Lawyer 3 90 web by Alabama State Bar Association

The Alabama

3"W'yer

Congratulations Alabama Attorneys,

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COMMERCIAL COMPETITION

THE VOTE IS IN: AND YOU'VE WON! Thanks to more than 1700 Alabama attorneys who purchased "units" to successfully start and support Attorneys Insurance Mutual of Alabama . Inc, ("AIM"!. there is now an attorneys' professional liability insurance company that: Is committed to continuously serving Alabama attorneys. year after year! Makes Alabama attomey-insureds voting members of the company and entitles them to any dividends declared!

EnJoy the victory! Become an AIM insured! AIM: FOR THE DIFFERENCE Attorneys Insur.nce Mutual of Alabama, Inc! 22 Invemes, Center Parkway Suite 340

Birmingham, AI6bt1mt\ 35242-4820

Telephone (205) 980路 0009 ToU Free (800) 526- '246 FAX (205) 980-9009

" MEMBER : N ....TIONAL A SSOCIATION OF BAR - R E LATE D INS URANCE C OMPANI ES.

TOOT [P[f'@m:ru~@[f'@ [P[f'@@(ill©1t@ lJ@[f' ® .F01 SOLID &'~®©®m:ru® [P[f'®©1t~©@ NEWI Automobile Insurance Law by Davenport " ' 989 Criminal Offenses & Defenses in Alabama by Ch1Brk8S. Chl8rkas, & Ve'9as

° 1982 Criminal Trial Practice 2nd Ed. by ChiBrkas c 1988

Criminal Trial Practice Forms 2nd Ed. by C/) iorkas Cl 1988 Divorce. Alimony & Child Custody w / Forms 2nd Ed. by M cCurley & DaVIs

° 1988 Evidence by Schroeder. Hoffman & Thigpen Cl 1987

Equity 2nd Ed . Tilley 's by Hansford Cl 1985 Law of Damages 2nd Ed. by Gamble 01988 Limitations of Actions & Notice Provisions by Ho f(

Cl 1984

Workmen ' s Compensation by Hodd, Hardy & SOBd Cl 1982

• Including Current Supplement. if applicable.

BONUS OFFER Buy any 2 o f the above title s and receive 7 % OFF the TOTAL RETAil PRICE , or any 3 - 9 % OFF , or any 4 - 12 % OFF, or any 5 - 15 % OFF , or any 6 - 20 % OFF

THE];!I HARRISON COMPANY, PUBLISHERS 3 11 0 C.oulng P.. ~ • P 0 80. 1600 '

The A/abama lawyer

N O"' OII.

GA 10091 · noo

The Alabama

8-w-yer

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_ ,c.."o..,." ,_._ Punitive Damages and Post.verdi ct Procedures: ' 1(0;"' . ."""""-. _ . _, ,_ ...'~ .. •_ C'..I \J c-.. Where Are We Now and Where Do We Go From Here? ...... ....................... _"' ·w........ ...... .. ·""'...-..._I1....n.. -by Davis Carr ., .. , ... ,", ... ,"', .. ,', .. ...... . r

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The Tort of Bad Faith and Avoiding the $250,000 Cap on Punitive Damages - by David H. Marsh and Susan J. Silvernail ..... . . ... .. . O ne of the tort reform measures was a statutory cap on the award o( punitive damages.

114

Are there viable means to avoid the sta tutory limitations?

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Building AI~b~ma's Ccurthouses . . . .. ClE Opportunities ... ".",....... Opluio!\s of the Gener,ll Counsel Recent Declslcns . A~sesslng Ihl! LI!gaI Needs of lhe Poor . Lcgislativ1.l Wlilp-Up . . . . .•.... . . . .. Disciplinary KcpOll ... ,.,', ..... , .. Memorials .,., .. , .... , ........... Classified Notices .... ,., •• , .... ,.,

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Postmaste r: Send ;)ddress ch;)nges to The Alabama lawyer, P.O. Box 4156, Montgol'"I(!lY. AL 36101.

Roglml(l T, H~mn llr, CAE Keith 8. Norman

AI~b.lnla

State Bar

Cen ler for I'rQfellIQII~1 Itn ponllbilit y 1019 Soulll Perry SI'<:eI ° M(llIIlIOnll~"'" AI.lhllnlJ ]6104 (2051 26!}.-1S14

, !lubell W. NOt-rl. loon A. Yunl!, IV AniSIan! Ceoo<al Counj.Ol , AII'~ W. liKklon ASli51~nl CCne<il1 COunr.c:l . I. Anthony Mcl~ln

G<lnC<il1 Counr.c:l .. A.II'lanl General Coonsel

Adrnlni.IMlivc Siaff

. VI"IJn fleeman Ruth Slrlckl~nd Cheryl Itankln

Doronle Mainor

March 1990

President's Page Court funding

they will be earning more Ihan a Justice on the supreme court- and without all cerns funding of our st,ne covm, Ihe headaches of running fo r office. including adequ,,'e judicial salarJ. While many think (I good judicial Ieies. As president of your bar, II Is my duty tirelTl('nl prOgl'i1m Is (In Incentive 10 attrnct to in-.Gligate and report \0 you on Issues people into Judicial $ervice, that is not (IS concerning 1aw)(!f'S and affcctlng thc tldIrue M it was in Ihe pas!. For (.'X3mph:!, at miniSTration of Justice. I also see my job Icasl onc judge has roccnlly resigned and as requiring me to suSgest remedies for withdrawn his retirement contribu tions, these concems ,lIld ilttempling 10 lead Ihe perhaps in PMt because Ihat moncy membelS of the bar In reaching solutions. pl(lced In other investments would cam him greater dividends. Also. the vesting In AI"b"ma, we hiM! 11 real problem of in<ldequate funding of our Judici<tl system. of benefits and the method rJ C<llcu1a1ing This funding problem directly results in benefits has been Significantly changed court delays, overcrowded dockets, urlrair since the 1970$. The current r(!1iremenl system for Incoming judges Is not nearly work loads, difficulty In recruiting and retaining judges of the highest quality, and as allractivc as It once was. a host of olher problems. 4. last mOr)th, the sainI)' of federal disOne of the themes of my term in office CAIN E trict court judges went to $96,600 and is Ihe repair of bench and oor rel'lIions. will increase to $120,800 on J<muary 1, This funding issue also C,In be viewed as an aSpe(:t of that 1991. Judges on Ihe federal courts of appeal are now at theme. In other words, we practicinH lawyers ought to be $102,500 and will go 10 $128,100 in January 1991. These more concernL>d and Invol....oo wi th Issues affecting (Jur Judges gef\erally tl)' the same type ca~ and hew the S<l me Judges. No svstem can be any better than the people who type appeals as stale court judges. 5. The latest sala,), In{ormatlon aVJllable for state COurt run It. In order to keep the system of Justice we have-and ImprO\lC on It-we lawyers ought to be more knowledgejudges shows Ihe average annual state-paid salal)' for gcneral jurisdiction trial court judges in ten southeastern states, able and in\Qlved in court funding. Here (Ire 50me St(lli stic5 which illustrate the problem (lnd excluding Alabama, is nearly $74,000. The highest in the w.ty5 in which thc oor C(ln gct involved and help. These southeast is Virginia at $86,I06-the lowest is Alabama (It sta tiSticS ~re compil~ by the chief justice ilnd the Ad$56,760. Of Q')urSe, milny counties do prQYide \I salilry supministrative Office of Courts. plement, but the supplement is li ttle or nothing in m(lny 1. Today In Ihc classlOed scrvlce of the state there are ncarcircuits. Iy 100 positions whi ch have a top sala')' kwi whi ch Is 6. The Judicial compensallon COfllflllsslon has recol'i'l(lboYe the state salary paid to our circuit judges. The top mended to thc current Legislature a state salal)' of $72,500 I~l P<'Y for anorneys (lnd <ldministrative law judges in the for circuit judges, $71,500 (or distri ct judges and district atstate service is $66,504. torneys and staggered amounts Jbove the total compensa2. Some (lUorneys in stllle gO\lCrnment e(lrn $4,000-5,000 tion of circui t judges for the supreme court Jnd other per year more than the justices on the supreme court ilnd ilppellate judges. The salOl')' commission recommends that nearly $30,000 per year more Ihan some ci rcuit judges. these amounts lx.'COme effective Oclober 1, 1990. HCM'eVCf, Therefore, It can be more attractive today for an attornQ)' In rocogl'll tiorl of the curref\t ~nue pr(lblems in Ihe gen10 begin a career In slate service and Slay there because eral fund, the JudgM and district attorneys decided not to in about ten years, if he or she has made all the right steps, request the full amount of the salary comml ss!on's recomfcontinut:cJ on PilSC 70)

he 101)'( I present in this issue can路

March 1990

Executive Director's

Report

Million dollar baby y the time ~u read this repc)rt, (I hope) Attorneys Insurance Mutual of Alab<Jm<l, Inc. (AIM) will have wri tten policies of professional liabili ty cOYer.lgc (or Alabama lawyers generating CNer $1,000,000 In premiums.

Since our com pany (yes, I own a unit) became operaliofkll, we have met every goal our consult<1llls projected and usual·

ly ahead of schedule. We have also con· fronted the obstacles which the mutual companies in our sister Jurisdictions

faced when they started up-namely. misinformation from agents of commercial carriers and an undercuning of our

rales. AI M Is still the nation's newest bilr-re-

lated insur-mee comp..lny, We have been accepted Into membership as a charter member of NA8RICO (National Associalion of Bar-Related Insurance Companies). NABRICO Is Incorporated In Minnesota. O thel members are: Lawyers Mutual Insurance Comllany (California) Floridfl Lawyers Mutual Insurance Comp.lny illinois State Bm Association Insurance Risk Retention Group, Inc. Lawyers Mutual InsuranCc Compan y of Kentu cky M ichigan Lawyers Mutual Insurance Company Minnesota La wyers Mutual Insurance Company

The Alabama lawyer

The Bar Plan (Mi ssouri ) Attorneys Liabili ty Protection Society, Inc., a Ri sk Reten tion Croup· lawyers Mutual Liability Insurance Company of North Carolina Ohio Bar liability Insurance Company Oklahoma Bar Professional liability Insurilnce CornPilny Oregon State Bilr Professional liability Fund Texas Insurance Exchange W isconsin Lawycrs Muruallnsurance Company

·Dclawarc, !i.t>sl Vilsln/a, Kansas, North DllkOld, Mootana, Wyom-

ing. Idaho.

Nevad~

and " 'Mb

(ALPS is a multi·state captive for Sl.lles thill wt'rc too small to form individual capfiw:s. / We are proud of our acceptance and the! COmptlny we now kf!ep. NABRICO members were elCtremely helpful to us In our formation . Together the bar·reo la\(~d captives have b 'ough t stability to a chaotic lawyers' pro(essionalliabillty market and a measure o f reasonableness to Insurance cOSts. I remind those who may have bt.'Cn diSilppoint¢d with their initial (Iuote fOr AIM coverage and elected othN coverage at a lower rate that AIM 's goal Is to offer continuing OIvailobllity at the lowest competi ti ve rate that sound insurers and Insurance regu lators dictate. OUrs is a mutual company and any savings are reo-

HAMNER

turned to policy holders, not stockholders. Those of you who may hillle purcha sed coverage (rom AIM 's principal competitors In Alabilma have obtained a significan tly morc favorilblc premium rating Just becilU SC AIM is now a reality. Our commercial competi tors ilrc lowering th eir rates now thilt you have an alternative. They bcSiln doing this even as we were ca pitaliZing AIM. It Is amazing what a good book of business Alabama lawyers sudden ly became and what good ri sks we became wi th the same car-

(continued on paBe 71)

President's Page (comlnued from page 68)

mendaUon for October 1990. Instead, lhey arc asking Ihe Legislature to provide

them this October the same percentage Increase which might be provided slate emplO)'CCS and then ptoYide the remainder oI lhe commission's recommen· dation on October 1, 1991. Uudges are 00( automatically included in periodic annual raises other stale employees might

rccelyc.) AI Ihc ti me of this writing, it aplX!ars that this 5.1111ry proposal has a good ( h,mee of passage, but your help Is soli·

cited . Lnwycrs should contact slate represent.Jtl~

and senators arK! lei them

knoYl how important thi s issue is to

the

administration 01 Justice.

On a bro;ader plane, funding shortages exist in lhe unified judid,l1 system as a whole. Besides our (MOn self-Interest in an efficient court system, Ihc stale b.1r ()'.Y(!S a duty to Ihc publiC to see 10 II that Ihc needs of litigants are met. Judges. clerks ,mel court administrators all O'<'ef the state are getting more alld more complaints from litigants about court dell')'. In most part, th~ delays are caused bv a short· age In court penonnel. Let me relate a lew statistics and teU )(Xl about some crucial need5 0( Ihe state courts-alld solicit 'yOur help to lobby your legislators about the problem-and solicit your advice ilnd ideas about longrange solutions. The unified Judicial 5ysTem has a budget of about $6S million per ~tIr. Them has been no Increase for two ~ars. 6ut this is not truly ICl.'eI funding because built-in, un<lVOidabie costs (such as health insurance) continue to go up. In reality, tke courts have been struggling with a budget cut during the current fiscal year. Therefore, peoonncl positions hiM! had

to go unfi lled becau~ the budget is not sufficient for even the emploo,<'eS 'M;l h~. Because of locked·in costs such as Increased health benefits and personnel benefits, the unified judicial system needs an additional $25 ",II lion In next ~ar's budget just to slay at leYel funding with 1988. The go.«nols budget Includes this extra amounl. AI the time this article v.entlO press. the House, through the ~ and Means CommiUee, ha~ addl!d an e)(tra $2 mil· lion to Ihe court budget. ~ need your Influence with 'yOUr senatOf'SIO make sure at least that $2 million stays In the bud· get for fisca l year 1991. The chief Justice and AOC requested of the leglslalure an additional $9 million to reach whm was calculated to be rrinimally adequate funding. Of course, .... ith the 0\'eI'iI1I fund· Ing problem In this st.ne, no one e>:pcctcd TO get that amou nl. I do not mean to (!:I(;Ig8Cfilte the fund· ing problem, oot my purpose today is to warn you of whal I perceive 10 be the beginning of really seriaus dl(flcultles. Even with the additional 52 million, NJC will nOt be able to move Into new areas and make much progress In court administration and court reforms. For el(ample, a unified cen"a1 records plan has been on hold for years, <l'N.llting funding. N:)C (!Stim.lles that at lea$! 20 circuit clerks' offices need one to two new em· pl~ just 10 process cases OIl the same speed they were a few years ago. Without adequate fulldln&. nOt only can we nOI make progress, but WI'! are falling behind In serving the public and Ill(! Illlgants and lawyers. Finally, one last example of Impending crisis: the stllte's IS largest circuits are automated and on the AOC mainframe computer in Montgomery. N:)C has been trying to gel the Legislature to understand that this mainframe Is almost a1 full ca· pacity, and when capacity hits. the courts almost literally will SlOp. Now Ihat they

are aUlomated, the nUng and processing of Cases in these circuits Cilnnot proceed adequately and clfIclently without ex· IXlr\dcd computer Cal)3Clty. It Is estimated that the needed mainframe upgrade will cost about $3.S million. E~ If the money were available today, It takes about nil\(! months to get a new malnffilme fully operationill. So. it Is possible that Ihis compuler OIerlO<Kl alld resulting chaos may be lhe first objective prod to lawyers and to the Legislature Ihal a real ( risis is brewing. \Ne cannot afford 10 .....alt unlll such events explode In our filce: our dUly Is 10 work within the political and judicial s'ySo terns to find ways to ooet:luatety fund our courts and stilff Judicial and clerical of· fl ces. The law Is a public profession and we have a duty 10 the public to defend the rule 011..,..... and Improo.c lhe adminislfiltion oi Justice. I fear thai the public per· ception of our system as one full 0( delay and uncaring bureaucfilts 15 a perception That is increasing. LlW)'Crs, looividually and thrOugh bar org.1ni1.ations, must be willing to take a public stand on these funding IssuC'J and endClWOr to find the funds to adequately compens:.te OU r judges and fuoo basic court services. 1 hope I have nOI sounded too "preachy" or appear 10 be "crying wolf.8 If 'yOU will in..etigate Ihese Issues by talkIng II) }(lur judges. clerks. N:)C personnel and legislatOf$, )(Xl will be convinced Ihat funding Inadequacies am already causing signlflcanl problems, and even greater problems are merely being Ig. nored, butlhey wllllnllVltably have to be addressed in the near future In what will prob<Ibly then be a true cri5is atmosphere, I encourage all law~rs to consider these facts and take action 10 come to the aid and defense 01 our judicial system. 10 Ignore these problems Is a disservice to the public and oursel~ If lawyers will not get irr.olved and speak up on th~ funding issues. what group willi •

M/lrch 1990

Report (conlinued (rom page 69)

lcellon of counsel and selliement pf'OYl. sions of the AIM policy. Theoretically, the concept of II mutual

insurance company makes its insureds entitled to the company profits and lia-

ricr who earlier would nave us believe their slaying with our program "was an act of conscience and chariey," As O\lr AIM pool of insureds continues 10 grow and we build OUf own Aliloomil

lawyer experience b.,se, our rates will reflect the good (!XI)Cfience factOr we anticipate,

This column was Inspired by the need to respond recen tly to Inquiries from at-

torneys in one area of our st(lle where commercial carrier and/or Its llgcnt bla-

tan tl y misfCpresen ted fil ets about AIM c~rdl!e.

Two issues n(.'CC1 to be addressed. These are: (1) Ihe lI~blllty of AIM Insureds (or debls of the company and (2) Ihe se-

ble for Its los~; however, AIM's policy provides that an Insured 15 "not Uable for the debts arId obligations of the Company:' (11. Mutual Company Policy Conditions). "This protects our Insureds but still allCM'S them 10 enjoy any profits the company may d~lop. Our polley provides a guaran!ee that, In the even! 0( a daim, defense cou nsel will be selected by mUlual agreement among the Insured and AIM. (Commer· clal policies generally do not give an In· sured a voice in defense counsel wll.'Ctions.) Our policy also guar,lOtCCS that AIM will not settle :l claim without an Insured's consent. We do nol have 11 clause penalizing an Insured (or refuSilI

Notice of Election Notice Is given herewIth pursuant to the AI.lOOm.. Slate Bar Rules Qwcrnln8 Clcc· lion of Presidcnt-cICCI lind Commls·

white photograph and biogral)hical data 10 be published in the May Alabama

sioner.

Ballots wilt be r'r"ralled bcl~rl May 15 and June 1 and must be rccelved at state bar headqUll fters by 5 p,m. on July 17, 1990.

Presldent·elect The Alabama State Bar will elcct iI presldent-clcct In 1990 10 assume the presidency of the bar in July 1991. Any cilndldale must be a nlcmber In good standing on March 1, 1990. Pelltlons nominating II candidate must bear the signature of 25 members In good stand· ing of the Alabama State Bar and be reo cei'-'!d by the secretary of the state bilr on or before March I, 1990. Any candl· date for this office also must submit with the nominating petition a black and

The Alabama Lawyer

Lawyt!r.

CommiSSionefl Bar commissioners \ViII be elected by those lawyers with their prinCipal offices on the folll'JWlng circuits: 8th; 10th-Places ..4 and 7; Bessemer CUI.off; 11th; 13thPlnce " 1; 17th; 18th; 19th; 21st; 22nd; 23fd.Place "1; 30th; 31st; 33rd; 34th; 35th; 0100 36th. Additional commissioners will be elected in these circuits for each 300 members of the stale bolr with principal

to settle. Most commercial policies do by providing that the carrier is flOt liable for any oYeragc bet......eefl that which a case could have been settled for and the ulti· mate YCrd1ct. This saddles the Insured with paying the difference. Many Alabama liM')'efi h~ chosen to Insure with AIM even thouSh Ihey COUld have saved money on this year's premi. ums with coycrage through one or more commercia l carrier competllors. II is obvious to me Ihat the sudden reduction In commercial rates Is because AIM Is here to 5Tayll wonder jf the com· rncrdO'lls are willing to make the same commi tment. They have left Alabama IIlWYCrs without c()VCrage In the not-IOOdi stant past. You can now control your E&O desllny by supporting AIM. It may cost a bit morc Initially, but In the long run, AIM will not run out on you in the next hard market. •

offices therein. The new commissiooer positions willI)(! ck?1t:~fmlned by a census on March 1, 1990, and vacancil.'S certified by the secretary on March 15, 1990. The terms of any incumbent commissonefi are retained, AU subsequent terms will be (or three years. Nominations may Ix! made ITJ' petition bearing thc signatures of five members In good 51andlng with 1>rlnc!p,,1offices in thc circuit In which Ihe election will be held or by the candidate's written declaration of candidacy, Either must be received by the secretary no later than 5 p.m. on the last Friday In April (April 27, 1990). Ballots will be prep.lred and mailed to members between May 15 0100 June 1, 1990. Ballots must Ix! >,()ted ind returned by 5 p.m. on the second Tlicsday In June Qune 12, 1990) to state bar headquarters.

•

Letters to the Editor Vaccine Inlury Compensation Program I am wrillng with regard to Ihe Vaccine In jury Compensacion Program, a no-fa ult compens;Uion system for individuals who hilVC been Injured bv specified childhood vaccines,1 42 U.S.C. S 300"<1·10, c! seq. The program, effecl lve as of October 1, 1988, permits Individuals who bcllt.'W th;ry aA.! eligible for compensation to file a petition with the

should be add~sed to the United Stales Claims Court, 717 Madison Place, N.W" Wa shington, D.C. 20005. If anyone has any suggestions regarding h(WI to make this Informa tion widely known, or any questions, please contact Oavld Benor OIl (30ll 44)·2006. Thank you for }Qur cooperation, Sincerely, Mic hael J. M lrut Gtneral Counsel Departm ent of Health & Human Serylces

United Siaies Oaims Coun. The Secrelary of Hcahh ;l r'ld Human Services Is

named as Ihe respondent, ilnd is responsible for prcwidir'l8 an ans~r to the Coon rcgan:ling the allegations of each p!!lition. The secretary hilS delegated his re sponsibilities under the program 10 the Bureau

,Inw .'" ,.......... IM! It. d~ petIII»It. -.....

I. Vl«NItt IIIcIuded II "'"

1oI1oww.

of Health Professions, a component of the Public Health Service.

It Is with no little trepidation Ihal l -..enlure to comment on the letter of Hon, J. Edward Thornton, a glanl of the Mobile Bar, and also, I believe, one who served as president of the Alabama Slate 8ar, published in the January issue of Tht! Alabam.1lawyer. Mr. Thomton'~ vi(!Y.'S on many tOpics are frequently published by the Mobile Press Reg/Slcr. In this regard, I h;t\IC had a few of mine published recently. While I haY(' the grealest respect for Mr. ThorntOn- he has been pfdCticlng far longer than I have- I frequently find myself unable to agree w ith his views on some issues, No-fault d ivorce Is one instance. In thi s regard, I am rem inded of a debate on the floor of the U.S, Senate in thc late 19405 be~n Ihe two Illinois senators, Democrat Polul Douglas and Republican EYeret Dlrk.<en. Toward the end of Ihe debate, or colloquy, Sen. Douglas characteri zed his opponent as "a man dragged kicking and screaming Into the twentieth cen tury." Further, your co,respondent saith not.

on (lny attorney who is consulted bv an Individual regarding a vaccine-related Injury Or death to infor m such Individual that compensation may be available under the vaccine Injury Conlpensation prograrYl. Sce 42 U.S,C. § JOOaa.10(b). Individuals Injured prior to October I, 1988, must withdraw any pending civil suits if they choose to pursue a claim through the vaccine In jury Compensation Program. Petitions for these in jurics must be filed prior to October I, 1990. See 42 USC. § JOOaa.16Ia)ll ). Anyone In· jured after October 1, 1988, may bring a civil action against Ihe vilcclne manufa cturer or administrator only (1) if compensation Is der1l00 under the program or (2) by rejecting an award under thc program . Accordingly, we think il ls crucial thaI all allomeys be made .w.tare of the program, the deadline fo r filing !>Ctitlons relating to ~ilccines which were administered prior 10 Oclober I, 1988, and the statutory provision defining ;momevs' eth ical obligations. Specific Inquiries as to filing requ irements and Claims COurt procedures

Alabama Lawyers get worn, torn or thrown away. Order a binder (or two!)

....................... """"1.1, ...t JJOIlo.

No·fault divorce-a nother opinion

The act Imposes an ethico'Il obligation

Don't let your

at $10.00 each from: The

Alabama Lawyer P.O. Box 4156

Montgomery, Al 36101

or call (205) 269·1515

Don Morgan, Fairhope, Alabama

March '990

An open letter to the bar Since thc conclusion of the 1990 American Bar Association Midyear Mf.'@!· ing In Los Angeles, I h;rye received a

number or loners al)(! telephone calls re-

garding the proce.s and procedures used In adopting ABA policy positions. MOSt

of these leuers ard telephone calls hiM! been gcncr<llcd by the House's adoption of RC50IuUon l06C col'lcernlng a 'M)man's constitutional right to privacy in determining whether to con tinue or tefminate her pregnancy. I am pleased to haYe lhls opportunity to wspond to these Inquiries. explain the representative nature 01 the A81'\5 policy.

making process, .nd let you know how your YOlee Is heard in your aS5Ot;iiuion. Simply stated, your voice is heard through your elected fcpreset'ltatives 10

the House of Delegates and through ~r role in the ABA Assembly. The ABA policy-making body Is the House of Delegates. Currently, the "louse Is composed of 461 members. A state delcg.,tc Is elected by the direct vote of members in l'NCfY state. Various aS5OCi· .1I10n sections and division$, as well as ASA affiliated organiZations, also have delegates In the House. Mo~ than half of the House members represent state and local bar aS5OCiations. l'low do policy matters come before the AS5OClation~ Any group or organlza· tlon represen ted In The House is eligible to bring resolutions forw<lrd for COnsider· ation. If you have an Idea or susgestlon about a policy matter, con taci your state delegate or your state or local bar about Introducing your proposal Into the House. Another means of bringing policy mal· ters to the attention of the aS5OCiation 15 through the assenbly. The assembly Is convened at cvcr)' annual meeting. and is composed of members of the associa· tion registered for that annual meeTing.

