Lawyer 3 93 web by Alabama State Bar Association

97% of AIM-Insured Attorneys Renew Their Malpradice Insurance With AIM APPLICA TlON

They know the importance of insuring with a company that is here to stay and the danger of being left without coverage by other insurers who may not be committed to serving Alahama attorneys. All malpractice insurance companies are NOT the same:

AIM: For the Difference (We're here to stay!) "A Mu tua/Insurance Company Organized by and for Alabama Attorneys" Attorneys Insurance Mulual of AlaDama, Inc .22 In"....ness Cent.... P arkway Suite 340 Birmingham, Alabama 35242- 4820

Telephone (205) 960-0009 Toll Froo (600) 526_1246 FAX (205) 980-9009

路CHARTER MEMBER: NATIONAL ASSOC IATION OF BAR_REI:ATED INSURANCE COMPANIES

NOTICE OF ELECTION Notice is given herewith pursuant to the

Alabama State Bar Rules Governing Election of Commissioners.

Bar commissioners will be elected by those lawyers with their principal offices in the following circuits: 8th; 10th, places no. 4, 7 and Bessemer Cut-off; lIth; 13th, place no. I; 17th; 18th; 19th; 21st; 22nd; 23rd, place no. 1; 30th; 31st; 33rdj 34th; 35th; 36th; and 40th. Additional commissioners will be elected in these circuits for each 300 members of the state bar with principal offices therein. The new commissioner positions will be deter-

mined by a census on March 1, 1993 and vacancies certified by the secretary on March 15, 1993. The terms of any incumbent commissioners are retained.

All subsequent terms will be for three years. Nominations may be made by petition bearing the signatures of five members in good standing with principal offices in the circuit in which the 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 30, 1993). Ballots will be prepared and mailed to members between ,..lay 15 and June 1, 1993. Ballots must be voted and returned by 5 p.m. on the second Tuesday in June (June 8,1993) to state bar headquarters.

THE AWlA.M.A lAWYER

March ]993 / 75

BRIEF Volume 54, Number 2

March 1993

ON THE COVER: re~ect

Afield 0( daisies in Alabama

the newwannth uf spring.

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. ... 132

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76 1Mar<;h 1993

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THE ALABAMA LAWYER

PRESIDENT'S PAGE In a democratic society, there must be one fundamental rule: "You shall not rationjuslice" . - uamed Hand hose ",ho criticize our profusion complain thaI quality legal servk.. are unavailable to the pOOr and the middle clan. As • re,ult ()i Alabama's soaring poverty population. 20 POTcent of the citiz.ms of Ihi, stat. are excluded from partie· ipation;n our jw;tia system. The Bill of Rights guaranteu, citi",n 'Milled with a crime the right to couruel, even at public expenst if nee· ...... 'Y. There is no such right in

Ia~r

may use to fulfill his obligation to the disadv.!.n·

"'"

I. Participation in the [nterest on Lawyers' Trust

Accounts ([OLTA) program with the AlaI.>ama Law Foundation. Inc.; 2. Participation in the Alabama State Bar Volunteer La",wrs Program; and 3. Contribution to the Fund for Equal Ju.stice . The Alabama Law Foundation. as the . ecipient for the JOLTA civil mauers, however , ,,'here Ihe funds in Alabama, continua to be stakts are often equally high. The on. of the premier programs in inability to afford CO\lnstl can have a devastating impact on th. pOOr the country. Sixty·thrte percent of Alabama attorneys. who by the because their legal problems often nature of their practi ce maintain involve basic human r>«d~ such as trust accounts. have oIected to food. 'he Iter, medical care and participate in IOLTA. The adminis· physicatloalely. The simplest civil trative costs of administering the proceeding can be O\'erwhelming fund h~v. run about 8 percent. to. perron wilh limit~ eduriltion where the national ~\"erage for or experience. Without counsel. charities is 18 to 20 percent. The ju,tice is often denied. money gets to those who need it I am aware of no other profe.· with a minimum of red taPf'. In sian where the legal and moral 1992. l.l million dollars was genimperatives to .. "'" the pOOr are erated for legal aid to the poor and s<> gWlt as in ours. The law of our Ct....." . III. S..... II. ,Jr. the administration of justice. I state provides that no la~r shall urge you to continue your particirejoet for any consideration per· pation. or. if you have not done so, I<lnal to himself the cause of the to begin your participation in this W<.>rthy program. You defenseless or oppressed. n4 ·3·Z0 Code of Alabama. may do so by writing or calling Tra<::;, Dani.! at the .late 1975. Rule 6.1 of our Rules of Professional Conduct bar headquarters. admonishes a Ia~r to .. nder public interest legal ser· vice. Th e comments to the rule state that th e basic Two yem ago. under the leadership of then·President Harold Albritton. the Alabama State Rar Volunteer responsibility for providing legalseTVic.. for tho •• Lawyers Program was established. This is an organ ized unable to pay ultimately rests upon the individualla",wr. It call. attention to the fact that the personal involvepro bono program which helpS guarantte the disaoh-an· taged have equal a<US5 to the law and provides opportument in the problems of the disadvantaged can be one of nities for attorneys to participate in the proce .. of the most rewarding experiences in the life of the lawyer. making our legal system W<.>.k for """l)"One. Ry getting Regardless of professional prominence Or profenional involved in this pro bono ~ivity. you C<ln see an immeW<.>rkload. we are instructed to set aside time to partido diate pOSitive effect on another human being's life. Volpate in the prOVision of legal se!Vices to the dilo3dvan· unteering your slcills and upertise to another p<'TSOfl in taged. Moreover. the AmeriC<ln Bar As&aciation House of crisis pr",ides a level of personallo3tisfactioo often differDelegates has formally acknowledged the bas ic responsi· ent from the day·to-day practice of law. As. has been said bility of ."ch lawyer engaged in the practice of law to provide public interest legal se",ieu without fee, or at a by lawyers who regularly include such work in their pr~ice. pro bono is "good for the professional soul." In substantially reduced fee. in the areas of poverty law. civil rights law. public rights law, charitable organiZ1ltion repa time of increasing C<lreer dissatisfaction among ~tto. · neys. it may be a way back to the essence ofwhat being a resentation. and the administration of ju.stico . In Alabama, thor. are at le.,t three vehicles that a (Ctmlinued "" ~ 84J

18 f March 1993

mE AlABAMA I..AWVER

POLL Punitive damage awards continue to draw the attention of the business community. and indications are that efforts to legislate Utort reform~ will be renewed. In your opinion. are the punitive awards returned by Alabama juries too high? Are the courts providing an effective review mechanism of large assessments? Is Alabama being unfairly singled out for criticism about its jury awards? Please lake a few moments to respond to the following questionnaire and then fll}( it to state bar headquarters. clo ~l argaret Murphy. al (205) 261-6310. NO U\TER THAN March 31, 1993. If you do not have access to a fax machine. you may mail it to P.O. Box 4156. Montgomery. Alabama 36101.

PUNITIVE DAMAGE AWARDS I. Punitive damage awards in Alabama are 100 high.

a. _

Agree

b. _ _

Disagree

2. Punitive damage awards returned in this state adversely affect eeonomic growth and public perception of the business climate in Alabama. •. _ _ Agree b. _ _ Disagree 3. Trial court judges in this state are generally responsive to high punitive damage awards and will grant a remittitur. •. _ _ Agree b. _ _ Disagree 4. The appellate courU of this state are generally responsive to high punitive damage awards and will grant a remittitur. a. _ Agree b. _ _ Disagree 5. Some type of legislative action is needed to address punitive damage awards in this state . •. _ _ Agree b. _ _ Disagru 6. J would favor legislation which would limit punitive damages to a specific multiple of actual damages. a. _ Agree b. _ _ Disagree 7. I think that the whole issue of punitive damages has been blown out of proportion . •. _ _ Agree b. _ _ Disagree

Please Nole: Since the January issue of the Alabama Lawyer was published close to the end of the month. many members did not receive their copy in time to complete the January poll and fax it in before the deadline. If}'<lu were unable to complete the January 1993 FacWFAX Poll and wish 10 do so, it must be completed and returned by r.larch 31, 1993. The results of lhe January and March surveys will be published in the r.lay 1993 issue of The Alabama Lawyer. See page 105, nlE ALAIIAMA I.AWYER

March 1993 / 79

Here'sWhat Lawyers Who Have Invested In Our Time Saving Knowledge Say: , '.-"'~ts lIS lillie awti m~PIf1 .• Witt ~PP«j~B (o~1I!(1 ~ljn6 fhil

rIIpid llrll;" 11'1' tn't affimllllll'ait and lNil '11 sWl'tr alld 1m c,mp/ttt fIlblitati,,"" With ALtBAMA fAll' Wrdl, 11'1'8f1 f/l< IAI( f\!mmariN almom 1/flit lIS the liltS nf rrltlUld.J J ~ L T<rnbodo, r..,w & w.,.., God!den.~. , ' ,..n immtdialt altrLlgTtIIlimtlllrtl'. ..a

raiM.bIt, jlrWlil8/ rHJ ",jib ISJlrist, tlsy-UJ-rtaiJ, II((UrRIi' IUlm.rit~ kljJi(Rlly frjIInizrd by IDurl lind 1t9"11ilpU. J J

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I "ad uti lIS( ALABAMA LO' IIl'dl,: Ilgim Ill( rd!Jl in bOlFinB lfMUIIStlllltrt dtcidtll nil Ww rbty

m,y 4fu/ lilY, dimlJ'Jiln. It is illralMablt t.I the bsy prMtitiolllT. J J 1omA. """"" I<. Migkr»to & IiIrrIM, ~-.

, 'OUT ditnlwptr/IU /0 stIly alm,uh!,/I dll'lkptlltnts. Ofttn fbi, rtfuim sptntiing IIMbil/.tlbit rimt. ALABAMA In Wtdlyis rltt fosrntntibm ,",itt RvailAhIt,giring 1/1 alltlx information II'( "rrll and il t.ltrJa klt 1m rim( III lISt. Our dimtl ";n

YyW. 1>ck>:>n. jl(bon & ~ C'*""" IIobomo.

udlWwin.JJ

(hMenI. C'*"'" c~ SOl AIIociation)

MidI!II L Itt!. W>OO\, ~ & ktI, ~ ~

" Ascourt attfJrlleys. we must itay decfstolls 011 a ttmely

flbreffst of appellate btlsts~ ~

HO\YeVi!r, the fJUblicaool1l ava ilablt simply did not meet all rrrt needs. One does flO! addrt'11 all the !leI:isiom, the others were mU(h too OOw, and computer servictl too expensive in both ~me and mooey. loeeded a weelUy alert. a fan. concise summary of !leI:isiol1l to make me aware 01 all developments >0 I could immt'd iately use the ones importam \0 rrrt pra<:tice. k; an answer I created ALABAMA law WeeIUy. The response has Deen oveowhelming. Our subscribers incllJde hundreds oIlav,ytrs who are now saving time and mooeywhill' 3quiring the knowledge they need, fede<al and state judges, r.braries, insuranc:e wmpiln~ and banks. We're the new lid on the block and we're here to stay! I urge yoo to bKome a subscritJer today and bKome a part 01 the pra<:ti<:e that are set~ng the new standard.

J. Duane Cantrell. Editor

J.O . U or At . 1915; Il M. To. , U 01 HA, 19!O , P,I.al . P,ac,TO" • • In Hoy, . Coun •• 1 2,,,· Adiunci .'01 U 01 Al Sen 01 lo .... (orOdue' . To, Prog ,am )' 1992

Time is Money. Now You Get More of Both with ALABAMA Law Weekly, aWeekly Summary of Alabama Legal Developments. WlJy are Mo,'e alld Afore

AttO"IUYS ClJoosillg Alabama Law Weekly?

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The reasons arc simple.

Each week, AlABAMA Law Weekly provides subscribers with succinct,

easY-To-understand summaries of all Alabama Appellate Court decisions almost as fast as the decisions are released.t

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SubKribe [0 ALABAMA Low Weekly

EXECUTIVE DIRECTOR'S REPORT BECOME AN ART PATRON

Ii il

he bar usoci.tioll$ in twQ of our sister jurisdictions haw m:ently undertaken

to acqui re an art cO)l\ection for Iheir headquarters. They are enjoying th e SuccUs of thei' undertakings. Art has always appealed to m. and through the year}, Anne and I have picked upa few paintings by local artish who we •• oxhibiting !m,ir tal.IlLs:. We di d

not purchase for any ruson Wf: liked the paint. ings. We attend ~",l gallery .heM'S each year and haVfc md other than

art dealers who ask me about their acquiring ·corporate art" for Our ntw hea dquarters bu ilding for a f••. Quit. candidly, the cost for such a service was not in our

budget. I had given serious thnught 10 contacting SOme talented artists with lawyer connections to inquiu if they wnuld comidu donating a work of art, such as a painting. sculpluu or other accessory in honor of or il$ a memorial to a relative, to be placed in OUT new building. We have quile an txpan~ of wall space which would be ideal for use as gallery .pace. Also, we have a number of aUraclive wooden piece. which new a vase, bowl or tablelop sculpture. Alter learning of Ille successes lilat other associations are enjoying, I decidtd to take this OppOrtunity to make an appeal to tllo$t SO indi""d to help us build an attractive art collection for OUT new buil ding.

82 1 March 1993

[n .. much .. " beggars can' t be choosers." 1 would not presume to luggest eith.. ,ubject matter or medium. We have many neutral wall. that could accomodate painlings of most any .i ~. or oombin. tion of ooloTi. [f y<lu do not wish to donate a piece of art and, irnlead, make a conlri bution for luch. work to be purchased, this alter· native would be equally appredated. Many of our members or th. ir firml have .. t.nlive personal and <orlXlrate collection,. Perhaps you would con,ider placing an artwork on loan for di,play. Each piece will be appropriately cataloged and the donor permanently acknowledged. I know many of our members who e njoy art .hows and gallery openings. 1 hope they and th eir artist friend. can help ul crute an appeal ing collection for ou r headquarters. Help us become the third bar usociation to acquire its own collection. The Alabama State Bar Foundation was. recent beneficiary of the generosily of two of our mem be ... Former Pre.ident E.T. Brown, Jr. of Birm· ingham and fo rmer bar commissioner Roy L. Phillip, of Phenix City havt made ,ubstantial book donations 10 our expanded library facilities. Like 50 many of Our forrmr bar lead.rs. these two OOn· !inue to givt 10 enhance their profe.. ion. Thanks. E.T. and Roy. •

THEALABAMA lAWYER

.. WiI\IlClL .nniM' al an uotic ~ or on a parlic:Ubr lubjtct TN-IU'! ~" [)iant al 1-8(lI.}.J5'.fi I ~ for a ~ltndar and in/or_ lion. Ton:sc rvr I

~na room lor 10 (\eplli· tiol"l.~" !)jant al 1 -800-3S4·61~.

... ..

Qu~tiOnl ,tprdinll the pufCIWt of your occupation liCt~ 0 1 pa}..".nt 01 dutS~ ~\l Alice Jo 1\ 1 .800·354·6 1 ~ or

(2()$) 269-1$1S. ... Want to join the Lawytr Refurill Service! Call Kathtrint at 1.aoo·392·S66Q· .. 11 you atttnded or will ~ atttnding a Clot seminar thaI hu not betn apprO\'td 6154 for CI.t crtdil. ~l\ Di~nt 1.800.354. fOT iIl'pll~lion inforTN-lioI"I. ... 1"ht ltalt ball fAX num~r . _in oIf«<. is IZ{)5) 261.6310. .. To fAX wmtllling lOW CtnltT for

ProfUsioN! R~bi1iIY.

the numhtr is (205) 261.6311. ... 1"ht ttltphont number to roch tithtT offict is (205) 269· ISIS. Mon<.IaY IlIrOOJl,b

r OdW. II ~m. IOSp.m.

~, 7"- &.tt.t &.. ... Cd your ballots in 10 lbte bllT heid· quarltn by 5 p.m. on July I~. 1993 lor tlection 01 pmidtnl.tltct 01 tht stalt bar,,"\d b)I 5 p.m. on JuM 8. 1993ior tlection of bar commisI~r lor your diltncL .. Judiciil Award of Mtnl nomiMliorIs au due at stalt bar hud(lU'-rltH by ~ 15. 1993.

THE ALABAMA LAWYER

MlOrch 1993 183

Pnsldent'. Page (Ccnlinued from page 78)

lawyer and a professional is all about. I urge ~ou to contact Melinda Wa ters. director of the Alabama State Bar Volun· teer Lawyers Program. at 1M) 269·1515 in Montgomery. or write for information materials at P.O. So>< 671. Montgomery, Alab.1ma 36101. In the mid-1970 •. the federal legal serviCe! programs then in effect were reorganized into the National Legal Services Corporahon_ Legal .ervice. in Atab.1ma now consist of three programs administered from offices in Huntsville, Birmingham and Montgomery. wit h regional officu allowing for ntar-

statewide saturation. In effect. Legal Service. programs in Alab.1ma provide a statewide law firm for the poor. u-gal Services programs ctOSfd almost 30.000 cases last year. but it is estimated that twice that many went unhandled because of money and manjlO'Wer sho11ages. federal budget cuts. innation and tho rising po~rty rate have crealed a dilemma for the state', three field directors. They must have funds to relain the ~rs who are presently on their staffs and to hire additional lawyers to meet the ever_gT(l'loO.ing need. There are 800.000 people in Alabama who are eligible for legal service usislance, Ten }'eaTS ago. the ratio of eligible clients to Legal Services lawyeu WaS 5,000 to One. Today in Alabama. a5 a

result of reduced funding and innation, that ratio has climbed to over 10.000 \0 one. II you are poor and need legal help. lawye r. are hard to find and the problem. as always , ;s money. Funding has remained flat. while the poverty population has grown. Alabama ranks lut among the states in dollars spent for legal ... i,tana per poor penon. Recently. the u-gal Services programs ~ mbarked on a plan that ..... iIl en.ble them to provide assistance to more digible dients and 10 do it mo", effectively through the technology they haw or will purchase. The Fund for Equal Justice, the joint develOjlment project of all three Lfgal Services programs. has and will again call on you to contribute . I urge you toOOso. •

NOTICE

RE-APPOINTMENT OF INCUMBENT MAGISTRATE JUDGE The current term of the office of United States Magistrate Judge Elizabeth Todd Campbell is due to expire June 3. 1993. The U.S. District Court is required by law to establish a panel of citizens to consider the re-appointment of the magistrate judge to a new eight-year term. The duties of the position of magistrate Judge include: (1) conducting most preliminary pro ceedings in criminal cases. such as initial appearances. bond and detention hearings. and arraignments; (2) the trial and disposition of misdemeanor cases; (3) conducting various pretri al maners and evidentiary proceedings on reference from the judges of the district court, including civil discovery and other non-dispositive motions; (4) conducting preliminary reviews and making recommendations regarding the disposition of prisoner civil rights complaints and habeas corpu s petitions; and (5) trial and disposition of civil cases upon consent of the litigants. Comments from members 01 the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for re-appointment by the court. Such comments should be in writing and directed to: Perry Mathis Clerk of Court United States District Court for the Northern Dist rict of Alabama 1729 5th Avenue, North Birmingham, Alabama 35203 Comments must be received no later than April 1, 1993.

84 1 ~lan;h 1993

TUE AI.AW1A LAWYER

BAR BRIEFS Bradley. Arant. RQse & White an·

nounces that the board of governors 01 the American College of Construction

Lawyors elected ."'abry Rog... as a rei·

low of the College. R~rs is a graduate 01 Yale University and Harvard University. H. was admitted to the AlaOOrna State Rar in 1974.

- -

Wilbur G. Silhennan was elected chair of the Bankruptcy & lnwlvency Section olthe Commercial Law lkague 01 Ameri· ca during the Seclion', annual """ting. Silberman. oIllw Birmingham finn of Gordon. Silberman, Wiggins & Childs.;s a past presidenl of the Commercial !.aw League of America and cu.,..,ntly ... rvu

burg, was named 1992 Lawyer of the Year by the Young Lawl'ers' Seclion of Ih. Birmingham Bar As,ociation. She graduated from Auburn Univers ity .nd, magna cum laude, from Cumbe rland School of Law at Samford University, Slroh & Permutt of Birmingham ..~ntly committed $100.000 to the Uni· versity of Alabama School of Law', Capi. tal Campaign effort. The gift will be used to enhance the (1\",,,,11 endowment of the law Khool. In recognition of one of the firm's founding partners and a Univers ity of Alabama School of Law graduate. Sirote & Permutl currently .ponSOT5 the Edward M. Friend. Jr. Kholarship fund which provid.. financial .ssistance to outstanding law students. Wolter G. Bridge,. a 1951 admillet' to the Alabama State Bar, WaS recent ly elected to berome a member of Phi Alpha Iklta's Distinguished Service Chapter.

on the board of associate editors of the CUA

" illiam N. Cbrl< and Sam u el H. Fronklin recently

became Fellows of the American Col· lege of Trial Law_

is serving as president~ltct of the Birm· ingh<om Bar Assodation. Franklin is • parlner in the firm of Lightfoot. Franklin. White & Lucas in Birmingham. fle, too, is a graduate of the University of Alab<lma School of Law. Jamu G. Troiano. a 1975 admiUe\' to the Alabama State Bar. recently was SwOrn in as • judge of the Superior Court in New Jersey. the highnl level trial court in that .tate. Deniu Jonn Landreth. a member of the Birmingham form of Najjar. IXna· THE ALABAMA LAWYER

MQII"~U!s.

Sr..

QfI~r

be/np

lemity other than eltction 10 interna· liOTl/lI office. Membership in the Chapter i$ con· ferred pursuant to the unanimous ~I~c· tion by the intematiOT\llI ex«utive board. Bridgu joins. among others , Tom C. Clark, • former Unittd States Supreme Court jw;tice. [n January. O'V<er 100 criminal def."", law;oers from the greater Birmingham area created the Creator Bi rm ingham Criminal Defense ~ A.."eL,lIon. The Association was formed to ensure thaI lawyers involved in the defenR of those accused of criminal offe"",. the opportunity llTld ability to voict their concerns regarding vita l issues of sub· stantiv. llTld procedural aspects of crimi· nal law and the elfect of such upon those individuals who stand accused of municipal. state or federal offenses in the grealer Binningharn U t a, accord ing to CBCDLA Secreta!)' John A. untiTll'. Elected as pr.,ident was C. Tommy Nail: as President·.lecl. Albert C. Jlo\"",n. Jr.; as E:tecutive Vict-president, Connie W. Parsons: u Treasurer. Vir· ginia A. Vinson; and as Secreta!)', John A. Untine. Any interested lawyer Or law .tuMnt should contact the Greater Binningham Criminal Defe"", La,,)'ers Associalion at P,O. 801 370282. Binningham, Alabama

ha,,,,

Clark;., a partner ca..o. in the Birmingham firm of Redden. Mills & Clark. H. is a graduate of the U,S. Military Aradeltl)l and the University of Alabama School of Law. lie currently

William B.

.sworn mas 0..'" Counly DUJrkl Judge PfQQl No. I. wilh his wife.~. and A/Qbomt1 Suprmw Coo,., Ju.s/iOi Hen'l R. SI_II. all ofOuJFK. Judge Mol/hews ow",rr.or:r as /xl, commission'" (or the 33Ft! Circuit. !'hoi" ~ of.lo<Aoimu. 1hI>S«P1otm 51.,.

He is only the 15th person to be chosen to receive the. award. The award WM establi.hed in 1966 by the Supreme f:~ecutive Board of Phi Alpha Delta and was kno.m as the Distin· guished Service Chapter. SubRQuentiy. the award WaS incorporated into Ihe International Constitution of the legal fraternity. The Distinguished Service Chapter is composed of members of the fraternity RI«ttd in re<:ognition of their unw;ual and ou!.itanding Si'rvk~ to the fraternity, It is inler.ded that eltction to the Chapter be the highesl honor awarded by the fra·

35237.

• March 1993/ 85

Notice: Treat Award for Excellence Each y<>.r at its annual meeting in November, the National College 01 Prooote Judg~ honors the ,,,,,ipie,,! of it' pr... tigjoYs Treat Awa rd fo r hcellence. The award was creatoo and nanled in honor of Judge william W . Treat, founder and pres ident emeritus of NCP). Tf>e College annually selects an individual wno has made a significam comr ibut ion to In., improvement of the law Of judicial adminiwalion in proWl .. or relaled lields. The purpose of the award is "to recognize and eocourage achievement, in the field of probate law and ,elated fields ,,,,,,istem with the goa ls of the Nationa l College of Probate Judges." Previous recip ients have been members 01100 judiciary, attorneys and law scr.ool deans or P'o~sors.

Submit ""mination, of qualified individuals toXrea! Award for Excellence Comn,ittee, National College 01 Probate Judge>, 300 Newport Avenue, Williamsburg. Virginia 23187 -8798 . Th is con,millee i<xlude~ three NCPJ oifocers, the president oltne American College 01 Trust and Estate Counsel. and the cnair 01 tne American Bar Association's Sect ion on Real p,operty. Probate and Trust Law. Nominations shou ld indude a resume 01 activities, letters 01 recommendat ion, awa rds received. achievements in pro路 bate and ,elJted fields of law, and any other ,elevant mJte<iaL Nominations received by June 1Sth, 1993 wi ll be cons idered for select ion of the recipient to be inuoduced at the annual meeting November 19. 1993 in Charleston. South Ca,olina.

NOTICE TO MEDIATORS W~h the advenl 01 the new Alabama Civil COurt MediatOon Rules . effective Al.lQust 1, 1992, mediatOon has been officially approved lor use by our stale circuit courts as an AOR approach to settlemef1t in the I~igation process. As a result, mediators will be needed to assist the courts in this new procedure.

The Alabama State Bar Task Force on Alternative Dispute Resolution Is working on the structured impiemen路 tatOon 01 mediatOon. We are developing recommendatOons for adoption 01 (1) a Mediation Model with instructOons. lorms, etc .. (2) standards lor stale court roedialOni. (3) medialo< training programs. and (4) a system 01 central coordination. management and control 01 the mediation effort, which includes maintain ing a slatewide Usliflg 01 mediators. The task lorca is in need 01 an "inventory" 01 our state bar licensed attorneys who are either trained mediators, through instruction and/or experience. or prospects lor luture medliltor status. While stale court medliltor status will not be restricted solely 10 licensed attorneys. we are tocusiflg initially only on this group. Other trained profession路 als. such as lamily coun~oni. will be considered at a laler date II you are a presenl or prospective mediator. please send a lener with your name. address. telephone numbef and 18)( nUmber. with a briel summary 01 your mediator status (e.g .. 1S years' e~pe.-ience in domestic relatOons. Affiefican Arbilration Associa~on certilication. or prospect lor Irainiflg) to: Center for DIspute ResoluUon Alabama Siale Sar P.O. Box 671 Montgomery, Alabama 36101 Upon receipt 01 your lener. you will be mailed an application lorm lor mediator status.

