The Union Bank Trust Department. Your Hometown Advantage. Come Homem Us. UNION BANK I
tn.~ M.~K. TlIUSl" CO • ~MEn. Al..\.M.'MIMI:MIIHMnlIC
Schroeder, Hoffman and Thigpen on
ALABAMA EVIDENCE INTRODUCTO RY PRI CE
189 .9 5 Reglll~!ly
$74 99
bV William A. Schroeder, Jerome A. Ho ffman and Richard Th igpen
COPy,IOIl1' 111111. 488 IMJIfII. S" • Do IrUn 11.11. h B.dbOufl(l
In KIY.. 9 N~", III""
, -__ T.ble 01 Contents - - -,
In thi' comprehenSive examination 01 the rutes 01 Al abama Evidence, th e 'utho,s pr8S9nl ltn In-depth diScuSSion 01 allw6as
01 evldentlarv procedures !rom Iha relatively Simple WBy$ to object to eVloonce through compo\MCEI, privileges, relevance, Impeachment . the bes t evidence lule and parOl eVidence Many sac ti ons con t aln a d iSCUSSion o f Fadelallow and how It compares t o its Alabllma counterparL Case lew 18 thoroughlv cited 1t1roughcut Ihe book An excOlion t reterence tool 101 both the Inaxparlenced end veteran lawyer I
Obtaining. Orl ellng and Objec ting to Ev,dence · Competence • heminatlon 01 W,tnellel • Relevance and limitation. on the AdmSSl on 01 Relevllnt Evidence . Pllv!legel • Impeachment . hpelt TUlimony • Heallay • AUlherlllca tlon and IdentifiCation - Rul(l1 901. 902. 903 • Specllli Rule. Rel ating to Wlltingl lht! But Eyidence Rule and the Parol EVidence Rule ' Reftl and Demons tr atlye Ey,dence ' Judicial Notice ' Presumptions Burdens 0 1 P,OOt lind Pel suaaion
AlNut tile Auth .... _ _ _ _ _ _ _ _ _ _ _ _ __ work .... A k l"o.<itI • _ _ "', B A _
"0l'I'l ,... u,,' ......,ly 01 """",••nd ",.lL M H..... 'd Llw S' 1IoC»I Ht I, •
........ 'un
8 .. Alar;IOlI'lOfI HI!
...."''*
J0 I,,,,,,
........... A 0.0ll .... n , . . : _ bO.1I h" 8 A Inc! JOlt""" lhot U"''''''''v 01 Natrr .. ~. Ht ... ~ 0' 11\4 AII~ S'"tt Auoell' lOf\ _ 'M $'11' I .. Alloe'''1011 0 1 C""orN, Ht hi. bMn , 01 ,1>1 ...... ~ml SI/fII_ COUt ' I """'ory Convnl1'M on C..... ",..:"c•• nc! "'oel<lllr' "f\(\I III C, ..' _ In 19/' H, II c\II'If\IIV' P,o l, ..or or l,,," ,n. U"'''''''IV 01 .111._ School 0' L.w wI>I<. hi IItc"" ~¥iIIIfIC:' """ C... I P,OI:tdure
a..
<I' It..
,"ugn. ( _•.
""""*
I'
C,,_ "'oc.dut••1Id ",.. AdYoc:Ky In. u .......... y 01 .111_ I,,,,,,, 1$60'0 1~ S....:. .n.n n. nit bttn. "OI,"JOI .. I llw.' SOU lllll n 11l1nOI1 Unl"""'Y School or L. w _ . n. "Kn.1 ElIO(Ienel ..... C"m","1 P'oe"""' ..
AI(: .... d TI>IgQIon
,_,-..cI lit,. A rod III A "OM
IhI Uno .....,tv 0' A"~ ,lid 1"111 J 0 hom .n. Un4.... II' Y0 1 .111_ Sc:hoOI or LIW Ht ,," In ll.M hom V... 1.1.........,' ."" 1110 In llO (tcot>or .." r.om ' M Un,,,,,,,1Y 0' AI~ Ht ... ......- 01'hi A'.!HI .... S,.,.I., .11._11'I0Il Ht P,olll .... or L_., ,,,"u"'''''''' YOI A'.~m, Sc:1IooI or l.w
IICUf''''"''
Buy Schroeder. Hoffman and Thigpen on Alabama Evidence and get 30 % OFF any of the treatise s lis t ed beJow: GBmblo & COfley's Alabama lew of Damag• • "' 1982 (wI CUI ,uPP) 4"1996' $55.95 McCurf9y & DoVls· Alabama Divorce, Alimony & Child Cu. tody "' 1982 (wI cur supp.) ."19, $47 .55 H8nsfOfd's Tillay '. Alabama Equity 2nd Ed. 8 1985 $1896" $34.95 Ho " 's Alabama Limitation. of Action. & Notice Provisions 8 1964 (wI cur supp) $(1795 $28 .65 Hood, Hardy'" Saad's Alabama Workmen'. Compensation 81982 (wI cur supp) 644 95 $31 .45
1---- A N~ /OR gel 40 %
OFF any of " The Law in
series li sted below : ----I
J6""6S & Wllkmson ·s Collection of Accounts "' 1981 (wI cur supp ) S2i 96 $18 .15 Wa/lh8//'S Corporetlonl - Fo rmation With Forms . ' 98 1 (wI cur. IUpp) S2i QS S1 8 .15 HSlrs lon's Detinue, Euc utlon. & Mechanics' liens 8 1900 (wI c ur IUPP I 96 $18. 15 Je" "os· Enforcement of S8c urlty Int. r.sn In Perl onal Property "'1900 (wI cur supp) ~'~'6.~"''' $ 18. 1 5 Huskey & Elhoredgo·s landlord & Tenant - Breech &. Re medies 819B l ~S 8 5 $1 8 .16 Je""es ' Wrongful Death Action. 8 1979 (wI cur supp.l &2695 $16 .16
,:as
Want f.6t, sfficl9nt service? Call our toll~free WATS
1- 800-241 - 3561
THE
W HARRISON COMPANY, PUBLISHERS 311 0 C,olll"1l P"k ° P 0 Bo. )600 ,
No . ~ , o ...
Gil 3009 1·7\100
57, A7
The Alabama Lawyer
121
r;;:E~;;;;:;;:;::':;:;:;::\ t' , . •
""
•
•
••
" .. i
ir
i
•
..
i
•
f
....
f
•
\
f f l ' f ' f ' .. · - .. t~,
Legal Aid aelfardle•• ot what you learned in lAw .ahool, the practice 01 ).Q.w 1a 8. hl&hly oompetltive bu.lno••. Like all bUJIlnoll8~. the pl'OfltabWty of your firm determine. 8UOOO•• or failure.
Inat.a.llatlona in BOmo of Alabauna'. moat prGat1jrloue firms ha.ve provided thorn with an Improved profltablo bottom lino. We can help you attain thl' poaitlon, call u. todu.y.
Opetatlnll' S~tem •• Inc. providelt a 1M)1utlon from that utUi%e.
The Best Legal Aid A Law Firm Can Have.
teohnololY to:
eel
Increaae the produotivity of
attorn~_
Improve the quaJ.lty ot .ervtoe to your ellenta. Help your firm cope with the compeUtlve environment.
O6II~=~g 34.1 91ndepondenoo Drive Blrmlnaham. AL 38209 PhoDe 205 / 879·15614.
n• rle
The Alabama
3",yer O n Ihe Covcrp,u~.m i•• wnW'! on ,he CO(lW III .... , ~, FOIl louloo.o~~_ ~~rt., •
16s."c,.... IllIIOI',ul p.o,~ I<> <.k'd ~ .... <onIIumrG 04
l1li''00I00 ...11.11._
"...,~ ""0' w~wlllf*' AIoI;oo .... tnIM.,wIy "". <:1,IJMM 01'0 600 "0
w"k ~.." ""....""'0'" 1(1 JOOO 8 C. ,n,. ,u,k w•• • 1... ,IK- .I'~ 01,
d.,I"1
"'n
I~CIt< ...
IQAI"QI CQMMII)IO"'IIU
1117 Ir",u k .rod on 18 U Inr, h"II, by "'Id'.....
t ......... ~ , _
~ • Choo4ooo • ]"" " ........... L , .... ""'" "''1_''10 ' ,~
co. ... , '..."OW_ ... I.,.,.( ....... • ". 0<1 ............. _~,_ · !IIIC
~"'_._
, L.... .... "'...... _ ..... ...... 'w_.(_' .... 1. """'" 0....... , ___
_ .1110 w_, _ _ W-., ........c...._"". 0.. ............ ............ l ........ ' ,.,....... ·· ',Cllllr;.. ............... c_""" .... ,_ _ . ,ao.. . 010 , - . . ... (Ho .......... c;Ioo ... "
" ) c ; - - . _ . ... ~,..N • 1000
I ,_,," ,_,
~
, 1 __ ...... ~
)._~
'_~ ,..........- . ,OiIoC
, .. _ .... I, ' _ I !'IoIItod,~ . , . . .... , ............ ~L ..... ~,_ · , . . C... ..
!OI-~_
Tod.y, bo!k IQtt•• ", r.,. tle.,ed. ond .."I.rI, 11111'1 .11 Q(tuJ),l'O<I, . r~ dllpl.vro In 'IK- C">1'lII"" ... '-1""",,,, 0In,., ,...,", ... Ito('h~1u "OMII " .. 1". bo,o. ,."nrh, J>I<"ic ~'t••, Improved .. rnpj"~.rod. ' _ k Colon'6' U.'''8 ItiOIory f lit _ In .... ~oQ01,;.. ,,,,,,100-,, pt.,.,., U051 'b1·,lCiOl
1'foS''''''
'Ot, '''''I''''.....,.tl_ P.ul
-p/I!>IQ by t.wfWlCr (HIJIl')', AI.t/:loln ... 11.110<...1 (,,'"
m....On,
Employmenl Torl s-by Geo rge M. Walker , .... . ,', ..... . .. 148 While Alid)"mjl continues 10 IIdhere I~ Ihe " e'\1ploymenl· ",· will " doctrine, Alab.lma cases have ~);panded other lorl concepts in Ihe employment are<l.
_ .... '.I_o..o.. _ _ · 'a.,c-.o .....
......
~
.. _.........- . ,... {>owo_
_ . ".. ,..... _ ..... ,'..,c;....,.,._. .... ,................ '._H ......... _ L... __
-<'......
1._. [. . . . _"'.,. .
~_ I_. · ',.,~
C~.I
..
~,
e ,_. _
.... . , ... CIo< ... "'...... I. " _
,,.,t .."" ........_ . ,)01,0............. I, __ • 00< .. , ...," No I,
hoIo .
C........ II!OA , ..... .~
..... "
t ........ .......
~
r.~I.
,~
c........ _, ......... . !SI~ 0."" " ... No
1001., -......... . ,.." c;1.-..... ' .......
,
I} .....
''''. r_Ioo ' 11.. c,"' ..... •~_ I .......... o....."..I~ • ,I0I0 c"'"", 01, ... f ,_. C _ ' '".0"' .... 1)o.
_. _. ,....._·_Ch""",.... I.......
,--_.,"""""" ......... --..'_.j... _ · I'~C"'"
I"",'C. _ 1 _ · " ... 00,,"
'.~
u.......
W _ . ) . ' _ ' ... . l)dCW< .. ,... .... "
_._0.-
.... -..._,_·l""C ...... _"_ .... -., r.. • ,nil 0 .... c:.. .... , ,
_
. ,..,(>0. ... _
~
n...\oo>
_
~
.... 0 -......
,_
' lSoloC_ ~
,.,.,..,
<--.r_ . _c......." _...... _t
. . _._... _-.__._"'_._._ ,_ _,--_ -,..,..--_ -',-",-_-, _..... 1
'_IIoiC.. . I' .. o. ... e..-~
• II"" C...... __ I _
..... D.oid ...... , ~ • "'" (>0. .... "'... . , .... cw,... .... _ " ' __
Termination of Parenla l Rights-by ...... ..-·Iwoc....... _n_'_ Greg Ward ......... , . .. . 142 _ · .... t ...... ,c.,o . _,_·I. . C .. . . ... ,..... ...... Wilh Ihe Incrc,lsing nalional focus upon Chi ld abusc and lhe P3rent-child relation· "OMI ' N'IA' ... ,m ... IION rho ..,.~ "~'''' (I"" ..117l, "'" ",,_ .. I ...... _ AWwoI.t _ to, ........ .... ..... _"'--. .......-'. ~ hip, the judidJI fCmedies aVllllllble for ter· Mo\-, ................, ........ "",II".).
..... , ... .
_~,~. ·
_c
............. """""_.,,,......., .............. ... _01 .... _ .............1 , _ .. " " ' _ ' " "_..........-,,_.. _"', ................ "' ... _'"* .. 1""01 ....• _ _ _ . \ '1 ~
....................... ... ,... ....... .... .............. .............. ..-....,._ ... ... c-...'", ""'....-... ..... ... , .. - - , Aj ....... _
TIIo ...
... - - " " ' , ..
_t...."'-. ". . . . . __ . . . . .
l " ....... "' " " . - - . .... 110 _... .... '"""""'_"""" _ _ ... " 1 Do ....... ... _
-......,.,Al 140.001
,..,...~
..... _U pM
....... jOU<NI, ..... " '......... _tool' ,100.1'0l'*I0 poIcI .. _ . _
"I.
100<_
POSlmasl er : Scl)d .,ddrcss c: htln ges to The AlilbiiOlII Lilwyer, P.O. 30x 41 56, Monlgomery, AL 36 101.
The Alab.lma I.<l\\-yer
minatlng l)areJl tal rights have been u ~l,<l with increasing frequency. WhJt are thl! s landilrd~ which guide Ihe 11I1g.ln t ~ in determining If 1),1ren t.ll rights should be altered or termln.llccH
The Status of Ihe Ca usation Requ ireme nl in Medica l Ma lpraclice-by A. Neil Hudgens, Michael S, McC lolhren and Thomas H. Nalan, Jr .... , ... .. , .. ,.". 158 Medical mrllpracl ice cases occupy 11 somewhat unlqul' SI,'IUS in lC1ms of clements or I)roo(. The "C.105i1tlon" requirem~nt hJS been the sub)&'1of discussion In scveral weenl decisions of Ihe AIJbilma Suwell1e Courl.
INS tDE TH IS ISSUE l'fl~kk!n t 's
Pas!! he<ullvC Oirec'or'~ Report Aboul Mcml)t'rs, Among Firrrs
Riding the 6~,
Chcull~
llriel~
Alab.lmd') C()u'lhou !oC~
Bolt COln ml~~lo "f'rf ACtiol1> CLE OPllOlIllllilies let\lslotlve Wr,,'rU p COll1mlllCt'~' Ik,)()rt5
12'1 O,)Jnlon~ of lhe Genc'al Counsel 125 Dlsc,pllnary Rf',)()f1 128 MCLE News 131 Recent Deci~ioos 13 j Hono, Roll: "'l1omcy~ in IOL T... 138 140
Hono' RQII: Financial In' IIIUI'OM Young L.lwyers' Secllon
152 162 163
MCIl1()fiill ~.,
Key Lt'8,sl.11ivc
I ~~uc.
Classlfle<l NotlCl'!s
"6 "7
',7<" ", '76
'" 180 182 183
123
President's Page t its mcctinKonAjlrli1, 1988, the board of commissioners unnni. mously :ll)provcd Ihc recommen· d'lIlon of the InSUl'ilnce Progrilms Com-
full time "oout M(ly 15 as director of programs and activities. Keith has been .. dedicated worker In the Alabama Slate Bar, and we are most fortunate that he ml11ce that rhe bilr endorse and assist in has agreed to come with us. I kn(1¥Y yOu the advertising and solicitation of memwill enjoy workIng with him. bers ol lhc btlf for fUllds, subscriptions, Our IOLTA program continues to gain memberships or debentures rel.ued 10 momentum. AI the time of preparillion the capitalization of II captiY(! Insurance of this rl:porl, \.'Ie had 293 trust accounts company for professional liability in. COnvert l>d to IOlTA Interest·bearlng ac· surance. The oor also will parl ldp.'ltc in countS whi ch represcnt 901 lawyers. 'liVe othN activities that may be rCilsonJbly are obtaining excellent cooperation from IlC<:CS5.11)' to the promotion, organl:Wllon banks all oYer the stote, and t urge those and d<.wlopmcnl of the captive, The of you who hffiIC not tilken the simple commission ("me to i l ~ decision follCl'Mstep of converting your tru)t aCCOunt to Ing .. length..,. period of careful (omlder..an IOlTA account, lake time to do so lion, ilne:! afler obt;lining two polI ~ of the naw. To date, the Alabama l.itw Foundamemhership and consuhlng wITh Mction, which will administer the IOl.TA Neilry InSUfilnce Consulling Services, grams, has recei\oUl S23,146Al. The Inc., an insurance consul ting firm which board o( trustees of the foundation is advised a nllmber of the existing CJ Pt i~ determined to dCliClop 5~ tems assur· In other states. ~ilre indebted to Henry HARRI S ing thai funding will go to projects of Henzel and the tnsurance Progr.lms which the public and the bilf will be Commi1tee for their hard work. proud. t urge YOUl5UPl)(lft of thi s uffort which will :li!oo the lawBy order effective March 30, 1986, the Alab....na Supreme yers of Alabama to take their destiny In their OOn hands Courl afllf;!nded Rule VIII of the Client Security Fund rules and aSSUR:! the iMIilability of i n ~urance and stJbiUry of pl'Cm· to provide that only those persons holding an annual busiums. I pledge to you that I will give this my dose auen. iness license ~ hilll be ilS5C~SI..>d. At thai time. we had retion throughout the remainder 0( my term in office, and ceived 1,4)0 contributions of $25 each from special memthe project has the support of both of my successors, Cary bers who now are exempt. The b..., commission felt that I luckJby and Alv,] COline. I commend it to each 0( you. (ai rnl'S$ dictated th at w@ should offer to rc1'und to those t am delighted to welcome Major General Robert W. members their 1988 assessment; howcYer, In doing so, I Norris 015 General Counsel of the Alabama Bar. General h3\IC oppeilled to them 10 make their 1988 contribution Norris retires July 1 from his position as Judge Ad~atc a VOIUnlilry one. The amendment Jlso exempts any per· General of Tne Unil/,'d St.~tes Air Force. I"le is an At:lbama son admitted to practice who has rcachlod the age of 65 lawyer nnd a graduale of the University of Alabama School yeJrs and retirt.od from the active I)ractice of law. of law and orh\gs nOt onl y cxceUent credenll:lls but en· 'vVc con tinue to move (orwilrd with the 1)QI1<onviclion thuslasm 10 this Important IlOsltlon. I knoo all will lend C,l plllli representation project hcadl'<l by former Governor SUPllOrt to General Norris. Albert Bn..>wer. The resource cerltCt to be established at the We will miss Milry Lyn Pike who recently resigned as University of Alabama School of Law will be Incorporated asslstilnt executive director 10 accept a position as directand known <IS the Alabama Capital Resource Center. The or of Pfores<ional education with the Association o( Trial (ollowing persons have ~n asked to serve on the inilial I..;)wyers of America in WaShington, D.C. Mary Lyn did a board of directors: L. Murray Alley; Dennis N. Bitl ~ke; superior job for the bar in many areas, p<lrtlculMly d~l· Frank S. James, III; Rich ard S. Manley; Richard H. Gill: W. ol)ingthe Mandatory ClE program (rom its ~inning and Harold AlbriUon, ttl; Robert l . McCuriL'Y, Jr.; Frank II. working with our many conlmillce5. M.lry Lyn carries with McFadden; und Oil\lid A. Bagwell. her our vcry best wishes. and she knows we expecl her I remind you to make plans for the annual mccting in to IIlslt whenC\ler she has the chance. Birmingham at the Wynfn.'Y Hotel, July 21·23. We expecl I om mOSI pleased thilt one of our OlilStiUl(!ing young 10 hallC a segment o( the prOgrOlr\\ ded icated to e~plalnlng lowycrs, t(cith Norman of Montgomery, will join the bar and promoting the capti ve Insurance compJny. •
A
124
MilY 1988
Executive Director's Report Hail and farewell-The Montgomery/D.C. Switch! Goodbye i1ry Lyll I>ike has rcsls"ed liS
M
assistant CICccutlvc dlrcclOr of the Al abama SlOne Sar to become director of professional educJtion for the Association of Trial lawyel"i of America In the association's Washing"
ton, D,C" headqll<:lrlers. M:lry Lyn began her enw10ymenl with the Alilbama State Bar while tI law Stu-
dent. She worked wjlh Professor Camille Cook In the develClpmenl of the Mandatory elE PfOgri.lm which Alabama OOopled In 1981. Following her gradualion.
she moved
\0
,".1onlgomcry and, wilh the
tlon function would be met. She coordin;r1(.'(1 the phase-In 0( each functir:mal area and the training p'ogram of the stilff. The Alabam;r SUIte Bar has benented from Mary lyn's com'Tlcodable talents, as have the numerou) community and civic endeavors in Montgonlt'ry in which she 1>.1rticlpalcd. She hilScoveted <I prof(!$~ionill opportunity In Washington, I am confident ATLA has choser"! well in selK"ting her to direct its professional edUCation efforts where she loins another Alabama Sta te Bar member, Tom Hendersorl, who Is AHA's new executive d irector,
bar's MClE Corilniisslon, Implemented (I
model program that has run wilh near
perfection, The bar's i1Cceplancc of MClE In
Alabama
Is 11 refll..' (tion of the
quality and emdency of the program. Several of our neighboring Siaies halle
adopted Qur reguldtlons and plocedurcs almost verbatim. Mary Lyn 's implemen. tation and adminlSlr<lIion of Ihe MClE rules and comm ission policies, with the help of Olilne Weidorl, has establi5hed our program as one of the COUnlry's best. The activity level and volunteer Involvement in c;ommitlee and section activity In recent years is another tribute to Mary Lyn's cffecti '/l;: role as staff liaison with these vi ta l aSSQI;iation entitles. As our assista nt eKecullv(J director, Milly Lyn also coordlnat(."(ithe computerizati on effort of the bar. She worked closely wi th the vendor and programmer to Insure that the needs of cvery aS$()Cia-
The Alabama Lawyer
W elcome Coming home to Alooilmn from Wash路 ington to ~on\e AIilb<l ma State Bar Ceneral Counsel is Robert W. Norris, the curren t Judge Advoca!e General of the United States Air Force, lie Is princiP<l1 legal advisor to the Air Force Chid of Staff. General Norris will retire from the Air Force July I, 19B8 , Both Gellera! Norris ,md his wife, the former Marlha Katherine Cummins, a(e natives of Birmingham. Their daughter, lIsha, is a hospital administrator and their son, Nathan, will graduate from the University of Virginia and en ter law school In the f,ll1 of 1988. Norris gradu:Ited from the University of Alabama l aw School In 1955 and earned an LL.M In taxml on from George Washington Unl路 vcrsity. He has held virtually cvery rna. jor position in the Air Force legal system.
HAMNER H is commendable talents and experience as a lawyer and administratOr will bring strong direction 10 the olnet! of gener,,1 co unsel. A screening commillL'e ex!eodcd intervicws to nile nnalists from among numer路 ous applicants for the position which becilme VJGlllt upon the rL'firemcnt of William H. Morrow, Jr" the bo.1r's general coun!>cI since 1964. The w orklOild in the office of the general counsel con tinues \0 grOw at iln acceler;l1cd 1)ace. The boilld of comm issioners authorii:ed tht: employment o f a third assistant general counsel lind ili> l)rOI)r/ate sut>\x>rt personnel; however, these actions will not lake place until Gl.!ncral Norris has an opportuni ty to revl(Jw the entire opera tion al tho Cen ter for Professional Responsibili ty. Requests for opinions on ethics Issues continue 10 iocrease. The Issues of adverti sing and solici tation, prl\ale referral
125
service and unauthor17ed practice of lilW complaints cOnlinue to present stlmulat· ing issues to the disciplinary commission. Also, the ~uprcme court has before it fOf consideration the model Rules of Professional Conduct . Their adoption In Alabama and fu lfilling the profession's responsibility at self.regulat ion will chalienl!c General Norris and his co'oYOrkers.
Client Security Fund eye-opener The CM!1",111 response to the 1988 Clit.'Ilt Security Fund assessment notices has been positive; h()Y,IC<.ICr, I was shocked 31
the number of IOOges, publicl'fenllJl~ attorneys and non-practicing lilWYCrs who questioned its applicability to them. Ours is a great bar and a strong profession with the privi~ of practicing In the n'llioo's foremost Judicial system, not to mention under thc 'oYOrld's greatest ConStitution-ycltoo many of our memo bers think that the $150 annual business license Is what makes one a member 0( the lesal profession in Alab<1ma . Each person admitted to practicc tolkes the Silmc oath to gain the privilege to prac· tice law in Alabama. This privilege is at· tended with certain professional rCo sponslbilities. •
Don't let your
Alabama Lawyers get worn, torn or thrown away.
Order a binder (or two!) at $10.00 each from:
The
Alabama
LOSING YOUR TITLE CAN BE SO INCONVENIENT Leaving your home isn't easy. But if you lost your title, that's exactly what you'd have to do. A title must be defended when challenged. With ~lississippi Valley Title Insumnce prote<.ting against any challenge ~ to your ownership of property, you won't lose your title , or have to leave your home! Milslsslpp' VoIl.y TItI.
·e
$Iu/, Olfinl:J24 Noltit 21st $I.IBjmljngllm•. JlL 35203 7bl1 f re, 1I8001843· I688m~fox ' II326.()919IA Mim'nota Til/II Compol"
126
Lawyer P.O. Box 4156 Montgomery, Al 36101 or call (205) 269·1515 May 1988
Scttling an estate can be a complex proposition. But it's nothing compared to building one. HO\v will you invest? Whl1t kinds of risks arc you willing to take? And who can you rely on to help you mnkc the right choic:csl Consider the TruSt Services of AmSoUlh Bnnk . You mighllhink ourcxpcrtisc lies in CSllltC planning :md scuJemcm. After all ,ourThlsl Divi-
sian hns an unparnllclcd record in these areas. But our profcssionnl slil(f is also qUlllilicd 10 make the kinds of investments 1hM can help J'tlu grow right now, from real estate and bonds to high-grow th cc/uity investments. And with llose kinds of investments in your pocket, you'll ..t=,.. ... "
soon have :m ('Stoue \.VOnh scltling.
Ftlt more InlQrm.oliun About (IlI11hJ>I ~Ia:s, (nflIRCI )QUr n.e~ rtsl Am!uuh bmnch. (I
L9S8 AmSoulb Ba noorponulon.
JI' â&#x20AC;˘
In Ib r YourGmrwlngNtoeds. U"\IV~
Mcm~f
!'OIC.
AmSclI.nh DA:'Ik,
N."'.
About Members, Among Firms ABOUT MEMBERS Jud y Ml! ndd Ga rfin ke l, vice pres. Idelll, hurn~n (C'Sour'ces, RancHos.on Mortgage Corporation, formerly MOt'Ig<'lge Corpofi\llon of the South, has relocated to the Florida divIsion of BancBosIon Mortgage Corporation. Her office is l()(at(.>Q (It 7301 BaymeadO'NS WilY, Jacksonvi lle, Florida 32216. Phone (904) 281-3000.
•
Dilvid A. Garfinkel, formerly a p<lrt· ncr in the firm of \leill ilnd Carfinkel, announces ni$ relocation to Jacksonville, Florid", He w ill ~ emplOyf!d with the firm of Dal z, Jacobson &
lemllcke, at 2902 Independe nt Square, Jadsorwille, Florida 32202. Phone (904) 35505467.
•
Donald lfe Heflin of Huntsvi lle has joined the Foreign Service and been confirmed by the Senate as Vic~on· suJl3rd Si:crmary in the U.s. Emb1lSSY in Lima, Pw u, effective July 1988. His mailing address remains P.o. Box 875, Huncsville, Al abama 35804.
•
Richard E, Shields announces the relocaCion of his office to 63 South Royal Street, Suite 308, AmSouth CentcrlRlvcrvlcw Plata, Mobile, Alob....ma 36602. Phone (205) 432·1656.
•
Richard K. Mauk, former clerk to BankrUl)tcy Judge Stephen B. Cole· mim, (lnnounces the opening of his office at One Perimeter Park South, Suite 320, South Tower, Birmingh<lm, Alab(lmo 35243. Phone (205) 969· 33 11.
•
David l. Ratcliffe announces th e relocaliorl of his office to 1005 Dauphin Stree t, Mobile, Alabama 36604. Phone (2051 433·9930.
•
Roi)tr( M. Alton, Ir., announCl>S the removal of his of(ices to 3000 Zelda
128
Rood, Su lle E, MontBomery. Alabama 36106. Phone (205) 270·01i'7.
•
Sleven M. Reynolds announces the Openll18 of hi s office at 418 SCOtt Street, Montgomery. Alabama 36104. Phone (205) 265·3220.
•
Robert F. Smith announces the relocation of hi s office 10 214 Wesl Dr. Hicks Boulevard, 11.0. Box 1707. Florence, Alabama 35631. Phone (205) 76&-3663.
•
Raymond P. Fil l.patriclo:, Ir., <Innounces th e relocation of his offi ce to 2032 Valleyd <lle Rood, Birmingham. Al abama 35244. Phone (205) 9885048.
•
Ron.l ld A. Davidson announces the rem~al of his office to 2200 City Federal Building. Birmingham, Alabama 35203. Phone (205J 251·0285.
•
LL'On F. SI,lnl1), Ir., JnnounC(.>$ the relocation of his office to 1005 Dauphirl Street. Mobile, Alabama 36604. Phone (205) 433·9930.
•
S. Alec SllOOn, formerly deputy district ottorney for the 15th Judicial Clr· cuit, announces the opening of his 0(' fi ce~ at 22 Scott Street, Montgomery, AI3bama 36104. Phone (205) 265· 6741.
•
AI Penninglon announces his with· drawal from the firm of Pennington. McCleave & Patterson. and hi s continuan ce in the practice of law 3t 113 South Dearb{)rn S lr~>et . P.O. Box 342. Mob!!e. Alabama 36601. Phone (205) 432-1661.
AMONG FIRMS Gecflle l . 8(., (10:, Jr., ,lI\noun(;e~ th"t Dennis R. f>ier§On has become an asr.ocla te with Ihe firm of Grorge L
BC!Ck, Ir. Offi ces am 10C<ltt1d <It 22 SCOtt Street. Montgomery, Alabama 36104. Phone (2051 832-4878.
•
R. Michael Booker and Uyron A. wssi ter announce the fo rmation of Booker & lassiter, wi th offi ces locatoo <It 205 Fairhope Avenue, Fairhope. Alabam<l 36532. Phone (205) 9282658.
•
A. James Carson and F. W.l dc St(!(!(f announce the combination of their pmclices under the name of Carson & Sleed. Office$.He 10e.ltOO ,II Vestavia Commerce Centre, 2090 Colum· billna Road, Suite 4(100. Birmingham, Alabama 352 16. Phone (205) 8227000.
•
Armbrechl, Jackson, OcMouy, Crowe, Holmes & Reeves announces thaI David E. Hudgens an(! Ra y M. Thompson have become members of the firm, arId lames 11:. Hinson, Ir., Coleman F. Meador, Aaron E. Brad· shaw, Broox G. Holmes, Ir., Charl es E. Harrison and Bernard P. Mallhews, Jr., have become associatoo with th e fi rrn . Offices are locMed ilt 1300 Am· South Center, P.o. Box 290, Mobi le, Alabama 36601.
•
Stephen D. Henlns<.'r and S. Greg Burge, formerly of Hare, Wynn. Newel! & Newton. and Stuart F. Var· go, formerl y of Hardin & Associates. announce the formallon of a p;Hlller· ship in the namc of Heninger, Burge & Vargo. Omces are located al 202 1 3rd Avenl.le, North, Slli!e 300. lJi rm· ingham. Alabama 35203.
•
Cab(lll iss, Johnston, Gardner, Du· mas & O'Neal announces that Hey. ward C. Hosch, 11 1, and R. Carlton Smyly hilve becol11e members of lhe nrm, and C. Ellis " razeal, 1II, Anita S. Gifford, Christopher G. Outl aw and
Ma y 1']88
O.wid B. Wdlston have become asS!> dates of the firm , The nrm also an· nounces the relocal1on of its Mobile officcs to 700 AmSoulh Ccnter, Mo.bile, Alabama 36&02. Phone (20S) 433·6961. Bilmingham offices are sllil at 1900 First National·Southern Natural Building, Birmingham, Alabama 35203, Phone (205) 252·8800.
•
Oa ... ld W, Crosland, Jim Tom Haynes, O.wid N. Slrimd and Oale C. Fr~man announce their p.1ttnership under the firm name of Crosland, Haynes. Strand & Freeman. Orflces are 10000led al818 Connecticut ~rl~, N.w., Suite 1000, W.lShington, D.C. 20006. Phone (202) 331·6274. They also have an office In Siln Fr,l ncisco.
•
Phelps, Dunbilr, Marks, Claverie & Sims annour'ltcs that Milry Campbell Hubb.ud has become a mcmlx>r 01 the firm , Offices are located al Texaco Cenler, 400 Pt¥Iras StrCCt, New Orleilns, louisiana i'013Q..3245.
