, Sinking & Buslneii law $10 I Cnmln.1 Law SO Erwlronment<ll
uw
F''nliV Law Labor Law
UO
SIS $10 US
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~~~ Oil, Litigation Gas and Mineral Law
$1 $ S15
Real Propt" rty, Probatfl &- TruSI Law $10 TUilllon
Remember: Attach a separate check for each section.
If prac1lclnlless than S VIS, ifp!'aaicing S or more yrs,
Mail to: Sections Ala bama State Bar P.O. Box 671
$ 10
I ,,,,,,,l.wy'"· SO Montgomery, AL 36101 I I TOT"L I ~ -- - - --- ------ --------- -------- ----- ------- ______ I
"8
November 1988
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FOR SALE THE LAW800K EXCIIANCE, LTD. Buys
and sells all major law bool!s-SliltC ilnd federal- nationwide, FOr all your law book 11(.·{.'d5o (800) 411·6686, Mastercard,
Visa [. American hpress ilccepwd. fOR SALE-United StMt'S Supreme Coun Repons, \t)lunlC l-current; United SlJtcs
SuprcnlC Court Digl'St; AlR; AlR 2d: ALR 3d , current: ALR 4th, current; ALR Fed., current . .,hone (20S) 432·1611.
FOR SAlE-Alabama RC I)()r!CI- 390 So.2d--482 So.2d, 30 volumes, excellent conditIon; Alilb~ma Dlgcst, complete,
BIRMINGHAM INTElLECTUAL PROP. ERTY law firm seeks associate anorney admiUl-'<i to pradke bcbe the Patent and Trademark Office wilh '.J ~ars' experT lence. Send resume and writing s,lmplc to Jennings, (;ull'r, Thompson & ~ill , 1550 B~rll! (or S~ving5 luilding. Birming' ham, AlabJrnJ 35203. QIRMINGHAM LAW fiRM with five locat ions throughout Ala bama. Civil practice, Iitlg.1Uon, b.lnl!r(lptcy and real est.lIe closings. Morney needed for our rl<.'W of· fice to be located In MontgOmery. Send cover leiter, ~5lJme and s.ll~ry requirenK:nts to 1).0. 8o~ 1685, lIirmlngll<UIl, Alabama 35205. No phone calls, please.
curren t. excellent condition; ,,1.1bilm., Code, 1975, curlf!nl lh roullh 1985, excellent condition. Conl.l(l MI'$. E.H. Craves, Jr., Or Don:.ld ,. Mcl(ionon, 224 b~t BrOdd Stre1!t, P.o. 80~ ]79, Eu("ula, AI.· iJam.l 36027, Phone (2051 68"'''3B2, fOR SALE-ALR 3mand ALR 41h. Con· laCI Terry Wilson, 428 SoYlh lawrence StrL~t , Monlgomery, Alilb.lma 36 104, or (a ll (205) 262·2;56 in Monlgonlery.
POSITIONS OFFERED ATTORNEY JOSS-N .. tlonal and redcr· OIl lc!gal Employment Report: highly rt... g;arded monthly det,liled listing of hurl· dreds of attornl'Y and I ~IW-rehlll.'<i lobs with U.S. C(M!rnment, other I)ubllc/ pr!IIJte em ployelS In WJshlngton, D.C., throughout U.S, 'Illd abrO;1d. 530-) months; 553-6 mon ths. ft.'ller,lllh!l)Qrlt 1010 Vermonl Ave., NW, N400-AB, W.lShlngton, D.C. 20005. Phone (202) 393-3311. VlsalM . OPPORTUNITIES IN ATLANTA-Nu· merous opcnlng~ In Nlan ti1 In all pri1Ctice areas (or i1ttorneys and parillcg.lls. Colndldates must h.we outSlilndrng 3Cil' demlc arld I>ro(e.slonill creden tia l ~. All replies kt'Pt strictly confidential. Contilcl SU5<'n Penny Cohen, Capital Clt v Legill Placement, Suite 200, 133 Carnegie W.v, Allanta, Gl'orKi. 30303. Phone (404) S25·(lnS. The Alabama L,Iwy!'r
SERVICES EXAMINATION Of QUESTIONED DocunK.'fII _Handwriting. typewrillng and rcl al(~d e.aminations. International Iv court-<luahflCd expen w tness. OipiOllldte, Nncric.ln Bo.ltd cJ Forensl Document Examiners. Member: Arneri( .. n Society of Que5lioned Document ElIJminers, the International Association (or Identification, the 8 rilr~ Fol'CIi'Slc SclcnCt'! Sodely and the NaliOr'lilI Aswcia tron of Cri min~1 Delense 1.'lWyers. Retired Ch lel Document Examiner, us-. 0 L,bor~lorlt'S. Hans Mil)'" er Gidion, 21B Me'r~monl Drive, AulluSla, Goorgla 30907. !'hOrlC (4041B6D-4267.