Marshall Timberlake. ctullrperson rask FofCfJ on Allemative Dispule Resolution

86 / Mar<:h 1993

THE A\.o\BAMA u\WYER

BUILDING ALABAMA's COURTHOUSES RANDOLPH COUNTY COURTHOUSE Bg SAMIJEL A. RfJMORE. JR.

The following conlinu,. a hislo'li of Alabama's coun/II

~QlJl\ tIlOIJ"!

courlhouus-

their origin. and sQme of Ihe people u'/10 contributed /0 Iheir grou/lh. The AJabomil lAwyer plam /0 nUl OIl<! counIii's .10'11 in ('(1ch issue of the magazirN!. If goo ho"" ''''JI photographs of earl!l or present courthouses, ptease forward IMm 10: Samuel A. Rumore. J , .. Mig/ioniw & Rumor(', 1230 8rtlW11 Marx

•

Tower. Birmingham, Alabama 352IJ3.

I ,II

"-ndolph County Cout1ho .... ,

mdolph County was created from Creek Indian lands

Iran.fe rred to the State of Alabama aft .. the signing of

the Truly of Cusseta on April 4. 1832. The county was officially established Ikcfmb. r 18, ]832. It was named for John Randolph ofVirgini..

Randolph was a member of a promi · nen t Virginia family. He Wa5 born in

1773 and devoted his life to public .. r,,;«. With onljl a short gap in his years Ii conlinuous .. Nice, Randotph represent · ed Virginia as either a Congr~ .. man or a ~tor from 1799 to 1829. Then. Presi· dent Andrew Jackson appointed him Min· i.t~r to Russia. tn his latttr years. Randolph .uff<r~d from ill hulth and various accounts recorded him as being peculiar, demented or possibljl insane. In any .".nt, he died May 24. 1833. onljJ fwe months after t he county b~aring his name in Alabama was created. Because there were several relatives in Virginia wilh hi. Mme name. this J.ohn Randolph referred to himself as "John Randolph of Roanoke". His "Roanoke" was nol the Virginia t",,·n by that name but . rather. was hi. plantation home. Roanoke, the largesl city in Randolph TIlE ALABAMA I..O.WYER

County. Alabama. was named in honor of John Randolph's home. The juri.t in Randolph County was Judge Archibald Sawyer. The earliest recorded official aCI in the county waS the signing of a p<.IW\'r of attorney attest· ed by Judge Sawyer on JanuaT)' 9. 1833. J.M.K. Guinn wrote a series of artid"" describing early ,,·ents in th e county which appeared in Ihe '·Randolph Toil . er" in the 1890s. He reported that the first county court probably convened in NO\>I'mber 1833 under iI large ool< Iree On the w..1 bank 0/ the Tallapoosa Riwr at Hedgeman Triplell". Perry. appro~i · mately ten miles west of Wedm-,,.,e. Th. first commiuionu·s court met in February 1834. und~r a large mulberry tree near Tripletfs dwelling. and the firsl circuit court was held in April 1834 at the nat T\Xk about one mile west of the ferry. It is obviou. from thue descriptions that all of these proceed. ing. occurred outdoors. The surviving written records from

the tarly days of Randolph County are Quite sketchy, but one thing is known for certain. An Act WaS passed by the Ltgislatur. on January 12. 1833 which made it the duty of the cit inn. of the count i., carved from the recenlly acquired Indian territory to have com· missioners appointed Or to elect com· mis.ione .. who W{luld select suitable seats of justice. The Act required thaI the sites .. Iected be within six miles of the center of the respeclive count ies. Since Triplet!"s Ferry was mort than six miles from the geographic center of Randolph County. a new county ..at site was <ought. In Ih~ fall of 1834 or Ihe spring of 1835. the county seat of Randolph Coun · ty mO\>l'd to Wed~e . It r~main. the county ..al today. Wedow« was named for a Creel< Indian chid, "Wahdoww«", who liwd in a nearby ,illage. SU(lpOsed · 1jI. the court ..ssion held indoors in RandOlph County lOOK place in the Indian chiefs wig..-am. March 1993187

The new town of Wedowee w.., .urveyed and ptatted by Hedgell'l/ln Triplett on December I, 1835. The f,rst lot. "",n: not sold until March 14, 1836. On that da~ . lot l OS wa. wid and ut ..,ide for the purpose of con.tructing a court· hou!e building. The first courthouu building in Ran· dolph Cnunty was a log structun: with a dirt floor built in 1836. In its first )'I'ar. the courthouse was quite primitive. H!>'VIIeVer. court rttOrds from 1837 shnw that expenditure. wore authori.ed which provided for a judge's sut. a clerk'. table. seats for the jury and a substantial door !hutter. In 1839. the cnunt~ built a jail at a cost of $1.000. Up until that time. the sheriff had a difficult time restraining priwners. One report recounted the u .. of a hollow pop lar tree. Annther refemd to a wagon body turned upside down as the Randolph c.,unty jail. Also in 1839. 1M county let a contract lor the construction of a more substan· tial oourtMlI.>t. The existing courtholl.>t was too small tn acoomodate the court's business. Isaac Haker WOn the ront",ct with a bid of S2.ooo. The building was tn be completed by August 1840. The county accepted the structure a. complete on September 5. 1840. On January I. 1840. two noteworthy ewnts took place in the hi.tol)' of Ran· dolph County. The first was the ",.igna. tion of Judge Archibald Sawyer. the county's original jurist. who had urved the county since Janual)' 1. 1833. The second was the changing of the name of Wedowee to McDonald. Thi. chang. was not the product of a vote of the people. but was. instead. the culmination of the peculiar hobby of Francis M. Perryman. a Randolph County resident. Francis Perryman WaS an ambilious.

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l!In

Hut",./< """kt< "".i/s ,"" ~;~ningS of rh. ~ C<tunl¥ c.,.m_ "~l1-educated

and high spirit~d young man who. seemingly. did not have .nnugh to do. On a lark. he wondered what it would take to ,han~ the name of a tOl<11. When he learned that the U.S . POll Office Department gaw out official lown names. he began a campaign to change tnwn nam. s throughout th~ county. He was able tn persuade a number of unsuspecting residents to sign variow petitions for name changes. and then convince p<)l;1 office officials that the name changes wer. warranted. He first succeeded in changing the name of High Pine to Chulafinee and then 10 Roanoke in honor of John Randolph's plantation. Alter this initial success. he proceeded

to change the name of ewl)' post office in Ihe county 10 suit his own fancy. lV~dowe. beC<lme the lown of MeDon · ald. And the name stayed McDonald from 1840 to 1844. when wmtone final· Iy inquired Ihrough Congress to find out wh~ the name w.., changed in the first place. The Congressional investigation uncovered the documents signed b~ unswpecting petitioners who apparent · Iy were nol fully informed of what they had signed. Perryman's name-changing escapade Slopped and the citiuns of the county seallown regained the town's historic name of Wedowe •. As an aside. il is believed that W.dm...... Alabama is the only place in the world which has that name. The first brick courlhouu was built in Randolph c.,unty at W.do"",e in 1857. It was desttO)'l'd by fire in 1896. Lillie is known about Ihis courthouu b<.>cauu most of the Randnlph Cnunty records wen: lo.st in the fin:. A replacement courthouse was bui lt in 1897. The building =t S2l.ooo and was supposed IC> be fireproof. In 1937 . an addition to the courthouse was built at a cost of S40.ooo. from an early photograph, it appeared that this court house was three stories in height and contained a soaring five·story clock tOl<.. r at nne end of the building. o.:spite Ihe beli.f that the courtMlI.>t was fireproof. it burned in 1940. HowtVer. this

THE AU\IlAMA lAWYER

THE ALABAMA STATE BAR ANNOUNCES A

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All )'011 nttd to do to qualify for Simplified Issue coverage is: • be under age 60 • be actively at -work • nOi be currently en rolled in the Plan • be able to answer NO to the tWO questions on the application. Here are the coverage amounts available: T ERM UfE

For Members Only OHering Deadline April 30, 1993

i\GE LI MIT

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$50,000 $25,000 $10,000

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AI! CDvtmgCl indude a waiver of premium feature if you ~'lOujd become disabled. In addition to the Simplified Issue offer, you and your spouse can select benefhs from $25,000 10 $1 million (for non-tobacco users) by providing evidence of your good health .

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Tm: AlABAMA LAWYER

March 1993 189

time the county re<xlrds ",.. re $;I .... d. Th~ courthouse lire occurred on Slit· urday, Augu,t 24, t940. tt prob~bly started on Ihe second floor, and pouibly in the courtroom. Low water pressure hamper~ d the local volunteer fire depa rt ment in it, efforts to $;I,·e the building. The co.t of the damage was ~timated at s.so,OOO. A new cQUrthouse was completed for Randolph County in 194 1. It cosl

5200.000 and again was constructed as a fireproof building. The architect was Paul W. HolTerbert. The structur. Wali buill under the authority of the Work Projects Administration. By the 1980., tho courthouse building greatly needed .. pairs. It was in a .tate of structural deterioration. In the period 19S5 to 1986, the building was gutted and renovated both internally and uternally. Architects for thi' pro-

jeet were Chamblen_ Kiliingworth & Associates of Montgomery. The contrac· tor was Pruett-Sharpe Con.truction Comjlany. The total cost for the courthouse renovation, as ",.. II as a new jail, was approximate ly Sl.S mil lion. The courthouse portion of the project co.t approximately $619.()(l(l. The autoor thanks Randolph County Probate Judge Mack Diamond for his ...i,tance. •

The Calhoun County Courthouse Revisited e Alabama w~"!Ier issue 01 September 1991 contained a feature on the Calhoun County C<lurthouse. At the time the article was wrillen. the courthouse was undergoing a major, multi-million dollar renovation. That «,novation has been completed and an update is in order.

The Anniston Star, in its Sunday edition of October 25, 1992, spotlighted its "oldlnew" courthouse. For more than 30 Y"arslhe courthouse was thctopic of negati .... con .... rsa· tion among courthouse workers, visitors and the public in general. Things were '0 bad at the courthouse that the building was an embarrassment to the citizens of Ca lhoun County. Architects Bill and David Christian faced the enOrmOuS task of addressing the ~mands of the 1990s with an ouldated, though historic, cou rthouse building. In lact. the archi tects had to make four bui ldings into one unified whole. The origill/ll courthouse was constructed in 1900. T"'(I buildings, including the jail, were attached and had been built in the 19405. An anneX that failed t(l match the struclure's historic architectural .tyle was added in the 90 1 March 1993

19605. To compound Ihe chanenge, the architects sought to keep the "old" look of Ihe courthouse, tie the uisting .Iructures together internally .nd externally. make Ihe building handicapped acce ... ibl., provido .dditional office .pac., add modem conveniences, and preserve the cta ... ica] dignity of the large courtroom •. The work progressed despite the di,ruption to bwiness at the courthouse. 1-: ....1'}' effort was made to preserve historic detail •. Wood carvings IWre stripped and refinished. Mi ...· ing crown molding. were duplicated .nd replaced. The 1960·. annex became I"'rt of the traditional courthouse style and no longer stuck out like a SOre thumb. The new north entrance, Ihe refurbished lobbies and staircase. and the cQUrtrooms art particu l~rly noteworthy featur.s. The newly renovated Calhoun County Courthouse was dedicated October 25, 1992. Thi' cou rthouse .ucce... fully skows lhat planned restoralion and preservation of historic structures can be. vi.ble . llernati .... to Ihe wrecking ball. C<lngratulations , Calhoun County!

The author thanks p... iding Circuit Judge Slim Monk for his invitation to tour the renovated courthouse, and for information use<! in this article. •

THE ALABAMA LAWYER

Caution! Attorneys in Active Practice in Alabama Be sure that you have the required occupational license in your possession! Because new procedures lor purchasing occupational licenses went into effect with the 1992-93 bar year, we caution you to be sure you have fulfilled the requirements of the new law and have a license to practice. The dual invoice which was mailed in mid-September provided you with the option 01 paying special memberShip dues (if you were nol in active practice in Alabama) or buying the required occupational license to practice (if you were in active practice in Alabama) on this one invoice. Delinitions of these categories were set oul on the reverse side 01 the form. However, this has caused some confusion and there are a lew individuals who paid the lesser amount for special membership dues rather than purchase the occupational license which is required 01 those in active practice in Alabama. If you are actiyely practicing or anticipate practicing law in Alabama between October t, 1992 and Noyember I , 1993, PLEASE BE SURE THAT YOU HAVE THE REQUIRED OCCUPATIONAL LICENSE. We remind you thatlhe deadline for issuance of a refund of special membership dues was December 31, 1992, Therefore,lhose who haye paid special membership dues and need to purchase a license SHOULD SEND $200 and relum the special membership card. If you haye nol paid dues, you are in a delinquent stalu s and should remil $230. If you have any questions, call Alice Jo Hendrix at (205) 269-1515.

rm: ALABA..'oiA U\YYEII

MI..ch 1993 1 91

UNLAWFUL

by PATRICK S. BURNHAM

n this day

highly le->eraged real

utate tnmsaclions and debt seovice C(lIlCtrn$, the practitioner will

sometImes be faced with clients anxious to relTl<l\li: a delinquent tenanl

Of equal concern are the rights of the tenant in conflict ..... ith his or her land_ lord. The dien! needs.ound advice. This article addresses the two separate procedures under Alabama law for a Ltndlord

to obtain

pO ..e.sion

of real properly

from a lenan!. An action for un lawful

detainer is found at Aloborrw C«Ie 1975, ~6-6-310. A second procedure ill eviction by a ffid avil, found at A/aboma Code

1975. US-9·g0, and known as the Sanderson Act. With tither cause of adion, a tenant normally receives two written notices from the landlord prior to any legal action. The Iwo causes of

action are considered. as well as special considerations in\'(llving public housing auth<.>rili~.

and lenanl bankruptcy.

Un .. wful detainer The successful landlord in an unlawful detainer action ca.n r~r a judgment for pos$«.Sion. as wen as money damages for unpaid rent or other damage.' The unla wfu l de tain ~r ac t ion may thus 92 / March 1993

include all claims of the landlord. The eviction action by affidavit. hO"o>~r. is usN w lely for posse.sion of the property and nothing more.' The tenant is enti· li ed to some advance notice prior to the filing of eithu action. The te""nt is enti· tled to know lhat his Or her right to pru. session of the prope rty is terminating and is further entitled to a second notice of ten days· duration. The first of these prot~ctio", to the tenant concern, termi""tion of the pruseSSOT}" interest. As rttently as Novembe r 16. 1990. in Kennamer Shopping Q>nler. Inc. Y. Hi-Low Fooch;. Inc.• 571 So.2d 299 ~Ata. 1990). the Supreme Court of Alabama identified how the ten · m!"s right to pos.se.sion may be termi · nated . The c.a.se ,tate>: The pruses50T)' interest may terminate in one of thret ways. First. il may termi. nale upon the expiration of a "tenancy by the month Or for any other term tess Ihan one year. where the tenant holds over without special agreement:· §35·9· 5. Second. it may termi""t. upon expira· tion of the term of the teasehotd n txpressed in the Iea..-. §35·9·8. Fi""lIy. a tenanfs posseSSOr)' interest may termi· nate upon "ddault lo~ any of the terms of a Ie.... : §35-9·6. Thus. the duration of the lease Or the specific terms of the lease agreement may provide the tenant with advance notice thaI lhe right of possession is 1..minating. If Ih e tenant breaches any term of a lease ogrument. the right to pO.<seSol\ion may terminat • . The Ala/J<muz

C«k provides a clear and certain way for the landlord to t~rminate the poMtSSOT}" inte rest of the tenant.' Alabama Code 1975.135·9·5. provides that a ten ·day written notice ,,;11 termi""te the posses· SOT}" intere~t of the tenant. Thi~ is some· times known as the "first notice". This written notice avoids the possibility of a dispute between tan dtord and tenant wilh regard to the duration of the lease. the vtrbal agreement of the parties. Or other disputes relating to possession. Terminating the possesSOr)' interest by use oh first notice may be the preferred method. Service of the notice is described at Alabc/ma Code 1975 ~35·9·

'.'

After I.. minalion of the pO'5e5.';ory interest by a first notice or olherwise. a second notite is required by Alabama Code 1975. §6· 6· 310(2). The .. cond notice Or "notice to quit" acts as a demand by the landlord that the lenant deliver possession of the property.' The demand for posse"ion is • ten · day notic~. Challter 14 of Civil Actions a/ ww in Alabama by McLeod provides a good example of a first and second notice. The statutor)' requirement for a ten·day notice or "second notice" is iden· tified as follows: §6·6-310{21 Unb.wful Dflalner. Where one who has 1av.1utty ~ntered into possession of land. as tenant faib or refuses. on ten days demand in writing after the termination of his possessory interest. to deliver THE AlABAMA u\WYER

th( possusion thuwf to anyon~ lawfully entitled thueto. his agent or attorney: and it is sufficient to It.we I «Ipy 01 such delNlld in writ· ing It the ~U11 p~ 01 iJbode 0( the partyholdi .... _ . An un~ul dtliiner complaint form is available from the ci(rk of the Slate district oourt and should be filtd in the state district court where the real property is located.' It is appropriale when completing the complaint 10 identify Ih. dale of "'1V;'t of both the first and sec· ond notice. It is aL!.o Ippropriat. 10 Slat( sp(cifically Ih ••tilsons for the action. such as nonlMyment 01 .. nl or violation 01 SpeCifIC Itasc I.rms, disturbing others or damaging property. The unlawful d.tainn complaint form and Al;Uwn.o. Rulo 01 Civil ProooIu.. 12 indicate that the defmdanl has.lft...... to rrspond. If Ihr ddendanl does not filt an ar\$W!'r, the plainti/l' lIllY .~utsl a dtfaull judg. menl. and after the 14-day apP(il time has elj'lired.l j~mtnt (".lIn be stClIred.' Th. J'l,articulars concerning servi~ of proc.u should lit nOI.d by Ih. practi· tioner. Alaboma Codt 1975. 16·6·332 was am.nlltd March zg. 1990. Prior 10 lhe oumndmtnt. JoeMct COIlId be ptrt"tct· td b» IwIiIlll noti« of the action al the I.....,rs usual pbaolibode.. Thiscauscd due pnxas tOI'ICl!m$ in 77Iorn/ol'l v. ButWr. 728 F. Supp 619 (M.D. Ab.. 1990). In ruponJoe 10 lhe dut proct.. conce rns. Afabomo Cod. 1975. 16·6·332. wu amtndtd. Ttw pnxt$S Joe"", should first illttmpl ptnonill ,.rvico and thtn attempt to dtl~r lhoe notia to a person found rUidinQ on the p.. misu. If the proct.. strve r is unlucc~uful in th est efforts. the amended Slalute provid« that h. or sht may post the nOliet On Ih. door 01 the pr.mists. and on the same or

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.,....• EtMt_ "-" 50<_

THE ALAl.IAMA I....WYER

following day mU$1 mail I copy 0( tht notice. b» first class mail. to thoe tenanlil the pnmists addns&.' Di~ ..nI oounties lIllY interpret thr slilult in slijIJltly dif· krmt ~ IIId it is suggested that the practitioner ytrify lhoe po'O«dUrt:!i used in the I!(IUnty ...-ht.. ihe wit ",i\l be filtd. Tilt UprtU termf 01 ~ luse agree· menl aoo must lit fully ~ by lhe plXtilioner. If lilt lease terms C(Kl(".Om the righl of poss.euion 0. when a def~ult OCCUrl. this f"t should be noted. The ..cent o:.l5t of Lv"<1um f'unnrJlllomt. Inc. u.llodge. 576 So.2d 169 (Ala. 1991) "'"U dtcidtd Jinuary 25.199 1. He .. the Itasc terms tlIprwly prestrvtd lhoe land· lord's riSht 10 declare the lust in <.Idlult. evtn if CMrdut rtnl lMymenls wue accepted by Ih. Ilndlord. Thf ALabaJ1\ll Sup ....... Court affirmt<.l the INt oourt ruli", thai the upress ItnTIS 01 thr Itasc pnKM lhoe landlonf. righl todtcbrt the IuM in defiull.' Owrdue Tent p.ly .... nls must not lit Kctpttd by the landlord once the first notict if given or Ihereafter. Such an acceptanct 01 payment could act as a waiver of tht landlord's claim. Only whe .. the exp..u terms of the lease p... serve the Iandlord'l right to dtcLart lhe lust ;n defaull should ill CMrd..., rent plymtnt be accepted. Se. Pitper D. AIIIO!.;all'l SignJOutdtJo, Adl.-misirlg.inc. ~ So.2d49(ALa.1990). Eviction _tlon by .ffiNvlt Ci.cumsllnCtl lNy "iolt whtn the landlord _ks poutSsion olihe prvprrty iI$ quick!)' 15 poiSiblt wilhout .. Qard 10 a claim for unJ'l,aid r~nt or prvprrty dam· age 10 tht premises. When a t(nant is "judgmtnl proor or crealing a disturbance or damage Droblems. Ihe landlord may seek .. lief as quickly as possible. Alaoorm/ ClXk 1975. 135·9-80. provides a ClIIISt of Ktion to mett this nftd. (II should be not~d Ihl.t Jdftrson County does not lISt thi.$ proct<.lur~. but ..Iits JOItIy on unlawful dtt."I'ntr.) Tho_. lOry interut 01 the t~lWlt must be Ifrmin.Joled by a finl noti« 00' operation 01 the lust termf. Af before. a second notkt is rrquirtd demandillll dtli,..,ry 01 JlO'SUSion. Once the two wrinen noti<:ts ire properly served. the action INY be commtnad. The clerk 01 the stalt dislrict court can provide a form for comm encing the letion. This form is styled NOTICE OF

EVICTION ACTION (Summons and Affi· davit in Lieu of Complaint). Ttw sign. lurt of tht landlord. or his or htr illtornty. is required on the form iffi· diI\'it." This is actually an d!'lIbI.it raI.hoer thin i compllini. Once th. fummons and ilfficLwil a.. strvtd on the dtfendant, he or she is notified lhil an eviction "'ill occur ",·;thin stvtn days unless l oounler iffidavil If filed with the sheriff. If Ih. ttlllnt fails 10 respond wilh a count.r affidavil, the form pludinQ provides an or~r for lhe ,h.. iff to deli"..,. possession 0( lilt property to the plaintiff. If the len· int fiils to respond wilh th~ counler ~ldiI\it. an application for dtbult judj!_ mtnl is not rrquired. It is iIIlPfOI>rialt to check with the district court clerk 10 .~ptdilt Iht 1N1t... The various Slitt dist rict courts INY inttrtlrel eviction xtion by affidavil in slightly diff... nt "''i)"S. 11 is ~Nte to check ",i!h the clerk's offict on the p.lrticulars. This ClIU$tolKlion does provide an Uptdiltd procedu.. for the Landlord. The eviction action by affidavil also provides an exp(d ited proc~du.e and ~ ti me savings evtn if tht lenanl ..,ponds with iI coont.. affidavil. In Ihis circum. sta"" •. 1W(l fletors ict 10 tJp(dit. Ihe milt... Fin!. Alabamo ClXk 1975. §359-85, states thil lhoe district court shall Iry the we "on the third daY' aft .. the len.Jonl delivers his or her counter affi· diIvit. " Whm tilt ItIWlt files or returns Iht tounter iffidiVil . Afobamo Codt 1975, 135-9-85. direcu lhoe district oourt to KI immediately." Ttw provision stalts is follows: If tht counl.. amdavit provided in 135·9·84 be mide and IItli"..,red to the sheriff. or depuly sheriff Or con· shbl •. Ih. tenanl shall not b~ ..rT"oO\'ed: but tht offic.. shill im .... _ dialely .. tum lhe ~rocttdings 10 the oourt which issued Jaid writ or proce..: and thoe fXI Or facts in i.. ue shl.l1 be: the .. tried by uid court, and shall SIInd for trial on tilt third day ill.. lhe dtliwry to WI! sheriff. or depuly sheriff Or constable of such oounttr d!'1d.l.vit. Sundilys and legal holidays tu"tptrd. In Iddition to the expedited lrial date . if lhe plaintiff is SUCCtsSful al trial. tilt defendantll..nant is only afforded one day to apPeil t he matUr. Alabama Code 1975. 135·9-86. provides as foIl ........: If Ihe issuu specified in 135·9-85 March 1993 / 93

shall be detennined ~gai nst the ttnant, judgment shall go against him; and the movant Or plaintiff .hall, after the expiration of one day after judgment. haw a writ of possession and, without further delay, be by the shoriff, deputy or constabl. plac.d in full possession 0( the premise!.. In summary, if the tenant responds with a counter affidavit Alaooma Cado! 1975, 135·9·85, provides that the case will be scheduled for trial immediately; and if the plaintiff is succ ... ful, there is only a one·day appeal as authorized by §35-9·86, This circumstance provides the landlord with an expedited procedure,

Public hou.'ng .u1horltl•• Chapter I 0( Title 24 0( Alabama Qxk 1975 concernS public housing authori· ti ... Th. creation of public housing authori ties i. authorized by this group of statutes. A public housing authority is considered a governmental entity. The Alabama Supreme Court in Cuntersville Housing Authority v. Stephens S8S So.2d 887 (Ala. 1991) addressed the issue of whither or not a pul>lk housing authori-

ty is a governmental entity. This case held th.t the Guntersville Housing Authority, being incorpOrated pu rsuant 10 whal is now Alabama Qxk 1975. §24· 1-20, e/ seq.. was in fact a governmental entity. Th. governmental entity wa., thus, subject to Ihe effeci of 111·93·2, which limits the al1100nt of tort damages and thi al1100nt 0( money unMr settl. mentl of lort claims that can be .teo.ned against -goyernmenlal entities"." Public housing authorities, while .gov.rn.... ntal entities" in Alabama. are abo subject to certain federal ,egulat ions which relate to unlawful detainer and tviction. Public housing authorities afford the tenant additional rightl and protections by federal regulation. The rights and protections are in addition to the written notice and state court trial provided by A1ab.:oma law. The practitioner representing a tenant or a landlord should deter· mine whither a public housing authorit)' is invollltd and whether federal regulations apply. Twenty-four efR 966,50 provides that a t.""nl may requesl an informal ..... t·

r - - - - - - - H E A l T H CAllE AU OITOIIS , INC. _ _ _ _ __ _ ,

I-IC ~I MIDICAI)OENTAL MAl.PRACOCE EXPE:RTIi • GRATIS MEDICAL n:AM PREVlEWOFYOUR CAS£: iii tn de¢I ...-.lLllIion 10 aocauln m:I drilnt c:ausatlon, iiabWty I!Id brncl"'Iln samhrIIs rJ. COlt. • GRATIS O1NlCAL CONFIRENCES: ""'.WlI<&r<fuDyw.)OO .upbySlr?, ttr"OOg, each""" IOI ....... dw )OOfdll1.ical knQ.Ydge~~...;m oun.W.shalI behlu!!l.lY candid ~ """...-kIences M menl, CO" If b poor

causal'"

GRATIS 0lNJCAL REPRESENTATIVES TO YOUR OFl'lCE: DII¢l ....;..,.