•
Capouaoo, W.unpold, Prestwood & Sansone, P.A. ,lnnoonces thatlhc prac. tlces of Ingalls & Warren and Frdnk Caskey haYe combined with the firm. The firm name shall remain Ca· pouaoo, Wampold, Prestwood & $.ln· sane, P.A. OffiCeS art: located at 350 Adams Avenue, P.O. Box 1910, Mont· gomery, Alabama 36102 . Phone (205) 264-6401.
•
Hermdn 0. P3dgell and Paul M. Foer5ler, Jr., announce the removal of Iheir offices to 1 North Royal Street, Mobile, AI3bama 36602. Phone (Z05) 433·3741.
•
The Arm of laird and Wiley, P.c., announces the iusociation of I. Kenneth Guln, Ir., with offlces at t616 Third Avenue, Suite C, Bankhead Bydts Building. P.O Box 498, Jasper. Ala·
b.lma 35502-049& Phone (205) 221· 5601.
•
Maynard, Cooper, Frierson & Gale, p.c. announces that William S. Dodson, Ir., and W"lker ~ BOOn.lm, III, na.e become membefs ci the firm , and Gregory H, Hawk,., lohn N. Bolus, Virginia G. Carruthers and J. Kris l0wry have Joined the nlm as asSOdiltC$. Offlces arc located at 12th Floor. WMts lJuildinS Birmingham, Alab.1rn.1 3520l Phone (205) 252·2869,
•
100 G. Bums. Jr., Ol'v,d B. Ellis,. Eu· gene C. Copell'nd <In<! Philip N. lisenby announce thc formation of a firm In the name of Burns. Ellis, Copeland & Lisenby. Omces arc loc.lIed at 23 19 8th Street, Tusc.lI00sa, Alabamil 35401. Phone (205) 758-6530-
•
Crumplon, McGregor, SasDavis & Alley announccs that KMdrlck E, Webb and ""'illiam B. Alverson, Ir., htlYC become associated with the fi rm. Offlces arc locilted al Orle Commerce Strl',!f,!t, S(ri:c 700, P.O, 80x 238, Montgomery, Alabam3 36101. Phone (205) 634-3176. ~b,
5(.'1',
•
Jerry R. Barksdale annoonces that Thomas H. Guthrie, ." , is now ilSS!> dilted with him at 121 South Marion Strt.'et, Alhens, Alab.1ma 3561 1. PhOne (205) 233-0525.
•
Jdme$ D. Pructt has become senior 'lIce presidCnt and <lsjOCiatc general counsel of AmSouth Bank N.A., and of counsel to PrucU, Tumb-lch ill Warren, P.C., In Gadsdci'l, Altlbillna. His offl ce address is P.D. Box 11007, Birm· Ingham, Alabama 35286. PhQne (205) 326-7607.
•
The firm or lewis, Martin, Burnett & Dunkle announces that Martin G. Woosley, formerly assistant counsel
and Alab.lma stOlte counsel, I..~rs Ti· de InsuraJ'ICC: Corporalion, has become tlssoci<lIcd with the firm. OfOces arc locat{.'(i ilt 1900 SouthTrust TOM!r, Bim,. inllham, Alabam3 35203. Phone (205) 322-8000
•
The firm of 10hnSlon, Johnston & Moore announces the <lssociatlon of Josh O. Kelly, III, and David V,lnce Lu· cas. The fi rm has relocated to Regcn. cy Center, 400 Meridian Slrccr, Suite 301, Huntsville, Alabama 35801. Phone (205) 533-5770.
•
Stan Brown and Tommie Wil;on an· nounce Ihe (ormation of the firm of Brown & Wilson, with offices !ocil1l..'(i at 1902 Cogswell Alo'C nue, P<!I I City, Alahama 35125. Phone (205) 664·1877.
•
The Arm or Buntin & Cobb, PA., tinnounces thtlt Steoldman S. ShNly, Ir., has become a member 0( the nrm, lacy Hornsby hilS become associated with thc fi rm and the fi rm name has changed 10 Buntin, Cobb &I Shealy, P.A. O(ficcs are located at 206 N. Lena Street, Dothan, Alabama 36303. Phone (205) 79+8S26.
•
Don-lid M. Briskman and Mack B. Binion announce the form;atlon of Briskma" & Binion, P.c., with offlces loe.lled al 205 Church Street, P.o. Box 43, Mobile, Alabama 36601. Phone (205) 4)3·7600.
•
Robert C. Barnett, G. WIlliam Noble, Thomas H. Himes, Jarncs P. O'Neill ilnd Gregory O. Cotton an· nounce Ihey hiI\IC formed the firm of Barnett, Noble, Hanes. O'Neal & Cot· ton, and that Daniel D. Spilrks is an associate of the fi rm. Offices ~re located at 1600 City FWer(l1 8u Iding, 2026 Second "'-'Cnue, North, Birmlng. ham, AI3bama 35203, Phone (205) 322-Q471.
Alabama State Bar Annual Meeting Birmingham - July 21-23 The Alabama Law/er
129
The firm of McCorquodale and Mc· Corquodale announces that lac· qualyn M . Sheffield has become associated w ith the firm. Offices are loca ted (It 226 Commerce St~t, P.O. Dr;:rwer 1137,J(lckson, Alilbama 365 45. Phone (205) 246-9015.
•
The firm of Munsey & Ford an· nounCes that H , Thomas H eflin, Jr., has bc"!coml! a pa rtn er In the (Irm and will practice under the firm name of Munsey, Ford & Heflin. Offices are located at 110 East Fifth Street, P.o. Box 409, Tuscumbi(l, Af(lbilm(l 35674. Phone (205) 363-5953.
•
Gary K. Gra ce ilnnoun(eS the /lSSotiMion of L. Ann Grace and the reloca ti on of his office to 100 Jefferson S t ~t, South, Suite 300, H untsville, Alabama 35801. Phone (205) 534· 0 491.
•
lohnslon, Ba rlo n, Proc tor, Swedlow & Naff il ilnounces that Hollinger F. BilfOMd has become a member of the firm, with offices at 1100 Park PI(lce Tower, Birmi ngham, AlabMna 35203. Phone (205) 322·0616.
•
Mountain & M ountain announces Ihill Harry M . Renfroe, Jr., has be· corne assodated with th e fiM, effec· tive March 7, 1988. offices arc located at 26 18 7th Street, P.o. Box 2285, Tus· caloosa, Alabama 35403. Phone (205) 349·1740.
•
Clifford Foster, III, ilnnounces the reloca tion of his office 10 One Maison Bui lding, 3600 Airport BoulCVilrd, Mobile, AI~bilma 36606, ilnd the associitlion of Clinton M . T<1rkoc. Phone (205) 344-3300.
•
Pelzer Homl'i, Inc., announces that Gordon Thames h<ls ~rl employed <IS gener<ll counsel. l'le formerly I)rac· tlced In FOIl lauderdale, Florido, and will con tinue to handle a limited number of crimin .. ! and civil mattcl"5 in bOlh Alilbilmil i1nd Floridil. H is office address is 2600 Swuce Street,
130
Suite A, Montgomery, Alabama 36107. Phone (l05) 262·2505.
•
Nettles, Barker, IMecky & Copeland ;mnounces that Forrest S. Ll llil has become 0 meml>er of the firm. Of· fi ces (Ire klCilted al l300 Fi~1 N;uion;r.1 Bank Building, ".0. Box 2987, Mobllc, Alab.lma 36652. Phone (205) 4328786.
•
lohn A. Nichols and M ark T. Smyth announce the dissolu t!on of the firm of lightfoot, Nichols & Smyth. John A. Nichols will continue his law pmctice as a sole pma itioner under the firm nilme of Lightfoo t & Nichols, Bricken Building, Luverne, Alabama 36049. M ark T. Snl)'th will con tinue his law practice as a sole practitioner under the firm name of M ark T. Smyth, Brlcken Building, Luverne, Alabama 36049.
•
Fred B. Si mpson announces the association of Elena 0\. Lovoy, with 0(' fices located al 105 North Side Square, Huntsvi lle, Alabama 35801 , Phone (205) 539-9333-
•
Gord on, Si lberlll an, Wi ggin ~ & Childs announces thaI Rich;u d Ebbi nghouse, James M endelsohn and Claudia Pearson h~~ joinf..-'Cl Ihe firm as associa tes In the Birm ingham of· fl ce, ~ rld Eric Adams has joined as an associate In the Huntsville o(fice. BIrmingham offices are loca ted al 151h Floor, Colonial Bank Building, Birmingham, Alab..lmCl 35203. 11hone (205) 326·0640. The H unt5villeoffice is located al 100 W,lshington $Ul..>et, Suite 107, Huntsville, Alabama 35601. Phone (205) 551-0974.
•
IiQgan, Smith, Alspaugh, Silmples & Prall, P.C., announces thaI Richard D. Stratton has joined the firm as of March 21. 1988, and lames P. Rea has been made a member ilS of January 1, 1988. The firm has moved to its new offices al 2323 2nd Avenue, Norlh, Birmingham Alab(lma 35203. Phone (205) 324-5635.
•
Kenneth B. Kaplan announ( eStha t his firm, Cohen & Kll pi1m, has merged wi th the 100-year-oid Seanle firm of L.l ne, Powell, Mos!! & Miller. Offices ilre 1Q(<IIQd al 3800 RaInIer Bank T(M'o er, Sean l<" W.lshlngton 98101,
•
The firm of Tanner, C uin, Ely, LJrY & Neiswender, P.C, announces that Duane A. W ilson has become an associa te of the firm . Omcesa lC located at 2711 Univel"5ity BOlilcvJrd, Suite 700, C"pitol Pilrk Center, Tuscaloosa, Alabama 35401. Phone {lOS} 349· 4300.
•
The office of Slade Watson announceslhc rdocation of their offkes from 100 South Dearbom Street to 113 South Dearborn Street, Mobile, Ala .. bama 36602. PhOrle (205) 432·3230.
•
The firm of Darrell, A in~w(lrth & Haynt.'i announces Ihe reloca tion of its offices 10 the SouthBridge Building.. 210O-A SoulhBridge Parkway, Suite 570, Birmingham, Alabama 35209. Phone (205) 879·0377,
•
The fi rm of W.llson, Gammons & Fees, P,C, announces that SWart Edwin Smith has become associated with the firm. Offices Me locatl'(l ilt 107 N(lrth Side Square, l'luntsvi!lc, Alabilma 35801. Phone (205) 536-7423.
•
Walter P. Crownover, MJrk A. Stephens, Dennis W. Shields, Silnfnrd E, Gunter and Charles M . Coleman announce the (ormation of a firm in the name of Crownover, Stephens, Shields, Gunter & Colem;!n, P.C. Of· flces are located al 2703 7th Street, Tuscaloo5<l, Alilbamil 35401. Phone (205) 345-1400.
•
The firm of Veal & eM finkel announces that Valrey W. Earl y, III, has joined the firm, and the firm ntlme has changed 10 Veal & Earl y. Offices ilre lr;x;aH.>d m 2112 11th A~nue, South, Birmingham, Alabama 35205. Phone {205} 326-4146. •
May 1988
Riding the Circuits ~ Oale Count y Bar Association The Dale County 8ar Association etecwd 1987-88 office~. They arc: !'ft.'SIdt.'fII: Alicia 10 Reese, Dalevillt! V1ce-pre-; ldefl : Ray Io\cnninllton, Athon Sc!crul~l)' : Anthony R.
Livi ngston, NL'Wlon
Treasurer: William H. Filmort',
O:wk
- Alicia 10 Reese
Elmore Cou nty Bar Association The ElmOr<! Counly Bar ASSlXlatiQn me! reccmly at Mr. C'S Rl2Sliluranl in
Montgomery. Thanks were extended
were; -an upe/;ne on ~r1m lnal Jaw by ROrl M~rS, dlwicl anorney, )7th
Circui t; - appellate practice by Hon. Richard l. Holmes, Alab..1n'1a Court of Civil Appeals; - tort reform·the defendant's
to outllOing Pfesldcnl lynne Rit!dlt...
perspective by Richard B. Gar·
Thrower for a Job well done. The neY.' o(ficcrs fOf 1988·69 were installed.
ren, of Rushton, Stakely, John.
Michael S. Ha rper of T.ll1assce
WJ S
clectt.'d president, and Blake A, Grccn of WcIUffll)ka Wil ~ el~t:;tL"(l S(.'(fclilry.
The Ilonorabic Rlc:harn Dorrough. circui t judge of the Family Court Division of Montgomery County, Ala-
bama, spoke to the members of thc
association on Rule 32 and the recom· mended child support guidelines. Olllcr ma1lers relllting to the practice of family law were discussed. Frederick T. Enslen, Ir., a candidate for the
Alaban'la COurt of Criminal Appeals, also was present alld spoke briefly to Ihe Illembers. - Dlake A. Grl't!n
lee Cou nty 8ar Association In NOYember 1967, Ihe lee County Bar Association began ... continuing legal education 5eminilr program
The
which will becoille an Mnual CYent. The seminar was held at the lee County Justice Cenler and provided 6.0 hours of ClE credit. Approxi. mmely SO lawyers ancnded and about half of those were frQl1 counties other Ihan l.cc. The lopics and speakers
Alab~lma
Lawyer
ston and Carrell; -Alabama Stale 8t1r report, by Ben H. Harris, Ir., president. Alabama Stale Bar; -civil procedllre-relution back of amendmenu, by Jerome Hoff· man, University of Alabama School Qf L.,lw, and - punitive damaKes and tort reform-the plaIntiffs pcrspec::tive, by lI<Y)'d Gathrngs, of Gathings and Tucker. The l.cc County Bar Associll1ion mccts monthly. A special SQClal (.'V(lnl was held in Janllal)' with a cocktail ll.'Ccption hoStlod by Colonial B,mk followed by a sea ted dinner at Auble's t'CStaUr.lnt in Magnolia Plaza, Auburn. The 1988 officers arc: Prcsidmt: Guy Gunter, Opellk..:l Vlce-prcsld~l: Bob f>t>Ity,
Opelika
Si)c;fcta ryl treasurer: Arnold Umba4::h, OpeUu
- Michael Williams MOnlgomcry County Oar Assocla· tion The Montgomery County Bar Associalion elected nlOW olftcers :md directors of the board for 1988:
President: W~ndJ D. Devereaux, Montgomery Vice-president: J<obi!rt 0, Segall,
Montgome-y Secretary! treasurer: J. FlO«! MI~or, Monlgomery 8o'lId mem~:
J. CWI Hcilfd ).ohn N .
" d~nastos
H. E. NiI(, Ir. J. Paul LCMlery Dorothy Norwood 1;l!lle~ C. Williams Edwin K. l vlngston,
e~ officio
The al>polnll'(l committees are planning a busy year (or members. The
Law Day Committee, chaired by Roberl H. Harris, has planned a full week of activities, including the law Day lun~heon with guest speaker U,S. Sel\alor Richard Shelby. The Conlinll' Ing legal F.dllcation Comrnlnee, chaired by Anthony McLain, Is selling up at least 25 hours ofCI.E credil . lim. my Pool, chalrm;lr1 of the Entertain· ment Committ(!c, hus scheduled sevcral social fllnctions for 1986, including the MeSA Annual Barbecue al'ld a golf and tennis tourn~n1ent fol lowed by a P<1rty. - 0 01 Wilson,
Executi ve SecretiUY, MeSA
131
Riding the Circuits Wa lke r County Ba r Associatio n On March 3, 1966, aftcr fini shing a I hr~k Ilrollfilm, 13 aU~ndet..'S of the "Peol)les' 1..1W School" were presented with ccrtifici'UCS of completion. The school is sponsored by the WoJlkcr County Bilr Associa tion In conlunc. tion with th(l Walker CoIiCII!.! Adult Continuing Educmion program. The
program has run for lWO ye;H$ and been adoplt'd a~ an annual PfOjccl.
Rccenlgfilduales of Walker COl/illy 8M Association'$ "Pt'Oples' WW 5dloo/"
•
- C. W.m en l..1ird, Jr.
REMINGTON
Need Back Issues of
The Alabama Lawyer?
l everaged Duyoult
We have extra copies of most editions, from 1983·88.
Term Debt Financing
Project Analysis Acqui5itiOfl Financi ng Oll!bl RH lrud ure
Business V. lu _tion,
Lana E. Sellers
G . Ruff ner IJage, j r.
The Remington Fund. Inc. Ve nture Capit.1 1 N atkmllJ8.ok 01 Ccm merce Butld ing
Call (205) 269·1515 to see if we can help you complete your sets for binding ($3, plus postage, per copy).
Posl Offke 1$01( 106861Birm ingham. Alab.mll35202 1Tch:pnone(205) 324<7709
Ma y 1988
Bar Briefs Hemn speaks at ABA Mid-winter M eeting Thu AmeriC(ln Judicature Society and the Nationa l Conference of Bar
Presidents co-hosted the annual lun· cheon 011 the mid-winler meeting of the
American Bar A~sociatlon In Philadel· phia. Senator Howell T. Hcflirl was 11m luncheon speilker, and his address dealt with the ~c umbcrsomc process for judicial ImlX'achmcnl,N Pictured al rlghl 1l(! Alabama Slate Bar Presidentelect Gary C. Huck'I.,.,.; Je<lnnc Huckaby; BIrmingham Bar Association Presi(!cnl Gerard J. DUrwilfd; Senator Heflin; Madison Count) Clrcuil ludge John David Snodgrass; ASS EKe(uli\o1:l Director Regi ntlld T. Hamner; Birmingham Sar Assocl.lllon EMecut;\.'C Director Beth Carmi<;hlIcl; ;Jnd AS8 1987-88 I'resident Ben j't.
H.uris, Jr. - pho!o court l'SY of ABA laumaf
Law Week across the country The 1988 L.'IW Day U.S.A. theme is "Legal liter<lcy.N Law D<lY U,S,A, was established by United Stmes Presldentl<ll Proclarllation in 1958 and fC<lffirmed by a Joint resolu· lion of Congfl,.'SS in 1961 , The l>urpose of Law Day U.S.A., celcl>ratt.>d ilnnuillly on May 1. Is to reserve a N~pedal day of celebration by the Amerle.ln pL-opl(> in aPllreclmion of their liberties and to provide all occilsloll ro r (ededlcation to thC' ideals of equ<lli!y ~nd Justice under laws. The 1988 theme, "Legal lIter<lCY;' en· courilgcs law Day programs ilnd events to urge all ciliZens to InCreM.e their kno,yledg<> and undenaanding of the 11lW, State and local bar as!>Odations, libraries, comnlLlrllty organizations, schools, chLlrches, Inw eriforcemclit agencies. service clubs. legal aUlciliarles and scouting org~nila t ions are among the many groups which sponsor Law Day U.S.A. prOgrams .. nd t."Vt.'flts. H
The AI.lbama Lawyer
Heflin with JCNcralllf/Cndces or the ABA Mid·Wimer Mccti/1fl
The events {lre numerous <lnd varied, ranging from mock-trial s conducted in school ~, court ceremonies and poster ,md essay contests to television and radio call·in programs. Recent Innovative programs htlV(! in· cluded !I(}-ins wilh child fingerprinting to aid In locating missing children, coor· tJinmlon with sponS<Jrs of local C<lm· paigns against drunk driving. outreach programs 10 senior citizens and com· muni!y p..lrlicJ)<ltion in d,spute resolutioo programs. Week in Alabama Alabama's judgcs and lawyers hit Ihe classrooms Ihe ~k of May 1·7, to par· ticipille In the statewide legal "teach· In" on law and iU51ice, The program is sponsored by Slate courtS and the Alabama Stale Bar to L.1W
celebrale Law and Court Observance 'v\kek and carril..-s the theme (or this year's Law Day, "legal lhera(y-The ABCs of American law and 'us licc.~ AI<lI)<lma Chief Justice C.C. Torbert, Jr., Superintendent o( Educalion Dr. WilYne Teague <lnd Slate Bar Prcsldenl Ben Har· rls of Mobile hilVC endorsed the prullr.lm. Torlx!rt s<,id he will p<!rllcll)ate In iI school forum during the week. The chief justice Solid all members of the Judiciary and aU lawyers are requested 10 particip;uc in Ihe progr.lm, visiting wllh students in cYCry elemen· lary and secondary school In Ihe stOlte. Torbert said commil1ees of judge~ arld lawyers are established In every ludiclal circuit and county <lnd wll coordinate these activities wilh school ad· mlnlslralors and tca(hcrs. - Administrative Office of Courls
133
West·Central Alabama Young law· yen' Affili iHe Divi sion estab· lished On Friday, February 12, 1988, in Jasper. AI"b"ma, younK l~rS from" fiV(." county ama. indudinl' Cullman, F,aycuc, Marion, W" lker nnd Winston coun ties, met to determine the feasibili ty of establishing a regional ~ng lawyers' af. filiate division cJ the Young Lawyers' Sec. tion of the Alab.ma State 8ar. The West· Central Atab.lma Young ~' Affiliate Divi~ion emerged. Young lawyers from the fivc-county area were encouraged to ilUend. Appro)(· ilTlO1ely one-half of the young lawyers from Ihe region were pre'if!nt 10 IlIke PMt In the form<ltion of Ihis nl'W organiz<llion. M<llly others who could not auend C~· pressed their desire 10 become <l pM of this concept. After <l seminar 00 "Rule 32.child Support Guidelines,~ conducted I1t' Ihe Han· orable Wadel I C. Z,lnaty, Jr., of Ihe Tcnth Judidal Circuit, the ~ng l,lWyers recOIlVI"!OCd into a generallxl~iness session. In· terests In the formation of a young 1ilWvcrs' affiliate division fOr thc gt!OW"I)hic arca were discussed, alld all in a1lend· <ll1ce ~tt'(l un.:mimously to carry on with the organization's formation. W,Hren l .. lrd of Jilsper was elected preslden! of the affiliate division. Kim Ch<lney of Cullman was elected vicepresident. Margart.'1 Dabbs, also of Jasper, was elccted Stocretaryflreasurer. The ~t.cen!r.ll AI<lb.lma Young lawvcrs will hold ils nel(t meetln!! in early summer. Gadsden, Tuscaloosa lSCA offices gel new man<lgi ng attorneys lhe close of t98' saw the <lppointment of new manDging .. ttorneys fot the Gilds-den and Tuscaloosa Regional Offices of legal Services Corp. of Alabama . Named manager In Tuscaloosa Is Sue Thoml>son, who has ser\'Cd as the man· aging attorney In Gildsden since thm of· fice opent.,(j In February 1976. Replacing her is David V/()bster, who was promoted from a senior staff position In thc Gadsden Rllglon's Talladega ofnce. Thompson replaces Jeff Sacher, who fll·
134
signed in mid.Qclober 10 lake a job in W.uhington, D.C. Born in G~n(o County, Thompson was reared in Tuscaloosa, She finl sht.'<l thl.! University of Atab.lm.1 l,.'IW School In Jalluary 19'4 <lnd W.lS in priVclte practice In Tusca loosa for three YC,l/'S beforo loin. Ing LSCA. Her undergraduate deSrt'C Wol 5 from the University, but she also attend· (.'(1 Sliliman ColI('8(', a Prcsbyterian school In TlJscaJoosa. Thompson current· Iy Is vice<hailperson of that school's board of tlu ~ tees and h<ls scM!<! on its board since 1981. Fonnclly <lClive 00 the national bo.1rd of the Girl Scouts of Ihe U.S.A., Thompson has focused her community effort5 loe,llly in reCl.!nt years. She scrvt'<l as i1 bar c)(aminer from 1983 to 1986 and still is prcsid(orlt of the board of dl r tors of the Etcrwah Quality of Life Counci l, a nOnl)rofil ilgCrlCY which rcceillCS k'<leral granl$ to oper.lle throe community health centers in the Gadsden area. ~bster came to LSCA. in September 1980 as it staff attorl'H.,), operating a special migrtlnt proje<:t funded I1t' LSC. He 51)Cnt a few months in Cadsden before workins out of Pelt City where he ran the stalC......,lde migral)! pr08r<lm for "bout two years. A decision was made to close the m18"1111 program. fundinH costs dosed the Pell City office and Webster trilllS-ferred as a st<lff attorney to the Talladega ofnce. He has been a scoior stJff attorney si nce February 1984. V\kbster is il 1974 araduate of Cumber· lilOO School of lllw. He was a political science major at Auburn University. Before joining LSCA, he WOlS In private pr"ctice In Birmingham for fi\ll! years. - 1£8111 ServiCf!£ Bul/cOn, winter 1987·86
<.'<lllion
Rice named "Boss of the Year" Ben jitmin R. Rice. a I tuMsvilie attor· ney recemly WOl~ named "Boss of the Year" by the Huntsvllle Legal 5ecret<lries AssociatiOfl at It5 80ss of the Year Ban<luet. Rice Is a 1972 gra<iu<lte of Cumberland School of l<lW <lnd practices wi th the nrm of Williams, Spurrier.
Samford named counsel 10 Auburn University Thomas D. Samford, 1II, longtime legal adviser to Auburn Uni\lCf5ity, has be~n named university Hencfill counsel, Au· burn University President Jamcs E. Maf· tin ilnnounced. The appolntmenl Is effective In laic summer for Samford. who has served as
Samford an attOrney for AU since 1961 and the uni\ICrsity'~ general counsel since 1965. The full·time legal counsol position was recommended I1t' a study commit· tee thm assisted in ,Ill ovcratl university ofS;Jnizational rc~ t !Uct url n g th<lt began wi th the start of the MM1ln administration in 1984. SesidC'S rendering service 10 lhe uni· versity through his Opelika praClic~ fOr 2' yearS, Samford also has served 00 a number of university bo.lrdS and commit· tees at the direction of the AU pl't."'Sident. A nilti'o'C of 0pe1ik.1 who attended public schools ttllm~. Samford earned his undcrgradullto degree In 1>oIilics at Princeton, where he gr<ldu1lt<.>c,l magna cum laude <lnd was a member of Phi
May 1988
Beta K.1Ppa. He earned his law degree from the Unlver1ity of " Iab;ima, where he graduated n~ t ln his class and served as editor of the law review, 5.1mford, 53, is a member of the Amer. iciln, Alabamn St,lte and l ee County bar \l$socimions, and his profC5sioni11 ildmis. sions include the U.s. Supreme Court, as well tiS the Altlbarna Supreme Court and subordin.lIe courts.
Committee looki ng for intellectual property law papers The Intellectual Property CommittL'C of the American Corpora te Counsel Association has embarked on a projecl lo aCI tiS" cleMing house for all norlpubll shed p(lpel'5 dealing with irltellectual proper· ty law. The commi ttee plans to make an ubstract of those papers and Cif'(Ulate the abSl(acts among its members. For more information, contilct lynn Smelkinson, senior coonsel, U.s. Cham·
The A//lbJma lawyer
ber of ConlnlerCC, 1615 H Strcet, N.W., Washington, D.c. 20062. Phone (202)
463-5337.
Avis adds new features Avis anrlourlcc~ Ih,l t Ihe special, low rales offered In the Alabama State Bar's Avis Member Benefit Agn:.'Cmcnt have been extended with two additional ,)rogr.lrn benefits, Effective March 1, 1988, Avis now includes the follOWing Impor. tant features: - unlimiled, free mileage applying to Association Daily R"Il.'S for rentals returned to thc sam", city. -Special dally ra tc pricing applying In the New York C ty area (or local rentals. Cnr Croup AB C 0 E D,lily RilIIl 40 43 45 46 47
-All other rmcs, di;counts and benefi ts remain in full effect.
Wilson appointed U.S. AUorneyMiddle District of Alab..lma James Eldon \Mlson, a ,v.ontgomery " f, lorney, recently was appointed as the Un lu:d SfJteS Attorney for the Middle District of Alabamll. WrISQn grJduated frol1l the UnivcNil lY of Alabamil in 1969 and the University's School of L.1W In 1972. Prior profcssional experience includes serving as an assistant staff Judge advocate from 1972·1976, and as an assistant U.S, anorney for the VWstern DiStriCt of louisiana from 1976.1978. In early 1978, he transferred to Montgomery, em· ployed as an asslst.lIlt U.S. Attorney. LaSt jun"" \Mlson was appointed as Ihe inlCrim U.S. i1ttorncy, lind the Sen.. te 001'1Ormcd It Februilry 19. Wilson also serves as 100 staff Judge ad· vocate for the 1981h Tadleal Fighler Grou p, Dannelly Field. •
135
If you aren't in Birmingham July 21-23,
here's a look at what you'll be missingThursday, July 21
Not over yet , , ,
- Section mCl!lings begl" Thu rsday morning, with the Bench and Bar IUl1chcon til noon. -
In the latc afternoon, there will
be
a shott ceremony in down town Birminghonl dediC(lting the Hugo L.
Black Feder.. 1Courthouse, fo llowed by Ihe Ir(lditiona l m(' rnbNshlp reception ... - ... this year's reception will be hi!Jd in Altlbama's orlly true "movie
palace," the Alabama Theater. DurIng the rccel>tlon, members will be en tertained with a performance on
the 'heater's mighty Wurli l 7.er org,m, (There is ilmple p<l rk ing ne<l f
S"lurday, July 23 - In the morning will be the annllal business meeting and Grande ConYO(a til)n, as ~II as committ(">e breakfas ts. - If thc stale bar's c(for.,. to form a corptlve Insurance comp.my are success(ul, Ihis will be the rnaJor topic of interest durlnS lhe scner,l l session. ¡ RESERVATIONS (or the Wynfrey will be handled through the Slate bar; convention brochures and regis tra. tlon forms will be mailed to members by c<lrly June. â&#x20AC;˘
the 1he;lIcr, which is a shorl walk from the courthOus@.)
- There's still motel The ASS Young Lawye~' Section, In con junction with the Bhrtlingham YLS, will host their annual get-together lentJl i\fCo Iy scheduled for the Birminl!nilm Botanical Gardens.
Still more .. , Friday, July 22 - All day-Upd;Itc '88- informotion, education, harldouts and de credit - Tradi tional alumni luncneons at noon , - That nlsht, b..lck by ~ry popular demand, is the Chical!o Bar Association's "Christmas Spirits" revuel The ]9B7 production, " lex M iscrabl es," feMures many of original cast from thc 1986 show during the last Birmingham convention, which was considered by .11110 be great entertainment.
136
BACK TO BIRMINGHAM IN JULY!
May 1988
Profile Alva Caswell Caine President-elect, Alabama State Bar, 1988-89 ursuant to the Alilbilma SWIC Sar's
local bar service He has served on the Grlev;lIlcli Committee of Ihc Birmingham Bar Associa· tlon, 1974-1975.
P
full'5 govern ng Ihc dl.'clion of Ihc pr('Siden l-elecl, the (ollowlng bio-
graphical sketch is provided of Alv.l ca~ well Caine of Birmingham, Alabama. Cai ne Is the sole qualifying calldidale (or the position of presldcnl-clcct of the Ala-
Siale ba r activities Caine has served on Ihe State Grievilllce Commiu~, 1976-1979, the Presi· denlial Advisory Committcc, 1987, and presently is serving on the law Day
Ihln1a Stille Bar for Ihc 1988·89 term.
Educalion and early c.ncer years Caine, a native of S.,fford. Alabama, is
Comml1lce.
a I><utncr wi th the firm of Hare, Wynn, Newell & Newlon. He reccivLod his un-
dergraduate degrees from the Marion Military Instllutt! (A.A., 1961) and Unl· versity of Alab/lm.. (B.S., 1964). following undcrgrJdudlC school, he Crllcred oc· live du ty with thc United St;l\CS Army as a captain in the Airborn Inf.lrllry. He concluded his 10Uf 01duly as a helicomer Instructor I)ilot in the Army Aviation School.1t Fort Rucker, Alab.1Ola. Following dl sl;hilfge from the MOlY, he entcrt.'tl CUOlbcrlilnd School of Law and graduated wilh a J.D. degree In 1970. After graduation, he clerked for the chief Judge of the NOrthern District of Alabama un· 111 he entered Harvard Law School, where he graduated with II LL.M. degree In 1971.
Tile Alabama Lawyer
Ameri can Bar Associalion work Caine was elected nal ional 2nd viceprClildcnl of Ihe Law Studer'll Division of the AmeriCiln aar Association, 19681969. lie has served as l)fCsident of Inc
Alabama Trial Lawyers Association, 1984-1985, and as a member of Ihe house of delegates of the Assoc:liltion of Trial Lawyers of America, 1986. profess ional and civi c activities Cillne Is a trustee of MMion M Ilitary Institute and a member of l rl nity United Methodisl Church.
Oth e r
Ca/nt·
He Is the father of tlm!C children: Al va C. Caine, Jr., EIC!anor Caine and William Henry Caine. •
IJ7
Building Alabama's Courthouses by
S<lmu~1
A. Rumore, Jr.
The following conlinue$ a history of Alabama's count y co urlhous4..' S-lheir o ri路 gins and some of the proplc who cantr ibult:d 10 their growlh. The Alab.mlll
Lawyer pla ns 10 run one county's story In each issue of the rn.,sazine. If you have any photographs of earl y o r Ilre5e nt courthouSe), please forward them 10 :
Samuel A. Rumore, Jr. Migtionico &- Rumore 1007 Colonial Bank Building
Birmingham, Alabama 35203路4054
L.1udcrdalc Count y
laudcfdille COl.Inty Courthouse
Lauderdale County was established by the Alabama Terri torial Lcgisltlturc on February 12, 1818. It WJS named (or U. CoL James Laudcrdllle, a native of Vir.
glnla, who laler mOYCd to Tennessee and served uncler General John Coffee and General Andrtw Jackson In bllttlcs i1gillnst the Indians. and in the W.lf of 1a12. Col. l.auderdale dil.-d DI.'Ccmber 23, 1814, from v.ounds re<:eiYed in baule, In Ihe aCI creatinll Laudefdale Coun ty, Ihc legiSlature decrt.-.ed Ih,lI, Icr'nporatily, courts would be held at Colonel Puler's
138
p l,lce, ea ~ 1 of Cy prl.'S~, or al SOme olher conVl'ni('nt place.