The Alabama Lawyer

Any member of the association c.ln bring a resolution before t~e assembly by m· Ing it with the secretary not less than ten days prior to the meeting of the assem· bly. For example, on February 28, a res0lution was filed with the O((ice of the Secretary which calls lor the assembly to revisit the Issu~ ral5ed by Resolution 106C at the upcoming annual meeting. It is anticipated that a similar measure will be brought before the House of Delegilles at that same meeting. Resolu· tions adopted by the assembly are roferred 10 the House eX Delegates. If the House concurs. the assembly resolution becomes association policy. If the House disapproves or amends the assembly resolution, It goes back to the assembly. If there Is stili no concurrence, the assembly may-by a two-th rds vcte-<all for il referendum of the memi>ershil). Media accounts haYC highlighted the debMc over Resolution 106e. This has heightened the Interest of marly ABA members In the polky-making proce-

dures, and is an outstanding opportuni. ty for all A8A members to become more Involwd In (III of the assoclatlon'$ vital v.ork. The strongth of the American Sar Association is you, the member. Your association Is playing an Increasingly Important role In public dialogue In Washington and throughout the muion. If we are to continue to sc~ effectively as a naTional voice of thc legal profession, we need to hear Ihe concerns, the Interest!> .. nd the views or all mcmoor!i. 1115 only by bringing together the diversity inheront In our wide membership that we can make our best effort to ad· dress the variety of critical issues COilfronling our profession and our society. Sincerely, l. Stanley Chauvin, Ir., Presidenl, America n Bar Assoclallon March 1, t990

•

Robert S. Vance Memorial Fund A fund enlilled Ihe Roberl S. Vance Memorial Fund ha~ OCOCf1 t'slablished .11 the University of Alabama law School, Ihe judge 's alma mater. In order to endow an academic chair in the judge's name, the fund must raise $600,000. Contribu tions to the fund arc ta)! deductible. Checks should be made payable to Ihe University of Alab.1l11a Law School Foundation, indicating on Ihe chC(k and the cover le11er th.1! !he check 15 intended for the Vance Fund. COlltrlbution$ should be moiled to; Alyce M . 51Jruell Director of Law School Development University of Alabilmil law School P.O. Box 870382 Tuscaloosa, Alabama 35487-0382 QuestiOns aoout the rund may be dlu.'Cled to Spruell, at (205) )48·5752, or to Mary Nell Terry, at: Cr.ilmbcrs of the Honorable Rober! S. Vance 900 United States Courthouse Birmingham, Alabama 3520) (20S) 7)1.1086

Unnecessary Delay in Our Reduces Respect for the Rule by Sonny Horn sby Chief Justice, Supreme Court of Alabama

II Is my belief that unnecessary df!lay must be eliminil\ed fr(lm our courlS 10 ensure Ihc continued respect for the rule of law in our justi ce system.

Iy await trial for over a year:" Such courts, the Cornmission slare$, "make a mockery of ball decisions ... important cases are lost by attrition , , .

C): :

and the delay undermines the law's deterrent effect by demonstra ting that Justice is not swift ,lnd certain bot slow and faltering."

Why is delay a problem? The public, lillganls, l<lwyers and will all be the beneficiaries of our COnti nued efforts 10 rOOl,lce backlogs of judg~

cases in our courts. Delay causes many problems. It deludes judJ:lments and cm.. ates anger in litiSllnlS and uncertainty for

lawyers. It results in 1055 and destruction of evidence, wastes court resources, needlessly Increases the C05t of litigation,

dims thc memory of witnesses, and places uflfalr pressure on IitigilnlS10 resolve disputes for les5 Ihan full value. Concern tn", Ujustice dl!lttyed Is Justice denied" is as old as Ihe common law itself. The nobles forCed King JOhfllO sisn the M{lsna C:llla and promise not to "deny or delay right or Justice:' Through the years, literary figures from Shakes~,i(e 10 Dicken s halle condemned the snail-like speed of litigation. In thi$ (entury, numerous le::lders of the bar have Singled ou! delay as a pressing problem, The last three dlil;!f justices o( the United States Supreme Court have called at路 tention to the problem of delay, Several prestigious national commi ssions have Identified delay as !I critiCll1 problem (acing Ameri ca's courts. The President's Commission on l aw Enforcement and Administrlltion of Justice ar路 gues that: "There arc courtS.. .ln which persons charged wi th serious crimes normal路

, '. .... '.. .',

March 1990

Courts of Law

be tried within days of arrest when In custody and 120 days If not In custody. In our civil justice ~ tem, delay Is Ihe

most slgoWcan! single problem. Court reformers from Ihc lime of Jethro, the (ll1her·ln·law of Moses, have recognb::ed the need to concludcdlsputcs fa irly atld I)romptly, (Exodus 18;13·27)

Delay breeds a lack of confidence in Ihc syslem Why does reduction of delay In civil litigation merit the efforts of the bench lind barl NiUlonal surveys of pub liC <'I\Iitudes reveal a remarkable lack of confi· dence not only in the legal profession but more specifically in our state and local courts. In a comprehensive survey commissioned bv the N~tional Center for State Courts, the confidence level attri· buted to state lind local courts ","ked 11th of the IS Institutions Includl.>d In Ihe poll, belaw the medical profession, business, public schools, and even COt'Ig~s. The reasons for this unf;lY()rable Image of state and I~I coUrtS are suggested by other data from this survey, Of those polled, 57 percent believed "efficiency In the! courtS" to be a serious niltionili problem, an expression of greater public concern than for pollution, educatiOn, racial problems, even the threat of war. Almost half the respondents bellL"&lthe courts to be either in ~great" or "moder· ate" need to reform , Not surprisingly, pretrial delay W(lS ;t m<l]or I)roblem in Coutt opera tion cited by Ihose members of the general public most knawledgea· ble about the Judicial system.

lawyers and cOtJm go hand· jn-h... nd In the minds of most of the public. lawalld the law <Ire , ll)SCly associated with the aClions of the COJrts. In short, the public's 1)(:(Ceptlon Is th at excessive costs and excessive delay render the law andlDWyers Incapable of performlngth!! basic 5elVices for which tllet' exist Therefore, reduction of delay in litigation demands the immediate attention of the bench and the bar. The corollary th .., fol· laws Is that the! key to successfully reduc· Ing delay is a commitment by the entire legal profession to the Idea that court delay Is a problem that can no longer be ethically or economically tolerated, a conclusion reached by Tom Conser. ex· ecutive director of the ABA In 1985, ~rs

Elh ica l obligation I believe, as docs Ihe ABA l..lWYCrs Conference Task FOrce Otl Reduction of litigatlon Cost and Delay, thllt It Is the 4;lthlcal obligation of judges and lawyers to conclude liligation promptly. This obligation Is speciflc... l1y stated In the Model Rules of Professional Conducl, In Rules 1.2, 1.3, lA, 3.1, 3.2 and 3A, and in the Code of Judicial Conduct, Canons 3A(S) and 3B. The legal profession must contlnu(lily deal with keeping Its business current. If it does not. the public and the litigants will force upon the system their awn sclulions. The Lawyer's Conference Task Force reports that officers of some major corporations are making prompt disposi. tlon of ca~ handled by retained trial counsel and control of outs de counsel's

In 1968, an American Bar Associa!ion commission proposed standards for

sPL'(!dy trials. Shortly thereafter, Ih~ National Nlvlsory C(r1lmission on Criminal Justice Standards and Coals assigned nrsl priority 10 ensuring "spt.'ed and emclen· er In achieving final determination of gull! or Innocence of a de(cndant .~ Since 1967 these commissions have

proposed standards and goals for procc55ing criminal cases. Their general r(l(ommendalionsare reflected In legis-

The Honorable Sonny Homsoy, of Tal· lass99, Alabama, Is Al808ma's 26th

chief justice.

lative and judicial efrorts 10 Impose spc<.>dy !dill proYisions, In 1974 Ihe

United Sl.aws Congress in the Speedy Tri· al i\cl mandated that fcderal defendants

The Alabama Lalvyer

prelrial activities by management, highleYel corporale Issues. The L..av.tye(s Conference Task Force report.5 Ihe following and I coocur: "The of8<lnlzed bar and bench have a uniquely c;:onstrUCliw opportunity 10 resolvc lhc delay problem. Asidl! from Ihe elhlcal responsibility and economic and social bcneOls 10 judges and lawyers, what more appropriate way can there be to reaffirm professional Ideals than 101mpl'OYC the system for the benefit of the litigants and the public;: at Iilrge? HOelay can be eradicated if system participants accep! the fact that delay Is a problem; If a program Is designed 10 deal with all of Its causes; If Judges, lawyers and the public believe that the progrJm can solve the problem; and if the judicial and bar leadership wilt openly and publicly comm I th+;:mselves to mecting ilnd malntai nln8 Ihe goal of delay rcduction.N Time standards are first step toward solution The first steps in combating dclay must be the dCIIClopment of some standard 17)' which a court can measure its performance and a recognition 0( the fad thaI thc court nlust control the pac;:e of litigation. The support and encourilgement of the bJr Is alwit'y'S Important to judges takIng thi s first step. The Nationi'll Conference of State Trial Judges developed and adopted a set of Court Delay Reduction Standards. AI th+;: August 1984 annual meeting. the housc of delegates of the ....mericiln Bar Association oYefWhelmingly appl'CM.od these standards The ABA la~rs Conference Task Force supportS these standards. The standards are thl! basis not only for a dl!lay reduction program but for a delay prevention system as well, St'CIlon 2.52 of the Coun Delay Reduction Standards deals wi th the timely dispoSition of cases, and provides: A. Cenerill Civil-gO percent of all civil caSt.>$ should be settled, tried or otherwIse concl uded within 12 months of the dale of case filing; 98 percent within 18 months 0( suc;:h filIng; and the remainder within 24 months of such filing exC;:Cllt for individual Cil5es In which Ihe court determines e)(ccl)tional circumstances e)(lst and for which a continuing review should occur,

B. Summary Civil-Proceedings using summ<try hearing procedures. as in small claims, landlord-tenant and I1!J)lcvln actloos. should be concluded wi thin 30 days from filing, C. Domestic Relations-90 percent of all domestic rela tions matters should be seuled, tried or othelWise conduded wi thin three months of thl! dille of case flIings; 98 percent withi n six months; and 100 ~rcen t within one year. D. Criminal Felony-90 percent of all felony cases should be adjudicated or otheIWlse coocluded within 120 days from the dale 0( arrest, 98 percenl .....thln 160 days and 100 percent within one year. Misdemeanor-90 percen t of all mlsdcmeilnors, infraClions and ol her nonfelony C;:ilSCS should be adjudicated or othclWise c;:Oncluded within 30 days from tnc date of arrest or ci tation and 100 pl!rcent within 90 days. Persons in pretrial cus tody-Persons detained should have a determination of custodial status or bail set wi thin 24 hours 0( arrest. Persons incarcerated before trial should be o1fforded priority fOr trial. Ju~nll[!-l u\ll!n i1e c;aS(!s should be heard within Ihe following time li mits: 1. OI!tenllon and shelll!r heari ngs- not more Ihan 24 hours follCM'ing admission to any detl!fmlnallon or shelter facili ty; 2. .A.djudicatOl'Y or transfer (waiwr) hearings a. Concerning a juYt:!nile In a detention Or Shelter facili ty: not laler than 15 days fol lOY.'lng admission to such facility; b, Concerni ng a Juvenile who Is 1'101 In a detentiOfl or shelter facility: not later thafl 30 dltVS followi ng the filing of the petition; 3. DiSp(lSition hearlngยง-not laler lhan 15 days followiflg the adjudicatory hearing. The court may grant acldltlonal time in exceptionill cases that require more complex evaluatioo. (.... B.... Standards Relating to Juvenile Justice: Court Org. and Mm. 3.3)

Alabama time standa rds co mmittees These are standard s nrld goals thnt couns should reach and maintnln If pos-

sible. I haYe recently appointed Circuit l udge Joe Phelps of Montgomery to chair a commillee to dC\o1!lop $liItewide time standilrd gOills for the cin:uit courts and DistriCt Judge Gerald Topazl of Blrmln8ham 10 chair a similar committee to de-..elop standard s for dlstrid courts. These committees are now working on a set of standa rd s which wil l be similar to the ABA time stondards, I am convInced time st~nda rd s C;:iln be an important step in reduci ng litigation delay, and I ci te e)(cerpts of a recent suec;:ess story reported In the fall issue of the

ludSe'$ Journal: "The Wayne County Circuit Court in Detroit, Michigan, has had a 10ng-5tilnding hiStory of delay in civil cases. .... 1978 study, which sampled data on 1976 dispositions, reported a median tort disposition time of 788 days, Or about 26 months from flUng. For the fu ll range of general civil cases, the median time was 24 months. For G1SCS disposed of 17)' jury trial, the median in 1976 was 41 months. In a 1964 fQl ~p study, data from 196) dispositions sna.-..ed oolyo1 slight change: median tOrt disposition time was 24 months. median general CIvil case disposition time was 21 mOnth5, and Ihe median time to jury trial wu 37 month s. "But this year, something important is happening in the Wayne County Circuit Court-somelhlng that deserves the aIten tion of eYt:!ryone Interested In the reduction of l itigation cos ts and delays. In a program aimed at enabling the coun to meet tne ....8A TIme Standards Jor Civil Case Disposition, the oourt has taken control of its caselood, reduced its pending c;:aS(! inventory, and is bringing all of its cases to conclusion more quickly than al any time In the recent past. "The Initial results of Ihls barely threeyear-old program haYt:! been dramatic. The pending civi l caseload has been reduc;:ed by more than )) percent since January 1985, the median time to disposition has dropped from 21 to IJ months. and the number of civil cases pending more than two ~ars has been Cut in hillf. For the seven judges In a pilot Pf'Ogramthe first ones to COllYCrt to an Individual C;:illendar system-the results are ~n more striking: .... 11 have reduced their combined civil and domestic relations caseloads from more than 1,300 c;:ascs in mld-1986to fewer than 700 in mid-19M, March 199D

and five of the S~n had c:aseloads of less than 600 as of AugUSt 1989:'

Appellate standards While the emphasis to Ihls polnl has been on the Irlal courts, I OON turn to the process of appeals. It Is my belief Ihat as a lawyer you should be able to tell clients, with some degree of certainty, Ihat Iheir case, no mailer how complex, ought to get to Idal in two ~ars. You also oughl lObe able to tell clients thai If their case has to be appealed, It will be heard, and a decision rendered within a year--.lnd that the tOlal mal(if1lum lime lhey could possibly be tied up in litigation in Alabelma courts would be three years. The ABA Appellate Standards say a case should not take more than 280 days from Ihe time of notice to appeal until a decision 15 reported. Our court of cl ... 11 appeals In Montgomery 15 more th,," meeting thi s standard and our entire appellate syslem Is \-ery close 10 this goal. In his farewell address as 1986-87 Presiden t of Ihe American Bar !.Ssodalion, Eugene Thomas made an observa-

liOn which demonstrates quite vividly the need for time standards: "We kllO'N that it should not be necessary (or cases that IS years ago could be tried in !'oW days now rt.!quire two m(mths---<ases that when I was a lawyer beginning TTl'f practice 25 to 35 years ago could be tried by all the attorneys In lhe case for less than one single court reporter takes oot 01 II Ie> day in disposition fees." It Is necessary today that management be exerted In all phases of a Irlal. A court's- control of its docket Is the key 10 maintaining a congestion.free Judicial system. Ne'N$(asier Edwin Newman sums it up in simple terms: "Nobody wants ~u mma ry justice. That, however, nl,.-ed nOt be the alternatl'IC. The alternatj'IC shou ld be reasonable dispatch, without dilatory tactics and self.lndulgence by lawyers, and with judges who are able-and want to keep thing> moving, Why Is that 100 much to ask for? It ought to be taken for grilnted:'

IUDICIAL AWARD Of MERIT NOMINATIONS DUE The Boord of Commissioners of the Alabama State 53f will receive nominations for the state bar's Judicial Aw;ud of Merit through May I S. Nominations should be prepared and mailed to Reginald T. Hamner, Se£relary, Board of Bar Commissioners, Alabama State Bar, P.O. BOl( 671, Montgomery, Alabama 36101 , The Judicial Award of Meri t was established in 1987 and the first reci pients were Senior U.S. Dlwict Judge Seybourn H. Lynne ;lOd retired Circuit Judge James O. Haley. The award I, not necessarily (In (lnnu;ll ;lward , It Illay be presented to a Judge whether state or fcdcr,,1 COllrI, trial or (lppellatc, who Is detcrnllned to ha ...e contributed significantly to the administration of Justice In Alabama. The recipient is presented with a crystal ga ...el bearing the stale bar seal and the year of presentation. Nominations arc considered by a three-member com· millee appo inted by the president of the Slate bllr which makes fI recommendation to the board of commissiOners with respe(:t to iI nominee or whelher the award should be presented In any given year. Nominations should Include a detailed biographical profile of the nominee and a narrative outlin ing the sig. niOcant contribution(sl Ihe nominee has made 10 the administration of justice. Nominations may be supported with leiters o( endorsement.

The Alabama Lawyer

The following general sources W@rl! used for this article: Defeatlns Delay, a publication by the American Bar Association and the lawyer's Conference Task Force on Reduction 01 litigation Cost and Delay. St.Jnd.lrds Relating to Court Delay Reduction, a publication oIthe ABA and the National Conference of State Trial Judges. Managing to Reduce Del<ly, a publication of the National Cemer for State Courts. Jus/ice Delayed, a publlC<lIion of Ihe Na· tional Center for Stale Courts. On Trial: The /.enSlh of Civil and Crimi· nal Trials, a publication of the National Center (or Stale Courts. The ludges ' Journal: article entitled "Straightening OUI Deloy in Ci... ilUligalion;' by Douglas K. Someriot, Maureen Solomon and Barry Mahoney. Mana8/nB (he P.lce of Justice, a publication of the NationallnSlitute of Juslice.

•

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By the Lawyers and for the Judges: An Irreverent History of the Bill of Rights

(Prokssor Mictwc/ E. Ti811r preSCnled !his speech during Iht! Alabama Slale Bar's Mid-yeM Meellng 8leen/cnnlal Lunch-

eon. This keyn<Nf address was part of/he meetin8 lind Ihe celcbrJlion of Ihc 8/,enlcnnliJl of Ihe 8i11 of RiShIS, February 2, 1990, in Birminsham. Pro/cuor T!'SlJr Is currcnrly Joseph O. J,lmall chalr-In-Iaw althe Un!vct1/ty o( Texas School of /.aw.)

I !liNe a photograph of myself. I am nOI proud of it, but 1wanted /0 share il with you before you see lion the front page

of those tabloids ilt the supermarket

checkout counter. In this photograph, I am wearing a white shirt. blouson-style ia ket, fancy bell. black shoe)-and a plcatcd skirt. My soo has been quite tolerant about all of Ihis: ''\o'W!II, Dad," he said, "if you wan! 10 be a cross-dresser, I can live with iI."

The story behind the picture is as (01· lows: My wife's ,!<>unger brother proposed marriage to his future bride while Ihey W!}fe siroilins In the ruins of 51. Andrew's Calhedralln Scolland, where tilL..,. were on vacation. My wife's family professes a provable lineage In Ihtll pmt of Scolland, lind clln even point to an {In. cestor or two on the headstones near Ihe ruins. It Iherdore seemed just Clno right to young Bill that he and his intended should be wed In that ~I)' spot-In those roofless yel sllil comccrated Episcopal precincts. My mother·ln·I ......, having mar· ried off four daughters In a fashion that still has Rye, New York, In awe of her or· ganizatiooaJ abilitie;, found this chal. lenge worthy. But, Bill insisted, the males In the v...>d. ding ~rty wol,.lld all be required to turn up In fu ll Highland costume, Including dilk, Sporran and kilt. Hence this photograph. How did I feel about thlsl The appointed day was cold, and the wind whipped droplets of drizzle in our faces. I can report Ihal the man who inveMcd the kill went on to invent the wind tunnel. And we In central Tex<lS do nOt own a lot of woolen undergarments. But the wedding was joyous and fwi and the pMy later on-well, my wife tells me that I enJOy1!d myself. .. tow do I feel about It now, In retr(>SPfl(t? Very much like I do today, where I am to speak of the Bicentennial of the 8111 of Rights, The kilt and tartan plaid are, you see, part of an invented tradition, designed to support an elaborate but entirely ficti· tlous Scottish historical ethos. No less a pefSOO than Sir Walter Scott, In an other· wise masterful essay, falsely claimed in 1807 that cale(loni.,n warriors of old had

worn the kilt to battle, They had not done

so, and the so-called Caledonian warri0f5 were I)robably refugees from Ireland. The kilt was Introduced in iI big way by an English Quaker Industrialist early in the 18th C(!'itury, lind tllr1ims were elaborated a century lat!!r, But none of this subtrilcts the slightest bit from thl! recollected human warmth of my brother· ln·law'S wedding day. What does this tell us? It tells us that celebrating tradition CM be Joyous, (.'YOCative and eYen inspiring. ~ have no more duty to debunk a tradition than to Inquire If It IS lrue that mares eat oats and does eat oats bUI litlle lambs eJt Ivy. For this reason, Ills all right for uS to conjure with too sketchy and inconclusive evidence of Ihc adoption and early history 01 the Bill of Rights, as well as wilh the bold and certain main outlin~ of Its rcc;epllon into the frame of govern· ment. 1M! can downplay the political bilt· ties of the fi~t two decades of oor national life under the ConSTitution. After all-and 1believe this to the core of my being- for us to come together <Inc! celebril!e the Ideal of sheltcrlngthe rights even of those whom we des pise Is a far worthier enterprise than son\/:! others we could name. But when we-as citizens, lawyers, Judges-step clown from the tableau of ritual Into the theater of action, more discernment may JUStly be demanded of us. For then INC p..1rse the historical record in search of elusive truths that have con· crete consequences. By ilnd fOf whom was the Bill of Rights wriucn, Jnd have all of Its Intended addressees got the messagcl One popular tradllion Is to CO\iision the feder,ll judi. clal)' as pillar and roofbeam of this char. ter, In 1920, the constitutional historian Edward S. Corwin wrote these words: "If the Church of the Middle Ages was March 1990

'army encamped on the soil of Christendom, with Its oulJ)osts everywhere, subject to the most efficient discipline, animated with a common purpose, every soldier panopllcd with Inviolability and armed with the tremendous weapons which slew the soul; the same words, slightly vJried, may be applied to the Federal Judiciary creilted by Ihe American Coostitution.n I yield to no Ofle in my regard-evcn 3INe-<ll federal judges, p.1rtlcularly when ilrgving before them. 8vt I have alw.lY$ Ihought they covld more readily take to heart the words of former Fifth Circuit Chief Judge John Br()INn, uttered as a stern reminder to a ncwl.,..sworn in colleague, "Just remember, you were appointed, not anointed:' Of COVl'Se, In Iheir lives, demeanors, opinions and perS(lns, Hvgo alack and Bob Vance lived Ihls aphorism, to their eternal credit and our secular gratitude. An cyocatlvc but vcrlflable tradition shows the origins of the Bill of Rights to have been political and not oracvlar. In Ihe nMheast, p;lrtlculariy Massachvsctts, debates over ratification of the Constitution itself focused on the need for a charter of liberties to protect individuals against Ihe genlml government. In Virginia, the proposL'd federal union seemed to threaten the power of the Slates, and debate was tinged with apprehension that the national leglslilfufC would Interfere with Ihe institution of chattel slavery. These I'lOrthern ,md southern concerns were not eKClusive of one another, and all obscM!1'S understood that the proposed federal judiCiary W.15 not only a recourse for endangered rights, bUI a potential magnet of l>OWer to be exer路 clsed IY)I and for Ihe gener.ll govcrnment. As It happened, the Bill of Rights "ddressed both individual and state concerns. ! will not tarry ovcr Ihe slatcs' rights proviSions. as these were irrermgably r~rked IY)I thc 13th, 14th and 15th amendments. No. It is the Judge's Intended rOle that I seck to find In this drama. Fortunalely, we have some fragments from John Marshall hlm501(, a leader of Ihe ratification fO'ces in Virginia, who welcomed a diminution of thc Slates' po-.yer to affect priv.lte rights. When called upon in Ihe 1788 Vlrslnla debate 10 declare whether he would support a Brit of Rights, he said such a provision

The Alabama Lawyer

should be "merely recommc<latory. \M:!re it otherwise, ... many lavvs which are found COl'IYenienl v."()uld be uncons\llut lona l .~ Marshall had ea rlier in Ihe same debate said that if Coo3ress "makes II law not warranted by allY of the powers enumerilted, it would be considered bv the judges as an Infrln~mcnt of the C0nstitution which they are to guard; they would nOI consider such a law as comins wi thin their jurisdiction. They wovld declare it void." Against this background, the Bill of Rlghls was cr;afted and ratified, ;as a set of commands and nol recommendations. Sut if any thought Ihe federal judses would be warmest friends and soonest exl)()undcl1 of this charter, I h~ were disappointed. In 1798. fearful of aUen Ideas from the French Revol ution and aboulto lose control of Ihe rein s of gO\lCrnment, the Federalist PMty secured paSSJge of the Alien Act, the Enemy Alien Acl ;and the $edition Act. The first two Wt;lre not enforced, but no doubt chilled a good many nt.>w$paper editl)rs and publicists. The Sedillon Act passed into tlu! hands of Federalist judges. who charged grand Juries on Its terms with evangelic fervor. So, for example, Republican Congressman Matlhew lyon was jailed for writing 01 John Adams' avarice and v.lnity. Two hapless citizens of Dedham, Massachusetts, were imprisoned for crt..'cting a sign Ihal said, " No Stamp t\(t, no Seditic)r1, no Allen bills, no land T.lx; downfall to the 'TYrants of America, peace and retlrement to the Presldcnt. Not a \Olce was raised from among the arllcle three judgcs against Ihese proseculiOOS, even though allyoOe who reflt..'clcd for a moment on the history, both biUer and triumphant, of the colonial press would ~ thm the new 611 1 of Rights forbade the statule and discountenarlced Its enforcemcnt. II Is sorry 10 rela te Ihal when the Republicans' tUfn came to wield the levers of government, they fared no better. tt is certainly true that they smarted ~r whill Ad(lms had done to them in Ihe last monlhs of pa.o.~r. He took ~ry OJ)PQl1unity to pullCJY<lI federali sts on Ihe bench, here at leaS! the article three judges among them \YOuld have life tenure. Predictably, the Jeffersonians foughl back. Secretary Madi50fl withheld JudgedeSignate Marbury's commission as jusN

tlce of Ihe peace. And the machinery of ImpeaChment was fired up to remoyc some 01 these hoder.dists from the bench. Judge Pickering, certainly a drunk and probably Insane, was rel'l'lOVl'd. The day the Senate \Oled him out, the House of Representatives returned eight articles of Impeachment against Justice Samuel Chasc. Seven of these charges recounted Chase's unseemly zeal in presid. Ing over sedition and alleged Ireason trials wi th a vigor ITIOft! suited to an 0YCfreaching prosecutor than to a judge. Chase had deservedly won the ti tle "Ihe bloody Jeffreys of America" for his ferocity on the bench . One could plaUSibly find In those charges a desire 10 discipline Chase for having p~id no atlenlion to the First Amendment. But the eighth article proved Ihallhe young Bill of Rights sti li hnd no Irue friends In the councils of power: It charged Chase with moking an intempcr.lle antigovernment speoch. Although the offense was not cast strictly as sedition, Jefferson himself so characterized it when urging the Congress to procC!Cd againsl Juslice Chase. To be sure, there are some passi ng references 10 the Bill of Rights In the early decisions. but not so as to Inspire confi路 dence tha t the judges had taken ilS true meaning to heart. For example, when N.lorney Ceneral levi lincoln appeared to al'Hue in the Supreme Court on behalf of Secretary Madison and ag.linSi M3rbury's righ t to a mandamus, he was asked where Marbury's commission might be. Chief Justice Marshall, not entirely gratuitously, advised the attornC';' generallhal he could Invoke his privilege against selfincriminJlion if he wished. Then, in the trial of Aaron Burr, Chief Justice Marshall on circuit reaffirmed the Sixth Amendmf..'nl right of compulsory I)rocessin ternlSlhat sti ll repay study. But these were Isolated bursts of rhetoric on an otherwise silent stage. The hislory I have limned is familiar. Some recount It wi th wonder tha t the jlrdges did not HIke the 6111 of RIghts more seriously, and some with disappointment that they did nOl. Still others, such as Justice Holmes, h;r.e cited these early actlons-or Inactions-as proof Ihat Ihe magIsterIal words of lhose ten amendments could not h~ been meant as literal and indisputable commands. All three groups are misguided, 1 believe. To begin with, as Hugo Black kept

reminding us, the words are clear and commanding. not elastic and hortatory: "Congress shall make no law,H "the ac· cused shall enjoy," "no person ... shall be coml)(>lIed:' You do nOI nced to be il cons1i1utlonal scholar to see this point, a less elegant metaphor will do: If you ti'lke your dog to obedience school, and begin to say things like "sit,H "heel;' and "come,H and for t'le first few classes your dog doesn't teSpoOO, this does nol mean that obedience schooling Is a failure or that your dog knows bencr than yOu do how dogs should behave.

