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Alabama BarlnstituteforContinulng Legal Education The University of Alabama School of Law Alabama State Bar

1998 Fall Master Calendar AUGUST

GAL Training

SEPTEMBER

11 18 25

Advanced Planning for the Elderly Practical Criminal Defense Family Law Practice

OCTOBER

2 9 16 23 30 30-31

Depositions Tort Law Insurance Law Med iation Advocacy Trial Skills Family Law Retreat to the Beach

NOVEMBER

6 13 19 19-20

Rea l Estate Law Bankruptcy Practice Jury Selection Federal Tax Clinic

DECEMBER

2 3 3 4

10 10 11 17 17

18 18

Alabama Evidence in Huntsville Effective Neg<?tlating and Settlement Techniques Alabama Update in Montgomery Alabama Update in Mobile Estate Planning Alabama Update in Birmingham Alabama Evidence in Mobile Alabama Evidence in Montgomery Alabama Update in Huntsville Video Replays In Birmingham Video Replays in Tuscaloosa Alabama Evidence in Birmingham

Oecember 1998 .. January 1999 Dec. 26-Jan . 2 Ski & ClE in Crested Butte , Colorado

TileAlabama \'01. ,,;9, No.6

SC'ptcmbcr 1.9.98

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PRESIDENT'S PAGE 81/ We Loft

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1998·99 AII/buma SIII(e /Jllr Presld(ml Vic

1.011 of Nobile, lipOn his jllslal/alion during 11111 Utllll/U/ meeting's Crill/dlt COIII)()CulitJ1I at Orlll/ge B41Qch.

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n driltling my remarks to you today, I hallt reflected at length upon the changes in OUT profession slntt I was licensed In 1975. Hyou read the ne'NsplIpers. or e~l'Ili~tell to con~ rSo'ltioru among our own colleagues at the bar. you will hear conCfrns about our image. about professionalism, and about greed. In fact, in many of the SUI'\'e)'S taken within our own profession. these issue.5 arc among those fel t to be of highest concern. 1 can't tell )IOU how mllny lim e~ 1 have heard, or even thought myself. that the practice wu more gentile, more civil, and thatlawycrs were more highly reJl;lrdcd even ll$ recently as 1975 when I began my practice. Yet. somehow, I thInk that we over· look, or perhaps forget , some of Ihe I O t1g·~ tll nding deri.lion of lawyers, A speaker at one of our own bar's annual meetings delivered a paper addressing the unpopularity d lawyers in which he "recalled the innumerable publications by the press of anecdotes and of prllcti· cal jokes in which lawyers Me the sub· ject of ridicule." This WIIS In 1881. More recently the Americ:!!l Bar As5()Ciatiol'l'~ Commi ttee on Professional Ethics, In considering changes in the prdession and its resulting decre:.se in professionalism. remarked that. "W~ can not be blind to the f3ct that, however hi"h may be the motives of some, the trend of many is 8way from the ideals of the pMt, and the tendency more and more to reduce our high caliing to the level of a trade, to a meTe I'rlelU1S0( livtlihood, or of per· sonal aggrandizement. With the innux of increlLSing numbers. who seek <ldmission to the profess on mainly for its emol uments, have come new and

Professional Ethics: Past and Present

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changed conditions," This report WM delivered in 1906. Has our image in fact changed markedly? Is the profes$ionalism of the great majority of lawyers at a new low and 5hould this rank as our number one concern? One could debate these issues forever, but perhaps the most important fact is that they are i55ues and they have been Issues for well over a hundred years, I do not mean to Indicate that lhe current concern about a lack of profes· sionalism and our poor image is not important or is misplaced. To tht con· trary, it is my opinion that as o(ficers of the court we are sworn to a higher stan· dard of conduct and I firmly believe that it Is the primary role of the Alabama Stale Bar to enforce that high standard and to lead our members to practice by that ideal. However, whether OUT im<lge h",s changed or not, there are many real, documented changes t"king place in our profession today. In the leu populous communities across this stnte lawyers are be~ieged by "rowing numbcr$ or lower and middle Income families in need of legal ser· vices, but often unable to pay even a modest fu for those uNices, These same lawyers are also contending with increasing specialization within the law :lIld the demands of clients which range from criminal defense and domuHc relations to sophisticated corporate, tax, employment, securities and environ· mental needs. In our larger communities laW)'CTS and law flrms are striving to create bou(Confinued on I}(J~ 280)

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Recent Significant Cases

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Analysis of Current ISSU9S and Predicted Trends In the law of Evidence Appendi)! Containing the

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Federal Eviden ce t 999 Courtroom Manuul 152.50

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President's I)age (Conti/wad from pnge 278)

or maintain corporate client bases in an :.ge of rapidly increasing cO!lsolldlltion on II SUIte, regiona l and, indeed, global t)asis. This consolidation of business is resulting in the regional . iZillion of legal practices at the corporate level. often depriving established l(X:al firms of long路time clients. All of this is occllrring against a backdrop of declinhg loyalty to fi rms, cllent~ lind prll(;tice$ driven by the dem:.nd for profitability and by personal dissatisfaction and unhappiness in the profession which mllllUcsts itself in the breakup of law fi rms and practices. ChQngcs in technology have an impilct on the legal profession daily, increasing the ability. and thus the eKpectation, for rapid response \0 issues. Cone are the days wh en Iuwyers communicated with typewritten co rre~pon d e n ce as ~ means of exchanging positions. ne~otia t in" is~ ue $. or re ~ pondins to a client'$ li Que~,

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needs. 'roday in thl fa ~t-Pilced world of telefaK. e-mai l. computerized research and the hllerne\, i~~ uc s ari$e. :m! investigated. posillon~ taken ,md responses demandtd within 24-hour time frames. Distal'l ce is irrelevant, and jurisdictions begi n to filde, creat路 ing ethical nightmares which are yel to be deall with al even the nationa l leve l. much less locally. Accounting firm s, p~rlIl e"C1 l s, title insurers. lega! sped~list s antl others. driven by their own profit motives ,md the relative inaccelsibillty of legal service to Ihe greal majority of our popuIlllion. incrcasingl~ infringe upon ou r profession. res ulti ng in even greater competition and pressure on cou rls and legisliltors to deill with actions heretofore deemed as the unauthorized practice of law. Trial lawyers ver$l,lS the defense bClr: litigatoT$ venus non-litigators: boutiquH versus big fi lm$; regional l!nd naUona! law fi rms \'ersus local and statewide fi rms; state bars versus specialty bllfs: business versus non-bus.ness lawyers: criminal versus civil- the list of fractionalization and competitive {actions within ou r profession goes on and on. eilch fighting (or a piece of the action as the pendulum of profitability swings back and forth. What. then. does the future hold (or our profession? II has changed mOTe in the past 15 years than in the previous 150. In our own state the number of lawyers licensed approaches 12.000 versus the mere 5,500 which were licellsed in 1980.0.\ average over 1.100 lawyers sit for the Alabama Slate Bar exam each ye~ r and over 600 receive their licenses, continuing to swe ll our ranks, Despite these {Jcts, every 5lU'vey taken indicates the increaSin!!:ly dimcult ability of the indigent and, alas, the middle ciilS5 in our ~t ate (It~ Va$t majority) 10 acce~s affordable, quality legal services for routine needs. In the midst of ~I ' of this change, we. as Alabama la ....'Yers. and our state bar in particular. must attempt to bring focus to our mission. ou r strategic plan. and the role of the bench ;md bar in the administration (I{ a fair and impartial judicial system in this state. 1r\ the pMt several year5. we have begun to address many of these luues,