Like L.ludcrdalc County,
Ih~
city of
(:ommerci(ll cen ter ooca",se of i t ~ localion al the head 01n:willation 011 the Ten路 nessee River. The lown W,IS sUrvt"fl->d by
Florence wa s es tabbhcd hI 1818. It was
an Ilillian
foundC!d by a group of land speculators callinll themS<!l\6 Ihe Cypress land Company. TM inYCSIOr'S of this comp.lny believed that Florence would be a grcat
who
enllin~ r.
r1!fdinand Sar\l\OnN,
~r1edly
nali~
named the town after his Florence, Italy, Florence was se-
lected as the pernlanent county seal in an elooion held in 1822.
May 1988
To ensure the conti nued success of Florence, the C}'PH.lS$ Irweslors built .. county cou rl house at company t!I'pense. Thi s courthouse SerV('(! the county from 1822 to 1899. 11 W.H a IWO-StOry building in the modified classical style, fronted with eigh t massive Doric columns. The hipped roof wa~ lOPped by a squareba~cd to\Nl!f, with il clock fa ce on each side, ,md mounlf.'(! wi th a clas~h;,,1 dome. The Sl'Cond li1udcrdale Coun ty cou rt· hou!>C W;IS built on the sitl! of the firS!. Thi s 190 1 structure was built of brick, stone "nd cement In the classical sty le, Its arch itects were (oluche ,lnd StCW.lrI, and Arthur Marshall wa s the contractor. Thi s building Wil5 150 feet Ions. 85 feet w ide and 50 feet high. On Ihl.' first noor it had two broad (orridol'S intefSCCIing in the cemerof lhe building. On the se(md floor was the large courtroom which me.1sured 50 by 70 feet , the witm~s~ rooms and the offices of Ihe coun clerk and register, The north and ea st facades
of this building had Corinthian column s. Its Impressive dome housed clock (<lces for the four sides of the building and 'HiI$ mounted by ;r bt.lll tower. Thi s build ing wa s razed In 1965. Ground W.1S brokf.'I1 for the third and present Lauderdale County Courthouse on 5(1)tember 9, 1963. An (lntire Ci ty
•
Samuel A Rumore, Jr" is a graduale 01 the University of Notre Dame and (he Unlvcrslty 01 A/JOama School of law. He served as founding c hairman of the Alabama SI1JIC 8ar'$ Family Law Secaon and Is In practice In Birmingham with the firm of MiBlionico & Rumore.
NOTICE In the lasl rewyear~ Ill(' f'J~t~rn ~t;at(>S omc!' 01 1M- Bur{'~u of l.md Manilgtmenl has !1oollcl.od an InCfl'a'if> In Ih(' nUr'lIl>er of thit' l)rObICIll' Involvinllllodcr,lI lands hKallod within II, Jurl ..dIClion. Thl' bure~u Is chprgNl wlrh Jdmlnlslerinll ,lIId miln~tll rlll public domain Llrlcis, th.r! 1\, Innds which nev~r 1{'/I Il'dcr~ 1 OW(\('l"I'hlp. Tr.l(ilioIlJliy. th~ holdrngs in I I~ t';ISI hnVl' I>e('" ~mali('f, ISOIJI(I(! 1I'.I(l~. Con~{jucrl t ly, Ill!)!;t JX'Opl(' ill'(' unaw.lIe of lhe Iedtorallnll'r~l , Thl~ feder.l llnll'rl~t Oldy be ,I r('~uh of uocomplettod claIms under Ihe Y.lI'iou~ Honlt~tNd or Credh ACb ~ clerical ('fron. rt'Suitlng Irom tht, Y.IK-lIIt'\ of 19th ct'nlury tr,ln~l)()rT.lt IOfl Or communlcallon ~ySlems. Allorneys certlrying title to Ilrop('rty In Atab.II11,1 Ill"lod 10 be ,rWdn' Ih"l il federal rille inue may exist Ordln.lrlly, In til(' ah~'r\c« of 1(,,,,lsl.lllun proY rdlng otherwlw, 11111110 puhllc I,mel. cannot be acqulr('(1 i>y .1dven~e j)OS!ot'5sion as atl.llnst the Vnlll'd Stilles. Uniled 51111('1 Y. Ca lifornia, JJ2 U,S, 19 (19 47); MJrin(' 11 . & Coal Co. v. UntIed Slales, 168 U.S 206 (1921); 239 (18~9) There/me, Alabdmil 's adye~ po"WY slon ~Iillule may 001 IX' ~uff,cI('nl 10 W'-'''dlll 11/11' in 'I01lll' t.l~ . Attome~ should hi' COWlllan! of Ihe f.lCIlhat thC'y may n1'(..-1 10 ('~I.lbll~~ ~v«r~ncc ollhe lederal tllil'. If you have any ql!e~IIO!l~ rt8drdinlllhis issue. pl(!,l'K.' call (703) 274-0093. Davit! R. 51ml150n Chief, 1I,.1I1(h uf Lands United Stateli l~pMlrnc nt of the Inle,lo, 3S0 Soulh l'lcketl SI'eet .... Ie~~od'la, Vlrllinia 22304
Tlte Alail<lma lawyer
block was acq uired for the build ing :lI1d its :ld)acen l pmk lns, The building Is of modern desisn and con tnlns five floors and a basement. The :lIchlt~IS wcre Northington, Smith and Kranert. The general contrador was J.M . Massey, Jr. TOlal cost of thi5 projecl Wit S $2,189,400.
AFFORDABLE TERM LIFE INSURANCE FROM COOK & ASSOCIATES Comparl l hue lOw non'lmoklf InnV11 'III" lor non· Ottrel8ln\l IIrllded premIum til, : MALE AGU
" ""
... .. ... 55
"...'" 250.00 252.50 255.00 UO.OO 412.50 542.50 810.00
1.3$$,00 2,372.50
5500.000
...."
455.00
485.00 Sts,OQ 7&0.00 1,015.00 1,520.00 2.535.00 4,:185,00
" ,0001000 '70.00 '77.50 "5.00 lao.OO
1.127.50 1,$ 10.00 2,2.7.50 3,7iO.00 UI5.00
Ilmoll."1 '11•• tJlghlly hlg".rl
R8f'\IW.blt 10 loge 100 Fe/TIIIJl 1'11161 ume .. tn.IN lou. yMr"l younger. All coverage prOYided by COInPlnlet " 'OCI wA EIIc:etJ&nl" by A,M. eelt CO FOr • writt.n quollllon lind polity (llterlpllon lind YOllr d.ll 0 / blt1~ ond Imount 01 oovefllge detlrOd 10
COOK & ASSOCIATES 2970 COTTAGE HILL ROAO • SUI TE 201 MOBILE. ALA BAMA 36606 (205) f7&-1737
139
Alabama State Bar Board of Bar Commissioners' Actions February 19, 1988, Montgomery, Ala-
bama Present: Commissioners Reeves, Ham-
ner, Crownover, Owens, I.ove. AJ. Coleman, F. Hi'lre, £dw.mls, Lloyd, T. Coleman, Dillard, l·tiKl:linOOlham. I·till, Cassady, Lou, Hohnes, ElIse!, Loird, Gill,
Seale, Manley, Head, Bowles, Baxley, GilfrCIt, Royer; Rowe, Vinson, Brassell , C. Hare, Chason, \AJood, Hereford, Knigh t, Bouldin, Melton, Adams and Proctor; 5e<:retilry Hilmner; stilff members Pike
and Jackson; YL$ President Mi)(Qn; Chilir· m(ln, insumnce Pr08rilms CQmmitt~, Hernel; Chalml.m, Action CR)UP on PostConviction Representation, BrC'NCfi Chair· marl, FuMe of the Pr'Ofcsslon Commlnce,
Morglln . Absen t: Commissioners Turner, Thorn·
lon, Jackson. Scruggs, 6lall, Davis, Jilmes. Crook, M;utin, ",Ibrillon, Cosa, Jones, M;Juhews, White (lnd Alexander. The board: - ;!pprovt.od as wri tten thl! minutl!s of Its Dcccr'rIix!r 18, 1967, rllCellrlg; - administcr«! seven privJte repri. rnarld s ,lI1d two public ccnsures; - authorized the Incorporation of a resource center to handle post-con· viClion capital representiltion in Alabama; - endorsed legislMion providing for the appointment, reimbursement and PilYmcnt of ;llIornl!y5 in cIII,ital cases;
140
- <luthorized the Executive Comma· tee to name persons to serve as dl· rectors of the resource cen ter and make recomml1m:/;nions reg<lrding the naming of the resource cen ter; - receiV\.>d II rel>Ort (m $enCl te Bill 33, establishing a Uniform Arbi tration Act and, by voke \lDte, authorized the substitution of the bar.approved bill if it ilppeared likely an ArbitraliOh Act would be enacted; - received a report on the Alabilma lcg<ll Services liability Act; - received a rcPOrl on the "Client's BiI! of Rights and Re sponsibilities," arId decided by voiCe VOte Ih<lt the "CHent's BUI of Rights and Respon. sibilities" be referred to Ihe Action Group on professionalism for study; - rt.'Ceiyed il report from the Insurance Progr<lms Committee on the pro81'1!SS of the forminion of a captive compill1y and decided to extend lhe deadline to March 25, 19B8, for receiving slart'UI) contributions, and send another icUcr to cach bar member ad vising them of the status of Ihe 5l<1rt·Up effort and seeking their su pport; - rI.'Cl!iVf.>d a report from the office of the senerit l counsel notin g th<11 118 I'CQuC5t~for-oplnlon files had been closed ShlCC Augu st I, 1987, and that .lS of January 22, 1966, lho5(' files were currerll, wi th the e)(Cel>-
-
-
-
-
-
-
-
lion of opinions regarding for·profi t Iilwyer referral services: and further that 17S UPL fil es had been closed; rC(ci \lCd a report from the secretary th at the part-time acting assistant gcneral counsel had accepted a permanent positiOr'! and no lorlger was employed by the stale bar; received a report from the president regardins the employment of the new general counsel, Major General Robert W. Norris; received the rosignation of Mary Lyn Pike, assistant executi\Otl director of the state bar; reccived a status report that, as of February 19. 1966, 1,663 atlorneys had paid Into the Client Securi ty Fund, 13B lawyers or law firm s had opene<llOLTA accounts in thl;l stilte and the Alabama LiM' ~ounda ti on had r(.'Ceiwd apPI'Q~ima tcly $2,300 in interest income; apprOYed a requcs t from the state bar's Law Day CommillC{' for $6,000 for Law Day 1988; recei\.'Cd Ihe secretary's report that first-(ll'arter revenues ~re appro~i· m«lely $3,500 over projeclions and that di sburSl;lmen! ~ were $&6,000 under budget; acccI)tcd a reSOluti on memorializ· Ing Grove Hili law'y':!r arId former state bar president John Edmulld l\d;lrll S.
•
May 1988
•
•
ermlnatlon ...
142
'. .... / ,; . .
',
,..... ~
,
May 1988
•
I by Crt.'8 Ward
I. Introductio n Terminalion d p<lrental righ ts calOeS generaJly arises thn.lUgh one of sever;!1 relatively fixed fact pa1tcrns. Prob.1bly the most usual scenario is that the county d~ pMtment of human resources receives compl;lint5 of abuse or ncgk'<:l of chll· dren, oblains a pick.up order and the children ar subsequent ly adjudicilted dependent. The piHents arc given a contract containing conditions to foJlO'w to regain the children, they do not comilly and the department of hum;l11 resou rces wish~ to place the children for adoption. Another often· repeated scenario Is that after a divorce the noncustodial par· enllc;M!s the stale, neither conlal;ts nor
supportS the child«.!n for a protracted period of lime and the custodial spouse remarries with the nt.'W spouse wishing 10 adopt the children. In bmh of these sltuatlon~, nnd in COU!111~5 variations that ariS(', there 15 an uncooperative party who will 001 ~ (an· not carC for the children aocl who will not leave the plClUfC to allow otherS 10 do so. However, the law does not leave the I;hlldrCll helpless. Thoro Is n process whereby the parental rights of the uncooperative party can be terminntt.>d, and the child can be cared for and permanently placed_ This is generally done through the interplay of the 1964 Child Protection I\(;t, Ala. Code sections 26-16·1 through 10 (1'1751, statutory Juvenile courl Procedure, Ala. Code Sections 12-15-1 to 120 (1975) and the Alabama Rules of Juvenile Procrt/ure. Each ri.'fcrcnl;CS the others, and i'II1 understand-Ing of all three is necessary in handling a case involving the termination ol p.111!nt.ll rights. A$ will be shown, Ihese secTions generall y are considered 10 be guidelines to be USL>d, aUowlng great fret.>dom (or the juvenile court judge and
creative oPl>ortuni!1es for counsel.
II. Who can fil e? When the 1984 Child PrOll'ctlon Act, "'a. Code section 26·18-1 to 10 (19751, wa5 first implemented, there was confusion al>out who I;ould file to terminate parental righ ts. The acl slates that, ''/\ petillon may be filed by any public or private licensed I;hild placing agency or Iklren t, with permission of the Court, or any Interested party.~ Ala. Code section 26-18-5 (19751. In an lIppeal filed not 10118 :1f1cr the act
was Implemented, and on it C.l<;C tlml actually preceded the act, the court of civil appeals held that termination of pmenlal rights proceedings are -in the nalure of an actiOn by the state,~ and the pr0cess Is typically tha t it l)Ctition was filed 5(.'Cklng removal of the child lind plilcin8 Ihc chi ld with Ihe state or others. Abney v. /olmson, 474 5o.2d 712 (AJa.Civ.App. 19841. Judge Wright concluded for a unanlmouSl;ourt that "thc proceedings arc nOI designed to allow onc parent who already has custody of the Child, foJJ()Y,'ing a divorce, to termlnale the pa. rental rights of the other parent ;' Abney, 474 So.2d 714. The Alabama Supreme Court qull;kJy rl.'VCrst.>d the I;ourt of appctlls by taking
Greg WJrd received IIis bdcllelor's degree from Auburn University Ilnd Imv degree from Ihe Univcrsity of Alabarrm School of /.aw. I le;$ ;n privale praclice in Laneu,
Alabama, and .erve5 on Ihc edilorial board of The Alab.1ma Lawyer.
The Alabama Lawyer
143
a broader view of the acl and holding Ihat section 26·18·5 "clearly evidences Ihe legisl"Iure's intent to alloY! P<lrents 10 'Inillate" terrninalion J>Ctltions. Ex ",Jfle Johnson, 474 So.2d 715 (AlII. 1985).
Jurisdiction when the child Is alleged to be dependen t, A/~ , Code section 12·15-30/al(l)0975), a ~ well as in lerminatlon of pall!ntal righ ts ascs, AlII. Code sccllon 12.IS-30(b)(6)(197S). W,;sht v.
The coutt reasoned Ihat since the n(.'W act outlines procedures In a terrninatiOn case, and the legislators did not proscriix! ming by parents, It can be Inferred that the legislature intended to allow parents 10 me. M(!itionally, parents h,we direct knowk>dge of lhe silOalion, and il is il· logical 10 rC(lulre thern 10 go 10 Ihe stale seeking a I~I i l ion involving facts aboul which they know morc. No compelling reasons could be found 10 hold that the Slale has exclusive authority 10 begin termin;ltion cases.
MOr>lgolllcry Coumy Dcpllrlmcm o( I'I!n5/on$, 423 So.2d 256 IAla.Civ.App. 1982).
The Court considered 12-15-50 et, seq. and Ihe new <Ie! In p,',; materiil, even t1lougil the flew act was flO! in effect when Ille case was Originally flied.
III. Which court has juri sdictionl It is clc<lr that the jU\lCnlle court is st.ltutorlly \lCstcd with exclusive original
,,. .
. .
When wl~ defend~nu, ~larIn.lni41rtdl, policy nolden, debcon, hilYC moved and ~t no fo~rdlng :.ddmu, we trxk them down 0' ~ world-wide Kol le. And If we dQrl't I1nd )'Our pe!"50n,
)'01,1 don't~)\ GklNli N~ cha~ for a trx.e whoo the Int known iKldress Is three)'W501d or leu II SI80.00.
Call f(K m<Jr"e Infonnatlon or to trace today. 1-800-661-61441b11 A'ee
,tart.
A I~a & HawaII Call 1·100.4.0-6144 9I.m.-l:1O p.rn EST 6 UI'i.-4:JO p.m. PST
144
gomcry Count y Departmefl! 01 itmsions, 423 5o,2d 256 (AI.1,Civ,AI)1), 1982J. This Is bolstered in termlnalion cases by sec· tlon 12-15-7I(a)(61 which lists terminatiOn of I)'l rental righls <rrllOrlg lhc jX)Sslble dispositions which the juvenile court C.ln make after a findlr\8 of dependency. Whether the juvenile court is in the district court or the circuit court is nol as obvious as It might JPpear. That decision Is left 10 Ihe discretion of Ihe preSiding judge or e<rch d rcuit. The district judge SCMS as thc juvenile court judge, "unless otherwise order'Cd by the presiding circuit judge:' Rule 2(A), Alabama Rules of jU\ICnrle Procedure. The presiding circuit judge has broad ad· mlnlstrative powers and must designate a combin;ltion of circuit and distri(;t Judges as he deems necessmy if the case load n..'quires it or the diSlrlct encomP.1SseS more than one county. Rule 21e), A.R.J.P. The dt.osignations are subjected to allPtoYal of the Alaooma Supreme Court. Rule 21E), A.R.J.P.
Whal happens when more tniln one juvenile court is forced to deal with a child at lhe same tirne? Wnt.'fl Ihls OCCUrS. both Courts i1re generillly said to htNC equal ilIld concurrent jurisdiction, and the court which cKCrd~ Its jurisdiction fir"!tt has the prefM!nce arId should be allowed to act legltlmalely without obstruction by Ihc second court. Ex iN'te Dep.1rtfflCm of Menlill He.llth, 491 So.2d 956 (Ala.Civ.App, 1986J. The Alabamil Supreme Courl stales that Ihis general rule Is found(.-d on Ihe primary concern bcinglhc jU'.(!rllhls OOstinteresls and that courts should cooperate In thaI sillri\. Ex ParlC Department 01 McnuJllicalth, 511 5o,2d 181 (Ala. 1987). This effectively p~l5 juvenile courts in different counties from aCling as de (aclo appellille courts. This is not to say Ihill the first ju· venlle court to act on a child retains prirnilry place for all possibilities. The supreme court hintoo as such when It said that the how rllaliefS al hand In that case were sufficiently related to allow the princ11>a1 01 concurrent jurisdiction to a~ ply. The rule does rot apply, hClWe\'er, when Ihe iS5ues before the tYoO courts are unrelated, or when Ihe issues are belween Ihe same parties. Ex Parto Dt.'p<! rlmen/, 511 5o.2d at 184.
Certain SI)(}(i(l1 rules arc applicable II) CDmlllainls in termination cases. It is spt.... cifically pr(JVid£.>(! Ihat: -No compiainl or pelilion Wlall be 111m by any Pilrty unless It allfges that the PilllY I111n8 the ~me or a public or prlvale licensed child-placing agcocy is able and willing to a~sumo custody 01 SOlid child, .. nd rl() )uch t>etltlon shall be gr.JntOO excepl upon proof of such allcgJl lons.n
In several cases p;ll"Cnts have al1empt. ed to convince Ihe appellate courlS that the circuit coun which granted the pJrents' diyorce and iIW.lrded custody retains continuing jurisdiction of all custod y issues involving the child for all l)uq)()seS. The court of civil am)C(ll s ha.s held that when the i~~ue is not a custody dlSI)ute between parents but, looking al Ihc facts, is a '<lse irMllvlng a child in need of supeNlslon or a case of depend. ency, the juvenile court has original jurisdiction, Anonymous II, Anonymous, 504 So.2d 289 (AIIl.Gv. App. 1986'i e mrer v. Jeffcr50fl County Dcpar/ment of Pensions and SecU(l\r. 496 So.2d 66 (Ala.C1v.App. 1986) and as well as laler when the Issue becomes termination of parental rights, Alii. Code secllon 12·15-30(b)(6)(1975). See, Wright II. Monr·
AlII. Code seclion 26-18-4 (1975). The rationale behind this rule is th"t whomever wishes 10 file a termlnallon petition also must show whal is 10 haj)jX!n to Ihe child should thl'! petition be granted. This is a simple maHer when Ihe local dellarlment of human re>ource$ Is the movant. The rule is less vital when a custodial parent files to tl!rmlnate Ihe P<lrental righ tS of <I oon-custodial parent, bot it is still a statutory requirement and tncrt.10rc should be 1011~ . proof of the nllcg.1tlon also Is required, and furnishing Ihm proof can be handled 111 the hearing. However, It was recently held that fail· ure 10 make this all\$ltion did not ren(ler the petition ineffective wnere OHR has already InYOked the juvenile COUrt'S jurisdiction by the filing of t~C Original petl· lion alleging dependen t)' and n subse-
IV. The compla int-special require-
ments
May 1988
quemt nnding oi dependency, and where the court knew that DHR had the child and was willing to reti!in custody. I.{Jlcro v. Slate DepJrlment of Human Resource), 511 SIl.2d 200 (Ala.elv.App. 1987). The court rea~ned that once ju· rlsdiction is Invoked, It continues under section 12·15-32 until the child is dischallled bv the court or obtains the age 0121, \.(llero, 511 So.2d 203.IAla.Civ.App. 1987). There Is also a special provision invol .... Ins service of process. Cenerally, service by publication Is not allowt!d in juvt'nile proceedi ngs. H~r, termination cases tire an exception, and notice by I)ublica· tion is specifically allowed. Rule B IB}, A.R,J.P. The cQmniu(.'e comments to rule 13 state that the ¥ei!son behind this Is that "cffectivoness of Ih ls nOlice must be b{llanced against the necessity for im· medlacy of the hearing and the requirement of conndentiallty of juvonile court proceedings." Otherwise, service of process is to be perfected pursuant to Ali!' ooma Rulcs of Cilill Procedure. Ala. Code section 26-18·6 (1975).
V, The hearing- right to counsel and transcripl It Is of primary Importance Ihal the juvenite court Immediately ;lIld adequately Inform the necessary parties of their right to counsel. The stalutes distinguish who has the rlsht to counsel and when that right accrues based on wheth· (!( the child is alleged to be delinCluCnt, In Jlced of su ~r\'l sion or dellCndcnt . II Is statutorily mandatc..>d in cases Invol .... ing alleged delinquency or need of supervision that the Juvenile court inform the child, his parents, custodian or guard· ian of the child's right to CounStlI al all stages of the proceedIng. Ala. Code sec· tion 12·15-63(a)(1 975). In cases Jrwolving alltl8t.'Cl derx:ndency, the PJrcntS, guard· Ian or custodian of the child must be In· formed by the Juvenile court th;!t they have a right to counsel; and, if they so reqUCSt, and arc nnanclally unable to af. ford counsel of their O'Nn, the Court is under a duty to appoint counsel for Ihem. AI,l. Code section 12·15-63rb}(1975). If counsel is not indellCndently obtained for the child in a proceeding in which there Is iI reason~le likelihood that he could be committed to an In~tllu l iOn which curtails his (~om, counsel shall be pt1].Ilded. Ala. Code section 12·15-63(a) The Alabama Lawyer
(1975). Counsel for the child Is also mandatory in dependency cases where there Is an ad<A!'rse interest between the pJrent and child, the parent is a minor or the parent Is statutorily rtlIlL'VL'C! of minority 17t marital status but 5:1 11 younger than age 18. AIIl. Code section 12·15·63(b)(1975}. The right to counsel extends to termination cases. Kelly II. Licensed Fosler PJnmtS. 410 So.2d 896 (Ala. 1961). It has 00t.'o held Ihat the righllo counsel Is iI fundamental right at all stages in dqX!rxklrn;y he,lrings. and Ihe duty Is on the court to inform in· dlgent parents, guardians or custodians 01 their right to counsel. Smoke v. Stille Dc.>,xlrrmenf oi ~n5ions and Security, 378 So.2d 1149 (Ala.civ.App. 19791. These righTS can be waived, hOY.'eYer, and thllY are evidently not revived when the 1>''\r'Cm subsequently files il petition sccklnglnformatlon as to IIlsitation rights. Turley v. Ma rshall County DepJr,ment of PensIons and Security. 481 So.2d 406 (Ala.CIv.ApP. 1985), The ,ight to counsel and a free tran· seril)t on appeal for Indigents In termi·
nation cases has been squarely established. Early on, the awcllate courts reviewed the law surrounding the rights of Indigent l1arents; to a froe tranSClipt and counsel on appeal ,md decided Ihal il should be granled, Ihough uncler state law, not on constitutional grounds. Mar· tcrorw,.rd, 351 So.2d 571 (Ala.Civ.App. 1977).
VI. Grounds justifying termination The point of beginning in termination cases is thai the malnten~nce of family inlegrity is considet«! to be a fundamen· tal constitutional righI, clothed wilh the fC<juirements of due process, Matter of Moore, 470 So.2d 1269 (Ala .Cill.App, 1985). FlOWing from \hl5 ls the I)rlncipal Ihlll parents have a prima fade right to their chlldrtm, Mooff!, 470 So.2d at 1270. For pMental rights to be remOYCd, the court must adhere to a snict set of requirements, applying a tVIO-P.lrt litmus test by determining nrslthalthe child is dependent and neKI that no Il!SS drilstic aiternatiYl!S are slJfficient. Sec INiJllace v.
Kenneth H. Wells & Associates, Inc. Structured Settlement Specialists
Providing rapid, expert, personal service when it counts .. qUality struccurtd settlements. O ur free services arc unmal ched 111 thc industry: • • • •
~tllnllit y quut:uio ns in writing wi thin 24 ho urs person al :lSSlstanCe :It SCttlem ent conferenccs coordi mu lon :U1d completion of scttlement docu ments in·depth seminars fOr your staff to:GIONAL OffiCES NA1'IONWII)II 1IIIlMING IIAM OFFICf. - GKI!GO MY MOBINSON 1 M''''' ~''cx l)rl~r ' Sul'r J J J. illrnlhljl/ .. m. M . ' ~'ll~) .41~ . " 7i"II'H~
CO MI'OMA TIt III'.ADQUAMnMS
'.eo..........,
I).:n .... I ' "'-lO ' ,"~ ,",09!1
145
/c((erson COVnlY Oep,lrltnCnr ()( ~nsions
and 5ccurll y, 501 So.2d 473 (Ala.elv.App. 1986). The (lYidence must be clear and con· vlnclng that 11 Is not In the chlld's best In t er~tS to remain with the p.1fents. In Re Brand, 479 So.2d 66 (Ala.Civ.App. 1985). The evidence must be such that It overcomes the prima (,lde righ t of l><Irents to their childnm. Milller of Burnell, 469 Sc.2d 627 (AlaOv.API>. 1985). The ~rddlng principal to be consldcrt.>d alw.l')s Is the best Intc~ts at Ihc-Chlld. McConathy v. Dept. 01 HUITIJn Resources. 510 So.2d 269 (Ala.Civ.App. 1987). In determining rhe child's best Interests, the court is to consider all releo VJnt fadOfllnduding whct~r .ho P.... re.l. is physiC<llly, mentally and fi nancially c<lpilble of cilrlng fOr the child. Kellcy v. Dept. of I-Ium:m Resources, 515 50.2<1 713 (Ala.Clv.App. 1987). A fac.or to be considered, and one which often Is O'¥'CrlooIIed, is whether Ihe parents hOM abandoned the child for the six-month period preceding the filing 01 the pelilion to terminate the parent's righ.s. If the parllntS h~ so ab:mdorlcd the child, there ~rlscs a rebuttable presumption "tha t the parents arc unable or unwilling 10 ac. as p;lrents." A/,1. Code section 26-18-7(c)(19i'5). Abandonment is defined as the "voh.",wy •.mel inlentlonal rellllQuishment of Ihe custody of the child; unjuSllficd withholding of the ptlren"s prescnCC1, car~, love, prolectlon, maintenance or the oppor.unlty (or filial affeclion" Or the failure to exercise Ihe rights and dUlles of a parent . Ala. Code sec.ion 26-18·3(11(1975). All of these factors are '0 be used in determining whether the movant has met the ultim3lc test In 1(lrmin3lion cases: ar(l the l)3rents unable or unwilling to discharge their dUlles loward theiroffsw lng. <lnel Is this likely 10 change III the foreseeable fulUre! Ala. Code seclion 26-18-7(01)(1975). If so, the court is em· poNCrcd to ~ from them .heir rights as l>arents. A. Dependency II of.en is 5<... id lhal .he firsl SIt.'P in ter· minalion cascs IS the finding that Ihe child Is dependent. Sec Ex Parte Ogle, 516 So.2d 243 (Ala. 1987). The leglsll1turc has dearly established Ihis to be Ala· bama's stIltutory Kheme. Alii. Code section 12·15-71(a)(b:(1975). OePQndcncy is bro..1dly defined to allow the juvenile
146
court judge to terminate l>..lrental righls based on facts which are egregious, .hough they might nQt fit Into a pm1icular c ubbyhole. Ala . Code sec. ion 12-1S-I(lO)(197 5). The act also lists categories of p;lren· tallncompeter'lce to !ustlfy Icrmlnation. Ala. Ccx/c section 26-18·7(1975) . Though the legislature has Jttempted an exhaustive list of consider..u lons, It Is bo,I no meilns el(ciusive. MiitlCr of Colbert, 474 So.2d 114) (Ala.Clv.APll. 1985). The coUf1 may look direc.ly to the definition of dependency, It may consider the lis. of (ac,ors In seclion 26-16-7 or it may con· sider other relevant fJc tors in making ils decision. Colbert. 47~ So.2d at 1144-1145. In fad, tnc appellate courts recently h<NC el(panded the lilflgu<tge uSt,'<I in defining whatlhe trial court c~n COil sider to all<M' Ihe Irlal COurt to uSC alotallty of the clr. curllStance51est to determine If the child 151n need of c.ue and protec.ion . Campbell v. SUIte Dcp.1flmenl of /-fuman Resources, 507 So.2d 535 (Ala.Clv.App. 1987); Anonymous \'. Anonymous, S04 So.2d 289 (Ala.Civ.APP. 1986). Thus, .he trial courl has the broadest possible latitude In amaSSing facts upon which to base its decision, subjCCl stUl, orcourse, to the appropriate rules of evidence. The standard of proof Is uclear and convincing." and the evidence must be "coml>ctent, material and rc1l.'Vilflt in nature." Ala. Code section 12-1565(elll975). In ,my event. <l finding of dependency is not a finding that cannot be changed. It has been held to nOI be res judicata, alluwinllthe door to be left open (or the family 10 \YOrk out any difficulties and 10 be rejoined. Anonymous, 504 5o.2d at 295. Issues are only final at the next slage, lenninilting the Il<lrenlS' rlllhts. B. leu drastic alternatives The second prong Is satisfil.'CI when evidence is de<lr and convlrlcinglhatless drastic measures are insufficient or when I~s drastic measurc5 \YOuld not serw the child's best InlereslS. ClemOn5 v. Alabama Dcpaflmcnr cI /'f!nsions and Security, 474 So.2d 1143 (Ala.eiY.App. 1985). This requirement is to be met by Yit-wing Ihe fact S of each case, and ills ]X.'Culiariy del>cndent upon the facts as they ha'o"\! ari sen. When the mother of a dependent child repeatedly re(used child care classes when she was in obvious need o( help
with parenting skills; refused counseling; did nOl exercise her besl el10rts to obtain a stable home environment; refused homemaker services and failed to pay a reasonable por1ion for the child's support though able 10 do 50; and no other family member could take the child, the Department of 1\:!llslons lind Security and the st.)le attempted '0 e~erd5C less dr.lSIic ai1ernatives, but to no avail. Mouer of Col. bert. 474 50.2<1 1143 (Ala.ov.App. 1985). RehablUtation o( the lMrent is an OIl· ternati\!(! which should be explored. Ala. Code sec.ion 26-18-7(a)(6)(197S). However, when the children ~ adjudicaled t;\(>pen(lent and the molhe. (i1i1t.'(! to Comply with tWO service agrccments with Of'S wherebo,l she could mg.)ln her childrell; laler pled guilty to armed robbery and shooling a woman in the head; refu sed to see her children while she was jailed; and was diag noS<.'(! as sc:hizophrenic and hospitalizt.'C.l for fiw ytars, all steps necessary to a1H!fl1 I)t rehabilitation had been folloYo'Cd and had failed . lMl/lacE', 501 5o.2d al 475. When the j>arent made little effOr1 loward self-rehabllitJtion regain custody o( her children who had been In fO$ler Cilfe intcrmil1ently for one and one-half years; fallL'(1to meet Ihe mutual· Iy Ilgrccd-Ul)()n goals be'ween the Illother and DI-I R; and undef"'-cilt t\.',lO failed returns of the children to her during which she would regress 10 her alcoholic condilion, rendering her unable to care for her children, rehabilit,llion had fai led, justifying the second prong of the test. McConathy v. DepJl"ltnCnI of /·Iuman Resourc~ 510 5o.2d 169 (Ala.Civ.App. 1987).