• GRATIS, DI:.TAlt£O, WRrITEN REPOR1S: Should. 0l$I lit """"l<Ihf rJ. pta'IlIiI, I!Id l.ipOfl )00 dIteli~, ,...WlI be pbstd 10 cl<tJu..J ....,n.

""'-.rd •

o HCAl Baak fEE I. $215. roo in<IIr Mo:m"miI)!l!i d>los! 10 rmuethlnplrl·s.""', ~!i:Ir hi! lJl\dI>'il No mind .. pm>, ... foreign ...,..u, m:I MOlIIfi """" oxpms, HeAl b not .~mpk ..t.mI_"Wln-pt\II'&Ili~plion .. ppon b-OIW700fumsWwgb::lolthl u.s. ""'r hi.. <am!d our ~ prudmt/f. '" bod! pIanlil!" a.Rmt_

I STAT STAT AfFIDAVTT SERVICE AVAIlABLE I HCAI MtdI.,.. Utlplion SupPOI1 Team -..,. s.:.md ~ 0".". 2 Corpomo ~...- [OM, s.m. SlCI

0..-.., 11orid1.10621 94 1 March 1993

Tel~ pholHl (813) 519-80S4 T.,IKOpler (813) 573· 1333

II'< art pIt....t 10 ~ ~ alb.

ing and a formal hiaring with thi publk housing landlord prior to anf judicial action. The failure of the landlord to afford thi te""nt those additional rightl may be used b)' the ttnant to defeat thi unla"ful detainer Or eviction action. Twenty-four CFR 966.5(1, e/ seq.. lOtS out the gri ....·ance pro<.:t<lure and require' mentl for the public housing tenant. The federal regu iatioo defines "grie-.·ance" all any disput e which a ten.nt may have with "'-'peel to a public housing authoriI)' action or failure to act." A grievance may thus be a first notice to vacate or a complaint against the tenant. It prOllidts that any "grirvance" .nhllts the tenant to an informal senl.menl meeting upon request. Upon oral or written notic. by the tenant. the public housing authorit)' must schedule an informal .... eting with the tenant. Tht purpose of the muting is to allow the tenant an opportunity to ha,'I' the issue resolved. Aft.. the meeting, the public housing authoritf must prepare a wrilten summary 0( the meding and deliwr it to thi tenant. The o.pecilie requir.men t , of the informal muting are identified in the federal r.gulation." In addition to the informal .. ttl . .... nt m..,ting, the tenant in a public housing facilitf may r.quest a formal hearing." This h.aring is fo'mal in the sense that both parties are present with witnesses, but should not be considered a judicial hearing wherl rules of evidence apply and a judge Or jury hears the maUer, Twenty-four efR 966.55 sets forth the requiremrnts and provid.. that a written reque.t for the fonnal hearing must be made. " The formal hearing is hild before a single haring officer or a panel.M The public hOUSing authority chooses the impartial hearing officer or panel in a manner ducribed in t he written grievance prOCl'dure of the public h0using authority and as stated in 24 n 'R 966.55. The formal hearing is usually conduct· ed at the public housing authority office or at $0 .... other designated place COn""" ni.nl to all concerned. The formal hearing is conducted by a few procedural guidelines .. t out in 24 erR 966.56. This procedure should be review.d prior to the hearing. The attorney for the tenant and for the public housing authority will normally attend such a lormal hearing. rc-lin.-J I)n ~~)

THE ALABA."IA LAWVER

r---------I I

ORDER FORM

1--------,

o ~nd me Municipal Co .. r",

P,...e,lee anti Pr()(;etlu~ In

Alabama, hard «>vcr, by Thomu O"'(] Bishop for 1~9.00 .

, . .,,·u"-_____________________

o Send me Alabama Mar/gage u"w, hard co,·cr. by Cohen for f49 .95 .

H~rry

5o<...n;..

__________________

o Sen d me Cba ....eterliv/tlenctl by Ch.rles W. G.mble for 125.00.

o Send me 17H lAwof$bop-

lifting by Thom~s B",d Bishop for 125.00.

"'II orders mUfl '0 PREPAID

• Send ,hi. couJ'On with your cbed

o Yes, I'm imclOted ln Ago .... :'

I I I I I I I

M~nId'*

Cotom: InII Pto<_",

(Hlrdocrm) Thornao IItlId ~

$pedaIOffer; Send me ,he four I books lis,cd . hove~, 1127.15 I l!io/."i' which "'p",..,ms 20 % OFF ,he PO. II<»! S9328 I ",subr price of each book . _________________________ "!rrnlngll.m , Al 3S2S9 ~

""1 ""'J'kif" ",

a.....ct.rE_ ....: " CGmpnoM<l .... App ...... h cr.a- W. Gomtllo

THE AU\BAl>lA w\WYER

Tho ~ oj SIIop11lllni, "Gltkle tor ~ro'" onll U.rcho.... Thornao IItlId S;.rq,

March 1993 I 95

Unl••'ul DeQlner

.nd Eviction (Conlillunl from ~ 94)

The hflrine ~ tho!nanl;an opporlunity 10 be hflrd and to prt5o:nt hn or his UK for why Ihe leNnI should be 1I110Wfd 10 sIllY lind ..'hy there has bttn 00 bruch of tho leaH. AfttT tho hearing, thf wrium decision of the panel or hearing officer is prepared, and. cop)' of lhe decision is unt to the lenanl and 10 the public housing aulhority." This decision "shall be bind· ing" on Ihe public housing aulhorily union the boa rd of commisoioneu (board of dirKlon of a public housing authorily) dttermlnes thllt the decision II lhe formal hellring w,u conlrllry 10 law or to housing nllulillion. - This mellRS thit if tho public housil\lliuthorily is unMKUSlfu11l1 the IOrmlI htarin,g. il must look to the board 01 commission· en 0( the public housinilluthorily to (Mnidt the mull of tht formal hearing. Th. above mum Ihal tenants in a public houlinll f/ICilily may utili~e the informal seulemtnt mtetinQ and \he formal hearing to Iheir adYilntage. The proct~ures llrOrd the teOlflt "" opportunily to ruolve Ih. dilPute wilh the public housing aulhority and 10 IItL1.y the lion or unw..~ul IItL1.i ..... suit. The /lClual tennl of II p.lblic housil\lllUlhority tm.e lTe requind by 24 erR 966.4(1 ) to include the foIlowi"ll proYisionl: When tht PHA is required 10 ;l(ford the Imatll the OIlPOf\lII1ily for II hearing undtr the Pl-IA grievlroct procedure for I gri~ ron«mi"ll the lnu tennina_ tion (set 1966.5 1(1)(1)). the tenancy shllil not lenninale (even if any notice to Vlcllte un~tr state and local law h .. fXpirro) untillhe limt for tht teOlfl! to requesl a grie.ance hearing has e.pired. lind (il II hearing ...,u timely nquested by the lenant) the IIrievance proct u hn bttn rompIttl<!. II should be notl<! tNt louse vioLlotions inwlvil\ll drug· reL1.tl<! crimiNI /lctivily o r criminlllllClivity tllrulening the lIullll o. nfely of residenh do nol require /I Ionnal or iUI infonnal huring. This rtWIt c:I"w\tt is prcMdtd al 24 eFR

me·

966.51(1) and 24 eFR 966.4(1). The pTIClitiontr lIIould 11150 note that Section" Hoosing AuisL1.nce P~ymenu Progr~ ms have separate termination of tenancy regulatioru. separate and apart

96 1 March 1993

from th oft described for the public hOUSing aulhoriti.,. ~nty·four erR 880.607 pTOYida tllll a special Itnnina· tion noli« is rrquir!d in ........ tonWuc· tion faciliti.,. AI. P'rt .~, the regulation ~MfoIlow$:

Ie) TtnniOlliion noti«. (II The owner mUll 11M the bmily II wriUtn notice 01 any propoKd luminalion of tenancy .tating the grounds lind that the tenancy is terminated on a s~dfied date and IIlMsing the family that it lias an oppor_ tuni!)' 10 respond to the O'Io.'I1er. Otlltr portions of the regulalion should be revi~ cor.teming Section" ~ing Aui'L1.nce Payment! ~ In a Illter e.iclion action Ihe L1.ndlord ma)' only rely upon the groonds previously identified in Ille lerminalion notice required by 1880.607. In addition. the Section " Housi", AssisIMlCt PIymenu Progrllms (or uisling housinll hI1iI! P'rticuL1.r gn:>Uflds lOr tennimtion of _iSWlCt ;and lermination of tenancy. Theso parliculars Ire foond /It 24 erR 882210&nd 24 eFR 882.759. The Housing Voucher Program also has .ptci fic terminat ion of ten/lney requirtments as idenlified at 24 erR 887.213. The practitioner sllould be aware of the additional riQht! which are afforded l.nanU under the ftderal rejJU· L1.tionl iIboM.

eOlk oor.cCITIOI c"",,uto,), CO<llncu ""d u .... ljlirld lust$. This provision pTOllidts the bankruptcy IruM" with the opportu· nily to o;urt the breach or defaull in the unexpired lease agrftmtnt Section 365 in part iL1.W: II IlItre 11M bttn 1 debult in ;an t:I«Uto<y cont~1 or unnpired leaH of tilt debtor. tho trwt" may not assume such CO<ltract or ItIIK unless. al the lilm of assumption of such rontFJd or It...... the trUSlff (a~ curn or providu adequate assurance lhal Ihe trust" ...ill promptly cure such defau lt; (b! compensatu or provides adequate UluUnce tllal Ihe lrustff will promptly compensate a party other tllin lilt debtor 10 such rontoo or tm.e or InY lClual pecuniary loss to sucll poorty rcsultil\j from sucll ddlIult; and (c) provides ~e<iuale usun.nce of fulure ~.Iormlnc. under sucll contracl or

.....

This I'f\"IYWon pTOYida tht bankrupt· cy Iru'tee with /I 1001 10 Issist the bankrupt tenant. If Ihe b/lnkruptc~ trustee Is succusful In assuming the unupired lease. th e language of Ihe stalutt requires thllt the landlord reee;"" past due rent and anura nee of future

puformanu.

Endnot •• 1 :l ~

T_nt N,* ..... lcy In the evenll tenant fllQ bankruptcy. it i$ impOrllnt to note II use 1362 rfjlrdil\ll the /lutonv.tic SUy. This statu· tory proYision specifically requires that III efforts to (Onm or nc",..,r a claim 19ainst tht debtor cuse. Tht stltule specifically OIlt.llt., 10 cease "any i'1CI to obtllin poutssion of property of the estate or of property from the estate Or to exercise control O'I'tr property of the .,L1.tt.""I1 The esL1.te in tllis statute refen to lhe bankruptcy nL1.le. This pTO'llision should ~ clur waming to the landlord to CtaH Iny and alillclions regarding collection or posseuion of property. The allom., for Ihe L1.ndlord should file I motion lor relief from stay rtqUQting tllll the '*'luuplcy judge m ter ;an orlltr gnntinillhe L1.ndlord relief from 1362 of the Blnkruptcy Code so thaI the landlord will be penniltl<! 10 p.lrsut the unlllwful de tainu or evict ion action ilIllirut the debtor. ~: Itven USC 1365 of the Bankruptcy

•

_ c - ..~tI+310 _ c - .. .... -.-..

_ ......._... ..._ ..... .... .. ... .. _Il00'''''''',., ..... _c-tln~

~ps.s.o..,~_

Il>o _ _ _ ..... _

....

_"".

_ _ . . So

Tho-.-

•• "" "" """ """ • " TIlE AI..I.8AMA LAWYER

LOCAL BAR AWARDS OF ACHIEVEMENT The Local Bar Award of Achievement has been established to recognize local bar associations for their ou tstanding contributions to their communities. The awards will be presented annually at the Alabama State Bar's Annual Meeting. Local bar associations will compete for Ihese awards based on their size. The three categories are large bar associations, medium bar associations and small bar associations. Following is a list of the categories based on judicia l circuit size:

LARGE 10th 13th 15th

MEDIUM

6th 7th 8th 11th 12th 16th

23rd 28th Bessemer Cut-off (division of 10th Circuit)

SMALL "t 19th 32nd 20' 21s1 33rd 22nd 34th 3" 41h 24th 35th

5th 25th 36th 9th 26th 37th 12th 27th 38th 14th

29th

17th 18th

30th

39th 40th

3151

The following criteria will be used to judge the contestants for each category: • The degree of participation by the individual bar in advancing programs to benefit the community: • The quatity and extent of the impact of the bar's participation on the citizens in that community: • The degree of enhancement to the bar's image in the community. Members of the state bar's Committee on Local Bar Activities and Services will serve as judges for the awards. To be considered for this award, local bar associations must complete and submit an award application by April 1, 1993. An award application may be obtained by writing or calling Keith Norman, director of programs and activities, or Margaret Murphy, publications director, at the state bar, 1-800-3546t54, P.O. Box 671 , Montgomery, Alabama 361 01.

THE: ALABAMA LAWYER

March 1993 I 97

RECENT DECISIONS By DAVID B. BYRNE, JR., WILBUR G. SILBERMAN and TERRY A. SIDES ELEVENTH CIRCUIT COURT OF APPEALS Fede...1 Sent_I",

........

O""II_'-':"""' _ _ nl for tlnilu StaIn v. ~. Case No. (Srpttmbtr 28. 1992~. May the Cou rt inc:.tilM , ddendllnt', Knlt nct bK.iuse ht rommitttd perjury whik IHlitying? Tht EI~nlh Circuit I./ISWIrtd no), holding that i smltncing court may not tnhance the <.Ieftnw,nf, RntenCt 91 .7~91

based on the fie t tht the dtt.n din! commiued perjury durinll the trill unleS5 tlw: court makes i specific finding of facl un,waytd by the Jury's ~erdict. Othtrw; K, the Eltvt nlh Circuit noted. all defendants would b. l utomatically for userling their ,ight 10 tnlif» if they w • ..., found guilty. ~nali •• d

Eleventh Circuit modltl • •

.tenct.nI of proof ..q"l..-d for con.plnlcy conviction U.S. v. CloviJ. CUt No. 89 -901) [Novem~r 13. 1992), CLivi. and Rvtn \"~rt

convicted 0( IIlIrCOlia con'pi racy iUld other offellSf'. On lllpe"l. tilt Eltytnth Ci!"tuit htld tha.l once th.t uistenee 0( " conspinqr is UllblUMd, only $light eviden« is necewry to con· nect I particubor defencbont to th.t con· spirlcy. Argu ing thu the ",light tvidenee" sW>cb.rd was lhe Wf(IIlII dord of rm.w, the de~niWllJ petitioned for rehuring. On rehuring. th.t Court iIImd. mting lhat lhe ",Iighl evicltnce" mndord of review is sel OUI in Unitm Slut6 u. Orr, 825 F.2d 1537, 1S43 ! I lth Cir. 1987). conflicted with nrlier bind· ing precedent. Tht correcl ..undud of r~ would be either Ihe "'ub$lint~1 evidenee" sundard IrticuLiled in tJnilm Sloln. u. Bulm/m, 667 F.2d 1374. 1377 (11th Cir.). cert. <kn~, 456 U.S. 1010, 102 S.Ct. 2305. 73 L.Ed.2d 13070982), or the 'relSonlbl~ minded jury" $I"n· dIord set out in tJnlted 510/6 u. Gianni. 678 F.2d 956, 959 (lith Ci r.), cut. denied, 459 U.S. 1071, ]03 S.C!. 491, 74

othI'1'1

L.Ed.2d 633 0982). However. Ihe Elev!nth Circuit held thai ~n under thtse higher sI.ln<.brdf of proof. the evi· denee of the rurcotia conspincy pre· sented by th.t glMmrnent was sull"lCiont to uphold the deknd.1nts' CO!Nictions.

SUPREME COURT OF ALABAMA _ CRIMINAL A'-oH_ .......... Co.. rt adopt. 0 • .".1. v. IlkCol/um Ex Part' Pilot. Cue No. 1911116 IOctober 23. 1992). Is I defendont in I crimiflll CIK bound by Ihe rule of &1· u. Kenludll whkh prevl!nts l prose· cutor from exe rciling his pe r~mptory Jury challenges in a racia1t~ discrimiflltory mlnne r? The Supreme Courl of AlabarTII a". ...... d )'O's. citing a.\ authori_ ty the recent U.S. Supreme Court decis ion in G.orgio u. McCol/!lrn. from which Ihe cou rt quoted the following language: ITlhe Constitution prohibilS I crimin,1 ddendant from eng"ging in pu rpomful discrimination on the ground of nee in lhe uertise of peremptO<)' chalItnges. Acoon:iinlily. if Ihl State dtmon· st ruts I prim" facit CIit of raclll diKrimination by lhe deftndinls. lhe deftndints mUlt articullte I nd,lly ntUlni expIanalion for pt"~O<)' cha.I-

S()II

'lUI· ""'~ Allhough

98 1 March L993

Ih. cou rl of criminal "ppu.1s Iud extended th.t rult of &limn ~. KcllucIrJI to iIlPly to criminal dtfmdanll. this dedlion lNob th.t ~ion of this standord by th.t Supmne Court ofALibirN. DnIg _nut_I .... tOt" ott•• r

then personel ... . ......I.-.d for conviction fix Par/II D>lber/. Cue No. 1911044 (Nowmbu 20. 1992). Colbe rt,.,.... convicted of Ittempting to dist ribult 3.4 met hylenedio~ymel hamphel amin t

more commonly known IS "ecstasy" or "MOMA"- by attempting to manufac_

ture MDMA. On ,ppu.I, Colbert artued tha.t th.t prost("Ulion f"iled to prO\'t tha.t ht ,,\templed 10 manuf"clure MOMA where the proof showtd "n ,,\tempt to lNfIufactUIT MO!>IA lor his ptTJOllii UK and where th.t definition of mlTlUbcture set out in f20-2-2(].). C«k oF A/i/bamQ (l975). specifICally uempts from thil definilion "tht prep"r'l;on or com pounding 01. conlrolled subill,nee by an indiYidUlI (or his own use." Tht court of cr;mirul "ppolls rtJocted Ihis alllu· mtnt, band on the flOCl Ihil forensic witntSKS testified the lmount of ,lItmi· cals found in Colbert·s apartment would hi"" been sufficient to produce 175-250 tabltlS of MOMA. The supreme court grin ltd «rtlorlri and ~rsed Co lbert·, con"';ction. In Its opinion, the court held lhat the Slate·, bu rdtn of proof reQuir.d it to provt "beyond a reasonable doubt thil Colbert int.nded to manuflcture .nd overtly acted toward rTIInufacluring the drug_ that is. Ihal Colberl intend.d to Ind ow rly acted to pTfpare .nd compound tht drull for $OO\fthing OIhff lhin his

own use." Sued on this OJIinion. il is cit.. that th.t State cannot rely on tilt bet that th.t ittm, in tht defendan t 's pon... ion ,..,.,Id produce, Tflativtly Li~ iIITIOUI1t of In illegal drug to suflicienlly p~ tmt he """» "ttempling 10 mlnufXlure lha t drug. Some <M'rt let indicating lhat th.t dTUll is for ITI()rf than his own use must be shown.

Worth.... CMck proHClltton c.nt.,. on Inl..rt Ex parle Slirucm. Case No. 191 t280 (OK.mb", 4,1992). StiNOll was convicted of first lheft 01 prOperty,

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arising OUI of" check he wrote 10 Tum. er's DiKount Cupeling to covu the purchase and iruullatlon of carpeting II his pbee of bwinw, RLL COITntIics. Tht .... idonee .t tr"'] tit.bllshed thit Stinson Qave Turner a chec k in the amount 0/$1 .616.04 IS paymtnt in full. Turner did not accept the cllt.:k because it was mad. ou t imprope rly. Stinson TIlE AlABA\IA U.WYER

Alabama Law on Time. I ccdd t * han to """"'" Ih\::Iu9'l ~

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promised to delivtr " second clled made out correctly. ttowtrtr. Turner "ttempt~ to c.h the fint ch«k and was told thw the I«O\lIlt on which the chtdc was down was IIIIUd)' .....,rdnwn. That ume eli}' (Siitunllyj Stinson p.e Turnu another check drawn on this same account and "lund him thllt lhere 'Mre ",mc>tnl fun<4 to CO\.. r the check. AllernatM:ly. Slinson told Tum· er tkat if he brought tht check back on Monday. the company would give him "all his money." Instead. Turn., SWOrt oot a "'arrant against Slinson on Tuts· day. AI II 'nult of Tu rner's IIctions. McArthur (who aloni with Stinson ........; an OIO"Iltr of Ihe businus) put" "stop P"ymtnt" ordtr on the check. The stop p,lymenl ordtr \llli:nt inlO dftet tllree diys IoIIowiIli Stinson·sams!.. The JUptl'me rourt ~tfll certior;r.ri to dtttrr1\iOf whtthtr !he jury's ""rdict finding StinlOn guilty of first dtgrtt !heft was ~insltlle gmt "'tight dtht nidtnct. particul/lry wi t h nGard to Stinson's sptdfic in tent to deprive Turn.r 0/ hi. proptrty---.in uSfntial ele· mtnt 0/ Illil crimt.

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J us t in Kennedy, writing for tht tourt. determined tkat u.. SlIte pre· smted insuffICient Mdtnct ol Stinson's guilt: In tht undtrlying cast. Stinson admittedly conducted businw in /I poor manntr. Ht lutifi.d tha t whtn ht .nlered the cont rict. he - . not sure tkalthe Il"KIOfJ' "'as in the account. bul lkat he Ihought Ihal it could b. transfured from anolher RI.L Cosmetics account. The RLL C",melics bank ltatement sho",.d thlll on May 29. the day Turner swort out lhe warrant. the acwunt had a balince ol SJ.224.S7. mo re Ihan enouBh to cov.. the check for the carptlifli. In lCidition. McArthur. not the ~1. initio ated tN stOll ~I onltr on lhe chtck. The .Iop Pilymtnt order was daltd July I, 1990, thr .. days aile!" the ",unnl had \!ttn iMutd. IItfOtt ''''taring out the warnnt. Turner did not bothe r to .ee if the RLL. C",,,,,tics check would be honoml. Based on Ihis decision and th~ court'l earlier dedsion In PigglV Wigglg No. 2QlJ, Inc. II. Dl.illon, 601 5o.2d 907 (Ala. 1992) (unconstitutional uerci.e of power for dillrict ~Uomty to prosecute wrile .. of wor\hlw checks for purposes ol debt oolltctionl. it would appear that. absent proot of actu.al criminal intent. the C(lurt has no desill' for tht sbte', judicial S)"Sttm to btcomt boggtd 00..... in disputn.....,r worthlw checks.

Ex parle Ja(its(m. Cast No. 1911997 (January 8, 1993). Jackson was indicted for murder under Ah,b~ma's newlyenacted "drive · by" shootinG .tatulo. which makn "murder in which the victim is killfll while in a motor ""hidt by i dudly wUpOn from ou t,ide tha t lTO(I(or ""hIde" a capilli oIfense. fJ3A-S40(11(17 ). Cod, 01 AIi:bama (1975). ~r. it was uodispultd IhIoI the victim wllS nOI II iny .. Itwnl time lht occu~nl of a molor vehicle. Despile th is, Ih. trill court den ied Jackson's motion to dUmi$$. "at in, IhIot although "tN 'TlIlI1menl of Ithi' otfenst] i, th.u i ddtndant murders a victim while lhe victim is in a molor ,..lIiel.: th~ Stal. would be required to prove only "Ihat

Ihe Dtfendllnl killed SOmeOne "'ith inltnt 10 c;,use the duth oll person in avehiclo: Jackson petitioned the court ol crimi· nalappe;ois, then the supre ...... court. for writ of m;ln<.limUl dirtcting the trill) judQe 10 dismiu Iht capitlll murder indictmenl Il'turned against him. ",gu· ing that the doctrine of transfernd inttnt im~licitly conta ined in thil State', murder statult-,IJA-6-2(aj(I), COtk of AlabomQ (l975)-could no! be used to supply Ihe additional element required 10 elevale murder to capilal murdtr. In granting Jackson's request for i .... rlt of m&nd.unus, the court first rtCOII· niud the buk principle of ItlltUtOry co nstruclion Ihat ' illItutts crtiting crimes IIIl' to be Itrictly corutrued in favor of lhe accu$td; Ihoy lNy not be held to Ipply to cases no! COvttfll by the words used .•. •" and "should not be ·.. Iendtd by conSlruc l ion·". Ju.tic. Ingram. wriling for the court. conel""· ~ lkat: Un der the fllcls ill.ged in Ille indiclment. Jackson's intent to kill Prickell can certa inly be "transferred" 10 the conduct IhIot actU21lly resulted in I he duth of Robe,ts . However Prickett's 10CIIl ion lin a motor whicle ) c~nnot bo "transferred" to RobtrU 1O as to elevate the cri ...... to capital munltr. First. tho clnr "",tutory ~ of f13A· 5-~O(a ) ( 17). considered toge t her with fI3A·S-40(b) and fllA·6·2(11 )1ll. dots not yitld IhIot ruull. S«ond, ~ prtlume tkatthe Ltg· islature kn()W1 tht meaninG of tht words It uses in enacting Itgislation. Mortover. we iTt convinced tkat the Ltgislature, if it inttnded fI3A· S·40Ia)(l7} toappiy in thi' cast, kntW how 10 draft a statute to lTach IhIot end. 1M court dttermintd thit in light ol Iht fllci that AlaNIN's prior capitlll murder statult had contained a tnnsferred inttnt provision witll ..gard to ctrlllin capital offtnstS which it had no! '""" fit to includt in Ihis pn:wision. the court could nol modify the statute to include such i provision. The court to.ld that: Jackson mUlt kavt "known" tkat his alleged vi~tim was "in I motor TIlE ALABAMA

~WYER

~hicle." II follows then. that for Jackson 10 h~ve "known" that Roberts was in a motor .... hid •• she muS! actually have boten in a motor vehicle. She was not. Aa;Qrdingly, the court stated that the statute, as w, itten, did not apply to the undisputed facts of this <:aU. HO"-"eVI'r. I~ court acknowledged that if the Legislature were 10 disagree with its interpretation, then it could "enacl appropriate legislation to modify the statute and yield a different re,ul t in 5ubrequent caus."