putting into p l ~ce a strategic plan. focusing on the perceived lack of professionalism and uni ty of the bar, debating the import ,md answers to challenges to our image. alld broadening service programs to ou r everchanging profession. Today, however. in order 10 keep pace with the e~ r-c hanging needs of our profession. its strengths and its weaknesses. we must do a better job of anticipating instc:.d of reacting to p.u adillm changes in the way we practice law ilnd the respect we hold for it$ in$titutions. How do we intend to deal with the fraclionaliz!llion and influence of specil!1ty ban and sect ions? How do we intend to deal with advertising and solicitation on the Internet from the standpoint of enforcing each state's ethical rules? How do we intend to deal with the growing participation by the undereducated in our legal system ;l!ld the added preS5u res which this has placed on lawyer$ and judges? Wh ... t can we do 10 educate tlu populou$ of this stille In urlderstarlding their legal system. and allpreciating the role of lawyers and judges? Whl!! are we willillg to do I!bout the debilitllling impact of bi llable hours, billing goals. contino gent fees and alternative billing techniques on Ihe spirit of ou r practitioners. ~nd ou r imilge liS professionals? Whal Ciln we do ~bOll t the widening gap in both ex pe r ti~e and profitahilily between rural and metropolitan I ~wyeu. between l~rg~ and ~ma!l fi rms? How C,In we insure the capability of nIl of the people of thl ~ state 10 access ou r legal system for routine needs? What can we do to substantially increase minority pllrlicipation in the legal profession in this slate? To address these issues we must promptly increase communication among the state and IDCal bars. specialty bars. sections and all faction$ of ou r association. We mu~ t find better way5 to reach out to the citizen!,)' of this state and educate them IIbout out legIl 1 1Y~颅 tern and invite their parllcip:.tlon. altd we must find II way to allow every IllIIl) and woman in the state of Alabamfl who is in need of legal services to find affordable, qua lity assistance, We can not expect understandinJt of our role in the legal system. or respect for that system. from thost who have

no accen to it. "10st jurisdictions in this countT)' are now concludinllthat the ability to improve access to justice can only come through a combi natiOll of many efforts, including pro oono ser· vict$, funding (or legal services. alterna· tive dispute resolution. IOLTA pro· grams. as well it$ local plans for provid. inll access to justict In coordination with existing organizations, such as bar I15sociations and United Way. Many other states are considering mandator)' pro oono service fOf licensees, thc shift· ing o( punitive damage aWMds to fund leglll services to th~ indigent. and taxcs on legal services (or such purposes. We must look at all available avenues in our state to familiarize our citizens with the Ifgal system, such IS the pilot program using lay volunteers currently Deing conducted in Lee County by the Administrative Ofnce of Courts. We should also investigate simplified proceedings in small c~aims court. IIIW for probate and domestic matters, or even consider the establishment of cilh:en dispute sett lement centers to fIJlsist in

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lAhAinA

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the resolution of disputes in an dficient and economical mailer. I know that some of these thoughts are of concern to many of our practic' ing attorneys. Out we have a dilemma. We have the opportunity to design a means (or Alabama lawyen to provide legal services to those In new in this stale. or at lellst be illstrumental in creating other avenues (or the underprivileged and middle class to address their legal needs. Failing such. we call watch legislatures or (ederal courts a.uthorize wholesale changes in ollr legal s}'stem. I think this is the single greatest chal· lenge (~cing our profession today, and [ am convinced that O\Ir ability to resolve it is veT)' much intertwined with the solution to our own image problems. We muSI be willing to auume responsibili ty. as professlonll15, for our justice system 811d ils creditability. and we must be willing to lead the memo bership o( our Alabama State Bar to a swift and just resolution of each o( these challenges. Th,l11k you. •

or L .... Lilm,rr

Preparation 01 Researcn Memos Slate & Federat Case Law Searches State & Federal Statute Searches • State & Federal Regulation Searches • WESTLAW Searches • Leglstatlve Histories Checkl~srn:rardlzlng • Cite • DIAL.OGIME UN Searches • Newspager Searches • Internet earches • Photocopy Service Alabama Lawyers Research Service University 01Atabama SchOOl 01 Law Post Office Box 870383 Tuscaloosa, Alabama 35487-0383 Phone: (205) 346·0300 Fax: (205) 348·1112 E·malt: ALRSOLAW.UA.EOU

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EXECUTIVE DIRECTOR'S REPORT By Keith B. Nonn(J1l

Education Debt for Law School Graduates Has Increased Significantly

1r n my July 1996 "Executive Director's .IL Ileporl," [ ex preS51.~d my gTave toncern ilboullhe high edu" llion dcbl lo.1d

school ijTaduates with educational loans who sat fo r the July 1998 bar exam e~ceeds $50,0001 This tremendous debt

carri~d

IO:id

by many Jaw school graduates SiUhl" for the b:lr exam. Sir"lce my inilIal report. the cdue.tHonal debt load of

borne by 60 percent of the nr$t-

time examinees. The tables below reneel the Increasing debt levels of the

law school gTlllluates has Increased sub-

I'ebruary and Jul y eXlIminees over the

stantially. The average debt for lllw

13st three years.

'l4 pore. oll

151

S5.2J~,600

$3,110,500

$5,180.<100

$41,"5

$35.000

S500 10 $125,000

'''''' $1.500 10 S90.OOO

$3.000 10 $90,000

$0197 PI' monlh

$420 p.r month

S4ISp.rmon!h

'"31.

317

'13 DEeT

S15,629,OOO

SI4,116.221

S13,312.OOO

S50,418

$44,528

$40,892

$2,000 10 SI'lO.oo

$1,000101111,000

Sl,ooo to 1100,000

5528 pt. month

$0174 plr month

Keith B. Norman S!i~

plr mOnth

The lxIr's Chllractet lind Fitness Committee expres.wd its concern about the potential problems such high le\'(!ls of l-duc.,tion.,1 debt pose for the profeuion al the Bo.'rd of Bar Commissioners' July meeting, The commission Willi very receptive to the committte's suJUlestion that a task force be appoin:ed to slUdy this mat· ter, Clearly, this iuue deJelWs our concern and our atlenlicm because 0( the serious consequences it portendJ for the future of these new lawyers and the clients they will represent. TIlt recently completed Southern Opinion Research survey of stille bolr members showslil.lt the medillrl first.year salary for ~ung lawyers is S33.000. With 60 percent 01 July's first· time examinees saddled with iI decade of monthly payments IlVtraging $600 jusl for Iheir education, the debl·to-income disp<lrity for these young lawyenl is a rei\50n for concern, A!, [ stated in July 1996, "We must be concerned that new lawyers tnlering the ranks oj the profeuion are not 50 burdened with debt that their ability to practice or to etrecliv'i!ly rtpresent their clienl$ is imPilired," [ am hopeful thaI we can address this cause (or concem before any seriou~ , problems develop. Summit on the Prof••• lon: A Succe,,'ul FIrAt Step

Former state bar president Dag Rowe convened lhe Summit on the Profusion on May 14 at state rur headqullrters. An outst"11ding group of lay l>ersons, lawyers and judges represenlinllspccialty bars, judicial organi:'ltiolls and Ihe appel1ate courl\ lIttended a day long conference to disc.uu i$SUES f..cing the legal prolwioo and the judiciary. Among those attending \\'tre Fnnk Gregory, Judge lJen IIlcLaughlin, Judlte Fnnc.is A. Long, Sr.. Greg BreedlO\!{!, KI!Uh Givens, Andrea Summer. Itlchartl Sandefer. D~ nni 8 Knizley, Carol Ann Smith. Kenneth FuUer, Ed Llylngston, Thomas omlls. Judge Charln Fkming, Launke Sills, Derek Simpson. StO\'a IItcFadden. Fl'I!d Killion, Jr.. B~rbll1'l\ Rhoclu. Dawn Ilowan!, Caryl !'rlvett. Vic: Lott, ~nd Wade Baxley, !::neh pi!rson attending the summil was asked to list what he or she pi!rceived as the most crucial Juuu facin" the judiciary and the h~gal profession. The top three issuC$ o( concern were: (1) Judiciary-SelectioniCampaign ConductIPolitic i ~ti on; (2)

Professionallsm-Civilit)l'F';tctional iz.alion o( the Profession; and (3) Public Perception- Public ConfIdence in the Justice Syslem, I'~ rt of the summit agenda induded an Interactive discussion of the 101) iuue5 arId ongoing efforts by bar groups to addrus lhe identified i$Sues of concern. Participants were divided into three \\'(Irking groups to discuss iI specific issue and develop a rtcommended action plan, The final recommendations o( the three working groups were M follows: Judiciary

II Quick and uniform enforcement of Canon 7 violations; 2) f.lonitor legi5lation lhat would adversely affect Ihe judiciary: 3) Hemovejudicilll campaigns from partisan elections: 4) Addrw the n(-ed for minimum qu.llifi. catlonslstllndrtrili (or judicilll c.lndidates; 5) Improve communications between the courts lind the bar; nnd 6) Increase diyersit)' withi n the IxIr and on the bench. Profe •• lon8U.m