More respectfully, the Bill of Rights was written bv people who kn(,'W of partiCu, lar abuses and wished to make unmistak· able that they should not occur again. It was written about judges and (or judges, by lawyers lind on behal f of clients, cllcnts, whose collective life c)(pcrlence showed the need for such a testament disposing and directing kaw the leg<'lq' of reYOlutionary struggle should be distributed as the pJlrimony of their children. These clien tShad stood in the dock of England and America. ThL'Y had, wi th

Zenger in New York, Pcnn In 'vVestminstef, and the do:tens of others charged with sedition and insurwction, borne the censor's lash and the poJicemi'ln's boot. The judges' record In all of this vividly re<:ollectcd history had given little rea· son to believe that they were worthy keepers of freedom's flame. Lord Mansfield's reluctant concession In Miller's case, fragments of Chief Justice Holt's jury charges, Lord Camden's opinion for Wilkes-these stood out as exceptions. The truer heroes were, first, the clients who had clOlrcd to speak and publish and protest and disobey, and second, the law~ who had at times risked Joining their clients In the dock. As GOYel1eur Morris said of Andrew Hamilton's defense of Zenger, here was the morning star that lighted the path to liberty. From these fresh rnernorl~ came these amendments, as rcmlndeni to the ciliterl, 'oY{!<lpons to the l<myers and entreaties to the judges. For the citizen, who afte. all swears no pal1icularoath to be liberty'S friend, these amendments remind us to hold in our hands tv.'O dlalectlcally-opposed notions at the sa me time: The i(lea of social cohesion and the Injunction of tolerance and respect to the despised, the dispossessed, the outcast. For the lawyers, these areour weapons, willed to us by those who preceded us In ,his profession, and whhout the tak· Ing up and using of which we are not worthy of ot,rr role. Ours Is the SI>eci(l1 duty assigned In different societies to dif· feren t classes and kinds Qf people-it is the duty of remembering. Remembering the dark times and sacrifice Ihal brought fOl1h these words, written on a paper by our grandfathers for our grandfather's ellents. And, having remembered, to wield these words worthily. For the judges, these words are entreaties about pQYo1:r and the limits of pa.o.ocr. They are In terms and by their origins II reminder that judge; do not own and did not irMJnt the law. rh~ are simply appointed its keepers. The judges are n<lmed by the Constitution's third art!cle ;md catechized by these enumerated rights. The judges are custodians of the house of the 13W, so that when a client seeks refuge and a lawyer tOlkes up her cause, the two of them can come in out of the din and darkness and find there a kind of sanctuary In the jungle. •

M,lTch 1990

Alabama State Bar Proposed Communications Law Section Survey A task force has been commissioned to surYCy Ihe mem-

bership of Ihe Alabama State Bilr to determine whether there Is sufficient Intcn!st 10 form a Communications I..."IW Section. The section's focus would be four-fold: (a) DeYelopment of a network of experienced attorneys (or Ihe sharing of Information and Identification of knowledge-

able ill10rncys throughou t the slaW:

(bl I)ubllcation of a perJodlc newslcllcr dealing with com. munlcatlons 1M topics of spe<:ial Interest 10 "'abama aT· torneys; (e) Presentation of an annual seminar, eUher In conlunctlon with Ihe Stale bar convention or perhaps In conjunction

with olher conmunicalions business groups, such as Ihe Alabama Cable Television ASsociation, AlaOOm3 Press Associ· ation or Alabanla Broadcasters Association; and (d) Legistatl\/!! efforts and oversight as the need arises.

Auomeys who might be Interested In jOining the Alabama Stale Stir Communications Law Section would be lhose who h3Ve an interest in radio, television, cable, newspaper, magallnefbook public.1tions, or public utmty or common carrier ISSUes (Including cellular telephone service), and related subjects such as dl!famalion, privacy and publiC aCcess Inw. Not only attorneys who represenl bU$ine$5e5 of this rlOture, but .llso attorneys representing municipalities on these Issues would likely be Inlerested In Ihls seclion . The annual dues for membership In this seclion would probably range from $10 to $20, dC!pendlng on the number of members and the level or aCllvlty of the section. If you would be Interested In becoming a charter mem~ of Ihis section, pleil5e Indicate on the survey fOfm below and return II to Keith 8. Norman al the stille bar headQuarters In MOntHomcry by April IS, 1990.

ALABAMA STATE BAR PROPOSED COMMUNICATIONS LAW SECTION SURVEY I \.\'Oilict ~. ,"It'f<"tt'Cl III loinll18 1111' propo.,.-d ('ommunic.lIi:m~ l.Jw C;I-"(flon of Int- Alabamol Stat<' Bilr

~-----

(Firm) ------

(M.li Ii nM Actel ft'Iv'CIIYIS ri11t'R il'l

AREAS

SPECIAl INTEREST (M-'fk wilh dn "X" d\ mdny .11l'i1\ iI \ .lpplyl: (.lblt· TE'If'Vi\ion R'O,lCk,1\Ilng IRAdio, Tl'll'Vi\ion) Nr·w-.pdpr.-I...?I.lg,l/i nl.....8ook Puhli( .Iti()n Comlllon (.lffll'r 1~~Ut'~ lint.ludlnM I('I('phon('. cellul.u ,md \,111.'11111' mt'(jldl Dl'f,lrl1.·tion/Privilcy L.IW _ _ AI.( l'~~ to Public Rt-t·Old!JOI)('n Mt't'Ilng~ L.lW _ _ 01!wr: rl("H(' D('scrlb<> O~

PIl'.l"{' I'('IIJI 11 by April I, 1990 to K,·jlh B. Norm.ln, D1rt.'<"IoI of Progr.llll~, /<'!db.lllld St.ltl' a.lr, P.O. Box 671, 41 5 Dt'xtt·/ A\,('nu(', MQnlJ\OnlNY, Alabilmil 36101.

The Alabama Lawyer

About Members, Among Firms ABOUT MEMB ERS Mallh!W S. Ellenberger announces !hc opcningof his office al 1318 Alford Avenue, Suite 102, Birmingham, Ala-

bama 35226. phone (20S) 822"()271.

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R()dger M . Smitherman ilnnounc;es the opening of his office January 2,

1990. OfficESare located at Bank For Savings Building, Sulle 1416, 1919 Morris Avenue, Birmingham, Alab..1ma

35203. Phone (20S) 322-0012.

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William F. Addison, formerly of Reese & Add ison, announces the

opening of his office at 602 Soulh Hull Street, Montgomery, Alabama

36104, Phone (205) 269·0700.

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C. John Dezenberg. Jr. announces

the opC!ning of his offlce for thc praclice of law, Offices al'e located at 121 Jefferson Sireet, North, H untsville,

Alabama 35801. Phone (205) 533· 5097.

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Bryan Duhe announces the rt.'location of his law office 10 1110 Montlimar Dri\'(', Sui te 1080, Mobile, Alabama 36609, Phone (205) 3449006,

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lohn N , Pappanaslos, formerly of P,'lppana slos & Stlmford, p,c., announces the (ormation o(The law 0(flces of John N, Pappanaslo s, and Ihe relocation 01 his o(fices to Sui te 303, Corporate Square, SS5 Sou th Perry Street, Montgomery, Alubama 36104, Phone (205) 264-6500.

•

AMONG FIRMS

Balc h & Singham, founded in Birmingham in t922, announces thai J(lhn Oilvid Snodgrau opened its

fourth office in Huntsville's Central Uilnk Building. Balch & Singham maintains o lher offices In Birmingham and Monlgomery.

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The firm of Finkbohner, Lawl er & Olen announces Ihe relocation of its office to landmluk Squil re, 169 Dauphin Streel, Suite 300, M obile, Alabama 36602. Phone (20S) 4385871.

W. Mark And erson, Itt, Charl es A . C r addick, formerly ilUOrney general of Alabama, ;rnd C. Dennis Nabors ;mnounCr! Ihe formation of a profcsslonal corpora l Ion for thc practIce of law under the nrm name of Anderson, Graddick & Nabors, p,c. Offices arc located at 461 Sou th Courl Street, P.O, Box 948, Montgomery, AllIbama 36101. Phone (205) 264-6011.

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Ball, Ball, Malthcw§ & Novak, P. A. announces thai Jamt.'S A. Rives and Froo B. M atlh('W!I have become-.-.ssoelales wllh Ihe Orm. Offices arc localed al60 Commerce Street, Montgomery, Alabama 36104.

RamsilY, Dallier & Mc Dougle announ,e~ th at Lori S. ( (llli er has become a partner of the firm. The firm narlle h' IS bt.'i!rl changed to Ramsey, Balllcy, M c Dougle & Collier. Offices arc located at 207 WeSI Troy Streel, P.o. Box 1464, Dothan, Alabama 36302, Phone (205) 793·6550.

The firm of King & Kin g announces that Joseph W. Strickland has become an associate of Ihe flrrn. Offlccs 3(C located OIl The King Profession al Building,. 713 SQ(rth 271h Street, P,o. Box 10224, Birmingham, Alabama 35202-0224. Phone (205) 324-2701.

H amilton , BUller, Riddick, Tarlton & Sullivan, P,c. announces that J, David BrOldy, Jr. has be<:ome ~ poutner in Ihe nrm. Offices are located at Tenth Floor, First National Building, 1>.0. Box 1743, Mobile, Alabama 36633. Phone (205) 432·7517.

All en W, Howell, Ri c hard D. Shinbaum and Frank L. Thiemonge, Ul announce their associ~tio n ~nd the fo rm{ltion of Ihe firm of ShinbOlum, Thiemonge & Howell, P.c. Offices are locatL>d al 608 Soulh !-Iull Slreet, Monlgomery, Alabama. Phone (205) 269-4440.

The Orm of Watterson & Singer, :lIl11ounces that Thomas C. Ho llingswo rth has bcconlc associ ated wi th thc firm, effective January 6, 1990. Officcs are located ilt 2007 lanC<lSter Road, Binninghanl, Alabama 35209. Phone (205) an-3960.

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• •

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Roy H. Phillips, leffrt.')' C, Ezell and Ric hard M. kemrnl!r, Ir. dnnounce Ih ~ formation of a partnershi p 10 be known as Phillips, Ezell & Kemmer. Offices are localed at 703 13th Slreet, P.o. Drawer 2500, PhenlK City, Alabama 36666·2500. Phone (205) 297-2400.

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p.c.

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Hand, Arendall, Bedsole, Greaves & j oh nsto n ~nnounces thai Karen Pall ett e Turn er has become associated with Ihe firm, and th aI Blane H. Crut chfield and David R. Qulltmeyer have become members of the firm. OfficL'S are localed al Suite 3000, First National Bank Building,. P.O. BOI{ 12), Mobile, Alabama 36601 . Phone (205) 432·55 11 .

March 1990

• Sadler, Sullivan, Herrln8 &I Sharp, P.e. announces that Turner B. WlI· IIams has become a member of the firm, Mid the offices of 'he firm are n(MIlocatoo at 2500 SouthTrusl Tower, Birmingham, Alabama 35203·3204. Phone (205) ]26-4166.

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Merrlng, Schrimsher &I Riley an·

nounces that Sharon O. Hind"...." has become a member of the firm. Offices are located al 11 7 Ea'>l Clinton A~ue, Huntsville, Alabama 35801. Phone (20S) 534-06n.

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Smith &I

T~ylor

announces that A.

loe Peddy has lx'Come a member o( the firm and Michael B. Walls has become associated with the firm. Offices are IOCJloo at Suite 1212, BJt7,Yn Man< Tower, Birmingham, Alabam .. 35203. Phone (205) 251·2555.

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The firm of Holt, Cooper & Up-

shaw annouJ'lces that fames L. Kessler, II has become a partner of Ihe firm, Offices are locat(!(l at 529 ':rank

Nelson Building, Birm ingham , Alilbama.

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William James Silmford, Ir, and Susan Shirock D~P.lola, formerly partners in the Orm of P.11)I)anastos & Samford, P.C, announce Ihf" formation of the firm of S..mford &I DePaola, p,C" with offices located in the Colonial financi,,1 Center, Suite 601, One Comm/.'fce Street, Montgomery, Alabama ) 6 104. Phone (205) 262-1600,

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The firm of OUs &I Moore announces that J, David lordan has Joined the firm as a partner, and the firm name has ~n changed to OUs, Moore &I Jordan. Offices are located at 401 Evergreen Avenue, Brewton,

The Alabama Lawyer

Alabama 36426, .md the fi rm's mail· Ing address is P.O. Box 467, Brewton, Alabama 36427. Phone (205) 8677724.

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The firm of R~ &I Stew..rt announces Robert E. Armstrong, 111 has become a partner. Offices are toc.lt· ed on the 2nd Floor, First AI"bama Ban k Building, P.D. Box 457, Selm", Alobama 36702.()457. Phone (205) 875 m~

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First Tille Corporatio n of Atlanta, Geof'gla, annou nces the opening of its Birmingham branch office at One Perimeter Park South, Suite lOON, 35243 and has named Scott I, Humphrey as its statewide dis trict manager. Humphrey Is a 1981 graduate of Cumberland School of Law, and has bt.'Cn district office attorney for the Small Business Adminiwation for the past seven years.

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D. Grant Seabolt, Jr. has been elected to the position of Junior partner in Ihc firm of Bird &I Renek~r. The firm's offices are located at 1100 Premier Place, 5910 North Central Expressway, Dallas, Texas 7520&' Phone (214) 373·7070.

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Frank M, Oainbridse, Walter L. Mlms and Oruct F. Rogers .mnounce thc formation of a partnership under the name of O.. inbridge, Mims &. Rogel'$. Offices are located at The Luckie Building. Suite 415, 600 Luck· ie Dri~ at Highway 280 South, P.D. Box 530886, Birmingham, Alabama 35253. Phone (205) 679-1100.

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Corley, Moncus & Ward, P.e. announces Ihat bra O. ~rry, Ir. has become a member of the firm . Offices are located at 2100 SouthBridge Park· way, Sulle 650, Birmingham, Alabama 35209. Phone (205) 679-5959.

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The firm of Nowlin &I Summerford announces that J. Calvin McBride has

Joined Ihe firm effe(ti~ January t, 1990, The firm will be knOwn as Nowlin, 5um~rford &I McBride. Of· fices are located at 118 E. Moulton Street, Decatur, Alabama 35601. Phone (205) 353-8601.

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The firm of Lanier, Ford, Shaver &I Payne, P,C. annOunCes that Robert E. Ledyard, III has become a partner In the firm . Off1cl..'S are 10catl..>(1 at 200 'v'kst Court Square, Sulle Huntsville, Alabama 35801.

sooo.

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Beasley, Wilson, Allen, Mendel· sohn &. Jemison, P.e. announces that Randall 0, James has become a member of the firm. omces are located at 207 Montgomery Street, P.o. Box 4t60, Mont80mery, Alabama 36103-4t60. Phone (205) 269·2343.

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lynn W. !lnla, III and L. Bernard Smithart announce thc formation of the firm of links &I Sml1harl with offices located at 219 N, Prairie Street, Union Springs, Alabama 36089. Phone (205) 736-4225,

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The nrm of Ri ves &. Pelenon on· nounces that Ralph C. Bishop, Ir., Nal Bryan and Richard E. Smith hJve become partners. They are all yrdduates of thc Cumberland School of Law. Offices arc located al 1700 Financial Center, Hinningham, Alabama 352032607. Phone (205) 326-8141.

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W. Cameron Parsons, formerly a partner In Ray, Oll~r, W.ud & Parsons, and lames A. Hall, Jr., former ly an assoc::latc In Mountain & Mountai n, announce the formation of a partnership for the practice of law under the name of Parsons &I Hall. Offices are located at Suite 324, Secor Bank Building, 550 Greensboro A~nue, Tuscaloosa, Alabama. Thl;l mailing ad· dress Is P.O. Box 031847, Tusca loosa, Alabama 35403. Phone (205) 3495500. •

Consultant's Corner The followinBis a review of and comm~ nta ry o n an I)ffi Ce automation lS$ue that has curre nt importance 10 the legal community, prepared by the office automation (oolUltanl to the stale bar, Paul Bornstein, whose \llcws are nol necessarlly those of the stale bar.

La.st I~SUfis article on a scenario of legal practice In the '90s emphasized tech·

area, It also examines fee income In terms of per horam rea lization. Finally, partners' (prirn:lpals' income distribution formulas are revll!Wed for equity and Incentive. Specific remedies, where ap.. proprlate, are recommended. Governance and organization focu s on how the nrm Is managed, both from an executl~ and administrative perspective. Topics reviewed include executive dedsion-making, associate development and

nologlcal Issues that would very likely have an Impact on law firms In the com·

Ing decade. True, they very likely will. Equ<lUy true. there are other significant issues that will have an impact on law firm s as well. One of these is profitability, the abili ty to earn enough money to make the practice of law worthwhile. Anolher Is governance and structure, the ability 10 organize oneself to be In a p0sition to earn a decent income. Responding to these more than obvious needs, O'v'er the past year 'He haYe developed " new prOgr:tm of assist:tnce c"Ued a practice management audil, II is a program that has b<.~n offered to more than a dozen Alabama and Georgia firms over the past year, and their ac· ceptance has been quite favorable.

Practice management audit This progr"m i$ intended to assess the efficiency of the firm as a whole, whhOut speclnc emphaSis on technical fun ctions. The fo ur primary areas of evaluation are: - firm prontabillty, - governance and organization, - support staff adequacy and - administration. Profitability looks at fee income per partner (or pri nCipal) in comparison with other nrms of similar size and geographic

Born stein

staff administration. Special allentlon Is given to who does what-In particu lar; the division of duties between the professional st"ff and support st"ff. The S\,Ipport St.lff Is as~ssed in terms of capacity and size. Particular attention is paid to the ycrsatillty of the staff, Its

ability to 5\,1pport multiple practice disCiplines. ,4,dministraTion is surveyed in terms of it$ effecti~ness In carrying out Its mission In areas of risk management, personnel management, text and data procesSing software and hardware, nUns, telephone and reception procedures, wages and benefits. Recommendations are quite specific. If you are under.utlllzing paralegals, Slighting associates, emplo,dng obsolete equipment or carrying excess O'Ierhead, the findings will be clearly .tated and detailed corrective action recommended. There will be no surprises. It is our C\,lStom to keep you informed daily of our tentaTive fi ndings and to offer you a verbal summary of our anticipated recommendations prior to leaving the premises. Our recommendations jlre presented in written form within two lveeKS of completion of the engagement and incl ude a costlbenefit recap as well as an action plan. Post-enga.gement telephone consultation Is available to all clients at no cost. Our methodology includes observation, Interviews, analytic measurement and professional judgment gleaned from experience with more th"n 100 liM' firm s in the so\,ltheast ranging In size from one to 250 liM'yef1, A practice management audit will not solve all problems. In fa ct, it will not solve oitny problems unless you tire at least open TO the suggestion of doing some things differently. There still remain O\,lr other thrw programs: word processIng. data processing and administra tion, If that seems to fit your needs. This new program Is offered for thoie who: -have a backlog of work, -apply themselves Industriously to It

"d -yet stili find prosperity elusive. •

March 1990

Request For Consulting Services Office Automation Consulting Program

SC HEDULE OF FEES, TE RMS AND COND ITI ONS

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r«ommtndJ,lon.,

_._-------------------------------------------------------------------------------------REQUEST FOR CONSULTING SERVICES OFFICE AUTOMATION CONSUlTING PROCRAM

Sponsored by Ala bama Slate Bar

THE FIRM Firm name

Address City

Zip

Contact person Number of lawyers Offices In OIlier cities!

telephone" title

paralegals

secretaries

others

ITS PRACTICE PraCTice Areas (%)

Corporate Estate Planning Banking

Maritime Collections T"

litigation Real Estate l abor

Number of clients han(lled ann ually 7 = = = = = = Number of mailers handled an nually

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prese"":'~'y:.."o~"':":..:======

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O(l\a procesSing equipment (i f any)

Dictation equipmenT (if any) Word equipment processi ng (i f any) Copy Telephone equipment PROGRAM % of emphilsis desired

Admin. Audit

WP Needs Anal \'Si$

Prelerrt.od lime {II w /E ______________

OP Needs Analysis

121 wl' _ _ _ _ _ _ _ _ __ _

Mall this request for service to the Alabama State Bar lor schedu ling. Send to The ,lItenTion of Margaret Boone, executive assistant, Alabama Sta te Bar, P.O. Box 671, Montgomery, Alabama 36101. The Alabama Lawyer

Bar Briefs Hunt appoints Peebles to Securities

Commission Mobile attorney E.B. Peebles, III was appointed a me<n!>et of the Alabama Securities Commlssloo by C<Mmof Guy Hunt

Holmes & Reev(!S. He has lectured al programs on developments In business law on behalf of the Alabama Bar Instl-

law revision and law reform agency, and various business law committees assodated with the American Bar Associa-

lUIe (or Conllnulng legal Education,

tion.

He serves on the Council for the Alabama law Institute, the state's advisory

- Mobile Press Register

•

Chemical Abuse Knows No Barriers ... (Inc luding the bar)

Confidential help from fellow professionals is a phone call away 1-800-237-582'8'

Riding the Circuits The fl..e-mcm1ber commission enforces

lee Coonty Ba r Association

state liM'S governing the Issuance and

P~idcnl-Arnold

sale of securities and related tr.msaClions. Peebles will serve ncody a fou r-ycar

W. Umbach,

Jr., Opelika Vice-p resident- Cecil M. Tipton, Jr"

Opelika SecrclJryltrcasurcr- W, Banks Herndon,

term on the commission. H is term will exp ire Ocl. 31, 1993. He Is a partn er of the firm of Arm-

Opelika

brecht , Jackson, DeMauy, Crowe,

-----------------------------------------------------ADDRESS CH"NGfS

Please check your Uitlng In the current 1989-9() Alabarm !Nr DirKlOfy and comple1c the Iotm below ONLY If there lite any change to)OUr listing. Due to chanSes In the statute gDYIlrnlnll election <i bar comml~~loncrl, ~ now lire required 10 use members' office add~ses, unless IlOr14i Is 3'r.Iilabic or a member Is prohibited from receiving $tJle bllr mall ilt the office. Additlonallv, the Alabama Bar Olre<:tory Is complied from our milHlns list and It Is Impottanl to U§I! business addresses lot that r(!,uon. NOTE; If we do 1'101 krlOW of II change in address, we cannot make thl:: neces'llfy (Ilanget on OUt records, so please notify 1.11 when yovr 3(I(I'e" ch;'"KCf. Thll rlOllflcatlon mu st be 10 wrl!log

II ~ .... ,~ ,

Mrmbtr Idrn riflc;lrion Number

M., Min Mrs. M •.

Ilun.

(Soci~ 1 ~uriry )

Qii;;

Full Name

Uirthdare

Yto~rof admission

Office M;lilinlS Address Cily

Sta te

Zlp Codr

County

Office Slr« t Addr~, (If differen t) City

Stale

Zip Code

County

March 1990

Membership Registration ALABAMA STATE BAR FAMILY LAW SECTION The Fam Iy Law Section or the Alabama Slale Bar Is commi tted to improving the practice of Family and Domestic Refilliens l aw In Aillbama. Please Join us by registeri ng (or membership today. (Section dues are S15),

.....

NAME:

Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Telephone Number:_ _ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

YES _

NO_

Are you willing to assist In monitoring the progress of pending legislal10nl

Are you wlilin g to write articles (or the

On whi ch commi ttees would you like to servel (Ilrosram, legi slative, Nominating, M er'l'lbcrshlp, Newsle tter, Continui ng legal Education)

What goals or alms should the section have / _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

O ther comments and ~ 1,l 88est j on s:

s~llon

newsletter?

YES _ _ NO _ _

PLEASE MAil TH IS RESPONSE AND YOU R CH ECK TO: Mt!mbcr~hlp Comrm!tcc-I'amily Law S('Clion of !h(' Alallam,l SIJ!e Bar P.O. Box 2141

BirminHh.1m, Alabilma 15201

The Alabama Lawyer

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

The fQliowing con1iol.les iI history of Ala-

bama's county courthouses-their origins and some of Ihe people who conIri b uled 10 their growth. Th e Milham" Lawyer plans 10 run one county's slory In each issue of the magazine. If yOu halle any photographs of earl y or present courthouses, please fo rwa rd them 10:

S"muel A. Rumore, Jr. Mlgllolllco & Rumore 1230 Brown Marx Tower ijirmingnam, AI,:loam;) 35203

Wilcox County Wilcox Coumy was named to honor

Army Lieutenant Joseph M. Wilcox. Wilcox was a na(iYe or Connecticut who had graduated from West Point in 18'12. His first aSSisnml;!J1t in Ihe ilrmy

was

10 the

Southern frontier, shortly before the Qut路 bre1lk of the Creek Indian War.

coun ty seat. Commissioners were appointed to select a temporary seat of JUsti ce. Allhough no records exist of this temporary location, i[ is likely [h;11 the honle of one of [he commissioners was used, In 1821 the town of Canton, located on a bluff on the west bank of the Alabama River, entered into an agreement wi th the Commissioners to become the county seat. The \own don~ted 50 acres to the county, design;Jted a lot for a public square and authOril:lod the Xlle by the county of the remaining lots. On July 29, 1622, Wiley, Benjamin and Ezekiel GIO'.Ier agrero to construct a courthouse in Canton by October 1 01that ~ar for a contr(lct price of $2,500, The two-story fram e struc ture was described as being 36 ft!et long. 24 feet wide and 18 feet high. It is known (rom early court records that this courthouse wa s in u~ in 1823, Canton thriv(.'(! during this period as the county scat tOW't). By 1630 a m~mcnt began to relocate the courthouse to 1'1 place clOSer to the geographic center 01 the county. The

The courthouse built In the nC'N town

was cf\.'ctcd IJy the R(.'V. James ThompSOrl, a Methodist minister. It was a twostory wooden structure having offices on the flrst floor and a courtroom and jury rooms on the second, On December 20, 1833, the County Commission app~ the pJYment of $lA9S for the building, The name "Barboursville" proved to be unpopul(lr with many citizenS. Due to lingering resentment over the courthouse relocmlon from c.mton, people outside the town sometimes called the residents of Barboursville "Shavers:' much to their chagrin. In 1841, Dr. John D, Caldwell, a I)(oneer In the community, suggestl..>d that the town change its name to Camden whi ch was hi$ former homelown in Soulh Carolina. The idea was ilcCepted, ilnd Cilmden was incorporilted that yilar. The ......ooden courthouse m Camden served the coun ty untU 1857 when It was rated to be replaced by a new building, Architect Alexander Brngg, a native of North Carolino and the brother of Gen. eralBmxton Smgg, was employed by the county on February 14, 1857, to build a

During the Indian uprising. whi ch be-

gan In 1813, Wilcox led a detachment of live men in a canoe on a mission to locate an oo.oerduc supply barge on the Alabama River, He and three of his soldiers were c;;aplUred by hostile Indians, The Indians tortured, scalped and then killed the captives. WiIc;;Ol( wa s buried with military honors at Fan Claiborne in Mon路 roe County in January 1814, Less than six ~ars later the gratclul people of Alabamll named one 0( their n<.w counties for him. The territory lhat is now Wilcox County was opened for settlement after thi! Treaty of Fon Jackson which ended the Indian wars in the summer of 1814, The first white settlers arrived In 181 5. The ( ounty was eStablished Oecember 13, 1819, one day oofore Alabilma bc<:ame a state, It was formed from lands previously In Dallas and MOrlfoe (ounties, One of th e (irs! orders of business In [he new county wa s the selection of a 88

State legislMure aJ)l>Oinled a commil\ee to select a new site, On September 14, 1832, Thomas and Marlha Hobbs Dunn signed a conditional dC<.'(l to 12 acres of land approxlmmely five miles ~"s t of CClnton, provided that the COUIlty mO'.le the courthouse 10 this new location, The gifl was accepted, and the county seat wa s m~ (rom Canton in 1831 The new (()V,In became known fi rst as Wilcox Courthouse and then BarboursviUe, in honor of Senmor Philip p, Barb(lur of Virginia. The town of Canton declined and then gf(l(!uiilly dis.1ppeared over the ~ars following the courthouse removal.