SUPREME COURT OF

ALABAMA _ CIVIL Scope of Jury 1I0lr dire a. to

rela tlon.hip unar in.uranee cove .aga In McClain v. Roulzong, IMs. 191 1347. November 20, 19921. __ So.2d_ _ (Ala. 1992). Roger and Judy McClain were in\"Qlwd in an automobile accident in which Rog .. was injured. The McClain. sued Routzong. alleging negligence and wanlonness. The McClains also sued th.ir uninsured! underinsured motorist insurance carri• r. The carrier elected not to participate in the Irial of the <:aU and agr.ed th~t the polky of insurance it had issued to the McClains provided them with unde.insured motorist benefits. which would

be paid if the McCilIiru received a judg· ment in exce.. of Routzong·s liability policy limits. During voir dire examination. the trial court permitt.d the McClains to ques· tion the prospective jurors as to whether they ~re stockholders. direct("s. offi· cers. or empl~es of Routzong·s liabili· ty insurance carrier. H~r. the court denied the McClains· requesl to ask the prospective jurors whether they were officers or stockholders of the unin· sured/und.rinsured carrier. Th. jury returned a .... rdiet for Routzong. The McClain. appealed and ~rgued. inler alia. that the trial court committed reversible error in refusing to allow them to 50 Mir diu th . prospective jurors. Relying upon its holding in w"'~ u. Nationwide Insur anCf! Co .. 521 So.2d 1309 (Ala. 1988), the court concluded thai Ihe trial judge properly refused \0 allow the McClain. to question the jury venire as to their association with the unin5uredlunderinsured clTrier. In UJwe the court held as follows: A plainliff is allowed eilher to join as a party defendant his own liability insurer in a suite ~gainsl the un<lerinsured motorist or merely to give it noli« of filing of the action against the motori,t and of the pos_ sibility of a claim under the underinsured motorist coverage at the conclusion of the triaLlf Ihe iNurer is 1UImed as parl,l, i/","QUld have

lhe righi, ",·ilhin a rrosonable lime after service process. 10 elect

eith.r to participate in the trial "in which <:aU its identity and the rea· son for its bting involved art proper informlltion for the jur)'". or MIlO participate in Ihe Irial "in which cast no mmlion of il or ils potrmhal involuemenl is p;mnillllli by I"" trial court." In the instant case. the court also held that the trial court did not err 10 rever· ...1 in not allowing the McClains to ask the venire this question: "Have you or any member of your family e~r been involved with an employmwt where your job was to evaluate claims?"

No civil liability tor crimi .... acl of third party In N.J., 0 minor v. The Grealer Tmlple Holiness Church. 11'15. 1910700. December 31, 199Z]. __ So.2d__ lAla. 1992J. the court reiterated its reluctance to im~ ci";l liability on one person for the criminal act of another. Ermmu~1

No cau.e of action for wrongful dl.charge on "public poll· cy ~ g.ound. In HOIDQrd v. Wolff Bromkasling Cor· No~mber 25 . 19921, _ So.2d_(Ala. 1992), the defendant fir.d the plain t iff 50lely because she was ~ female. Because the defendant had only sewn . mplo;-ees. the

poration. [Ms. 19106{)3.

.9'1...." #.."..;I'j'tdio-nt> ~, #toe. DEMONSTRATIVE EVIDENCE DIVISION TRAFFIC RECONSTRUCTIONS SCALE MODELS - ANIMATeD MOVIES Traffic Acddent ' Crime Scene ' Structu re · Fire' Aircraft If it ex ist ed it can be bu ilt 10 5Cale ' If it mo...ed it can be animated Over 15 vears of traffic reronnruction e xperience. COUR T OUALIFIED EXPERTS' POLICE & JA IL PROCE DURES • PRODUCT LIABILIT Y' TRAFfiC REC ON STR UCTIONS - A I RCRAfT - ARSON - TI RE • NO CHARG E fOR CASE REVIEW CALL 1 (8 00) 476· 1789 TIlE AlABAMA LAWVER

March 19931 101

EEOC did not ha\it jurisdiction owr th~ plaintiffs compla int of discrimination. Accordingly. the plaintiff sued the defen· dant on I~te law claims for fr.ud and brtach of contract. The t ria l court ente red a summary judgment for the defendant. On appu!. the plaintiff .rgued. inter alia. that the court .hould create a pub· lie policy uctption to Alabama's employment "at -will" doctrine. That doctrine provides "that an employment contract terminable at the will of either the employer or the employee may b. terminated by tither party at any time with or without "''''''." Granl v. Bul/er. 590 So. 2d 254 (Ala. 1991). The plaintiff argued that because the doctrine is a judicially crtated one. tm. judiciary can and should abolish Or modify it. The court disagreed. Writing for a uTl/lnimoos court. )ustke Maddox noted that for three reasons. Alabama ha. COn· sistently refused to judicially crute a cause of action for wrongful discharge on "public policy" grounds: (I) to do S(I wo uld abrogate the inhnent right of contract between employer and employee; (2) to do so would b. to overrule well-established employment law;

..,

(3) "contrary to public policy" is too vague Or nebulous a standard to justify crtation of a nfW tort. Though many states ha"" carved out exceptiorn to the employment "at-will" doctrine, Justice Maddox wrote that "it

i. tm. provin(f of tho legi.lature to "tate .uch an exception. if it .hould deter· mine that employees such as Howard. who cannot com. within the provision. of tht Equal Employment Act. should be given the right \0 sue for damages."

Claim fOf conversion of ca.h lie . only where mone y I. ".a.... ma"' ad~; fraud claim barred by . tatute of limitation . In Grall v. Liber lll National Life

(ruuronet Co.. IMs. 1911246. December 18. 19921. _So.2d_IAla. 1992l. the plaintiff su~d, all.ging that Liberty Nation.1 had fraudulentl~ withdrawn mont)' from his bank account to pay the premiUffi$ on a lif. insuranct policy h~ had not purchased. The plaintiff also alleged claims in tort for con~e rsion. tre$p.u5 to a bank account. and outrage. Th~ trial court granted $Ummary judg· ment in favor of the defendant on the plaintiffs claim for fraud. fInding that it WaS barred by the applkable ont -year s~tute of Hmi~tions. The defendant was aiM! granted a summary judgment on the plaintiffs claim for conversion. On appeal. th e court affirmed the summary judgment .. to the plaintiffs fraud claim. The evidence w.. undisputed that as early as January 1978. the plaintiff rt~iwd bank .tatemenll clearly showing that the defendant was with" drawing money each month to pay the policy pre miums. He also received mon t hly copi .. of t he actual draft instruments. showing increasts in the

amount of the policy premiums. For the ne~t 12 years, the plaintiff continued to receive detailed bank s~te ments "that. upon fVtn a cursory ellamination, would haw feWalw that Liberty National w""' withdrawing premiums" for the insur· ance policy. The court concluded that on these facts. a reasonabl e person of ordinary prudence would have discoverW the alleged fraud in 1918 Or within One year thertafter. The court also affirmed the summary judgment in fawr of the defendant""' to the plaintiff. claim for cO,Wtrsion. "An action alleging conversion of cash lies only where the mont';' involved is ·ear· markW· or is sPKific mont)' capable of iden t ification, e.g .. money in a bag. coirn or notes thaI haw betn enlrusttd to the defendan!"s care. or funds that have othtrwise been sequestered. er_ Co. Bd. 01 EdUCt/lion v. Bailev. 586 So.2d 893 (Ala. 1991), and where there is an obligation to k.ep inlact and deliver the specific mont)' rather than to deliver a certain sum." Joh>uOf1 v. Life lru. Co. 01 Alabama. 581 So.2d 483 IAla. 1991). Ther. was no evidence that the subject bank account was earmarkW for the purpose of paying I,iberty National for the premiums or that the plaintiff made any special deposits for this purpose. The bank account contained only intermingled, anonymous funds from which the plaintiff paid a number of bill.; he prutnted no evidence that he ever sequestered any of these funds for Liberty National.

W.H. Welcher, M.D. J.D. M.S.P ., F .C.L.M. Forensic Psychiatry Medical Malpractice . Insanily as a Delense Personall~ry . Will COmpetency Wrongful Death. Workmens Co~nsatlon

Free Consultation Huntslllile Suite 104 3315Bob Wallace Huntsville. Al35805 (205) 533-2 141

102 1 March 1993

Birmingha m 6873 5t h Ave. S . Birmingham . AL (205) 833-4818

THE Au.BAMA LAWYER

C_rnploy_ • •• tute, con. lilutl_1 In Jones v. LOIM, IMs. 19 11 610. Dt<:~mbtr I], 1992I _

So.2d_"".

]992). Ihe ,our! 1"t'IOI1td lho trial rour!, Ind held that the

co-tmpl~e ~latutn

of Abb."na's Workmen's Comperwtion Act ire conslitutiooil. In thit they gM immunity to ClHmp~ lilinsl Illt· ~ionI; of nq[Iilltn« 0<' ~tonllt$$. At ilsuo: w.. the validity 0( Act 85-41, Acts of Ala. 1985. whl,h utensively amended and added to tho Alabama 's Workmen'. Compen$.l.tion Act and ereIted I qUllified immuni ty for all coernplo,fts. Tht trill court held that the 6«ision 01 the AlabilN Court or Civil Appuh in Sims u. Union UnaeTIMQ' QI .. 551 So.2d 1078 IAlI.Civ.Aw. 1989). had inoal idat ed a provision of the Act and, thus. that the Acrs norutVI'rabitity provision .. quirN tho court to invati· Ibte tho entire Act. The result of this w.. to Illow the pllintiffs to prllCHd on I to·emplOJlft claim for mue ntgli . Qtnce. The trili tOurt did. howeV1'r. Illow the dtfendanu to SHk HI immedi· ate appeal of its ruling. On appeal, tho court, in an opinion by Justice Shores. 'fVO:rS«l the trial court. Ilndi~ that iu holdi~ w.. based UpOl'l the erroneous ISiumptions (IIth .. 1 Sims held .. proYision 01 the Act invalid; (2) that the LegillAture intended to ...teOO the stalut. of limitations of occupational diseases; (3) that Stetion 12 of the Act is subj«1 to lhe mjuiremenU 01 Stction 45 01 the Abbama Con.titution; and (4) thit Section i2 0( the Act hu no "rltld of operation:

A •• urn.. re •• ln, •• ve.' emptor rule with regerel to .e...e of u.ed . e,identl.' re.' e ••• te In Lnlhtneood. Inc. #. Bilker. [Ms. 1910822. Duembu 31, 19921 , _So.2d_ _ (Ail. 19'92), the court rnffirmed the =_1 ,",plor rult with regard to tho reule of used resident ill realestatt. The plaintiffs purchutd a uud r~si . dent;'] house in OQ,rIc. which lat.. w.. di.$aMrtd to hm: slanirlant structural di.... Prior to purchuin( the house, howoMr. th~ plaintiffs h.ld looked 1\ the property stV1'Tll tlmn. Th~ plaintiff" had also heard from In outside sourc~ that there "'~re senling problenu in the

TItE: AL.AR.\MA I.AWYE:R

ntiQhborhood. The pbintiffs ir>quired about this to the rul HI;Itt .>gent ..."ho had originaily dull with tt.. sentrs of lhe property. It wa$ .. Iated to tht plain_ tiffs that the sttlers knew on ly of one crack arnund the li r conditioning S)'Slem. Thereafter. the plaintiffs and the rul utlte agenl Ig,in inspected Ihe prnptrty_ The plaintiffs sub~equtntly signed an --as is" contl'Kl and purchased tht house. A few months ll"tu moving in, tht house belll'n to cQ(:k in S(~ral places. and the ,nulting damage was major. n.. plaintiffs sued OQ,rk Realty. tonttndi~ thit its..genlS misrtpment· td to them the rondilion of the house and contending tlut when they pur_ chased the house they relied on the mis· representations INde by lhose agenls. Following a jury t rill, judgment was entered in boor of the plaintiffs for $135.828.40 in compenutory dalNgu and 575.000 in punitM 1brNgtS. On appeal. OQ,rk Rulty a.-guN tillt tilt signing of the "u is" statement by the pliintiffs.. after bei~ made ....... re of poIent;;,] problenu in the neighborhood by an ou!J!id. source and after making their own inspection of the property. prohibited them from now claiming thit

they ..... n: dtctilled in any way r~rding the condition of tht property. The sup ...... court agl'ftd. Justice Adams. writing for the majority. sUted that bise<.I on the facl that lhe pllintiffs personally insptCttd the property after Questioning the rtil estate agtnt regarding structural problems with the property, and based on the fact thit tilt pWntiffs signed an -.. is" slate· ment afttr that insptCtion. without hir· ing an e'pert to inspect the property. dic tat ed that as I mat ter of law the pllinliffs had nO cllim for fraud. Th. rult 0( rotwl tmptrw still applies with rtgIord to the rtslllt 01 used rt,idential rul .. tat •. Ind the pllintiff. sl>ould ha~ sought In npert opinion befort ligning tlot -iIS is" statement.

BANKRUPTCY Protect .dmlnl.t••• !ve priority clelm. when confirming p"n. In rt BtrVomin Cool Co .. 978 F.2d 823: 23 B.C.D. i063 (3.d Cir. NO\II'mbt. 3. 1992). [)a,,;d Benjamin. the prind",,] officer Ind stockholder. undt r i pre·

BAR DIRECTORIES 1992-93 EDITION Alabama State Bar Members: $25.00 each Non-Members: $40.00 each Send check or money order to; Alabama State Bar Di rectory P.O. Box 4156. Montgomery. Alabama 36 101

March 1993 1 ]03

coofi~tioo ordtr lllowiJ\fl a 1364(c)( I) suptr priority administ",tM claim. poStcoofi~tioo lent 040.000 to the debtor oorponotion. l/nIkr the coofimwd plan, he was IIIowtd a cLlim foo' Ul imotlnt due ~r Ul usignmtnt agrftmtnt and latn ~. 10 he ~paid by a OIII'..,ighth paymml 15 dlys Mltr confi~tion. and lilt ~lIllindtr by lilt drtctM date oflhe plan. He ....'" not paid. ~nd SOmt thl'« y.. ", I~ter. the company conwrted 10 Chapter 1. In tht conwrted cas.. Ikn· jamin w'" appro~imately si~ ~eks late in fili ng hi$ prool 01 claim. The IilonkruptC)'. Districi and Thi rd Circuit courts all held that In addition 10 \os.iJ\fl a general unKcured claim brcauK 0/ 1.IIe filiJ\fl, mort imporbnliy. 1'-"....,.. no prioril¥ under 1fS()1 or 364(cHl). and t""t be"UK of the confirmation. (Su 111"lld)). prior claims"e dis· c""rged •• nd 1""1 tJ.48{d) which oor· IIllIIy pmtMS administr.llM cLlims in "convtrted ase does not~. Quay: Could this occur with unpaid profeuiQNl fHI? I do not Ke why not. My advice Is I""t if lhere is such a possi· bility. 1""1 the plan provide that in the eyent of a CQlWtrsion. such fHI continue as an administr"tlw priorily. which. at lea5t. WOIlld ~ord the opportunity to he paid from the C""pt'r 7 _ll.

Court dismiutd. and both the District Court Ind Ihe Eighlh CiTcuil Court iffirrned. The Eigtlth Cim.&it Court slated thll in ruching ;Ii conclusion. Ihe Bankruplcy Court may consider the schedulu Ind lut imony added It the horiJ\fl. The debtor had contwded that 5inct it could not qw.lify lor .. Chopkr 13 au. Ihtr. was not lubslintiallobuK. The Eighlh Circuit Aid it is noti p~r\'q' uisitr for I dismissll under t707(b) that Ihe debtor be eligible for ChopttT 13 relid.

ag.inst th. debtor are subjtct 10 the aulom"tic Stly. and. thus. th ... i. a rest",;n! to proceeding liIinst the Innsftrte. Then . in considering whtther 1362(al(ll is "trumped" by 12 U.S.C. f182I(17). (9) or (j). lhe cou rt. in i det:oiled analysis on each ,ubKction. dettrmined Ihat tht bankruplcy "uto· malic IUY remained in effect until or unlns a requell for relid is mad. and granted.

Tension between FDIC

then reed on

legl.letlon end 1382(e) of

I" re Ntwbtrr¥ Corp .. 91h Circuits BAP .. October 20, 1992. 23 B.C.D. 979; ]45 B.R. 998. MCE .. t:oined Newberry (debtor) to perform tl~ctriClI work. uler. debtor left not onl~ the job. bul abo its tools Iml equipment. Shortly thuuft~T. il fiI~d Chapler II. Mel mtlnwhile him! "r'H)I/Kr contrxtor to complde the job. Iloth MCI and the new sub hpt Ind used deblor's lools lnd equipment. Debtor billtd MCI for over $300.000 and Ihen sued for non·p<oy· men!. MCI clalmtd in its dt~nse that il had incurrtd damagts of O'IIer $300.000. The BankruptC)' Court all~d Ihis .. recoupmenl. On ljIpullo the Ninth Cir· cuil B.A. P. in i divided decision. the majority furnished a dissertation on rtCQupmtnt stating that Ih. usentill elemtnl is that it mll$l arise out of the IoIme tfl.rlIlIClion. ilere il did MelIUK Mel had I duty 10 miligate cIamiges. The debtor's cLlim for rent ,-,Id not 11M: aris.en had not MCI UK<I the rquipment. ;md MCI WOIlId not 11M: used il t1ctpl lor breach by Ihe deblor. The courl noted that genually pr.·pttition debls cannot be salisfied by pOll'petilion lransacHons. This principle is carried OUI in restricting bankruptcy set·ofls. Recoupmenl "rising out of Ihe 5lIm~ tJUlS.lClion is different. and lICCOrdiJ\fl to the mator;ty opinion. is allowed eWn though one is p~·pttilion and the other post.petition. C• • • eet, The ..ideT is invited to nott the $trona; dissent which tDminn recoupment in much grut.. dtlail. ewntillily contending that this ca.K is nol one of recoupment. bUI an undue npansion of the doctrine. and thai most examples of recoupmtnt ill'o'Otvt an O'IIer~ment or adjustment Ii funds. In my opinion. the di*"t is more logical. •

recou~nt-lf

aenknapt", Co4e In,. Colo"iu/ !lull¥ Compqn¥. 23 B.C.D. 11"3. (2nd CiT .. NOvtmber 20. 19921: _F.2~ The f1)IC. in the U.s. Dislrict Court, brought i fnudulmt ~ Ktion IIIolinst transfe~ of consolidaled debten. Neither the debton nor lhe bankruptcy IrWtH ...... rwned. 'The trwt« Ii the Choipler 11 ase ~I$O desim! to briJ\fl a fraudulent ~ action againsl Iht d.btors or on. ()/ them. ll'KI. therefore. the truslH sought to enjoin the FDIC under 1362 of th. IilonkruptC)' Code. 'The f1)IC claimtd that under 12 U.S.C. 1821 (d)(I 7). which was puled sub~quenl to the Bankruptcy Code. the f1)IC Wit iUlhoriud 10 :avoid Ct>ept."l "e . . 61aml.sed lot' tnnsfers of Ul mttrtst Ii an iruider for ...... btnt'-I ebu_ which the FDIC had bKome a rectMr. In ... Kim /II. Foodrr. 974 F.2d 996; 23 The FDIC contrnded thlIl I t its Sl.ilute B.C.I). 139 18th CiT" Sq.t ........ 9. 1992). ...... ~ MItT the bMkruptcy Sl.ilutr. The Bankruptcy Court. on" motion 10 it ....... suptrior. ilOWtYer, the SmJnd Cir· dismiss Aled by the U.s. Trust«.leamed cuit Court disagrud. SlIyin,g ".upcriOT" that Ihe debtor. by withholding more muns only "prior in righl". thai income tax t""n required. had und.r· Contrns mt~nt to give the f1)IC a pref. slated anticipaled fulure income coruid· erenlial claim but not to obrogate the ..ably lI nd th"t lh. debtor. OVtr a automatic slay oP\llication under regular three·yeor pe riod. could pay 89 pcrcent bankruptcy procedure. The court slated of unstCured debt. On debtor's f.lilure to that 28 U.S.C. f 1334(d) givts it uclusiw conwrt 10 C""pter 13. lhe Bankruptcy jurisdiclion over the debtor's prOporty. - - - - - ' - - - - - - - - - ' - - - ' - - - ' - - - - - - , and tllu prope rty ... h1ch h"s been friudulently tr~ns· ~md is not property of the utat. ANNA LEE CIATTINA und .. 1541 (,,)O) • ........... • _ _ ............. SMI_ until rtcovertd. It " - 1M 0--. P.c. thtn SUted thai the no. I'Iau ...... AI. M>p(IIia 0fIi« hit action of the rolC is _ l t l . llt2~ .. _ " ' _ still subject 10 Ihe ., ;t_ ~ lS;>OS slay bec~use. under 1362(0)(1). action • to recovtr • claim

...

_._...._......- .._._.._-_....-

104 1 March 1993

Do 'OU re<:ognlq

not . u re,

THE AL\IlAMA U.WYER

POLL This is a repeat of the poll appea ring in the January 1993 Alabama Lawyer, which was received too late by some members for them to participate in the polL) Wi th some trepidation, the editors now want your honest appraisal of the quality of The Alabama Lawyer. Do you read it? If so, which featuTts do you like or dislike? In short. we want a critique of the publication. Thke a moment to complete the (011 owing questionnaire and then fax it to state bar headquarters. do tolargaret f.lurphy, at (205) 261-6310. If you do not ha\'e access to a fax machine, you rna)' mail it to P.O. Box 4156, 1>1ontgomery. Alabama 36101. All answers must be RECEIVED by March 31, 1993 to be included in the May issue. 1. The (ollowing best describes my use of The Alabama Lauyer:

a. I never read it b. 1skim it c. I read selected portions d. 1 read it in its entirety 2, The following best describes my reading habits with respect to the features indicated: President's Page a, Always read b, Sometimes read c, Never read Executive Director's Report a. Always read b. Sometimes read c. Never read Legislative Wrap-up a. Always read _ b. Sometimes read c. Never read Bar BriefsfAbout 1-!embers, Among Firms a. Always read _ b. Sometimes read c, Never read Building Alabama's Courthouses a. Always read b. Sometimes read c. Never read Substantive legal articles a, Always read b, Sometimes read c. Never read THE ALADAMA LAWYER

CLE Opportunities a. Always read __ b. Sometimes read ~ c. Never read Disciplinary Report a. Always read b. Sometimes read c. Never read Young Lawyers' Secti on a. Always read _ b. Sometimes read c. Never read Recent DedsiolU a. Always read _ b. Sometimes read c. Never read Memorials a. Always read b. Sometimes read c. Never read 3, Please provide any comments on additions, deletions and changes to The Alabama Lawver which you would like to see:

March 1993 / 105

Reports from IOlTA Grant Recipients

KID'S CHANCE by CHARLES F CARR

This is the third in a series highlighting those who have benefited from the Alabama Law Foundation's

JOLTA program.

I II

n September 1991. J was a gun! spuker of Ark~n5as Workns' Compensation Com-

missioner L~n Tatum's at the Arkansas Workers' Compensation Semi1\11'. On Ihe .""ning prior to the ",mi nar, I had the oppo rt unit~ \0 have dinner with Jim Oxendine. the Workers'

Compensation Commissioner in GeorgiiL Mr. Oxendin~ could no! say enough good things about a program in Georgia

called "Kids' Chance." H. sblro that since the inception of Kids' Chance, a targe number of chil-

dren had recei""d .chola,shipS enabling them 10 finish high school. college and trade school. J have ntve. seen nwr. g.niun. enlhusi<l\m for any charitable

event than thaI exhibited by Mr. Oxendine, [n Ju[y 1992, [ was honor~d to be selocted as chair of the A[abama State Bar Workers' Compensation Section. At the bar's annual meeting in Bi rming· ham"~ cha][~nged members of the 1"<:' tion to work with uS to utablish the Kids' Chance Program in Alabama. Shortly thereafter. a preliminary "Kids' Chance Organizationat Committe~" was e,tablished. Serving as cochairs were Richard Browning. an attorney who primarily rep resents injured emplO)lees in ~lobile. and John Coleman, Itl. an attomey who primarily r.pr«enls emptoyers in Birmingham. A very active and enthusia.stic committee proceeded to establish the program in Alabama. [n addition to Browning, Coleman and me. members include Wayne Wolfe of Huntsville; Steve Ford of I06 / March 1993

Tuscaloosa; Steve Brown of Birming. ham; Randy James of Montgomery; Don Rhea of Gadsden; Gary PUr> of Birm· ingham; Bob Lee of Birmingham; Ross Foreman of Birmingham; Bill Lundy of Georgia; Jay SI. Ctair of Birmingham; Trieia Fraley of Birmingham; and Pete Cobb of Montgomery. The f,rst order of business was to Jlt"t the organizing committe. to "put their money where their mouths ~re". Committ.e members contributed Or pltdged belWttn 5750 and S1.500 ~ach to create a substantial deposit to get Kids' Chanco: started. Operating proctdures ha\~ nOW been approved by the Alabama State Bar Board of Bar Commissioners. The Alabama l..lw Foundation will administer the scholarship fund and distribute the proceeds as directed by a sptcially selected Scholarship Committe •. The Scholar· sh ip Committee will be comprised of representatives of the following areas: (I) two workers' compensation attorneys; (2) the .self·insured industry; (3) the insurance industry; (4) organiZl'd labor; (5) the medical community; and (6) the rehabilitation community. Th e Georgia Kids' Chance is light ~ars ahead of us as far a.s contributiOns received and scholarships i5Sued. Our enthusiasm. however. eannot be Sur-

We urge all citizens of Alabama 10 support us in our efforts. How can you help? We need a county coordinator in

each of Alabama', 67 countie •. If you cannot contrib ute finanCially to Kids' Chance right now. writt and tell 1m that you are willing to h.lp in the organiza. tion of this program. W. want hospitals. brninesru. union locals. doctors. rehab nurses and providers. charitable clubs and organiutions, thurch~s , and schools (high schools, vocational schools and colleges) involwd in this projoct. Ttll me you will help in wme way. If )'Ou can contribute Or make pledges. do .0 nOW. Make your checks payable to Kids ' Chance-Alabama Law Foundation. Whdhtr or not you can contribute, write and let me know that you are willing to MIl' in )'Our geographical area. My address is; Charlell F, Carr Rives ... Peterson 1700 Financial Center 505 N. 20th Street Binningham. Alabilm<! 35203

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THE AlABAMA LAWYER

Reports from IOlTA Grant Recipients

THE ALABAMA CAPITAL REPRESENTATION RESOURCE CENTER by ALBERT P. BREWER and BRYAN A. STEVENSON

The Alabama Capital Representation Resource Center is a non-profit community defender organization providing legal assistance to death row prisoners and attorneys representing capital defendants in Alabama.

I' II

he Alabama Capital Represtn· talion Resource Center was

organizod by a special IMk

force oflt>. Alabama State Bar in 1988. Sinc e tht Ct nter opened in februa ry 1989. it has significant ly reduced the number of death row pris-

oners who are without counsel and ... ist.d hundreds of attoml'}'S appoint-

ed 10 handle capital caw;.