Increase CLE to 1<1 hours with tv.'O hours ol professionalism/ethics required, or as IUl altemntive. have two hours or the existing 12 nounl required to be professionalism/ethics training; 2) Encourage specialt)' bars to deyelop mentoring programs for members with the state bar serving as coordinator for all programs: 3) PrOnlotion by state oor ol meetings with various groups within the profession on a periodic basis and inform IxIr members of recommendations: and 4) Implement good id~:.s and promote communication among all members ~boul what all profes.1lonlll orllanj1~1' liol1$ and groups are doin~ on bel,.,lf of the profession. 1)

Public Perception

I) Work to impl'Q\lt ;tCCW to legal serviCd both for the poor;tnd middle clw through such program$M pro bono. free legal advice columM or Inw lines; 2) Educate and involve the public to demystify the system through programs such 115 the Partneuhi;l Progrllm and court volunteer programs: 3) Promote profusionali,m within tht leglll profe»ion, and decrellse faction-

alililtion lind emphasize civility: and 4) Have the state bar serve lU the umbrel1a organiz{ltion (or lawytrs working together 10 help local com· munities and provide visibility for Ihose efforts to help strenGthen the profe»ion's unity lind Improve the public's perception of the profusion, Alabama State Bar President Vic Lott has appointed summit participants to II Thsk Force on Intra-Bench/ll3r Communications to both facilita te communications within Ihe profession and work on these recommendations, Few members of the profu.<ion will fail to appreciate the importance of Ihe three issues selected and considered althe summit. No doubt there are other issues lind problems that will need te Dc addressed too. But. our profession has taken a bold and important step forwa rd to repiaee factionalism with cohesion In order to work on 5Oi(ltions (or these three problem areas. Only through our mutUo'lI cooperlltioo as a profession can we realisticall), eXpi!ct to be 5uccessful in 50Iving these and the other problems th<it (ace the leg.l lilrofession. •

IIWICHj IlE\'f \1. 11 .\I.I'II.\Cnn I': XI'ERTS

ABOUT MEMBERS, AMONG FIRMS

About Member. John T. I~ i t (jn d(), Jr. announces the openi ng of his offi ce al 3 10 2 1~t Street, NOrlh, Sui til 500, Birl'l'linghllnl, 35203.

David P. Dorn, (ormerly with Ourv.·ard & Cromcr, annOllnCeS the opening o( his office at 205 N. 20th Street, Sui te 210. Rirmingham, 35203. Phone (205) 322-3300.

Phone (205) 328·5050.

Elissa 1-1. Green announces the reloCl:Ition of her office to 301·A Franklin Street. Hunts\ille, 35801. Phone (256) 534· 7027.

J,me Creekmore Smith announces lhe relocation of her ome!! to 302 N. 18th Stre~l. Be5semer, 35020. Phone (205) 428-424S.

Donald l.ec lh':nnrI.11, Jr. announces a change or address to 5417 Crave mdge Way, Bethesd;i. Maryland 20852. Phone POI) 564 -0270. Beth H. Gerwin announces the rel ocation of her office to 20 15 J 5\ Avenue,

North. Birmingham. 35203. Phone (Z05) 715-4445. Luden Ill3lllflkcnshi p Im naunces

Ihc relOC:llliorl of his office to 20 15 1st Avenue, North, Birmingham, Alabama

35203, Phone (205) 458· 1100, Don E Wiginton announces the relocalion or his ortice \0 200 Ornce I'ark Drive, Suite 314, Birmingham, 352232404, Phone (205) 942-9233. N;lOmi Grace [)rake announces thc opcning of her offi ce lit 22 10 N. Main Street, Suite B. Daphne, 36526, Phone (334) 626-1312. Ch;rrles I.. Payne announces the opening of his ornce lit 30 I Title Buikling, 300 N. 21st Street. Birmingham. 35203. Phone (205) 322-2331.

Iby M. ThompllOn announces the operlillil of his o((ice at 107 Saint Frances Stree\, Suite 1504, Firsl National Bank Building, Mobile, 36602. Phone (334) 690-7799. Sondra K, NtOi1n il:! annovnces ~ change o( address 10 1134 22nd Sireet, North, Suite 101, Leg,!1 Arts Ihrilding, 13i rminilham, 35234. Phone (205) 297-9888. Reilccca Nannore Pace, formerly with Rouer. Marthaler & Narmore, announces Ulllt she has relocilted her office to 301 N. Dickson Street. l\tscumbia, 35674. Phone (256) 314·6300,

Among Firm. Longshore, liud & l.onllshore, I~C. annountes the rcl!)Ciltiol1 of its offi ces to thl:: LQnltshore fluilding, 2009 Second Avenue. North. Ilirmingham, 35203. Phone (205) 252-7661. Beasley, Wilson. Allen , Crow & Itletilvin, P.C. announces that Stel)hen W. Drinkard, R. Graham Esdale. Jr., L. Landis Sexlon. J uli~ Anne Beasley, Md l~hon I~. Jones have become members of the fi rm. Offices are located at 218 Commerce Street P.O. Box 4160, Montgomery, 36103-4160. Phone (33)1 ) 269-23-13. Armbrccht. J ;lck~on, Ocfilouy. Crowe, Hol mes & Reeves, I..I..C, announces that Stephen It Copeland has become a member and Ihat Timothy O. Ryan, l..eah P. I"'Hld, J. W~lton J~ckSQ n and

Sam I),wid Knlllht havcjoi11ed the firm M M~odlltes and thllt Thmela E. Esham hilS joined as sta(f attorney. Offices are located lit 1300 Iliverview Plaza, 63 S. Itoyal Street, filobile, 36602. The mail· ing address is 1'.0, Box 290, Hobite, 36601.I'hone (334) -105-1300. filmer, Hamilton, Snider & Odom, th~t Willard I-I. nenson. Jc~n Itt. Powers and lt1ichael N . Shippn have become members. omce~ arc located in Itloblle, Montgomery and Washington, D,C. t.i •. C. annOlll1tes

Arter tladden, L.L.P. announces that Itladcllene It Dobbins has joined the firm as of cOlillsel in the Washington, D.C. office. located at 1801 KStreet. N. W" Suite 400K, 20006·130 1. Phone (202) 775·7130. l..ehr, fitiddlcbrook$, Price & Proctor announces the opening of its office in Decatur. located at 303 Cain Street, N.E" Suite E, P.O. Box 1626,35602, and Lhat Sleven fit. Stastny and lt1ichael Broom have become sh~rehotders. Phone (205) 308·2767. Heard & BeMd announccsthat l). J. l1arris has joined the fi rm. Offices are located at 416 Gunter Avenue, I~O. Dox 88, Gunlmville, 35976. Phone (256) 582-3189. Sirot!! &. Permutt announces that I<atherlne N. Uarr has joined lhe firm. Offices are located at 2222 Arlington Avenue. South, Birmin~ham, 35205, The mailing address is 1',0. Box 55727, 35255·5727. !'hone (205) 933·7111. tland Arcndall, L.l..e. ilnnounttS that E. S h ~ne llIack has joi ned the firm . Offices are locOlled lit 900 Park Place Tower, 200 1 Park Place, North,