Samuel A, Rumore, Ir" is 11 graduate the University of NOIn:~ Oaml'llrld [he University of Alab..ll1lll School of /..aw. He served ,1S (o \lrldirl8 chMrperson of Ihe Alabamd St,lle Bar's Family /"lW Secl/on arId is In practice in Birminghllm with Ihe fl'rm o f M/gllonlco &. Rumore,

March 1990

Old Wilcox Cmlnty Courthouse, completed In 1859,

more claborute brick structure. The can· tract provided Ihal he would remove the old bollding, build a new structure and haYe untlilanu,IIY 1, 1859, to complete the 'M)rk. The cootract price was $16,764. After the old counhouse was torn down, court was held In the wilcoJC Hotel until the new courthouse was completed . Bragg designed a Greek Revival brick counhouse. The! ......est, or fronl, entrunce has four flu ted Doric columns. A brack· eted ovcrhangingcomlce extends around Ihe building. An Interesting fealU r(! is the palltlrn of the supporting brackets which alternate around the roof first as paired and then as sing'e brackets. The build· Ing was originally designed with Interi· or ~ta lrcaSM. HO"NeYer, double wrought iron external 51;! rs and an iron porch were added to the front of the building In the 1880s. In 1963, north and south annC)les ~re added to the main courthouse. The style used for these additions conformed to the original G~ Revival style used in 1859. The contractor for this project was ~ton Scarsbrook. Sherlock, Smith and Adorns, Inc. served as architccts. In 1978 a three-story courthouse annex was constructed within a block of the original building. The courts were remOYCd to the new structure. The former coumoom in the 18S9 building was renovated 10 become the Wilcol!: Coun· ty LIbrary. The mntractor for the new The Alabama L" wycr

now the Wilcox County Library

building was Rodgel1 and Bullard CanstruClioo Corporation of Montgomery. The architect was Manln I. lIde Associates, Inc. of Birmingham. Before completing Ihe story of the WilCounty Courthouse, a footnote must be added to acknowledge the contributions of the Cook fam,ly to Wilcox County. Allached to the front of the old courlhouse is a marker honoring Enoch Hooper Cook. Cook was more Ihan 50 years old when he ellli ~ted in the Confederate Army as a private. Ten of his sons, (IS well as I'M) of his grandsons, likeCOli

wise served the Coofooeracy. Their names are listed on the marker as the largest number of persons from one famlly-13-to render military service In the W,1r Bet~n the States. Four of his sons and both of the glilndsons were killed In the war. One of the surviving $OIls, Zoroaster S. Cook, made another significant contribudon to WllcOK County. He served as pr0bate judge. In 1865 the Coun ty Commission authorized Zo Cook to take whntC'VCr steps he thought neceSs,lry to prescrw Wileol!: County records from Federal raiders. Judge Cook enlisted the aid of a local coffin milker, James P. Dannelly, who built a number of strong v.ooden boxes. Under CoYer of night, the deed, mortgage, estate, marriage, lax and other permanent records of the county wcre packl.'(! Into the boxes and taken to a hiding place several miles awily. The troops who entered Ihe courthouse later destroved Of ca rried away whatcYCr p.1pet'S they could find . But all of the permanent ;lnd valuable documenlS of the county were hidden. Due to the efforts of Judge Cook, the records of Wileol!: County from 1819 to 1865 today remain virtually IntaCt, unlike those of many other counlies. The author acknoYlledges with deep appreciation mater',,1 furni shed to him by John l. Godbold, attorney in Ctlmden, Alabama; his wife, Mary Sooll Godbold; and Wilcox County historian Ouida Stilrr Woodson . •

WI/cox County Courfhouse Anne"" 89

Punitive Damages and Post-Verdict Where Are We Now and Where Do We by Davis Carr There lire protedures for post-verdict review of pu nitive damages, both preand post·tort reform, This artide examines those procedures. FI~I, pre-tOri fL>"

form case law is presen ted, focu sing on Green Oil Co. 1', Hornsby, 539 5o.2d 218 (Ala. 1969), which may stili be relNarl! "fter the AllIbama Supreme Court ex· amlnes the tort reform statute on the same topic, AI,lb.l ma Cock S &-11· 23 (1975) (Supp. 1989). The ~'l;:ond portion of this artk le will add-ess this stillUt¢. Finally, pr,lctice polntefS pUfsuanl 10 both

procedures will be discussed.

Prc-tort reform- the Green Oil factors To unclCl"5tand the Green 011 fac lors,

, ,

r V~N,j Ct

SCA,l£ co,

a brief history is helpful. The origins of Grf!en Oi/- f he gene-

sis of the Cr(>(>n Oil factors are found In a special concurrence by Justice JOf)es in Ridoot's·Brown Service, Inc. If. HoIICNfaY, 397 $o.2d 125, 127 (Ala. 1981). Holloway involved iI $220,000 award relative to pn:paraliQn {lnd emb.llmmen t of a body. While concurring in affirming1he entire award, Justi ce jones llddressed the " un· guided discretion accorded In both the fact·finding process and the Judicial review that fixes the amount of pun itive damages." Id. While p u n l t i~ dar'l'lages "ought to sting in order \0 deter;' Justi ce Jones wrote, "only in the rarest of cases should it be laflle enough to deS!rOY; this Is !\O \ itS purpose." Id. The current system furnishes "virtu ally no yard stick for measuring the amOunt of the award over against the purpose of the award." td. While recognizing thaI evidence of wealth of th e defendant wa s entirely too prejudicial to inject in the trial before a Jury decides liability, Ju stice Jones sug· gested tha t a post-judgment proceeding March 1990

Procedures: Go from Here? by way of judicial review could examine the financial worth of a defendant, lind then rnl'asure the amount of the award OYer agalnst!he purpose: of the award. Id, ill 128,

Six years lalcr in Acolna We Ins. Co. v. Lavo;e, 505 So,2d 1050 (Ala, 1987) (the "nnal chilplcr" 01 this case), Justice Houston wrote a speciil concurrence which began with his observa tions that a substanllal portion of the judgment In tha t U .S million punitive damage award (on the b.1d faith rL'/"usal to JXIY $1.579.74) violated constitutional standards. Id. al 1060. "I/I/e h;r.oe permillOO punitive dam· ages 10 be levied wi thout the constitu· lional safeguards that we insist attend every criminal prosecution." Id. al 1061. Justice Houston proceeded 10 enumer-

ate St!'.(!n factors which "should be tak· en Into consideration by the trial court in SClllng the amQunt 01 puniliYe damagest Id. at 1062 . 11 is submitted lhls was a request for leglslalloo aloog lhese lines; howe-..er, whenlhe legislalure mel, this WOIS not the law enacted . These ~ factors later became the Green Oil faclors, ~nd briefly they are as foltOYiS:

4. The financial positIon of dclendant Is reh.....ant. 5. All costs of litigation should be Incl uded to encourage plaintiffs \0 bring wrongdoers 10 lrlal. 6. If defendant has been criminally sanctioned for his conduct, this should be taken into account ill mItigation. 7. Other civil actions against the same defendant, bas«! on Ihe s.ame conduct, should be taken Inco account In mitigation.

Id. Accordingly, il is submitted that Creen Oil factors have their origin from tWO entirely different sources. Justice Jones was seeking to ensure thaI puniliYe damages would Hsti ng" the 10rlfl'ilsor. JUSlice Houston was seeking 10 make punitiYe dam· ages constitutional by affording guidelines 10 satisfy due process argu· ments. It Is this latter ratIonale which the courl has apl)arently embraced, in what arc submUted to be the only opinions to date b¥ a majority of the coun squarely addressing the arguments as to constltu· tlonal deficiencies wirh regard to puni· tive damages, Central Alabama flee. Co-op. v. Tapley, 546 So.2d 371 (Ala . 19891and InduSlri,,1 Chern. and FabriC(Jtors, Inc. v. Chandler. 5"7 Sc.2d 812 (Ala. 1989). Meanwhile, Mother relevant trend In post-YerdicI analysiS was developing, Hammond v. City of Gadsden, 493 So.2d 1374 (Ala. 1986). Hammond was a $12,000 >Nrdict for fraud, breach of contract and negligence regarding misrepre-

sentations as 10 the effect of change of Insurers on an em ployee wllo partlcll><ltcd In an insurance progr~ m . The tdal court ordered a remittitur d that porlJon of the verdict In excess of $2,000. In an opinion I1f Justice Shores, the Courl noted that It was nOi only appropriate, "but indeed our duty:' \0 require Irial couns to ~ reflect In the record the reason for interferi ns with a jury verdict, or refUSing 10 do so, on groun<h of ex· cessiYenes5 of the dama8es~' Id. at 1379. A number of fa ctors appropri,uc for consideration, accordIng to Justice Shores, Included culpability of the defendant's conduct, desirability of dl!.COuraging others from similar conduct, Impact upon the parties, il5 well Js lmpacl on Innocent third panies. Id. (citing cases). N.:.. cortllngly. there ensued iI series of I-Iammond remands, wherein the triDI judges, as originally understood,' were required to state their reasons for eilher granting a remlnilur, Or rciusing to grant a reminitur. All reported ophlons which set fonh Iria l judges' Hammond fi ndings are noted be10Yl.1 Considering these cases should be helpful in a Creen 011 anal ysis. The Gmn Oil factors-Woth this back· ground, In January of 1989 the courl released its opinion In Green Oil. A small oil company operated b¥ the Green brothers In Union Sprillgs sued store owners for recovery of personal property and for money due on an open account for gasoline delivered. The Store owners counterclaimed secl<ing comper\salory and I)unltive damilge5 for breach of contract and fraud . The jury awarded the oil company $2.000 00 Its claim, but

1. PIlIlillve damages shOtJld bear a rea·

sonable relationship \0 the harm. If actual or likely harm Is slight, damages shollid be small. If grievous, damages should be sreater_ 2. The degree of rcprehensibililY of defendilnt's conduct should ~ considered, including the duration of this conduct, the degree of defendant's awareness of ~ny hazard, concealment, alOt'lS with existence and froquency of similar past conduct

Davis Carr, II partner In the 81rmlnllhilm firm oil-land, Arendal/, Bedsole, Grealle$ & Johnston, received his undergraduate! degree (rom rhl' UniverslfY o( Soulh Alabama and law degree, cum lauck, from the University of Alabilma School of Law. He is a ~mber of the A/ab.lfrnl Defense lawyers Auoclatlon, ORI and the iitigat/on Secl/on o( Ihe ABA.

l. PunitlYe damages should ~ the profitability of the wrOr\gful collduct so thaI defendam recognizes a loss. The Alabama Lawyer

then ClW(lrdt,(1 the store ownerS compenSJtory damagcs of about $15,000 and punili~ damage$ of $150,000. The trial judge remitloo all but $25,000 of the punitive damage award, and this action was affirmed on appeal in an opinion authored by Justice Houston. Arter reviewing the Hammond developments, and after quoting Justice Jon6 in the ~Iollowi}y caSC, discussed previously, Justice Houston observc<l that a Jury verdict may be excessive "eYen when It Is the result of a properly (unctlonlng jury:' 539 5o.2d at 222. That is, since !he Jury does not know the Impact its verdict Is having on the defendant, the verdict may nOt be accomplishing ~soclmy's gools." Id. Accordingly, the St:NCn faetort set forth by JusUce Houston In his special concurrence In the 1987 Lavoie case was adopted by the (ull court, with Justice ModeiolC concurring sl>cclally. The tri al judge's Ham· mond findings, which wcre turn()d 11'110 the Creen Oil ,malysis In this case, are set forth in th~ opinion and arc Instructive. Specifically, It WolS noted Ihat defen· dant was not incorporated, was operated as a partnership out of Union Springs by thc two Green brothers, ilnd therefore any judgment wa. a personal judgment against the Creen~ ~ It doesn't take a large -.,.erdici 10 be heard and fell a Itw miles down the road In Union Springs by two local individuals." Id. at 221. It Is hoped Ihis does not mean to suggest that there should be some relationship bel\Yeen the amount o( the verdict to the gcographical distance between plaintiff and a corporate de(end;lIlt's headquarters.) Green Oil factors .lpplit.-d-Ag.1In, It Is suggcstoo thilt I-Illmmond fill(Un&s are In· structive for Grt'en Oil OlnOllysls. Accord-

Richard Wilson & Associates Registe red Pro fess io nal Court Reporters 17 Mildred Street Montgomery, Alabama 36104

264-6433 92

Ingly, It is help(ul to rC'Jiew those Hammond findings by trial courts which are reported in the decisions, as 115too In footnote 2. MOreover, there are presently four cases which lend specific Insight as to how Green Oil factors are to be applied. The most interestin3 Green all appll. ca tion to date is Wilson v. Duko"" Corp. N.V., 547 5o.2d 70 (Ala. 1989). Wilson Involved a,)prolCimately $20,000 In compensatory damages and roughly $21.000 in punitive damages fer the wrongful cu tting of timber. Once ~aln Justice Houston authored the majority OI)lnlol'l. Justices Jones, Adams. Steagall (and Kennedy concurred. Chief Justice Hornsby, along with Justice. M addo~, Almon and Shores, dissented, although only Juslice MaddolC wrote a dissenting opinion. The majority opinion in Wilson eK.~m· Ined evidence tendered at a post.Judg. ment hearing, which In essence disclosed the ilb ject poverty o( the Individual defendant against whom the punitive damages were aS5C55ed . He was on social SflCurity and received $580 a month. He gOI a monlhly pension of $300. tole was 57 ~arsold and had i.1 disabUng nerve disease. He had a total monthly inoome of about $970, and owed about $4SOon a house note, $190 for a car, and the remainder went (or Nmedication and other l iving expenses." Id. at 73. N\ofOO'JCr; the jUlY did not know that in order to satisfy this judgment defendant would h1M: to sell 306 acres of land which had been in his family "for many y(!arS and on whi ch he plannt.>d to retire." Id. at 74. Consequently, the majority held that Ihe post-judgment hearing disclosed punitive damages were elCcessive in Ihi5 casc, and ordered that plaintiffs either accept remittitur of the en/ire puniti\IC dam. age award, or the judgment would be rcYCrsed and the caSll remi\ntled. While It Is therefore clear from Wilson thaI Impoverished defendants mi\y be protected from punitl..e damage awards, wha t impact does or i hould the availability of liability insurance hiIYC In this analysisl While thaI QUe5lion was not dirKtly anSl'.'t!red in InduS'r;al Chern. and FitxJr81au Corp. v. Ch~ndler, 547 So.2d 612 (Ala. 1969), Jefferson County (6essemer Ol'llslon) Circuit Judge Ralph Coole did specifically note that defendant was "(ully insured" fOI the two separate

$2 .5 million awards, wi thout any further discussion.' InduSIr;;l1 Chemical is not, technically, a Green Oil factor analysis case, but the discussion by ludge Cook Is nonctheless InstrUCtiY(! when considered In conjunction wi th Creen 011 factors. The third Green Oil factors analysis is found in United Services Aulo. A55o. v. IMIde, 544 So.2d 906 (Ala. 1989). In IMIde, Walker County Circuit Judge Horace Nation, III awarded 53.S million puniti ve damagcs for bad faith refusal to pay on a homOOYlner policy. Judge Nation entered his Hllmmond flndlngs, which the court rC'Jiewed by also con· sldering the new Green 011 (actors. Juslice Almon, writing for the court, affirmed the Judgment conditiOrled 1)1'1 plaintiff's acceptance of a $1 mill ion remittitur. The fourth case which gives guidance liS 10 application of Creen 01/ factors is actually a specia l concurrence by Justice Houston In Olympia SP.l v./ohnson, 547 So.2d 80 (Ata. 1989). Olympia 5pa afflrmed a $3 million wrongful death award for the negligence d a spa when plaintiffs d(!(edenl died in a steal'l'l room at the spa. The trlat court's Hammond findings are set Iorth In the majority opinIon. Justice Houston's concurrence Stilted his preference to remand the case for the trial court to evaluate the JWi\rd by the new Green all standards. He then proceeded 10 analyze them in the con1eJ(1 of the casco The harm whiCh occurred was great, ~a painful , horrifying death." Id. at 69. On the other hand, the degree of reprehensibili ty was so Slight Ihat the tria l court directed a verdict in favor of defendants on the wanton misconduct cla im. There Wt15 no C'Jidence of past problems with the stellm mom, or of anyone being burnl;!{l previously, and no evidence Ihat the m~g llgcnc~ was profitable to Ihe defendllOt s, NO criminal sanctlorlSwere Imposed asainst any defendant, no other civil actions wcre filed against these defendants for the SJme issue, and the "cost" (actor of Creen Oil would not enhance the a'WiIrd. The only question Justice I-lOU5ton had was whether the amount of the judgment WOuld NsubstMtially affect Ihe flnanclal wellbeing of these defendants." Id. OIl 90. Wi th this case law In mind, a brief <M!lVlew o( the tort reform bill is discussed nClCt. March 1990

Tort reform post-verdict analysis On June II, 1987, the legislature en· acted tori reform legislation, including Alabama Code § 6-11·23 (1975) (Supp. 1989), which provides: (a) No presumption of correctness shall apply as to the amount of pu· nitive dilrYl.1gf'S awarded by the trier of the fact. (bl In all cases wherein a verdlc! for pu· n!llve damages Is awarded, the trl· OIl courl shall, upon motion of any PMty, either conduct hearings or recelYC additional evidence, or both, concerning t~ amoul'lt of pUl'litive damages.. Any relevant evidence, includll'lg butl'lotllm ited to the economic Impact of Ihe verdict on the defendant or the plaintiff, the amount of compensalOry d<lmages awarded, whether or not the defendant has been guilty of the Silme or si milar aCtS In the past, the nature and the extent of any clfort the defendant made to remedy the wrong and thc opportunity or lack 01 opportunity the plaintiff gave the defendant to remedy the wrong complained of shall be admiSSible; howcYer, such information shillioot be subjcct to discovery, unless otherwise discoverable, until ilfler a verdict for pUl'lltive dilmages has been rendered. After such post· verdict hearing the trial court shall Independently (without any presumption that Ihe award of punitive damages is correc!) reassess the nature, extent ilnd economic impact olsuch an (!Ward of punitive damages, and reduce or increase thc award if al)pr()J)rilllc in light of all the evidence.) There are no reported AlabJma 5u· preme Court decisions addressing Ihls legislation. Several significant ch'lIlges from existing law are obvious, however. Pursuant to this statute, there is no presumption 01 correctness as to the amount of the award. Also, upon mOllon of any party, a hearing can be conducted to recel\(! additional evidence. The HeconomIc impact" of the verdict on the pla intiff is to be considered, as well as on the defendant . The amount of compensatory dilmilges awarded Is to be considered, addressing Justice Jones' concerns In the HOI/OW,lY case. Whether thc defendant has done the The ~ /llbama L..1wyer

same thing in the past Is material, whether the defendant remedied the wrong is also relevant, ilS well as ,he opportunity plaintiff SiM! defendant to remedy the defect. This information Is tlOt diSCoYCr· able, unless otherwise discoverable, un· III afler a -..emict for punitive damages has been rendered, which means Ihilt there must be a provision now for post-YCrdict discovery. In any (...-ent, il is clear that there now can be an additional discovery period, post-ycrdict, for either party in which these faclors a~ 10 be g<llhered, and then presented in evidence to the trial court. Some suggesled areas of Inquiry arc discussed in the fina l portion of this article.

BUSINESS VALUATIONS

Practice pointers As suggesled prC'/iously, a comblna11011 of the H;lmmond findings and Crecn Oil factors can come Into play even in an analysis under Ihe tort reform stalute. Some speclrlC potential problem areas are noted. Filing a H~mmond/Gre.n Olf metion-As noted pft!'.liously, Hammond seemed to require Hammond findings In all cases, by the very terms of its own 01)11'1101'1 . Then, when Creen Oil came along, it was obviou. ly applied "retroac· tively" as patently made clear in the case of Alabama flee. Co-op., Inc. v. 1il pley, 546 5o.2d 371 (Ala.1989J which W.15 decided in Mav 1989. Remember that Croon 011 was decided In January 1989, a(ter tlpley had been tried, and after Tapley had been appealed . NOtwithsli'lndlng that counsel for defendant at trial could 1'101 have ioresccn Creen all, the per curiam opinion reJwed certain 01 defendant's arguments I.l't' stilting thai it "did not object to thc Irlal court's failure to give such an Instruction (charging the fury with Hammond and Green all guidelines), nor did [defendant[ request such an In5truaion.~ rd. 3t376. Moroover, the same opinion stated: ~"a defendant properly moves fhe 'rial cO~.IrI fO do so, the trial court Is obligated to state on the record its reasons for either interfering with the jury's \(!rdiCl, or not interfering with it:' Id. at 377. Until Ihe court clari· fies this issue, al a minimum, defendants must move the court to enter Hammond and Green Oil fll t lo(1. T.lp/ey also seems to sugsest Ihal should a litigant want to I)reserve certain constituTional arguments, he must move the court 10 have

The InstilulC ofChtlrtered Financial AntilySIS

employee ltoek ownel'Jhip pl.ll'll aoqUd iI ioNIdi v ctlll\lrc. 'lOCkhotdtr dl'JIIIIH dIv orce • • ehuju')lc .m! UIIlel • ifllUlliblc l,nell COntBct :

Mitchell Kaye, CF A. ASA 800 S88·KA VB (5293)

Member American Society of AppmikfS Past President-Atlanta Chapter

•

Court Testimony and

I.R.S. Experience the Jury apply the Hammond and Gleen Oil factors.' il should also be noted thaI It 'M)uld appear Ihat counsel for 1)liJintiff should me such a motion should plain. tiff wish to argue additur. Entry of judgment- There is no requ irement as to when a trial court must ~ter Judgment on the jury verdict. Obvioosly, counsel for plaint If should move for immediate entry of judgment so that inlerest will accrue. If counsel for defen. dant is going 10 challenge the amounl of the awards, then counsel should also move to deia)' entry of the judgmen t because if the judgment is Ijoing lo be less than the jury ycrdlct, Interest should not accrue. There arc no Alabama cases discussing this issue. In 8rownlng v. Michaels 01 are., 01 188-T-4I3·N, a case pending in the Middle District of Alabama which addresses (among other things) whether the punitive damages limit is constitutional, the judge did not enter judgment on a punitive damage verdict pending certincalion of Ihe question of the constltullonallty of the limit on punitive damages, found in Alabama Code § 6-11·21 (1975) (5uw. 1989), 10 the Alabama Supreme Court. 93

Olscover),-TIH! trial court only ha$ 90 days to dispose of post·trial motions, absenl an agreement on Ihe record. Rule 59(e) Aln.R.Civ.P. This can be 90 days of rather Inlense discovery If all o( the faclors previously discussed In this article are conside red . In demonstr.lIlng "economic impact" on both sides, creative counsel could spend considemble time and money. ~ Economlc Impact" on both parties can be rather broad. One can readily envision teamS of accountants pouring over finan cial sheets of corporations. One can just as eaSi ly envision Investigntors trying to determine wheth· er an individual defendant indeed has any assets 10 sati ~fy a punitive damage award, even for a seemingly InslgnifiCilnt amount of $20,000, as In the WIlson case. As well, If pIMII/;(( is wealthy, should that reduce the verdict! Prudent COl,lnsel on both sides will be engaging n this post·verdict dl~oYCry to try ilnd ullress whether there would Indeed be 1)' economic harm. The broad term conomle Impact" indicates that the

2. Amount of compensato-

only limits to post"'-'Crdlct d l~oYCry on this issue witt be the limits of coonsel'5 imagi nation.

ry damages. 3. Whethe, defendant has

been guilty of similar acts In Ihe polSl. 4. The nature ;md ClCtent of any cllon iY,' dclendant to remedy the wrong. 5. The opportunity or lack of opportunity plaIntiff gaWl defendant 10 remedy the wrong.

A hearlng-Dbvlously, there Is no need to gllther all of the d<lla If one docs

not haWl a hearlns. Counsel on both sides should be prepared to present this evidence at a hearing. and bear in mind that this evidence should be admissible. PrepamtiOn fOr Such 3 hearing, whether the punitive damage awllrd was $20,000 or $2 million, will be time consuming ;1I1d costly In and o( Itself, but crucial. Conducting such hearings In all cases In which punltiWl damages have been aw.Irded wHl also retard the disposition of civil cases even furlher.

'",m

1. Does the punitIve dam·

Creen 011:

age i)W,ud bear a reason· able relationship to the harm likely to occur from defendant's conduCll 2. The degree of reprehensibility of defendant '~ conduct, Including: (a) the duratIon of this conduct; (b) the degree of defen· dant's awareness of any hazard which this

A summary: catcsorles-.4J the risk of being red undant, the following Is a sum· mary of the (actors 10 be considered, both from case law and the statute:

I. Nature, e)ltent and '"eco-

From the statule:

nomic Impact" of verdid on plaintiff or defendant.

roorNOTfS 1 IrI ~ "" 00IIII1oWMd'. "'MI ~"""'" IIOWIf(!I/iI'e ..... uYI COIIIIlIO ... 1Ot b INIIICOId "" IAnort ~ tom in eiIM< " ..tint ordMr\nl. """"'" b _triol

bowd

UfI')tI-..-HI So.:Id. 1J79

• ""'" wodIa.-

or ~ qI

c.o~

wppIoodI.

~. IrI C."w./ CNM Lltlft, II'Ic. ~ GoocIM, 5)$ So.1<I", I(M {l'le&l!he OCIIII'I ............. ~ 1M> _1M Itlil judI!! ctid ,..,. _ H.......ond litld..,.. and AIIOC.'C! Iko! H.mtIIOtIf1 MId Iko! , 1....1CO<.UI ' """, Il'! Jonh 11> ........... bin.......,,,, wllh .Iury>mlia, or ~wnllO "'~. """'!hI 01 eo(t'Ml_ It prtIIIf<Iy ro.ked~ I Is "'-lint 10 ...,.. ..... !he ""'" .... ~ ""eM loom Ihh f\OWIIOn !Nt HMrtmonel ~ndIntt ....11» _1IIcoIto,o M1ioRh In 011...Sft,,~ IOwdr< ~C""" ~ s..I:w)I "'2 So.2d 11010,

'"'*

1241 (1'JI8I

t"SItn HMMtO<WI .........

IIOWd • _

_our InImuo! IO~ 1emoNI-v c..

In wNch ~""- _

, s-..Id. .. w.lt\

.. IMIIIt."lMod WMI!r I'Ilrb

in SILl<! 111. liS I0'I0. 19181.

lhh ...... will be IIidreM!d III the ~ pal,*" I«> lion d !hl> ""Id,_ 1. 'M 1c>1ow1", I~ ...... ~ ronc.ln .11 ~ 1lK1..",. botl!\e ('OUfI \II ""'Ic~ II" tnll .. IfIll'llllOnd f\r.dl".. iN ,..;Md, • o/!he lme Ihh.otddo _ 10 pM(. In cfvano.

kIIiaI oodtr: ~,.",.. ~ Co. ~ C...mI. !107 So.l<!