In the late 1980 •. a se rious crisis existed in the provision of legal ~rvices to indigent death row p,;snners in Alabama. While Alabama had the third largest death row per capita in the United States, no systemized dfort was in place to assist death row prisoners in finding legal assistance. &cause there is no right to counS<'1 for indigent prison · "s seeking appuls to stat~ collateral courts Or in fed~ral court, it was not uncommon for some death row prison· er.; to go months and sometimes ~ar.; waiting for pro bono legal assistance. With the support of the Alabama Law Foundation, the Rnource Ce nter opened in February 1989 to provide direct assistance to death row prisoner.; iUld recruit and assist attorneys who vol · unte" legal aid to condemned inmates. Located in Montgomery with a staff of six full ·time allomeys and four support personnel, the Center has virtually elim · inated the dela)'5 in prosecuting death penalty appea ls that we re a result of

droth row prisone .. having no counsel, Although the Centu still does not recei~ support from the State of Alaba· mao the support of the Alabama Law Foundation has enabled the Center to de"elop materials for hundreds of allorneys who volunteer or are appointed to handle death penalty castS. The Center presently produces the AJaboma Capital Rewrt~r, a bimonthly newsletter thai details recent legal developments and rulings that ha,~ an impact on capital litigation. The newsletter is now distributed to aver 300 attorneys who are involvci in cap italli\igation in Alabama. The Center al,o makes two manuals available to lawyers aSSis ting capi tal defendants and death row prison... in Alabama. The Alaboma Capito! Pas/conviction Mtmual and the Alaliama Copitat Dd~nse Trial Manual contain hundreds of sample motions and plead . ings. substantive review of capital ddense iuws and case lists that a.e designed to aid cou"",,,1 in mttling the challenges generated by defense work in a death penalty case _ Serious problems ,till remain in the provision of legal seT'o'ices to indigent capital defendants at trial. At any gi~n lime in 1992. there were over 200 pe0ple awaiting capi tal murder Irial' in Alabama. With no statewide public defend .. system to assist in handling these cases. appointed private attorney'

are lorctd to contend with the uniqu~ challenges these cases bring. Howewr. Ih e Foundation ' s support of the Resource Center has meant that some materials and support ar~ available to counsel and that tremendous progress has "ottn made in providing legal assis· tance to the 124 prisoners presently under stnt.nee of death. The Center is ~r)' grateful 10 the Foundation and il.'! support ollegal services to Ihe poor. •

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I OPPORTUNITIES The following programs have been approved by theAlabama Mandatory Continuing Legal Education

CLE credit. For information regarding other available approved programs, contact Diane \Verdon, administrative assistant {or programs, 01 (205) 269-/5/5, and a complete CLE calendar will be moiled 10 you.

Commission for

MARCH 18 11Iursd.y BASIC REAL ESTATE Ul.W

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Binningliam

31 Wednesay PERSONAL INJURY LmGATlON PRACTICE Montgomery Nat;';'nal Bmine..:; Institute. Int. Credits: 6.0 Cost: $128 (715)835·7909

NalkmaJ Bwinus Institute, Inc.

Credits: 6.0 Cost: SI28 {1]5)835·7909 APRIL 19 Frida, MORTGAGE fORECLOSUR£S Birmingham

Alabama Bar Institute for CLE Credits: 6.0 (800) 621·6514 24 Wedn.'"

2-3 CITY & COUNTY GOVERNMENTS

22· 24 SOllTHEASTERN CORPORATE LAW INSTITUTE Point Clear Alabama Bar Institute for CLE Credits: 12.0 (800)627.65[ 4

April 3O-M.y 1 ENVIRONMENTAL LAW Gulf Sllores Alabama Bar Institute for CLE Credits: 6.0 [8(0)627-6514

O... ~Beach Alabama Bar Institute for CLE Credits: 6.0 (800) 627·6514

ADMINISTRAT ION OFTHEESTATE

IN AlA8A.'1A Birmingham National Busin«s Institute, Inc. C.. dits: 6.0 Cost: $128

(115) 835·7909 25 Thu....,

ADMINISTRATION

OF THE ESTATE IN""""" Huntsville National Businu.lrlStitut., Inc. Credits: 6.0 Cost: 5128

7 Wodnesd.y ELDER LAW IN ALABAMA MootgOlmry Nationa[ Bl.llliness Institute, Inc, Credits: 6.0 Coot: $128 (715) S35-7909

8 Th ..... d.y ELDER LAW [N ALABAI>1A Mobile National Bl.llliness Institute. Inc. Credits: 6.0 Cost: $128 (115) 835·7909

(715) 835-7909

30 Tue.d.y PERSONAL INJURY LITIGATION PRACTICE Mobile National Business Institute. Inc. Credits: 6.0 Cost: $128 (715) 835·7909

108 1 March 1993

1& Frld.y MASTER[NG TIlE FUNDAMENTALS DF ADVOCACY Birmingham A[abama Bar Institute for CLE Credits; 6.0 (800) 627-6514

7 Friday EMPLOYMENT LAW Birmingham Alabama Bar Institute for CLE Cred it$: 6.0 (800) 627·6514

14-15 ANNUAL SEMINAR ON THE CUlF Destin, Sandestin Beach Resort Alabama State Bar Young La"')'t'rs' SKtioo (205)269·1515

21 ·22 HEALTH LAW Beach Alabama Bar Institute for CLE Credits: 6.0 (800) 627·651 4 Oran~

THE ALABA.'1A LAWYER

Law Day U.S.A. May 1,1993 ORIGI N taw Day U.S ..... was conceived ill 1957 by Charles S. Rhyne, a Washington, D.C lawyer who was then p<esklenl of the American Bar A!»OCialion, Ihe nalional ""1,,nWy O'8Jni~ation of the leg,,1 l"olession in Ihe United Stales.

President ()wigh, D. Eisennov.'e' emblishl'd law Day by

pr~~identi.1

proclamation in 1958.00 Ih is <xcasion, he

said, "It is filling Ih.11 the American people should remember with pride and vigilantly gua rd the lIN!at heritage 01 liberty, jU"i<:e and equality under law ... It is 00. lOOfal and ",ie obIigiltion 35 free men and as AlT>@fic.lllStopreserve and Sj'''''gtilerlrhal greal heritage,· In 1%I"he fil'S1 01 May was seI aside by jo<M 'Mulion 01 Congfl.'SS as a ·spedal d;!y of celebrahon by the Ame<i. can people in app<ecialion of rhei. I,berties and !he reafl"'nilHOn of their loyalty to rhe United Stales of Ame<ica," and as an occasion for "rededication to the ideals of "'lualily and juSlice under laws :

PURPOSE PU'~ of Law Day is 10 ca illile allenlion of Nery Amelican cilizen 10 boIh lhe ptinciples and lhe pra.ctice of Ame<i<an I~w ~nd juscice. It is a d.!y 10 ref!e,;t on our leg;al hefltage, the role of I~w in our loOCiecy and the rights we enjoy under our ConSll1ulion. II is also a day fo< ~U cilizens 10 consider lheir duHes, wch U: (1) 10 be informed on gcr."ffnmenl aoo community affairs; (2) 10 oupportaoo encourage efforts 10 modernize our courts; (3) 10 VOle in eleclions; (4 ) to obey and respecl lhe law: (5}to SU llpOrllhose inslitul ions and persons charsed wllh law e nlorcemenl; (6) 10 respecllhe riShlS 01 O1hers; (7) 10 practice and teach Ihe principles 01 Sood cilizenship ,n ou r homes; and (8) ro serve on juries and as court ....·itnesses, il called.

The

DID YOU KNOW? • One thing foIme< Presidenr George 8ush, Rev. ~ Iackwn, Supteme Coun )USC..:" Antonin Scali., foIme< VicePresident Walrer Mondale , Wa.hrnglon Redskin Kellh Griffin, MCGNff rhe Crime Dog, aoo 'Vince and LarlY, rhe seatbelr dummies" have in common iSlhal they have been .>elive participants in Law Day U,S,A, events, • Ninely-eighl percent 01 SCate b~r associations and 94 percenr 01 local wr Jssodations sponSOl Law Day pro8rams which include blood drrves, co llection 01 canned goods lor rhe oomeless, swearing-in ceremonies for new cilizens, and free legal advice booths in shopping =U5. ",ogr~ms are conducted in.U 50 states, the DiSCdct of Columbia, and Puerto Rico, as weU u ovetWas al U.S. armed services inslafii\IOtIS In );Ipan, Germany, lhe Netherlatllk, Englaoo, Cub., and Italy. The mo<I active Slilies lin alphabetical order) are: 1. California 6. MichiSJn 7. New Yor k 2. f lOfida ). Georgia a. Ohio 4. Illinois 9. Oklahomo 5. K.ans.as 10. Tex.u

• law Day

ALABAMA STATE BAR ESSAY CONTEST On a scate level , lhe Law Day Commiltee of rhe stare bar is spotlSOfing an essay COnies! for 1993. Loca l bars will hold their own contests and grade the er1tries, awarding ptizel allhe Ioclll !"v.,1. Winners and honorable ..... nlions are lhen lorwardO'!d to the stale bar for considerat"'" lor stalewitle prizes. The theme foI the"'""Y contesl is ·)usci<e for alI----AU lor juscice,- which is also the lheme of law Day U.5A. Entries rnus.t be ~ al the stale bor l>e~afler5 by May I , 1993. for mo.e infoffnat""', call Kejrh Nor· man al l ·eoo.)5 4--61 54.

TIlE AlARr\MA LAWYER

March 1993 / 109

THE UNAUTHORIZED

PRACTICE OF LAW? by L. BRUCE ABLES right to ~ct iI$ lfl attorney for himself and 25 others who had s;gn~d a petition protesting an increase in water ratts. It appears obvious thai any non-attorney practicing before any administrative agency within the State of Alabama i. engaged "IW of)'Qu ha,.. written members of the Unauthoin the unauthori.ed practice of law. How much damage has rized Practice of Law C(}mmiUee about ;ndividu_ bNn done and will be done to individuals seeking redrus in al. Or entitie s possibly being engaged in the these administrative hearings a.nnot be determined. Another area of concern is deferred comperuation plan document> . unauthorized practice of law , and ~ appreciate your comments. These plans (1"'1\(\;011. profit ,haring or eaf'lui., etc.) are gen lt is of particu lar interest \0 the Committee that nonorated in different ways. A bank. insuraoce company. ilttuar)' la~rs are representing ~ople at administ"ti"" . _~~_ _:-_ _" firm. etc .. wil l frequently provide a muter plan • which hiU extensive standardized language h.. rinll$ in most tvOi!r)' state agency that COn· ducts such h.. rinll$. and an adoption agr«ment by which the The Alabama Administrative Proc.emplO}·er adopts the plan. In completing the adoption agreement. tm vari· dure Act §41·ZZ-\. et seq., Code of Itlal!ama \975. gives state agencies ous boxe s are ch ecked. blanks power to adopt "Ms and regulacompleted and. frequent ly. Ianguage added to the plan to cw o lionl; however. it appears that the Act does not gi"" any stat. tomin it to the emp loyer·s wishes. These pia", have tax agency the power to adopt a rule or regulation to ~rmit a constqu. nc<!5 that may or TnaJ' la}"~rson to represent a party not be understood by non · attorneys. Thue plans h.ve before all)' administrati"" hearing. MOSI jurisd ictions hold great significance und.. Titl. I that the reprUl'nta!ion of indi o of ERISA. a 1300r law provision. The employer undertaku very 'iduals before a ,tate administr.· tive agency constitutes the substantial nabilitiu. including fiduciar)' liabilities. involving compractice of law where such appearanee is iUsociated with the protecplex questions of federal labor law tion. enforcement Or defense of th e and the common law of trusts. These legal rights and duties of another. Oem.oer questions are far beyond the capabilities of 80r Association v. Public Utilities Camthe most sophisticated accountants. bankers . missirm, (1964) 391 Pac.2d 467. This case hald that insurant< agents and actuaries. These master plans are being .ggre~ivtt» mar~eted to non ·lttorneys. Some iru;ti· a rule adopted by the Public Utilities Commi~ion ~rmitting tutional document pwviders adliiS/! the cUltom.. to hav. the a layperson to iltt in a representatiVl' capacity before that body document revi.wed by an attorney. Certainly. the law under all circumstances was invalid becalL\ot it was 100 broad in that it would permit a layperson to practice law without a i. clear that mere revi ew by an attorney of I document li cense. The Court SIIid that if the Commission·s Ictio", were prepared b)'. non .. ttomey does nOl preVl'nt the non .... ttorn.y legislatiVl' or non·judici.l. than ~rwru; appearing in a repre· from engaging in the unauthoriud practice of taw. Clearly. the party. actuary. insurance company or the like . who sentatiVl' capacity in r~spect to these matters would not be practicing law. In Smith u. Public Service Commissioner. completes the blank, in the plan is not acting on his own (1960) 336 SW2d 49 1. the Court held that the Commission behalf since the institution has no interest in how the blanks are completed. They just want the busines •. If filling in prop",ly refused an individual who was not an attorney the the blanks of a dud is the unauthorized practice of law (Coffet CQuntg Abstracto o. StaU Ex Roil Norwood. 1983 . .... B.-..e_ Ab'-_ 445 So.2d 8S21. clnrly. the filling of the blanks in these I.. 0<"", . - - it .... ,.,....... " .... - . . s.- e.-. ~ """""" plans is an unauthorized practice of law. They are legal docu · ~ oracocoo .. ~_ ... ....,,, DWrr _ . , - . ments and the versoo or entity filling in the blanks OOfS not This is a follow-up 10 the article bg Da,·id B. Caulher< and L. Bruce Abl"" _ring in the September 1992 issue of The A/duma lAwger {vol. 53, no. 51. page 363.

I';' II

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.....

II 0 I March 1993

THE AU\BAMA LAWYER

have a propri etary inter.. t in them. Apparently. there are a lot of la)"ptrso ....... i$ting parti.. in divorce procffilin~. There are individual. in the Hunl3vi]]e. Aillbama area adl... rtising in newspapers and by n~r$ that they can .... i.t people in the preparation of divorces. wills. trusts. workers· compensation-almost everything in the legal field. The ads do not Quote a f« and thoy dearly indicate they are not attorneys but paralegal •. II th is the unauthori ..d practice oflaw? The Alabama Supreme Court in the case of McGifferl lI. Slote (1979) 366 So.2d 680. on an appeal in a qU() u",mm/o proceeding, held that a layperson who had placed an ad ..... , · ti.ement in the local new.paper offering an uncontested divorce for a .um of monoy Wall an intrusion into the prof..· sion of the practice of law without having been duly licensed. in that this person had held himself out to the public all a per· son qualified to practice the law. The ad stated: ·Considering divorce. if there is no contest. you can get your divorce wit hout attornoy'. f«. The whole cost will only be $100.00. You pay court COlt. of $.36.00. Write: Townloy &rvices. 1'.0. 60, 317. Kent. Alabama 36045, confidential and guaranteed ." Apparently, McGifferl contended that the motive behind the ad wall to conduct a suTw» to find out the number of individu· als who would be interested in securing uncontested divorces at a cost below the current markd rate, that the plan was to attract young attorneys through the lure of an established market. and that the sum mentioned in the ad would be used to pay the attorneys' salaries. The Court clearly rejected this contention, saying that the Court thought the ad .poke for itself. In the case of Florida 80, lI. American Lego/ & Business Fonns, Inc. (1973) 274 So.2d 225. the Court, in effect. said that even though there ""'y actually be a service to the public. whose protection is the principal conco m in having printed legal forms and copies of statutes available. the unauthorized pr~ctice of law begi("ls when included with these form. are what pU'l'Orl5 t(l be instructi(lns all to how thoy are to be used and filled out. that it is usually a "",tter of one trained in the law to determine the proper application of the forms and pre · vent possible injul)' and da~ from their improper use. The Court further declared that it i• • fallacy to look upon .uch kill as mere forms since incorrect assertions whi ch a layman may make in attempting to use them can result in perjul)'. libel or cont~mpt. Inartfully drawn will. ha'·e resu lted in untold litigation. nudle.. expe"",,, and unjult re.ull3 to those intended to benefit from the estate. The Wl)' ne~t )lfar the Court, in the case of The nor-ida Bar o. Stupica (1974) 300 So.2d 683. rejected the argument that the mere sale of legal forms and in.tructions on how to fill them out was legal because of the lad of any personal lawyer/client rel ationship. The Court said th at the sale of forms alone i. not illegal, but when those forms are coupled with direct legal instruction. and advice as to their use (lr application, such sale does constitute legal counseling and i. the unauthorized practice of law. The Court said a "kit" is dis· tingui.hable from the law text discussing legal .ubjecl3. from statutes with interpretive annotati()!ls, and from the generali· ty of legal forms books. in that it conters upon specific adviu THE AlABAMA ~\VYER

through forms and instruction. on particular aspects of the layperson·s particular legal problem. Such a kit. the Court observed . .... umes the role in place and i... tead of an attorney. at·law. This view. that the sale of a package of fo rm •• nd in:;tructions as to their use constitutes the unauthorized prac· tice of law. i•• upported by Stole &r of Nevadll lI. Brandon (1972) 31lfnaut/w,iua F'ro<:IiC<! News 31. Apparently. there i. no unauthori zed practice of law if o("le sells a "kit" and it has no instructions as to ill use. but if it do.. have in.tructions as to its use. then appa ren tly that would be getting into the practice of law. and that appar~ntly would be the holding of our state .upreme court if the issue were brought bdore it. The Coffee COUl1lg Abstroct Cose. supra clearl~ indiC3tes that the court would SO hold. If one reads the Coffee Counlll Abstract CoSl!. supra, it is readily apparent that the filling in of the blanks on a re.1 estate contract. as most real estate agents in Alabama do. is the unauthorized practice of law. The filling in of blanks on a deed is an unauthorized practice of taw. SO would not the fill · ing in of the blllnks On a contract for the sale of real e.tate be the unauthorized practice of law? Wh.t about a p.ralegal. in your emplO}'ment. attending §341 mutings in bankruptcy? Again. your commenll about thOlt who lnIOy be engaged in • the unauthorized practice of law will be appreciated.

WE SAVE YOUR

TIME ...

II!.I. ameli lEG

A l

Resear ch

Now kga l re ... n::h assislance is snitabte when you n«:d it. without the necessily of adding a full·!i me associ"e or clerk.

Wi th access 10 the State Law Library and We"t.w. we pro,i"" fa" snd .fflCio"' service. For deadti"" W()fk. we ean deti •• , information to you vi. common earri.r. Federat 8:1"""". or FAX.

Farne ll Legal Re ..afCh eumine$the is,,,,,s Ih()f(lughty through quatity rt:seart:h. bri,f writing and anatysis. o.,r rateS .re S3~ .OO per hQur. with. th.u hour minimum.

For Research Assistance contact: Sarah Kathryn Farn ell liZ Moore Building Montgomery, AL 36104 C. 1l (1051 177-7'937

March 1993 / 111

YOUNG LAWYERS' SECTION By SIDNEY lY. JACKSON, 1II, president Focus on solo practitioners J)o""nsi~ing of law fi r ms. recruiting new lawyers and the tight job market have Idl many Alabama young lawy< . s in Ihe position 0( solo pr.lctilioner. Th. Am .. ican Bar Associ.tion Iw; ",,"tly begun to focus On issues affecting solo practitioners and so should Ihe Alabama State Bar. A task forCf created \0 look at the question has ddermined that solo and ,mall firm practitionus .. present 63 percent of alll"wyers in private prac-

actual nuts and bolts of practice in the rul wo rld. Topin at such ,eminars include clien t interviewing and cue evaluation. business document drafting, litigation and cast management, simple wills and trusts, and how to set up and ma~ your law practice. Ther. also is information on how toaliOid committing malpractice and how to obtain various types of insurance. The American Bar Association has a wealth of information and seT'llces to

tice. Forty -seven puc.nt of these lawyeu h.,.., not joined the American Bar Association and the ... me probably

holds true for local bar associations . \-I'hy? A recent SU,"""y '£\'taled the 101 _ 10000'ing: - 60 percent saw little or no benefit to be deriW<l; - 38 percenl cited the high co.! of membership; and - 3(l percent beliewd Ihe bar associ.tiQll$ do not rep'"Sfn! "lawy<rs like nw" Solo p r"chlion~u often p"rc~i'.. bar associalioru and youngla"'l"'r affiliation for the large. established firms and not for struggling }'<lung la~rs. This perception is "'rong and I can atlest from personal exper ience that a solo practi. tioner hils <IS much Or more 10 gain from bar association affiliation thlln associates in large r fi rms. J wa, president of the Mobile Young LaW}lers' Association in 1989 while practicing on my own and often would get taSel;, advice on various matters from more experienced la"'l"'l'S, and an ability to "ne twork' at Young Lawyer functions. The immediate past president of the Mobile VLA Mark Wolfe, also is a solo practitioner. Besides "ntlw<;lrki ng" through a local association, other methods of assi,t ing solo practitioner or pract itioners in small firms are "Bridge the Gap" semi" nars. The Alabama VLS frequently sponsors such nminars. The ,cop e and purpose of the seminar is to assist new lawyers and rectnt graduates in bridging the gap between the theordiC/iI practice of taw <IS learned in law I(hool and the

112 / March 1993

assi.t solo practitione .. and has created a nine-member task fore. in thllt regard. The Law Practice Management Section of the ABA has published a book, How to Start and Build a Law Practice, which includes topics such as "Getting Started", "Gdting Located", "Gflting Equipped" , "Getting Clients", "Setting Fees", "Managing the Law Office". "Ethics and Professional ReSpOnsibility". and -Resources and Advice". Another area in which bar associltions can assist solo practitioners is through mentoring progr~ms. In thesl prograrru, volunteers who hIIw practi«d law for a period of time make themselYuavailable to dil(uss cases, problems, general practice, etc. with solo practitioners and act as mentors.

Anyone with questions concerning .ource. M help for 0010 pUctitioners, please call me at (205) 433-3131 or contact the AllA at (312)9!l8-5614 . Sand ••tin Semlmor .~k.rs

Prank Woodson of Mobile has put tog.th~r a ,tell.r ca:;t of .peakers for the May 14- 15 Sandestin Seminar on the Cull. Professor Charles Gamble will speak on evidence. Judge W. Harold Albrillon will pass along his thoughts on fede ...1 court practice and Gunter Guy, city allomey for Montgomery. will speak on municipal law. Jeff Rickard of Pittman. Hooks, Marsh, Dutton'" Hollis will speak on a personal injury topic. Warren !lerlong of Mobile will ,pea k on the Alabama Eminent Domain Law and Jim Prall of Binningham will speak on crash worthiness. Rounding out the ,peakers, Alan Shealey. a clinical psychologi,t, will speak on jury ,election and how to interpret those lillie nod., winks, crossed arms, etc. we all gd from jurors. I'nnk is also lin ing up a medical professional to speak on a related topic. The entertainment and ,ocial functions are unbeatable and thty art included in the price of the seminar. Following the morning session on Friday there "ill be a golf tournament and t~nnis tournament. Friday night there will be a cocktail part)l until about 7:30 p.m. and then dining on ;'Our own. Saturday there will b. a beach keg party fOllowed by the cocktail and hors d'oeuvres band party sponsored by Pittman, Hooks, Marsh, !}uUon ... Hollis. This party is truly one of the fine.t .emina r social events at which to get thrown in the pOOl! Th. Sand •• tin Seminar is not limited to members of the YLS. It is sponsored by the section, but it i, open to }'<lung laW}Iers, old b,.;;'ers, judges ;md law students, ali ke. ReservatioN can be made by using the attached application form. Ttraditional~. the best rooms book eart\', so I urg< you to make your plans now. I hope to stI:')IOU at the seminar. • THEALABAMAlAWVER

r-----------------------------------------------,

Registration Fonn for Sandestin Seminar May 14-15, 1993 . Sandestin Resort N'mo ______________________________________________________ ~fflSS

__________________________________________________________

Cily _________________________________ Slale _____

Zip ___________

For reservallons al me Sandestin call 1·800·277·0802. Enelo.. check lor $110 and mall to: Alabama Young Lawy&rS' Section do Barry Ragsdale, TreaSUfflr P,O Bo~ 55727 Bormlngham. Alabama 35255 L _______________________________________________ ~

r----- - ---------------------- - ------------ - -----, :

ADDRESS CHANGES

I Complete the form below ONLY if then: an: changes to your listing in the cumnt A/obomo Bar Dir«IOTJI. Out to changes in I the statute j[(Mming election of bar rommwionerJ, wt now are requi..ro to \1St members' office ilddn:sas, unless none is I aVlilable or a member is pl'llhibitrd from m:eiving statt bar mailll the offiu. Additionally. the AJabamo Bar Dir«10TJI is I compilrd from our mailing list and il is important to use business ~mses for tlla!. ruson. NOTE: If we do 1101 know of an I ~rw change, we armot mal<t the nt«SSlry changes on our rKOtds. 50 please notify us...nen )'OOr ~rw charogu. Mail f_ to: All« Jo 1I~rb:, P.O. Iku: 671 . Mod~""'Y. AL 36 101.