Birm ingham , 35203. I)hone (205) 324·4400. HlIdQlph & Associate!, P.C. announces that David L Johruton has joirled the firm. Offices arc located at 1130 QlJintard Avenul', Suite 500. Anniston, 36201. Phone (205) 2.17-8663. Balch &: Bingham, L.I..P. an nouncu that Glenn G. Waddell. of counsc/, has been named regional director of I)caccmaker Ministries, with new offices in Birmingham. The mailing addreu is P.O. Uox 59354, 35259. Phone (205) 290·0347. Watson. "'1'1'5 & Jimmerson, P,C. announces that Samuel II. Ch'han has become a shllreholder. Offi ces are locat· I'd at AmSouth Center, 200 Clinton Avenue, West. Suite 800. Huntsville, 35801. I'hone (256) 536·7423, Jeffre)' G. Tickal, (ormerly with lIarri5, Clecker, Berg, Hogers &: lIollis, hM Joi n ~d the fi rm o( Gullage & Wl1Ilams. Offices are located al2400 Frederick Road, Orelika, 36801. Phone (334) 705·0200. Chenault, Ham mond &: Hall, P.C. announces that Amelia B. Griffit h hM become a partner. The new name is Chenault, ~I am mond , lIall & Griffith, P.C. O((ices are l!>ated at 117 Second Avenue, N.!';" Decatur. 35602. Phone 12051353-1031, {\lk hael R. I·'orrester, (ormerly with Luther, Oldenburg & Rlliney of Mobile, announces he has joined the U.S. Army JAG Corps, and wil l be stationed in Cermlln),. Wisner, AdllrlU &: Walker, I~C. announces that [)on~ld W. LamlJcrt has become a member. Offices lire Ioc.lled at 100 Washington Strut, Suite 200, Iluntsville, 35801. I'OOne (205) 533· 1445. Dempsey & Sleed, P.C, announces lhat R.f'. Stewart. Iii and WIIIi.un (\I. Keever have joined as shareholders. The new name is Dempse)', Sleed, St ew~rt & I{ttver, P.C. Offices are 10000t· ed at 100 l{iverPolnf CorpoTiite Center, Suite 205. Birmingham, 352<13. Phone (205) 970·0034.

l.titman, Siellal 8: Payne, P.C. announces that Christopher R. Hood Iw become an aS$OCi~te. Omces are locllted at The Land Title Building. 600 20th Street, North. Suite 400, Birmingham. 35203, Phone (205) 251·5900. Pierce, Led>'ard. Latta & Wa5dcn, P,C. announces tlmt Abe I.. I)hlllps, Jr. ilnd A. Lewis l'hltips, III hnvejoined the firm. o mces are located at Color\ial Bank Centre. 4\ N. Beilline, Suite 400, Hobile, 36608. Phone (334) 344·5151. Johanrl G. {\tolicr announces the for· malion of {\\oller & A~socia t cs, t,I" C. His omce is located at 1117 22nd Street. South, Birmingham. 35205, Phone (205) 939·0000. Gerhard E.W. Kelter, Jr., P.C. announces that Sarah A,A. Ame! has joined the (irm as an associate. Offices are located at 135 S. I..IISlI lIe Street, Suite 1905, Chicago, Ill inois 60603. Phone (312) 853·0900, Other omces nre loc<lted in Stockholm, Sweden, and Frllnk(urt ;lnd Flensburg, Cern,any. ~I at c he r, Stubbs, Land, Iioilis & nothschlld announces th.,t C. Harris {\\ullin , Theodore D. {\lorgan mId Teri Yancey Callahan have become partners and thM W. I~ray r<lcCormlck and Bradley H. Coppedge ~ve become associates. O((ices are located 11\ 233 12th Street, Suite 500, Corporale Center, Co lum b u~, Georgia 3190 1, Phone (706) 32<1·0201.

Robison & lk'!SL'r, PA announce5 that Terry A. Sides, (ormerly or I-lill. Hm, Carter, Pranco, Cole & Black, P.C.. has joined the nrm as a p.1rtner. Offices ~re Ioc.~lcd at 200 Coosa Strtet. Hontgomery, 36 104. Phone (334) 834·7000. Glorl~

(\\cPhcrMln, currently with the United Stllles Attorney's Office in Montgomery. ,mnOllm.:es lhat she hilS accepted a po~ ition as a~istant profes. sor of justice and public s..lfely at Auburn Univtrsil), al ~Ionl ~omery. Ilrooks & lIamby, P,C. announces that Hich,ml lt 1'I 01!lon and James G. lIou5e, III have become lIuocillles. Offices lire located at 618 Azalea

Road, {\lobi le. 36609. Phone (334 66 1·4118. Andre' {\1. Tof(el, I~C. announces that Kimberly B. Cia" has become an uso· date. She formerly ....'as a law clerk (or the Honorable Thmara 0, Mitchell, O((ices have relocated 10 the Farle), Buildi ng, .jlh noor. 1929 Thi rd I\venlle, North , IJirminghllm , 35203, Phone ~205) 252·711 5. tolcCartha 8: Snowden, L.LC. announces that Jud C. Stanford has become ~n associllte. Offi ces 'rre localed lit 20 15 1st Avenue, North, Ilirmingham, 35203. Phone (205) 321· 1920. Bradford 8: Donahue, I~C. ~nnou llces that its offictS have relOOlled to 200).11 SouthBridge Parkway, Suite 525. Birmingham, 35209, and that Oavid I). Schael and W. Gregory Biddle have become associates. Phone ~205l 871 ·7733, (\lary E. Stank l of The Slinsel l.aw Firm, P.C. announces L1lat the offi ce has relocated to 20 15 First Avenue, North. Birmingham, 35203. The mail· ing addres.s is P.O. Box 2052, 35201. Phone (205) 458·1 100, Wendy Ilrooka Crew announces her disassociation with !laddie), & Crew. P,C. and the formation of Wendy Urooks Crew 8: Auociates. Offices will remain at 550 Park Place Towers, 2001 Park Place, North, I3irmingham, 35203. Phone (205) 326·3555. Par!oqns 8: Sutton announces that Angela 1MKimbrough has become lin auocillle. Offices li re located at 601 Greensboro Avenue, Alston Place, Suite 700, Tu scaloo~a. 35401. Phone (205) 349·5500, {\lyron K. Allenstein and Scott Oenson announce the fo rmation of Allen ~tein & Denson, I.. I..C. Offices are located at 156 S. Lawrence Street. Hobi1e 36602. Phone (334) 433·2001. Gorh;"m & Waldrep, P,C. announces that Tamara I-Iarri! Johnson has become ~n auodal.e. Offices Dre located at 2101 6th Avenue, North, Suite 700. Birm ingham, 35203. I'hone (205) 254 ·3216.

Watson, deCraffcnried &: HOllt)', L,I"P. annOUI1(CS thal Charles A.

i-Iard ll1, formcrl)' 1111 associate with Burr & Forman. I..I., P" and Joseph I~. Powell have jOined as associates. Offi ces are located at 1651 McFarland Boulevard, North, Tuscaloosa 35406. I'hone (205) 345·1577. Stewart &: Smith announces thai Jason E. Knowles has joined M 1m asso· ciale, om C~ 5 brc located ll!. 1131 Leighton Avenue, Anniston, 36207, Phonc (256) 237-9311. Rushton, Stake]y, Johnston &: Carrell. P.A. announces that Paul James, Jr., Chris S. Simmons, I).

~t.

Mitchell Henry, Robert C. Ward, Jr., and Bowd)' J, Ilrown ha·1t become members, Offices are ioc<lled M 184 Commerce Street, Montgomery, 36104, Phone (334) 206·3100. Karl Henkwilh and Cliff l'lcard announce the rcloa.tion of their office to the Sterling Centre, 4121 Carmichael Rood, Suite 401, ~l ont"omery, 36106. Phone (334) 395·9899. WilHam 'I: Eiland, P. Brbdlc), ~l urray and folichael l). Sherman announce the formation of Eiland. Murray & Sherman , I.. I..C. Of!icu are located al 3 S. Royal Sireet, Suile 200, Mobile, 36602, Phone (334) 432·0900.

Croulln, Sialen & O'Connor, I~C, announces thai Lee tol. I(u$$eli, Jr., l)avid W, Van Buskirk, fot. Andn-w l)onaldson and ~l elinda Kaye Camp have become associates. The firm has relocated to 2400 Presid~nt5 Drive. Suite 300, Montgomery. 36116, phone (334) 396,8882. l'la)'good, Cleveland, Pierce & Speakman announces that John W~5 ley , "lcCoJlum, Jr.. formerl), or Beasley, Wil~on, Allen. Crow & Methvin, has become an associate. Offices are located III 611 E, Clenn Avenue, Auburn. 36830. Phone (334) 82 1·3892.