!29S I0'I.l. IM1l kfl _ . . otmoI!>dIlIudIt ~ IS! .... IIiofI..t«toGcIllion .... Wldlcl loA ~ 8Ioc.I: 8H: \\bod Co. Inc. .. Sm/oII~ SI4 So.2d U4'I "171 Ion ........cI \II>dII ~ Ins ....1I1on ~ d~....dicI1oA IlrodiMurbod1; S&oIo ' 01". f~' c.~ ~" Ij'tWI, '''' ld lIT,! (lila. I9t7I Ion IftUm .ru.. """ondI \IIICIp "'"""'11125QOOO ........ __ I,.ud >mile' I'" vndkl~: 0..1I0I'l ~ /o.I(JbI/f 1r>l1,,,,,,'Y> Sle So.ld 615 (1\10. lten 101'1 """rn o/Iet ... ...-fI 0udIIe IIyrellreMlrlt 10 ~ IN! ~ ffnIiI. III\H' Ifom U million 10 SU5 .... 1I1011~ t_ .. WlI-. 519 So.2d 12~. """ I9MI Ion "'........ ....-dI I,IIIdtf MooIIIMI ISl.J fllllloolI Wfdi(t 101 bt_ ~ b.obIo !tit IIfI<IiIlIIrb« 01 ~J.o . .. ~ m 50.111')1 \At.. I98O.IIIudItThottllIl62.5OO~ 101

w.o..

_n .. ..

so.

CiI/....,.

\eNOl bor~ 1tfi1A'ld11lwWdl: ~ " W So.ld lJ31o\1o. 1M/) ioII_ ..... .--dI IMIIt c~ !~I-t(\OO(I1oMI >mIoct Iormedl; /oIttI fraucj In """ ~

t'-"XllIIiWIIIt ,."., Co. ~""oc., SlO $Q.l(Il1' \At.. 1987l1ciI'I _ _ ~ ~ IkIbM L I¥<I

'"""""'" ~15QDOO ~ dt/rIoIiIn III '-d IdIoII .... In!I n..rillCe ~; UI'IIIrd St.v/a!o -"'0. ~ WI<:it. 5« So.:Id 906!A1.1. 1"9IIMl.. /IIOIIoI'II!I'I'rniI-

lin. u.s mlliJon bod ,,1:11 _ III bt I mlillcil'l): /vIInso", 5-41 So.2d &0 (1<10. 19391 Uucfto ~

(!II 5(M ~

~IIU

OI~

MlIIW;ln dtod, _111 WI!II"«II; IlIINwl,tl

(Mm. ond '~Io ..

C.",.

'0\

C/wIdIIt( $41 So.1<I 81l

I0\I.l. 191" ion ,.,....... fWINI'IdIl,IudtoI Cookll!-.o S2.s million ...""'''''' drooIh __ II ... ~ ~ 1/IOfIPI~'" /tic. ~ .... "" So.ld 1169 """. 19M) QLoIp _Md ..,.... ,"""",1r'I n~ooo poW1M ~ ~ lor "'"'" qI ... " ..... 1IId hud III ~ willi ..It qllO(IIJiIoI home~ bIMe oIltCbotI ~ 1'ItIII""~ 110($.0 Ak MIII1I IJudIe Ibo8od) Mnd/0I!dY' ~ IIMntII<Ird (Ifduo. IfIa".."nr.. <larnq... /rnI $5,04I,694A!4 10 SXIQOOO III

eo..,.,.s."pp,

0I'It c.w.1Ind ~ S2,S1\419,8S10

mo.ooo In onuCht<I.

11'ot on "-101"11 dlocwloII ~. whtlht< .1OI'Ife_ ohoukl ' - 1M ....1.obI11f)' 0/ Ilobllrly IrIwron<e 10 ~

hIII'Ilrom WOO)OoIIuI (OI'Iduc1 whIdI ....wId im-

"'*' pwIIIM cIom ..... MId ............. !his '"'~ Iht fIIl«lfI\\ _!he IfhcIMion by "........ Gootp ~

. . . . In ..... "'~1Iy MtJ "-tI1Wt DIrrIo1fH, 40

...... LIIN 1OO9119M1. Th:ooocloot-... .. I»"""' ...... poIIu\fi Iotk III WPPOfI 0/ IN ~ No jf.,... IoOdNI _ of I""IlM cIon\at.. k 10 pIII'rItiI rIwt ~ h(pw an N i!IIIIXMot \:II ......,.j jf foe ~ doe< un ohHI RnoncLol ~11!y 10 on iIIt<lt;wQ {if> '1e,1 'M IOpIc 0/ whtlilet me {Or...1 .t.ould dfwllow III1oo>ronce cew<ql1oI w'Ol'llfll! <:Of\d1lCl which INdlIO thelrt\fx>olllcil'l 01 ~ ~ k lIN !tit III ........ II< ~klt, on ot\Od'Ie. cillo. buI k h ••"", Nn .. _ _

... pNlooopNaI dllcuMloll '" ..,..

01 ....... .... «lIIII

k doII'II 01'1 !he GrHft 01 ~ .. 1I111w...... '" wI 0rttrtk0I.

""*""

4 At ~ 0/ _~ b cIoItndoMIl In IhM cno.. lilt MIIi'IoI ( .. Milt I.... die _ 10 Ihh ...... Jon _ """*'<I btfle_llobIlilyql ..... iIIIIIr_ _ _ 1M IN ~ ...,Non . . . wh_ !he punIIM d.vn.opo ~ '" j/IIIIfd 10 Iht a""" .. """'" ~ Oo.III\I. .... fIIII""""~ orId~bt "" ~ iIIdetd. M""" filii bt pO"",," 10 <III "" t. COIM coun.eI ..... Inld bt .. Inv~ COfIII»III' 10 oep. _ iII'I Iftl</fed (MIMI ~.. ke """ octIono ..!.Ich _K! be OIl_ 10 I~r_. Sft. t .... lAS billll Co., Inc. ~ SI. I'IHJI f/tw' M.,ItwII~~ Co.. Sll So.l<! 12'Je W. 1\I01l.." toeoo:bo d;/J\cull1O DDfICO'IIoa how • _ _ 1yoI< 0/ """""'" ~ ~ i/IOIIId lit In!uM will IMI pofMMd 10 "" COUll, ....", 01. ~"'"'" wllkh "II 10 thk pod, .... _ ... I'IOt~ ....... I O _. $ooo; .... 1JnII. #d SIMff CuM. Co. ~ IdooI!,. 48S So.N 19661 '" 0/"" amelhh lI'Iic:t.h ,0II'II10 pt\nI, ~ .... c_ on pt\iI;o., lor ~ 01 m.......... 10 .11ow IIm1Iod ~ bot I"""oro c,rrlM In ......",inI diOllll wlb ttl -..111 <XMI................ b ~ UII/vttuII Vnc/r!WI/(M Int:. s,cl. No. 89-"'1. lhele Clnft do filii !he QUl'I/kIII 01 1Mu~ ... """,III'" ~ 1M _Id IO!I "II. 'oe'!k!e 10 do.., In IuIUte

.....

_.Ito

dec.........,

......

,td.,

no w..

co..

odd,."

). ~ 10 lhI ..... d_fIIlhh ~ ~ COIit 16-11olI) rm')) fSo.iCIp. pooo\cIeo; ""'" MridI! oIYIl tIOI -"'oct ... r\FIb 01 onr _ I f wdI rIthIJ pilot 10 Junt n, 198'J," ' " ' - .... _ At fIIlhh dooIOt. no uoeo '-.w......d ...htIhtI .... _ .... "" OCt ~ 10 0I\IItI 01 I«NIfIa .... \<.Ole 11. 19&1, III """""'" 1I1P1'i""100II1v~ Of! (NtII.

""J

0«""""

,(I..,

.,,,, """-' -m iJInaI!he ........ III jIIIIIIIM! dornotn

could. 1'fUo'I>Iy.1IOI ",WIIf" """11 the iulY _Ilk well doI""'fi!tI 19I1'. 6. ~ DII Deu!\'Ibet It 1ge9. !he 0IIIh0r -"'"" "'"' ............ 1II1he ""'"~ W(fI. ~ 1M 1Ii1lllOliIIJ (OfIo~ ~ willi ~ 10 P'" '*"'"~ l1\oI~_N ... _ _ IO~ c.w 1WIIIIIy..wl ~ MId oItow I ~ 10 ~

om"',,,. ... """ n.

March 1990

condlet has caused or Is likely to cause; (c) any concealment or cover-up of the hazard; (d) eKlslence and frequency of simi lar ~St

should be taken Into account in mitigation of the punitive damages.

'<om Hammo,ld:

conduct. 3. PunUlVl! damages should remove the profit, if any, from the defendant and should be In excess of the profit 50 that defendant

plal",lff. 6. If defendant has received criminal s..lnCl ion~, Ihal shou ld be taken into account In mitigation. 7. If them have bc<!n other civil actions against the same defendant based on the same conduct. this

Lavoie:

other awards In similar

compMalh-e analysis with

cases:' SOS So.2d at 1053.'

The punilive damage award should sting. but ordinarily it should not destl"OV.

'<om Wilson:

'<om

on Innocent

third parties.'

positlon:S. Cost of liTigation to the

conduct. 2. The (leshilbllity of discouraging others. 3. "The Impllct" on the pal1ies.

4. Defendant's "finan cial

So.2d at 7J. Bul see. Justice Maddox, dissenting. id. at 74, and the tort reform statute discussed In this article.

1. Cul~blllty 01 defendant's

4. "Imllilct"

loss.

recognl~es <l

10 reco.<cf the fullesl amOunt

01 punitive damages. 547

Defend.mt's "right to fair punishment" mUSt be considered a~ plalnliffs right

Conclu$io n ~ have nOlhlnl! but unlimited OpPOrtunities before us, 00 both sides d the bar, and along with the trial bench, In addressIng punitive dilmilges, pos:-ycrdiet, given the guidelines we have been proYided thus far. It certainty Is an Interesting time to be an Alilbama litigator. •

o.:m

0II1omn .... In. 0I>Iy oo'iet -"01111 d«kI(ItI .. 10 Il.bIlkyl. I~ _Id IlOl olMo .. 1IIe _l1\liI0I\l1 ohjItcIlonI (U,1'tIK!v '011«1 ~ ~r>I> whto ,.nilO 1110 ..... Imum 1>nOIIIIt 01 peNl!\' Of pVtIl~1 t.In!! iI>WIMd . .1M! ~ IlOl beln8 W!I. AI .wM .. 0<11 ~ bllllfCllior, 01 !NIl Ind 1iIowl"liM jury ICI _ pur1~M ~ 11( 0III'IYInI It... 01/ iKton IOI!IIId l1<li CUft! !he .......... _~ <WIc1e.q .. 1O !hI .......I_ _ 01". penally IlOl belnldeter"lIroed. ... ~ &orrIoM I.Hr & c... Cil ~ ~ 416 u.s. "' 10$ $,Q. 1601 $. 100 I..W·Jo;I 62

er-.

'n.

(l9III~~. ~l ~1fWI. >I 4/(0 0Hp:w..0t h:. _ 109 S27, 51

us. _

s.a.

U5.LW. 491' Im9I ~ ~. ~.

Sine,

~ . . . PfOUM ....... clowoly.........,. ~

cMlliritotD .. -"1M

(~ ~

_. '''"'

l1\otIIIM >I ~c-.. ! SI 5o.Jo;Il-I) w.. 19891. how an on .....""I",d cio"rl _~ ..1Ih!U.nd

conIIituIIonol KM1nr """'" I fflml ...1one COOIId hOIl ~ ....ould bt ....... 10 ....,tlaidln. IotIIIMkrn .KQm. In@; ~ "'" dlIIrlt'ilorr In .11 crl",I"" WIt 10 dettt-

mIrwI me 1IJIIIIlIlI"'1O PtNfI\'. whelhe' k l1li one d.oy In joIjl or IhrI eIoaric chol,. 1",",,1Ie _Iud., (N.rjl"l_ /lilY In • (fjml"'" Ute olorlllhlilneo 01 wtw Iu..... are th>r!I'ld wld"r ""fI«t 10 "",,1M dMMpI ln .oJ.olNrnI " - " jury iMlN(:tlon> n.o). The avthot\. ~ on op. PHIl! ~ Mo+pIW ~ ~ - " " ""'" nt).

..."

,. ~ Ihh couIcI_ .... 1I 1ht ~ 011 doCMMd ~ IOI!IIId boo .,.......,. oIIeaed. !hey could boo conoidlold " " ' - Ih/fd 1*'. .- ()oI 1M .-...1wtId, k ~ _1atDI101ftMMne .... " hcIkIon""'","~Of~~oI.~ me'IIII ""l1'li .. ho " - 10 PI( • ,.,..,. ~ ~ ,nould alto boo corIOIcIMd _ _ _ IhIId p.vilft."AI II) IhIt IItdnI 01 /ocIOI\. IN ........ hetet!v III>

Iiroow\tdeelilmllod pioprhm hom I h.vIdouI to, 0... "'" frUftoI<. How II) " ". . . . . A:>II.~ PunllNl 11WiIIt-O/J«IW1ry II) end. prBented II! Iho

0,,,..,.,

0ftrnwI ~~ ",UInNI!n& 1'le7-

The .... /aOOma lawyer

LOSING YOUR TITLE CAN REALLY HURT Just as a prizefighter trains hard for the title fight. you've

worked hard to purchase your property. And you wouldn't give it up without a fight. When your property is insured with Mississippi Valley Title Insurance. that title is backed against all challenges to ~ ownership, making any title fight a sure win.

MlIIIs.lppl Vallo, TItIo

St(lle O//ir(l/324 NQrlh 21s1SI./Birminghlllll, AL 35203 1bll f'rcll · //BIJOI 84,1.J688/71!/1I! (l.T·l/326·{J919I A Mi11llC.wl1l Titl, (Amplllil

ele opportunities 16-17

29-31

PREPARATION & TRIAL OF MOTOR

2JRD ANNUAL UNifO RM COM · MERCIAL CODE INSTITUTE Drake I-Iotel, Chicago Un iform Commercial Code Institute

VEH iClE COUISION CASE CaC5ar's Palace, las Vcg.1S AS50dolion of Trial L1W'y1:!rs of Amer ica

Credits: 10.0

Cost: SJOO

(n.'(ti ts: 15.3 (717) 249·6831

(OSt: $645

(800) 424·2725

22 thursday

29-April 1

BASIC REAL ESTAlE LAW

Birmingham

15-16

National 8u~ines~ Institute Credits: 6.0 CO~I! $98 inS) 835-8525

BANKRUPTCY LITIGATION IN· STiTUTE The Regi stry Hotel, Scottsc!al£:>, Arlzon.l Institutes on Bankruptcy Law (n.'(llls! 15.0 Cost: $550

(404) 535·7722

AOVANCED CHAPTER 11 BANKRUPTCY SYMPOSIUM Phoenix, ArizOlla Professional Education Sys !em~, Inc. Credits: 12.0 Cost: $395 (717) 83&-9700

23 friday DEPOSITION TAKING (;ur<l'NllY CO~n1ion Center, Birmingham Alab.1m,) Bar Instilulc (or

15-18

e lE

CredUs: 6.0

(205) 348-6230

fERENCE

GOVERNMENT CONTRACTS Birmingham Cumberland InstiliJle for elE

Colorado

Credits: 6.0 Cost: S110 (205) 870-2865

ENVIRONMENTAL LAW CON·

KI,,,yslone Conference Center, Keystone. Amcri4:;:.m Bar Association

Credits: 8.3 COSI: $200 (312) 988·5000

BASIC REAL ESTATE LAW I-'unlsvi lle NatlOllal Bu s ine$~ Instit ute Credits: 6.0 Cost: $96

(71 5) 835-6525

30 friday BANKING LAW Harbt!lt (enter, Birmingham Alabam,1 Bar Institute for elE Credi ts: 6.0

(205) 346·6230 LABOR ARBITRATION Drake Ilotel, Chicago National Practice ln~titute Credits: 7.0 Cost $195

{612J 338·1977 LEGAL PROBLEMS Of THE ELDERLY Birmingham Alabdma Bar Inshtute for CLE

Credits: 6.0 (205) 348·6230

24-26 SKI W ITH THE STARS Sheraton H otel, Stetllnooat Springs, Colorado Associa tion of Trial L.'lW~rs Of America

Credits: 14.0 (800) 424-2725

Cost: $300

30-31 PRODUCTS LIABILITY LAW Drake H otel, Chicago, illinois National Practice In ~tit ute Cr<'dlts: 10.5 Co~t: $295

{61 2J 336·1977

March 1990

20 friday MORTGAGE FORECLOSURES Blrmingb;lIn Alabllma Bar Insti tute for eLf

6 friday

Credits: 6.0 (205) 348·6230

NEGOTIATION & SETILEMENT Slrnllngham CumbcrlOr\d Institute for elf

20-21

Crt,'dits: 6.0

REPRESENTING CITY AND COUNTY COVERNMENTS

COSI: S11 0

(20S) 87().2865

I\:!rdido HUton, Oranse Beach A labama Bar Institute for ClE Credits: 6.0

8-12

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PROSECUTION OF VIOLENT CRIME

Westin Hotel, Chkago, Illinois National College 0( District Atlorn~5 Credits: 22.8 Cost: $4&0 (7 13) 74 7-6232

3-4

ENVIRONMENTAL lAW

23-27

4 friday

PLANNING TECHN IQUES FOR LARGE ESTATES

O IL, GAS AND MINERAL LAW

(215) 243·1600

I'larberl Center, Birmingham

Alab.1ma Bar Institute for elE

Credils: 6.0 (2051 348-6230

thursday

Birm ingham N(ltional Bu si n~5 Instl1ute

BASIC COURSE IN TRI,\L AI). VOCACY

The Hilton, Scottsda le, M izonll Association of Tri(lllawycrs of America

Credits: 47.8

MORTGAGE FORECLOSURE & REPOSSESSION IN ALABAMA

18-24

Credits: 6.0 inS) 835-8525

Cmt: $98

27 friday

COSI: $600

(BOO) 424-2725

Westin Hotel, Dallas Southwestern lcg.ll foundation

(214) 69()'2377

W"ldorf-Astorl a, New York American 1.."lW InSlitlJte-American BM Association Credits: 28.0 Cost: $700

friday

INSTiTUTE ON WILLS AI\,D PROBATE

SOUTHEASTERN TRIAL INSTITUTE Birmingham Alabama 8M In s !llut~ for ClE

law Center, Tu scaloosa Alab.lnM Bar Institute for ClE Credits: 6.0

(20S) 348-6230

REPRESENTING ALABAMA BUSINESSES Birmingham Alab..lma Bar Institute for

elE

Credits: 6.0 (205) 348·6230

11 friday ADVANCED REAL ESTATE Birmingham A labama Bar Insti tute for Credits 6.0

elE

(205) 348·6230

19-21

Credits: 6.0 (205) 348·6230

18-19

SOUTHEASTERN CORPORATE LAW INSTITUTE

MORTCAGE FORECLOSURE & REPOSSESSION IN ALABAMA

ANNUAL SEMINAR ON THE GULf

Point Clear AlabJma Bar Institu:e for e lE Credits: 12.0 (20S) 348-6230

The Alabama Lawyer

Huntsvi lle National Business Institute

Credits: 6.0 (715) 835-8525

Cost: S98

Sllnde~tin

Resorl, Destin Alabama Bar Institute for eLE Credits: 6.0

(205) 348·6230

• 97

Recent Rule Changes Make It Easier for Lawyers to Receive ClE Credit for Attending Out-of-state Programs by Keith 8. Norman

Me LE requirements In multiple Stil l ~ and (b ) to reduce Ihe workload of each

apI)lication to be filled oul and retu rned to the commission for an accredi tation decision. The amend'TlcntS to Regu lations 4.1.10 and 4.5 allow the attorney to utill.l:e the former procedure or to seek his or hcr own accredit-llion decision (or the out-of·state program by completing and submitting an apl)lication to the commission. If the progrilm has been al>proved under the coopemtive accreditation system, an appl ication will be unnCM:essary. By call ins the commission staff, an attorney may find oul If an application for an out-of·state program must

MelE slate 35 well as thai of elf provid.

be nled.

ers presenting courses In muUlple stales. IV. ils NOYember 10. 1989, meeting. Ihe Alabama MetE Commissioo approYCd

This process will iM)id the delays often encountered when sponsors are dila· tory in submitting the necC5sary appllC<llion and IffiIlerials tQ the commission for an accreditation decision. Program evaluations still will be required whether the att~ney has filed an accreditation appli. cation Of a program has been appfO'o'ed through cooperati~ accreditation, but the attorney attending the program will be responsible for submitting a completed evaluation survey to the commission before receiving Credit (or attendanct . Applic1ltions and 1i!V<li,mtiOr\ forms will be furnished by the Commission to at· torm:ys requestinH them . The underscored portion of Regulations 4.1.10 and 4.5lncludcd below reflect these most recent changes to these regulations.

In 1988, several mandatory eLf Slales <lnd the American Sar Association Informalion RcsourteS Office began a cooperaliV(! accreditation reporting program, The purpose of the program W.lS 10 csta·

bllsh a systcm whereby cach MetE Slale would accept the accfl.>dllalion decisions of "II other MetEjlHlsdlctlons, but retain the right of refu sal as ilPproprialC to Ihc individUill slilte's MetE rules, The program had tWO primary objectives: (a) 10 better serve altofneys striving to me<!t

our stale's particip,llioo in ,i~

Inc coopera-

accreditation program. Alab.lma beCQmf!S the 15th of l3 states with mandatory continuing lepl education to take part in this innovative program . in add Ilion to Alabama's participation In Ihe cooperatl~ accreditation program, thc Commission approved two rule changes al lis December IS, 1969, meeting. milklnH it easier for Alaooma altorneys to obtain CLEcredi tl n Alilbama for anending o ut-of-~ta t ~ proHrarns offered by I'1On-presumptillOly apprO'v'Cd SPOrlSOl'S. The ch ang~s appi'O'v1!d by thc Commission Involve RCHulatlon 4.1.10 and Regulation 4.5, and apply only to those CLE programs conducted outside the state. Previously, for a program offered by a non-presumptively approved sponsor to be considered for accreditation, the sponSOr was rcqulJi!d to file an application with too commission. Consequently, If an attorney attended an out-of-state program and desired to receive CLE credit for attendln8 the program, It was ~ sary f~ the attorney to rl.'quest the commission Siaff to send the sponsor an 98

RegulJtion 4.1,10 At the conclusion of an approved in-stille program or activity, each participati ng attOrney must be given the opportunity to complete an evaluation questionnaire addressing the quality, effectl ~ness and usefulness of the particular activity, Within thi rty (30) days of the conclusion of the activity, a summary of the results of tht question-

nalros must be forwarded to the conlmlsslon . If requested, copies of the questionnaires also m U51 be forwarded to the commission. SponSOrs must maintain the question. naires for a period of 90 days followln8 a program pending a request for submission of them to the commission . AUom eys desiring cred;! for an activity alff~nc/ed outside of Ala· oonla may be required locomple(e an ~aluafion qucSllOnflaire (Ufnlshed by Ihe commiukJn and 10 return It within iI rCilsonahle lime fol/owlnglhe conclusion of /he Ole· tivllY· Regulation 4.5 Arr.; org.lnlzation not Included In RCHulation 4.2 above, desiring ai>'" proval of a course, prOgram or olher acti vity, will appty to the commission by submitting the required appllcmiOr\ and supporting documentation at least thirty (30) days prior to the date on which the course or program is scheduled . The commission will adv se the applicant whether the activity is ilPproo.<ed or dlsapproYed in writing bot mail within thirty (30) days of the recei pt of the completed appllca. tlon. Applicants denied approval of a program or activity may appeal such a decision bot subminin8 a leiter of appeal to the commission within nfteen (15) days o( the receipt of the notice of disapprtrv.ll. No aplllication submitted more than 60 days aftcr the close o( Ihe program year (~eml)f!r 31) will

be IlPProYCd. Any II110rney mllY request approvalln advance of /I course, program, Of other activity to be held outslck Alabama by compiCtin8 and submill/ng an application form avai/able from the Commission. Cooperati~ accreditatloo and changes to Regulation 4.1.10 and Regulation 4.5 reflect the commission's and staffs effom to streamline tnc accreditation process to afford attorneys greater ease in obtaining credil for quality oul-o(·st<rte eLE ptQgrams. ..

March 1990

Opinions of the General Counsel originall y rl.'ndered by Holl y L. Wi rema n

(February l, 1968) reYlslon by Alex W, Jackson, assistant general co unsel

(February 14, 1990)

QUESTION #1, "I am requesting an opinion as to whether or not this firm

Is prohibited by the canons 01 ethla; or otherwise from handling collection accounts.

"This firm handles I;ollectlon mailers OIl II daily basis for many different clients. The local credi t bureilu, on occasion, has need of legal assiStance 10 collect accounlSwhich ha....e been referred 10 II for (ollection, The credit bureau has been au thorized by the creditors to authorize an attorney to me suit after other means of co ll(''CIing the debt arc exhausted, A lawyer In th is firm 15 connecTed with Ihe cred!! bureau as II partner In Ihe partnership which owns the credit bureau,

He also takes pan in manogclt'lenl decisions regarding the operation of the credit bureau. "Considering the above, please respond to the following Inquiries: A. May thiS (lrm handle collection mailers for third parties referred to It directly by the credit bureaul B. May this fi rm handle collection mauers directly referred to It from credi tors who h:'M! previously used the credit bureau to attempt to collect the debt? C. May this fi rm hilndle collection matters which the credi t bureau previously tried to collect If the creditor selected this firm from a list maintained by the credit bureilU of attorm.'YS who hlmdle collection matters? D. Docs it nffect your ansv.-er 10 any of the above questions that the creditorlclient Is aware that a member of this firm Is a partner In the credit bureau?"