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MYTH INFORMATION: CD ROM and Legal Research by TIMOTHY A. LEWIS

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"Quidquid id est, timeo danaos et dona ferentis. "

improw m~th<.>d~ of legal r..earch. It h .. a large .tonge capacity. yet it is compact and portable; data cannot be erased and does ""I deteriorate. It imi· Pruj~nt Jerome Rubin as Ihe natlor!'. tates online searching, taking advantage first and only (omputer.auis\ed legal of a user's familiarity with online search restarch "Me< . Th;' """nt, follCM'td by tKhniQue5. plus trn,re are "" communithe advent of WE STL.AW, wppO)sedly cations charges to worry about. CO OO),! heralded Ihe demise of books as legal has found a niche in the legal communi_ res-:arch tools. Now. tW<J decades later. tyand rightly w: it makes legal research books are still the mainstay of legal easier in many instances. research. In fact. more legal materials On the other hand. one should not are lIting publi.hed in hard copy than ent.. the world of CD ROM blindly. The price is high , mainly because the cost of ever befor •. (I know this because twry invoice and publisher's /lye . cornu producing the muter disk is high. ae ros, my desk.) The online comput.. Updating is difficu lt. not because it is SeemS to have stimulated the print expensive to make copies of 1he master disk, but because }IOU canool OIII'!WI"ite a indust!'\' rather thlon desh'O}'ed it Eight years ago, hist(}ry repeated itself disk. MWSS speed is .Iow (one to two when CD ROM toch""logy hit the marseconds". (lJIposed to nine to 18 mil· k~t According to;> wme law pub1i~h .. ~, liseconds for hard disk a~); thue is CD ROM i~ all that onli ..... datlbases are "" standard search interface among CD but without the high telecommunicaROM products: and. worst of all. on ly tions cost. Researchers can search fullone persoo use a CD RO)'! product at a tut documents, print QUI search results time. Thisl31;t disadvantage can be mini· Or download material to ·cut and paste" mized by networking, but networking for use in briefs and opinions without not only increases the co.t but slows worrying about th~ met .. running, It's a d(M'n access lime even more. mirad~! CD ROM will replace the law Is CD ROM dead , thenl No. despite book asa legal research tooll NOT! what wme writers have said. CO ROM Don't misunderstand. CD ROM is a is not dud. In fact. this pa,t year it fin~ example of how tochnolog)' can has experienced a revival. A local com· pany has already begun ma rht in g the Alabama Cade and cuu on CD Traffic Accident Reconstruction ROM. After buying Lawyer's Coopera· tive. Callaghan and ALBERT MEDINA Clar k Boardman. Thompson Publish. ing has begun an aggressive campaign pushing CD RO~1 products. especially one called ~bau,

th~[)ata 20th anni""llal')' of Mead Central's re lnse of LE XI S· , touted. at the time. by Mead

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114 1 March 1993

containing appellate court cases from different statu. This competi t ion has forced Wut Publishing Company into actiVl'ly ma rketing state cases on CD ROM. wmething West seemed reluctant to do in the past. The Michie Conlpany. not to N outdone, has its (M'n CD ROM version of state cod.s ~nd cases. Clearly. law publi,hers believe that the .. is a market for their products. By FebrlJ3!)' of this year. in Alabama a\c)ne, th ..e (and I"'rhaps four) different law publishers had Atabama CD RO~I products for sale, This large numb .. of competiton in Alabama makes it ve.,. important that the buyer beware! Because of intense competition between publishers. each product must be «.. .rully evaluated before a commitment is made. Just as on line databases ha~e en · hanced legal .esearchers· abi lity to per· form research. w CD RO."! will haw the same effect. It will not. u online da~ have !l(I!, replace the book in the ntar future. dtSp ite publishers' h}"\'lt. Publishers. after all, are in the business to make sales. and ()f\t must N of vendors' predictions. It is the combination of online databasts, CD ROM and hard copy that will be the most dl«tiw wa~ for a skillful legal res.:archtr to perform his or her task . •

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THE ALABA."1A t..\WYER

DISCIPLINARY REPORT R.ln.t.t.....nt •

K~ .... tth

Holl_., MUUca .. _ ~insUltd to tilt pndiu of law ~ order of tilt Supmne Coort 01 ~ ..... tIlK'ow D«tmMr 22. 1992. Milliun had p.eviously bun JUJ~ndtd (rom tht practice 011_. dftclivtc April I, 1989 for ("iling 10 tOm"ly with the annual cOMlnuin, ie,II tducltion reQuirt. mtnts·I~L No. 92-061 Dlabllrment. • By order of tht SU~Ttme Court of AlaNma, Hunt$ville attorney J o e N. L... "I., wu disN.rtd and ucludtd from the prxtict of ]lOW in Itit Statt 01 Alabama tfftdive Jinllll")' 5, ]993. Lampit)' constntro to the disbanmnl bastd On hi. hning hetn convicted of tht felonies of br ibery and extortion in tht Unlttd StattS Distr ict Court. Northern Distrkt of Alabama. [Rule 22{a!l2) -

Petition No. 92·081 • Jame. CurtiN Bern..... , an Alabima lawyer Tuidinll in Columbw. Gto,· gia. wn disburtd by ordtr of t ht Alabllma Supreme Courl. tfftctivf Much 9. 1992. Bunard, ..milt xlVin. as an ~istanl distrkt ~ttormy in tn.rgill. was indicttd on sill counll oIl1otketeoerillll mil utortioo. The charges I" a mull of &mnd's lCIivity in procurillll dismiwll or Itnif1lt 5enttntCII lor persons char#d with drug oIfensu. He was found guilty on />Iud\ 7, 1992 on Ont count of Itltmplinll to rommlt utorlion 'Atlilt holding tJw o/flCe of ~ilUnt district attorney in vioblion of 18 U.s..C.

fl951. &rTlllrd was ~ttnctd to 13 months confinement in tM Federal Confine. ment F~dlity ill ~11 Air Foree But. Montl/Olrotry. Abbama. Thr OiKipliOliry Commission. pursuant to Rule 2'2( .. )12) of the Rulu of OiKipliOllr, Procedure (jntnim), ~I'ltr huring, ordered that &rTlllrd bt dimarrtd effmiYt 1>Ia.rch 9, 1992. IRuie 22(a)m-Petition No. 92·

031 • Birmingham attorney Jlm u R. Morton, II has bun disbarred from the practico of law. eflective hnuary II,

1993. In 1990. Morton oellltd. d..im on btlllif of. dient. undtr the tenns of "'hich the dient rectiv«l tM sum of 510.000. Aft .. Ikduclinll his attorney ffts. Morton gave the dif1l1 • chtck lor 57.600. Morton's check was rttumtd by tilt bank on which it _ drawn for non· ,ufficitnl fundi. Morlon h,iled or refused to nW<t tilt chtck good or oth· erwiH rtimburH his dient. A haring wu Kheduled btfort Ihe OiKipliOliry Bond of the AI.bama St.te Bar fo r November 6. 1992. Morlon f~iltd or rt/UHd to appear it tJw Miring. After hearing tilt testimony from tilt dient. the Discipli .... ry Bo.o.rd detenni .... d that MOTIon should be disb'Trod from the prilCtict of law. Public R.p.lrn.nds • Bessemtr attorney John A. Acker, Jr. WIS publicly reprimanded On December II. 1992 for violating Rule 1.1 01 the Rulu of I'Tofusional Conduct which providu "a la""""r to act competently, skillfully and thoroughly"; Rule 1.3 which providu that "il Ia"'~r shall not willfully n.gl.ct • 1''1il m~tttr entrusted to him-; and Rul. 1.15(,,) which provides ". liwyi:r 10 hold th. properly of clients lind third persons sepilr.lt. from his 0l0""-. Thr Oisciplilliry Commission found that in IRcembtr 1991, Acbr wu rdiined to handle the dosinll of a ral estate Ir• ...,.,ction for th. purchilStr. Th. till. company required thit 55.000 be put up for tKfOW, prncIillll tJw rtlu.st from one of th. tru,t." involved in bankruptcy. Acktr's closing statemont .. n..,ttd the dlWurHmtnt to the escrow iltld by the tiUe comPl'ny. Acker Hnt the closing documents to the litlt company. but fliltd to send the 55.000 to be escrowed.. In May 1992, it was vorified by the administrator for the ut.te thit the funds hid n ..... r botn r.c.iwd by the title comPl'ny. After bting conlilC~ by tilt title comPl'tl)', Acker insisted that ho had sent the funds. Acker refused to return calli to the atto rney for the ildministrator. finally. a formal written demand wu mid. and Acker sent iI

check from his ,..... ral ilCco.ml HoweYu, the check WIJ dishonond by his b.onk. thon sU~lII'nt1y honored ilt I lilIerditt. • Birmin,ehlm attorney Roloort L. Alldl .. wu publicly Ttp.im.andtd De-

cembtr 11, 1992 for violillnll DR 2. 111(A)(2) 01 tho Cofk 01 ProItuionol RllSpOnsibilit¥ which p. ovides that iI 1iIwyt. s.h.ill not withdraw from emc>101ment until he hu tilken nnonable stepS to ilvoid for.stelblt prejudice to the righll of his client. includinQ Qiving due notice to ilHow the client time to employ othtr coullHl. Thr OiscipliOlity Board found tlllt Austin was retained to defend iI client in a bTtilCh of contrilCt suit. The.eafter. Austin bteJ.mt invo~ in a dispute with his dlent over ilttorney feu. and fil.d • motion to withd raw without notice to his client, approxi mate ly II days before the sch.duled trilol dattoJudgment wu entered Olglinst the dient lor lailu •• to IpptlT. Austin notified his client appTOJlirmtely H~n days ifteT tho schtduled tri.1 datt tlllt his motio<l to withdraw u coullHl IIId betn Qranted, and by ,"PlTilt letter. dated the SlIme day. alJO notified his client tlllt deflult judQmenl Iwl b«n ent.rtd ~inst him. Tranlf. . . • Birminlll>im illlorney S.III, M. !okCead,1I has tnons/"emd to diSilbiHty iRlCliw IIiItus mil is no longer elllliitd in the p.ilctitt of law in the st.t. of Allbamil. effective Jlnuary 6, 1993. McConntll COTIHIlttd to lilt tnnsftr to disability inicli~ IIiItus dllt' to rlWOllS of physic.l infirmity Ind illness. Iret. No. 93-0011 • By ordor of tM Supreme Court of Alab.ima. Sou iltomty uny W. Doll1111" has bten piKed on diJabitity inac:tive status lind ucluded from the pra<:tic. of lAw in the state of Alabama effective January 13. 1993. Dobbins coo~ted to the transfer to dilabllity inactive ~tatu~ due to reasons of ph ysical infinn ity Or illne". IPtl. No. 93·0021 • March 1993/ 11 5

LEGISLATIVE

WRAP-Up

By ROBERT L. McCURLEY, JR.

AI.ba .... Rul •• of Evidence

The Alabama Supreme Court request· ed that the Alabama Law In.titute undertake a ,Iudi' revising the Rul •• 0( Evidenee . A committe. of lawyers and ju~ was appOinted by the court. The study began in September 1988. The CQmmitt ... was charged wilh proposing rules 0( ovide""" fOT the court to promulgate. After fOIl, years of drafting and stud;'. the drafting committee tlas made it.

initial recommendalions. The rules

Special appreciation goes to Chairperson Pat Graws. who led the commit\« through four years of debate and ,tOOy. The study began under then Chid )"'tice Torbert and has receiwd contin_ ued support and encouragement from Chief )",tict Horrub}> and the associate justices of the supreme court. Special thanks are extended to Bob Eidal• . clerk of the supreme court. who has acted as a liaison betwem the court and this com· milt«.

haw been circulated to tho membership of the Alabama Law lnstilute prior to being p~ to tile Alabama Supreme

Coo". The Federal Ruin of Evidence w ...

used as our model. A consensus dewl· oped that the federal rules wou ld be adopted unless then were good rtil$Ol\$ to deviate from them . Acc<lrdingly • .orne of theu rule. differ significantly from the corresponding federal rule. The dif· ferences U.lualiy resulted in either modi. fying the fedenl rule Or replacing it altogeth~r with the pre·existing Alaba· ma C<,lmmon law principle. HO'I'>'eWr. ,,'e agreed to model the work on privil~ges afte r a combination of t he Uniform Rules of Evidence and the pre·existing Alabama privil~ge statutes. since the original pr<lJl(>Sed federal rule. on privileges had been rej«ted. In most instance:>. th~ rules continue the historic Alabama law of eviden/X either identically or with slight modification or Vlpansion. Some rules. however. do abrogate pre·existing Alabama law. When change occurs. it generally is to implement the overall policy of pro.moting greate r admissibili ty. Thes~ rules mark a shift from a system of e:<elusion to one of admissibility. The rules are divided into II artides. Thue include rules on presumptions in civil actions. rel evancy. privileges. witnesses. opinion and ul"'rt te.timony. hearsay. authentication and identification. and cont~nts of writings. recordings and photographs.

1I6 / Mm:h 1993

w. Wtre fortunate to have Charle. Gamble. Henry Upson Sims Professor of Law at the Uniw .. ity of Alabama S<:hool of law. as the chief draftsman and reporter for the project. Dean Gamble's background and expertise ill a teach.r and writer in the field of evidence Will invaluable. Other members of the com· mittee ar., Jo.. ph c"lquitt. Tuscaloosa Greg Cu.i ..... no. Gadsden Pat G""''el. Huntsvill. lion. Solly GfWl~. Montgomery lion. Arthur Hanu . Birmingham Broox Holmu. Sr.. Mobile Alfred 19ou. Fort Payne R.tlph Knowles. Jr.. Atlanta Ttnntnt~. Huntsville

,\landell. Montgomery \\il1/am Mills. Birmingham Bruce McKH . Birmingham F,.,.nk McRight. Mobile Delaine Mountain. Tuscaloosa Richard Ogle. Birmingham AbntT Powell. Andalusia Emeltine SaW. Tuskegee Griffon Sikes. Jr.. ~\ontgome l}' Clarence Sm~n, Jr .. Birmingham Hon. C.Lynwood Smith. Jr .. Huntsville Bil l Cbrlt, Birmingham. e~ officio These rule$ will be available to the bench and bar. prior to their adwtion. to obtain comments and review. How~rd

Aegu'ar S...lon-1993 The 1993 Regular Session began February 2. 1993 with 515 bills intro· duced the first week. The Alabama Law lnstitute's Probate Procedure bill "'as introduced in the House of Representa. tives (H. 193) by ReprEstntatives Marcel Black and Jim Campbell and in the Sen· at. (s. 280) by Senators Don Hale. Michael Figures and Doug Ghee. Also expected to be introduced ",ill be the limited liability Compal1}' Act (See Alabama WU'lIer. Novembor 1992) and the Revistd Business c"fllOration Act. For further information. contact Bob McCurley. Alabama Law Institute. P.O. 1IoJI1425. Tuscaloosa. Alabama 354S6 or call (205) 348·7411. •

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THE A~AMA LAWYER

What To Do When It Happens To You "The art ofjunk science is to brush away just enough detail to reach desired conclusions, while preserving enough to maintain an aura of authoritative science. n _ Pdu W. Huber

by GEORGE M. WALKER

t has happened \0 t'o'el)' la~r who

has tried casu involving expert testimony. It happen. to l...'}'... for plaintiff. and I~" for defendants in civil ca.'U: it happen. to the Pr<)$('CUlion. and it hapDon, to th e criminal defendant. And. as the sUl kes in litigalion rise, it i. happening more and more

often. Junk science i. fast b«oming a

How II c reep. In Junk science would not be a concern if it wert not admissiblt: unfortunately. the laxity with which the courts e.aluate expert testimony plays into the hands of the accomplished junk scientist. It is a fact that junk science shou ld not be admitted into evidence: it is also a fact that it often is.

cottage indu,lry supporting litigation. and often the extent to which junk $Ci.

enee i5 int roduced into evidon,e. and

how it i. attacked. can determine the outCQme of a CM¢. rete. Huber"s definition above is apt. His book. Caliteo's R~ven!J": Junk Scien~ in the Courtroom, ;s must reading for any li tigator who frequently faces fringe e.pert witnesses. He describt$ the phenomenon ,,~II in his introduction: Junk science is the mirror image of real scknce. with much of the SlIme form but none of the same sub· stance.... Junk sciena cuts ac",,", chemistry and pharmacology. medicine and engineering. It is a hodgepodge of biased data. spurious inference. and logical legerdemain. patched together by researche .. whost enthusiasm for diSCO\'try and diagnosis far out..trips their skHI. It is a catalogue of every conceivablt kind of error: data dredging. wishful thinking. truculent dogmatism. and. nowand again. outright fraud.

fd. at 2-3. The dual problems for the trial lawyer in such a case are to rtcOg· nize the expert as a junk SCientist. and then to expo5(' the junk science for the trier of fact. THE AU\BAMA LAWYER

As long as the rules of

evidence permit the admission of expert scientific testimony to assist the triers of fact, there will be junk scientists seeking to expand the envelope ofadmissibility.

Given the propensi ty nf many trial judges to e.ade evidentiary issues in the hope t hat the ju ry will "do the right thing." the standard favors admission of junk science evidence because "the rules give equal dign ity to the opinions of charlatans and Nl}bel Prize winners." /luber. supra. at 17. The problem is exacerbated ~caus;: th~ trial judge is confronted by two or more distinct warring ractions in any trial involving complex scientific evi. dence. and tach proffers its scientific evidenct as ma instream. describing opposing positions as fringe. The trial judge rarely has any background in the scientific afta. and must rely UPOll the experts themselves for critical information. Henc •. junk sci~ntists olien bring their scienct to the jury with nothing mort than testimony that he Or she is Qualifie<.! to give opinions, and has opin· ions. regarding one or more of the issues in the case. Because judges are often loathe to exclude such opinions. it ;5 critical lor tho triall>."''ltr to be able to identify junk scientists. to know how to investigate junk scientists. and to devel· op methods to expo5(' the junk scientist and his p'rticutar brand 01 junk science to the jury.

Rule 702 of the Federal Rules 01 Cit'if Procedure. authorizes the trial judge to

Idefltifylnv the junk $C 1_II. t Part of the repertoire of the junk sci.

pumit a Qualifi ed U l'\'rt to testify, "if scientific. technical, or other specialize<.! knowledge will assist the trier of fad to understand the evidena or to determine a fact in issue." Under this standard. the court can admit any expert testimony it reels may be helpful to the trier of f~t.

entist. as defined aoove. is pres.rv ing enough detail to maintain an aura nf authoritative science. The .. are certa in traits of the junk scientist that often emerge. despite his Or her best efforts to maintain a scientific aura. In consider· ing an npert witnns' opinions, the March 1993 / 11 7

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more of the following characteruties he or she po .. e ... s. the more likely it is that you h~~ a junk scientist on your hands: I. He is qualified in hi. field. but the subj ect mailer of his opinions is not quite in his field; 2. He has published, but nnt on the subject mailer about which he is advancing opinions; 3. He ha> not offe .. d hi' opinion in this case for publication in any ]l«r· rel'itv."ed jou mal ; 4. He is a nwmbtr of numerOUs professional societies. but does not serve in any official Cllpacity in any of them: 5. He CIIn point to no literatu1"e in his fi~ld that ~upporb or confirm:; hu opinions: 6. His opinion is not shared by r&og. ni.ed authorities in his field; 7. His opinion relies upon unestab· lished facts. untenable inferences. andlor speculation; 8. Hi. opinion is contrary to the facto;. logic. andlor established science; 9. Hisopinion cannot be confirmed by collal<ral analysiS; and 10. He sticks to his opinion el'tn after his fallacie. and inaccuraci~. ha ..... been txpCISt<i.

In.. estigeUng thej_k scientist Once a trial law;otr becomes aware that he is deali ng with a junk scientist on the othtr sido. the re <11"1' a number of things that need to bt done to in ..... sti· gate the Opposing expert and to authentiCllte him as a junk scientist·in·fact. The following list contains the primary ele· mento; of the in..... stigatiOfl . although dif· ferent experts may requ ire using different t«hniques. Obtain • clnr .... condR . t.tement of nch oplnloo u;pecle. 10 .... offend by Ibe uperl. An accom · plished junk scientist enjoys scientific details about as much as Cino Torretta enjoyed the t 993 Sugar Bowl. Such details are inconsistent. they require explanation. and they interfere with the agen~ of the jun~ scientisL Such details are often ign01"ed or ()\"erlooked by the expert·s Opinion. or the opinion will val)' from dtlllil to delllil. In a I"I'cent WI"O(Ig-

lui death cast tried in federal court in Mobile .' plaintiff offered eJpert testimony Opining that benll'ne detected in the groundwate r underlying dtfend ant" s property had volati lized and migrated into the workplace air of decedent·s employer nu t door. While plaintiffs np<rt thooriwi that decedent was continuously exposed fo r long puiod, of time due to the vapor migration. once the expert was pinlltd down on his theor y. it was a st raightforward task to demonstrate mathematically that there was not enough btn.. ne in the ground · water to support th e migration theol)' for a week. In most fede ral courts. the pa rties are now requi red to exchange expert reports: where this is not th e c .. e, a cl early worded inte rrogator y ought to be sufficient to pin down the expert. Oblaln Ihe up.rl'. nlum._ The CV of a typical junk scientist i, larded with multitudinous accomplishmenl5 of dubious distinction . but sometimes the very br utnne .. that Iuds on e to become a junk scientist in the first place can be of subslllntial benefit to opposing counsel. E..... ry now and then an outright fraud can be found in the resume always an interesting tidbit to toy with during "o.. ·examination. More commonly. counsel will find that the ruunw is full of writings , le,turti, speeches, andlor studies on i.. ues other than those invol ..... d in the pending case. and that the expert in fact has not been involved in anything of substaneo in the areas about which he expects to g;"" testimony. While this is ~nerally not sufficient to disqualify an expert. it is ucellent ammunition for crOSS-1'xamination. Oblaln cople. of .... Inant artlcfu 1M e:<pert hal a.,lhond. Believe it Or not. some e ~peru ha..... actually testified to opinions directly contrary to positions that they ha"" IlIkrn in tartior published wrilings. II is al ways fascinat ing to watch such experts try to .. plain to th~ jury why they shou ld belie~ what the witne .. sa}.. in court and not ",·hat the witn ess said in the publishe d art icle. Thi. will only ral"l'ly be the case where a junk scientist i. involwd. since they SO rarely author anyth ing in their area> of "sorcer")': but it is an arta for in"..tiga· tion that should not be ignored. Oblaln caJitlit haul ulptt. fol lowing the precept that things are not THE ALABAMA LAWYER

always IS they are made to appear, a,quiring the college transcript of the ex~rt is Dften valuable. In another ~r· sDnal injury case in Mobile,' plaintiff identified a "human factDrs pSYChDlo· gist" as an expert who would Dffer tOStimony on the need for, and adequacy of, product warnings. The expert 's cDll ege transcript reveal.d that h. had r.ceived an "f" in logic du ring his lOphomore year in college. The case was settled prior to trial. but undoubtedly the jury would ha\'i: b«n interested in this back· ground, since the expert's opinions .«Ir. ly tuted the concepl. Obla l.. th. ""pert'. conlnd wlth o"ol ln, cou .... I. few experts work for free , and this is especially true of junk scientists. Th.re is no reason to enter the field of litigation .«ITCery if you are not out to rmke a few bucks. Some· limes. perhapS out of ftar that he or she is dealing wilh an equal, the junk scien· tisl will enter into a ""ritten cDntract with OPJlC'Sing counsel. In the Colmum case. supra. one of plaintiff's experts entered intI' just such a contract, agree· ing that one of the "objecti~s" of the expert's work was to "Ie lmblish that. route existed whereby , • . contaminants ar.........,r. co!w.)'ftI to the air of the ... office building." Where the expert has promised a result such as this. it is not difficult to chalknge his objectivity, Obl.l n Ih. "",ut'. c onU ,D'" . . .. ce " llh o "D. ln, counn •• ~or the same reasons discussed in the pre· ceding section, any corr. ,ponde nc . between the expert and oppOSing COUn· sel ought to be acquired and r.... i....~d. Again, using the Coleman case a, an eumple. it became apparent that decedent's treating physician reached his opinion on medical causation largely as • resull of details supplied to him in a letter from plai nt iff's counsel. The expert performed no indepondent analysis of the facts and had to admit on c~·examination at trial that if counsel had gotten anI' of the facts wrong, his own opinion would not be scientifically .. li.bl •. AttO}rney cO}rrespondence is es peci.lly important in such cases because often .ttorneys do not com · pletely or f.irly characterit\' lhe relewlnt facts in a letter ... king an export opin. ion. Oblal .. 1.... JCri' h o f tb. eqert'. tu tlmol1l' I.. . I",n ... c...... As with a

TUE ALA8N>IA IJII1'Yt::R

contrary published opinion in an article described above. there is little that irritates a junk scientist as much as being confronted with contradictory or con· meting testimony he or she has gi~n in other caoes. Betau.. their opinions are sometimes caoe·specific. the exi.ten"" of prior contradictory opinion testimony is • po$$ibility that should never be (M!r· looked, Obt.l...11 .la nd. nI. bu rin, Dn Ih •• ubJ . ct m.lln of Ih. u pert'. opl nlo.... Often, the opinion of a junk scientist will not be consistent wilh goy. ernmental or regulatory thinking. In th e Coleman case, supra, it w.s th e opinion of plaintiffs exports that b.nzen •. al an average groundwater con· <entration of 1.32 parts per million. volatilized and migrated a, vapor through three Ittt of soil and then 115 feet thrO}ugh a pipe into a neighboring office bu il ding. contuninating the offic. air with from .4 to 3 paru per million benune. The 05HA benzene standard provides that wO}rkers who work with liquids containing .()] percent benzene (1000 ppm) Or less should not expect to be exposed to airborne benzene cOneentrations greater than .5 parts per mil · lion. It is difficult for even the most accomplished litigation conjurer to explain why 1.32 partl por million benzen. in groundWater thrtt feet under· ground .nd 115 fed away po..s. risk, whil. working hands-on with. liquid containing ]000 paru per million ben· zen. would nol. Regulatory st.nd.rds should n,,'.. er be ignored in the investigation of the opinions of a junk scien· ti,t. Obt.ln .... lhoYlI . Uve IIt enl ure on th. l ubJ.,t m .. lln. Often the junk scientist is a lonely voice in the wild on the oppOSite side of otherwise undisput· ed science; indud. that Dften is why he or she got hir.d in the first pl.ce. It is imperative that counsel obtain and review the authoritative literature. and evaluate just how far from the m.in· stream the expert's opinions truly 're , In some cues, the opinions may be so far from rminstream as to be judicially unacceptable. as found in Johnston ~. United SloIes, 597 1'. Supp. 374. 4]3 (D. Kan, 19S4): To acc.pt Or. Gofman', O}pinion would require thi s Court to reject the consensus of the world's radia·

Belween December I, 1992 and January 27,1993, the following attorneys made pledges to the Alabama State Bar Building Fund . Their names will be included on a wall in the portion of the building listing all contributors. Their pledges are acknowledged with grateful appreciation. For a list of those making pledges prior to December I. please s~ previous issues of The Alabama Lawyer.

CHESTER PARK BARTON, JR. THmlAS HALL BOCGS, JR. JOHN BOSTIVICK PAMELA HARNEST BUey JARETI CHARLES CRAWFORD WOODFORD WYNDHAM DINNING, JR. WOODFORD WYNDHAM DINNING HUGH ADAMS LLOYD

LISA JANET NMS A.N"NE LAURA R. PARKER JOHN LLOYD ROBERTS HUGH EDWAR D ROZELLE JOHN WALTER SUDDERTH JOHN EMORY WADDELL

March 1993 1 119

tion experts. This Court simpty CIInnot boelieve that all of the~ scientis13 are SO wrong, that Dr. Gorman alone is right. and that all of the other scientists in the world are so bi~ that they refuse to accept the "t ruth" on e< Dr. Gofman has revealed it to them_ ... When the opinions of a junk ,.dentist are far from the mainstream. look to the lite rature in the fietd for support for you r aHack. Have the. Upu\'. opinion., a nd the baM. f01' the oplnlo ..., a nalyzed by your 0 ..1'1 upertl. An attorney's best source for identifying a junk scientist is his or her 0"'", e"",rt. In a Montgomery federal court ca~: plaintiffs toxicologi,t opined in hi. Mpo$ition that decedent's fan l Ii .... r cirrhosis was caused by eXpo$ure to trichloroethylene in hi' wor"plaet. Defendant's expert pointed out to defense counsellhat the toxicologist had not followed accepted toxicological methodology in reaching his opinion and, more impOrtant. that li1lfr slides taken at the autOpS)' had not been anal;lted. Analysis of the liver slides rt'Waled that the decedent suffered from Alphal Antitrypsin deficiency. a congenital enzyme deficienq known to cau,. live' cirrhosis Never overlook the value O_Iot ,

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264-6433 120 I March 1993

of your awn expert .. an assistant in the i"""stigation of the junk sdenlist. Accompll.h the follo..lnll at the. de"",ltlon of the junk .d enilit, (a) Pin do:...n the ~xpert to his or h.. opinions~

(b) Have the ""pert identif~ each fact necessary for tach opinion: (c) Havt the expert identify each assumption nece ..aT)' lor tach opinion; (d) Havt the expert ident ify tach 5Cientific principle upon which he Or she relits in reaching each opinion; (t) Have the expert identify each pie« of literature that he or she relits upon or which supporls each opinion; and (f) Find the source for each opin_ ion, that is. whether the expert developed the opinion on his Or her own or whether he or she had the ..si.tance of OJlposing counselor others in developing the opinion.