•

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MEMORIALS

Judge David Lee Rosenau, Jr.

hereas. David Lee noscnau, Jr. was born on April 2, 1903 in Athens, Alabama. He graduated from Green University in Athens. He then attended Ville Univcrsity at age 15 and upon graduating, was accepted to the Stanford School of Lawai alte 19. Arter receiving his law degree in 192<1. he went to work in the legal department of Alabllma Power Company in Birmingham. He mOiled back to Athens in 1925 and opened a law office. During this lime, he also worked as a legal correspondent (or area newspapers. In 1937 he was appointed by Governor Bibb Craves 10 fill a vilcancy in lhe Limestone County Courl. Thai began his 44-year career in Ihe judicial system, one of Ihe longes\ leg,,1 Cllreers in the State of Alabama. In 1954 and again in 1958. he was appointed as one of four American delegates to travel to the International Congress of Juvenile Court Judges in Brussels, Belgium. After retiring from the Limestone County Court. he was apl>oillled by the Alabama Supreme Court as a special supernumerary judge who heard court cases throughout the state. I-Ie began te~dling business law dasses at Athens Stale College around 1955 and continued until the late 1960$. During this time, he w~s awarded many fellowships to uniwrsities throughout Ihe country. He was a lJ(e.long member of the Flut United Methodist Church of Athens, past member of the Lions Club and a member of the Alabama State Bar. Judge l~ose n,lU died on Friday. March

13, 1998, at AthenS-Limestone Hospital after a lengthy illness. The service was held at the ~'irst United Methodist Church in Athens on Sunday, 1>-1arch 15, 1998, conducted by Or. Steve Scrl'WS and Dr. Curtis Coleman. Judge Rosenau is survived by his wife, Jewell Hert2ler Rosenau; two daughters, Joy nosenau Craham of Athens, Alabama and JjJJ Rosenau Hick! of Thscaloosa, Ahlbllma; two grlllldaugh. ten, Kath:lI,),n Craham of Chapel 1-liII, North Carolinll, 11nd Jobi Hicks of Dallas, Texas: two grandsons, William nosenau Craham of Newport. RI, and John Jay 1·licks of Tuscaloo~, Alabama: one sister, 1>-!arA<1rtt !~osenau Wilson of Athens, Alab,II11il: and sever:!1 nephews and Ollt nitte. - Donald B. Man5e11 Pruldent. Umestone County HilI' I\uoclation

John Forrest Dillon, IV hereas, John Forrest mllon, IV, of W Alexander City, Alabama was a member of lhe Thllapoosa County Bar

Association and the Alabama State Bar at the time of his death on 1>1ay 22, 1998 at the aile of 67, Whereas, John Forrest Dillon, IVwas born November 15, 1930 in A l c~nder City, Alabama, and attended school in 1>-lontgomtry, Alabama; he received a Bllchelor of ScienCf degree from the University of Alabama. In 1953 and attended the University of Alabama School of Lilw where he served as auo. ciate editor of the Alabama UIIIJ l?elJiew Dillon grad\lated from the Uniwrsity or' Alabama School of L.lw in 1954, obt,lin·

ing:!n L.I•. U, Whereas. John Forrest Dillon, IV served in the Army from 1954 to 1957, obtaining the rank of 1st l1eulellant. His military service included a lour of duty in Korell. \I/hereas, John fo'orrest Dillon, IV became II partnct In the firm of Wilbanks, Wilbanlu, & Dillon in 1958. He was the senior partner of Dillon, !{elley & Brown from 1970 until 1992, when he joined the firm of 1>-10rri$. Haynes, Ingram & Hornsby and served as of counsel. Whereas, John Forrest Dillon, IV served il$ a\lomey for the City of Alexander from 1972 unlil 1997. for the AleX.lnder Cily Board of Educlltion from 1972 unlil 1996 and for the Thllllpoosa County Board of Education from 1958 until 1997, He also served as attorney for the Central of Ceorgia Railroad and Norfolk·Southern Railroad practicing throughout Alabam.l, as well as before the Interstate Commerce Commission and the Public Service commi»lon$ in Alabama and Ceorgl:!. Whereas, John FOrrtsl Oil lon, IV served as presidelll of thf ThllapooM County Bar Association from 1970 until 1987, at which time he additionaJJy served as II member of the Alabama State Bar Board of Bar Commissioners. He was a former president of Kiwanis Cl ub and Willow I'olnt Coif and Country Club. as well as a former direc. tor of the Alexander City Chamber of Commerce. I-Ie was also past $enior warden of the Saint );lIne$ Episcopal Church and (ormer member of the Board of Directors of the South1'rust

Billlk of Central Alabama. Whereas, John Forrest Dillon, IV WlU survived by his wift, Robbit G. Dillon; and daughter and son·in·law Breck and Joe Whultr: a stepson, Andy Gothard: and stepdaughter. Iioney Haynes: a brother, William Dillon: a sister, Virginia D, Corman: ~nd five ,ltrandchil. dren, John \\!heeler, Slim Wheeler. Ilarris Ilaynes. Hannah Ilayne5, and Hilmp Haynes. - Tom ~: Young, Jr. l)re5idenl, 1'a llapoo~ County [Jar Assoclalion

J. Connor Owens, Jr. here<ls, Connor Owens. Jr. was born in Roanoke, Alabama on W December 30, 1923 and departed this J.

life whilt residing in Bay folinelte. Alabamll. on March 13. 1998, \\!hereM, prior 10 beginnin" his post· secondary education, Connor volun· teered fo r the Army fo llowing the outbreak of World War II and distinguished himself in the £uropean theater. earn· ing a Purple Heart 1nd Silver Star for gallantry in action, \\!hereM. he attended Clemson University, recei~d his undergrllduale degree In the study of hislory lind English at the University of Georgia In 1941, and IIlIained hi51aw degree from the University of Georgia In 19S{). while abo teaching undergraduate English at that institution. Whereas, following his admission to both the Georgia State [Jar and the AI<lbama State HaT, he set UI) l)ractice in Blly Minette, Alabama in 1952, lind became Involved in the work of the Ilaldwin County Bar Association, seNing as its president from 1912 until 1916. Whereas, Connor was truly devoted 10 his profeSSion and gave himsel( to it , and was recognized as a prominent civil defense lawyer, who served on Ihe BOiHd of Directors of the Alaba ma Defense Lawyers AuoclatiOrl from 1966 until 1969. Whereas. Connor was always wi11ing to lend advice to younger lawyers regarding problems the), were facing in Ihe course of their profession.

Whereas, Connor trod with much succus before judges lind juries throu"hout south Alabama where his presence will be greatly missed. Whereas, Connor WD~ known. not only for his intelligence, but fo r his COmll<lssion, often willin" to take up the cause of a poor Cili1.cn wronged with no expectation of being paid a fee. Whereas, he had the panache and learning to appropriately quote Shakespeare in his briefs to support his positions, as well as rell50ned argument <lnd C<lse citation. Whereas, Connor was instrumental in formIng im[)Orlant instill!lions within his community, having p.lrticip.1led In conceiving the idea for ood organizing the First Nati01'l<'l 1Bank of Bay HineHe, as well as the Bay foUnelle Country Club, Wherells, COllnor was a devoted hus· b.lnd and fa ther. Whereas. Connor was ~n officer in the Pirsl United Methodist Church of Bay fo1inelt e and taught Sunday School there. Whereas, Connor's life and career set a worthy example for his entire profession and is one that will long be remembered by the llaldwin Coonly Bar. Whereas. this brief recitation of a few salienl facts about Connor's life presents a pale ~nd Indistinct ima"e of the well lived and full life of Connor Owens, a life that touched and improved his com· munit)' and the lives of many others. \\!hereas, the members of the Baldwin County HolT Association express our deep rellard and sense of 1055 at the passing of Connor from this honorable p rofe~sion.

lie It resolved that IhiJ resolullon be spread upon lhe minute$ of the Association and that copies be forv.'Drd· ed to his wife. Anne Owenl!, and to his four children, Margatet Simpson. James Connor Owens, 111. Leila Morris, and Elbr.abeth Frost. - David A. Simon I}residenl , Haldwln County [Jar Assoclatlon