ANSWER: Your law Orm may not represent collection clients referred to It by a credit !>urtau in which a member 01 your firm maintains an Interest. This Is so whether the third parties are referred directly to .,our Orm by the croolt bureau or whether the Cll..'d it bureau Orst attempts to collect the debt on behalf of the clients. Disclosure to the clients of Ihe law p<lrtner's Interest In the credi t bureau does not remedy the solici tation problems presented ~ this arrangement. Your firm may handle collection matters previously hnndled by the credi t bureau If the creditor selects your Orm from a list of nrms m(lintalned ~ the credit bureau, provldf..-d that the bureau In no W<rf rccoml'l'lends your employment and further pfOYldcd that the list contains a sufficient number of firms to offer the client a meaningful choice of attorneys. DISCUSSION : It is well established Ihal an attorney can simultaneously

The A/(I/)amll Lawyer

engage in the practice of law and In anolher business or profession. The Disciplinary Commission has IssuC!cf ethics opinions permlning anomcys to engage in such varied profes.sions as Insurance tales, medicine, private Investigation, en· gineering. mortgage brokerage, and others. ISee, e.g. R0-8615, RO-87-105, RQ.67·)I, and RO-86-101.) An attomey whose clien! is in ncoo of services offered by the attorney's other business may ethically refer those clients to that business If full disclosure Is made of Ihe attorney's Interest itl the bus;· ness. However, the conYeI'SC is not true. The attorney's nonlegal business cannot ethically refer customers 10 the .morney. To do so would circumvent the rules against dlrCC1 Inperson sollcitallon, as the anoroey's non-legal business Is nOt prohibited from directly sollcWng customen. (See RQ.8;t161.) Temporary DR 2·103, provides that: "A lawyer may not solidt nor cause 10 be solicited on his behalf professional employment from a prospediYe client, when" significant motiYe for the lawyer's doing 50 Is the lawyer'S pecuniary gain. The term 'solicit' Includes con· laci in person or by telephone." J\ccordingly, .,our law firm cannot handle matters referred It by the credi t bureau In which one of your partners maint<llns an interest. This is so whether the credit bureau has atteml>led to collect the debls Or not. Disclosure of the attorney's interest in the credit bureau and consent by the clien t would not obviate the dangC1'S of solicitation ~nd YoOOld therefore not avoid this prohibition. lR().87-518]

by Alex W. JackiOn, asslslanl general counsel

QUESTION #2: "Is it ethi cal and permissible for me to hire lay emplO'y'OOs in connection with my substantial collection j>factice on a commission basisr My collection practice Is done primarily on a contingency fee basis. Thai Is, t am paid a percenl of monies coUected ~ me on accounts turned oYer to this ofnce for that purp(Ke. I haYe always paid my law employees a straight salary for thelr work in telephoning debtors to ilff<Jnge paymenl eX the varl· ous debts. From an overhead standl>oint, It would be benefi· clal to me to be able to pay an employee an amollnt based on a percentage of collections directly a1tribulable to her ef· forts on my behalf to get the accounts P<lld.n

Opinions

11 commission basis. Disciplinary Rule )-102(A) provides a lawyer or law nrm shall nol share leSt11 fees wilh a n0nlawyer and Disdplinary Rule 3-103(AI

ANSW ER: It is not permissible for you to pay lay employees In your collectlorl I)rtlcllce on

continue a partnership wllh a non-lawyer

,h.;,

provides that a lawyer shall nOI fOrm or

If any of the activities of the partnership consist of the practice of I;lW,

Ethical Consldcfillion 3-8 of the CrxIe of Profess;onal Responsibility st.lles Ihal since a lawyer should not ~id or e n COUf<lgc a layman to prncilce law, he should not practice law In association with a layman or otherwise share legal fees with a layman . Thu$, it 'NOuld be Impermissible for you to employ lay employees in connection with your collection practice and 10 pay them on a commission basis.

At Union Bank, lhtst Is Our Middle Name. Offering Solid 1lust Service Since 1901.

DI SC USSION: While, In your request, )00 make a distinclion between the fees that you col· lect, on a contingency basis. and the compensation that you Prol)Ose to pay to your employees, on a commissIon basis, such il distinction is not w,Hldnted. In faCt, what you propose Is thm your employees receive a direcl commission upon coll«;tlon5, which Is to say that they are compensated in exactly the same fashion that you are compensated. Such an arrangement is impermissible and dearly constilutC!S sharing a 1eg31 fee with a non.lawyer, whether the contino gcncy is a direct contingency applied against the debt, or a sma ller contingency applied ag.1inSI your contlngcnt fee. Such a I)ian is foo-sp liltlng and/or "profit sharing" and dearly runs afoul of DR )·102{A}. IRQ.88-78]

•

• UNION BANK& TRUST COMPANY &OCOMMER'CESTREET I MOtmiOMERV, fU.A8AMA I a.:a&S-83)l1 MEMBER FDIC

Wl,

r/J~?taUM~ C()/IU?<o~

f/JW,

COMPUTERIZED LITIGATION SUPPORT SERVICE Document Control · Bates Stamping · Copying Keyword Searches · Reports · Deposition Summaries 1933 Montgomery Highway, Suite 101 Birmingham. Alabama 35209

(205) 930-9666

100

March 1990

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

Recent Decisions of the Alabama Court of Criminal Appeals Anonymous tip insufficient to justify InvtSligalo ry SlOp Whire If. Stale, SSO So.2d 1074 (Ala.Crlm.App. 1989), cert. denied, 550 So.2d 1061 (Ala. 1989)-This 15 a case of first impression Involving an Issue of national concern- the right of Ihe police, relying on an 3nor'lynlOUS lip, to make an investigatory stop of an automobile. On April 22, 1987, Corporal Davis of the Montgomery Police Depart· ment rocei'o\.od a phone c<'I1i from an anonymous perwn, slating thaI Vannessa White would be leaving 2lS-C lynwood Terrace Apartments al a p;!r!lcular l ime In a brown Plymouth ~t a tion Wilgon with the dgh t tamlghtlens broken and that she would be going to Dobey's Motel and would be in possession of about an ounce of cocaine Inside a brown a"ache case. After roce.ving the e<all, Oavis .. nd his partner proceeded 10 lynwood Ter· race Apartmenls to keep building 2lS under surveillance. The officers Spolted a brown Plymoulh station wagon wilh a broken right taillight In the parking lot. L1ter, the officers obseM!d While leM Iht! building, carrying

The Alabama Lawyer

nothing in her hands, and enter rh e SHlIlon wagon. The officers followed White to the Mobile Highway, the highway on which Dobey's Motel Is located. AI about 4:18 p.m., the vehicle was SlOPped. As the officers apo proachoo the car, they obseNed that It was full of clothes and it appeared thaI White was In the process of movIng. WhITe was asked to step to the rear of Ihe vehicle where the officers Informed her that the reason she had been stopped was l1lllt she was suspected of ca rrying cocaint! In the vehide, and they asked her if they could look fOr cocaine. White told the of· (leers thaI they could look and Ihey proceeded 10 search tht! car and found a brown, locked attache case.

Upon request, White g.1VC the ofncers the combination to the lock and they opened the case. Inside they found a quantity of marijuana. Afler White's arrest and advisement of Mirandd rights, she was laken to police head· quarters. During the time she was being processed, the officers found three milligrams of cocaine In her purse. The trial court denied the defen· dant'S motion to suppress. Subsequently, White pled guilty to the charge reserving the right to raise on appeal the Issue of the trial court's denial of hf'r suppression motion. The court of criminal appeals, in a unanimous opinion authored by Judge Patterson, reversed and rendered the case. Judge Pallerson's opIn-

John M . Milling, Jr., is a mt'mbcr of the firm of Hill, HUI, Carter, Franco. Cole & 8111ck In MOn!somery. He Is a Sfdduale Of Sprin8 Hili Col/cge ,lnd lhe Unlvcrslty of Alabama School oILaw. Mil/ins COVi'f'S IIw civil portion of the decisions.

David 8. 8yrne, Jr., Is a S"lcluille of Ihe UniveTSity of Ala· oonla, where he received lxH.h his undcrgraduiJle and law de8feeS. He is a member of IIw MontgOmery firm of R.obiSOfl & Belser and coven lhe criminal portion of Ihe

decisions.

10 1

ion seeks to coniraSI the rv.o.prongOO lest of "'Builar v. reus, ]78 us. 108 (1964) and the lot.llity oj tht:! circumstances test enunciated In illinois 1'. Gates, 462 U.s. 213 (198]). Judge Patterson fQCused the issue as follows: ~I n Illinois v. ulIes, 462 u.s. 213 (1983), the SUpreme Coun decided to abandon the 'two-pronged test' in f<M)f 01 a much more ambiguous 'totality of the circumstances analySis: It is thus less clear now than It once was iust when an informant's Informiltion will suffice to show probable cause for a full arrest or search. At least Indlrooly, Gates appears to have likewise created greater uncertainty on the Issue discussed here.N H~r, the Court In Cates caulionL-d thai it hild nOt abandoned entirely the teachings of Aguilar and Its progeny; It Is sllll true 'that an Inform3l'l 1's veracity, rellQbllilY and basis of knowledge are all highly relevant in determining Ihe v"lue of his rcpon: Consequentl y, it is still sensible after Gates, In trying to ascertilin In informant Cilres 'the degree of relaxation from the probable cause standard entailed by the WUliam~Terry standard of reasonable cause 10 stop: 10 exam. Inc those panicular factors. That Is, It remains useful to ask JUSI how differently those factors weigh in the determination when the Issue concerns grounds to stop rather than grounds to arrest or search.

In applying an AguUar analysis. Judge Patte~n was ca~ul I() point out the presence of two factors. NFlrst, corroboration oi the details of the anonymous informer's tip-even Innocent deU'lIl~may estobllsh the inforlllant's vcrJclty .. . \Nc strongly caution, ho.vevcr, that the dClails corroborated should be Impressl\/(', as to number and specificity, under the P'lnk. ular circumstances. if corroboration is to be utilized to establish the tipster's credi. blllty.N Second, "detilll in the anonymous tip can support thein/cronce Ihalthe In_ formant hJS an adequate basis of knowledgc.N Applyin8 that stand.. rd to the facts in While, the court of criminal appeals con-

cluded: 102

'''We floo th ou the l ip eJChiblts flO 'indicia of reliability: The police o(flcers knew nothing aboul the informer; Davis lestlfled that he simply assumed that the Inlonnant was a concerned citizen. The tipster offered no informa:ion tcnding to show Ihal hI! WilS a credible per· son. Moreover, we cannol resort \0 corrobora tion of detail510 find the informer to be rcll~ble, for the detail5 corroborated consisted of Information thaI could hRVC been obtained I:rt' almost anyone, and thc dct<'lils were not significantly corrobora ted. N

Finally, II unanimous court of criminal appeals concluded thai While's stop cannOI be supported by specific and anlcul· able reliable (Jcts raising a reasonllble suspicion lhm the defendant was entl3ged In wrongdOing. The court specifically reiterated thai "Ih ls delllAnd for specificity in the inform<lllon upon which pollee action is predicated Is the central teaching of [the United StMes Supreme) Courl'S Fourth AmendmCnI jurispru. dence." Terry, 392 U.S. al 21, n. 18. Because White was il legally detained when she g.~ her consen\ to search, the marijuana from the briefcase and the cocaine from hCr pu~ are fruits of an un· constitutional detention; thus, White's motion to dismiss should have been granted. On September 22, 1989, the Supreme Court of Alab..lma denied certiorarI. The Supreme Court of the United States has gtanwd certiorari In the White case which makes the Fo.. rth Amendment quCStlon an Iswe ol nalional significance and Impact. It Is expected to be argued sometime In April 1990.

On appeal, Wright challtnged the COflo stitulionatlty 0( §20-2-79, ......nich provides In pertinent pan as follOYo<S: In addition to IIny penalties heret~ fore or hereafter provided by law for any person convicted of an un· lawful sale of a cOnlrolled substance, there is hereby Imposed a penalty 01 flYe -reMS Incarceration In a Slate corrections facility with no provision for probi'tlon If the si· tuS of such unlawful sale was on Ihe campus or within a one-mile radius of Ihe campus boundaries ol any public or private school. col· lege, univenity or other education· al Institution in this stale. Wright contended that because the Indictment did not charge hlnl under §20-2-79, It was unconstitutional for the coun to sentence him under the en· hancemen t provisions of t ~e 5tillute. On December I, 1989, the court of criminal appeals, in Harrison v. Sfille, (MS. 4 Olv ]n December 1, 19891, held that "an Indictment for the unlawful sale of drugs need not con tnln any reference to the semence enhancing provisions of Ala. Code 1975, §20-2-79 In order for the defendant's senteoce 10 be enhanced under thaI statule.~ In the case sub iudlce, the record reveals that before trial,the prosecutor or.llly informed Ihe defendant of the state's intention to scmence under the enhancement statute if the defendant WJS conviaed.

constitutionality of drug sentence enhancement upheld

Judge Tyson, writing for a unanimous court oi criminal appeals, found thett although Wri8ht was provided with actual notice of the StMe's IntenTion to sentence him under §20-2-79, Code of A/,l00ma (1975), that nQ fOfflllll noUflcaOon was required. Accordingly, Wright WilS not denied due process and his case was affirmed.

Wr;8ht v. Stale, 6 Oil'. 264 (December 29, 1969)- WrJghl Wih IndiCted for the unlawful sale or distribution of marljua· na in viola tion of §13A-12-211, Code of Alabama (1975). The Jury found the defendant guilty and tht trial court sentenced him to silt veitS ImPfisonment pursuant to §20-2-79, Code of A/ab.1ma (1975) (the Drug Sentence Enhancement Statute).

Search and seizu re cannot be predicated upon false affid avit vl/lemez v. Slate, '7 OIl'. 201 (December I, 1989)-Villemez was Indicted for the offense of trafficking in marijuana and was foutld 81,lilty as charged. He was sentenced 10 life impri sonment without parole as a habitual felony offender. The case against Villcmez was based March 1990

emlrely upon a search of iI room at a InI> tel In Gadsden, Alabama. The defendant, on appeal, argued that O((;cer McCurley's statement In the affidavit that the ~lnforMa n t relayed 10 me thaI Ihe pe rson she got the Mo rljuana from was a Ronnie Miller and Ihat he was atlhe Tl'iN'elef$ Motor Inn 81 421 E, Brood SI. In Gadsden, Alabama, in Rm. 136:' was a misstatement because Ihe evi. dence at the suppression hea rlns $~ that Ihe informant actually told another police o((;cer this Informa tion who in turn relayed the information to McCurley by phone. A careful reading of the affidavit In support of the search warranl did not show that McCurley indicated that he was rei.,.. Ing upon information supplied by another police officer. The afndavl! clearly states th:ulhe informant rol~ the Information to McCurley personally. Clearly McCvrley did not Indicate In the affidavit that Miller gave this information to Entrekin, anotncr police officer, who then relayed the Information to him, Thvs, McCurley's failure to properly identify his source of inforMation was at leasl reckless If not intentional. Judge Tyson, writing for a unanimous court, observed that the court was <:ompelted to delete the false Information cootalned in the affidavit to determine whether the rest of the Information cootalned In the affidavit was su(ficlent to support a find in& of probable cause. The Information the court decided Ihat had to be excised was the Informillion "th'" the informant told McCurley that she obtained the marijuana from Ronnie Miller In Room 36 0/ the TravelerS Molar Inn." See W. laFave, 2 Search and Seizure §4.4(c), p. 10-11 (2d Ed. 1987) (1989 Supp.). After t h~ miS5tillement was excised from the affid avit, the Alabama Court of Criminal Appeals held thaI the remai ning portIon of Ihe affidavit did not support a determination of probable cau$C. Judge Tyson critically observed, "Suppression is required only when it appeilf$ that 'with Ihe affidavit's false material sel to one side, Ihe affidavit's remaining COntent Is Insufficient to establish probable cause: Gray v. SI<lI(.', S07 So.2d 1026, 102B (Ala.Crim.App.)., cert. denied, (Ala. 1987), quoting Franks v. Delaware, 438 U.s. 25<4, 156, 98 S.Ct. 2674, 2676, 57 LEd,2d 667 (l97B), H

The Alabilma Lawyer

Based upon the standard set forth in Clay v, Stale, supra, the search warrant In this case was invalid and the defen. dant's motion to suppress should h;M! been granled ,

Recent Dec isions o f the Supreme Court of Alabama-

Civil Accountant 's liability , , , accountant's third party liability standard established Co/onlal Banle 01 Alabama v. Ridley & Schwciscrt, 23 ADR 4393 (September

22, 1989). Ridley and Jamison, accountants, were employed by Leedy Mortgage Company, Inc. to audit fln<1n clal statements for Osca l years 1979 through 1983, The annual financial statemenl$ were <lUdiloo at leedy's request, and Leedy was PfO'llded with muiliple copies of eCKh year's audit. Neither Rid(ey nor Jamison was requestoo to, 01 did, provide copies of the audits to anyone other Ihan Leedy. In the coors(! of auditing. the accountants requested Ihat Colonial Ba!lk, O!le of leedy's c redito~ listed on the financial stattmlCnt, complete certain standard bank conOrmatioo Inquiries. Leedy furnished Colonial with a copy of each of the annual audits, and Colonial made loans to I.ccdy, Leedy defaulted on Ihose loons, and Colonial5ued the aCCOuntants under theories of negligence, wantonness and breilch of contract. The trial court entered a sommary judgment for the accountants, and the suprenle court affirmed. In a case of InitIal Impression in Alabama, the supreme court was asked to determine the scope of an accountant's duty to third parties. The supreme court rocosnized that there is a split of authority and adopted the standards set forth in Credir .... mance Corp. v. .... rthur .... ndcrSOn & Company, 483 N.E.2d 110 (N.Y. 1985). The supreme (Qul1 quoted from that case ilt len 11th as follaws: Be/ore accountants may be held liable In negligence to noncontractual parties who rely to their detriment on inaccurate financial reports, certain prerequisites must

be satisfied: (I) the a«ountanl$ must have been aware that the finandal reports were to be used for a particvlar purpose or purposes; (2) in the furtherance of which a known party or parties [werel Intended to rely; and (3) there must have been some conduct 0fI the part of tilt accountantS linking lhem to that party or parties, which evinces the accountantS' undersl(lnding cJ that party or parties' reliance. While these criterIa permit some Oexlbillty In the application of the doctrine of privity to accountants' liability, they do not represent a departure from lhe principles articulated In UIIram<lres, Glanzer and While {Wh/re v. Guarenle, 43 N.y.2d 3S6, 401 N,V.S.2d 474, 372 N.E.2d 315 (1977)), but, rather, Ihey are Intended to preserve the wisdom and policy set forth there n. The supreme court held that the ac· countants o.ved no duty 10 Colonial and, therefore, could not be liable for negligcnce or wantonness. The court also held thai they coold not be liable to Colonial on a third party beneficiary theory because there w.lS no evidence that the contracting parties Intended to bestow a dlroc1, as opposed to an incidental, benefit on Colonial. Civil procedure . .. foreign corporationi treated like domesti c corporations for venue purposes Ex parle Wil/leer (In re: Wdlker v. Thompson), 24 ABR 14 (October 16, 1989). Defendant Mitchell, a resident 01 Montgomery CQUnty, purchased alcoholIc beverages In Macon County from defendant Thompson. Mitchell droyc his eM to Autauga Cour)\y, ami collided with a I-Ionda automobile drlwn by the plaIntiff, a resident of Montgomery County. Plaintiff sued the defendants in MilCon County under the Alabama Dram Shop

"'Plaintiff . also sued American Honda, a

foreign corporation, alleglnll that the Honda had defective seatbellS. American Honda filed a moilon 10 transfer the cause to Autau~ County where the accident occurred. The trial cOurt granted American Honda's motion to transfer, noting that American Honda Is a foreign 103

corporalfon and has I'IC!V(!r done business in Macon County. The plalnliff filed a pelillon for a writ of cet1iorari to set aside that order. The supreme court granted the writ. The supreme COUI1 noted that the 1987 amendmen t (Amendment No. 473) to Section 232, Alabama Constilution 1901, speclncally authorizes suit ag.l inst a foreign corporation In t~ counties where suit would be ailONe<! If the foreign COrpor.ll lon \.Yere a domestic corpora tion. Therefore, Americ~n Honda may be sued In counties where suit would be allOY.«f If AmC!rican Honda 'M!rtl a domestic cor· parotlon. Since American Honduls a codefendant pursuant to Rule 82(c), Ala. R. Clv.P., and because \'(lnue is proper as to those other defendants in Macon County, venue is proper In Macon County as to American Honda. Insurance •••

umbrella policy true excess insurance Independent F;re Insur.1nce Co., Inc. v. MUlUal Assurance, /nc., 24 ABK 79 (NoYember J, 1989). Turnipseed was In· jured in a boating accldenl. She Sl.led JameS Ben nett, the operator of the boal, and Dr. Bennett, the owner of Ihe boat. James Bennett was Insured by Indepen. dent Fire under a homeowner's policy. Dr. Bennett had a S300,000 policy with American St;IIes, which paid Its limits in p<ll1lal settlement of the suil. Dr. Bennett also had a SS million personal umbrella liability policy with Mutual Assurilnce (MASA). MAS/\. m:llmalm.od that its poli. cy was excess over Independent Fire's policy. Independent Fire maintained that MASA:s policy should provide primaI)' CoYerage since D ~ Bennett owned the boat and primary coverage follows O'Wnershlp. Independent Fire filed this doclaratory judgment ilction and MAS/\. coun terclaimed. The trial court ruled In filVOr of MASA and neld that "as between a non-owncd ~hide policy and an urn· brella policy, the umbrella policy wl1l be excess over all other poliCies. both excess and primary." The supreme court af· firmed the trial court's judgment. The 5ul>reme coult noted thilt altnough botn the Independent Fire policy and Inc MASA policy contained "excess or "other Insurance" language, tne MAS!\ policy is an umblt!lIa policy, which ;s generall y oonsidertd ~true ~ess~ Insur-

ance and Ihe la~t 10 provide c~rage, af· ler a primal)' policy or another excess policy. The supreme court noted that II has been recognized that the umbrella policy Is designed to pick up where pri. mary coverages end, providing extended protection In a time when verdicts can be extremely high. Another reason Is Ihe disparity between the premiums paid for simple excess Insuran(e and an umbrel· la policy. Umbrella poliCies are sold at compa ra ti~l y modest prices to pick up where primal)' coverages end In order 10 provide extendl.>d protection .

Professional conduct ..• violation of 26 U.S.C. 17203 does not require disbarment or suspension Clark v. ~Iabamll S:a1C Bar, 23 ABR 2S99 Uune 9, 1989). Clark flied hi s federal tax return and admitted that he owed laxes. However, he failed to IImely pay the taxes and was cOrNiC\(.>d of a violiltlon of 26 U.S.C. §720J, a misdemeanor. The Alabama State Barfiled a Rule 14(b}, Rules of Disciplinary Enforcement, petition to hllYC his license revoked or suspendLod . Rule 14 (b} requlresdl~ba rmen t or suspension when an i1l1orney is con· vlctL>d of a crime involving "morill lurpi. tude.~ A hearing was held and the Disciplinary Commission found that the crime Invol\'Cd mool turpllude and Clark was suspended from practice for six months. He appeilled, and the SUI)((!me court reversed. The supreme court stilted that It was unable to find any case holding Ihat the failure 10 pay income taxes is a crime of moral turpitude, as matter of law, where an Income tax return hu been filed. Th~ supreme court found that there was no fraud 01 deceit as to the fact that thl! laxes 'M!re owed. A violation of 26 USc. §720J does not constitute a crime of moral turpitude and does not require suspenSion or revocation of a license 10 practice law.

Recent Decisions of the Supre me Court of AlabamaCrtminal

104

More guidance on !atson Harrell v. Stale, 24 ABR 119 (NoYember 9, 1989). The Alabama Supreme

Court, In an opinion authored by Chief Justice Hornsby, gave trial judges and practitioners additional guidance on Balson. Biltson demands that In deciding whether the defendant has carried his burden of proving a prima f~cie case, the trial court ~muSf undtmake a sensitive in· qull)' Into such circumstantial and direct evidence of Intent as may be available." BalS<ln, 476 U.S. at 93. Trial Judges are Instructed In this opinion to be "sensitive to the defendanl's BM.mn claims and to not lightly bru sh them aside:' Bauon requi res the presence of Ihree elements to establish a prima facie case of racial dlscrlml nalion in the selection of a petit jul)'. The defendan t nrst must prove thol he is a member of a cognizable minori ty and that peremplOry chal· lenges \.Yere used to remove members of his race from the jury. Second. the defen· dant Is entitled to rely on the factlhat a peremptory chall~ge will allow a prosecu tor to make discriminatory choices in Jury selection If he choosts 10 do so. Third, lhe defendant muSI prove from these and any other relevant facts that he may be aware of that an inference of discrimination may be drawn from the prosecutor's conduct In b parte Branch, 526 So.2d 609 (,\Ia. 1987), the supreme court se( out certain specific kinds of conduct 11( a prosecu· lor that would lCiise the Infe-ence of discrimi nation under Blltson . Every l>raClitioncr should make the Branch opinion required rea(!ing; all defense attorneys muSI prove from those and other relevant f.1CIS the prima fa cie case and thus meet the burden of go ng forward.

An othelWise qualifying defendant is entitled to a Batson Inquiry when h~ makes his objection to Ihe empanelment of the jury after It Is selected but before If Is sworn. At that point, the trial judge mUSt conduct a BalSon inqu iry on the record, but out of the hearin! of the jury. The defendant then must prove a prima fa cie case of discrimination under Bat· son. If the trial coun determines thaI a prima facio case exists, Ihe burden shifts and the prosecution then must come forWilrd with a race-neutral explanation as 10 why peremptory challenges 'oVCl1l used to exclude memben of a minority. Where the prosecution fails to olfer a reasona· ble explanation fOf its strikes, even as to Ma rch 1990

one juror, Jury selection must begin ancw or otherwise Infect the recOtd with reversible error.

firmed th e court of criminal appeals' denial of the pel ltioners' habeas Corpus petilions.

I ncentive good-lime firs t impression

Juror misconduct- failure to truthfull y respond to voir dire

credil-case of

OIlS 1.1. 5/l1l£>, 24 ASk 1 (October 13, 1989)-Th£> sup~me coun consolidated three peti tions for wrlt of certiorari In· volving an Issue of first Impression; Whether a person sentenced to more than ten years under the Alabama Split Sentence Act, §lSo1s.8, COlk of Alabama (19751. is entitled to recei ve good time credit under the Alabama Correctional Incentlvc lime Act, §14-9-40 through -44, if his period of confinemen t is less than ten years. Justice Maddox, writing for a unanimous supreme coun, adol)ted the r.ltlonale of Ihe tourl of crImInal appeals in Thomas v. Slale, __ So.2d __ (Ala.erim.App. 19891, i .e., Ih<lt a person senlCnced to more than ten years is ineligIble for "good l ime" credit even though his conflnemenl Is less th<ln len years. Accordingly, the supreme court <If-

Clark v. Stale, 23 ABR 4609 (Septem. ber 29, 1989)-The Alabama Supreme Court granted cerl io .... ri to determine whether the defendant, Richard E. Clllfk, mighl have been prejudiced i.:rt' the fall · ure of a juror to make a proper response 10 <I question regarding his or her qU<lliflcations to serve as a juror In a crlmln<ll case. The Supreme Court of Alabama, speaking through JustiCe Kennedy, concluded that Clark might have been prejudiced and, Iherefore, affirmed the decision of too court of criminal appeals r(.'VC~in8 his convlcl ion. (emphasiS added). The supreme courl WilS compelled to find thai Clark might h<lYe been preJudiced as a result of a Juror's failure to disclose his previous jury service In another drug case in which the def!'ndant (Clark) was convicted. Justi ce Kennedy,

VERITAS, I NC.

" Parties h<lYe a rlght 10 ha~ questions answered Iruthfully I1t' proS l)(.'tti~ jurors to enable them to exercise their discre tion wisely in exercising Iheir peremptory strikes . .. " ... 11Jhe proper In· qulry In such cases is whether the defendant's righ ls were prejudiced b't' such failure to respond proper· Iy.' ... To be more correct, however, 'Hlhe tesl Is not whether the defendant was prejudiced bUI whether he might hallC been.'" (emphasis addedl. Applying the O 'Leary test, the court concluded that Clark m i ~ht h<lYe been prejudiced because of a Juror's failure to disclose his previous jury service in a drug case in which Clark w;'IS convicted.

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on behalf of the supreme court, reafOrmed Ihe holding In Ex parte O'leary, 417 So.2d 232, 240 (Ala. 1982), cerr. denied, 463 U.S. 1206 (1963). The court specifically cited with approval Ihe following langu<lgc from O'I.eary:

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Assessing the Legal Needs of the Poor: Building an Agenda for the 1990s by Elise MOil and Anne Mitchell

(This Is the fi rSt part of 5(!rles.)

three-part

This Is the story of ha.v what began as an amusing anecdote became Ihe Inspl. ration of the Commlnee on Access to le-

gal Services. A' 11 meeting in 1966, one of the members told of an ~c qualn lance who belonged 10 a group wflich decided to CXI)reSS Its socltll COr\CCrnS by Ndoing something" for the homeless. Their idea-a free resume-wri!lng service. They

printed notices ilnd posted them all over town . When no one showed up to take advantage of their offer, they were indigo nant. "It just proves," Iheo, concluded,

"that lhose people don', want to be helped!"