Exposing the Junk scientist tor the Jury In a case in which the rourt. de.pite )/Our boest efforts. has decided to permit the junk "ientist to attempt to cast his spell on the jury, the work that)/Ou ha"" done in identifying and inwstigating the junk scientist must be pulltd together in ~ fashion to clearly expose him to the JUT)' as the junk scientist that he is. To do this. the trial la",;,er must m~rshal the facts, master the seience. control the junk ,cientist, and chanenge tht opin_ ions before the jury. First. do 1'101 ",ait for cross-examination. Challenge the qualifications 0( the junk scienti,t by motion in limine and, in federal court. by a motion to 5UpplnS under Rule 104 of the Federal Rules of EvidetlCl'. Take the expert on voir dire before any damaging speculation is pre_ sented to the juT)'. Prepare explicit objections prior to the testimony for those questions seeking opinions that must boe challenged. Second, vigorously cross-exam;ne the junk scientisL Do not fall into the trap. relied upOn by many junk scientim. of fearing that you will lose points with the jury for an aggreloSive CToss-tJlamination. Your task ;. to convince the jury that the ,upposed expert is not what h. or she

has boeen ma<k out to be. and this cannot be 5ucceloSfuily done in a passive or tentati .... cross-exam ination. The crossexamination must present, in a logical sequence, all of the information accumulated in the inwstigation of the junk seientist. The juT)' must be informed. for exampte. that the supposed e'pert hilS nevu published any of the opinion, about which he or she has lestified. that the opinions have never been accepted in the mainstream literature. or that the opinion marks a ~ent and drastic seientific conversion for the expert. finally. have )lOur cwm exper13 pOint out to the jury the inconsislencies. speculation, illogic, and/or departure. from science in the opinion' of the junk scientist. It is much easier for a mainstream e.pert to come do",." from tht witntloS stand and wjth a marker or a pi,," of chal k explain for the jury Ihe SCientific fallacies than it is for the 1.W}~r to tT)' to attack them in argu"",n\. Jurors ellpect there to be conflicting expert testimony, and they are more aided by the experts in resolving the connicts than they are by the 1.,,'Ytrs.

Conclusion AI long iIS lhe rules of evidence permit th. admission of expert scientific lesti mony to assi.t the triers of fact, there will be junk sdt ntis13 seeking to expand the envelope of admi5Sibilit~. As long iIS tri~1 judges believe that jurors are inherently capable of distingui,hing scientific fact from hocUS-pOCus. there will be junk scientists mumbling their 0:..." brand of scientific incantations. As long as the legal system holds out the promise that hard case. can be WOO by resort to fringe theories. junk scienlis13 "'ill proli ferate. Clearl;'. they will always be lhere. instead of viewing the junk scientist as an un",.lcomed problem. the trial l."')'tr should look at him or her .. an OPpOrtunily to do two important things: (I) emphasize the frailty of the oppo$ition', ca~; and (2) "mph.. i"" the validity of your own case. Prope rly hand led. the junk scientist can achieve both things for his or her opponent. • ENDNOTES """"'"" " IUN¥>d ~ ~., CMI Act"", No. _ , (S.D. "'".)

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Marth 19931 121

ABOUT MEMBERS, AMONG FIRMS ABOUT MEMBERS Edward J . Witten announces the moving of his office to 24 N. Markd Str~.t. Suit~ 300. Jacksonville, Florida 32202·2856. Phone (904)356·]335.

Lucie Under ... oo. McLemon announce. the relocation of her offices to 207 Montgomery Street, 310 Bell Buil ding, MontgollWry. Alabama 3(;104, The mailing address i. P.O. Bo. 263, Montgomery 36101·0263. Phone (205) 262·0004.

Itobert Fo,., announce. he has l.ft Emond &; Vines and formed the Ford L... Firm. with office. at Two Metro· pin Drive. Suite Ill. Birmingham,

Alabama 35209. phone (20S) 868·0104. and at 3322 S. Memorial Parkway. Suite 22B. Hunt.wille 35801. phone (205) 88\·

4426. Cbarlu T. Morrb. formor Covington County Di,trict Judge , announces

th e opening of his practice at 29 S. Court Square, Suite A, Andalusia, Atalla.. rna . The mailing add. e" i. P.O. Box ]433. Andalusia 36420. Phon e (205)

222-8444. lib... ,0\. Jacltaon, formerly with Fine

McDowell. 3nno\lnOOl the opening of hi. offi"" at 221 East Sid. Square, Suite 2·B. Huntsvill e, Alabama 35801. The mailing addre'5 is P.O. Box 2489. Huntsvill e 35804. Phone (205) 533&;

5306. Michele G. Bndfon!. formtrly with Legal Services Corporation of Alabama. is now coordinator of tilt Paralegal Pr<r gram at G.d .... e n St.te Communll,y Colle,e and has opened offices at 924 3rd Avenue. Gadsden. Alabama 35901. Phone (205) 549-OO9<l. Chulu B. Hell announces the opening of his office at 30 S, Court Square. Ourk. Alabama 36360. The mailing addrm is P,O. Box 1281. Ozark 36361 , Phone (205) 774·1630. Te ...... L. C.nn.ely announces the opening oflltr office at lOO·B S, E:mm<:tt Stred, Albertville, Alabama 35950. PIIor>< S914106. The mailing addrm is P.O. Box2673. Albertville 35950. RId< L. Bu..,;e... announce. he has left Crittenden & As50ciates and opened hi. office at 2000 1st Avenue. North, Suite 1300. Brown Marx Tower, Birm· ingham. Alabama 35203. Phone (205) 328-6710.

122 1 March 1993

AMONG FIRMS Lyonl, Plpu " Cool< announce! that M. W.rnn Butler and M..... dlth V.n Hout.n have become associates with the firm, with offices at 2 N. Royal StTftl. Mobile. Alabama 36602 , Phone (205) 4324481. Bu ... " Form.n announces that Victor L. H.y.II,. W. BenJ .... ln JohnlOn and E. Clayton Lowe, Jr. have become partners in the firm. and Petti' A. Gram....., P.trlcl. PoweU Burh, D.W. Collier, AIII . on L. Downln" Erlc D. Frana, G.... F. H •• ley, AI.n P. Jud,e, Jeffrey S. Mmn. and Vol.nd. Nuett-Joh ..... n have become Msociated with the firm. The finn has offices in Birmingham and Huntsville. Alabama. Andre M. Tofftl and D.nl.1 D. Sp."" aonounce the formation of Tof. fel " S,ar"' , and that Martin S. Lewl . has become associated with the firm. Offices are located at 50S 20th Strut. North. 925 FinanCial Center. Binningham. Alabama 35203. Emond" Vln u announces that Thom.. M.anb.n Powell has berome an associate. The fi rm also announc .. the relocation of its offices to 2200 SouthTrust T.....-ers. The mailing addr«s is P.O. Bo~ 10008, Birmingham. Alabama 35202-{)()O$. Phone (205) 324-41lOO. Hel", "ln,. Lyon ., 51",. " Le.ch announces that JOH ph P.H. B.bln,. ton has become a member and T... d S. Strohm.yer, Wenely A. Pierce and WiIIl.m R. Lancas ter have become usociated with the fi rm. The mailing address is P.O. Bo:< 2767. Mobile, Alabama 36652, Phooe (205) 432-5521. E. Ray McKee, Jr. annOunceS that

,OJ)'

£lIubeth T. C"tletlc has become associated with the firm. with offices al 2319 Market Ptace. Suite A. Huntsville. Alabama 35801. Phone (205) 551 -0300. H01'o l by, W.tl on " M.,lnnl l. announces the relocation of its offices to 1110 Cleneagles Dri~ •• Huntsville, Alabama 35802, Phone (205) 650-5500. McPhllllp •• H .... thorn. " Shinb ... m announ<ts that G. Willia ... Gill has btcome a membtr of the finn. The firm name will be M.Phllllpl, H...• thom., Shlnbaum " Gill. Offices are located at 516 S. Perry Street. Mont· gomery. Alabama and the mailing address i$ P.O. Box 64. Montgomery 36101. Phone (205) 262-1911. L.nler, Fo •• , Sh.ver " P.yn. announces that J ...u W. T.rlton, W, Kelly lot. McDon.ld and A,III.b C. Owe... have herome a>SOCiated with Ihe firm. Offices are located al 200 W, Court Square. Suite 5000. Huntsville. Alabama 35801. EIPY " Metcalf announces the relocat ion of its offices to 302 N. Oates Street. Dothan. Alabama 36303. Phone (205) 793·6288. Gr.en " Plno anno u nces that EIIw.nll. Zwillln, has become associ· ated with the finn. with offices at Shelby Medical Building, Suite 205. Alabaster. Alabama. and the mailing address is P.O. Drawer 1883. Alabaster 35007. Phone (205) 663-1581. Hill, Hili, C.rter. FnMo, Cole " Black of Montgomery announces that John 11:. Bradwdl has become a member of the finn and that R. Rainer Cot· tel', III . former law clerk to the Hon. Daniel H. Thomas , senior U.S. District Judge. Southern Dist rict of Alabama. and D.vl. E. Avery, m have bKome associated with the form. B.lch " Bln,h.", announces that JOHph M. Farl.y has joined the fi rm M counsel. The firm has offices in Binn· ingham, Huntsville and Montgomery. Alabama and Washington. D.C. Dewayne N. Morr11 and John R. L.... tt e announce the relocat ion of their offices to 2131 Third Avenue. THE AU\BAMA LAWYER

North. Birm ingham. AI~b~ma 35203. Phone (205) 254-3885. Lloyd, Bndford, Schulher &: Cray announces that ilia.. C, Pe le .... IOn has b«ome , member of Ihe firm. and Danie l S. Wolltr. Stephen E. Whltehud , Kyle L. Kinney and Le,r a nd H. "m~er,oD, Jr. have joined as aSMICial ... Offices are located at Two Perimeter Park. South. Suite 100. Birmingham. Alabama 35243. Phone (205) 967·8822. CalM'lI, Ho .. ard, Knabe &: Cobb. anROunces that Dehra Dea..,u Spa in. Rachel D. Sanden and Wlllia.., R. Kin, are now associated with the firm. Offices aU louted at 57 Ad~ms Avenue. Monll!<lmery. Alabama 36104-4045. Bradley, Ar a nl, RO le .. Whil e announen that John W. Har'ro" •• John E. Ha,.blr.. tlo". Jr .. Stuart J. Fnntz. P .. ul S. Wan and C. Rick H. U ha,'e become partners in Ihe firm. The firm has offices in Birm ingham and Hunuville, Alabama, John T. Natter, formerly l partner with PoP< &. Natter, announen that he is now depuly director of Naul Rut"" " P enta,on . in Washington. D.C .. effecti"" September 1992. and will be of counslll to Coma.., Ii Waldn, in Birmingham.Alabama. The lelephone number appearing in the 1992·93 edition of Th e AJ .. hm .. LII..yer Bar DlnclOT)' for the firm of Sa ue r Ii Llttldon is incorrect. It should be listtd n (205) 834.7800 . Offic.. are located at Colonial Financial Cente r. One Commerce Str • • t. Suit. 700. Montl/Omery. Alabama 36104. LI,httool , Fra"klln, Whitt" Ln . .. announce. that Sabrina Andry Simo" became associated with the firm. She previously was employed as deputy chid trial attorney for the Office of Chief Counsel. U.S. Army CorpS of Engi neers. and has served as an adjunct proI.'-'Or at Mil" CoII~ge School of Law. Ho .. a rd A. lIIa ndeli and Delon. R. Boyd annOunCe the di'-'Olulion of their partnership. llladell " Boyd. Ha..·ard A. Mandell will continue in his practice at 25 S. Court Street, P.O. Box 4248, Montgomery. Alabama 36103. Phon . (205) 262·1666. Delores R. Boyd will ha"" her offict in tht Collage Hill His· loric District at 639 Martna St r •• I, Montgomery 36]0 4. Her mailing address is P.O. Box 2270, Montgomery THE AlAIIAMA LAWYER

36102. Phone (205) 2&1 ·8005. Bnrtlram " Hende1'101I announces that Lee A. DuBol. has become associ· ated with the firm. Offic.. are louted at 3414 Old Columbiana Road. Birming ham. Alabama 35226. Phone (205) 979· 2281. Lan ,e, Slmp.on. Robln . on " Somenllle announces that 1II0rrh Wade RlchuUon and Joe A. JOftpb have become partners in th. firm at the

Birmingham olfice, and that Jobn R. BarTan has become a partner in \h. firm 's Huntsville offi ce. Floyd D. Calnn, D. vld B. Ha ll, Cany Btn· nett lIIeR a. and Fune n Ellt lyn Kin, have become associated with th. firm in the Birmingham office , and Roherl S. IIIcA"ually hn become associated with the Hunbville office, B.. II. Ba n. Malln t ... &: Novak announc n th a t Tho", .. Co .. ln

Statement of Ownership, Management and Circulation (Requ ired by 39 U.S.C. 3685)

, ".

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March 1993 / 123

"nowlu and Ctra ld C. SWa n n, J r . have bocome members of the firm. Offices are located at 1100 Union Bank T~r. Montgomery. Alabama. and the mailing add ress is P.O . Drawer 2148 . Montgomery 36102·2148. Phone ( ZOS~

83H680. Wa il lon, Sta bler, Well.., An de....... • Balnl announces thaI JerT)' Du .. HUlma n has joinro the firm as an asso· ciale. Offices are localed al 500 Fina .. cial Conter. 50S N. 20th Street. Sir· mingham. Alabama 35203. J ..... e. R. HlnlOn, J r. and Robert N. P'"l' ne. both formerl~ with Lto & N;sodales, announce the formal ion of HlnlOn • Payne , with offices at 200 W. Court Square. Suite 610. Hun~ville, Alabama 35801. Phone (205) 534·1923. H.. rdl n • Tuchr announces Ihal Jill T. Karl e has b«ome an usociat. wi t h the firm. She received her law degree from Cumberland School of Law al Samford University. where she was the managing editor of the Cumbnlarnl lAw Ret·jew. Omces are located at 2151 Highl.nd Avenue, Suite 100. Sirming· ham . Alabama. Phon. (205~ 930·6900. Hnbba rd, Rq noldl, McUw. ln is:

BrahAe ld .nnounces that Mlc ha d O. S ... lt h has become a member of the

firm and E. Kenneth ~cock and R. COOIM1" Sh. ttuck have become associ · "tu. The firm name h.s changed 10 Hub bard , Reyn old . , Smith . Mcll . wain is: B...... eAdd. Offices are located at 808 Lurleen Wallac e Boulevard. North. Tuscaloosa. Alabama. and the mailing address is P.O. B,a 2427. Tu=loosa 3$403·2427. w mle is: Kell eher of New Orleans, Louisiana announces that Amy B.. lrd recently became a member. Offices are located at 601 Poydra~ Stre~ t, New Orleans 70130· 6097. Phone (504) 5861241. Alu P. La nkford, IV. formerly an as,ist.nt district attorney in Mobil e. Alabama . has become associated with Bm" ",_" is: Binion. Offices are located at 205 Church Street , ~'obi1e. Robert M. Hili, Jr. and Mar ,.r et Hde n Yo un , . formerly with Hill I>: Young, and C.ry P. WII"ln. on . for· m.rly of Po~ lInit., Cox I>: Jones, announce the formation of Hill. Yount is: WII"lnlon . The mailing address is 215 W. Alabama Street, Florence. Alaba-

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~ 12 4 1 March 1993

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AIalxlrT<> 35255

P!>o:ne (205) 251-4()62 rAX. 32S{124?

ma 35630. Phone (2051 767·0700. Seier. John . to n ~ Tripp e announces the rorm name changed to John, ton , Trippe is: 8 ... wn. omcu al"l' located at 21oo·A Southbridge Park· way. Suite 376. Birmingham, Alabama 35209. Phone (2051879·9220. Gordon , SlIb. r .... n . WI.,lnl is: Child. announces that Lu Wln. to n arnl Jon E. wwl. haw become associaln. The mailing address is P.O. Box 13066. Birmingham. Alabama 35202·

3066. M.l on e &. Newe ll announces thaI Laur. K. C..... ory has joined the firm. She graduated in 1988 from the Univtr· sit» of Alabama School of Law. arnl is • member of Ihe Alabama State Bar and The Florida Sar. Offices are located at 550 Greensboro Avenue , Secor Bank Building. Suite 300, TUKaIClO$3. Alaba·

rna 35401. Phone (205)

~9·3449.

W. Cllnl Brown . Jr. and She rrie Willm an 8row" . formerly of Brown. Willman. and Ma rt B. C....I. announce the formation of Brown , Will ....... is: Cr al • . Offices are located at 118 E. ~t oulton Street. Docatuf, Alabama 35601. Phone (205) 355-4956. •

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THE ALABANA LAWYER

• M·E·M·O·R·I·A·L·S • JUDGE P AUL W ESTER m ,LD B RUNSON

Whereas. retired

Mobile County

District Judge

Paul Westerfield

tlrunson die<! on Octw.r 6. 19'92:

,,'"

league to recogniz. publicly some of the achin-ements 0( his pro(, ... iorn] career.

Now. Ine,.fore. be it known that Judge Brunson. a nati"e of Clarke

County, Mississippi. and a lifelong resident of Mobile, ",M bHnded in a hunting accident as a yoI.lth but went on to ~M as presiding judge of the District Court of Mobil. County of Mobile County. Alabama. for 14 yurs. Judge Brunson renived a

ALLEN

bachelor's degree from Springhill College in 1936 and a law degree

from the University of Alabama 5<0001 of Law in 1939. He practi«<i law in Mobile for """"al yean Ixfore bting appointed director of the Uni'''rsity of Alabama Mobile <A=nter. He resumed practicing law and was later elttted judge of the Court of General &s.s;ons of Mobile County. of ...ilich he lat,r became pruiding judge. Judge Brunson retired in 1991 as a supernumerary judge of the District Court of Mobile County. Alabama. Judge Brunson's d~ic activities included serving as president of the Mobile Junior Chamber of Com. merce and Mobi le Azalea Trai l. He se"""d as a Di!mocratic Committee representative for Ward 15. vice·pres· ident of the Alabama Intermediate Court of Judges Association. presi -

dent of the Mobile As>oc:iation for the Blind. and during World \I'M II h. .. rwd as a member of the War labor Boo.rd. Perhaps Judge Brunson's greatest contribution to his profession and his community was the e.ample h. set for hi. peers. Judge Brunson oot only succeeded in spite of hi> handi· cap. but excellw in all that he did. He was a zealoi.lS Ia"yer. a finn but lair judge and a devoted husband and father. Wherefore be it resol~ed. by the Mobile Bar AS!;ociation in regular muting assemblw on N(M.'mber 20. 1992. that while we mourn the death of our distinguished colleague. Judge Paul \\'esterfield Brunson. we celebrate the lifetime achiewments and accomplishments of a tnJly remark· able man.

Rot't' CAMERON

her..... the Mobile Bar As>oc:i. ation notes with regret the death in Mobile on June 29. 1992 of member Allen Roff Cameron. Now. th."'fol'l'. be it resotved that Allen. as he was ,ffectionately known. was born in Hobile. Alabama and graduatw from Spring Hill Coi· lege. H. obtaintd a taw degree from the University of Alabama s.:hool of Llw in 1933. the l<Ome year he began his law practice in Mobile and his long membership in the Mobile Bar Association and the Alabama Sute Bar. His maniage to his devoted wife. Mary JO!;ephine Greer. as well as his relation.hip with his children was interrupted by World War II and his service as a !laval officer in the Pacific Theat.. in New Guinea and Subic Bay. At the end of World War II he was separated ...ith the rank of lieutenant. He retu1lled to Mobile

THE AUIBAMA UlWYER

and mumed the private practiCO! of law in the firm of Sullivan & Cam~ron. He distinguished himse lf b~ servin~ his prole .. ion and his community in many admirable ways. In 1971. h~ was appointed U.S. Mag· istrate by Judge Daniel H. Thomas. and he se"""d as the first full·time magistrate in Mobile unit 1979. when he rdired. During his .. tire· ment. he was able to spend more time with and enjoy his family and pursue his hobbies 01 playing golf and cu lt ivating rare camellias. He served as president of the Mobile Men's Camellia Club for severa l

>""e Judge Cameron Wa5 • devoted hi.lSband and father. Upon his paso ing. one of his friends noted that he was a "gem of a man" whO!;e loS!; is felt b}' all who lme...· him. He is sur· vived by his wife. Mary Josephine ;

three daughters . Eugenia C. FO.Iter of Mobile, Muriel Cameron of Omaha. Nebraska and Mary C, Ernest of Ilinningham: one SOIl, AI· len Roff Cameron. Jr.; seven grand· children; and numerous other relatives. Now. therdore . be it resolved. by the members of the Mobile Bar Ass0ciation. in meeting assembled this 21)th day of NO\'e!llber 1992. tmt the Association mourns the paS!;ing of Allen Rolf Cameron and does hereb}' honor the memory of our friend and fellow member who exemplified throughout his long c,a",er the high· est prinCiples to which the members of this Association aspire. request that this resolution be spread upon the minutes of this As>oc:iation. and of the Alabama Stote Bar. and that a copy be presented to the family of Alten RoffCameron.

Harch 1993 I 125

• M·E·M·O·R·I·A·L·S • J AY

J't1URPHY ay 1'1, ~lurphy. (}n~ of the na · tion', leading labor arbitrators and

ability to find a jm! .olulion." said Dr. Wythe Holt. VA re~arch professor of law.

tuchers of I'bor

teagues from around Ihe c(}untry recalled Murphy's zest for life, his

law, died Decem -

ber 16 . 199Z in Rockwood, Tennesue. He was 81. ~' urphy, who lived in Tuscaloosa. ~rved on the faculty of the University of Alabama School of Law for 34 years b~ginning in 1947. UpOn his rd ire· ment he brolme a full-time arbitrator and mediator. and throughout his career arbitrated cas.s in industries ranging fronl agricultu re to textiles. shipbuilding. health care and trans· portilion. At the time 01 his death. Murphy was arbit rat ing a ca,. involving a Rockford. Tennessee company represented by Gal)' Wright. a partner in the labor and employment law firm of Wimberly & Lawson in Knoxville. Tenness«. "Mr. Murphy was the dean of arbitrators in lhe South and was highly regarded by both management and labor. " Wright said , "'In hi' 41·year career h. a r bitrattd hundreds of cases from a list of industries as ex· tensive- if not more extensivethan anyone in the field. creating pivotal developm~nls in arbitration law."' '"Jay was much in demand. He was widely kmwm for his faimess and his

Holt and othu friends and col.

wide-ranging interests and his engaging disposition. "He was vigorously committed to peact' and 10 progress and to spiri tual ""II·being for all." Holt said. "He will be «membered for his compassion and his inlelligence-an intelligence that was warm and friendly. not ,harp and abrasi",. He ne",r met an argu· ment he didn't understand and he could debate with the best, but it was his nature to view thing, in a mOre holi,tic and friendly way. not a con· tenlious way: Charles ~lorgan. Jr .. former national director of the American Civil Liberties Union and now a Washington. D.C. attorney. called Murphy" a man of great character in a characterless time: Morgan said hi' former professor '"laught the Con,titution as a living in,trument that guaranteed rights. including equal rights, and free expression, and he laught it to classe, of .tudent. who cam. from a culture in which the Constitution applied to onlysonw: While at CWU he worhd as a r.~arch analyst for the Civilian foreign Intelligence before joining UA as associate professor 0/ law , He later

PLEASE HELP

~rved as a visiting professor of law at Ceorge Washington UniVersity. the Uni .... rsity of Kentucky. the Uniwrsity of Arkansas and New York Uniwrsity. During his tenure at UA. he also spent SOme time abroad: he and Mrs. Murphy ",,,'ed as visiting lecturers at the Seoul National University and he lped establish that institution's graduate school of law. Whil. in Ko rea. he and his wife authored Iwo books. Legal education in <l fu'<!loping Nation: The Korea £xpcri. mce and Legal PmI=ions in Korea: The judicial Serio",,,,, I1t!d Othn:<. Holt noted that Murphy was knowl · edgeable about Chinese and Korean art. and was a '"magnificient painter" hi~lf.

He waS a member of the National Acadelll}' of Arbitrators. Murphy i. surviv~d by his wiff. Tuscaloosa attorney Alberta Brown Murphy; his son. University of Alabama attorney Stanley Jay Murphy; daughter · in - Iaw Marita Murphy of Tuscaloosa; brother Slanley N. Murphy of Jackson. Mi,,;ssiwi; ,i,ter Lu Murphy Whitake r of Black Mountain. North Carolina; grarKlsons Jay ThOTT\a$ Murphy of Fairhope and Andrew Bridges of Tuscaloosa. The family requests that in li~u of flowers. donations be made to the Jay Wesley Murphy Scholarship Fund. Bo. 87(}382 , University of Alabama. Tuscaloosa. Alabanla 35487.

The Alabama State Bar and The Alabama Lawyer have no way of kn owing when one of our members is deceased unless we are notified, Do not wait fo r someone else to do it - if you know of the death of one of OUT members. please let us know, Send the information to:

Alice Jo Hendrix P.O. Box 671, Montgomery, Alabama 36101 126 / March 1993

TH E AI.IJW.1A LAWYER

• M·E·M·O·R·I·A·L·S • DONALD UMAR COLLI NS Birmingham Admi/lcd. 1957 Died: J.nuary 23. 1993

W i LLIAM GUY H ARDWICK Dothan Mmillcd: 193J Died: January 15, 1993

CHARLES EOWlN SHAVER . SR.