Norman West Harris orman West Harris rJ DecAtur, Alabama, one of lhe leading lawyers

or this state, died on May 21,1998. He was born in lJtcatur on June 12, 1907 and lived all of his life in that city. I-lis fa ther, AJ, Ilarris. was a distinguished lawyer. as was his grandfather, C.C. Uarris who, in 1872, moved from Moulton and begiln his law practice in Dccntur. 1115 mother, Edith West Harris, was the d.lughter of Reverend Anson West who was II renowned bishop in the folethod ist Church. l it was pre<:eded in death by his brother. Julian llartis, who. like him, for O\.'er a rolf ctntury .....as a giant of the legal profession In thi5 state. HlIrris I!radullted from high school in Decatur In 1923. In the flltl of thllt year he entered Alabama I'olytechnic Institute (now Auburn Universlt)') and received a B.S. degree in electrical engi. neering in 1921. After graduation he worked for Brooklyn Edison Company in Brooklyn, New York fo r Ilmonths. He quickly realil'.cd lhnt the law had a higher claim on his talents. Allhe suggestion of his father, he entered lhe law school of the University of Virginill in the spring of 1928. In the spring of 193 1 he received a law degret lind entered law practice wilh his father, AJ. Hllrris, and his brother. ' ulian Harris. After their f;lther '$ death in 1935. he and his brother formed a partnership, I'farr is & Harris, a firm lhal.,.,a, univer· sally recogni~ed throughout north Alabama for its integrity and surpassing legal skill, In 1989 IIlIl'ri! & lIarris merged with Caddell & Shanks and became Ilarris, Caddell & Shanks, r.C, l ie continued as a member of that firm unti l hl5 retirement on October I. 1992. Harris was skilled not only as a practicing lawyer. he was distinguished a5 \\'ell in public service. He served in the legislature of Alabama for 12 years. one term in the Senate and two terms in the ,·Iouse of Representatives. lie was a lifelong member or the First United foI ethodist Church where he l\Old 5crvcd on the board of ste....'ards, inclJdlng Sl'V· trOll yt<lTS as its chairman. Governor Dixon appointed him as a special justice of tht Supreme Court or Ala~ma to sit with the silt acti\lt justices in the case of Fll't!lwood Rice ~'$. T/1$cal()Q$o COIIIIIII ~rpTO

.. ntR ,Quo 1:111,

because the six were tied and il WIIS 10 break the lie. In the trial of a lawsuit Norman Harris WII$ a fierce advocate and a fcared advcySllry. He neither asked nor gave quarter in pursuing or protecting his clients' interests. In every ma1\er Harris W1lS 1Ilw<lYs the perfect gentle路 man. He displayed in every way the highest ilnd most noble ~ tanda rds of ethical conduct. His rate of ~ uccess in litigation was remllrkJIblc. His life llnd ~clVice m<lde a lasting impression for good upon lhe administration of justice in lhi~ $late. He has left for all of us who claim the nllme of "Iawytr" a perfect example of noble and devoted selVice to the . "Jealous Mistress," - John A. Cadell Oecatur, Alabama nece~5"ry

Charles Reeder 11 Thereas, Charles Reeder, a long.

WW standing member of the Mobile 13.~r Association. died on F'ebruary 6, 1998, after a courage<>us battle to recover from II debilitating Stroke. Chn.rlcs Wl!.S II rmn of many talent!, a restleM Intellect. learned of the law, a gifted teacher, ardenl supporter of many cultural and civic causes, skilled photographer and poet, and perhaps above all, a peroon tnrly loved ~nd 2112

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'UOD

TIl. Alu/xmNli.llwvrr

admired by many hundreds of men and women, boys and girls, whose lives he had touched and enriched, I{eared in Monig(l111ery, with an early ca reer in journali5m, Char1e~ served in the U.S. Army Air Corp~ ~~ a meteorologist during World War II. He subsequently graduated from J Or\e~ Law School and obtained his license to practice law, A resident of Hobile since 1965, he regularly participated in the activities of this association and of the state bar, including Cl.E, until his death, even though he chose not to engage actively in the practice of law. The princip.ll interest of Ch~rles w~s as an educatQr. A renowned mathematicilm. hI': cho~c privl\tc tutorir,g M his ~pecial fortc. Over many years he literally tutored two. and sometimes three. generatioru of hundreds of Mobile families through the intricacies of algebra. geometry. trigonometry nnd calculus at both high school and college levels, and became the admired. respected and loved friend of children ,md parents alike. For many yean Charle~ also ~clVcd Spring Hill College as an eKpert f\rndraiser and student recruiter. A Ufelong EpiscopaH;m, he was an active member of 51. John's Episcoplil Church while in Mobile. He is sUlVived by many nieces. nephews, grandnieces and grandnephews and numerous other devoted relatives who live in Hoblle. Montgomery and other cities. Now, therefore, be it resolved by the Mobile Bar Association, in m~eting assembled this dil}', thill the members mourn lh~ death of Cha rles needer, whose exemplary life of service to others has been an inspiration to all who knew him; and whose diverse talen ts and wnrm friendship and understanding have enriched the lives of all the members of this Association who have been privileged lo know him, a$ well as the lives of many of lheir children and grandchildren; arId whose c;r.reer hOl$ done honor to his chosen profession. - StOWI f>lcFadden President, fl-lobl1e Bar Association

Charles Albert Lesesne Johnstone. Jr. hereas, Charles 1\ lbert Lesesne W Johnstone. Jr" a distinguished lind highly respected member of Ihe Mobile Bilr Associiltion, departed this life on March 3. 1998. at the age of 7 ycllT~;

aod Whereas, the Mobile i3<lr Association desires 10 hOnor hi~ nlln1c and recognize hl$ many contributions to the legal profession. City of Mobile and State of Alabama; Now. therefore. be it remembered that Charles Alhcrt Lesesne Johnstone, Jr. was born on Decemb~r 3, 1910, in f>lobilc, the son of Charles Albert Lesesne Johnstone and Vi rginia Inge Johnstone, Ch(ITlie Johmtonc grew up on Government Street 01 few blocks west of Brood Street. He grad'Jatcd from Murphy I-Jigh School ill 1927, <Ind wenl on to the University of Alabama receiv路 ing his A.B. degree in 19321111d ~chieved membership in I'hi Beta Kappa. In 1934, he earned his L.I..U. degree from the school (llaw. In 1937, Charlie Johnstone left his individual law practice to join the firm of Steven$, f>lcCorvey. McLeod. Goode & furner. That same year, Hr. Tom St~ven$ tefl the firl'r'1 to become vice-president and general counsel of the Waterman Steamship Company,

and Cha rlie WIIS fond of sayi ng he took Hr. Steven's place. The yea r 1940 wa$ not a good one on the world scene, but it marked II hiAh point in Charlie Johnstone's life because on October 12th of lhat year, hI,': married the love· Iy lind gracious Olivi:l ~l ay to n of ~1 0bi le . who survives him. I)uring World War II, Charlie Johnstone enlered the United States Army and served a captllin in Ihe legal division of the o(flce of the Chief of Engineeu from 1942 to 1945 in Washington. [).C. and was discharged with tht rank of major. He then retutncd 10 hi5 IHW fi rm and went on to serve for mnny ycar~ as senior partner of that firm . now Johnstone, Ad.lms. Bailey. Gordon & lIarri$, L.I•. C. Charlie Johnstone WM a learned prac· tltioner of the law. When a )'(lun" lawyer Joined his firm, the young lawyer was told by contemporaries not to worry if he or she cO\lld not find the allswt:!r when a.uigned a legal research project by f-1r, Johnstone. If he ever asked fo r research, one could be assurtd that there was not an anSWfT because he would have known it. He also Md a good Arasp of the practi. calities of law pract,ce, cou nseling young lawyers thM if Itlook!llike the Judge is leaning your way, g~ t out of the court· room as fast as)lOU can. In a major lawsuit in the circuit courts of onecuh and f-lonroe countiu. he Wi\$ successfu l in Quieting Litle to SOnle 40.000 mineral acres. The bill in equity In that case v.'.u tried before the Honorable Robert f'~ L. Key in Evergreen. At the conclusion of Ihe tdill which lasted a number of days. Judge Key stated from the bench. "Mr. Johnstone, that is the V.'3Y a bill in tquity ~hou ld be presenl· ed to the court; we should wrap it up and send it to the law school," Aconsiderable pert ion of Charlie Johnstone's practice related to probate mattus, lind eMly in his legal carur. Charlie. nalph Holberg, Jr, and lillolher conlell'll)()Ta.ry spent two or three evenings a week {or a period of one to two years assisting the chief clerk. Miss Edith Vaugha!\. In c!rllfting court orders which were lLsed bylhe court fo r a