'0
It Is at this stage that the court most often will consider the niSlOry of the pMent; history is rclcviln' for Ihe trial court to consider. W,l/1/1CC v. /cffcr50n County Department of Pensions & Security, SOl $o.2d 47) (Ala.ClY.App. 1986). The court can consider thfl history of the parents' mental Illness, mental lns.abili· ty, refusal 10 cooperate with DPS and their inability to care for the child. Fitz· scrald v. Fitzgerald, 490 So.2d 4 (AI". Civ.App. 1986). P,lSt abuse of the child is a (<lCI(lr for Ihe COUf! to consider, Haas Y. Cherokee Coul1ly Dcpdrtmeflt of i'f!usiOu$ & Security, 489 5o.2d 586 (Ala.Clv.App. 1986), as Is a history of neglect and Inadequate housing. 10hMon May 1988
v. Sidle, 485 So.2d 1185 (Ala.Civ.APP.
1986). VII. Appeals Prior to March 21, 1962, Ilppcills from the Juvenile court were taken dlrt.'Ctly to the ci rcuit coun (or trial ric novo. Ala. Cock section 12-15-120(.1)(1975). HOY.'ever; the rules of jU\elile procedure h;r...e been held to superSeCJe the Code in aiterint! the apl>cllate route for Juvenile court cases. Wrl8ht, 42] So.2d 257. Apl>cllilte proct.-dure5 now generally nre found In rules 20 and 2a, A.R.J.P. A!)I>cals from termlnlltlon cases now generally are tilken directly to the court of civil appeals. Rule 28(a)(2) A.R.I.P. There Is, ~r; a CiM!at to this. If no adequate fl!cord Is made at the juvenile counleYCl, the apl)C;l1 Is to the trial court for trial de /lOVO to btl hCOIrd by II judge who did not originally hear the case. Rule 28(1::1), A.R.I.P. Juvenile court 1lPlJeals dlr Ily to the Alaooma Court of Civil AI>!>Cals are iMIikJble in three slluatlons: when the juvenile court ludge certifies the trial record as adequate, rule 28(A)(I)(a), A.R.,.P; when the p.lrtles SlII>ulntc to all necessary fa cts, rule 28(1\)(1)(a). A.RJ.P; or when the parties will stipulate that only (IUeSlions of law arc inYOlved and the question is certified by the j\lYEnile couri judgc, rule 28(A)(1)(b), A.R.J.P. An OOeqUiltc record is often a problem In Juvenile pro<eedings. The Juvenile court proceedings ilre to be recorded by any of several meilns, including the usc of a stenogrdpheror an electronic device. Rule 20(a) A.R.I.P. This allows the juvenile court to use a Simple tape recorder to rC(ord the proceeding for later transcription. While this ill>l)CalS to be an in. eXI>enslve and quick way to record the proceedings, it is filled with problems. The transcriher gcncriltly Is not present at the juvenile court proceedings and may have dlfflculty in dctermining who made cenain stClt~mt:nts or in under. standing what was said . If Ihe Spe;lker is mist.lkenly not identified on the recordand thi s happens- the trarlscriber w;U have no way to determine to whom to ill1rlbulc the 'W'Ords. The use of less th,m adequate machirK!ry also heightens thedifficulty. If counscl desires a trial de novo before the circuit judge, then tht.>Se problems work to his adVilniage. H~r, if counThe Alab,lmil Lawyer
sci wants 10 appeal directly to the apI>cllate coun, he might consider requesting the judge to h,we a stenogrdpher I)rtlscnt, and, failing that, have one there hln)5clf. As stated above, when the state files to rerllQ\,'(lthe l>arental rights of an Indlg~n t parent, that parent has a right to a transcript on appeal as a mattcr 01 right. Matlerolw.ard, ]51 Sc.2d 571 tAJa.Civ.App. 19i'i'J. The committee comments statc thai a record made as allO'>YCd by the rules will be "ad(,.'(luate and subslimtlally conlplett! as a record made In a case tried In the circuit COUrI .H Rule 20, Committee Comments. H~r, practice shows that nothing takes the place 01 a stenographer at the proceeding. Notice of aPI>cal to clthcr the appcllilte court or the circuit court must be- written and must be filed within 14 days after entry o( the order (rom which the appeal was taken. Rule 28(0 , A.RJ.P. There Is no mquilemcnt that the ju. ~nile coun explain to a p.lrent who is represented by retained counsel at trial that she has 14 days In which to file an
appeal. Fuller v. St.1IC, 1.77 Sc.2d 1267 (Ala.Civ.App. 1985). When a case rcachc~ Ihe appellate courts, the ore tenus rule applies and the trial court's ludgment Is pres umed correct, to be set aside only If It Is so unsupported by the evidence 10 be plainly and palpably wrong. See w.aIl,l ce, 501 So.2d at 474. Such a burden Is C)(tl'emt'!Iy difficult for the appellant to meet. VIII. ( onclusion
Judicial rcmovJI of the rights of Ih1rents to their children is an ullusualthough not uncommon procedure which is appfl.r priato oniy In severe caSCS of pJrental lnadequacy evidencfld bv "mental unwll· lingness or inability to care (or their offspring. It is appropriate when the sltua· tlon Is such that the chIldren, for their best Interest5, must be removed Irom the presellce 01 their parents and placcd in a different environment. Once COmpleted, thc action is .. bsolutc, and, the parents have no more lights to their children than docs a total Stranger. Thus, the procedure Is best used sl)'1ringly, only when all else fails. •
14 7
'\,..;-,.
... in some very narrow and well-defined circumstances, the discharged employee may have a tort remedy.
148
May 19B8
by George M. Walker
s
The Alabama Supreme Court has reo l)Catedly reaffirmed Its commitment to the employment-at-will doctrine, precluding suits by discharged or otherwise dis.,ffecled employees against their em· ployers for breach of the emplOyment contract. Un(ler thc doctrine, an at-will employt!C may be 1I!rminated for good reason, for bad reason. (or malicious reason or even for no rl::<lson i1t ali, without warning, ffiO(i~ and cause. See Meredith v. C.E. w.tlthler. Inc., 422 $o.2d 761 (Ala.
1982); Bcmder Ship Repair, Inc. v. Swvcns, 379 So.2d 594 (I~80); MlIfI/n v, Tapley, 360 So.2d 708 (Ala. 1978); Hin· richs v. Tranqul/alre Hospi!.ll, 351 So.2d 1130 (Ala. 1977), Despite Ingenious effortS to cloak the claim as something elsc. where the injury suffered is loss of employment ,mc! the plai ntiff Is an at......iII employee, the doctrine has precluded
recO\lCry. In recem ~ars irM!nti~ c.ounsel, rccog. ni;dng the (utility 0( tnc c.ontract cI<lim, increasingly haw turnc!d to tort law in an clforl to obtain a remedy (or Ihe dis· charged employee. Whde employers have succeeded, for the most part, in dl" fending these claims, cracks exist ill the foundit!ion o( the eml>loycr/employce le8al relationship and, In §Ome very nar· rC1<N and well-defined circumstances, the discharged employee may have a tori remedy. So far, employment tort C<lse5 ha~ reached the Alab;!ma Supreme Court under fi~ sepm,lIe and diSTinct lheories, lind the court has SCI vcry narrem ilnd specific liability guidelines for
each.
I. Emotiona l distress/tort of outrage While the at-will doctrine Insulates the
employer from liability (or the ilct of discharging an at-will emplo,ee, if the discharge or other employment decision is accompanied by sufficiently outrageous conduct, an independent bitsls for tort liability exists. While tcchnlcally (Ie-
ecor8e M. W,llker /s a 8r.lduale of the University of MontC'V,ll10 lind the Univcr· JjIIY of Alabama School of law. He is a member of the Mobile firm of Hand, Arendill/, Bl?dso/e, CWilV(>$ &- Johnston, and the Alabama Stme Bar'S I.itigill ion and \buns 1..1WYCrs' sections.
The A/ab.1mll Ldwyer
149
scribed as an Hintentional Infliction of cmotional distrcJS:' ReSlillerneni (Second) of Torrs, §46, it is more commonly idenllfied as the "tort of oUlra.ge." S(>e IImerican Roacl Service v. Inmon, 394 So.2d 361 (Alil. 1961); Prosser, The l aw Of Torts, S12 , al 55-60 (4th ed. 1971). In Inmon, Ihe Alabama SUllreme Court recognized the tOl1 of outrage but, .1\ the same Iinle, concluded thiltlhe pla intiff's evidence feU short of establishing the necessmy elements. To p~ such a claim, the court required the plaintiff to establish: (a) that the dcit>ndant either In· tended to cause Slwre emotional distress or aCII.'<l in reckless disregard of a "high degree o( probability" that severe emolional distress could or would result; (b) Ihat the defendal1l'$ conduct was so extreme as to be oulrilgeous; and (c) Ihal Ihe plaintiff, In fact, suffered s(''VCfC emotional distres~ Inmon, 394 So.2d at 365. In identifying Ihe tort, the court limited il quite sharply: "The emotional diStreSS thereunder must ~ so severe that no reasonable person cou ld be ex· I>ccted to endure It. Any rl.."CO'>'Cry muSt be reOlsonable and jU5tified under the circumstanceS, liability ensuing only when Ihe conduct Is extreme , . , . By extreme we refer to conduct so Olltrageous in character and so extreme in degree as 10 go beyond .11 possible bounds of decency, and 10 be regarded as atrocious and utterl y intolerable in n civili.l!ed society:' Id., citing RC$liItcmcm (Second) of Tom, §46 Commellt (dl, at 72. The Inmon court made It ' Iulte clem that Its dedsion W.1S intended to r,~ach only the most egregious conduct, ilnd subsequerl! cases have demonstr;l1ed Ihat truly outrilg(.o()US conduct must be prL>SCOt. To prOlect again ~t whal was suggested would be a flood of litigation, the Inmon court concludL'<l that the trial court should dctermine In the first instance whethcr the alleged miscond uct is sumcicntly outragcou~ to SllSIain a claim. In·
ISO
mon, 394 So.2d at 3&5; see a/so Lo8an v, Scars, Roebuck &. Co., 466 So.2d 121, 123 (Ala. ]985): Reslillemen! (Second) of Torts, S<16, Comment (h) ("II is for the court to determine In .lhe first Instance whether the defendant'S conduct !ll\ly reasonably be fegnrdcd as so extreme and outrageous as to perm II rL'<:OVcry:'j Case law reflects that Alabama trial Judges and Ihe Alab<lma Supreme Court have adhered to Ihis p-inciple I1t'dlsmlssIng. short ollria!, turt 01 OutragC! claims where the filets were deemed oot suffi· clen tly outragL'Ous to sUPl>ort the tort. See, e.g., Harrell v. Reynolds Mcwl Co., 495 So.2d 1381 (Ala, 1986) (discharge of an erI11>loyee); /.oHM v, Scars, Roebuck & Co., supr.l , (dcfen(! .. nl's eml)IQyL't! ca lled pl aintiff "qUCEr as a thrC<Klollar biU'1: Bearden v. Equifil)( Services, 455 So.2d 836 (Ala. 1984) (ndJustment of WOrkers' corl1pcrlS<ltioo clnlm); Barrell v. FilrnKJfS &. Merchants Bank of Piedmont 451 So.2d 2Si' (Ala. 1984) (defendanl bank demanded p<-.ymenl on nOle out of proceeds it held); Inmon, supra, (discharge of empl<¥C). In the employment co nt e~ t , the tort of outrage Olnalysis permits <In embittered employee to litigate relative to his di scharge or other emplOyment decision If he can demonstrate a sufflclenl leYel of outrJ!lCOUS misconduct accompanying the decision. HCM-'CVC!r, it Is Important to note that the propriety of lhe dlschar!le or other docision is rot <In issue: r.. ther, Ihe only thing plaintiff may challenge is the conduct aCI;Qmpanying thc decision. This is SO because Ifle tort of outrage docs not apply where the eml)loyer "has done no more thlln to Insist Ul>on his le8al rigflts In a permissiblo W;iY, even IhoU8h he is well aware that such insistence is Certain to ca u ~ emOtlOrlal distress:' Inmon, 394 So.2d at 368, quoting from RcslJtemenl (Second) ofTorfs, §46, Comment (g). While a tort of outrilge claim does oot in any WJY vi!iilfe the atwill dOCfrine with respect to.1 clilim I1t' a discharged empl~, its importance In the employment COntext should not 00 urldcrestimated .
True to Its at-wlll roots, only once has the Alabama Supreme Court found a viable tOri of outrilge claim ,lfising out of an .. t-will employment rel(l!ionship. ln Rice v. Unilecl Insurance Co. of America, 465 So.2d 1100 (Ala. 1984), the (lVldence demonstraled Ihill 1)lnlnl1ff reported to her cmpi'oyer thaI )hc was pregnant, that the employer thereafler attempted to force her 10 take dis.lbility leave filther than to work through the pfCgnancy, that he falsely accused her of il'competence, thill he ridiculed her in the presence of co-empl~ that she was thereafter terminated and thaI she suffered a mlSCilr· riage Orle week after the termination . The court found four distinctions In this cvi. der\Ce ((om the facts In Inmon: "FirSt, Rico allcges a pauern of ac· tivi ty, encompassing a period o( severill months. Second, defendant's alleged behavior rnvolved a great many persons (Rice's coworkers, clients, and husi>.lnd) in addition to Rice and Ihe defendants. Third, dL>k!ndanfs alleged pat· lern of OutrilgCOUS actS were direct· cd toward plaintiff when Giannini [defendanl1 W.1S likely to kna.v thaI severe emotional dislress could have serious physica l rel)Crcussions. Follrth, the outragcous ac· lions aHesed I1t' Rice WL'rc dlrt.'(Ied IQWilrd an ilk'g.ll purpost', discrimination against an employee because of sex." Id. Oil 1102 (emphasis by the Court), On these facts, the supreme Court concluded that It was "concei vable" that Rice could prove a SCI of fact s In support of her outrage claim and, thus, thOlt It was error for the trial court to dismiss that claim. The Rice decision is ,significant because of the standards it .tdolll$ for an employee's tort of outrage claim against the empl~r. If an emil loo,ee can prove thaI he or she has been subjected 10 a pattern of outrJgeous acts that were or should have been kn(MIn to the cmpl(¥!r likely to c.. use severe emotional distress,
May 1988
O'.'Cr a period of time In th(> p~nce of a number o( persons, and that the acts were for an iiie&-ll purpo~, then a tort of outrage cia 1m exists. tt i$ difficult to Imagine an employment situation where these circumSUlnces WOuld lIkl.!ly exiSt, but certainly th e faci that Ihe lorlcxi515 and has been defi ned increases the probability that facti will occur to Ot the theory. Fc<le",1 courts In Alabama on two oc· caslons have found that facts presemed were sufficient to present an aClionable employmen t-relat£'d lorl of oul rage cia 1m. In Collins v. General TIre Corp., 549 F.Supp. 770 (N.D. Ala. 1982), d~ fendant's personrlel manager went uninvited to 1)lalntlff's home, where she WJ S rt'<:ovcring (rom an on-the-job inj ury, alld "demanded th<ll she come oock 10 work, Implied th<lt she wa s a malingerer, Jnd threatened to fire her in order to force ncr back to work ." Id. at 771. In denying defendant'S motIon for summary judgment on the outrage cialm, District Judge Acker concluded that a Jury could, based on these facts, f()fm a belief that defend· ant intended to cause severe emotional distress. The decision is hard to recon· d iu with the guidelines set down in Rice, supra, since here there was no pattern of activity, but onl~' a single visit, and because the only persons ir"M:JI"",>d hcre were the personnel manager and the plaintiff, Instead of a number of co-em· ployces. In view of the Rice decision and the guidelines it set dOY/n, it is unllkely that Collins affords any w bstantiill Pl'1..'CCdent for future decisions. In Holmes v. Oxford ChemicIJls, Inc., 510 F.SUPI). 915 (M .D. Ala . 198!), plaintiff suffered a permanemly dlsabllnij heart ilttack and, a5 a result, he wil S1.!llt!· th."<l to CoIiL>Cl lm)'lthly di~biHty bc!n~n ls e~wal to 60 perc!:!nl of his predisabillty Income. Plaintiff calculated the monthly disability benefit amount to be $780 per month. Defendanl calculated It to be $500 per month, The court vltimately concluded that the appropriate amoun t WtlS $73QAO per month, Afler making the $500 payment for several months, de· fendmll ulll1n!erally reduced the p:.ymel\l
The Alabama Lawyer
to $49.10 per month and advised 1)lalnliff to stock the remainder from Social Security. Dt..fendanl had no right under tbc dis.lbllity plan to do 50, The court concluded that the Jury tould reasonably In· fer that defendant's Intentional and wrongful act of redUCing th e beneO ts of the permanently disabled heMt iltlilck victim was outrageous. This analysis also OOp.lrts (rom the Rie~ guldellr'ICS in terms of p.lttern of activity and numbc!r of porsons jfM)I~ , but the analysis Is consistent with the Rest.1remen! guidelines. In a posi-Rice decision, the Alilooma Supreme Court again considered the tort of oulrilge in an employment !>Ctting. In M clsa,le v. WZEWFM Corp. , 495 So.2d 649 (Ala. 1986), pillintiff claimed that she Wil~ the victim of oullageous conduct Ix'" cause her employer made scxual ad· vances to her, tried to kiss her, mtlde sug· gestive " lurks" Or innuendos" lind
ultimately nrt.>d her. Despite testimony Ihal her supervisor had been pressured to dismiss pillintiff because of her refu sal to succumb to the employer's smtual 3dvi'lnCEl$, the Alabama SUI)rCme Court concluded that summary Judgmerll was J}ropcr On the tort of outr,l gc claim. The court felt the evidence fell short of demonstrating severe emotional distress and found the employer's behavior to be nothing more than fll(>re insults, indignities, threalSOf annoyances, for which the law will not hold one liable in 10rt. Id. at 651 . It Is likely that the Alab,1ma Supreme Court in the future will further define the tOil of outrilge In relation to the eml)luyment environment and that the Rice guidelines will be modified to dlM I with Other sit\lations. While the futurc evolution of the tort will prob,1bly reach $Om.;! condur;t not presently thought to be CeN-
Introduce Your Clients to a Valuable Service. Ri:fcr them to Uus intsS Valuatio n Services for expert deter-
mination of mir market' value of businesses, and financial analysis and consult.'ltioll in ca'iCS of:
o &tate planning o Estate settlement o Marital dissolutions o Recapitalizations o Employee stock ownership plans
0 Bankruptcy proceedings 0 Mergers or acquisitions 0 Buy-scUagtttments 0 Dissident stockhold('T
suits
Contact Dr. John H. Davis, ill 4 Office Park C ircle · Suh'c 304 • Binninghrlnl, Alabama 35223 P.O. Box 7633 A • Bimlingham, Alrlbrlmrl 35253 (205) 87(1.1026
151
ele opportunities 9
thursday
PENSION LAW ANO PRACTICE
(sa tellite)
law (cnler, Tuscaloosa
2-4
Alilbama Bar Institut e (or
e lf
(205) 348·6230
TAX INSTITUTE
PROBLEM LOANS
Marriott'$ GrilrlO H olel, I\)inl (Iell f Alabama Bar Ins!itutc for e l E
Mobile
(205) 348·6230
Credits: 6.0
National BusinesS IrlMitut(!, Inc.
COSI: $98
(715) 835·6525
INSU RANCE LITIGATIO N
6-8 ADVAN CED PENS ION SEM INAR Hyatt on Union SQU<.lfe, S"n Francisco
(arlOl rll1d Company
Credits: 16.8
Cost: $425
(904) 73 1·4455
7
tuesday
PROBLEM LOANS Bitmir\gham Natlom.ll Bu siness Institute, Inc.
Credits: 6,0 (715) 635-8525
8
Cost: $98
wednesday
PROBLEM LOANS M on tgomery
National Business Institute, Inc. Cr(.'<iils: 6.0 Cost; $98 (715) 835-8525
Los An geles AssociOlfion of Trial Lawyers of AmericOl
9-10
(202) 965-3500
ADVANCED M UN IC IPAL BONO WORKSHOP
Tucson ASSQCiation Of Triill Lil'Nyers of Ameri ca
DISCOVERY TECHN IQUES Pint;lhl,lr$t Hotel, Pinehurst l>r<lCtising Law Institute Credits: 12.0 Cosl: S595 (2 12) 765·5700
10
friday
PROBLEM LOANS Huntsville NOlfion,,1 Business Institute, Inc. Cn.>di ! ~: 6.0
(202) 965·3500
22-24 ANNUAL AMERI CAN INSTITUTE ON FEDERAL TAXATION Wynfrey Hotel, Birmingham Cost: $325 (205) 251·1000
Credits: 1(,.6
C05t: S98
(715) 835·8525
16-17 HAZARDOUS WASTE LITIGATION Doral Inn, New York PrOlctlsing l<l'N Institute Credit s: 11.0 C rt:.>dit ~: S425 (212) 765-5700
EMPLOYEE WELFARE BENEFIT PLANS HYilt1 Regency. SOln Frilncisco Pra Cti ~ inK L;.w
Credits: 10.8 (212) 765·5700
1S2
17-18
In51itute Cost; $425
26-1 AOVANCED TRIAL ADVOCACY University of Colorildo, Bou lder N:ltionOlI Institute for Trial Ad'lOCacy (800) 225·6482
7-8 HOSPITAL LIABILITY AND RISt( MANAGEMENT Mar\.: Hopkins Hotcl. 5i," Fmncisco Mcdi·lcgill Institute Cred lIS: 11.3 COSI: $435 (618) 995·7189
21-23
12-13
ANNUAL CONVE NTION
LITIGATI NG THE HEAD TRAUMA
Wynfrey HOlel, Birmingham AlabaMa Siale Bar (2051 269·1515
25-29 ESTATE PLANN ING I tilton Inn, Oallas Southwestern lcgat foundation, Inc. (214) 69{)'2377
14-15
14-31
29-5
WORKER'S COMPENSATION Birmingham National Business InstitUle, Inc. Credi ts: 6.0 CoSI: $98 (7 I S) 835·8525
wednesday
WORKER'S COMPEN SATION HuntsYille National Business Institute, Inc. Cost: $96 Cwdh s: 6.0 (7 15) 835·8525
ANNUAL CONVENTI ON
Kansas City
Association of Trial lawyers of America (202) 96~)SOO
THE ENGLISH lEGAL SYSTEM tondon Cumberland Institute for elf Credits: 16.5 (ZOS) 87().2665
18
thursday
WORKER 'S COMPENSATION Moblle Niltlonal Busl nl:!SS Institute, In(;. Crl.-d its: 6 .0 Cos t: $98 (7 15) 835·8525
18-22
6-7
CONCENTRATE D COURSE IN GOVERNMENT CONTRACTS Elkhorn Resort, Sun V.ll1l'Y Ft.'<.Icral Publications, Inc. Credits: 32.5 Cost: $925 (202) 337-7000
AIDS: CU RRENT MEDI CAL AND LEGAL ASPECTS I-Iotd Intl'r(:Qntincntal. New York Medi.lcgOlI Institute ( rl.-dits! 11.3 Cos!: $435 (818) 995-7189
The A/.lbflm.l Lawyer
16 tuesday 17
ANTITRUST LAW INSTITUTE St.lnford Court, Sdn Fr.tncisco Practi sinK law Institute Crt."CIits: 11.0 Cost: $450 (212) 765·5700
CASE Hya u Llke Tilhoe, lake Tahoe Mcdl.legill Institute Cost: $435 Credits: 12.0 (818) 995·7189
19
friday
WO RKER'S COMPENSATION Montgomery National BusIness InstItute, Inc. Credits: 6.0 Cost: S98 (7 15) 835,8525
153
ered, It will continue to be only the most outrageous CundUe! thill is actionable under Ihis theory. As long as an employer is ti!ngilging In condu ct thilt it has a right to eng.lge In, and as 10nH as there Is no Iment to inmc! se.-cre emotionill di5tress, there Is rIo reason to beUCY£! that the tort of outrage! will be construed to roach that conduct.
II. Defamation An increasingly common illleg<.1lion in suits by di scharged eml)loyces is Ihilt the empl¥f has defamlXl the employee, us. ually in the coul$e of commeniS made about the employee during di sciplinary or discharge proceedings or In all t"!m· ployment reference made to subsequent prospective emplOyers. A defamation consists of a false and deroga tory statement. Prosser, Law of TOrls, §§ 111·116 (4th ed. 1971). Wh ere a def(lmation claim Is milde by il discharged or otherwise em· bittered employee three legal issues receive prominenl atten tion- publication, privilege and vicariou s liability. A. Publicalion Alabama has long enforced a "special publication" rule whereby communlca· tion s among a corporiltion's milnagerlal personnel, concerning matters relilted to the company's business, including com· munications concerning employee mls· cOndUe! and dlsdliu'He, do not constitute publication. K·Mart Corp. v. PcndNgrass, 494 50.2d 600 (Ala. 1986); Dixon v. Economy Co., 477 So.2d 353 (Ala. 1985); Bume}' v. Southern Railw,lY Co., 276 Ala. 637, 165 So.2d 726 (1964); McDaniel v.
Cresc()nl MOIOrS, Inc.. 249 AI" . 330, 31 So.2d 343 (1947). If Ihere is no publiCil. tion, there Is 1\0 def<.unation.
B. Pri vilege Whether II P.lllicular communication is privileged is a question of lilW for th e court. Fulton v. Adverl isor Co., 388 5o.2d 533, 537 (A la. 1980), ,erl. denied, 449 U.s. 1131 (1981) If a pri vilcHe is found 10 exist, the COUrl also muSt detCrmine whether it Is "absolutc" or "Quallfiedt as <lbsoJ\ltely privileged statemCntS;lfC! not actionilble while <IUillifiedly privileged st<llement5 are, given proof of actual mallcl!. 1. Absolute privile8e-Most communi· cations made by all emplOyer in resl)CCt to legislative, judiCi<l1 or quasl·judicial proceedings <I re absolutely privileged. v.t:bster v. Byrd, 494 So.2d 31 (Ala. 1986) (letter of termination to teacher absolutely privileged); Cole v. Cooper, 437 50.2d 1237 (Ala. 19B3) (statut oriilily privileged COllllllullica tion by eml)loyer to the Department of Induwial Rel<llions rcgilrd ing reasons (Of plaintiff's termination); Sur. rency v. Htublson, 489 5o.2d 1097 (Ala. 19B6) (communications made during grievance proceedings under a collecti\/(! bilfg.lining ilgreement). The absolu te privileHe will be lost if the communlca· l ion is published ~nd the group of those having a need to knOYo', but there stili may be a Condi tional privilege under those circumstances. IM?bsler, 494 SQ.2d at 35·36. 2. Qualified privil~ge- If th e com· munication Is among persons with <l
Bitt Reeves
••
~
C.
ViC.1riOu9 liability Perhaps the most Important Question In the de(a11liltion area is the extent to which the employer may be held Hable
Be Professional Video Services
Video 00110.11100' Video Edtltng
In.urlnee Claim, 110 Re lnnc tmenlf
154
common Interest in the subject matter, then it may well 00 conditionally or qualinOOly privileged. An intef·b\lsiness com. munication about eml>ItJy!.'C's conduct, discipline ilnd/or dischorgc is subjl.'Ct to the qualifil.'(l privilege. Mont80m~ry v. Big B, Inc., 460 So.2d 1286 (Ala. (984)(communica tionS to IXJIYHrilph op... eriltor regarding plain tiff's all('ged miscondu cll; Phillips v. Bradshaw, 167 Ala. 199, 52 So.2d 662 (1910) Icommunica· tion s by employer to propcny supcrinten· dum relY,rding cilre ilnd wotecli on of the property). Where such qUlllifted or conditional privi lege exists, plaintiff can <l"vercome the prlvllegc only by proof th 'll the communicil tl on was accomp,mled by ilctuill malice. Willis v. Demopolis Nurs· ing Home, Inc., 336 So.2d 117 (Ala. (976). To prO\le actual malice such as to mercome the privih:ge there must be evl· dence of "previous ill ......ill, hostility, thruats, riVillry, other l1ctions, former llools or slander, ,md the like ... or by the violence of the defendant's languaHc, the mode and extent of the I)ublica tion, and the like:' INcbstcr v. Byrd, 494 So.2d at36 quoting (rom Kenney \0; Curley, 208 AlII. 623, 626, 95 So. 34 (1923). There will be very few occa sions when an employer's statement or communlc.1t1ons about its employee will not be absolutely Of (Iualifiedly privileged under these decisiOns.
In
Birmingham! P.O. Box 20638 Montgomery. AL 361 2'0 (205) 261 · 0100
July 21-23 May 1988
fOf defamatory communications by one employee about another. There is flO publication where the defamiltory communication, by cn~ emplcryee to another, is rela tl\IC to the company busi ness, and it is I)fobably also privlll:'ged, but where nn extr,l-(orpOfJtl:' communica tion exists Ihe ,,"a lysiS Is different. In K·Mart Corp.. Inc. v. Pcndefgf,u5, 494 So.2d 600 (Ala. 1986), where an empluteC nllegedly told an outsldl:'r that plain tiff had been fired (or slcallng, the court found that such a communlcallon was outsid@' of the line and scope of employml:'nl, and Ihus not binding on Ihe cmplO'r'Cr, because K-Man had a corpora le policy that alloo..ved its personnel managers to release only " neulr<:ll" Information in feSI)Qnse to an Inquiry aboul .m employee'S employment and dlsdwgc. Id at 604. Thi s an.. lysis is questionable and at odds with Ira(lil ional agency law, but Ills thc law 10day. An employer who adopls a rlcutri'll response policy probably can thereby Immunize itsel( (fQ'l1 virtually any type of dcfamatlon clarm by a discharged employc<.'. Employers gel\crally have lillie to fear wi th respecl to defamation claims by discharged or otherwise disafk>(t(.'d empltJtecs, but a careless erllplO)1;lr who permits
publication of unprivileged and untrue or unsupportable InfOrmation aboot an employee could face liability. Employers should haYe employee information and reference poliCies In place to prl.Wnt thi s possibili ty, but most do not. Some of those w ho do not COIn look forward to tryIng to prove in court the truthfulncss of Information they maintain concemlng their l:'lllpl~ While under the senled law most emplOJ'CfS wi ll prevail in thl:'Se actions, the thrcat and C05t of Iitig_lIlon ovocr time should result In widespread t!ml>lO)'er reference policy implement,' lion.
III. Tortious inte rference Alabllrna long haSrl;l (;ognh:ed a cause of act jon In tort for wrongful interference bv a third party wi th con tractua l employment rights, Including rlghls of an at-will employee. Byars v. B~pIlSf Medical Cenfers, Inc., 361 So.2d 350, 353·54 tAla. 1978); Tennessee C{}')I, Iron &. Ry. Co. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909); Sparks v. M cCreary, 156 AlII. 382, 47 So.2d 332 (19081. This Is logical because one not a party to the employment contr.l et should obt"in no benefit (rom the lact that it is 1lI.wili.
In Gross v. /novder Rea/ty Belter Homes &. Gardens. 494 5o.2d 590 (Ala. 1986), thl:' court adopted Res/Mement (Second) of Torts, S767 (1979) and more dearly defined the elemen ts to be prOYen, although the case arose outside of the ellll)layn1<'!rlt contex t. Under the Gross analysis, to es tablish an Intentional In· tcrfcr'!!nce, plaintiff must prO'o'C: I. the existence of a con tract Or business rela tion; 2. defendant's knowledge 01 the contrJCI or bu sln(!~s relation: 3. intentional Interference bot' the defend;lnt with the COnlract or busln~ss relation; 4. absence of Justification for the defendant's intcrfclence; and 5. damage to the plaintiff as a result of defendan t'S In terferen ce. G~m, 494 So.2d Jt 597 (lootfH)tc omitted). Thl:'re have been cases In which an empl(\'y'ee sued on a tortious Interference theory and claimed Ihal the Interference wa s occasioned by the I!mpl<¥ff itself or Its management personnel. This claim is not actionable because a COntracting par. ty c<mnol tortiou sly Interiere with its (M'n con tract. Un;tcd SIllies Fidelity 8, Cuar,~nty v. MII/om/s, 206 Aill. 147, 89 So. 732
NO·PRACTICE INSURANCE Hume or Wells P. O. Box 9549 M obile, AL 36691 (205) 344-7084 M cGuire or Williams 3500 Bl ue Lake Or•• Si l'. I II Birminaham. A L 35243
(205) 969·2460
T hill's really wha t disilbility i nsunUlce is. 11 GUA RANTEES that all your hard work ~ti ll pa Y5 orr whcn you becolne disabled.
o
Personal I neome - Overhead Expense. Dbability Buy-Out Protec ti on
o
Paul Revere o Insurance Group o U4:jht·UI A~CII~~
T H E PAU L REVERE I NSU RA NCE GROU P· - Professionals Spe<:iRlil.lng in Disabili ty Protcc tion for ArTO RN E VS. recognb:ed as Am erl cru:' leRder In NON· CA NCELL A BLE disability income protect ion. NORTHW ESTERN NATIONA L LIFE · u llder in the latesl life Insuranee pro· ducts, Universal !.ife and M utual Funds. TR ANSA M ERICA OCCIDENTAL LIFE · L.c:ader in LOW suranee. 20'1. Annual DISCOUNT for S2S0.000+
OST Term In·
XE ROX FI NANC I AL SERV ICES · Singk Pre mium Whole I.Ire.