Ahhoogh thc commincc membeB all laughed at Ihe other group's insensitivity, there was a troubling menage for us in that SIOfY. Our committee was charged by the bar to ~ rt'Vlew. evaluate and fosIcr the dcYClopment 0( pro bono publi. co programs designed to assure access to legal services by those citizens of Ala-b,lma who cannot afford them .~ Yet what (lid any of us really know about what types of Icgill services those citizens of " Iiloomil needed! "hhough ~ral committee members were associated with cKlsting Lcgal Services' programs, their knowledge generally CKtClldcd no further than their own service areas, and for those of us III private practice, cKIx>sure to Indigent clients was minimal or In

some C.UCS, noneKistenl. While we were determined not to repeat InC ClCperlencc of tnc well.intentioned but misguided would路be resume writers. we knew ,nilt we lacked the time and skills necessary to determine the ac路 lual legal needs of Alabana's Indigent population by ourselYCS. lIVe were aware that other states had conducted lega1 needs surveys witn impressive results. In Marylilrld, for Cl<ample, the findings of sucn a study naYe been Clt.>dited witn in路 March 1990

creased stale appropriations for legal set· vices Initiatives, including expansion of law school clinical programs, enlarge:. ment of pro bono activity by local bar groups. encouragement of pro bono Pilrticlpatlon 01 the anorney general's staff and even a proposal to amend the Rules of Profcssionai Responsibility to require pro bono service by all allorncys in the statc, After much dlKusslon, we concluded that such a SUMy In Alabama would do much more than merely pl'OYide guid· ance for our committee. We hoped Ihill the results could be used by the bar as a whole, as well as by other groups In the state which were interested in creating greater understanding ol and support for pl'(lYision of legal services to the poor population. Only one obstacle neM' remained-money. With a commiltce bud· get barely able to cover postage, we could not hope to fund the thousands of dollars we knew such a SUMy would cost. Fortunately, the timing of our decl· sion coincided .... 111'1 Ihe lime for submisslon of grant propos"ls to IOLTA. In April 1969, wc received the exciting news Ihat OUr requesl for a 525,000 grant had been apprcwed. With additional funding from the Montgomery-based legal Services Corporation of Alabama, ~ were able to hire DavIs Penfield & Associates, a professional research firm, to conduCt the: first comprehensjl,{l $urvey of the legal needs of Alabama's Indigent popul,ulon. The follOWing is a summary of how the survey was designed, how it was con· ducted among the subjeCI PDI)ulMion and some of the resulls. Focus groups The first two sesments of the study In· volved direct cont.lCI wllh poor Alabam· ians. In order to gather the quall tlltlve d"t,l upon which 10 base the research questionnaire, Ihe researchers org.lnlzed focus grwps. Focus groups are frequently used in adV£!rtislng and prodUCl research, but also have useful applications (or s0cial and communllY rCSear(h. In this sel' ling, a facili tator works from a prepared script with a small group (usually elght.12 persons) to elicit discussion of the research topic. To reach a cross-SC<:Ilon of the poor residents of Ihe state, focus groups met at three sites: Jackson Coun· ty, Grccne County and Montgomery. These specific sites were ,hosen to get The Alabama Lawyer

a racially mb:ed urban group, a black group and a predominantly white group. Within these pararneters, the organlz. ers sought represent,llion by men and women, young and old, and peMns living In public housing. In our case, focus groups were used to gather InformatiOn about the types of legal problems most frequently ciled by poor people, their aw.lrencss of the legal system and Ihe availability of legJ1 services, as well as their attltudcs tQW3td l~rS. Each session lasted a little more than an hour, and WiS videotaped. (Par· ticipants were made tlWare of this when they were recruited.) Some of the re:sponses were predictable, while others were quite surprising. Discussion centerro on four major Issues-Ihe likelihood of p<1rticlpants havIng a legal problem and needing legal asslst,lIlce, awareness of legal 5(!rvi(es or other methods of findln8 legal help, Ihe types of problems Ihe poor typically en· COllnter, and the attitudes of the IXlOr tr>ward I~rs and the law. In each of the groups, there were real legill problems (lnd a gCfleral dissatisfaction with the w.t( such problelm are ~JYCd . A strlkln8 feature of the dis<:usslons W(l.S the fact that the poor lend to per. sonalize their problenls, often to the ell' tent that they see an Issue or law (IS applic(lble only to themselves. Therefore, it is impossible for them to draw analogies or foresee the potential ramifications of other IIction$ for themselves or others, and they frequently do not have a clear understarld lng of what has happened or why. They may not even be aW(lre that a problem they face has a legal solution.

Elise Moss Is a native 01Birmingham. .... Phi Beta Kappa graduate 01 BIrmingham Southern Collcgc, she ob/ainoo her law degree from SMU In 1976. She has worked with leBal services programs In Alabama and Okillhoma. Currently, she is senior slaff at/orney with the Huntsville office of Leg",1 Services of North· Central AlabAma.

Altitudes toward lawyers were geoefill. Iy negative, particularly as applied to ,ourt-appolnted lawyers. There were such statements as, "[cjourt appointed lawyers don'l help; that's why he's free," (Montgomery) and "Iclourt appointed l~rS are not worth ten cents" (Greene County). While Legal $eNlces' attorneys are thought of II bit more positively, Ihe same "you get what ~u pay for .. :' at· titude comes across. Those who had been to legal Services' attorneys did experience some frustration with waiting lists and the I,{lry low eligibllllY gUldt'!lines that those offices use. As to the Ie8'11 profession In general, lawyers were viewed as If\d ivldualsw~ bollom line concern Is the 100, Or~, who collude with each other and treat their clienl5 as superfluous. Altitudes toward the law were also somewhat negative. One participant's rather revealing Slatement that "[tlhe law keeps people that got II 10 hiIYC II" and another comment, 111i1W~ fiK It so they come out okay,~ sum up the pervasive at· tltude of p.1rtlcipants. As the rese<lfchers point out: "There is a sense that the law does not respond to the individual problems that people f<ace, that individuals get lost In the process, that the syslem Is not geared to solving 'their' problems but for solving 'someone else's' problems.(p.

A strong sense of alienation Is obvious

throughout the focu s 8roul) resporl!leS. The study notes a summary comment

Anne W. Mllchcll is II member 01 thc Birmingham firm 01 Berkowitz, LeI· koviu, lsom &. Kushner. She received he, undergraduate deBtee from Hunt· in8don College and her law degree from Cumberlllnd School 01 L<aw. Mitchell Is a member of the board 01 directors of thl.! Birmingham Estate P/annin8 Council, l,equCnlfy lectures on estate planning related topics lind Is the author 01 " Will and Trust Forms." She has served as chalr~t son of tile .... ,abama State Bar Committee on Access to L~gal Services.

107

from onc of Ine participants: "laws nrc

okay, but people are bad:' Field stud y Following Ihe focus groups, the data gathered was used to develop the $ul'\.1;!"( instrument (or Ihc field slUdy. Pursonal interviews wilh 499 low Income residents of the slate were conducted. One ol the clearest fi ndIngs of the study Is thm the poor do not have it clear understilnd· Ing of thclr ICg.11 needs. Because of the

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same personalization evident In Ihe focu, groups, they find i l difficult to become aW<lre of solullons to their problems. This fact complicated the process, but there v.ere some very Interesting facts: (I ) 44 percent of low-Income nouseholds have at least one member who is d minor; (2) 37 percent have senior citizens; (3) 22 percent hil\e handicapped or disabled household member5; (4) 77 percent have a high school degree or less. O nly 5 percent of the respondents are college grOlduates; (5) 27 percent do not ha~ a telephone; (6) The sample was d isproportlona1L>. Iy female; (7) Not as many take adVilntage of S()o cial programs as are eligible. Not surprisingly, the questions on the survey which dealt with the most Immediate problems rece/\Illd a stronger respon ~ For lnS\ilnce, 26 percent said they had deferred medical treatment because Ihere was no Wi?'( to pay for it, and ulllI· ties service w;\s a m ~j or concern, with 37 percent noting an inability 10 make payments on lime an::! another S4 percent reporting a dispute over service within the last year. Problems IlM)lving utilities had a relatively hl8h incidence as compared to olher problems In the SUNey. probably due to the day-to-day and no-deferable need (or heat, water and Ught. II is oot surprising Ihctt low-income per· sons have problems direclly related 10 their finances, Nlnet't"Cight percent of those surveyed had S<lme difficulty with

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(205) 826-6610 237 • .,. •• SI,ecl, Aabara. AL, 36130 • BJrpert R.... ". Wdco••

108

credit or accounts, Ten percent had con· sldcred bankruptcy and 19 percent had been bothered by bill collector5, on the avefdge, three times a year. While in<tdequate Income is not, of itself, a problem with a legal solution, thert are many relaloo problems, including hafdSSment Il't' collectors. repossesSions and garnish. ments for which IndlvldlJals can. and probably should, seek lesal assistance. Housing problems breClk down into two main CatC8ories, the problems of home owner5hlp and of renting. Thirtyn\lll percent of those questioned /)INn their own homes. Of those who rent, 16 percent 11\1ll In public hOUSing. Whlle few cJ the homeowners listed problems other than wIth foreclosure or the threat of It, rcntCr5 experienced numerous problems with landlords, filn ging (rom rat infesta, tlon to non......-orklns heating and plumbIng, and Ihe Inability to obl.. ln Ihe return of a security dCIXlsit. 11 should be noted here that AI .. bama Is one or the laSI fOur states not to have enacted any of the key provisions of Ihe Unlform landlord Ten· ant Act, and that Ihe Alabama Suprerrle Coun has refused to nnd Ihat any ImpUed Wilrfdnty of habitability exists In the state. This problem crosses class lines, as renters arc nOf un i~lXllly poor, bul difncuities stemming (rom liCk of tenant protOCfioo may disproponionately affect Ihe poor. family problems were not ('Xperienced by ~ryone, ObYlously, OOt everyone in the survey w.n married, and the sul'\le'V asked only (or problems In the past year. If the questions had asked for problems in the llast Nfcw" years, the researchers notl.'tl, "The pertcnlage would hiM.! been driven up d ramatica lly!' It i$ nOt;1.ble Ih;1.1 the second highesl number of reported problems Involved the educational system, These problems Included obtaining the right specia l educatlon program (or a child or disagreeing wilh the placement o( a child in a specia l education program, as Yo1;lll as diSCipline problems. After requesting information on types of problems confronted by the poor, the research focused on the iMpact of par· tlcular factors or needs. The study analyzed the relationship ~IWOOfl legal problems and education; panlcular pr0blems affected by race/sex; problems releVilnl to the handicappedldisabled; and specialized segments (hou;eholds with agl.odkhildren). March 1990

Education and awa reness Perhaps it Is not surprising that the two most common areas In which poor Alabamians had sought legal advice were problenlS Including col lection or debts! bankruptcy {!rId the domestic relations arca. Twenl)'-One pen::ent of college graduates sought assistance on a matter involving the former; this drops 10 8 percent among toose without a high $Choul diploma. This does nOI mean Ihal people wilh college degrees have more problems than thosc without them; rothcr, they tend to be more knowledgeable 0( legal remedies ilnd how to find them. This theme recurs throughout the study. When considered as a whole, Individuals with a college degree are a great deoill more likely (58 percentlto have seen a lawyer than those with less education . Further, blacks and those without college education were more likely to contact legal S(!Ivlces, while whites and those with a college degtee lVere more likely to h;r..ie cont.lcted a p!'iVilte attorney.

Ha ndicapped/disabled It was striking to the researchers that 20 percent of the low-income households had individuals who were handicappc(! or disabled. It may, In fact, Ix! an ilccur;lte n.>fk>(lion of thc rdatlonshlp between handicapped or disabled status and poverty. In 44 percent o( these households an attorney had been coosuited within the last fi~ years. This is approl<imJtely 15 percent higher th(ln for the sample as a whole. When quesTioned concerning the type problems they had encountered, 24 I>crcent mentioned problems In the area of property and debt, whlle 6 percent mentioned domeslie relations quesliors. Locating attitudes toward attorneys When asked, "How do you find assistanccl" 49 percenl said they had no idea. Thlny--two percent would go to legal Services and 1\ percent stated Ihey would simply ask an attorney for free assistance.

Most su~ believe lawyers cho~ the profcssion "in order 10 make money." Only 24 percent hcllC\1! that lawyers chose the profession In order to help POOI)lc. On the other hand, only 26 percent believe lawyers do not CMe about peol)ie. While only 36 percent believe lawyers arC honest, only 27 l>ercent actually commit to a belie!' that they are somewhat dlshorlcst. It should be noted that the negatives wet(! Icss visible In The IntervleYIS than In the focus groups. On iI positive note, nearly one-half rate I~rs as doing an "e~ccllent" or "good" job; 30 percent ~lY they do an Honly (;Iir" or "poor" job. Highest r~nkings came from women, blacks and those with higher educaTions. \..tMIest performance ratings are characteristic of households with minor children and respondents who have had contact with an JlttOfilCY In the Illst five years. Nel<t issue: surveys o( attorneys and legal Services personnel

•

Ag. Both senior citi~en households ilnd households with children under 18 have special problems. Senior ci tizens were more likely to have property Or debt-related problems, while households with children were more likely to Cl(perience family related problems. This Is not surpriSing. but may indiCate special needs of the two group~.

Race and sex Blacks perceive dimculty with oblalnIn8 credit because of race. (This was more often cited by black men than black women.) Thirty-four percent believe they have bet'!n taken advantage of by lawyers and others associated with the law. Roughly the same percentage would prefer a black attorney to a white one, although there appears to be an Inverse correlation between the lellCl of education and this preference. Four l>ercent of women believe they have been denied credit due to their SCle. Roughly the same percentage beli~ they havc been I.lken advantage of by lawyers and others associated with the law, as did blacks. Twent.,..ane percent Y<1)Uld rather have a (emale than a male attorney. The A/abamil Lawyer

Don't Risk A Valuation Penalty. Introduce Your Clients to Business Valuation Services. John H. Davis 111 , PhD, MAl, SRPA , ASA, president of Business Valumion SelVtCCS inc., is the only designated ASA Business Valuation apprniser in Alabama. BWiincss Valuation Services pl'OYidcs consulmrion by the hour, apprni$fll reports and expert testimony In cases of:

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The Second Injury Trust Fund and Alabama's Worker's Compensation Act by R. Blake Lazenby and Craia A.. Oonley The Second Injury Trust Fund can be an important, even critical, factor 10 both empl~r ",nd Ihe employee followIng an on-the-Job Injury which results In the permanCrl\ total disability of the em-

Ihe

ployee. While the specific code sections establishing and dealing with the fund are relatively few, the possible oonefits

afforded by the fund are nUmerous. Obviously, Alobamll's stille legi slature established the lund to encourage employers to hire Individuals who have suffered a permanent disability ad'ICrseIy affecting their emplCly.lblllty and earn· ing CIJpacity. Generally, the (und, where applicable, partially Insulates the employer from f1nMclalllabllity for Ihe tolal permanent d isability of Its employee arising out of an Oflothe-job Injury. when the fund accepts Ii<lbilily Of when l iability is assessed against the fund bv the court, the emplo~r is held liable only for that percentage of disability and reduction of earning capacity attributable to the cmployee's on-the-job Injury with that eml)lCl')<er, and the benefits due from the emplCl')<er arc then limited to a maximum of 300 weeks based upon that pcrcentJge. In such a sltuJtlon, the finandal savings to the employer can be staggering.

The empl~ also benefits when the fund applies or may apply. As mentioned above, the provi~lon5creat i ng and establishing the fund offer an Incentive program 10 empl¥rs to hire a partially disabled empla,oee at Ihe very outset. Once hired and afler a permanently Iat'lily dis.lbling on-the-job injury, the empla,oee often can use the largesl of the fund as a b;irlYllning 1001 in ~ullng his claim for pmmancnt total disability with his eMplOyer. Obvlol.lsly, the employer would very rnl.lch appreciate the opportunity to avail himself of a significantly limited liability and a settleMent often c<ln be fJd litated between the empl<1y'er and employee in the hopes 01 passing on a Significant portion rJ the liability to the fund. For these and other reasons, the p!'3ailioner, when representing either an Injured (!fTlplC¥!(! or his emplt¥!'i should always keep In mind (he benefits ,,(forded by the fund and the posslblUty of securing acceptance Of assessment dllabllity against the fund. The provisions ol the Second Injury Trust Fund ('SITF'l are set out In the Alabama w:>rlcmen's Compensation StalUte, Code of Alabama (1975), as amended, §2S-S-I, !!t seq. Specifically, the 51TF Is created and established pursuant to §25-S-i'O. The mOneys and Interest from

the investments In the fund are custody d the state treasurel' and held for benefits of the pcoons so designated. The di re<;tor of the Department of Industrial Relations Isthe statutorily designated trustee of the fund . The SITF Is funded from Ihree sources, ;25-5-71 . The major source of Income Is from the Intcrest on irwcslments of the principal currently In the fund. At the conclusion of fiscal year 1988, Ihe 51TF had assets In the total Sum of $1,600.595.23 and interest Income for fiscal year 1988 was $97,851.28. The moneys In the fund may be Invested in obligatiOns of the United Stales d Anlerlca, In obligatIons fully guaranteed by the United States 01 America or In general obligations dthe Slate of Alabama. The second source of In(ome is when a death 15 suffered by an employee COlIered by the W:>rkmen's Compe1'lsation Law bv a cause which Imposes liability under said taw, the employer pays the sum of SIOO into the SITF, §2S-S-71(a). In fisca l ~a r 1988, the 51H received only $11.000 from this source pursuant to the 119 Job-mlated f,nalities reported. The third source, which is non· existen t, is where damages He under the Employer's Liability Act and there Is no person to whom Judgment may be paid,

a\ 110

---...,-~'D-:::>

March 1990

the net Judgment escheats to the bencl1t of the SITF, §25-W1(b). The SITF rcceiYl!S no sl<\te or federa l appropriations. While the lrust fund is currently !iOlvent, It does not appear to be actuarially sound. The problem wilh financing and an tieiPilting moneys (or the fund Is seYl!raifold. No one knOW'S eKactly how many new claims will be presemed (or paynlent, rlor the amoum of a1tornC'y'S' fees that may become due. Also, it is h,ud to predict the amount or Income which will be earned, The current trend of the fund Is that the principal and Inlerest income is dropping. while the benefit payments and attorneys' fees life Increasing. Section 25-S-7J establishes the lawful ptJyments which may be made from the fund and the priority of claims. This sec· tion authorh:t.'S the payment of premiums on the required fidelity bonds of the truswe and custodian, and It authorizes refunds and weekly compensation to qUillifled claimants, As will be discussed later, the appellate courts also have authorized lump-sum attomey's fees to be paid (rom the sm, although not specifically OIl· i~ by said section. Section 25·5-73 directs the director of the OeP3rtment 01 Industrial Relations to make requisition to the state comptroller who shall draw warrantS on the state trea ~l)rer for payment of weekly compensation. Such Wilr· rants shall be drawn onl y If there are sufficient moneys In Ihe fund for Immedi· ate payment, Thesectlon further provides that claims take priority In ascending numerical order according to the time of the acciden t. Section 2S-5-74 estabJishe5 the procedure for making determinations of liabll· Ity from the SITE Basically, this section requires every employer making II report of an acciden t In which there is a prima f{leie evidence of liability against the SITF to so Slate In said report. In the ord inary selling. Ihe employer Is unllw.1re of the pr()Yislons and mandates surrounding the SITF, and upon the employer's fim report of Injury, there will be no mention of the possible liability of the fund and it becomes the obligatiOn of the employer's attorney to nollfy the fund of its possi. ble liability, AUachcd hereto Is a copy o( a letter to the director of the Department of Industrial Relations In an actual case In which the fund admitted its liability. When such a letter is sent to the depart. ment, ordinarily thl! department will reThe Alabama lawyer

spend by ~t atin8 Ih~' it Is too earl y for the tfuStee 10 make its decision regard. Ing liability; however, it is recommend· ed that the notice De sent as soon as practicable in order 10 preclude the fund from asserting that it was not notified of Its ecposu~ In the rel)()r\ of the accident. Upon a settlement between the em· p l ~r and empl~, Ihe director shall be deemed to have admitted liability against the fund unless within 60 dilYS IIlIer receiving a COl>( of the scttlement, the director shall h;we notl(icd the parties that he does not consider the fl)nd liable for payments. In making such determination of liability, the director reviews Ihe requiremenl of §25-S-S7(a)(4!d, e,f&g. Section 2S-S-S7{a)14)d defln(.'S permancnttotal disability as the total and per· manent loss of the sight of both ¥S or the loss of both mills allhe shoulder or any physical injury or mental Imr>alrml!nt r(.'Suiting from an accident, which Injury or Impairment pem1i1nently and totally Incapacitates the employee for gainful emplOyment . Section 25-S-57(a)(4)e merely provides that If an empl~ hds a permanent disability or has pfC'llously sustained anotlr er Injury which resulted In permanent dis1lbility and receives a second permanent Injury, then he Is entitled to com· pcn5.1tion only to the degree of Injury that would h<r\ltl resulted from the laller accident if the earlier disability or injury had not existed. 5(,o(tion 25-S-S7{iI)(4)f sets out the ba· sk statutory requirements for receiving benefits from the SITF. This $(,'I;tlon pfOo vldes that If an employee recei~s a per-

Craig A. Donley currently serves as a special assisl.:Jm ,:worncy sen~rill and as an ass/slanl scneral coun5el for the Stilte of Alabama ~partmem olin· duSlria/ RelationS. He received his undergraduate degree in 1972 from Southern MClhod.Sf University and his law degree in 1977 from Jones Law School.

manent injury after having sustained another permanent injury other than in the $ame employmen(. and If the conrblned effects of the previous and subsequent Injury results In permanem fool disability. compensation will be paid for permanent total disability. The emplover will pay compensation to the eKtent he would have been liable: If the first inJury had not eMisted. The remainder of the compensation will be paid by the SITF upon completion of the payments by the employer. However, this section contains two additional requiremerlls, that is; (I) the employer must have had prior knowledge of /he previous In;ury and e2l such previous Injury must have been of a disabling nawre which ad· versely affected III(! employability of the empJO'(f.'e. (emphasis supplied). This suO-

section must be read and applied In 1><I,f materia with S2So5-74 for a de tcmlinmiOn of liability of the SITE Permanent total disability may be established In scYCral ways. Of course,the best wifo{lS a physician's ~ndlor avoca· tional rehabilltation specialist's testi mony that the empl~ 15 permanently and totally dls.abled. Although it has been held that a trial comt may make a findIng of p.:rmanent total d isability without medical testimony, Bankhead Forest Indug. Inc. v. Lovett, 423 So.2d 899 (Ala.Civ.App. 1962). we suggest medical and vocationai testlmony 10 be the most prudent and safe st method to proYe such a dis.abllJty. Generally, these cases go to the clrcuit court rcg;ardlng the second Injury eiTher to appfOYe a lum~sum settlement, §2S.S.83, or to resohoe a dispute, §25-5-I.!1(a){1), Normally, tM circuit judge

R. Blake Lazenby Is a srild~alc of the University 01 Alabama ando' lhe UnlV('f$;!y'S School of Law. He Is a pari· ncr in rhe Talladega firm 01 WOOlen, Thornt on, Carpenler, O'Srien & Lazenby and a member olthe .... Iabamol Defense Lawyers Asso<laf /on, The American BM AssocI/ilion, the Alaba· ma S/t.Ile Bar Md the Tal/aeleSD Coumy Sar Association,

111

will, when approprlll1e, make a (Indlng of permanent Iota I disability in his order, All of this 15 sulncrent to establish per. manent total disa bility to make a ctaim against the SITF. II should be noled Ihat the Alaooma Appellale Courts h~ gi~ a liberal interpretation to what constitutes permanent total disability. It has been held Ihal total di5<lbillty does not mean absolute helplessness or entire disability, but the Inability to perform the work alone's trade or Inability to obtain reilsonably gainful employment. Blue BlJl/, Inc., v. Nichols. 419 So.2d 1264 (Ala.civ.App. 1985); Den-Tal-he MfS. Co. v. Gosa, 388 So.2d 1006 t"la .Clv. App. 1980J; /.$. Wallon & Co. v. Ref!VCs, 396 So.2d 699 (Ala.Civ.App. 1981). Alter the employee has established by coml>ctent evidence his l)Crmanenttotal (ii$abllity and permanent total loss of earning capacity, In order to tap Ihc resources of the 51TF the parties must demo onstrJte that the Employer had notice of the employt-'e's prior Injury or disabling condition. Often, this is accomplished by an a((jdavll from the employer, a statement of nOllce on the employment application, or by affidavit of the emplO)1.'e maintaining that the empl~ Informed his employerolthe previous Injury at the lime he was hired. Once lhe parties establish that the daimant is permanenlly totally disabled, and that the employer had notice of the prior Injury or coodltlon, the parties mU5! demonstrate that lhe pre"o'ious Injury or condition was, in lact, of a dlSJbling na· tu re which adve rsely affected the em· ployability of the emplO)1.'e. There Is no specinc test or general standard which can be unlforml )' llpplled. The facts of

each case, along with common sense and reason, must be ap plied to the in· dividual case and circumstilnces, Drum· mond Company, Inc. , II. Wilson, 547 So.2d S64 (Ala.Civ.App. 1989). Some 0bvious exampl~ of disabling Injurl~ which would affect the employees' em· plotabllity v.ould be Slated UmitaUons on the type of work one could perform, or a requirement of '"lighl (iuty" WOJk. Other eK.lmples. unfortunately, are more subtle in nature, such as evidence of the inabil· Ity of the empl~ to seek or perform certain Jobs because of tM! physical disability. hI any event, (lach case must be evaluated on its own particular facts and circumstances. The procedure for making a claim llgainst the SITF is, theoretically, m her simple. Once Ihe second injury is senled between the employer and employee or tried to judgment, a letter to the Depart. ment of Ind ustri,,1 Relations milking a claim is sufficient. As a practical mailer, this request should be sent to thc depart. ment by certified mail in order to document thc date of receipt of the requesl by the department. Although the statute does nOl require it, the request should hiNC anached documentation in the (oon of mediCAlI testimony or reports that verify the employee is permanently and total· Iy dis<tbled resulting from two sepafilte Injuries in different errployments; If p0sSible, a vocational reh~b l iltation special. iSI's report verifying that the emplOyee is disabled and cannot rea§OOably return 10 gainful employment; a cop>{ of the court's order reflecting the second Injury; verifi· cation that the employer had prior knowledge of the previous injury; and some SQrt of verification th"t the prcvl·