number of years. r-1iss Edilh carefully reviev.'ed plellding~ and proposed court orden filed by lawyers In the court with a fine ·tooth comb and would frequently und such pleadings and proposed orders back to members of the bar Il'Illrked In red ink with instructions for redrafting. Hut f-l iss Ecith stated that she never had to send il pleading or pro· poud court order back to Charlie Johnstone becausi: whati:ver he dr"fted was always in perfect form. Charlie Johnstone was Vfry organized and used his time at work to the full est; he was not given to taking coffee breaks. I [OWL'VCr. it was rare indeed that he did not lea\lt! the office at II :30 a.m. sharp on Wednesdays for his ,olf game-rain or shine. If it WOi$ raining as he left the offi ce. he would tell the receptionist it never rains on the golf course. Charlie Johnstone served as presi. dent of th is association in 1956 and was a member of the Alabama State !laTand American Bar Allsociat1on and the f'arrilh Law Society, He si:rved as a di rector of the Mercha'lts National Bank of f-10bile and was active in many of the city's business. (ivic and culturalorganlzlliions. Charlie Johnstone was admitted to practice before the Alat;,;uT\a and United States supreme courts. the U.S. Tax Court, the U.S. Court of Claims, the U.S. courts of allpeals for Ihe Fifth and Eleventh ci rcuits and the United States I)istrict courts of the Southern and Northem divisions of Alabama and the Eastem Dist ricl of Tex/u. Charlie Johnstone and his long' lime friend and partner, Bob Adams......ere honored by their firm v.ith the eslab· lishme!\t of the Johnstone Adams Scholau hip at the University of Alabama School of i..:Iw and the dedica· tion of the room at the Ah.!>ama State Har housing the staff of The Alabama IAwger as the Johnslont Adams Room. In ev~ry respect. Charlie Johnstone was a laW}'er's lawyer and a gelltlem:Itl's gentleman. In addition \0 ~l u Johnstone. he is 5~l rvived by his daugh. ter. Virginia Inse Johnstone Smith; son· in-law, Frederic Lee Smith: and grand-

SOilS. Frederic Lee Smith, Jr. and Charlel Lesesne Johnstone Smith. - Stova ~': folcFaddcn President. fotoblle [Jar Auociation

William Michael Clarke hereas, the Hobile Bar .o\.uoclatlon W to honors the memory William Michael Clarke, a practicing attorney in 0(

Mobile for more than 47 years. from 1950 until his death on JanullT)' 15, 1998. Now, therefo re. be it remembered that William f-litha el 'SilIy' Clarke was born in f-Iobilc. Alabllma on JanuaT)' 19, 1923. He attended Catholic 5chool5 In Mobile. Incl udi ng SI. I)atric ~ '$ School in " the Crove~ and McG ill Institute, then located at the north .....est comer of Government and Joachim streets. The excellent fa culty at f-lcGilI was comprised of members of the order of Brothers of the Sacred Heart. Billy Clarke grew up In "the Grove~ and attended S1. Patrick's Church there. "The Grove" is the area of the City of f<lobile near Belluregard and SI. J<»eph streets (now part of the HenrI Aaron Loop), Throughout hIs life mlly Clarke spoke highly of the area and all of the people and friends who liVt:d ~nd grew up there, including the Il ~ rend Oscar H. Upscomb. now Archbishop of f-Iobile. After graduat ing from McGill Institute, Billy Cluke ~rved in the United States ~1ar ine Corps during World War 11, from 1942 until 1946, based In the Panama Canal i'.one, After serving his country. he entered the University of Alubarn•• where he received his undergradulllt dc"ree, He was admitted 10 law school al the University of Alabama and recei..'td his law degree lhere in 1950. He began the practice of law under the tutelage and in Ihe office of Grah/lm A. Sullivan , one of Mobile', most beloved Mtorne)'5. Their offices wert In the Van Antwerp Building on the corner of [loyal and Dauphin streets. Durinllthi s time Billy Clarke also was employed part-time at Brookley Air Force Base, thf largest employer of the City of Hobile at that tllm , lie lived in the area of "Bird ville" lI<pn .. ltR "liB

7Ql

(the home in Oirdville having been buil l as a "Defense I-lousing Project" fo r employees and strvice peopl e at Brookley Air Force Base). Whil e he worked on Brookley. Billy Clarke "discovered" 11 relatively new fie ld of hl ...... thllt Is. Chapter 13 of the Bankruplcy Act. Many emp oyees at Brookley, because they were nol able 10 pay their debts and were about to lose thei r jobs, came to Billy Clarke to get relief. L1illy Clarke found a way for his clients to pay their just debts with dignity, without fear o fharra~smenl, I.. te night phone calls. 5ults. garn ishments. al,d lou of their Jobs. As a result, Billy Clarke established a highly successful practice ill hl1ndling Chapter 13 petitions In bankruptcy. He bec,lme recognized as the ~ f8ther" of the Chapter 13 practice In 1'>10blle, and he held that reputation until he died. While he practiced with the Honorable Craham A. Sullivan. Billy was almost another member of 1'>1r. Sullivan's family. Graham Sull ivan'$ son. JanH!5 Sullivan. recalls fondl y that when he CKI)ressed a desire to part icipate In sporting events and fishing. "Mr. Clarke took me to my first college football game atl..add

Gary Lynn Aldridge Birmilltlham Mmitted: 1978 DIe(I: July 12. 19.98 John ~: Oillon. IV Alexander City Admitted: 1953 DlI!d: May 22, 1998 Woodford Wyndham Oinning Demopolis .4dmitled: 194/ Died: May /. 1998

Stadium at the request of my father. and on many occasions took me crabbing on the Causeway when crabs were pl entiful." I'urthermore, James Sullivan remembers Billy Clarke as 'oeing "fierce ly loyal to his (riends and quite inn uential in judicial appoinlmen15." During the late 1950s Billy Clarke became very active in :state politics. He was one of the strongest supporters of the !lonorable John Patterson when Patterson ran against, and defeated. the Iionorable George Wal lace for Govt!rnor. Billy had been a classmate of his friend. John Patterson. at Jaw sthool. Billy Clarke later entered into a law partnership with Mobile attorneys Tom Haas and Douglas Stanard. as Clarkt. lIilas & Stilnard. until his partner. Douglas Stanard. was appointed to a circuit judgeship of Mobile County. His longtime friend, Tom Haas. described Billy Clarke as a person with a "great sense of humtlr ... He hild a keen interest in 'The Grove' ilnd in 1'>10bile County Courthouse activities. He was able 10 tell man)' wonderful, colorful and oftentimes humorOIlS lales about the members of the local bar, most of whom haw: now pa»ed away. But Billy Robert W. Gwin Birmillgham Admillt'd: 1939 Died: JIllIe 8, 1998 Norman We~t Harris [)eca/llr Admitll·d: 1930 Died: May 27, 1998 Walter Bruce Henley Northport Admillro: 1952 Died: ApI'l/25. 1998 Jasper Newlon Powell . Jr. flur/${!lIe Admitted: 1961 Dif...d: JlIIle 6. 1998

Clarke perse\"ered and .....orked right until the end." Billy was particulllrly fond of telling stories .. bou t outstllnding attorneys who practiced In Mobile. Including the Iionorable Sam Johnslon. Sr. (grandfalher of t>1obile Circuit Judge Joseph E. " Rus ty~ Johnston), the I-Ionorable Harry Seale, Imd the Honorable Tisdale J. Touarl, longtime judge of Ihe Inferior and Ceneral Se$lion5 CO!)rt of r.lobile County. Not only .....as lJilly Clar.(e a great storyteller, he in fact started a public.,lion (or the Mobile Har Auodatlon. telling fa scinating storie$ about lhe various m ember~ of the Mobile Ihr. lie was a true. loyal frim d whose legllcy with the Mobile Bar should not be forgotten. William Michael Clarke Is survived by his children, Michelle Wells, Mobile: Charles E. Clarke, Irvington; Avril McRae. Mobile: William Michael Chlrke. Jr.. Pensacolil, Florida; Fran Dounouk, Hartford. Connecticut: and Cathy Jones. I'>lobile; 19 grandchild ren, and two gre<lt-grarldch!ldren. - Siova I~ NcFadden President , Nobile Bar i\sM)Ciatlon

Thomu E Sw«ney Nobita Admitted: 1945 mili/: JII110 8. 199B Douglas Stanley 1'a~ l or Monlyomerv Admitted: 1988 Dil.!d: May 20. 1998 Robert 1-1 . Woodrow. Jr. IJirmingham Admitted: 1948 Died: June 7, 1998