· Endorsed by sevcral professional ilssociatiOI1S.
Knl)l'rt Lllrnotl , Gen. MlCr.
The A/,1bama Lawyer
For more inrormnt ion wri te or call colieCI your nearest office.
ISS
(1921). The same analysis holds where plaintiff sues a co-cmployce for tortious int/!rference with the employment con· tra ct, Marlin v. T.lpley, 360 So.2d 708 (Ala. 1968). at lea~t when the c(H!mployec Is acting within the line and scope of his employmcll t /'/arfC!11 v. Reyno lds Mem/s Co., 495 So. 2d 1381 , 1398 (AlII. 1986). It is unlikely tha t the tortious In· terference theory will provc to be a useful tool for discharged employees, since it is likl!ly that anyone taking deliber.lle steps to convin c£! lin employt!r to terminille cmplOyee would "CCM!r his tr<lcks;' however, In the existing merger arld accjui siIious b usiness clima te It certainly Is a consider.ltlol1 for a disch:.l Igoo employee.
,Ill
IV. Privacy The lorl of invasion of privacy wa s ac· knowledged by Ihe Alilb .. m .. Sllpreme Court in Phillips v. Smalley Mainrenance ServlCe5, 435 So.2d 705 (Ala. 1983), wherein the COUll IIdopted the Restall!men! (Second) of Torts, §652B. Plaintiff had been verbally sexu ally harassed by her employer, who locked her In his of· fice, questioned her ilbout her :>eIC life, insisted thill she engage in oral sex with him or lose her job i'lnd once actuilily hit her "across the !)Qttom." She b"lcame qu ite upset and could not work, and the harMsirlg emp lOy(!t subse(jucllti y di scharged her. The court fOllnd tha t these fa cts were sufficient to establi sh an invasion of prl· vacy, w hich requires four clements:
1.
2. 3.
4.
Ihl! Ir\! ruslon upon the pl ;,i ntiff'~ physical solitude or seclusion; publici ty whi ch violMCS the ordinary d ecencies; pu tti ng the plaintiff!n a false, but not n(lCesS<lril y defamatory. position in the public eye; and th e aplJr(lpri.,tion of some elemer\! of the plaintiff's llersonality fOr a commercial uS(!.
Phillips, 435 So.2d at 708 (footnote omi tted). Despite the f~Gts that defendCl"t had not ac tually acquired inform<ltion about
156
pl<lintiff's seIC life, Ihm no such informa· tion W<1S ilCtllillly communi cated to anyone else, that no effon w as made to obwin infOrmll tiun $urr(!Ptitiously and 'hill them was no physica l treSpIISS, the Court found the facts supponcd a "wro ngful Intru slon Into one's plivatc ac tivIti es hI such <l m<lnner as to outrage or cause men!ill suffering. shaole or humiliation to a person of ordinary sensibili ties:' Id, at 711. The faclSof the case seem 10 suggest a tort-Of-Outragc theory more than an Invasion of privaC','. It Is Ilkely that the Phill ips rcsult WJ S ordained more by the outragcou sness of the facts than by the confo rmity of th ose fact s to the Res tatement or other guidelines. A seICuill proposition alone is in$uffici£!nt, bI:.~a u sc it does not ilmount 10 an Intrusion into plaintiff's priville concerns. Id. at 708; Mcisaac v. WZEW- FM Corp., 495 So.2d 649 (Ala. 1986). And it is likely the court will requ ire that the intrusion be qui te OUl'ilgeoU5 or humili· ating, <llthough there is no requirement that plaintiff, in fact, suffer "severe emoti onal distress" such ~s is required for a tori of outfilge claim. The misconduct in thi s Iype of case is thc intrusiOn, nQlthe Infliction, of emotIonal distre ss. It is likely, hO'NC\lCr. tha t a sct o f f<lc ts suffici ent for an invasion of privacy claim al so would sustain th e tort of outrage d~im, given s~re emoti Oll(l1 distress on the Ilarl of the plaintiff.
whIch, an employer mlly be liable for battery Vi.1 sexually motivated tOUChing by one employee of another, bu t if the issue is anillyzcd in accordall CC with traditional agency prinCiples, th en Ihe employer l'ntly eSl:ape liilbility if the evi· dence shows that the offL'Ilsive <lei wa s commllled fOf perso n,,1 reasons and, thu s, was not motiva ted I}f :l1\ intent to perform lhe employer's business. layner v. AAA Cooper Tr,lnSf}OfIJlion, " 77 So.2d 364 (Ala. 1985); Restatement (Sccon(l) of Agency, §228·229, 23 1,235; cf. Tolleu v. Montgomery Real Estate & Ins. Co., 238 Ala. 617, 193 So. 127 (19'1 0). It is unlikely Ihat an employee erlgaged in seICual tou ching has th e employer's Interests In mind . It is Important to remember that such SCICu<llly motivated tou chlnglllight well ilmOlmt 10 .. viol;lIion of Title VII of the Civil Rights Act of 1969, eYen though not a violation of Al ab.lma law. See MerItor StJvlrl85 Bank v. Vinson, 477 U.S. 57, 106 SO . 2399, 91 LEd.2d 49 (1966). Present Alabnm<llaw d005 not provide a tort remedy for sexual harassment in the work place, short of outrageous mi sconduct or an invasion of p~ivacy. As employees become iIW<lre of their rights In thi s regard, it Is likely that Ihe I>oint will see Increased litigation :lnd, perhaps, .(1n expansion of the existing re,,<.'(!ies or the cre<l,l on of a new OIIC.
VI. COnclusion V. Assault /battery Increasingly, eml)I~'Crs are Ileitlg sued for assault and/or bat tery commi tted by one employee upon another, especially related to sexual harassment situations where there hil5 bec;n nQnCOnS(lnSU'11 lOul;h ing or fondling_A ba1tery requi r(!s an act intendL'tl to ( Ol USt.! harmful or offen$i ve bodily Cont;,,( t (ouploo with dCrual bodily con tact, and such con tact Is "offcl\SI \(l lf It o(f(!nds ~ reasonable scnsc of personal dlgnlty.H Resl1uement of (Sec· ond) of Torts, §18·2t The Al abam a. Supreme Court has no t yel considered whether, or the eICtcnt to
Employees tr.lditlonally havc bccn stymied by the at·will doctrIne In seeking tl) recover on an employmen t con· tract th"lory from their employers for dischargc or o ther cmployment decisions. So far, they also ha'o1'! bef;on I~rgely unsuccessful ln obtaining tort relief for on· thejob di sputes, but the framework now is in place for several lIau<M'ly defim..d thl."Ories. While the law of torts Is not threat to eviscer<He ~he employmClll·atwill doctrin e, it will provide a remedy to some Cml)loyl.'e~ in some very egregious cases, and counsel fo r oolh employers and empl~s should be 1)l()pared to ad· dress these issues In such situations. •
May 1988
THOSE WHO AREN'T COMPETITIVE END UP HERE. I t's a fact of life, off the field as well as on. '111C p layers w ho arc strong and skill ful; those w ho assemble the best tea m rench their gOrl J. 111C o thers wa tch fro m the sid eline. Our goal is to p rovide you with the very best professional liabili ty insurance coverage. And we have the team to beat. 'n,e Alabama State 8..,r. Your association, solely dedica ted to serving Alaba ma attorneys. In touch with you r needs. Kirke-Va n Orsdel lnsurance Services. The nat'ion's largest ad ministrator of
b<lr-sponsored liobility insumnce programs. Experienced. Responsive. A com po ny built'
o n exceptio nal custo me r service. The Ho me Insu rance Company. Undcnvriter of more professional liabil路 ity insulilnce pla ns than nny o the r. Renowned as the nation's premier liability insu ra nce ctlrrier. Together, we' ve desig ned the l Pl plan you' ve been wa iting for. One of the broad est policies in th e United States. Competitively p riced . With the most respo nsive customer servi ces anywhere. You be the judge. Just cil il Kh路ke-v..'Hl Orsd cll nsu ra nee Services toll-rree, 路1-800441-1344 to fi nd out more about the Alab., ma State Bar's new Lawyers Professional Liability Pla n. You'll discover thai we d idn't just come to play. We ca me to win.
Klrke-V.1n Orsd llll nC() rporat cd
Insurallce Se..... icC!l Divisiun 1he KVI Ccnlcrlmnlird Streel DL-s Moines, Iowa 50309 The Alabama Lawyer
157
Status of the Causation
It is a fundamental Pl'inclple of tor1 law that, in negligence aclions, there must be evidence the alleaed breaeh of dury proxInltllCly caused the plaintiff's injury,! I lowcvcr, the Cllusation mquirl;!ment in nl(.'<lkal nmlpril ctice cases has Ix!t!n the source of considerable controverSy llIld dt.'bille.' Tradition~ l prox imale cause sian.. dards in this contexl require evidence thai the resul1 (in jury or dea th) complainLod of ~probably" was caused IJ'f the negligence of the defendant medical care provider.' W hile some states have lessened this standard of proof in mL'<Ilcal malpraClice cases,' Al;d)<lmll has adhered to the tradi tional rule.J The ad herence by the Al abamo cou rt s to the traditional causotion re(lulrement appears to preclude Ill>l>lication of the 158
"los! chaoce" of survl\Q1 or iml)l'(Mlfllcnt theory which would illiow recovery where there is evidence that the alleged negligence reduced the patient's chance of survivill or n.~~ry. The " I o~t ch'IIlCc" of survlvalthoory has Ix!cn c~ pres5 ly reJected in ((!Cent decisions in SC\ICr.,1Jurisdictions arId Is locompatlble with the traditional doctrine of proximate causation in medical cases.路
Current standa rd in medical mal路 practice cases in Alaba ma In medical millpraClice aCllons In Ala路 b.lma, the plaintiff musl !)roduce (!VI. der\Ce thfll thc alleged negligence of the defendant "probably caused" the Injury or demh complained of;
"The rule In medical malpractice cases Is Ihat 10 firl<! liauilil}', there must be more than a mere possibility or one I>OS5ibility "mong others thatlhe negligence complained of caused Ihe injury; there muSI be (lIIldcnce thaI the negligence I,robl.lbly caused the injury.H
Williams v. BhOOpdthi, 474 So.2d 69 1 (Al a. 1985). Where ttw evidence produced after di~ cstablishes only a Hpossibility" that the alleged negligent medical cat@ c.lused the pal1enl's death, a trial court may properly grant summary Judgment in (avor of the defendant because the p!ninliff hilSfililed to create 11 jury ques路 tiOn under the preceding Siandllrd. HO-
ward v. Mitchell, 492 So.2d 1018 (Ala. May 1988
Requirement in Medical Malpractice 1986),' "Thcrf,J must be some evidcrlce that tile alleged negligence probably c.1uscd the injury:" Id. at 1020. (emphasis
added). The Ht>Vard case provides a good ex{U111)le of hO'W the ,radiUonal sumdord hllS been applied in Alubilrlltl, The plaintiff in that case first visited the defendants, ohstetrldan/gynl.'cologisls, In 1971. The
defendants dercrmlnoo that tile plaintiff had been six to eight weeks pregnant,
and Ihat she had suffered a spontaneous aborlion. The pl3lnllff's blood was typed as having an Rh negative (actor. The on. Iy medlc:!1 Cilrc prQll jded by the defen. dants to the plaintiff was On the occasion of the plnlnliWs pregnilOCY In 1971, all(! they did not prOYide any C.lre during her
subsequent pregnancies. The defendants falll.'<f to treal tlwo plaintiff, when she was under their care In 19n, wilh an available medication which '.YOuld have Pre'o'ented the dl.ovclopment o( Rh I>ositive anti· bodies In her blood, The plaintiff boc<lIllC pregnant in 1972 and subsequently dcli~red <l healthy girl in ()c(cmber 01 that year, This child's blood was incorre«:tly typed at thaI time as containing the Rh neg<ltive factor, but testing done 12 ~;HS later estabJlshC!d tha t this c hild actually h<ld the Rh posi. ti ve factor, The plaintiff became pregnall! again in 1974. The 1974 pregnancy was spontaneously <lborted and her then· trealing phy$ici,m discovered, al Ihat lime, that the pia ntlff tested Rh positi\IC, The Illaintif( became pregnan t OnCe n8illn In 1980 ane;! delivered a child through cesarean st!ctlon In 1981. This c hild died sevcflll days after birth (rom a condition caused I1t' the crossing of the mother's antibodies to the Rh positive factor Into the (etus's blood stream, where It destroyed the felUs's led blood cells. The 1)lainriff brought suit against the doctors who tre;;ated her In 1971 (or the de;;ath o( the child born In 1981. The plainTiff alleged thill the negll. gence of the defendants In (,!illng to treat her In 1971, with the medicaTion which would have prevented the formation of antibodies to the Rh posiUve faclOr, The A/llb.1ma Lawyer
caused the death of her child born In 1981. The plaintiffs (>J(f)Cf1 tl.'Stined, in deposition, that the fallure of the defendants to treat the plaintiff with the ml.-dication W;IS a breach of the accepted sto1ndard of 11l/.'CIic<l! practice In 1971. H()W(M! r, the plaintiff's eKpert also testified th31 them was only a 3 to 5 pelCef'!t chance that the plaintiff dcY(!lopcd the Rh poSitive anti· bodies after her spontaneous abortion In 1971; and he testified tha t it WilS " more likely" (i.e., at least a 20 percent chance) that the Rh positive antibodies uC\I(!loped after the plaintiffs fu ll·term I)regntr.ncy in 1972. The trial court granted a summary ludgmcnl to the de~ndan!5, The supreme coort reviC'oYCd lhe €!'II· del'lCe al\d found thaI the testimony of the plalnllfrs medical eKpert did not presen! a scinTilla of evidence that the defendants' alleged negligence probably CilU!tI..'(I the de.llh of the child. lei. ill 1020. The court observed that the plaintiff's evidence Indicated only Ihat there was a (JOssibiUly that the alleged negligence caused the child's dealh, and tha t th is was Insuffidenll.'Vidence of C.1Usallon to create a jury question ; ''We beli(!V(! that the testimony of the plaintiff's medical eXI>crt docs nOI present a scintilla of €!'Ildencc thnt the ddeodaniS' alleged nesllgence probably cauS/.>(1the deilth of her child. What was said In McCiinlOll v. McClinlOll, 258 Ala, 542, 544-45, 63 So.2d 594, 597 (1952), is appropriate in this case: "'Proo( which goes no furthur than 10 shoYl an Injury could have occurred In an {lileged way, does not warrant the conclusion that it did so occur, where (rom the same proof the Injury can with equal probability be attributed to SOme othol cause: "But a nice discriminiltion mUSt be eKCrclscd In the aplJlicatlon of this principle. As 3 theory of causation, a conjecture Is simply an cxpl:analion consistent with kno.... n (acts or condi· tions, but nO( deducible from them as a f(~asonable inference, There may be t\.\lO or mOte plausible explanMions as to hO't"l an cvcnt hilppcned or what
by A. Neil Hudgens, Michael S. McCIOI hren and Thomas H, Nolan, Ir. A. Neil Hudgens received Ills undergraduate deBI'CC from Tulalle Unlvcrs/ty and Ii/w deBree from the University of Ala· bama School of Law. He is iI member of the American Bar AsSOCiation, the Ala· bama Sl.1le Bar and the Mobile County Bar Associ.3tion. ric Is chairman of rhe Resolutions and Mcmor/~I$ Commllle<! .1nd il member of the Professional Rf'la· 'ions Committee of the Mobile Counry Bar Msociation, and is 3 member of Ihe Military !..lW Commillee oIlhe Alabama Stale Bar. /'Ie alw is a member of the Alabama Dcfense L1wyers ASSOCiation, the American Academy ofl-lospil.1l At· lorncys, ,1If' American Boord of Triill M vocates, tile Amerlc.3n Soc/elY of Law IIn(1 Medicine < lnd the Defense Research Innitute. f'lud8ens is a partner In the Mobile firm of 8rvwn, Hudgens, Rich·
ardson,
P.e.
Michael S, McG/<Mjlrcn grddualcd m:agna cum laude with a bachelor of arrs ®gtee from fhe University of Sou lll Alabama and received his law deBrcc, cum laude, from Cumberla nd School of Law. He is a member of the Alab,lm. Sld/e Bar, the American 8ar Association, Ihe Mobile Counly B<lr Association and lhe Baldwin County BM Association. McGlmhren is a member of the Alabama Defense Law· yers Alsce/Mion /lnd the Defense R~ $carcll Insl/lUte. 1-Ie is a partner with thc firm 01 Brown, I-Iudgens. RichllrcJson, PC. Thomas H. Nolan, Jr., rccelVf!d his U(J+ dergraduate deBree from SiJrlns Hlfl Col· lese and I"w degree from fhe UnlvcfSily of Alabama School of '~1W. He Is a memo ber of Ihe Alabama SI,l/C Bar, the Amer/· con Bar Association and Ihe Mobile Coumy Bar Assoc/allon, Noilln is iI member of the Alabama Defense lawyers Anociiltion /lnd Is an ilSSOCl<UC wilh the firm of Bt(MIn, Hud/lCfls, Richardson,
P.C.
159
produced II; yet. If the evidence Is without selecll'lc lIlJplicalion 10 any one of them, they remain conjcell/res only. (cmphnsh addl.-d)" (Quoting Southern Ry. Co. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924), See, e.g., McKinnon v. Polk, 219 Ala, 16', 168, 121 So. 539, 540 (1929) (a case imoolving a suil for personal injuries allegedly caused I:Pt the negligence oltlle plnlnUfrs physician). ':-\ccording to the depOsition of the plalnUfl's ()INn expert, It would i'ldmlttooly be pure conjecture of speculation as to when the plaintiff dCYelolX'd the Rh positi\.'!',) ilntibodies, Although there WilS a three to fi\.'!',) percent chance she develoPl.'CI them after Ihe sponlaneous abortion, there was more than an 'equal probability: specifica lly, Ihere WilS a twen ty percent cl1ance, thlll the dCVl:!lopment could be allribu ted 10 another cause, i.e., the full·term pregnancy In 1972 . tn elfecl, the evidence Ilroduced by Ihe plainliff Wil5 without 'selective appli. (atiOn' 10 any one Iheory 01 CilUSo1tion, Thus, any COl'lciusion IhMthe defendants' alleged ncgligencc 1t.'CI 10 the dellCloprtlCIlI of Ihe Rh posilive anllbodies would be based on pure speculation or conjec· ture, which is an i"rlproper basis for a jury verdict. See, Thompson v. I.ec, 439 So.2d II), 115 (Ala. 19831; Alabama fbwer Co. v. Smith, 409 So.2d 76, 763 (Ala, 1982). "Furthermore, Dr. Krane's deposition 1(>Stimcmy Indicated Ihal there was only a mere possibility Ihal Ihe alleged negligence of the decedenls caused the death of the Illalnlilf's child. Under Ihe slandard sct forth In medical malpractice cases, Ihls WilS nOI enollgh 10 present a jury question . There must be some evl· dence thil t Ihe alltlgl>d negligence prob<1bly caused the injury. Willi,lms v. 8hoop.llfl1, supra; Oransc v. Sh,1nnon, supra. In the absence of any (>Vidence Ihal the defendants' negligence Il(Ql}.1bly caused Ihe dealh of Ihe Illalnlill's child, the Irlal court properly granled the sum· mary judgment." Id. As discussed above, in cases nOl ge» erncd by Ihe proviSions of the 'i4.labama Medical liability Act of 1987,'" a jury question is created "flJf there Is a sc/n· Iilla of evidence In a maillraclice case Ihallhe negligence complained of probably caused the Injury ..•.~ Bhoopalhi, supra at 691. (emphasis added).' II re160
mains to be seen how Ihe proxlmale causation slandard will be formul,lIcd In cases where Ihe Alaooma Medical Liabil· ity Acl of 1987 is ilpplk>d.
Effect of substantial eyidence rule in
medical malpractice cases By vinue of newly enacted section 6-5·549 of the AlabdmiJ Code, the mini· mum standard of proof required 10 support any issue of filCt in medical mall)!'iIc· lice caSC$, whelher in (Onlrolct or in tOtl, "shall be proof by substantial evidence." "Substantial evidence:' In nlcdlcal mal· practice cases, Is defmed as "Ihal char. acter or admissible evidence which \YOuld convince an unprejudi(;ed think· ing mind of the Iruth of the fact 10 which Ihe \Nidence is di recled ." Section 6·5·542(5) of Ihe Alabama Code (1975). Applying Ihls new sldrldard of Ilroof 10 Ihe tradilional causallon formulnirl med· ical malprilctlce cases produces Ihe fol· lOWing result: the plaintiff mUSI Il'oduce thM chMacter of ,ldrn issible evidence which would conyince ,ln unprejudiced Ihinkins mind Ihal /he allcscd ncSIi. gcnce of Ihe defendant probably (ausecl the Iniury or death of which is complainoo. II Is suggc§ted Ihal Ihis formula will be allplied dc§pite a somewhat mis-
placed relerence 10 alusalion found in the definilion 0( ~SlJndard 0( care" as provided in section 6-5-542(21 01 the Code. Although Ihe definition of substantial evidence in medical malpractice cases Is differerll from Ihal pn:wided in section 12·21·12 of Ihe Code for civil ac:tions gen· erally, the application of the ncw proof requlremenl to Ihe traditional causallon standard should not be problematic. Such a standard ma\' be only slighlly more difficult 10 satisfy Ihan Ihal applied in Ihose jurisdictions which do not fol· low the scintilla evidence rule (lnd which have adhcreU lo the lraditional causmion Slarldard In medical ",alpractlce cases.
Traditional sta ndard in jurisdictions
where scinlilla rule is nol applied Several different formulations of the pf(l()i requirement hil\'e been apillied in those jurisdictions which generally fol· low Ihe lraditional pfQ![imattl cause Sl,ln· dard In mlXllcal malpractice cases and do not adhere to Ihe scintilla evidence rule: evidence Ihal would glYC risc to a reasonable inference that wilh proper mediCilI treatmenl "the p<ltienl ptObably
\YOuld hayc survived";'o &.-iden(e from which a jury cou ld reasonably find thaI Ihe Ixllient'S injury or dCillh "more likely Ihan nol" resulted from lhe defendanl's negligerlce;1I ~a plaintiff mustlnlroduce CX llCrt medical testimOr"rj' thill It WilS nlore probable Ihan not trlat Ihc death resulted from Ihe doclor's "cgllgence";') evidence from which the jury could rca· sonably Infer Ihat "but for" Ihe defen· dant's negligence lhe ~ tlen t's demh could haY(' been avolded;ll substantial evidence Ihat a fJ\.Of'able result W(lS probable If Ilropcr medical lreatment had been providcd;'4 evidence (apl>arently i:\ Ilrepondefi"mce) thaI the docIQI's negli. gence more likely Ihan not caused the l)alicnl'S injury or dC<lth.'~ As previously observed, a number of Jurisdictions hil\!(! relaxed Ihe tradltlonal cilusal lon stalldMc! In nledlcalmalpraco tlee cases,'~ however, other jurisdictions have rejected this al1empt 10 lessen Ihe burden of proof In medical malpraclice cases despite their recognition Ihat Ihl! plaintiff rarely i$ .. hie 10 prQV(! 10 a cer· lalnlY whal f('Suit would I-ave occurroo if pfOllCr medical "ealme,lI hnd been proYldlXl,11 Some jurisdictions have sim· ply retained Ihe traditional requirement Ihat the plaintiff produce evidence Ihill it was more probable Ihaf! nol that the palient's dealh or injury resultlod from Ih(! physician's negligence without SllCCincal. Iy ruling on the "lost chance" th(?Ory.'· In Gooding v. UnlVl'rslty l-/osplt.11 BidS., Inc., the Florida Supreme Court exl>rt.'Ssly rejected the "lost char"ICC ol sur· vlval" theory of causal ion and Slated its reason for adhering to the traditionill standard as follows: "Relaxing the causalion requin.... menl mighl corrt'Cl II I)(!r((li..,.'(l ullfair· ness 10 some plalnl lffs who could pr<NC the possibility Ihal Ihe medical mall)ractlce caused an inj ury bUI could not prove Ihe probability of causation, but al thc So1me time could create an Inlustlce. Health care providers could find themselYCs defend· ing cases simply bt)cause 11 palienl failed 10 improve or where serious disease processes are 001 am~sted because another course 01 aCllon could possibly bring a beller result. No other professional malpractice defendant C.lfries Ihis burden of liabilily withool the requirement Ihat plainliffs prO\!(! the alleged negligence probably May 1988
r,l1her than posslblly cauS(.'(! the injury, See, e.g. F~man v, Rubin, 318 So.2d 540 (Fla, 3d DCA. 1975)(plaln. tiff in Icgal malpractice action must shaw that, but for thc !1t1omey's negllgcnce, the plaintiff had .. good cause of O'H:IiOn in the underlying suit). \<\Ie cannot apprCM! the Substitution of such an obvIous Ineqully for a per· ceived one,H 445 So. 2d 1015, 1019·20 (Fla, 1984). In Coopcr v, Sis ters of Charity 01 Cin· cinnaffi, Inc., the leading and most often cited case adhering to the traditional caus,1tion requ remtlnt, the SUJ)rtlme Court of Ohio reJectcd any causation stilndard which would not require proof that the physician'S negligence probably caused the I>atlcnt's Injury or death, and stilled: "VVc consider the betler rule to be that in order to compon with the st"n· dard of proof of proximntc cause, plaintiff In a mall>ractlce case must prove that dcfCrldant's rlcgligcnce, in proooblflty, proxlmmcly cauSt.'(( the death ,
...
"In an action for wrongful death, wherl~ mt.'(!ical mall>ractice 15 alleged as the proxlma'e cause of death, and a plaintifrs evidence indicates that it failure to dhlgnoSt! the injury prevented the patIent from an Opportu· nity to be oper,lted on, which failure eliminated any chance of the patient's survival, the Issue of I>roximate cause can be submitted to a Jury only If there Is sufficient evidence shOWing Ihat with prOller diagnosis, treatment and surgery the p<1tien/ prob.lbly woufd haVe! survlwd." 27 Ohio 51. 2d 242, 272 N.E,2u 97, 103·104 (1971)(emphasls added). In Cooper, the cour! dcOned "probable" as "more than 50% of actual ..." and stated that "!pjrobabllity Is most often defined ilS that which 15 more likely than not." Id. al 272 N.e.2d 104, The coun d(!(idl.'Ci to retain the "I>robably" or "more likely than nOf" standard of estilbIIshlng causatIon in malpractice caSl.'S because it perceived that a lesser standard of proof likely would create more in· justice than It would alleviate: "lesser standards of proof are under. standilbly altractiYC In malpractice cases where physical well·bei ng. and life Itself, are the subject of litigation. The Alabama Lawyer
The Strong intuitive sense of humanity tends to emotionally direct uS to. ward a conclusion chat in an action fOf wrongful death an injured person should be compen!.1ted for the loss of any chance (or survival, regardless of its remoteness. t-~r. we have trepidlttions that such a rule would be so loose that it would produce more Injustice than justice:' td, at 2n N.E.2d 103, The Alabama Supreme Court haS not directly addressed the "lost chance~ of recovery theory of (ausalion; hO'>'lCYCr, the court dearly hOI! retained the tradi· tional standard whicll requires evidence that the phYSician's negligence prObably caused Ih~ piltient's injury or death. Bhoopatht, supra; Mi/chell, supra. The COUl'! also rctainL'Ci the "but (or" standard of proving cau$..1tlon In legal malpractice cases. Joilnson v. /-lome, 500 So.2d 1024 (Ala, 1966); Hines v. Davidson, 489 So.2d 572 (Ala, 1986), It Is sugg('Swd that court's adherence to the traditional causation ~tandard in legal and medical mall>ractice cases simply I>rec:ludes al). plication of the "lost chance" 0( recovery theory. It also is clear thaI the Alabama legislature has manifested ils Intent to limit the liabmty of h~alth care providers by requiring "substantial evidenceHof all Ihe req\lired elements of a negligence cause of aCfion, including proximate caU$(!.
Conclusion
BUSINESS VALUATIONS stockholder dispult$ e5lJ1te planning-charit:lble gifts taxesodivorces acquisitiomldivestitures dOpS'faimess opnioos intangible assets Conl!lCc
Mitchell Kaye, eFA, ASA (404)973·62 14 Member
American Society of Appraisers Presldcnt·AlIanlJl Cllapter TIle Institute of Chartered Financial AMJySIS
Court Testimony nnd
I.R.S. Experience la evidence rule.... pplyinS the new substantial evidence rule to the causation ~ qulrement In medical mal~i1C1ice cases should not cause a problem for the Ala· bama courts. • FOOTNOTES
Alabama has adhered to the tradiliooal proximate cause starldard In medical malpr.w;:\iCe Cilses requiring evidence that the patient's injury 01 death "probilbly" was caused by the negligence of the defendal)! medical (are provider, Prior to the passage of the M{'(J(cal Llab1Hty Act of 1987, lhe pla!r\!lff (ould ( male a jury question on the Issue o( causation by I>roducing a "scintilla" of evidellce that the defendant's negligence probably caused the patient's injury or death. By virtue of $eCtion &-5·549 of the Afabama Code (1975), the plaintiff muse produce ~s ub stantlal evidence thilt the defendant's negligence prObably (aused the patient's Injury or death In cases gO\li!med by the Medical Liability Act of 1987, Th Is stan· dard is consistent wit' those applied in other jurisdictions which adhere to the traditional proximate cause standilrd in such cases and do nO' follow the 5Cintll· N
161
Legislative Wrap-up by Robert L. M cCur ley, Jr,
1..1W
Institute bills
The follow ing Law Institute bills are before Ihe legislature, and at the time of the submission of this article, hild I)<lSscd one house and were pendin~ fina1 lmssage by the other leglslatiYC body: 1. Rc(iemmion of Real Properly- House 8111
114
sponsored by RCllrese"t"Iivc 11m Campbell; Senate Bill 131 sponsof<.'(! by ScnOlOr Rick M'lnlcy II clarifies the law of n..'(jempllon of rcal property by codifying the casc law ilnd basically dOC1 two things: (1) clarjOes who may redeem and their priority, and (2) what
are allowable charges to be added to the (orl2CltKure ~Ie price. Sec Alabama l..n vycr, )amlilry 1986. 2. Powe r in
MOr'S<lses- House Bill 116 sponsored
bv
Representative lim C.lmpbell; Senau~ 8111 130 spoosoll'd by Senator Rick Mantey ThiS bill re'/lses bot keeps the present law substantially the 5.1me as it relates to poYt'erJ of sale which may be plact!d in mortgage agrCCnlents. Prescnt mortgages will be unaffected. The basic change Is to require one to foreclose through court I)rocccdings where mortgagcs are sileot as to hoYi foreclosure will Ix! CQn(ll.lcted. This change is tecornmcntled because In analogous silU,lIions std' ~Jtes h<Jlo'e been held unconstitutional for lack of notice. Sf!(.' Alaf).lm'l l.aw~r. January 1987.
3. Trade Names- House Bill 323 sponS(lred by Representative Mike Box; Senme Bill 252 sponson..'<.l by Senator Earl Hilliard This bltl revi ses Alilbama'$ trademark law \0 make the clil sslficatlom Identica l to the fed eral law, and further allows for the regi stration of trade names, Presently there arc no effect vc means for a business to put others on notice of its claim to a busi ness ",IITn.!. This is purely a notice 5Wtutc which now permits fCgl stratlon of bodl trilde names ilnd tr,1(lemarks. 4. CUllfdi.1flS hip and PrOleclivc Proct'C(/in85 IIcl-
House 8111 336 sponsored Iyt' Representative Mike Box; Senate Bill 116 sponsored by Senator Ryan deGtilffcorlcd This bill makes clarify ing ilmen(lments to the "Uniform Guardi,lnshlpand Protectl'o(! Procccdings" bill passed last year. These amendments wcre requested by the
'"
~p"'lflment of Human Resou rces arId are lechnlcal changcs eKcept that l)rC-1968 guardlanshll)5 continue in effect as they existed I)rior to the effective date of the act until a l>Ctition is filed to have the powers under the new aCI. See AI(lbllmll Lawyer, Mllreh 1988.
5. Pro/xlIe EstJIC defined- House Bill 117 sponsored by Representative Jim Cllmpbcll; Senate 8111 129 sponsored by Senalor Io:lck Manley This bill defim...>s prooote estilte In sections 43·8·40 ilnd 43.. 8..70. Amendments to thtl Eminent Domain Code were not filed until mid-March due to last-minute darifkations requcsted by the Stilte Highway Department. The anwnd .. meniSwcre filed as Senate bill S331yt' Senator Frank Ellis. See AIIlb..lma Llwyt'r, March 1986.