E D~10NSON S. COURI C, JR. CQral Gobles. Florida Admilled: 1960 Died: february 7. 1992

H ULON 1. MARTIN

GEORGE RUn.EDGE STUART, III

Dolhan

Mmil/ed: 1983 Died: [It,wnber 22. 1992

Birmingham Admilled: 1963 Dkd: January 3, 1993

W l LLlM1 C£CIL DA>'<IEL

JAY WESLEY MURPHY

AtmislQll

Tuscaloosa

liunlsl!ille Admitted" 1931 Died: January II. 1993

RNI'MOND GILBERT l lM'ON Scottsboro

Mmilled: 1952

Admilled: 1952

Admitted: 1957

Died: December 19. 1992

Died: Dectm ber 16. 1992

Died: January 10. 1993

JAMES ROBERT SCALeO Bim,mghllm

Admit/ed: 1985 Died: January 23. 1993

NOTICE

JUDICIAL AWARD OF MERIT NOMINATIONS DUE The Board of Commissioners of the Alabama State Bar will receive nominations for the state

bar's Ju didal Award of Merit through May 15. Nominations should be preparro and mailed to Reginald T. Hamner, Secretary, Board of Bar Commissioners, Alaba ma State Bar, P.O. Bo)( 671 , Montgome ry, Al abama 36101. The Judicial Award of Merit was established in 1987. and the first recipients were Senior U.S. District Judge Seybourn H.lynne and retired Circuit Judge James O. Ha ley. The award is not necessarily an annu al award. It may be presented to a judge whether state or federal court, trial or appellate. who is determined to have contributed significantly to the administration of justice in Alabama. The recipient is presented with a crystal gavel bearing the state bar seal and the year of presentation. Nominations are consideree by a three-member committee appointed by the president of the state bar which makes a recommendation to the board of commissioners with respect to a nomi nee or whether the award should be presented in any given year. Nominations should include a detailed biographical profile of the nominee and a narrative outlining the significant contribution(s) the nominee has made to the administration of justice. Nominations may be supported with letters of endorsement.

THE ALABAMA u\WYER

March 1993 / 127

"OPPRESSION" OF MINO ITT H 5: CONTRACT, NOT TORT By MICHAEL E. DeBOW na ,tetnt ~rtklf in TIre Alabama Andrew ~Il took W poiition that a lort action """. tits for a poIorlio:ublr b.ocli of Alabarru. torporalt law: the majority shuelloldus' bruch 0( thei r Ilduciuy duty towa ,d minority ,huehold.". ' Campbell ruch.d Ihi. conclusion bas.d on his rtadinQ of the Al,roma SUPUITH: Court's dtcislon In Ex parle Brown' and iu Stpttmbu 1991 summar» affirmanct of the plaintiff, viclory allrial in Michaud II. Horris. Sinet th. publication of Camp~lI's utlclt. the court .. hurd Mirhaud and iloSUfd 1I second opinion l ulWlimously ~rJ.ina the trial court. Still. the implUlion pisls IhoM the COIJrt his rteetniud a tori QlUR' of action in !he c.orpon(( ilfU - is mdonrrd by thr Ijllt of a poIon.1 diloCussion al the 1992 annual mtetina oIlhe ~ITIII Statt Bar on the "new tori 01 $ha.. ~r oppres.ion." This is not n«tSSirily what the Alabama Suprtme Court has don. tither in Broum or in Michaud; it is certainly not the only defensibl. ruding of tho ... ded· lions. It is still possible for AI.lb.uno law on the O!'P<t.won of minorilj> sllareholdus 10 $O\1I1d in <;Onlrxt, Blher tIun in

,,,,'

This ns.Iy uguts INt. if AlaIwna is clttmni!>td 10 Iry 10 "prottct" minorily sllareholdtl1. lhen ALibama COUri:l lnd lilt AlibMru SWe &r should rejtd lilt iIIlPfOKh Wtn by some statts in Iml-

:~.l~~i=~u=pa~~::p~ lire. oon«ptually speaking. fOn1lll of <;OnIratt I"w, BtclIuse of Ihis, Alabama should bt clur that the minority's 1 28 /~rd1

]993

Injurits au but undtntood as fIowil\ll from .. form of blUl:h of <;Onlrict. SpedflCllly. the minorily sllar~hoId. ~"' tLiim mould be ~ as a cLiim 11131 lilt rNjority's bellMor vioIalts lhe IIIrttmtnl IlIlIt lhe partiu would how reached II Ihe lime Iho busin.55 "'as formtd if 1htJ/ had Tlf¥Jliared a solution 10 the disput.~ point, This "hypotholiul

Surely anything that can be done to clarify the scope of fiduciary dUhes would be welcomed by most contracting parties wishing to ovoid the risk of expensive and uncertain litigation at some future dote, harpin" ,",roKh 10 oonllXt inlo'1're· tlItion is UHd by courts in lillil\ll gop:s in .JJ1 kind$ II oontlXtL' ~ oonvntntll-

ton ~te this IWfOlICh in cloK corPOBlion law.' ifltludi!ljj the Litt Hodge O'Nul, lhe falh.r of d_ corporation law, Given O'Nul's influenn on clole rorporation law in A1ab.una, his cone_po tion ofil as fMtntiallycOIllractual sums particularly important. A!. O'Neal saw it,

courts should -imply' or construct ;odditionalltTml for tht rontTQt;/ to gi« fff«t to lilt undtrlyi!ljj assumptions of lht put ... III the limt thty entmd into itlnd [should[ protm rrc/SO<Iabk~ IlIlioru gtner;lf<! by lilt busintsS uLilioMhip which the t;On.lrtJCI crelt«l"' If Ali1bama. is 10 recognize minority shareholdtr cllims of Oppression , I""'n it should adopt th. hypothetical bargain appfO/Ich, and should clearly plac. Ih. ca~ of action in lilt ru.lm of contnet ralher than in the realm of IOrt. Judicial d(cisions in II numbe r of oth(r st~ln suggtst INt those jurisdictions, in addi. tion 10 ~ 1IlI~ YtlIO cNractui.. Ihe nUure of minority shareholder opprw.ion d~ims. As I mult. AIabam:a his the opportunity to I(~ the w<l)' in the trntmtnt of thtso kinds of ca.w:s as tonlractUlI in llilure. To dlle, lhe Alab.una Sup.(mt Court has not bttn clu.r OIl this point. Indml, it is u~"tandlble tllal cortain ... pec~ of the Opinions in itroum and Michllud ha~ ltd SOITlt 10 conclude Illal these are tort decisions. !'or examplo, JUlllkt Cor· Il\ln Houston referred 10 tht cause of action M '" tort in his H'PIratt Opinion in Brown .' and in his dissent f.om tht court's origillil ~rmantt in Michaud. Furl her, Iht opinion on ",huring in Michaud lpelh mOrt Ih~n OnCt of sh~rtholdtr "rights" - and cites tht Campbtll ~rticlt flwrably on tho righb of Ihe minorilY," Moreover, ntither Broom no. Mkhl1ud clurly speiks in contTICI temu. Md 10 this tho fact 11131 the Irill court ~rdicl in MichllUd, ini· tially a/firmed by Iht SUIt .up •• mt cou rt, included an award of punitive Tm: AlABAMA u\WYER

~ ~

t1ut Brou:n irwolwd i lit!)'

WJ!t: f~ aw3rd to the plaintiffs' atlome)'.

and it iI eM}' to $It how thtse two QSfS haw come to k thought of IS "corpor.iIlt tOl1" dtcisions. Of COUnt. to all the ~rity's bruch of fiduciuy duty to the minori t y a bruch of contmt ntiIH than a tOl1 is more Ihlln i mere stmlOntk difference. MOSI obviously. II reneCli the fact Ihllt the partin to tilt suit volunarily .nteffil Inlo a contract ....1 relationship with one another. Thus, aoy claim resulting from th is relationship is conceptually clostr to a bruch 01 contnet than it is to an intentioNl tort. Indeed, corpOrations Can tUily be vitwW IS bundlu of contl'3ctS "among the p1Irticipants in the business. includ· ing shareholders, mlOniFfI'S, cffililon. employa$. and otht ... -' This ·ton~· lUll Ihtory of Ihe corponolion" is CUr· rently Ihe most widely acn pted uplanation of Ihe co r po ri it enli ty MtIOOJI business law ttaehers. Similarly. the putne"hlp lorm il increasingly viewed IS "lfJundamenlally ... a con· tnctual relationship among the pa ri· ners. To a subs tanli al txlon!, Ihis relalloruhip isl/OVtmtd b" ordinary coo· tract principlu regarding inte'!lf"\ation ind the Stalute 01 Frauds. " Thus, whether you think of dow ~ more In corporaie. or in partnership. terms. the IOnn Is but understood as i cootractUil relationship. Tmting a bwi· !lUi IS i nuus of "'pr~ and implied conl racts ctrtllinly wems 10 track the

Polrties' expectations more closely than dots lruting the businw IS 01. tongtom· erilion of inlfntiOf\lt 10rts w.iling to happen. II follows, lhen, that viewing minority lawsuits Ihroullh tho lefU of contract il consistent with the but uplanllion 01 both business rulil}' and

. . Alabama has little choice. If il lreots shareholder suits as torts, it will clearly signal business people that incorporation under Alabama law is relatively risky. tho law of business organiulions. The use of conlract iI$ lin organi2ing principk should provide $OITIO .5Iructure to the fllluciary duly owed the minority. It lI(let almost withoul uying thai the fiducillry duty is 01. diffICUlt concept. One ....1I·known dtcition <bcribed"lhr doc· trine of fiducia!)' relation" as "one olthe most confused IIId mtangled subjects in OOrponlim law ..... The half-untu!)' thai

has puMd ,ince this pronounCfment IffI1 illY grtal improw:menl in the clarity of the dutin owed unde r I flducil.ry rebtiorohip. Thot thr Abbama Supreme Court hid sueh difficulty drcidina Mkhaud - and ultilTllllely productd II dt<:isloo that offers IItry lillie guidance to parties aneTTlJ)(ing to plan their ,ff.ln - only underscoru Ihis paint. Ir>dttd. all thai one can I.lY maut Ihe AlaNmlO cast law to dale is Ihal it mandates" rather murky, multi.factor test for lIs ellinQ the "fairneu" of the rN,jority's trtatmtnt of the minoril}' - a tt5/. thai 10 dale has been applied only to i lit!)' successful operation (Greenetnck. in Bro",n) lind a bankrupt one lin Michoud) . Without furth .. olucldatiQn b" thr AIabamI Supftmt Court - or the lAgislilure - invtStors hllve no c1t1r picture 01 how the courU will apply this lest to the: YUt mlOioril}' of busineues whose profiubUily lies somewhere be\Wttn Grttllftncl< and a defunct fast food rUIlUTInt. This uncertiinty can only be compounded by truling the cause of action IS II tort. Surely anything that can be done to clarify the scope 01 fiducilTY duties would be welcomed b" mQ$1 ronlracting partie' wishinQ to avoid th e ris k of expensive and uncerllin litigation at $OITIO future date. Ust of the hypothttical bl.rgain ~ would limit the ~i1ity of judges and juries to compenslIte investors who haw btm "injured" only b" ..'hat tum out, in hindJighl, to Milt bn:n~" investmtnts. Further. under

his not

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this contractual approach puniti,,,, dam-

age. are not appropriate in .hareholder oppres.sion ClOses.' As a .esult. the hypothetical bargain approach would make the cau .. of act ion for opp.is.sion leos attractive to opportunistic minority ""11· ers .. eking 10 coerce a 5rlUement out of an arguably ..... 1I·behawd majority. This i. not to say that the hypOthetical bargain approach is a panacea. Indeed. commentators haw stressed the dimcul. tie. inherent in the courl$' &5$umption of this wk. " In .p ite 01 its drawback •. however. the hypothetical bargain approach - as a form of contract ana\;'·

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t. 565 or 503,

.i. - ... much prduable to conceiv· ing the minority's claims in term, of tort. Perhap, most importantly. focusing on the contractual aspeC15 of close corporations would protect inW51or$' fT«<10m of contract. [wou[d argue that the inVl'.tors in a busines.s venture - including the minority owners - .hould be allowed to contract for as much or as little coverage by the cour\>' notion of oppreSSion as thtj> want. In .hort. the broad duty of fiduciary care sugge.ted in Brou.'J'I and Michaud .hould be a default rule _ that i., one that applies to a given traru.action onl» if the partieo haw not expressly contracted otherwise. Put another way .• minQrity shareho[d.. should be ah[e to waive - to contract away - all C1T all)' part Q( the majority', fiduciary duty to him, A corollary point. and [ I10pe an obvi· ou' one. i. thai courts should enfotce contractuill terms which specify what duties are w~d the minority. Now. in any giwn Ca5I:'. the amount of protection the minority bargained fo r may strike the trier of fact u imprudent. even fool. ish. Il",,~r, a .ystematic focus on the eontractua[ nature of the corporation should lead to the enforcement of the up)icit terms of the corporate con· tract _ as embodied in charter and by[aws. and subSidiary contracts such u employment contracts. buy· back agr.ements. and so forth. It bears emphasi, that this approach is entirely compatible wi th Dun O'Nnl's analysis. Chapter nine of O'Neal's OppTesSion of MitIOri/V Shareholders describes contractual and other "arrangements" that inwstors can adopt -at the time a busine.. is bting organized Or before friction among the parlicipants has deoeloped to avoid squttze plays and opp ..s.sion of minority shar.ho[der5." ~ Further. O'Neal clearly stated that. in evaluating the reasonable· ne .. of the partiu' e.pectations in a bu,iness, he would place "primary emphasis on ""pectations generated by the participanu' original businE55 bar·

u..

. "n gam .

A willingness to enforce .~p[icit terrm N[ievt. the court from imagining what the parties would ha"" agrttd to. hypo· thetically speaking, and provides an incen\i"" for the parties to the contract to make their expectations clear up front. and to negott.te their diff.rences

explicitly rather than risk the imposition of court-drafted contract terms after the fact. Additionally. the hypothetical bar· gain approach will coexist more e.si[y with the busines.s judgment rult and the at-will employment doctrine than would a tort approach . And. in any ev.n!. Alabama has litt le choice. [f it treats shareholder suits as torts. it will dearly signal busines.s pe0ple thai incorporation under A[abama law is relati''tly ri.ky. Forty·nine othl!r .tat.. are eager to sell their incorpora· tion services to investors from Alabama. It .hould not be 100 difficult for in· vestors' legal counsel to find. state whose [aws.ro more hospitable to fr..· dom of contract than Alabama's would be. in thi, hypotheti cal. This would be unfortunate On two ground •. The forst, most obvious ground. is that Alabama would lose incorporation rewnu •. Th. .econd ground is that the,. development. would ... ddle Alabama im'estors with the totally unjustified additional expenses incurred in incorporation (or nincorporation) in another slate expen.es which one commenta to r recently described as -significant" for n small businesses. In sum, A[abama courts 'hou[d take the earliest opportunity to clarify the contractual nature of tht minority', cause of action; further, the A[abama I.(gislature should consider providing statutory darifie~tion on thi' issue. Of cou ..... any legi.lative action should be taken with an e~ toward reconciling the minority's new remedy with the statutory dioso[ution remedy. which may be in".,k.d in Ca5l:'S of Oppression. " Failurt to clarify the law in this area would strip inve,tors in close corpora· tions of their ability to plan and contract for their future obligations to one anoth· er. ilnd would ,ubject them to an in· cru.ing likelihood of expen.ive and uncertain tort litigation. [n the end. likely up.hot would be that mort and more small businesses would incorporate or roincorporate outside Alabama. •

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ENDNOTES , - p Cornpoot.~~

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1992-93 EDITION

Alabama State Bar Members: $25_00 each Non-Members: $40_00 each Send check or money order to

Alabama State Bar Directory P.O. Box 4156 Montgomery, Alabama 36101

_ _ Co<IoS'<>2A-'95('X1Xb) (1975)

TIlE AlABA."IA tJlWYER

March 1993 1 13 1

Th. AI,,""_ U "'IfW I J a nuary 1992 .. Novc mbu 1992

Ables, L. Bruce & Cauthen. Da" id B. "The Unauthorized Practice of law?" 53:363 Adams. Phillip E. Jr. "President's Page" 53:4.53:92.530240 ADMITTEES

fall 1991 53: 17. Spring 1992 53:375 Allen. Riellard F. "Disaster Re.pOnse: Do Yoo Know the Bar's Plan?" 53:267

B)orne. David B. Jr. "R""'nt Do>dsions" 53:134. 53284. 53:370. 53:438 Campbell. Andrew P. "Asa Rountree Come. Home" 53254

"Litigating Minority Shareholder Rights and the New Tort of Oppression" 53:108 Cauthen. David B. & Ables. L. Bruce "The Unauthorized Practice of Law?' 53:363

ATTORNEYS

"Aten. to Jwtke-Establishing a Pro Bono Projoct'" ~lelinda M. Waters 53:51. 53: 129 "Disaster Rtsporue: Do you know the Bar's Plan?" Riellard F. Allen 53:267 "Ex Parte Interview. with Corporate Party Employees" Scott Donaldron 53:312 "Helping the Alcoholic Colleague" Betty Redd» & Ruth Woodruff 53:359. "In The Spirit Of Public Se"'ice" Keith B. Norman 53:436 "Literature for Lawy<r£ A new awroach to an old subject" Duncan B. Blair 53:271 "The Unauthori~ed Practice of Law?" David B. Cauthen & L Bruce Ables 53:31'>3 "Uniform Guidelines for Attorntj> Fe. Declarati<>ns" 53:55 BANKRUPTCY "When is a Bankruptcy Lurking in the

Shadows of a Divorce ease?"' Herndon Inge. III 53:418 Blair. Duncan B. "Literature for Lawyers; A new awroach to an old subj.ct" 53:271 Bomstein. Paul "ConsuILlnr< Comer'" 53:60 B"","I". Albert P. "Remark5 at Op./ning of Court Ceremony 1991·92 Term" 53:12 t:ric G. "Com.mrcial Litigation in the United Stales Claims Court" 53:334

Bruggin~,

132 1 March 1993

CIVIL PROCEDURE

"Civil Court ~Iediation Rules" J. Noah Punderburg 53:150 "Re""".. ment of the Lawye ...· DiS<XlVt'ry Resparuibilitie." Paul W. Gr ...... 53:278 COMMERCIAL LAW

"Commercial Litigation in the United SI.lte> ClaiJru Court" Eric G. Bruggin~ 53:334

ENVIRONMENT

"Emplwc. on Environmfnl.ll Disclosure" Ricllard Y. Roberts 53:262 "lkgulatioo by the Alabama Department of Environmental Management" DIi";a H. Jenkins 53:23 "Environmenl.ll Considerations in Real t:.Itate and Other Bwiness Transactions" H. Thomas Wells. Jr. & Jarred O. Taylor. II 53:31 "Silviculture Practices and Environmental Law'" Neil C. Johnston & Harry &arins Pond. IV 53:38 !he Clean Air Act Amendments of 1990: E.pensive. Confusing and ~ibly Jail Time for Non·compli_ ana" William H. Satterfieldand John M. Wood S3A6 EVIDENCE

"Is an Objection to the form Enough?'" Robert S. McAnnally 533n '11le Rule on Exclusion of Wilne .... >--Beyond the Courtroom' J. Lister Hubbard 53:126

CONTRACTS

"Negotiating and Litigating Computer Contract>" S. Revelle Gwyn ~ndAI~n T. Rogers 53:404 CORPORATIONS

"Ex Parte Inte",i,:w. with Corporate Party Employees" Scott Oonaldron 53:312 "Litigating Minority Silarehoider Rights and the New Tort of Oppression" Andrew P. Campbell53:1OB Denni •. Mary Jo "Smart Moves to Beat the Recession-How Your Ltgal Support Sl.lff Can Make a Difference" 53:120 Donaldson. Scott "Ex Parte Intervie..'S with Corporate Party Employees" 53:312

FAMILY LAW

"When is a Bankruptcy Lurking in the SIladaw> of a Divorce ease?"' Herndon lnge III 53:418 Ford. Steven "New Alabama Work ....· Compensation Act" 53:365 Punderburg, J. Noah "Civil Court Mediation Rules" 53:250 Greene , Paul W. "Reas>essment of the Lawyers' DiS(:O'>'ilry Responsibilities" 53:278 Gwyn. S. R"''illle & Rogers, Alan T. "Negotiating and Litigating Computer Contracts" 53:404

ENTERTAINMENT LAW

Hamner, Reginald T. "Executi"" Director's RepOrt" 53:6. 53,94, 53:242. 53:3(12,53:390

"Entertainment Law: I> There Such An Animal and Could There Be One in Alabama?" Gail Crummie Washington 53:400

Hubbard, J. Lister '11l. Rule on Exclusion of Witnesses-Beyond the Courtroom" 53:126 THE AlABAMA LAWYER

Th", AIsb"m" l.4~."'~ I Jan ... .,. 1992 _ No~tDlbe~ 1992 Inge, Herndon, III "',\'hen i. a Bankruptcy Lurking in the Shad~ of a Divorce Cast?" 53:418 INDEX

Cumulative Indtx 1986,91 53:79 INTERVIEWS

Martin, frankl. 53:443 Merrill. Justice Pelham J. 53:77 Teague, James Ln 53:382 Wilkins, Robert Bernard 53: 294 Nachman, M. R" Jr. "Remarks on OI:di· cation of the Frank M. Johnson Build· ing" 53:275

"m Rountree Comes Home" Andrew P. Campbell 53:254 JacksQn, Sid""}' 1'.'.. III "Young t.awyers'

Section" 53:430

Norman, Keith B. "Young Lawyers' Section" 53:21, 53:99, 53:273, "In the Spirit of Public Service" 53:436

Jenkins, OIMa H, "Regulation by the Alabama OI:POrtment of Environ men· tal Management" 53:23

Norri., Robert W. "Opinions of the Cen. eral Coon ...!" 53:132

Johnston, Neil C. & Pond, Harry Searing · Silviculture Practices and Environ· mental Low" 53:38

OPINIONS OF THE GENERAL COUNSEL

LAW OFFICE MANAGEMENT

Pond, Harry Searing & Johnston, Neil C. "Silviculture Practices and Environ · mental Law" 53:38

"Consultant's Comer" Pau l Bon1.ltein 53:60,53:140 "Smart Mo;wu to Beat the Recession· How Your Legal Supp<)rt Staff Can Make a Difference" Mar)' Jo OI:nnis 53:120 LEGAL SERVICES

"Ugal Services Corporation of Alabama Continues Its Efforts to Provide Quality Legal Services to Needy Persons" Penny Weaver 53:100 LITIGATION

McAnnally, Robert S. "Is an Objtdioo to the Form Er.ough?" 53:377 McCurl~',

Robert L, Jr. "Legislative

WI1lP-Up" 53: 10, 53: 102, 53:244,

District Attorney conflict of interest 53:132

Reddy, Betty & Woodruff. Ruth "Helping the Alcoholic Colleague" 53:359 Roberts. Richard Y. "Emphasis on Envi ronmental Disclosure" 53:262 Rogers, Alan T. & Gwyn, S. Rev\>lIe 'Negotiating md Litigating Computer Contracts" 53:404 Rumore, Samuel A.. Jr. "Building Alaba· ma's Courthou..ts" Fayette 53:28, Lamar 53:]04. Tuscaloosa 53:247, Bibb 53:308, Shelby 53:396

Small. Clarence 1'1 " Jr. "Pn:.id.nt's Page" 53:300, 53:388 Spruell. Alyce Manley "A Helping Hand" 53:357 Taylor, Jarred O. & Wells, H. Thomas "Environmental Considerations in Real Estate and Other Busirwss Trans-actions" 53:31 TORTS

"Litigating Minority Sha,..hold.. Rights and the New Tort ofOpprusion" Andrew p, Campbell 53:108 Washington, Gail Crurnmie "Entertain· ment Law: Is There Such an Animal and Could '!'here be One in Alabama?" 53:400 Waters, Melinda M. "Access toJustict£stablishing a Pn.> Bono Projtd" 53:5],53:12'9 Weawr. Penny "Legal Services CorpOration of Alabama Continues Its Efforts to Provide Quality Ugal Service.< to Neroy Persons" 53:100 Wells, H. Thomas & Taylor, Jarred O. "Environmental Considtrations in Real E.state and Other Business Trmsactions" 53:31 Wood, John M. & Satterfield, William H. '"The Clean Air Act Amendments of 1990: Expensi,... Confusing and Possibly Jail Time for Non· compliance" 53:46

53:304. 53:392 MEMORIALS

Bradley. Judge Robert Proctor 53:2'95 Enwrson. Richard Bailey 53:157 Harwood. Justice Robert B. 53:76 Hawkins. G«Irge C. 53:382 Huey, Judge Thomas Edward, Jr. 53:156 THE ALABAMA LAWYER

Satterfield, William H. & Wood, John M. '"The Clean Air Act Amendm¢nts of 1990: ~:xpensive. Confusing and POMibly Jail Time for Non-complimct" 53:46 Silberman, Wilbur G. ' Recent OI:cisions" 53:58.53:134,53:284.53:370,53:438

Woodruff, Ruth &: Reddy, Betty "Helping the AlcoholiCColleague" 53:359 WORKERS' COMPENSATION

"New Alabama Workers' Compensation Act" Steven Ford 53:365 March 1993 1 133

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TIlE AL\BAMA 1AV,'YER

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Exam,,,.

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THE ALABAMA Ul.WYER

Eleventh Circuit Court of Appeals

APPELLATE CONFERENCE PROGRAM The United States Court of Appeals for the Efe'.oenth Circuit has estab · lished an Appellate Conference Program . Guidej ines and procedures for this program are sel forth in Rule 33-1 , which took effect October 1 , 1992 , Appetlate conferences are scheduted by the Coun with lead counsel for all parties in selected civil appea ls. Conferences are scheduled welt in advance Of briefing and two to three wee\(S in advance of the confere-nce date . They are conducted by the Court's conference anorneys, who have had extensive trial and appellale e xperience and significant training and experience in media~on, Most conferences are initiated by telephone. The purposes of appellate conferences are 10 offer participants a confirisk-free opportunily to evaluate their case with an informed , neu-

den~al,

fral med;ator and to explore all possitl<lilies for the voluntary dispos~ion 01 Ihe appeal, Cooferences are designed to address any matter fhat may

aid in the disposition of a civil appeal and to reduce the attendant time and expense of the appeal.

•

Conferences generally begin wrth an inquiry as to any pr'Ocedural qllElS' tions or problems counsel might have thaI coukl be resolved by ag ree· ment. The discussion then moves 10 an exptanation by the parties 01 the issues on appeal. The purpose of this diSCUSSion is not to decide the case or reach conclusions about the issues but understand Ihe issues and to evaluate the r&SpOCtive risks on appeal. In many cases , a candid examination of the probabilities for various possible outcomes of the appea l is helplul in reach ing consensus On the settlement value of the case. This examination may be done in a joint session or with the conference attorney talking

privat~y

to one party.

Every effort is mado to generate offers and counteroffers until the parties either settle Of know the case- cannot be settled and lhe measu re 01 the difference between or among the parties. However, no actions allect· ing the interests of any party or the case on ~s merits are taken without the consent of ali parties. The Court, by rule and by verbal agreement of the parties at each con · ference, ensures that noth ing said by the participants, including the con ference attomey . is disclosed to anyone on the Eleventh Circurt Coun 01 Appeals or any other court that migl11 address the merits of the Coun stridly eotorces this confidentiality rule.

case. The

Furthef Inlonnallon on this new program Is available through the Appellate Conference Olllce , Untied Sta le s Court 01 Appeal s, Eleventh J ud1c1al Clrcuil , 56 Forsylh Streel , NW, Attanta , GeorgIa 30303. Pho ne (404) 730-2820.

March 1993 I t 35

I W- ,

•

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