_ "" .. , n.
assIS I~n! pro(esssor. Rlch.lrd I. lanham, M.D., Irte., 42 Forrer Road, D.lylon, Ohio 4541'1. I'honl! (S 11) 2'14·3165 .. nyllmt.
fOREIGN LANGUAGE INTERI'R£TA· TIONITRANSLATIO N services-Court proc.eedings, Icgal documcnl~, corr!!spondence, conference and business meetings- French, SJ)\In ISh, Germ" n, It"l. ian, Ja pancse, Chlncse, Korean, Vietnamese, Ci\mbodian, Arable and other languages. SlnlUlt.!Ilcous IntcrprCtatlon. Mcdical llnd t l'Chn lc~llriln5 I a t ions. Audio and video production. Contact '~ ne lIosenstein, The irltcrnalionoll Corlni!-Clion, P.O. 8o~ 523]2, Atllmla, Georgia 30355. PhOlle (404) 233·6329. DOCUMENT EXAMINER-Experienced CXolmlncr of signaturM, handwrit ing, alleralions of medical and olher records. MbceU.. ncous document autncntication problems. Court-qullUfied. American Board of forensic ElIJmincrs. American Society of Q uestioned Document El\iIm· iners. American Academy 01 Forensic Sciences. I.IImlir Miller. 1',0. Bo~ 55405, Birminghdm, Alabama 35255. Phone (20S) 9B8-4158.
LEGAL RESeARCH HELII'-£Xperlenced il110rney, member of Alabamn Stme Bar
since 1977. A<:cess to law school iIIld stille law II br.lfles. ~11;lw IIV.lltable. Prompt d eadline service. US/hour. S llr~h Kathrvn farnell, 112 Moore Building. Monlgomery, Alabam~ 36 104. Phone (205) 277-7'}37. In Ic"t'l'~on and Shelby countica;, ca ll free : 322·014 19, No repre5entalion 15 made ~boot the quality of tlK> legal st!rvices 10 be perfexmed or the e~pcrlire ol lhe IlIWyet performing
such
.ie'v;(e~.
EXI'ERT WITNESS ASS ISTANCE and case evaluations in Medical Oncology (cancer) and Hematology (diSl'~<e<; QI blood). filS! service. Able to .ril\'el . Medrcal school
VIDEO PIIOOUCTION SPECIAUSTFourteen ~alS' e~perlcnce In ~II aspects of video production, budgct proposals and PfOjtoct supervision. Bacqroond in both technical and drilm.ltrc wbieet rTIiltter. fuc b.1sed on project complexity, bUI alWifYS negollable. Colli B.mv P.rl!er, pr0ducer/director, in Birmln8h~m oil (205) 991-725 1.