A rbitrati on Senator Bill Cab..lniss Is sponsoring Senate bi ll 33 to per· mit ilrbilration i1greements in commercial contracts. This bill, entitled ''The Alab-1ma Uniform Arbitration II(t;' amends S(!(1ion 8.. 1.. 41, Code of Alilbam.1 1975 to pr(Wide fOr the enfOrcement of arbitration l)fOYisions and repeals sections 6-6-1 through 6-6-16 of tOO Ccxk> 01 A/<lb..1ma. TIw ad does not apply 10; 1) collective bargaining agrocments, 2) Insurance con tracts, 3) any consumer trarisactiOn, 41any contrad for the sale or lease of purchaser's or les§CC's prl· continued on PJgc /64
RObert L McCurley. Jr., Is the
dlftICIQf oIlhe Alabama LBw Insll~u/e III Ihe Unlversq oJ Alabarrnr. He I'tIOtIive(J his undergraduate end 141" degrees from Ihe UnlversJty.
Ma y /988
Committees' Reports 1987·88 committees detail accomplishments During Ihe months of February and
March, committee and netian group chairmen reported to Alabama Slate Bar President Ben Harris, regarding their
aCCOml)lishmcnfs at Ihls mld-year point and their gools (or the remJlnder of Ihe bar year. Hightil\hl5 of some (allow.
- The CommiUee on a Client Security Fund drafted an IlmendmCll1 10 the fund's rulcs, adding an enforcement provision dc,lling with lawyers who do not pay their assessments, Also, a proposed amcodmenllo rule 8 of Ihe fund's rules was 5ubmined 10 the supreme court fOr consi derati on (the ilmendmenl deals with the (('sponslbility of various ca tegories of lawyers 10 I)i' Y Ihe assessment). The Court reil.'<:led the amendment
March )0 and exempted all but holderS of armual business licenses. - Thfl A/abamol Dlreclury Com· mittee is considering the signing of {I con tract 10 sell advcrtlsing for the directory, In an anempl to mise all Ihe revenue required for thc book. - The law Day Committee, in an altempt 10 reach K hools, churches, civic organilations and senior citl· zens, Is working with the American Bilt Association for SUB8estions for loclli bar association activities, IryIng to visit every I)rlmary and secondary school In the stille (dlstribu t· Ing Information) and producing and broadc~sl l n8 public service announcements for television and radio. _ The Pror(~s i()nal Economics Committee Is anticipating the development of the committee Into iI section and drOlfted a " Puq>osc S tatcm~nt and tnvil,llion 10 Joi n" wh ich ran in the March 1988 issue of the Lawyer.
A/bert Brewer, chairman of the Aclion Croup on Post-conv/cl/on Cap1wl Appeals. prcsenu 5IJlu$ report at March commissioners' m~lln8·
8,,,
- The Committee on Substance Abuse milde severill plesenlOllions to the profeSsional resl)Qnsibllily claS$I:$ <It Cumberland and the Unlvcrsily of Alabama schools of law, and provided information 10 many bar aUJ(i1iaries and the circuit Judges of one ci rCUit. The COmmillcc is considering sl>tilling, will-- onc J)iHl hOlndling information, di$$eminill ion and edUCation, and Ihe othcr working with IWO other commill~s In the area of chemical dependency. - Thf A/Jbdmil h wyt'r remains fiscally sound, with si~ issues published annually, The l.awyer incoq)()rated several new features durlnSlhe past year, including (lne on office ,1Utomalion ,md one on the courthouses of Alilbamil, with other continuing fealures being considered.
- The Permanent Code COlllmission l>rel>"lred and submincd 10 Ihe bo.lrd of commissioners a ntw sct of ru les, the Rules of Professional Conduct of lhe Alabama Slatc Bar. now, Ihc supreme coun is considering Ihe adop. tlon of the rules. Also, the commi$sion drafted guid+.!lines for implementing Ihe Howell Rule (DR 2-110. The commission pial'S to review aU Ihe Rules of Disciplinary Enforcement. - The Insurance PrOKrams Committct' reports thaI 1,243 al·orncys have contributed to the captive start-up fund. The commlttcc Is considering two courses of action for the form;'!l ion of the captive nnd Is publici ItIng lhe captive effons through spe;]king engagemCnts ilnd newspaper articles.
cOn/inued on pa8C 164
The A/aha",,, Lawyer
163
legislative Wrap-Up
Committees' Reports
continued from page 162
continuoo from l).Jge 163
mary or recrcalion,11 residence, ()( 5) any claim for bodily injury or wrong(ul de.uh. Arter an arbitration aWolrd Is nmdc, either parly may apply to the COUI1 for an order confirming the award and enforcing as any other order or Judgment. See NA,bilration of Commercial Dispules," A/aruma I.lIwycr; January 1987. Another bi ll 0( intereslta lawyers Is Inc legal malpractice bill introduced by Sen-
Otor'!> dl.<ira(fl!nrkld ilnd Mllnley. S. 256. This bill passed the sennle February 2S and was placed on the calendar of the
house the last
~k
of March. This bill
needs on ly a favorable VOte of the "louse
of RepresentaUves and the Governor's
signillurc to become law. It Is endorsed by the stille b..lf ilnd places 11 two-year statute of limitiitions on causes of action against lawyers with a (our·year rule of repose. II furtherdcfinc5 the standard of care applicable to lawyers and l)fOVides for the settlement of disputes by w.>lun· wy arbitration. •
CIRCLE
July 21-23
1988 Alabama State Bar Annual Meeting
Wyn(rey Hotel Riverchase Galleria Birmingham, Alabama
164
- The Indigent Defense Commlth.'e reports a rather fru~trating year, with much of the commll1cc's suggestions not being Implemented. However, the commil1ee is developing special guidelines fIX repr~lation in capitill cases, as well as guidelines for the appointment of capit,111aw. yers. Also, tht'! committee Is SCfl.."en· Ing cand idates (or receipt o( the Clarence Darrow Award. _ The Unauthoriztd Practice of L1W Commillee has hondled complolnts as ~ubmi ttl..>d and obtained severJI "cease onc! desbt" ilffidavilSand fill..>O one quo warranlo. The commluce rccommer\ds the Formlllion of II small committee of lawyoo to r~iew com· plaints Involving clients who k'Cl they h<lve been mlStrealM by law· yers, with a grievance sub-committee to dispose of the complaints. - The Character and Filru.'St Commit· tee will have a joint Il'K.'Ctlng In July with the Committee on Substance Abuse to decide Inw to de..l1 with ill>' plicants who are interviewed be<;.jIuse of a Sl,lbstilnce ilbuse problem. - The Action Croup on Post.(onvlction Capital Allpeals made an in· lerln, recommenda tion to the bo.lrd or commissioners to support legisla· ti on providing m ~ n(!atory appoint. ment of counsel in post-corwiction callital illllleals. The action group also recommended that the bar sponsor a resource cen ter to track and m(mitor copilnl coses, recruit counsel and assist counsel. - The Committee on the Futurc of the Profession dcviSt.>d il " Client's Bill of RightS" 10 help clients bel1ef under· stand both the dUlles of their al10rncy and their own responsibilities In the attorney/client relationship. The board of commissioners approved the bill, and the commil1ee hopes to IlUblish it in pamphlet Of poster form.
- The AcUon Croup on the PropoK'if Judicial Hulldlnll rep(w1s that approx· imillely one-half of the land needed for the sire has been ootalned or contractC(i fOf, and the she h~ been detefmlned to be 00 De.\ter Avenue 00tween Lawrence and MCDonough Streets. The nCKI Step Is selQ(ting architOOS, enllinet'f'S ~rKl designers. - The Action Croup on Citi1.COShlp Education is working on several programs to further law·-elated educa. lion In the clcmemary and second· ary school levels. The group also is intcr(.'Stc<i in IoVOrklng wllh thl! sta te b.u lowJrd a Ilrogr<lm o( ci tizenship C(/ucOltion for Immigmlion 1l1>PlicM\lS; (or both progrOlms, the acti on group is preparing funding propo§c1ls. - The Action C rOUI) on Professional Discipline reports it is recommendIns to the board of commissioners certain changQS in the Rules of Disciplinary Procedure and hopes to have them ready by the cnd of the
b.1r vear. - The Action Croup on Alt ern.ltive Methods of Dispute Resolution worked to crea te the Uniform Arbi· tration Act. The substance 01 the act has been I)rescntl..'(! by Senator Cabaniss to the legislature as SoB. JJ. With certilin nlodifica'ions, this bill has been approved by the oo.lrd of commissioners. - The Alabama law Foundation took over the (ole of the i\(:tion CrouI> for the Establi shment of IOLTA and sent brochures In January to aUMembers o( the bar cxpJaining IOLTA's pur· pose. SInce then, 226 {ru st accounts have been COrM:!rtl.>(/, with 775 illlor· neys optlng-<>ut of the program (the majority of those before the program wa s operilt lonal). Approximillely 4,500 lawvers had flOt fCSpondcd by the end of March. The fouooation Is developing an application process for making grants using funds generated from the IOLTA progr.lm• •
May 1988
ALABAMA STATE BAR 1988·89 COMMITTEE PREFERENCE FORM DCd' Fellow L~w"l'r: CommiUo.:c5 and la$lc (orces are the b,1cklxmc of Our 3SSO(IMiOn, dm'cluping projects and acidu.!sslnll problems (or oolh tlw Ilubllc and thc memOershlp, VOlull1L'flrlng (or th l!m means a commitment of l ime MIll rn;l)' u..'quir(J travel ; however, the fcw;I(ds are m,my. If you ilrl' willing to serve, plcase USlllhfl SP.1Cl' below \0 Inform the IlilHl bar of fOOf preferred llS~1 8nment . Bec.. uS(l thi! 001 ycar bellins
July 21 , 19611, we ut'i.-d to hCilf (rom you no laler tha n lun'l' 1. With your help, Ihe Alabama State Bar will h;IVe aOOlhe. I>fOOu(tiy!' yNr.
Sincerely your},
iJMf~ GMy C. Huck ~b.,. PrMldcnt-eI« 1
Th.e numbo.'r In l),1ft'fltheses rejl(tsefllS the "umbef of available a,)VOi"tn~'lb during the 1986·89 bJr year,
positioos or presl rlemlal I'Ullti C SERVI CI Ta~k Force on A~l'fMII\Iil MCIh<)d~ Commltl~'tI
Oil
of 0111,"",11 Rewhltlon (6) Dnd l'IOCetJUJL'\ 161
Correc. I0I1~1 'n ~"'II.lon.
lIik FOn:f 011 Oilcmh,p
Commllit'e
00 II
COOlmll11"C1
lin
[(IU<;~llon
Cllel'lI S«urily funt!
A[wu to t~I ~I(~ " 2)
Cornmllle<:> on 1II(IIII'!"t ~M! 16) h~ RtI'err..1 ~~ l\o.Ird 01 Tnl!;tll!e 19) hw o.y COI'I'\t\'\l tte In CommlllC'll lin Prep;ald t~1 St..... Ic~ II I join> Ta~k f()ICe on SQlu. lons 10 1I11'efKY Commlllt't! on II ... Unauthorln'<l 1'f,lellce of l~w (61 T;sk force on 1'000.cooviClion Atllle,,1! lUNCH AND IIAII T..,Jo; force 10 Consider I'mslble lte'lllllCluring QI Al.lb.. m~ ·1 Appellate
C()Url>
ConHIlIIlI'e on Substance Aoo>e (6) Ch.l!,lCtcr ~n<I fltneS!; Committee (ll E.hlo (du.c.ollun Commlttea lSI Committee on tile FUlure oIlllr! I·.olcsllon lSI l'urlNl1ef1' Commission on IIIe CotIt! ol Pfolo:-s,on.ol R\'WOfIs1blilly lSI Commlll« 011 P.oIcssion;ll (CO/I(IfTIICS Committee on lllwytf Public Rel~tlom, 'nfollnallOl'l and M«Ii.. Rcloltion, (61
' 'I
r;t)~
Forc;e on
'S'
F, tI~,~
T.sk force (MI "It Pr~ ludicl..1 BUlldooS T..,Jo; force on )udk l.ll Sel«tlon I'rot:..,..
I'rofl5~ah>fl'l
IA It SERV ICES, MANAG[M(NT AN D INTEREST CROU I'S h~k forrc 0" riKlhl ll!'l for the Alabama St~te II nr Military taw Cnmmllle<:l Ft'derAI TaJ! Clinic (SI 8o~rd 01 Ed,lOfS. tilt AI.b.,,, .. tawyt'llSI lho: AI.bam.J LIw)-cr Ill. DIt\!(lory Commill"" (51
COOlmirtee III Camm'"t..,
,,"ur.nc~ I'r08'~m>
m
It'lllsl~Iive LI~lson Commill~
fOCUS ON THE PROr-ESS ION
Commltwe on h 'NYet AUvt'f1IMIlH and Sollcl,atlon
(6) loo:..1 Oaf M:tI~I"es And Servkes Commillt!C 18) COl1l1nllll.., nn CnnlinullV. ","OM'. "li and I'rlorit;", (of)
m
PLEASE METURN OV JUNE I, 1988
N.m<~.~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Firm, agel'lCy Of otOO f!mllloyer:
Office mailing add'lOSS: City:
Stilll!:
Zip Code;
Omce telephone number: VeM of i1dmi~slon to b;u: VI-'S, I would In,e 10 serve. My p.efcrCn(n a.c: I. l.
,. • am cu rrcnlly i1 member of the following stale "')r ( ommJUL'C or laJ: force: Comments or SU88e$! lon~:
MA il TO: Cary C. Hv(kolby, AI~b.1m1l
Tile A/abMlil Lilwver
Std le
B ~r
P.O . Bor 671
P rnidcn l ~led
Monillomery, AL36 101
165
Opinions of the General Counsel by John A. YunKt IV, and Alek W, Jackson O ff ice of Professional Responsibility
QUESTION, ''This confirms o ur telephone conversa ti on of this Ll1I 1~ where I inquired a$ 10 th e propriety of Including " defen·
dant on the certificate or service On a 1>lc.lding WhNC the plaintiff mow's the Court (or a def.lull or sanctions (or fa ilu re to resPoJld in il timel y fa shion 10 discovery. " I would ilppn.>eitc you r forwilrdin~ 10 me a formal Qpinion on Ihis i5$IIC:'
ANSWER : YOu nlay nOt Cthlc:. lly serve II COl1\l of a pleading upon an oppoSing party who Is represented by counsel without permission o( the trial courl pursu.lrll to ARCP S(b),
DISCUSSION : Disciplinary Rule 7·104(A)(1) provides
that: (AI During Ihe (ourse of his represen ta-
tion of a client
II
lawyer shall nOI:
Richard Wilson & Associates Registered Profess iona l Cou rt Reporters 17 Mildred Street M o ntgomery, Alabama 36104
264-6433 166
(1) COmmul'liCiU@ Or CduSf!,mOthCrtO communicate on thc subject of the! rel)rescntmlon wUh a party he kn<mS to be represented by J lawyer in thllt matter unless he has the prior con· sent of the laWyEr represen ting such other party or is authorized by law to do SQ,
AlthlJUHh thi~ prohibition amll!ar~ abSQlutc:, the American Bill As$OCiation has held In Informal Ot11nlon C-426 thai the rule does not prohibit <II) "nome')' frOr~l serving leg.11 notices on 1m opposing pm· ty although that party Is represented by an ,morney who is 111>0 served. The opinion notes, "Many stJlU leSor court rules prQVide for liervice of leg<ll notices on the opposite party eiTher with allcrnJte pr()o vision for service Qn the al1orm..'V or with J gcnQrJI provision IhJt servicl') upon the attorney shall constitute notice to the adverse parly." However, lhis opinton apl}Cilrs to conflict with the express tJfovisions of Rule
Sib) of lhe Alabilma RlIle~ of Civil Procoouro which provide ,hal: "Whenever ur)der the!e rules ser· vice Is requlroo or pcrmlnoo 10 be made upon a pilrty represented by ;m :morney the ~ervice 5h1l11 be! m'ldc uponlhe illtorney unless service upon the p.lrty himself ;5 orc/cred hy Ihl! court." [emphasis addl.!d}
...
accord~ wllh our DR we therefore hold that MIUTorney may nOI SCM! pleadings and olher
As this rule
7-104 {A}(l),
court documents directly uporl iln opposing party where the opposing party is knO'Wn 10 be represented by counsel. Wher(!, i1S here, Ihe i1t1orn(,'V hilS reilson to believe Ih~1 opposing counsel is nOI communicating with hi s client, we sug· gCSt that counselllpply to Ih~ court for permission to serve pleadings ilnd notices directl y ul>Orl theoJ)J)OsinH PllrIy pursuant 10 ARCP SIb}. •
AUBURN
Expert Witness Services EI.elriC Shoek • AulomollY./ Aviotion/f,lOtll'l, Electronic •• Medical o.vlc. Fallur•• Computet Syd........ Mlcrowove Hozoro. • alo~lcol Svslems .Human ·Meehl.... Inle"oee • General Englne-etlng • Human ond Soclol Selences
Dr. Michael S. Morse Dr. Thaddeus A. Roppel (205) 887·1817 (205) 887- 1814 (205) 826·6610
May 1988
Disciplinary Report Surrenders of License • Dt..ocalUrllM'ycr ,"SI>er New10n Powell, Ir., surrendered his Jl cen~c to l)raClice law in the state of Alabami' on January
13, 1966, • E(fCC1l~ "1)ril6, 1986, iI! 12 :01 a.m" Allen B. Edwards, Ir., yoluntJrily relinquished and surrendered his license 10 prilCo ticc law in the stale of Alabtama. Accordingly his name wa s stricken from the roll of attorneys in all of the courts of the stale of Alilb;mli1.
Public Censures • On February 19, 1988, Birmingham lawyer '''afold P. Knight \V(lS publicly censured for two scpilr,l! e vlol;lIions of Disciplinary Rule 1·102(A)(S} of the Coclc of Profess iollal Responsibilit y of the Alabama 51;'!!€! HM, which prohibits law'y'CfS frOm engaging In conduct that Is prejudicial to the ad· ministration of justice. In one maller, Knight (t.'( cived S125 in insur.lIlte procaods Ihal wcre due 10 be p.1ld to a certain in· dividual, or her anornl,.'Y, but r"ill.od to pay over the funds for somc ten months, despltc SL'VlJrill requests that ho do so, and not until a complain t had bt.'(!n flll.od against him with tht= bar. In the second rraner, Kl'l ight llccomp;mied a client to Ihe of· fice of the clerk of a courl, at which time the cUent accepted a significant sum of money frof'nthe clerk, though Kni ght knew that his client's entitlement to these funds had been formally questioned, and that the court would hold further j)rocecdinss to determine the entitlemen t to the fund s. [ASH Nos. 8&-592 & 8&-642(A)) • On Frid;Jy, February 19, 1988, Dadeville attorn~ Ch"rles R. Adair, Jt., wa s publicly censured for violatioo of Dlsdpl inil ry Rules 1·102(A)(4). 1·102(A)(5). l.l02(A)(6), 7-102(A)(3), 7·102(A){5) and 7-102(A)(7) of the Code of ProfesSional Respons/bllil y. II W.1S detcrmlnl.'(t thilt the lawyer had furni shed a false certificate of titl e to a lending Institution on a 1)lcce of real estate in which the law~r had a personal business intercst. The lawyer paid the lending institution for its financial loss. and in vicYo' of his restl!utlon, it was (icier· mined that he ~hould receive ~ public censure. [AS8 No. 67·325J
Private Reprimands • On Friday, february 19, 1988, an Alabama lawyer received a private rel>rimand for violat ion of Disciplinary Rule 3-101{A). II was determined that this attorney had aided a taw~r not liCenscd to practice law In Alab.lma in the unauthorized practice allaw by sharing ofOce 5p;'ICe and secretari.11 help with the unlicenscxi lawyer and by otherwise furthering actions whi ch corlstltuted the unauthori zed practice of taw. [AS8 No. 87·562J • On Februnry 19, 1966, a lillNyet was prlvatciy nmrimand· ed for willful neglect and intentional failure to carry oul a con·
The Alabama Lawyer
ttilc! of empl<Y)'ment. The I~r filed an appearance on behalf of II cllem In a crimInal matter, and subsequently flied a number of mOllons on behalf of the cl ient. HoYIeIICr, wherl Ihe motions were set for hearing. tht! lawyer failt.'Cl to appear on tWO 5eparilte occasions and did not file it motion to w ithdraw until weeks later. IASB No. 86-686J • On February 19, 1988, a lawyer was priVoltcly reprimanded for conduct adversely fcflC(ting on his filness [0 practice law. The l<twyCr failed to provide thu Disdplin.lry Commission with a response to the complaints of two separate clients, dcspitc numerous requests that he respond to the complaints. JASB Nos. 85·631 and 86-268J • On February 19, 1988. a lawyer was privateiy reprimand. ed for having engaged In conduC1lldvcrsely reflecting on his fitness [0 practice IIlW, having willfully neglected a legal mat· lcr entrusted to him and having Intention<ttly f«ilEd to seek the lawful objectives of his dients through reasonably available means. The lawyer represen ted the plaIntiffs in a civil sull and failed to provldc the court with expcn tcSlhl'lony 10 5Ul'I>ort the claim, within thc time specified bv the court. The sull WilS then dismissed, bUI the lawyer failed to notify his clients of the dismissal. The clients filt.'Cl a complaint with th o bar, and the bar requesled the lawyer to respond to it, but the lawyer failt.'Cl to pr(1l.lide any response to the complaint. IASB No. 86-232(8)) • On Friday, February 19, 1988, i'lil Alabama lawyer received a private reprimand for viola tion of Dl sclpllnary R(ilc5 6·101(A) and 7.10I(A)(2). It was determined 1hat the attorney, who was re t,lined 10 represenl a party to a divorce, failed 10 file u~sponsive pleadings In a timely fashion resulting In II'ic entry of a default against his client and further that the a\l()(ncy failed 10 make timely inquiry of the court as 10 the statu s of the case. [ASIl No. 87-248J • On Friday, February 19, 1988, an Alabama lawyer received a private reprimand for viola tion of Disciplinary Rule 7-102(AK5). The Disciplinary Commission determlllCd that the lawyer had made a fa lse staterllcnl of filcl to a probate COurt by rel>rcsentinlS, in a l>Ctition for leiters of administration, that th e attorney's client wa s the widow of the dL'Cedcnt when in (act the client had ix,(!n divorced from the d<.'Cooent several months prcvlously. The Disciplinary Conlmlsslon determined that while there I!.IIlst(o(i 11 good faith argumenl thallhe decree of divorce wa s YOldablc, the lawyer violated DR 7·102(A)(5) by not fully ;I(ivislng the jlrobatc court of all of the circums tances surroundinlS the matter. [AS6 No. 86-40(61) • On February 19, 1988, a lawyer was p!"lvately t'C1)rimandt.'(t for conduct ad\."Crscly renecling on his fitness to practice law, in violation of DR 1·102(A)(6). The lawyer fOilied to file a timely brief on behalf of hi s client with the Alabama Court of Criminal AJ)I>eal s, and Ignored three written requests that he provide [he Di$(ipllnary Commission wilh an explilnatlon of his failure to file a Ilmely brief. (AS8 No. 86-575) •
167
MeLE
News
by Mary Lyn Pike Assistant Executive Directo r
Commission decisions AI its m~,jnH in Montgomery Febnmry 19, 1988, the Mandatory CLE Commis-
sion: (1) GriJlltcd two nllorncys' partial wal· vers of the 1987 ClE requiremen t;
(2) Ruled that a full-lime juycnilc court referee is eligible for J Rule 2.C.1. exemp.lion, as long as there is no 1);.1rt-time pmclice of l<Jw ;
(3) Granted two extensions of the defi-
ciency plan deadline, requested on the basis of a b~n cc from the courltry and hos pitalization, respectively; (4) Denied an extcrlslon of the den· clency plan deadline, requested on the
basis of 11 busy schedule; (5) Ruled that 5uspen(!ed membcNi presently arc 1'101 5ubjecllo the CLE re-
quirement and VO\l.>d Ie) request 11 rule change requiring such 3norneys \0 earn 12 hours' credi t for c:.ch year of susl>en· slon, prior to rein statement;
16.
(6) Granted (I wai~r of the late COrti· pliance (CW, M the ba ~ i 5 of medical alld financial problems;
MClE Commission's admlnlstralor. Se-.\:!n lind one-h(ltr yems later, I offer Ihis opin. ion: Me lE is good (or Ihe Alabama 5t,llc
(7) Declined to wili.-e the !;-Ile filing (e(! (or three al10rncys whOse 1987 ClE reports were received after Monday, Februilry I, 1988:
Bar,
(8) Voted to artlC!nd Rcgul<l tion 5,1, so Ihilt reports (a) postmarked hy JilnuMY 31 and (b) SCn! by cerllfiC!d mail will be accepted wi th oUl the 1;11(> filing fct!: (9) ApprOVtXl a dcficlenCy pliln for an i1!lorney who was misled by " sponSor: (10) Affirmed the administrator's deci· sian to awMd pilrtiill credit (or a chrorllc pain seminar: (11) Approwd 16.5 credi ts (or CumberI;md l<Iw School's compara tive law sC!minar, London, July 14·31: (12) Apl>rOV(.>d for hillf·crcdlt a writing seminar sponsored by the Wi sconsin State Bilr; (13) Declined to approve (I time miln· <,gement scminar offered by the some sponsor; and (14) AcknO'Nledged sugg0.0tions for (a) increased tcaching credit and (b ) requiring specia l mem[)(!rs pr,lcticlng outside Alabamil to meet the ClE re<lulrcmclII$ but decHned both,
A po int o f personal privilege Mr, Chairman, rllembcrs of the MCLE Commission and members of the AlaQ,1m(l Slille a(lr: By Ihe time you read this, I no longer will be selVing as admlrllslratOf (or the Commission, and assistant execu t i~ dire(lor o( th e b(lr association, but ra ther wilt have assumed (I new positi on, dlreCIOr of professional cdUCillion for the Association of Trial law~rs of America In WashlnglOn, D.C. M<lndiltory Cl f wa s adol>lcd by the Supreme Court of Alabama In March 19f11. EiHht months later, I was chosen the
The nurllber of Cl Eopportunities ilYaii. able 10 bar members is srca t ~r than (lny of us Imagined It might be~ last year <Ner 1,500 programs Vv'Cre Ilpprw(.>d; O\ICr 300 of Ihosc occurred In Alabama. M05t gratifying is Ihe (act thilt many In· State progr,lm5 Me conducted by local bar associations (or loc;allifNyers, Special necds are mct by slx.'d aity bilrs, The Cumberlllrid arid Ali\bllln~ inSlil\Jtes (or ClEcontinue Ihelr 20-year tradition of of(ering bolh '"meat 3Ild polalOCs" and more esoteric programs, taking rllany ",ograms on Ihe road to t'NO, three and (our cities, L(lwyers Me helping fellow lawyers by serving as inSlructOfS for COurses, Providers from out5ide the slale arc striving t() idtl ntify I:,'(IUI;«lion(l1 needs and mect them. In short, opportunities for enhanCing and continuinH competence abound, Th.mk you, Chairmen Bill Scruggs, Richard HMtley, John Scott, Gary Huckaby and Phil Adam s, for the gUidance, suppo rt (Ind encourilgcmenl you hilYe given me. Thank yOu, CommissiOn members ptlst and pmscnl, for the opporturli!y you g.tve a brand new lawyer, to ta(c on a challerlgc and grow wllh It, Thank you, members of our grem bar, (or your cooperation and paniclpation, and (or understanding on occasions when I delivered 1lC\N5 you did not wan t 10 heM, Finillly, thilnk you, Diane Weldon, MCLE Commission ~'( r~tary, am;! m)W administfiltive assistanl, 1982-1988. You hiM! m~dt? thi s a wam effort and, truth 00 known, you ha~ run Inc show \lC!ry well. The MCLE I>rogralll is in your capable hands, _
Recent Decisions by John M . M ill ing. Jr., and Oallid U. 8yrne, Jr,
Recent Decisions of the Alabama Court of Crimi"']1 Appeals Anders' mandate 0 11 appellate counsel rcprcsenls minilmull standard for counsel eHcc tiveness Moore v, Slate, 6 Dlv, 954 (Fcllfuary 18, 1988)-Moore was Ind icted On a cha"He of robbery in the Orst de8((!(l and WilS represen ted by ap1>olnlt."'tl counsel. Afler pleading not guil!y, Moori! W;IS tried and convicted,
Nolice of appeal was flkod with the court o( c riminal appeals on September 25, 1987. On October 20, 1987, defense (;o\m~1 filt>d a mOlion to withdraw as counsel which w,lS (NCrruled by the circui t court, who direct-
insufficient under the guidelines (!So Inbllsh4.."d In Anders .... u/l(ornl'), 386 U.S. al 74), The mandate of !. nders Is; "II counsel find s his CMe to be wh olly frivolous, ilitllr a con«:len·
remanded the case 10 circuit court with the InslruCiions Ihal Ihl! prescnt appellille counsel be (emOYed and n(ow counsel be apl)()lnted.
IIOus l'lUlmination 0111, he should the coun ~nd n..oquesl per-
Se<luelto Moore-cffeclivcness of counsel Boutwell II. City of Bay MJn«lt', I Oi ..., 580 (f ebruary 18, 1988)-1n Boul~~/I, loeIgc P,ll1eoon issued the sequel to Ihe court's holding in Moore, infra. Counsel (or Boutwell filed a nocice of l1ppeal , bUI f'lilL'<1 10 file a brief. \NCn after the court dirCClL'd counsel'S attention to Mylar II. Alabama, 671 F,2d 1299 (lith Cir. 1982); Ceft. denlcd, 463 1229 (1983). The mandale of Mylar .... Alab.lma Is clear 10 any
~ advl~
mlnloo to withdraw. Th~t request must, however. be ilCcomp.1nlM by il brief leferrlng to anyth lnll In rhe
lecold rhal mIght arguably SUppofl lhe appeal. A«1111' rJ counW!I'~ brle( should be furnished Ihe Indigent nod rime llllowt.'d him 10 raise any polnrs Ih31he ChOOloCi; the courlnOl counsel-rhllll l)roct'eds, after u full CXilmlnation 01 ilil Ihe jlrocet.'d108(, 10 dt.>cidu whl'lher the case Is wholly
frlvolous.~
Judge Patterson found counsel's brld to fl1 l1 below Ihose siandards ilnd
u.s.
defense counsel:
ed lllllt co url$l:l (;ontinue 10 represent
Moore on appeal. Mler the record had been (;ertifled and tr,ln5mi ued 10 the court of "PO peals, counsel filed a late brief stating infer ,.lia, "the underslgnt.od has reviewed the record In lhls case and is of Ihe opinion Ih(l! Il ls free of rC'.'f.'rsl· blc error and thi s apPCl1l Is without
merit," The court of crlminill l1ppcals, through Judge P.merson, rem(loded for ilppoinlmenl of counsel and found Ihat trial defense counsel's efforts ~re
nw AIJI)ama Lawyer
John M. Milling. Jr. , Is a member of the firm of IliII, HIli, Carler, Friln· co, Cole & 81i1ck If! MOnlgonwry. /-/e Is II gradu31e of Spring 1-111/ Col/cge and fhe University of Alabama School of /;Jw, MillinB covers the cl ...11 portion of file crocl~;ons.
OiJllid B. Byrne, /r., Is a 8raQuaf.e of lhe Unl ...erslfy of Alabama, wherc Ile received both Ills unckrsracluMe ond law dcSrccs. I'/e Is a member of the MOn(80mery firm 01 Robison & Belser and COIIfYS the criminal portion of the
decisions.
169
" ... TIle fallute to fJle 11 brief In ~ oDllfrlvolous ~pea l faUs below the standard of comPL'!{)m:c cXpe(t~ and rtlqul(L'lI of cOlln:le1 In cri m inal .;:,,~
and, themf(}rtl, constltuws Ineffective assi5t~nce,"
Sins/eton InSlructi onallapse constitut es plain error
Bush v, Srow, 3 Dlv. 46 (January 26, 1988)- ln Bush, the tri al cour1 instructed the jury that he had found the con fessiOn " was not improlXlrly ind w;:ed " and thai th e jury co uld not d i sregMd Its admission. h td ge Pa tt erson, wri ting for a unani. mous court, held th ai the tria l judge's in· stnJl;ti on I;:on ~t itut ed reversible error basl.'(i UI)()tl Ell. parte Sing/CIon, 465 $o.2d at 446. Judge Patterson held that it was Improper for a tria l Judge to disclose to the jury dun he hod made a I)reliminary determl r'l Jtion that a confession was \()Iuntary, and, therefore, admissible.
Don't let your Alabama Lawyers
get worn, torn or thrown away. Order a binder (or two!)
at $10.00 each from: The Alabama Lawyer
P.O. Box 4156 Montgomery, AL 36101 or call (205) 269-1515
170
In Singlelon, supra, the Alilbama Supreme Court stated the ru le i'tpplicable to the determination of volun tarint!Ss and thl! weight 10 be gh\'!n a cOrlfesslon as (ollO'vVs:
the tdill court at the time Ihl! motiOn wa s cM siderl.od to "come in behind" the rulIng on the motion al1d thereby infl uence the revlewln8 appellote ('ourt.