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Opellk., AL 36803

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ous Injury was of a disabling nature which adversely alfected the emplO'y'i!'e's emplovabHity, §25-5-S7(a)(-4)f. Furnishing Ihls Information, though not required, assists the Department of Industrial Rela· tioni In passing judgment upon the d"im and facilitates the ultimate resolution of liability, vel non of the fund . Once this Information Is received, the Director oi Industrial Relations will make a determination of liability agalnsl Ihe SITF. The dlreclor is deemed to have admitted liability against the fund unless, within 60 calendar days after receipt of a claim, he notifies the panies by registered or certined mall that he d~ not consider the fund liable. Either party may, within 30 days after the date of making such notice, appeal to the circulI court of the counly of residence of the em· ployee. Said appeal is without a jury and upon the Issues stated in the complaint and answer. The case Is gi~n the same priority on the docket as other workers' COnll>cnsatlon cases. Appeal s for the cir· cult court shall be taken as in Other appeals, but shall be flied within 30 days of the final ruling of the circuit judge, §25-s-74. If a claim againSI the 51Tf Is accepted, the direclor will 5eOd a leuer stating the fund Is liable, the schedule !of payments, the amounl of payments and the condi· tions under which payments will be made. After acceptance of a claim against the SITF, It usually takes approxImately 30 days to begin payments and bring the dalmant up to date. Section 25·5·57(A)(4)g provides th"1 if an emplO'y'Ce receiYCS two injuries which render him permanently and totallv disabled In the same ernpl(J(ment, then compensation shall be paid by the em1>loyt!f for permanent total dlsablllry ollly, and the SITF Is not liable. In order to avail themselves of the benefits of the StTF, the p..1rtles must demonstrate Ihat the two injurIes or disabling conditions did not arise out of on-the-job injuries while the employee was working lor the same em· ployer. The questlon often arises as to whether or not an employee whose first Injury Is non-work related and subsequently suffers an on.the-job Injury, the combined effect of which renders the employee permanently disabled, is enti· tied to benefits under the fund . While there Is no appellate court decision which dill,.'C;Ily addresses thiS question, March 1990

this writer Is of the opinioo that said employee, if he meets the olher crited" of the fund, would be entitled to benefits, For eKample, an employee could have had a oon-work related automobile accident whk h rendered him 40 percent dls.1bled, Thereafter, that employee could secure employment wi th an emplcryer who has knoYlledge of his 40 percent disability, suffer a job-rel<lled Injury while in said employ and If said job-related Injury, together with the dls.1billty from Ihe non-work related \!Chlcular accident, render the employt.-e permanently totally disabled, the employee and his employer could avail themselves of the benents of the SITF If they $I,lccessfu lly jl,lmped through Ihe other hoops hereinabove described, Section 25-5-8915 the St.ltu\Ory authorIty for payment of :l1torneys' fees in worker compensa tion cases. 5.11d section provides the foll ewing: "No part of the compensation payable I,lnder Ihls article shall be Ilald to aItorni!y$ for the plaintiff for legal servkes unless, upon application of the plalnliff to a judge of the circui t coort, such Judge shall order or approve of the employment of an anorney by the plaintiff, and in such cvcnttne jl,ldlle upon the hearing 01 the complaint for compensation, shall filethe fee of Ihe attorney for the plaintiff (or his legal services and tile manner of Its payment, but such fee shall not exceed 15 percent 01 the compensation awarded or paid," The )tate previously had tilken the p0.sition that since S25-5-13, Hp.-rymeflfS(rom fund" did not specifically authorize payment 01 a1tomcys' fees (rom Ihe SITF, then the SlJle could not P<IY lump-sum, attornL"{S' f~s from the SITF. Also, the stilte felt th,lI section only aUlhorlzed weekly campcnsaf/on payments. Therefore, If liability of the lund was accepted, weekly benefit checks, In some cases, 'NCre sent di rectly to the diliman t's :rttorney, and the mallcr of attorneys' fees was left up to the attorney and his client. "1OY.'CYCr, In the Second In;urv Trust Fund If. SliJnlon, 512 5o,2d 1377 (AI\I,Clv,App, 1987), cert. denied, the circuit court of Mobile County uJtimmely found the claimant permanently and totall y disabled under circumstances givifl8 ri se to liability under the SITE Therf.li!(ler, the plaintiff's The .Alabama Lawyer

counsel nted a motion requesting lump Sl,lm attorney's fees to be pa id (rom the SITF. Over the Dep'rflment of Industrial Relations' obJection, the trial court entered an order awarding a lump sum attorney'S fee to be paid (rom the SITE SITF 3ppealcd the judlle'S order solely Ott the issue of the propriet)' of the lump sum attorney'S fee award payable frOm Ihe SrTF. The court o( civil appeals In SuanIon maintained tha t it was not an abuse of th e trial court'S discretion to order a lump sum attorney's f«! payable (rom the SITE It should be noted that the amount of the attorney's fee was not commuted to its presenl value; howeYcr, the recent case of Ex P.lfIe 51, Regis Corp" 535 5o,2d 160 (Ala. 1988) would dictate thilt when the trial court awards a lump sum attorney's fee, said fee must be reduced to its present value, The Ilr.lctltloner also should note that Alabama's appellate courts have maintained that post.judgment interest upon the attorney's fee is recoverable from the 51TF al the rate of 12 l>ercent per an num, tYy' virtue of the appllc,lIlon of S8-S-IO, Code of .Alabama (1975), Ex Parte Sianton, 23 ABR 1498 (March 17, 1989). Currentl y, there Is pending on appeal ooforu the court of ciVil appeals the case capTioned I.G. Allen, Olreclor, Department of Indu5fllal Rela\ion5, a5 Trustcc o( rhc Second Injury Trust Fund v. Frllllklin Blankenship, Clv. No. 7204. In 6J,mkenshlp, the employer and empt<¥!C agreed upon iT 5etllenlent of Bhlllkenship's worker's compensation claim surrOl,lndinll this second job-related Injury, which rendered him permanently totally disabled. This second Injury occurred In a different employment than his origlnal lnjury. The pal'liCS agreed that upon payment of the settlement, the employer would be released and the employee would be frcc co pursue the SITF for additional benefits. The parties petitioned the court to approve theIr settlement and In the court's judgment, the trial Judge, In fact, ilPI)roved tht! proposed sculement imd lurther found th:ltthe empl<¥!C was permanently totally dis.abled; that he had had iT second injury In di fferent employment; thaI he had had II I>rwious Injury which dlsablL'(! or incapacita ted him; thaI the employer kncv.' of the prior disablinll condltiOfl; and that tht" SITF was Hable to the emplO'rW for the benefits ar,d al1orney's fecs,

Immediately I,l pon receipt o( the judgment, counsel (or the employee forwa rded a coP't' of the judgment to Ihe SITF requesting p.lynlent of the benefits. WithIn 60 days of the judge's order, the Department o( IndustrIal Relations nled a MoUon (or Relief of Judgment; howevt!r, none of the llrounds stated In the posttrial mOlion specifically denied that the 51TF was liable to the employee. The state's post-trial motion w~s denied and appeill W.1S taken , As hcreinillxwe stated, the Department of Industrial Relations has 60 days (rom Its receipt of the employcc's claim for benefits within which to admit or deny lIablilty. One Issue presented in this armeal ..... 111 be whether the post-trial motion (which did nOT specifica lly deny liability) operated to suspend the 6O-ddY lime I mit imposed by S25-5-74, Because the SITF Carl provide some significant benefits, monetaril y and otherwise, many attorneys representing plalrltlf(s and defendants alike now have begun effortS to tilp this re;ource In appropriate cases. The statutes establishing the (und and setting out its procedural guidelines pn:wlde only a sketchy outlillC and frJmCYo'Ork within which the p.11'11es must opcr<lte, Every case should be thoroughly examined and evaluated with regard to the possible liability of the fund. If (luCStions shoold arise, the practitioner should not hesitate to contact the DeP.1rtment 01 Industrial RelJlions, Worker's Compensation Division, (205)261-2868, or Ihe Legal Division, (205) 261-5411, These departnlcn ts of the stille are available and willing to give advice on any problems or questIons the practitioner may have about the SITF, •

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113

The Tort of Bad Faith and the $250,000 Cap on Punitive by Davi d H . Marsh and Susan

AIO,lb(lma juries have relUrned numer-

ous punitive damage awards on bad faith daim$ ag.lin$1 dcl~dtlnt inSUr.l rlce companies. For example, re cently In Un/led

Services Automobile Association v. Wddc, 544 So.2d 906 (Ala. 1989), the Supreme Courl of Alab..1ma upheld an

1)'W<Ird of punitive d<lmages In the amount of $2,500,000 on a bad faith claim against an insurance compimy which "li ter(lily mi,mufactured" an arson ca se ilgainst its insured, rather than pay .. claim under II hom('()Whe(s policy, Id. at 916. In United Amer/can Insurance Com·

pany v. Brumley, 542 So. 2d 1231 (Ala. 1989), a puniti ve damage award of $1,000,000 was affirmed where the dcfendtlnl Insurance comp<lny vil'1ually ignored the insured's repea ted attempts to be paid under (I policy for Med icilre supplfjmen t ~1 OOncfilS. Id. OIl 1236. In Nationwide Mutual Insurance Co. v. Clay, 525 5o.2d 1339 (Ala, 1987), Ihe supreme courl upheld an award of $1,250,000 in punitive damages and Indicated It was willing to uphold "subSI(lnli(l1 jury awards (or damages, even in excess of $1,000,000, when the faclSwarmnl such an award ." II.J. at 1344. In Clay, Ihe insurance com[hlny belatedly made a [Jarlial p<:tymenl under a disiI!)i lily Income policy, Ihen argued Ihe In sured had misrepresented his II\ co me In hi s application; yel, Ihe company continued 10 demand and accept premium payn\ents, Id, at 342-3, Witl such substantial punitive damage i1wards be possible in thl'! futurer Punitive damage awards for bad failh claim s which accrue after lunl'! 11, 1987, ilkI'! most (Jther civil aCllol\S, a~ Ilot to exceed $250,000. Ala. Code § 6·11·20 et. seq, (SuPP, 1967), The new statUIOry CilP on punitive dam<lges, however, contilins

114

three exceplions. Alii. Code § 6-11-21 . In particular, Ihe fi rst exception slates the $250,000 cap dOOfi n(lt apply If an ~rd of punitive damages Is based upon "a I)attern or practice of Intentio nal wrongful conduct, CV<!n though the damage or Injury was inflicted only on the plaintiff." Alii, Code § 6-11-21(1), The second and third exceptions do not apply to bad faith or fmud clilims imd, therefore, ilre not addressed in this Mtide. AI. leasl for the foreseeable fU lure, large punitive d ll mag~ ........lrdS fOr bad faith claim s against defendant Insurance companies will depend upon the plaintiff's ability to demonstrate the first exception. "a panern or pmctice of intentional wrongful conduct:' This artide will 0(11line the elementsof a successful b<ld faith CII S(!, and then suggest wil)'S in which the plaintiff's lawf4.lr may di$cover whether a dclcndant insurance company t!ngaged In a systemolic course of wrongdoing (i.C!. panern or practice) and If so, prove II. While emphasis will be placed on the tort of bad faith. the methods suggested to avoid the $250,000 cap also may be used in frilUd actions,

L Elements of bad fa ith The tOrt of bad faith I~ fOunded ul)()n an insurance compony's implied-in-Iaw duty to act In good f<llth and de<l l fairly with Its Insured. The Alabama S up~me Court first recognized the tort of bad faith in first [Xlrty insurance ..ctions In Chavers v. Nlltional Security Fire & Casualty Co., 405 So.2d 1 (Ala. 1961). Chavers teaches thllt Ihe dUly is I"IOt one of due care; rather, bad faith lies only wherl'! the insuralICe COl'r"lpany has Inlclltlol'l3liy (Ollie(! 10 perform In good falth . ld. a15. 50, lorexample, In Pruden/ial ln5ur,lOCe Co, of AmeriCiJ v. Coleman, 428 5o.2d 593 (Ala.

J, Silvernail

1983), where an insurer's decision not to pay iJ claim under a health policy was based upon a "mistake, perhaps a negligent mistake," the supreme court found a lack of "dishonest purpose" and, thus, held there W,l S no basis for ~r ingon the bad faith claim. Id. at 598-9. Under ChaverS, a bad f"i th claim may be! proven in one of IWO WolySagainst an insur<lncc comP<lny which In tentionally (efuses 10 setlle a di rect claim. The plaintiff moly show there was "no lawful basis for the refu sill coupled with actual knowledge of that fact" or, alternatively, that there waS "intentional fliliure to determine whelher or not there wa s any lawful basis fOr such refu sal :' Chavers, supro 31 7.

,In

March 1990

Avoiding

Damages ~

The Alabama Supreme Court elilborat· cd on thc meaning of this two-Uer le'Stln Gulf Allanlie Life Insurance v. Barnes, 405 So.2d 916 (Ala. 1981). "No lawful ba-

sis" mny be understood as the absence of any reasonably legitimate or arguable rcason for falling to p.lY Ihc dilim. Id. at 924. This is true whether the deba te coocerns II m<ltter or fael or law. Id. Knowl. edge of Ihe lack of iI Icgilim\ltC or reasonable basis may be Inferred from a reckless Indifference to facts or to proof 5ubmined bv the insured. Id. The second lier Involves an Inquiry into Hwhethcr a

claim was properly InVCSligiited and whllthcr thc results of Ihc investigation

were subjected to a cognltlvc evaluation

Funher; the Supreme Coon of Alabama

In the normal C<l5e in order {Of a pialnIlff to make Out 11 prima fa cie case of bad fai th refu sal to Ilay an insur,mce claim, the proof offered must show Ihat the ptalrlliff Is entitled to a directed verdict on tnc con tract claim and thus, entitled to recover on the contract cI<lim <'s a mailer of law. OrdinarIly, if the evidence produced by either side creates a fact Issue with regard to the validity of the claim and thus, the legitimacy of the denial Thereof, the tort claim must fail and should not be submitted to the Jury.

has held thilt whether an InSurance com·

pany is justified in denying II claim under a policy must be judged by what was before It at the time the decision was made. Nalional Savin8S We Insurance Co. v. DuHon, 419 So.2d 1357 (Ala. 1982). In Nationwide MUlUallnsura nce CO. v. Clay, supra, (or example, the supreme court found that evidence as to a dispute CM!r the amount cJ berlCfits c:med the insored was not relevant to the propriery of the conduct of the insurance comp'lflY because the issue sunilced after the time at which the insurance company denied the di sability clai m. Id. at 342. The pl(llntiffs burden of proof In a bad faith case is summarized in Nalional Security Fire &. Casualty Co. v. Bowen, 41 75o.2d 179 (Al11. 1982), as follOYlS ~ (a) an insurance Contr(Jct between the parties and a breach thereof by the defendant; (b) an intentional refusa l to pay the insured's claim; (c) the absence of any reasonably legitimate Or 3Jguable rea500 (or thaI refUs.ll; (d) the Insurer's actual krlowlooge of the abscnct of any legitimate or arguable rcason (such "knowl_ edgc,H as mentioned earlier, may be In(erred (rom a reckless indifference 10 the facts); Ie) if the intentional failure to determine the existence of a lawful basis is relied UIXln, the plllinliff must prove the insurer's Intenllonal failure to delermine whether there is a legitimate or arguable reason to refuse to pay the claim. Id. at 183. In Na rionill Savings Ufe InsuranCe Co. v. DUIIOI1, supr,l, the sUllrcme court adopted what has become known as thl! "directed IICrdiCt Qn Ihe conlr.lCI claim standard";

Id. at 1362. The qUllllfylnglanguilge, "in Ihe normal case;' has prOY@n to be problematic In liS application. Recently, in Burkeu v. Burk~1, 542 So.2d 1215 (Ala. 1969), the supreme court wrote that it had not yet (ormulatcd a general rul e for dl'Ciding whether a claim is an ordinary or an exTraor(linary bad faith claim. Id. at 1218. The court stated that analysls has been made on a case-by<ase basis. Id. In Continental Assurance Co. v. Kountz, 461 So.2d 602 (Ala. 1984), the court found that the evidence of the Insurance comp..lny's Intentional faih,lre to d~er mine whether Ihere was a lawful baSii for denying the Insured's claim was suffl· clent to render the case "extra()rdinary:' Id. at B08. The Insurance company's re(usalto pay for the insured's oral surgery was apparently based on a diagnosiS found In The medical records. but the comilany failed to In\ICSllgate other reports of the Insurt.-d's traumatic Injury.

Id. In another Clt.1mple of an "e~traordi nary" c;a$C, lones v. Alabama Farm Bureau Mulual Casually Co., 507 So.2d 396

David H. Marsh i$ a pulncr In Ihe Birmin8ham firm of Pittman, Hooks, Marsh, Dullon &. HolliS, P.e. Marsh Is II susla/ning member of the

of taw. He frcquel1lly lectureSon (he IOpics 01 prodUCI liabJlily, bad lailh and deposifion ;md Itla/lechn~ues. He has authored numerous papers on Ihese sub/eelS.

A/a~ma,

Susan J. Silvernail is a candidale lor Doc/Of of Jur;sprudCllCe.

kfferson

Coon/y, and American Trial Lawyers AsSOCiations. He serves on the Executive Committee of Ihe Aillbama Trial Lllwyers AssociiJ{;on. He rcceived his law de8ree from Cum /)erl/ll1d School

and review." Id. The Alabama Lawyer

liS

(Ala, 1986), the cour! found that the disputed factual issue arose solely frOm a contrad icted oral conversa tion between the Insured and the Insurance company's ngent. The supreme COurt reasoned that If the directed verdict on the contract claim standard wa s aliOONed to wr iI claim on these (~cts, the purpose of the bad faith action would be fru strated. AI· though DIJUOn characterizes the ~extJilOr· dlnary" case as "cx t reme,~ the case of A(>trlil We Insuraru:e Comp.1ny v. Lavoie. 470 So.2d 1060 (Aln. 1984), Indicates that the directed verdict on the contract claim standard was never meant to be ~unyielding" or given ~unl'Alrsal applicr tion.N It is clear that it is nol always necesS.1 ry to receive a directed verdict on the con tract claim in order [0 preva il on the related bad faith claim.

II. The "ca p" and how to avoid it The new $250,000 cap on punitive damages, and the ClCcepiion thereto. should be considered during the initial cllcnt lnterview. The inccrvlcw should be conducted with an l>ye toward punitive

'\t~

LAZ ER PRINT U.S .A. O..:calUr, At 1-(8001 828·00 16

damages and, more lpecifically, finding a "patte rn or practict" of similar wrong: ful conduct If it ~is~ How can this be doner Of course, thc lawyer must listen carefully as the client e~ptliin s what he or she (eels their Insurance company has done wrong; remember, what the aYerage clien t fet-!s is important, generally, also will be what a Jury considers to be important. The lawyer should obtain all written documents (rom the client, In· eluding the enclre policy of Insurance at Issue, any claims made under Ihe policy and any correspondence scnt 10 or received from the insurance comp,II1Y, Note thaI a claim denial, not JUSt lale payment, genefillly, is necessary before a bad faith claim is "rl pe .~ The Insurancf' policy must be read carefully. If the In. surance com pany has refused to pay the clien t's claim, the lawyer mUM ascertain the eXilct basis (or tha t refusal. Once reasonably Silisfied that a cause of action for bad (aith against a defendant insurilnce company exists, Ihe I~r should determine whether Ihe client knows any other person s who have had similar cxperler't ces with Ihe same Insur· anee company. This could yield valua. ble evidence as to "3 pattern or practice of intentional wrong(ul conduct:' Also, the lawyer should determine the full name and address al lhe selling agent. Contacting the local agent during inves. tigation Orten prCM.-'S helpful; the agent may state Ihal, in hiSor hor opinion, the pmtlcul:'r claim should h~ been paid or the insur.lIlce comp.lny's conduct was wrong. Also, the agent often knOW'S of olher policyholders whose claims hiNe been denied. Such evidence is clearly relevant now in light of the "p.lltem or prilctice exception. Finally, a 11IW~r should not be discouraged If the size of the clien t's contract ct.,im is small. Argua· bly, thc (act thai Ihe claim Involves a small amount makes the claim denial more reprehensible, Further, when Investigating the wrongful denial o( a small claim, the plaintiff's lawyer may smoke out other similar denl(1ls the insurance comp<1ny has made. Another key 10 pf(Jvlng a "pattern or practice of Intentional wrongful conduct" on the part of the Insurance company Is obtaining documents. These documents should include interoffice memora'" dums concerning claims practices, pelt. cy and procedure manua ls used by the H

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11 6

company's emplO')leC5, and past corn-plaint files. There <Ire three primary methods to obtain the needed documents: (I) interrogatories and requests for production under ARCP )) and )4; (2) depositions under ARep 30; and ()} the State Department o( In surance. The plaintiffs lawyer gains the advan· tage if he or she files interrogatories and requests for production at the same time the complaint is filed. If the plaintiff's lawyer files Interrogatories and requests (or production before the defend.mt's lawyer does the same, most courts will require the defendant to re spond first. Also, the plaintiffs lawyer mUSt be per· sistent in order to obtain adequate responses to interrogatories and l"Cquests for productiOn. Rarely will the defendant adt.'quately and complelely respond to Initial discovery, The plaintiff's lawyer who accepts Inadequate responses and does not follow up with appropriilte mo-tions simply rewards the defendant for this practice. The critical information and docu· menlSwhich always should be request· ed In Interrogatories and requests for I)roductl on h\cludc the following: j1) The entire claim file referable to the Insured and policy at Issue. If the plain. tiff has had numerous claims denied dur· Ing a sufficient period of time a "pattern or practice of Intentional wrongful canduel:' arguably, may be established through the pl;lintiff alone, (2) Any ;lnd aU internal memorandums, recordings or writings of any type growing oot or the handling o( the dilim imolved and/or the dedsiO'1lo deny said claim. Many In$ur:lnce companies require their claims emp1orce5 to document, through taped recordi ngs Or writings, all conversations with the Insured concerning the denial of a claim, For e_ample, memorandums or recordIngs ml8ht reYeal a pan lcular claims employee recommended that thc claim be paid or represented 10 Ihe insured Ihat the claim would be paid. (3) A listing of current and prior l;lwsuits a8ainstthe insur;lnce company alleging bad (i11[h, fraud, outrage, mis,.representation. and breacn of contract. The Jist should include the jurisdlctiOrt of the lawsuit, Ihe date on which it was filed and the name of the plaintiff, Such Informallon Is clearly disccwerable, ilnd

March 1990

perhaps admissible, by vlrlue of the "pat. tern and practice" exception found in § 6-11-21(1). (4) Copies of all policyholder complaints sent directl y to the insurance company or received by the company through the State Department of Insur. ance. MOSt slate departments of Insurance send copies of policyholder complaints to the insur,lOce companies Involved, Such complaints may be relevant to sho.Y upattern and pr.!ctice" and, also, to show prior notice of a problem by the insurance COml)3ny. (S) The names of all persons Involved In any way In the dl.'Clslon to deny the claim at Issue. (6 ) The namQ5 of all seiling agents In· vol\lCd in the sale of the policy. (7) Information concerning whether the policy Or contract at issue has been declined or amended by any smte depanments of Insumnce. (8) A cop>,' of the actuMlill memoran. dum or memorandums generilted when the policy W.1S flm compilLod. Insurance companies use such memorandums to set premiums and insure profllabl1lty. (9) A copy of the Loss bperience bhibit concerning the same Iype of poli. cy Or Contract for Ihe years prior to and Including the sale of the policy al Issue. This document Is required by almost all insurance departments and shows the ratio between premium dollars received versus claims paid. Where required, II must be flied annually. The Loss Experience Exhibit may con tain evidence that the Insurance company does not pay 115 claims, does not meet state ratio requirements or that the policy valuc Is minimal. (101 The corpor~ te history of the Insurilnce company, Including all siSler ilnd parent comlhlnles. (11) All reprimand s or wri tten C'lidence of any diSCiplinary actions against the InSurance company or its agents by officials of any stille. (12) Ali training materials usM by the Insuromce comPd,¥ in Its sales and claim departments, Including aU procedures manuals which govern the handling of claIms. The plaintIffs 1""'VCr should frame his or her notice fOf deposition under ARCP 3Q(bl(S) and (6) soas to include ilU documents not CoYered during InWal paper The I\fabama lawyer

dlsc(W(!ry. Of course, where lime Is short, a 30(b)(S) and (6) deposition notice may be used as a substitute for requests for production. Requesled documents can an(l should be recelYed prior to the actual date of the deposition to provide the plaintiffs lawyer with adequate oppoounlty 10 ex.amine them, Every person tnvol.-ed In the decision to deny the claim and In the sale of the policy should be deposed. Also, the plaintiff's lawyer should consider taking the depositions of the Insurance company's highest ex{!Cuti\/(! officers. The State Deparlment of Insurance provides il gold minI! of information In My bad faith or fraud action, particularly when attempting to prove "pattern or practice." The Depanment of Insurance maintains nles of complaints filed ag.linst insurance companies (lolr'g business in the stale, nles referable to each poUcy or contract wri tten by insurance companies within the state and files conl,11nlng the IIcflnsing status of insurance agents within the slate. Complaints and formal charges brought against comp<.1Oies and agents also are kepI at the Stille Depart. ment of Insurance. The plaln liffslawyer should obt.. in Ihe (ollO'.Ying documents (rom the State OCp;lrlmcnt of Insurance: (I) Copies of all complaints filed against the defendant insurance com· pally by its policyholders. Surprisingly, a great number of people write 10 the SIMe Dcp;al1ment of Insurance 10 complain of treatment they pcrcel...-e liS unfair by Insurance companies. For cx.ample, durinij the course of one law.iult against an Insurance company whi ch had Issued Medicare supplement policies, this author locale(! mOre thiln 300 such com· plaints written durinij the one-year period immediately preceding the deniill of the claim at issue. MOSI of lhese complaints focused on the amourll of lhe l)remiums charge<l or contained assertion s thai the insurance company Vv'Ould nOI pay valid claims. This type of evidence Is admlssl· ble now on Ihe issue of Npauern or practice. N

(21 The file on the policy or contract of InSuranCe involved. This file will indio cate what changes were required by the Stille Department oltnsurance before the policy could ~ sold 10 state residents. (3) The file on the defendanl agent. The Department of Insurance maintains

a file on Insurance agents In the state. This should contain the licensing history of the agent and any complaints flied against the agent. (4) Copies of all fOlmat charges brought by 'he State Department of Insurance against Ihe Insurance company or any of Its agenls, along with the final disposition of thc charges. (S) All correspondence bt>tween Ihe State DepMnlCnl of InsUlance and any officer or empl~ of Ihe insurance comlXlny. (6) 1'1 complele list of all agents licensed to sell for the Insurilnce com· Po1ny for a period beginnins five years prior to the claim denial. These former aKents should be conlaclCd and q!,les1I0ncd about the company's claim pay. ment history.

III. Conclusion It is somewhat Ironic Ih~t J statut(> Intended to l imit I)unltive damages actually will result In broader discovery and the introduction of L.... idence of prior wrongful acts. H~r, the clear language of Ihe statute allows and, indeed, demands the introdudlon of any evidence Indicating a P'lllern or praCtice of Intentional wrongful conduc t. The general wle disallowing evidence of prior similar wrongful acts by a defendant no longer applies in bad failh and fraud actions against defendant Insurance com· l)dnies. The trial practitioner should use all of the lools dIscussed above in an ef. fort to locate policyholders, agents oilnd documents. and take full advantage of Ihe "pattern and praCliceNexception conI,lined In Ala. Code S 6-1),,2 1(1). •

Seaelonery for eh e Legal P r o f essional

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117

Legislative Wrap-up b y Robert L. McCurl ey, Jr.

The Alabama law Institute has revised its bjU to completely fcwrUe Alabama's adoption law. The bill is Rcpro5Cnlali~ (H. 256) by Rel>rl'Sentati\les Beth Marietta-lyons, Mike Box, 8111 Fuller, Dutch Higginbotham ;loci Jim Campbell; In thc Senonc (5. 269) Iyt 5cnators Charles langford, Fr.lnk Elils, SIeve