379
Disciplinary Report failed 10 file notice of appeal in the case
Suspension • Birmingham lawyer Mark A. Duncan was suspended from thC! practice of law for a period of 60 days, effective Oc· tober 4, 1988, by order of the Supreme Court of Alabama. By railing 10 file any ans\YCr to format disciplinary charges that were pending ag.linSI him, Duncan admillcd that he had col· lected some $468.75 on behalf of a dient, but failed to deliYCr
the fund s
10
Ihe client. lASS No. 87.514)
Public Censures • On July 20, 1986, former Birmingham lawyer HC!rberl P. Massie W.lS publicly censurl.'d for having engaged In unethical conduct, In viola tion of the Code of prof(!ss/onal RcsponsibllllY. Massie acc cpu:."Ci an attorney's fcc and a filing k'<! 10 initlO'lhl a \}ankrUI)l cy procct'(lIng on behnl( 0' cenain client s, but failed to fiJe the bankruptcy J'Ctltion on the clients' behalf arId failed [0 communicate with the clients about the matter. IASB No. 87.1781 • On July 20. 1986, former Bessemer alld Oneonta I~r Judy O. Thomas was I)ublldy censured (or having engaged in conduct that ad~l'S(!ly rcllccts on her fitness to practice law, in violalion of the Code o( Profussional Responsibiliry. Thomas accepled a retainer to seek 10 obtain legal relief in federal coort on behalf of a convict, but failed to pursue lhe m(lller for the clien!. [ASS No. 87.2351
Private Reprimands • On July 20, 1988, a lawyer was privately rcpril'llalldcd for violation of Disci plinary Rules 7·101IA)(2) and 7.101(AI/3). It wa s determined thatlhe lawyer In question had undertilken represclllati on c:J a dient in a worker's compensation case and
~n
though aware
of the time for fiUng the same, and to tnc prejudice of the client. The Disciplinary Commission determined that the a1torney should receive a private reprimand for these via ations of the Code. IASB No. 87-7431 • On July 20, 1988. a lawyer was privately 'eprimanded for engaging In cooouct InYOlving dishonesty, fraud. deceit. mIsrepresentation, willful misconduct ilnd olhercorKiuct that adversely reflects on his fitness to practIce tav.-. The lawyer was further reprimanded for failing 10 deposit fund s of a dient in an Insured deposItory trust account, for misappropriating the fund s of his dient and for failing to disburse a client's funds. The lawyer told his client that cases pending against Ihe dient had lx.'Cn senled for 5800, plus a $200 attorney's fee. The !;lienr pnld the $1.000 10 the lawyer. The lawyer then placed 5400 of these funds In his personal checkIng account and (ailed to ade<luately represent his clIent as agreed, resulTing In default Judgments beIng entered against the client.IASB No. 87-136J • On July 20, 1966, a lawyer waS privately reprimanded for falling 10 !;arry out a contract of eml)loyment entered Into wIth a client for I>rofesslonal services, for willfully neglccting a legal maner enlruSI(.'(lto hIm and for falling to promptly refund it fee paid In adVilnce Ihal had not been earned. The lawyer accepted a $1,400 retainer fee to handle a criminill mell· ter for II dient. The anorncy f.lIted 10 I>criorm the services ilS promised and failed to relund the $1,400 retainer iee. Ii\SB No. 87-4$71 • On tuly 20, 1988, a lawyer was privately l'eJ)fimanded for willful neglect and for Intentionill failure to seek the lawful objectives of a dient, for having failed 10 file a timely brief or.ll'lY other ple;lding In a criminal appeal In which he was the attorney of record. The lawyer also Ignored h s lOCal grlC'o'anee eommil1l..'ti'S /l:!(IUest that he pf'Olllde an ellptanatlon for his failure to file a brid' on behalf of his cllent. IASB No. 86-1341
LEGISLATIVE SUMMARY -AVAILABLEAt the end of the l egislati ve session, regu lar or specia l, the l egislative Reference Service compiles a summary of the genera l laws enacted and Constitutional amendments proposed . The Alabama State Bar has received permission from louis Greene, director of the AI<lb.,ma l egisla· tive Reference Service, to make a copy of this summary available, without chllrge. 10 each member of the Alabama St.He Bar who requests one. For a complimen ta ry copy, contact Alice Jo Hendrix, Alabama State Bar, P.O . Box 671 , Mont· gomery, Al36101.
360
Nrwllmbe, 1988
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• During the AII~ illnmcnt . O nce you decide 10 qunHfy your cHell!, ~'ll taL: tht whole job 0« your hands, not Just the filing. From verifying and ~rvln8 lhe corpol'(lle n:unt',oompilinS pApcr8, obtllining re<juired charier documents, 10 flling papers, handling recording lind publiclilion, whcn necessary-you can
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Htn. Frnk H. JohnlOn, Jr . U. S. Court of App.. I., 11th P. O. Sol 3S Hont9t~Y AL 36101
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