"Correctly 5tatL.od, whether a ct)r\fession was yolunt~ry resu ,,,,,,JllIly with lhe Ul31 court; once llle trial Juclllll makes the prellml1'l.1ry determination that the confesSion was voluntary, It then m!COmCS ..drntssible Into evl. dence. Thereflfter, the lury makes a determination of volurl tarinllss as ~f ft'Ctin~ Ihe weight and credibili ty to be given the COlllesslon,H
Ci vil procedure .•. rul e 41(a)(1) dismissal effeClive auto m ati cally with out court appro val l'iammond v. Brooks, 22 ABR 1 Ui'tl1uary IS. 1988)- ThI5 apl>cal Is from a \IOlun tary dismissal milde pursuant to Rule 4t (a)(l ){ii/, Al a.R.Civ.P. On December 1, the trial cou rt called the caS() for tri al, 3nd the attorneys for the l>ilrties told the I;:ourt they hild ten tilli\'\!ly ~elllr!d the case subject to approval by the Insurance comr"lIly. The allorneys req uested a continuan ce, w hich the COUlt denied . The case was called for trial on December 3. Prior to that time all parties flied il stipu· lation with the clerk for dismiss.1! without prejudice. W hen the case wa s c(llle<! for trial, the attorneys informed the , ourt of the prior stipula tion for dismissal and told the , ourt thcy ~fe' nOt prepared to try tht.' case. The court enlerc-<i an order dismissing the case with prejudice. In a case of first Irrlpresslon In Ala· bama, the supreme court was asked to consider w hether a trill! court can di ~ regard a stipulation for d i smi~s.1! without prejudice, signed by aU part ies ilnd fill!d w ith the clerk, and ent~r an order dismissing the caSI! with prejudice. The court answered the question In th e rlegatlve, and recognized that the federal courts Interpreting Rule 41(a) have sta ted th at \()tuntary dismissa ls au tomMica!ly terminate th e action upon the filing of th e stipu lation with the c:erk. No order of the court is required.
Recent D eci sions o f th e SUp're me C ourt of Alabama- C iv il Civil I)rocedure . , , general scope of appellale revi ew o f direCl ed verdi ci has c xccplio n Hmllcr v. Nelson, 22 A6R 141 Uanuary 15, 1988)- Hamer suffered Inj uries In a mOlor vehicle accident and filt.>d suit based on theories of negligence ilnd wantonness. At trial, foll()Y,'lng th e close of Hamer's case, defendant moved for a directed verdi' t on the issue of w"ntonness, and Ihe motion was gmntL'tI. Nelson sub5equilntly put on his case as to the negligencil claim al,d then 1'IlCM!d for a direCtL>d verdict on negligence. The motion was denied. and the jury returned a verdict in f~VQr of Nelson. A key issue presented to the supreme court was th e ilpplicable standard of appell" te review where th ere is a dirllctL.od verdi ct in fa\lOr of thl! defendant, granlcd allhe close of th e 1)laintifrs proof, which does nOI dispose of the en tire case. The SUI)reme court recognized tha t it has generally stil ted tha.t " the fu nction of an appella te court in reviewi ng a moUon for directed verdi ct is to view the entin;: evidence •.•." The court, hOWC\lCr, also recogniJ:ed that the peculiar facts of this case preSented ,Ill exception to that general ru le. Therefore, where il lXlrtial directed verdic t is grilnted to the defendant, ilt the close of the plaintiffs evidence, w hich d i ~l;MJses of <'I p(lfticu tar I ss u~ bu t nOt lhe entire ca~, the scope of appellate review Is 11ecessarlly restriclCd 10 the evidence in th~ record at the time the verdict was directed. To hold otherwise would 3110'vV addJtlonal evidence Ihat was not before
The court also no ted Ihat dismi ssal without prej(Jdice is consisten t w ith Rule 41 which pravides that "unless olherwise still(.'Cl in the notice of dismissal or stipulation, the dismi ssal is wi thout prej uo dice." ..tere, because the parties 51>ecifica lly provided th at the dismissal W<lS " wi thout Il(ejudlce;' the court W<l Swithout authority to change Ihe stipulation to make ~ he dismissal wi th prejudice. Civil procedure, , , rul es o f relation b ack o f counterclaim s clarifi ed Sharp Electronics Corp. v. Shaw, 22 ABR 150 (J anuary 15, 1988)- ln December 1980, Sharp med suit t1g<lin st Shi!w
May 1988
in district court 10 collC!C1 a debt due on cO\'1t' machines sold 10 Shaw. The diSlria court entered judgment in favor of Sharp, and Shaw appealed the case 10 circuli court and also filLod iI counterclaim <lUeg· ing fraud and mlsreprc$Cntlltion in the S<lle of some of the Sharp copiers. Some of the copiers mentioned In Sharp's suit had been the sublect of represen l.ltions made in 1975. The issue presented for <I I). pcU'ltC! Il..... iew w<J~ whether ShJW's claim related back to the time Sharp's claim arose. The supreme court conct.>ded that the apl>cllille courts in Alabama have not clearly explained the rules of relation back of counterclaims. Therefore. the court took th e opportunity to enunciate the applicable general prinCiples. The rule~ of rela tion back of counter laims
arc:
m 121
Il)
(4 )
(51
(61
Relation bad. is IlYIo'OIo:ed only when the counterdaim would be time-barred Judged from the datil the coonterclalm was flied. "II cot.mtercl~im s, COfflPtllsory and permissive, rela1C back. Code of A/ab-lma t975, S6·6-84; Rule t3\1;) Omlucd counlerdalms allowed by the court pursuallt 10 Rule 13(0 111 50 relate bock. Rules 13(cl and '5(eI Coonterclalms relate b.lCk to Ihe date the plaintiffs action accrood. Beause Ihe st~tule requirt.' i the cotJnterclaim to be ~~ legal subSiSting cl~lm" on lhe dale the pl~lntlff's action ~CClued, 11 counterclaim that accrut'i after the date Ihe p!a!n:lf/'s action accrues, bUI becomes tlme·b,1rred bclore ~ult is filed. cannal be used offensively, that is, to excC(.'(! I, e amounl 01 plaintiffs re<~ry, If any. Pe.missiYl! counterclaims thai were not legally slbsistlng ctalms on the dJIC the plaimiWs action accrued (I'.g., claims thai bcc~!l1t: !l1l1(.,-ballt-d earlle.) are subject 10 a 5t~hlle eM limitations defense. Compulsory counierclilims thm were not legally subsisting ctllims OIl Ihe date the plaintiffs actIon accrved (~.g., claims thai bccilme lime-barred earlier) c.lnnOt be u!o(.'(1 offensively. Such compuliiOry countercl~lm s thaI IIrc Slili untimely under the rel ation back rules Ciln be ust.'(I defensively, that Ii, to ca,)ccl 001 Ihe nmounl won by lhe plaintiff.
Therefore, Shaw 's compulsory counterclaim may Ix! used offensi vely if It was not limc-barrcd on the dille Sharp's
The Alabama Lawyer
cau $(' of al;Iion accrued. There was evidence that Shaw ~asonJbly should hONe dlscO'.'Cffid thC! fraud nO longer Ih,ln olle year prior 10 the accrual of Sham's cause of actlon lor breach of contra Ct. Therefore, Shaw's claim was ,'ot timebarred, and Shaw may use the counter· claim offensively. Insurance •.. insurer's attorney defending under reservalion of rights docs nol have prcsumptive conflic t o f inlerest L&S Roofing 511ppiv Co., Inc. v. Sf. Paul's Fire & Marine In$. Co., 22 ABR 562 (february 1988}-l&S Roonng was sued in Siale court for breach of wJrranty and (raud . St. Paul insured l&S Roofing and defended the company under a reserva· lion of rlgh ls claiming tha t fraud was nol covert'<I and Ihe demand was In excl:!Ss of the policy limits. l&S Roofing flied a dt.'clarntory judgment action In Slate court alleging that counsel selected by 51. P.lul had an inherent conflict of in· terest, 51. Paul should provide l&S Roo(· Ing with Independent counsel of its choosing and IndelICndc!rll couns!;.'1 should conlrol Ihe 1l11gatlon. SI. Paul remo...ed the case to federal court and denied <lny presumpti't'C conflict of in· ICrest. The fedelal C()urt certified this question 1o the supreme court, and the supreme court answered the queslioo in Ihe negative. The court staled thai due to potential conflicts of interest inheren t in an insurer's conclul;ti ng a defense of Its in· sured under a reserv;ation o( rlghls, Ihe insurcr has an enhanced obl/sallon 01 good fa lill toward its Insur(.>d In conduct· ing such a defense. The court adopted the ... iew I<lken by the W.1Shlngton State Court In T/lnk 1'. 51. Farm Fire &. Ca s. Co., 715 1'.2d IIIJ (1986) <lnd (IUOlccJ extensively from thaI opinion. For ex.lmpl(!, an "enhanced oblig.l t ion~ requires the Insure. to: (1 ) thoroughly Invesllg.lte the cause; (2 ) rClaln cOmpelent counsel; (3) fully Inform the insured o( the reserva· l ion of rights and all dlM.'lopmenls relevan tlO the policy coverage and l)rogres5 of the 5uit, including all SClticment offers; and (4) refr,lln (rom any action which shows grealer concern for the Insurer's in· le~t than for the insured's nnancial rl5k. In shOll, lhe Insurance counsel fCl)resents only the Insuffid, nOl Ihe insurance com· I)any.
Releases ..• sect ion 12·21·109 applied DausheflY v. M·Earln of Alabama, Inc., 22 ABR 5J1 (ft..'bw {lry 1988)D<lughcrty's wife w.lS Inju r(.>(j in J colli· sion with a dump Iruck w n(.>(j by Munkus and driven by Thompson, an cm· ployee. Munkus wa s under contract to deliver sMd (or M·Earth. Prior to trial, Daugherty settled Ihe C4lse wllh Ihe driver and the wner o( Ihe truck and Cit· ccu ted a pro I1InlO release expressly limiting Ihe operation of th e release to Thompson and Munkus alld t'ICpressly reserving all rights againsl ~ ny other enlities. M·Earth filed a motion for summary judgment and argued tha t Daugherty canllot release an agent or empl~ and still seck 10 Impose liabllily on the prin. C11>a1. The trial oourt ~8rt'Cd Md granted summtlry Judgment. In a case of first impression In Ala· barna, the supreme court d sagreed with M·Earth and reversed Ihe Inal coun. The court first nOted Ihat courts in other stiltes faced with thi s Issue have held Ihal the release of an empll¥!C or agent does not
0' .hol,. who need quality office space without a lot of overhead . • ottorneys • monufacturer's reps • orchitects, enginee,. • inveSlme nt brokers • OCCOvnlonh. CPAs
• smoll business yenlures
·NEW EXECUTIVE OFFICE SUITES· compl, te wilh full •• e"!(IIIoI, lanllorl· ai, moll hondll"t " 'Yic", t, l, phon, an, w" lnt , conference loom. ' K 'P' 110" 0"0 .
·OVERLOOKING 1-65, HOMEWOOD·
171
foreclose a rlghl of action agalnst lhe em· plO'y'er or prineip,,1 under" Iheory of vi· c arious Habil it y. Indeed, Section 12·21·109, Ala. Coele 1975, p rovide5: '""Ii ... n:lea!ie§ ... must h!l\lll effect according to their terms ~nd the inten· tio" ~ of the I~lrtles thereto:' By reserving his right s again st M .Earth In the pro C<1ntQ relea se, Daugherty Intended to reserve his right to bring this action. Thim~fore, w here a release eKpressly res<!rv!!s rights against a joint tortfeasor, whether he is a I)rincipal, agent o r iolnt ventuffir, It will be given cffoct according to Its terms.
Recent Decisions of the Supreme Court of AlabamaCriminal Proof of venue essential c lement of offense Jones v. City of Daphne, 22 ABR 194 (Docember 6, 1987)- The Circuit Court of Billdwin County, 'sitting withou t a jury, adjLldged jones guihy of driving under the influence of alt:ohol. The defendant appealed his judgment of conviction to
We do more than print the lawwe put it into perspective... ... both In our law books and our computer data .ervlce W""!"', '!~
A ~~.
A.. JUl. u$C.$. L l~-or YERA,U • .
.. ,,~ ••I . ~ ..... _ IOU' ,..... ~~ ..", 110 """....,""", .m~I.M, w.lh
OU' ,,"" com~Ultr 1t.I!tclt~lorml!1on
rw' h~'.', 010, I,,. bOO ....... .," eomp.", ,_,ell H.."" I .. mm 10 m"~ willi ..." ~ ... , ,"" \'00' _ I , LOII:"'
"""",. Co). o)p ~
LCP 'tII'_"I,,,,, ....... \'OIJ "'''",l poo.ll>4. 'Mil <ltd·
".ft .. hOi '110 .ep 'bI" CII.,,,· sv.!<.Llbr.., . O'ltn '110 AI.b ..... 11'01....,
.bIt I" 10011 , ... ro ",~
LCI' toclltad bOOk l 10' .1' !)Iml:
',"W .... ""," '" JU', ,.,"",,!~'-CrvW 11..1H,"'_' '01 ~I""' .... L....... LCP ~" IO"'IIIOOko:
Am ..... 'O
Am J., L . ., ..... m'
".. J.' .....
~
G'"~ I 'or... ~ .. "", Ptool or ' ..11 AmJ., Tr .. "
"'K~"
ALA '''''0''
uSCI
.....1 for ..... L (oj
f ......1 _
_.1 _ .... ~ ........,.. L "'."UP!'Y ""I«. L I. I.... IO ... ~ Ln 80< ....
r_ .. ",..lOur .. fa
110<'" $0<.""
L'" , .. "' •• ,...
ua",_,,,,~. a.I>4 ..... CovI' A_ .... L."OIP""''''''' ',,"lIy:II. ConlK t ~ o ur LCP ,. 11.,: 1;...... " ,"m, ....... ..1AI...... R....~ co.""
"1',,,...
.HI........... 1 ..,_, c:w.,... '"." _ . Il'OIIlll,oM4i
C""'M ,,"' ••• _
"'"
1I'~lltHi"
"""'1>9'""
(iIOOll1l · "~1
D. ~. ,.
ld _0..
1~1""~
~
~,",1".,0II41
•••• i1U·IIIII ' 1IIITHll _A,WY'" "-",CO,o-UAfIYi 110<""" .., ...., ••
OCp
172
I. HIIIO c o. Now ..... lOOt.
the court of criminal appeals and ob\<lined a reverSlll. The supreme court a(· fi rmed the intermecliale appellate COUrt'5 judl!mt!nllo reverse, but went further:.nd fCr,dered judgmelll for the- de-ferldant. Justice Almon, writing for a unanimous COUft, found th.11 the city had failed to prove venue and lheelement of lhe time of the offense. ju51ice Almon nOled: "lIVe hll\lC read ,he entire record of Ihe Ifial proceeding~ and (jod no e-.-I· dunCe whlllSO!."Wr 1~"uln8 10 t.'l.lillJUsh when the offen$tl W.l$ committed. 'If Ihe evidence falls 10 di$Closc thai Ihe offense was COfIlll'iiltOO wilhin Ihe slatule. the Sla1<l fdll5 10 m;lke Oul a Cil~: U~rrlj Y. SIJIC, S4 Ala,App. 10. t2, J04 So.2d 252, 25) (1974) ... "Neither do we nnd su{fldcnl t..... i· (Ience to estJbrtsh thai Ihe olle'\$.-, 0\:. cuned wl!hln the dtl' IInlh~ or 1'01100 luri~icti on of Ihe Oty of Daphne. Fall· ure to pfOYI! ycnue is SlOunds fOf rever· sal." Wi/Cull II. SIJIt', 284 Ala. 547. 550, 226 So.2d ]28. ]30 (969) 8
Legal sta.nda rd ulili zed in ci r c um· stantial evidence cases Mauricio II. 51.11e of Alabama, 22 A8R 474 (December I I, 19871- The Supmme Court of Alabama, in a pcrcu';lIm opi nion, reversed llnd rendered the conyic· tion of Mauricio which was based upon cirt:um5tantial evidence. The SuprE!me Court reilerated the long-standing rule to be appillod In dr· CurnSUmtial L'Videnc~ C(l SC$ as follQwS: " tn reviewing ~ 1;00wiction based upon cir<u m stanti~1 t'Yiucm;c. Ihis Court nlU~' Ylew th~t evidence In Ihe light most f;mrahl e 10 the wosccullon . The lest to be appl eel is whelher Ihe jury mighl reasonablv find Ihililhe !.'Vi· dence e~clU(Jcd ~'I' ,easonoble hypl)th~ts exwp' Iha, rIf gulll: 001 wheth· er such l'I/idcoce Cl«:ludes t'YCry rca· ~nablo hl'potht-sis bUI IIUlh, bUI whclller a jury might reason.1bll' ~ conc lude ... OUf obllglliioll, therefom, 1$ to elmmioe the record to deler· mir'IC whether thclll is any thl'Qry of the evidence from which ,he lury mll!ht have elIcluded e<.'I!l'; hypothesis except 8ulll beyond a feasonabl~ doubt."
Recent Decisions of the Sunremc C ourt of the United States Comment on defendant's failure to testify p ermissible whe re defense c ounsel " ol)encd door " United SIMes v. Robinson, No. B6·937, 56 USLW 4t74 {February 24,
1988)-May a prosecutor comment upon
a criminal defendallt's fJi lure to testify al trial in response 10 a defense lawyer's closing argument comment that the defl!ndant was n(lt gi~n an opportunily to explain his actlons~ The 5upreme Court, In a flve·to·three decision, answcred In the affirmative. Writing for the court's majority, Chief justi ce RehnQui st said there Me exceplions 10 the general ban on proscculors t:omml;Jnting on a dl.'>fem;!,lnt's silQn(e ilt trial. In Crif(in v. California, )60 U.S. 609 (1965), the court dL>clarLod that the Fifth Ar'liCrldmcrlt forbid s either comment by the prosecution on the accused's silence or instructions by the cou rt thill such si· lence is evidence of guilt. SInce Griffin, courts ha\IC been extremely reluctant to allow any reference 10 a defendant's right to testify or failure to take the stand. In Robin$()n, the Shah Circuit maSOnC(/ that the l)rosccutOr's sta tements, although responSive to defense counse l's remarks, stili violated the Fifth Amendment prohibition as Intert>fCted by Griffin because they directly referred to hi s filllvre to testify. In reversing lne Six th Circuit, Chief JustiCe Rl1hnqui st four'ld th~t the Court o( Appeals' intcrpretation of Criffin was too broad. Justice Rehrl(IUlst reasonL'(i lhat, In Grl(l/n, the prosecutor "on his own Inl· tl31I-.e" asked the jury to draw adverse In· ferences (rom the defendant's (allure to testify. In Robinson, lhe proSecUtOr'5 statements were a "fair rCSI)Qnse to a claim made by lhe defendant lhrough cou nsel that the defend'lnt was not given lUI opportUlli!y to e~plall\ hi ~ actions." Si x th amendment's confrontatio n clau se does not prohibit tes timony r egarding prio r out-of< ourt ide ntifi c alion wh en identifying wiln ess is unable, bec au se o f memory lo ss, to ex plain ba sis fo r ide nlification
Uniled Sr(l!e$ v. Owen5, No. 66-877, 56 USLW 4160 (February 23, t988)--W!lIth(o Sixth AI'lie-ndri\i:"tlt's con frorltatiotl clause or the Federal Rules of Evidence bar testimony about il prior, out-of·court Identification when the identifying wit· ness is unable, because of memory 1055, to explilin the basis for Ihe identifiCiltionr The Supreme Court. In a 5i~·to-two dL'Ci· $i(jn. answered In the ne8I1ti~. Justice Scalia, speaking for Iii£! maJority, stated that the confrontation clause
MilY 198&
guarantees only nn opportunity for effective Cr05s-ex.'1minalion. That guar.lntee i ~ satisfied, he expl~ined , "when, as here, the defendant has a fu ll lll,d f,llr 0i>l)()r!Unity to bring out the witness's bad memory and olher f,lClS tending 10 discredi t his lestimony." As II result of injuries 5u((en.'CI in an attack at a federal prison, John FoSler's memory Wil S ~rely Impaired. Nl!Yerthcless, In an Inlen/jew wilh the InvestlgJling FBI agent, Foster described the allack, named Ihe defendAnt as his anacker and Identified the defendant from photograph .. AI trial, the ilCCUSed was charged with assault with intent to commit murder. Foster testified thai he clearly remembered identifying the defendant. On cross-examination, ho,\o'C'.'er, he admitted thilt l1e could not remember seeing his assailant, seeing any of his numerous hospltal visitors except the FBI agem or whether any visi tor had suggested thai the defendant was, In fact, his assai lant. Defense counsel unsuccessfully sought to refresh foster's recollt.><:tion with hospital record~, indudlng one Ihal Indicated that he iluributed the assault to somt..'Onc other than the responde!lI . FollOWing his conviction, the Court of Appeals reversro, ullholclingthe defendant's challenges baSt.'CI on the confrontoltion clause of the Sheth Amcndmentand rule 802, Federal Rules of Evidence, which generally exclud~ hearsay. In rCMlrsin8 the Court of Appeals, the Suprmnc Court held that "the (onfrontatlon Clause gUillantl..'eSonly lin 0l>l>orlunlty for clf(!(live cross-exilmlnation, not successful c ros~Kamlnalion ... Itlhe Confrontation Clause is salisfied where, as here, the defendarll has a full and fair OI)I>ortunity to bring out the witnl.'SS'S bad memory and other facls lending 10 discredit his testimony:' Justice Scalia rC;lsoned that thiS antIlysis w,]s IIOt allered by the fael that Foster's testimony Involved lUI out.()f<ourt Identification tnat tradItIonally would hiMl been Colle!lorlzed as hearsay si nce tne confrontation clause's reqUirement s are satisfied when a hearsay dedar;l!lt Is prescnl at trial, takes the oath and Is sublectl.'CIto unrestri cted cross.examination. The Courl further held that Ihe IQ\o',Ier COUrl erred In holding Ihat rule 801(d)(I)(C) did nOI apply to Ihe identification statement either because of the wltn('SS'li memory loss. The AI ... I)llmll LllWYfH
Fifth amendment prohibits compelling cri minal defendant to admit any clement o f offe nse Mlwhews v. Unlred Srares, No. 86·6109, 56 USLW 4183 {February 24, 19881- The sole que~rlon pmscntcd in Mill/hews was whether a defendant may be required to admit ill the elements of a crime, including mens rca, before 00ing allowed to presenl an entrapment defense. Allhough the entrapment defense has no constitutIonal basis, constllli1ional implications arc triggcrl.od when, as In Mal· thews, the district court restricts the d('fenS("s use o( the defense to those cases where the defendant admits all the elemeots of the crime charged, Including the requisite mentill intent. Thus, to requlm any defendilnt to admit guilt before he may ral sc the entrapment defense infringes upon the defendant's consti tutional right to require the gO\o'Crnmcnt 10 prove every element of Its case beyond a masonable doubt. In this case, Ihe distri ct court denied Manhl.'W$' pretrial motion seeking to rai se Ihe entrapment defense ilnd ruled that entrapment W,lS not available because the petitioner would not ildmit all of the elements, including the (t..'quisite ment']l state. At trial, the petitioner testified in his own dclense that although he had accepted the loan, he belil."\led it was a personal loan unrelated to his SB/\ duties. The di5trict court refused to instruct the jury as 10 entrilpment . In i'In opln10rl by Chicf Justice RennquisI, the Court held that C\lCn if the defendant in a federal criminal case denied one or more elements of the crime, he is entitled to an enlf3p!'r'1l!nt in~ truction whenever there Is su(flclent
evidence (rom which a reasonably minded jury could tine! enlr.lpment. The Coun rejected as meritlf;SS the goycmment's contention that becau$C entrapment pre5UPI>OSCS the COmmission of the crime, a defendant should not be allowed t(l deny the offense or an element thereof and rely on the inconsistent, afflrmatt<.(! defense of entrapment. Righi to present defense may be limited by discovery st1Oclions Tay/or v. lI/inoi5, No. 86.5963, 56 USLW 4118 Oarlu<lry 21), 1988)- Tne com· pulsory process cI<lu$C of the Sixth Amendment, In an apprOpnate case, may be violated Iyt' the imposition of a discQYery So1nClion thaI entirely elCCludes the testimony of a material defense witness. HOWf!Y(!r, the cliluse is not merely a 8uarantce that the accused shall have the l)(MICr to subpoenOl wi tnesses, but confers on the accused the funcl.lmcn tal ri8ht to present witnes~ In his own ddense. Justice Stevens, In a flVC-lO-lhree decision, UI)held Taylor's conviction. As a sanction for (ailing to Identify a defense witness In response to;:r pretrial discovery rC(lUCSI made IJt Ihe I)rosecutor, an illinois trial judge refusl.'<l to allow the undisclosed witn~s to testify. The quesfion presentoo to Ihe Supreme Court WilS whetller that refusal violated the defendant's constitutional right to obtain the tl.'Stimony of folYOfolble witnesses. The Sul)feme Court held that the trial judge's discovery ~anCiion was not absolutely prohibitl.od IJt the compulsory process clause of th~ Sixth Amendmen t. The Court found no constitutional error on the specific filcts 01 this case. HCM'eYCr; it is the opinion of this wllter that this decision is limited to a grtat extent by the specinc fil Cts set fonh in the case.•
Forensic Meteorology & Oceanography NASH C. IIO UERTS, JR. CONSULTANTS, INC. has ovor 40 yea" 8ICperience In lorensic moloorology and lorenslcoceanography. Wa have ...1311 01mature and elCperlenced IIClenlil.11, wilh impeccable crodontlals In all oltha atmospheric end oco30ographlcdlsclplw,os. Theae nationally recognized prolosalonals are capable 01 conduclln; Involved Investigation•. reconl.1lrvctlng woalher and marine COf'Iditlon, anywherein the world. and .re emlnlntly qual~iad to appear In expo" IIl1lmony.
Air Q UAllly -- Water Q ualily •• Hydrology t040 iIIonIl R'lll'atI 51.
New OrlclIIJ, LA 10116
(.504) SSI-lliS!
173
Honor Roll of Attorney! (as of Marcl The Alab,lma 1..1\'1 Foundation, Inc. announces Ih~1 th e following anorrll.'Y$ ilnd firms are partlclp,lI lng ln the IOLTA pro-
sr,lm. The lounclotiOIl thnnks those parti ci pating for their SUllIlOrt . BALDWIN COUNTY Cll<1S0n & Chason
Hoiles, Sh<lron R. Irby & Heard Legoi Services Corporation of Alabam ... Reid, Ste in, Smi th & Bass
Shepherd, David
r.
HARBO UR
Calton, Jimmy S. Irby, R\I Sjeli L. P,lppa ~,
ChriStie G .
BIB8
Hellums, Clarence T. , Jr. HULLOCK
Jinks, Lynn
w., III
BUTLER WilliilmSQn & Williamson CALHOU N
B;mkson, Mannon G., Jr. Boozer, Colvin & Love
HI1Shes, P'llrick P. Williams & j路larmon
CHAM BERS Tucker, Billie Anne
CHEROKEE latham, Be rt CHOCTAW Thomp sor) & Thompson Utsey, McPhearson & Christopher CLARK E Keahey, Ronnie E. M cKinley, Edmon H .
CLAY W"rrcJ'l, )ohn Kcith COFFEE Hlair, StCV(!n E. Ca s~ady, Fuller & Marsh
174
COLHERT l',l1\o n,
M( ~lvey
& 1(cJ'lIICmcr
COVINCTON Albrlt1Ol1, Civhan & CliflOn Powell, Powell & McKathan CULLMA N Kni ght & Griffith DALE Adams, Joe w. Brosd(!n & Quanlcb&um Garner, W. Stanley l.1nler, Robert W, DALLAS Legal Services Corporation of AI<lbama OEKAL8 Cooper, John W. legal Services Corporati on of Al abama ScOtt, Charles M . Scru ggs, Will am D., Jr. ELMO RE Horn sby & SchOli!! Scarbo rou gh, Josel)h I , Jr. ESCAMBIA Caffey & Byrd God w in, Charl es R.
SlOkes, Jerni gan & Stokes ETOWAH legal Services Corporation of Alabama White, Georse B" Jr, FRANK LIN Pon;h, Jerry C, CENEVA lee & Fleming HO USTON Conaw&y, J. Micha(!1 F<irnler, Price & Smith Johnston & Hinesley lcg.11 Services Corporation of Alabama l ewis, Brackin & FIO\vcrs Rilmsey, ll<l xley & McDougle
JACKSO N livingston, Po rter & Paulk JEFFERSON Brewt!r, John Ii. Cabaniss, Jol1l1Slon, Gardner, O\JlllilS & O'Neal Campbell, John T, Chamblee & Harris Clary, J. Carler Ck'VCland & CiMlalld Costell o & St01\ Damsky, MilCh Olrlsmorc, J. Wil son Domlnk k, Flelcher, Yeilding, Wood & Lloyd Evans, G. Daniel C<l IlUS, Gcr(lld A. H"mpl:, Dillard & Ferguson Haskell, SI(lughlc( & YOUlIS Ho lliman, lames A. James, Drayton N. Johnson, David Cromwell Maynard, Cooper, Frierson & Calc McCowen & McGowen Miles, Howard M. Moncus, James R., Jr. Pate, Ll.>wis & UtrytI Pit;k.. rd, Fred Pope & Nauer Rc~s & 51111 Ritchey & RilchC'T Ritchie & Rediker Sca!ici, Mau Smith, Hynds, Blocker, lovv'lher & Henderson Stewart, Juti .. Smeds Slone, Pallo(\, KICfce & Kin caid SIUCkC(ISchnelder, Ted Tipler, Steven D. TiPl)IJ'l S, MMk Elliolt Trucks & Trucks Wall ace, Brooke (. Byers 'M;lrtheimer, McCord, Feld & lioffman Willi ams, Taliaferro & Lcdbcllcr
Ma y 1988
Participating in IOlTA IS, 1988) LAUDERDALE Gonce, Young & Westbrook Lcg.11 Services CorlXlrali()(1 of Al'lbilma Morrow, John 0.. Jr,
Peck, Harold G. Simpson, Curtis
LEE Caml), M, JO<ln"c 51>C,lf /I; Teilgue
Thrash, James R, Whlu<!lsey, Ray & TIpton LIM ESTONE
Sherrill
/I;
Batts
MACON £lulls, Albert Clilrenee, III
MAD ISON
Berry, Ables, Tatum, Uttle & Baxter Bradley, Aran l, Rose /I; White FonJ, Caldwell, Ford & Payne C recn, John W., III
Kina. Charles C. L.1mmons, Bell & Snc<!d lanier, Shaver /I; Herring
leo /I;
A~soc iates
M c Donald, Thoma s D. Parsons & Eberhilrdt
Pon!.!r, Ernest L. Smith & Waldrop Smith, Gaines, Gaines & Sabatini Sutherlin, lerrUce p Uhrig, Munger & HowJrd Williams, George K,
MARION tsam, Jackie 0. Vinson, Guyton /I; Wood MARSHAll
Jones, D<Nid It.>e WMncs & Roadruck MO IIILE Alidor, Gary p,
Bradley, Marc E. Burns, Pete r F. C.ulde ll, "Icnry H.
Crosby, Saad & Beebe
Thl! Alabama Lawyer
Darby & Danner Deas, Thomas A. Doyle, Thomas P. Edington, Rober! S. Engcl, w,llsh & Zoghb~ Flynn & Hucy Friedlander & Dunning Furman, lohn Grodsky & Mitchell Hili & Hili Kulakowski, loseph O. legal Services Corpor,lIion 01 Alabama l.(weless & Banks Mantiply, Mary Bcth MI;Oonough & Broome Mills, Jmnes D<lvid Moore & Downing Mooresmith, John T. Pinman, Crall! S. Shields, Richard E. Silver, Voit & Inge Stein & Brews!er Street, Charles S. Taylor, Richard H. Tyson & Tyson M ONTGOM ERY
Anderson, W,lher M;uk, III Balske & Viln Almen Benkwlth & Heard 8lanchDrd, William R. Campbell, Marvin H. Capell, Howard, Knabe & Cobbs Diamond, Sam I. Legal Services CorporaUon of Alabama Mandell & Boyd M(l~sey, Means & Thomas Mclnish, Bright & ChaMbless McPheoon, Van:.t:etta Penn Parker & Brantley P,uker & Kotouc M O RGAN
Dillard, J. Tilden !.<wender, Wesley M. Lentz, Nclson, Whitmire & I louse
McBride, Calvin Propst, Jt)seph W., III Roby, Norman Terry, Michael F. PERRY Barnes, James M ., Jr. PIKE Calhoun, W,lIklns & Clower Magee, Timothy J. RUSSELL Phillips (. Funderburk SHELBY Joiner, J. Michael Lagman, McBrayer & Fuhrmelster Medaris, John E. Morton, W,lde H., Jr. Willli.lce, E1IIs, Head & Fow cr SUMTER Upchurch & Upchurch TALLAPO O SA
Adair, Charles R.. Jr. TUSCA LOOSA Adams, Donald R. Baxter & Wilson Dishuck, laCoste & Slack orJke, Knowles & Pierce GrJY, Espy & Ncnlcs Hawkins, l'lank Hubbi.lrd, WJldrop, Reynolds, Davis & MCilwain Law School Clinical Program McElvy &. Ford Phelps, Owt!ns, Jenkins, Gibson & Fowler Prince, McGuire & Coogler Smith, James o. Smith, Reginald W. Williams, Williams, Williams &
Wl IIi,.ms 'Nooldridgc, VVooldrldge &- Malone WA LKER Robinson &- Nelson WIlson & King
WASHI NGTON Turner, Onderdonk & Kimbrough •
175
Honor Roll of Financial Institutions (as of March 15, 1988)
The Alab..lma 1..1W Foundation, Inc. an· nounces that the follow-ins finallclallnslitutions arc p;miclpaling in the IOLTA program. The fQundiltion thanks thew institutions for their pilrtlcipiIIlon.
Alabam,l Federal Savings & Loal1 Associmlon
Ailus Bank AmSouth Bank Bank of Dad~lIl~ Bank of Mobile Central 6nnk o f the South ( olonlJI Bank Commercial Bank of Ozark ((Wington CO\Jn IY Silok
farmers & Merchants 8omk, L..1Faycuc First Alilbilma Bimk First Anlcrican Bank, Dl!'l;iltur First American Bank of Pelham First Ameri carl Federal Savings .&
Loan, Huntsville First 8:111).; of Baldwin County First Commercial Bank, Birmingham Firs! Community Bank, Ch<llom
First Federal Savings & Loan of
Besseillcr First Federill S,wings & LOiln of Russcll County First Federal Sovings Ballk, DCC.llur First National Bank, Ashlll1)d First National Billlk, Brewton First Niliionili B;lIlk of Atnlore fi rst Niltionill ij;mk of Columbiilnil Fi rst NatiOn;t1 B;tnk of 1:IOrCn Ct! First National Bank of Hamilton First Nation;tl Bank of J;tspcr First NatlO!lal Bilr"lk of Tlt~ka loosa First National Bank o( Union Springs First Stil te Bilnk of Bibb County First State Bank o( Tuscaloosa Jilcobs IJank, Scollsboro National Sank of COnlmcrce, Birmingham I\..>()plcs Bank & TrU$t, Selma Plkc County Bank Southl;md Bank o( Dotilan SouthTrust Bank of Alabama SouthTrust Bank of Baldwin County
SouthTrust Blllik of Calhoun County SouthTrust Bank o( Dothan SouthTrust Bank o( Etow<lh County SouthTrust Bank o( Huntsville SoulhTrusl Bank, lee County So\JthTrust Bilnk of Mobile SouthTrust Bank of MQntgomery SouthTrus! nilnk of 07.ark SuuthTruSI Bank of thl! QUild Chies SouthTrust Bank of Tuscaloosa County Sweet Waler Slale B:.nk The Ameri c'lI1 Bank, Gent,,'Va The Bank of Tallassee The Choclaw Bank of Butler The Citizens Bank, Enterprise The Citizens Bank o( VJlley Head The First Bank of Grove Hill The Peoples Bank, EilSI Tallilssee The P(!Qples Silnk & Trust, Greenville The Pcrry County Simk Tuskegee federal S:wings & Lo;!n AssoclallOrl Union Bank & Trust Company United Security Ballk, Butler •
DEADLINE! Get in your committee preference forms before June 1 to serve on the committee of your choice. Gary C. Huckaby, President-elect P.O. Box 671 Montgomery, Alabama 36101
176
May 1988
Young lawyers' Section Seminar on the Gulf
M
ay 20 thrOlllJh 2 1, 1986,
the annual "lab-1ma State Bar's Young Lawycl'1' SemIn"r-on-the-Gulf wHl be held at Sandestin, Florida, The cornminee, chaired by Sid lilchon and Preston Boh, has an outstanding progr1ln'l for thi s weekend. YOu already should have received brochures regarding the seminar, and I hope you make plans to anend. Seminar topics in路
clude practice under the Alab.1mil M 路 miniSlr<ltive PJ'OCedures Act, a judicial view of I"wyers, the role of Corporate counsel, the use of demonstrative evi-
dcncC! and the hilndl1n!j of OUt cases. On the social iI!!Ienda, Commonwealth land Title of Mobile is the sponsor of a golf tournament Friday afternoon, and the Birmingham IIrm of Piuman, Hooks, Mar)h & Dunon
is the host of the friday evening SQ(;iat hour. The Frid~y night l>arty ag.lin features til e all-lawyer band, " The Soul Practitioners." Saturd;1y afternoon, Foshee & Turnur Court Reporters arc providing refreshmen ts on the beach, and Emood & Vh\cs Is hosting a social hour that evening.
send scveral reprcscn t;1lives 10 consider such topics as how to ol)l;1ln employcr Support for publ ic service/pro bono work, providlngleg.ll assistull(e to victims of natural d sastl!fS, delivery of legal services to the elderl y and Icadellhlp sk ills for new bar IQadcrs. We believe participation In programs like thi s are ex tremely bcr\cnclal to the con tinul..-d success of your YlS.
Yo uth Judicial Program Once again, I must mention the outstanding job ~rformed each year by Keith Norman of Montgomery h'lndllng the Youth Judicial Program . AI this time, I al so eXlend Ih,mks to the fo llowing young law yers who coordlnaled tile programs In their cities: Trip Walton- Auburn Percy Badham-Birm ingham lynn Schuppert- Occatur Robert Baugh- Decatur lelCil Dowling-Dothan Frank POlis- Florence Cdia CoWns- Mobile Charlie Anderson- Montgomery Jake Walker-Opelika l ouis Colley-Pra ttville Joel WJlllams-Troy
Charles R. M Ixon, Jr. YlS President
passed the bar exomina tion adminlsterL-d In Februa ry of Ihis year. laura Crum of Montgomery once again has done an outstanding job on lhis IHogranl. and we are pleased 10 have as our main SI)Caker for the day Major Generill Robert W. Norris, new gcnera l counsel of thc Alabilma Stille Bar.
New loca l sl..'C ti ons Warren laird of JaSper has organized the West Cen tral Alabama Young lawyers' Association, comprisc<1 of young lawyers In Culiman, Fayette, Marion, W alker and Winston counties. The inil iill org!lnlzal lonnl meeting was held Febnlilry 12, 1988. In addition to informal luncheon meetings, Ihe group will have an outing at Smith lake June 3. Efforts are underway 10 affiliale this local section with the ABA-YlD. The ofnce~ of the associalion Me:
ABA Affili a te O ut reach meeting M ay 12 through 14, Ihe Amcri can Bar ASSOCillliQn-Young l awycr'5' D ivision will hold Its spring AOP leadership Skills Con1ercncc at H ilton Head Island, South Carolina. Your YlS will
Bar admissio ns cerem on y O n May 16, the Yl S hosts another bar admissions ceremony, Officially Inducting into our membership those individuals who have taken and
Presiden t: Warren l~ln.J, lasper Vice-president: Kim Chaney,
Cullman SecretaryltreastJrer: Marg.llret Oabla, Jasper
177
Also, I{obcrt Bau"h of Decatur is prt.. pAring to officl ~ lIy affilia te the DCCMur Young Lnwycrs wllh the ABA-Yl O. We are hopcful that addlhonal locill sectio n~ will be CteJt(.>d or reilctiv,llOO wi thin the com -
ing
month ~
Annual bar COnvention The 1988 A labama State Bar Annual Meeting w ill be held in Birmingham July 21-23. Under the ICildership of Steve ~, the YL5 iIgilin is the sponSOr of th~ "Update '88" seminilrto be held In con· junction with the L'Onvention. and we en· cOur1rgc ali lawycrs throughoutthC! slate to llUcnd. N1dltionally, SIeve Shaw, a YlS Executive Committee member arId presl. dent of the Birmi ngham Young l awyers' Sechon, is working hJrd on the YLS 1)111' ty 10 be held Th lrrsd(ly evening al the Birmingham Botanical Gardens. During the bJr convention, Gunter Guy, YLS presidcnt-elcct, will assume the preSidency. I know Gunter would apprecia te hearing from anyone who Is In· tCrti$ted in workinH with the YlS. If you would like to OOcome active, contact him at P.O. Box 307, Morllg0mery, Alabama 36101, or phorlc (205) 264-8118. •
Chemical Abuse Knows No Barriers. • • (including the bar)
Confidential help from fellow professionals is a phone call away
1-800-237-5828
Alabama Bar Directory The 1987-88 directory contains current addresses and telephone numbers of bar members, and st3le and federal couns; state bur COmmiuccs, policies nnd procedures; thc Code or Proressional Responsibility; and sections of the judici(ll. executive nnd legiSlative bnlllches of government.
Name (person , nOl orgoniz3Iion)_______________________________ Address _____________________________________________________________
Telephone # ( Number of directories wanled (S15 each. includes postage)'_____________________ TOlul enclosed (must accompuny order) $ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __
Please
IIlUke
check pnyuble to: The Alabama Bar Dln..'dory and mai l to: Alab!unil Stilte Bur P.O. Box 41 56 M o ntgomery ,
178
AL 3610 1
May 1988
NOTICE Alabama State Bar Membership Change Of Address: Due 10 changes in the statute gCJ\lerning election of oor commissioners, \Ve n()IN are required to use members' office addresses, un less none is available or 01 member is prohibited from receiving slate bar mail at the office. Additionally. the Alabama Bar Directory is compi led from our mailing list, and it is importa nt to
use business addresses for that reason. Please make sure that your business address is listed on O Uf record s when mtlk ing any chan ge of llddress and that we are notified IMMEDIATElY of any change in address or telephone number.
Member Identifi ca tion (Socia l Security) N umber (Circle One)
Mr, Mrs.
Miss Ms.
Hon. Olher;' _ _ __
FuJI Name: _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ __ Race, _ _ __
Busi ness Phone Number (
Sex: _ _ __
Firm or Organ ization: _ _ _ _ _ _ _ _ __ __ _ __ _ _ _ _ _ _ __ _ _ __ __ Year of Admission: _ _ _ _ _ _ _ _ _ __ _
Birlhdate: _ _ _~
Office Mailing Address
Ci ty:
COllnty:
SlOt<: _ _ Zip Code: _ __ _
Office SIr t Address (if different)
Ci ty: Th e Alab.lffla LaW-fer
County:
Slate: _ _ Zi p Code: _ _ __ 179
Memorials Roberl Lulher Ingalls- Monlgl)mery Admitted: 1934 Died : March 1, 1988
Manuel Uo'Y inc-Birmingham D<ln Porti s Barber- Birmingham
AdrniU<..>d: 1936 Died: Januilry 31, 1988
Admiued: 1928 0;(..>(1: ':ebruary 22, 1988
lames little May, Jr.-Mobile Admitted: 1938
Edw.ud WoHd Boswelt- Gen'-'Yil Admll1ed: 1947 Died: December 4, 1987 Waller Mcqueen Cook, Sr.-Mobile Adm iuoo: 1948 Oied: February 18, 1986
James Alvia Cn..>en, Sr.- Birmingham Admitted: 1949
Died : March 12, 1988
John Fr,mk Ru ~seJl- Homos.1SSil Springs.
f lorida Admitted: 1972 Died: February 18, 1968 Henry VJlenlhlc Salerl'li- Birminghllm Admitted: 1948 Died: February 22, 1988
Died: February 29, 1988
James William Harris-Tuseilloosa Admitted: 1950
George Earl Trawick- Milon AdiTlitted: 1946 Died: September 3, 1987
Died: November 16, 1967 Bt! njamin 11eustis Kilborn- Mobile Admillcd: 1954 Died: february 28, 1988
William Rober. Windsor, Jr.-Au gusta, M"ine Admiued: 1984 Died: January 7, 1988
These notices are publlshNf Immeditllely aft!'!f reports of death are received. Biographical information not oppearirl8 In this Issue will be published OIl a later dale If Information Is aCCli!ssible, We ask
you 10 pn;lmplly report the death of an Alabaina attorney to the Alabama State Silr, and we would appreciate your assistance In providing biographic,llinformalion for The Alabama Lawyer,
160
\11 ' 1K 1m" I' (l\-\ III , ]ll
Abner Riley Pl)-..yell, Jr., a greallawyer, the son of a gre.. t lawyer and the father of ,1 great lawyer, dil.>d in Andalusia, Alabama, October 30, 19B7. "Big Ab" graduated In January 1937 from the University of Alabama 5<:hool of Law at age 20, the youngest graduate in the school's history, and pr.lcticoo Ij'lw in Andalusia from that time until his death, except for lwo Yt'ilf5 aetill(! duty with the Navy during Vlbrld War II. During his career, Ab servt.>d as bar commissioner from his Judicial circuit, director of the Alabama Ocfense l1lwyI"!rs Association 311d member of the federation of Insurance Counselors. He served as president of the Cavington County 5ar Association, was il member of the American Bar Association and served as a delegate 10 thc Democratic National COrl~r"!OIi Irl 1972. He was 11 I!f~long mem~r of the First Bal)tlยง! Church of AndalUSia, where he laught the adult men's class for 15 years. He is sUNived by his wife, JCiln Powell, of Andalusia; a (lauBhtcr, Patricia Powell
May 1988
Cassady, of
EvcrgrL~n,
Alabama, who
won the 1987 Presldc:mlial Award (or excellence In malnema1ical tcachlng; a daughter. Annette Powell Cotter, of Decillur, Georgia. who Is a councry music songwriter ,,00 entertainer; and a son, Abner R. "linle Ab" Powell, III, a
practicing lawyer in Andalusia.
1\\11' 1 \t\\,
J~
Ab's (ather was one diM lOp Iriallaw-
yers In south Alabama for many ye;1r5; Ab and his son haYe added to this, SO thai
the name "Ab Powell" has become synonymous with sooth Alabama court· rooms. In his younger years, he
W,lS
om
QUi ·
standing golfor and fisherman, but more than anything he enjoyed the comp;lIlY of other lawyers, whether In or out of court. The only thing thnt nppeart'd to rI ....11 his love of the law was his dedication and constant attention to his wife, jean. Since their marriagc in school dllYS, It WilS dlf· ficult to find one outside the presence of the other. Ab was an outstanding lawyer in the courtroom no maner the type case. but he was at his best (~n though It brought him less money) In the defense of crim· inal cases. This writer believes that he g.;'Iined more acqUittals of di(ficult crim· inal cases than any lawyer in this stale. This was especially true in his younger trial days. The writer first knew Au and jean in college. He was a good frirod, and 1miss him. - Frank J. Tipler, Ir., Andalusia
james l. May, Jr., a member of the American Bar Association, Alabama Slate Bar and Mobile Bar Association dll'd in Mobile March 12, 1988, less Ihan a W(!Ck prior to Ihe monthly meeting nt which he was 10 have been honored for ha... lng I>factict.>d law in Mobile for SO years. Affcctlonntely known as Jimmy by his countless (riends, he WJS born In Mobile AprilB, 1914, and received his lawdcgrC<l In 1938 from the Uni~rsitY of Alabama School 01 \..1W, <lfll~r hiMng received a B.S. in commerce and business admlnlstr,l ' tlon al Alabama in 1937. He served his fraternity, PI Kappa Phi, as niltional chancellor. At the time of his dealh, he was "of counsel" 10 johnSlorlC, Adams, Bailey, Gordon and Harris, (ollowlng many years as .. P<trtncr in johnstone, .'dams, May, Howard and Hill ilnd ilS pffldf!(e5sor firms. During World War II he ~rved in mil. l!.'try intelligence and became special agent In charge of Ihe coun ter·intelli· gence COfPS in Casablanca, NOrlh Africa. A leilder in Mobile's legal, church, school, civic and social circles, Jimmy May giI\IC libel<llly 01 his time ilnd talenlS
10 .1 wide speclrum of good causes, as evidenced by the fact he served as presi· dent o( the Mobile 8ar Association, the O ...llan Club, thc Athelstan Club, Goodwllilnduslrles, lunlor Chamber of Commerce and Mardi Gras societies, as well as a ste'Nilrd in his church and il director of many org.1nlzalioos, and 01 one of Mobile's largest industries. He was an avid hunter, fi sherman and golfer. Primarily a defense a\lomey, he had the respect of the plaintiffs' bar as well, and was considered by many as Ihe ~I In Mobile In his ability to bring the opposing sides Into Ilgrcemcnt on settlements. Whilc he wilt be remembered as a leader In many aspects of life in Mobile, he wilt be rememberl>d pri rl(:ll)ally as a (rI{!nd who seenled as hapl.". 10 spcllk 10 Ihe Janitor as to the compilny presldenl, arld as one who had Ihe happy fa cuity of milking those he sllOke to or ... Islled with feel better than they felt before they saw him. He is survived by his wife PaT; his son, james l. May, III, bolh of Mobile; his daughter, Patricia Sayre of Mariena, Georgia; grandChildren; and other rela· tlves. •
Please Help Us! VVe have no way of knowing when one of our membership is deceased unless Yv'C are notified. Do nOI wail for someone else 10 do il; if you know of the death of one of our members, please tet us kn()\V. Memorial Information must be in writing with name, return address and telephone number.
The Alabama Lawyer
161
Key legislative Issues by Wendell Mitchell l.cgislalive Counsel Alabama Slate Bar
The Arab,um
lCgislalure tlil$ entered
the final days of the 1988 regular SL'S slon, and there arc several bills pendlnH of In-
terest to the legal profession. Outlinl!d belaw are the ffiQ5\ important of thuS(! bills. This listing includes informaUoo about the status of the k'gislalioo, as well as a brief $yoOpsis, the bill num-
bers and the primary sponsors. S. 256 by Sen. d(.-Graffcnried and §tn. Manley and H. 654 by Rf'p. carothers-
These bills establish the "The Alaooma legal Services Liability Act," Among other things, they would reduce the stil'·
ute of IImllillions for lawyers, es'abli~h the st;Uld;uds of caffl applicable to a legal service provide! in a legal servic<! lIabliHy acllon and re<rLire that the plaintiff shall have the butd('r'l of proof that the legal service providl'l' violated !he applicilble standard 01 care. Both bills are In iI posi. lion 10 pass. The Senate bill is pending for final l)(lssage on Ihe Ho\,JS(l calendar. H. 114 by Rep. CMlpbeli and S. 13 1 by Sen. Manley-These bills wo\,Jld revise the law on redemption of reill ~l1l1 e. This oct (lpplies only to mortgages forloclosod on or after the effLoclive dale of the aCI, January I, 1989. The bill further repeals Alabama Code sec. 6-5-230 through 6-5·246. The House version passed the l()YICr chomber and is oot 01 committee in the Senate, .!'Nailing final passage.
182
H. 116 by Rep. CamplK!1I and S. 130 by Sen. Manley-These bills revise the law on powers contained In mortgages on reill estate. Thi ~ act ilpplies only to mortg.lgcs exocutl>O on or after Ihe effec· tive dale of the aCI. J;mutlry I, 1969. The l'louse bill has passed and Is pending in the Senate (or fina l passage.
H. 338 by Rep. 80)( and S. 116 by Sen. bills further revise the guardianship 11PNS I7t amending the Alaooma Uniform Guardianship and Pit> tective Proceedings Act (act no. 87·590) passed by the Alabama legislature last session. The senale version passed lind is out of commillee in Ihe House, await· ing final passage. dt.<: rilffenricd-T~
H. 121 by Rep. Hellinger and S. 152 by Sell. Hilliard-These bills amcnd the Alab.lma Trademark Ac t 10 Includc the rcgistr,lbllity of busi ness trade nl1mes, thereby creating an "Alabama Trademark (lnd Trade Name N:.t:' It further I>fovides fOf transition prcMsions for existing 11'ildemarks and an t.>ffective dille of January I, 1989. The Senate VL'f'Sion Is 3'NJiting final passage In the House of Represenlatlves. H. 470 by Rep. CC1Sby, et al.-Thls bill Mnends sec. 40·6·3 and 40·6·4 to pro-
vide a surviving SIXl USC benefit. This bill Is oul of commiucennd pending on Ihe l'louse calendar. H. 116 by Rep. u mpbcll and S. 139 by Sen. Milnley-These bills adopt and Incorporate intO the Code of Alabama Ihe general and permanent laws of the
stilte enacted during the 1981 regular session 01 the legislature. The Senate VN· ~IQn passed and is pending in the House Judidilry Commil1C!C.
S. 11 by Sen. Cabaniss-This bill, known as thc Ala bama Uniform Arbitra· tion Act, establishes uniform arbitration procedures in Alub(lma . It repeals sec. 6-6-1 through 6-6·16 of the Code of AI/l' l)'lm(l relilting to arbitration. The bill was substituted in Ihe Senate Judiciary Com· mittee with a verSion apprO\.«! I7t the boord of btlr commissionerS. The spon· sor has agreed to push for passage of the substitute bill. It presently Is pending on Ihe Senate cillendar. H. 538 by Rep. Hilynes ami S. 363 by Sen. Holmes- These bills Increase the small claims court Jurisdiction to $2,500 Both bills arc out of comrnillce and pending on thei r respective calendars. The board of commissioners look 11 posi. tion in opposition to this proposed legislation. H. 710 by Rep. Hetlingcl"-This bill provides for al>l)()inlment, reimbursemenl and payment of attorneys in capilill cases. This proposed Il'ghlillion is a \YOrk product of former GoY. Brewer's Action G/Qup on l'ost-convlClioo AI>I)Cals. The bill is pending in the house Judiciilry Committee. The last day of this regutilr legislative session will be Monday, May 16. Unless Ihe budget problems 2fe resolved, a special session of the Legislalure is an. lidpatod. •
May 1988
--
1W1s..~_
..........
Classified Notices
~_-'. ''"
....... ...........
FOil: SALE: uSED LAW BOOKS Alabama Reports/Appellate RCI)()rts, Ala· !J,;lma Code, Southern Rcpo r1cr 1st & 2d, Southem DI8C~1 and more, $AVE 30·60% We buy, sell & !rJde. LAW BOOK EXCHANGE (800) 325-6012 p.o.
Box 24990, l<lcioonville, FIOt'ida 32241· 4990, FOR SALE: larldlCCh 86 Real ESlale Set,Iemen! System Designed (or IBM, PC, Xr, ATT & PS/2 Complete 11 closing within 20 minutes. Prcparc~ I IUD Pases 1 and 2, Buyers and Sellcn. Closing Statemen ts. all Disbursement SIillcmCr\lS and Checks. Rcg. Z APRs and Amortization Schedules. PRO·
GRAM FEATURES: InregrMed Word Processor allows prc,>i'Ir".ion of Com. mirmenls, Policies, Notes, Affidavits & O1hcrs. Forms Genera.or for prepari ng rNMA, VA, FHA and o.her pre-prlnwd fOl'ms.. Complete Es<:rQW Accounting for UI) to IS bank accounts. Cross-reference
system permits ~U '0 look up dosing files 23 dl((crent w.lyl>. Full reporting cnpOlbility. Au tomaUcJlly prorates and calcuhl!es closing figures. This Is the best (COli estJle numbcr-crunchcr avail-
able. SI,295 Complete. SATtSFtED Cus.TOMERS COA$TlO COAst Dell Dala Syslcms, lOl Cuar"nl y Building. 120 S. Olive Avenue. Wesl PJlln DeJch, Florida 3340'1, (305) 833-0454.
FOR SALE: 1st series of the Regional Reporlcrs Nort heast, Pacifi c and Southwest. Low price, C.. II Lorie Feld at (205) 252-4500 Qr wri te 10 BrJdley, Aranl, Rose & While, 1400 Park Place Tower, BirminKham, AI ~ba m a 35203. FOR SALE: CPT WORD PROCESSINC EQUIPMENT: Model 8000 ConsoleSI.OOO; Model 8135 Console- Sl,500; Model Phocnb.: Ir. Console-S2,Soo; SRS45 Hard Oisk- S2,5OO; Rotary IV Printer wi'" Pin feeder-USo' All equlpmenl comes with sollWJrc, disks, mimuals, etc. All equipment urlder curThe All.lbllmll Lllwyer
",,<,-_ ... _ _ ... ·.._ _ ..... _ _ _ .... " ' - ....... _ ...
..
-
~
.... '11 .... _ a l : I O _ ....... UO,... ....
~.----"' ~
... ..,......... ...
" "" ... ' ..... ~ ..... Jl
W
... 1•...o-ONdI....... "
""'" ... ' ..... ~I ... O" II
No "'......... ....- .. 111 ho .... 10. 5o<>d
,,,,,,floG ' ''''I' ond ".,....... _
... III ''''~ 1 _ 01) 1IW>o... , _ C.... ~ Uo",-,", 1.0<"1\
1'0 ....
FOR SALE
..... , ...
"""<Io~
',5f, _ _ . . . 11010'
rem CPT service con'ract Call (205) 870-0663 days. FOR SALE: Alabama Specific Software 00 compuwr disk. Now tJViIllable in the following areas of Ihe lilw: Ivil Procedure, Criminal Prl'-lrial Mmlons, In. tcrrog.ltorles, Corporations, DUls, I'robate Forms. Available In IAbrdSlar V\brdPcrf(!(;l, OisplayWrlte 2&3, Wang p.c., MultiMate ;md other 'o'I()rd proc~ SOl'S upon request. Available In 5% OSOD arld 3Y" disk formats. In<julrles welcomed. Visa/MC ilcccptt>d. L1Wo Tcch, P.O. Bux 59903, Birmin.:ham, Alabami! 35259.
FOR SALE: IBM ScleCirlc 11- $400 (grCi!I coodltlon). Best offer; LaZCf 128 com,)UIcr; primer (Apple Ihe rmal transfer); IBM Iypewriter; Ihree (3) Apple II Edisk drives; Olll! (1) Apple III CRT; one (I) Ap,}le II CRT; two (2) Apple II E computersj Smith COrOna SC1 10 (typewrit. er); Ollvcni Lexlkon 82 (ty,)(.'Wrl tcr). Cont,l cl Jeffrey E. Rowell, 1'.0. Dox 59280, Birmingham, Alabama 35259, Phone (205) 933-7171.
FOR RENT OFFICE SI'ACE FOR RENT/LEASE: Convenlelll to down town Birmingham! Southside. Use of laW libri!ry; telephone. copier, furniture and secretary negotiable. Conlac t Jeffft,. E. Rowell, 1'.0. Box 59280, Birmingham, Alabama 35259. Phone (205) 933-7171.
POSITIONS OFFERED ATTORNEY JOBS-National and Fed·
crOll legal Employment RelXlrt: highly regarded munlhly detailed listing of hundred s of atturnCy M el law-re1illed jobs with U.S. CO\Iernmen t, othcr publidprivale Cml>lc,ycrs in WilShlnglon, D.C., Ihrooghout U.S., and "'broad. U0-3 months; S53- 6 mon.hs. hod· eral ReIXlrIS, 1010 Vermonl Ave., NW, 1408-AH, Wolshinglon, O.c. 20005. (202) 393-33 11. Visa/Me.
O l'I'ORTUN ITIES IN ATLANTA: Numerous openings in Allan." In all praclice ilrCilS for anorneys and paralegals. Candldalt'S must have ouislaooing academic and profe~sioool l credentials. All replies kept SlfiCl ly confidential . Conlact; Susan Penny Cohe n, Capital City leKal Placement, Suite 200, 133 Carnegie Way, Atlanta, Crorijia 30303
(404) 525-0725.
SERVI CES EXPERT WITNESS ASSISTANCE and Cllse cvilluacions in Medical Oncology (cancer) and Hemiltology (dlscascs of blood). Fast service. Able to trao.el. Mt.'(lIcal school assistan t professor. Richard J. L,tnhJm, M.D., Inc. 42 Forrer Road, Dayton, Ohio 4541'J. Phone (5 13) 2'J4-3 16 5 anylime.
FO R RENT: Offi ce SpaceBlrmlngholm, Southside, 2,300 sq. f" 8eautifully decorJled. Free pJrking. S6,95 per sq. fl. Carp!!ltod; draperies,
Phone (205) 939·1327.
WANTED WA NTED TO 8U Y: Al abOlma Code, Alabama Digest. Southern 1st and Soulhern 2nd In good condition al rea-
sonable price. CONTACT Dwight M. lett, Ir., 1907 Pt!i1ch Orc h....,d Road, H;lrlsclle, Alabama 35640. Phone (205) 773-4609.
183
Classified Notices SERVICES
since 1977. Access 10 lilW
EXAMINATION OF QUESTIONED DOCunlenlS: Handwriting, typewriting ,ed related examinations. InlernaHonnlly court-(Iu:ltificd eXI>crt witness. Dlplomatc, Amcri e:!n Board ()f Fo rensic Document Examiners. Member:
American Society of Queslloned I)o(ument Examiners, th, International ASS(l(:ia tio n fot Identification, the British Fo ren sic; $(;ienr;e Society and the National Asso ci atio n of Criminal D e fcrl SC Lawyers. Retifl..'(l Chil,!f Docu· ment Examiner. USA CI Laboratories. Hilns Mayer Gidion, 2 18 Merrymonl Drive, AugU! l,l, Georgia 30907, (404)
860·4267,
LEGAL RESEA RCH H ELP: Experienced atto rney , member of Al abamil Slate Bilr
~ hool
'lild
UROLOGIST, FOReNSIC; e x peri.
Stille I(lw libraries, W cs!l;'lW availilblc.
enccd, boards, professor, M,D., J.D.,
Prompt deadline service. $3 51110ur. Sarlln Ka thryn Farnell, 112 MOOre Build ing, Montgom ery, Alabama 36104, 262-776J. In lelfersor1 and Shelby counlies, call free : 322·4419. No rcprcscmalion is ma(/c "boul the qt/,llify of the legal serv;r;e5 10 be performed or Ihe experlise o f Ihe law. yer performing such serviCC5.
Contact Saul Boyarsky, P.O. Bo ~ 8109, 4960 Audubon Avenue, SI, louis, Missouri 63 11 0. Phone (314) 362·7340
" 10995" REAL ESTATE: Aillbamil owned and ol>crated comllany. Repa r[Ing via magnetic media; COrllll liance with IRS regul at o ns; personalized fo rms; per$Qnal service. HCR Con· sultants, P.O. Box 59309, Birminghalll, A lilbilllla 35259, (205) 945·9263.
(Dept. of Surgery).
MISCEllANEOUS Seeking contact with attorneys whose cl ients have, wlthhl the past five yea rs, made clilims o f an y kind on Redman Ho mes, Inc., fo r seiling a new mobile home and incorre<:lly representing to the buyer the age of the mobile home. Conta( 1 G reg Ward. Suite 11 7, lohnson Hulldin,IJ, I North Lanier Avenue, lanett, Alabama 3686) or pho ne
(205) 642·6008.
•
The State Of Alabama Judicial Department In The Supreme Court Of Alabama October 1, 1984 The t tonor.1btc William t·t, Morrow, General Coun ~ 1 for Ihe Alab~nlJ 51Jle Ijur, h.l ~ pr(,wlltoo [() Ih(· Sl.lll rerne CQUlt a request for ,In II\l('q)'('I~tlon of DI ~c lplln;lry Rule 2.11 (A)121 of the Code of Profcsslonal Responsibility oIlhc Alab.11l1;! Sr,lll:! Bar as to whclhC!r on tcrmlnnllon of a,l ol r!omcy-cllent rol,n lon~ hl ll, a court·appointed Juomcy ~ hould upon rcqUC~1 by an indtgcl1t crimina defend,mt, return 10 th~t defendant Ih\! copy of the hun scripl furni shed at the cxtX!nsc of the Stille pursuant to ~'( tlon 12-22·197, Cod,' 1975. It is ool1s i~n..'d ~nd dctcrrninl'ti
Torbert, C.
J., Maddo~,
by the Court that it is ~lJpropriatc for 1In attorr'lt.'y in thi~ ~hu~tlo" to "'turn rhe 1rl'\,l$(:fll)\ to lh~ defendant.
Faulkner. lones Shores. and Camads, I)., concur. I Almon, Embry. ~nd Beatty, H., not sillln8'
I, ROOOrl G. EW.Jle, .JS Clerk of the S,!IlJ\:n1e COurl of AIJb"'M. do hereby ccrrlfy rh.lt the forcgohlj! of thl' In,trUlIlcnt(s) il('f(w)(h
~1
(lut ,IS SJIIl(l ,'llI)(:MSIS) of re<:ord In
~ald
I ~ a (ull, tnu' olild {OrrN:l ( oIlY
CO,lrt. Witne,~
Illy ),,1I1V thi S 10,h V.IV of 0<:1. 19M.
~~ "e-...c-." 184
Ma y 1988
If your bank merely dabbles in land management, you may find it lacks thc abi lity to step back and sec thc bigger picture. Thc rcal potcntial in timberland, fannland, or mineral dcposits. But at AmSouth, we've been helping people in Alabama manage natural
rcsources profitably for generations. And that's given us something that only comes with ex perienoc. It's called perspecti ve. Without it, in fact, we II\.~,... ~ couldn't see the ~v~ I n " forest for the trees. furYourGrowing Needs, ManbaFDIC.
AmSouth tI.lnk. N.A.
"OUr confidence in Westlaw research • IS enormous. We've found s
o · etheday
they were decidea:' Call or write for more information or to arrange for a free WESTLAW demonstration in your office. JOHN L DAVII., J.D.
MICHAl:L Do 00008CH
"'** ao&I~..o
101010Il00.*,, AI. 3111U
p.o. 800 3&3811 ~A.L~
P.o,iIOo Ir,J3oI ~ 206Ia11_,,'4
WES'T'T J\ 1 U o 1 LL\..V V "","51 PublishIng Comp.lt\y 1-800-J28.0109 (MN 6121688-3654 )
PO So 64,26 " ,' St. P,m. MN ~164.QS26