CIVIL ACfIONS AT LAW, THIRD EDITION by Crover S. McLeod

Manchester PrefS Is pleased 10 announce that Grover S. Mcleod has written a third edition of hi, best·setting lawboo~, Clyl! M lionl at Law 10 Alnb.lmn. In many ways, this book is monumental, as II 11872 pages in length and consisls of 75 chapter topics, which are the heart of Alabama practice. Owpler I • Acllont alllw ""'pier 38· Unlntllrcd Motorht Chotplfr 39 • ACtiont A,.lm' FIducLl!iH eNp'e. ~ . Ne.nSfnce CI'Yp'fI' 40 • D.nlen IC~I Chapte' 3 · Wlinionnutl Owple. <I . Nel",enl (nlnllimeni OYplfl' 41 · Rishtlo WOO: Ouplcr 4"2 - truch of Contr~t Ch.apler.5 - P,lvllle Nu .... nce Quple. 6 · TI"flfloIH Ch.Ipttr 4) . Implltd Conlr;r,c:1J awptfr 44 · AI-WIll [mp!oymenl Conlr;lCb Chapter 7 . "',.lull lind h"ery awpll'l' 45 • ACcounl Chipler 8 · DlIml,' 10 Trett or Pl.nU Chopter 46 · Interference Wllh Conlr;r,c:1J Ch~II'r.r 9 - hke Impr/""'menl Ch.Iptfr <I , • SI~nder "I Tille Ch.ip'er 10 · Wiler RI,hIS "Iweell Upper. lOWi'r Ch.iptfl' 48 · Felonlet: and AdJ.ceni Ownen Ch.1plfl'.9 · Inlerlf~nce Wllh Dt~d Ikldltt ClYpler I 1 - Trover ~nd Conversion Chapter 12 · Detinue Clwpler SO · ACIIonI br lhe Allorney for HI, Fee o.;.pler.5l· AelkHK by Cllenll AI~lnll A"",,",y, al law Chapler 13 · Ejeclmenl Challter I • • f/)l'clblll Entry and Unlawful Del~lner OMlller 52 · ACIIoot AI~lml lite SIAle Chapl~. 13 • Mallc!ou, Pl'1)JI!(ullon Ch.1pttr 53 - Actloot Alillml COIIn ll1!l Chajller 16 • ACllonllhie Fr~lId Chapler 54. AcII"M Alalm' Munlclp~1 COfJKIl'illlom ChalJle. 17 · 100ni TorlfeliiOrs ClIapler 55 · Medlnl Ma lpr~cl lce Chloptar 56 · Actions AllIlntt HlKpUlIl, lor Pe_l lnJury Ch.jlte' I ~' h lerwled M.nul~Clure" 1 Ual)lUlr OtICI,Inc "I At.bam~ Ch;ipler 51 · Tho: Expert MI:tlIc.1 Wll ntM ctwpler S8 · 8l1d F.llh Chapl er " . Producu Chapter 20 _ Collaler.1 Sourt e Rule .. 10 ,roduclJ OMp'er S9 - TtIrt of Oulrile Ch.ijllfr 21 · ACliooJ .s.lnllllndlordl by Terlolnli OI.pler 60· wron,ful OltmlQ.1l of I Civil Servllnl 101' Inlllrlet: or D.mll," Ch.ipler 6 I • AlluM! '" ProeHl Oupler 22 . AC lton. A,alntl hndownc" (h.>pto' 6"2 · Wronlful ClImhllmenl Ch.Ipler 63 • Iru.c;h of hp,m or Implied WlIrrmllft Oullier 2J · ACliont Wronllul DUlh Ch.iplfl' 64 • The Rel~11onttIlp of IMurlnca I" lhe CIvil ~tlon eNplf' 24 · Actiom by I 'lIn!nl '01' Inlury Of Chilpler 6.5 • The I!wd¥ertenl [ndl", of the ACIIon Dellih I" lin Inf.nl Owpler 25 · Torti Wllhln and of the hmlly Owpler" · Ac:liom ",.IMI AdmlnhlrltOR 01' ExeculOR of EJt.llft OuPler 26 - AClionJ Thill Arlie out of, or 011'(1 OllIple' 67· Interference wlth.n Upeclincy b ctptlons 10, lhe Woo:men 'l ~If' 68 • Punitive Dim'Stt Compenwlion Acl Ch..ple, 69 · ACIIcJnoJ ftll' 'rnch of Cov_nl of Quiet £nloyment Owpler 10 · ACtiom .....11111 Cener.j ConttM;lort Owpler 27 · Prlf\C~t lind .... ent CNpler 28· CornpI..cy CMpler 11 - ACtiom AplMI t\ccountllntl Oupler 12 · Se.wl H~t.mmenl ln the Wortc l'IM:e (tupler 2'J - Reslrollnu Al<1lnll Trollie CNpler ]0 - Llbel.nd Sl.ndtr Chapler 13 · Ret~lblOl'l' DlK:lwl'Je ClMpler 14 . Afbltrillon eNpter 31 - Alcohol .nd the CIvil Action OYpter 15 · Acliom ApIM' fellow [mploy_ InvoMnl Safely Chilpler n . Rllhl 10 PrlvlCY woo: Rula ,nd Sllely Devlctt OI'pler 33· Implied W~I'T.nly In IhIIl hie '" II New HtlUJe Ch.pter 34 · hllul'(l 10 ,rovlde SeNlce by I Public Ulility Ch.pt~. 35· Truth.ln·Lendlnl OIapler 36 · Ul ury .1Id Rel.l~ COniumer Cm!illnd dt:nH Chapler 31 · Actions ""ilm! InlUrllne!! C."lers flM' hllure 10 Sellie Oalml

'til'

To place your o rd er, p le31e malt th is form 10: Manchester Press, P.O. 80x 550102, Birmingham, Al35205, o r ca ll 21)5·933-1800. (E-mail: msm120BCaol.com; Wtb: www.worldreachlnc.com/manche5terpresl). Please send me __ cop y( ies) of Cjyil Actionl at

Law in Alabama.

Jrd ed .. by Grover S. Mc leod.

) I hav\! tndos4!d my c heck in the amounl of $108.00 ($95 .00 pius 8'1. tax p lut $hlpping/handllng charges) per book. ) Please charge $108.00 to my Visa/MC account per book. My accounl number is: Exp. Dlltt:_ _ _ _ _ _ __ Signature:

Name:'________ _ _ __ _ ____

Rnm:'_______________________________________________

Address:_ _ _ _ _ _ _ _ _ _ ___

City,State, Zip:_________________________

BUILDING ALABAMA'S COURTHOUSES By Samuel A. numore, Jr.

offorson County

he Family Court of Jefferson County is one or the fr:w specialized courtT houses in the state of Alabama. also It

Jeffer.on county

The (ollowillg continues a history o( Alabama s cO/mty courthousestheir origins and some of the people who contribulCd to their growth. If you have (111.11 photographs o( early or present courthouses, please (or. ward them to: Samuel A. Rumore, Jr.. Miglionico & Rumore. J230 Brown Marx '{'ower, Birmingham, Alabama 35203, ,..."

onPT~"'nnR

,nUD

hilS a new facility. At its recent dedication and ribbon-cullins ceremony held on May 26, 1998, Judge Sandra Storm. pre$idinll fnll'lily court judge, declnred that the facility wa~ a "courthouse for kids." She also stated that good planning went into the coutthouse design together with many innovations. Because of this forethought, the courthouse works well. [t is no surprise that the experiences of mllny people over many years went into the planning of the family courl facility. In 1896, Judge N. B. ~'eagin. a Birmingh.1m police CO\lrt judl:!c. belto'n the fi r5t dfort.~ in Birmingh.l m to treat ju\ICniles differently from IIdult~. lie beglln l)<Itoling )/OUllg offende~ to the Blrmingham Hoys Club. By 1911 the legisIl.Itute hlld passed flllllct ....'hich set up II separate juvenile cotJrt in Jefferson County, The first session was held tolay I. 1911 lind Judge Samuel t-lurphy was appointed by Covernor emmett O'Neal as the first juvenile court judge of Jefferson County. Judge Murphy presided OV(!r the court for the n~'Xt 28 ye.1T$ until his death Oil October 2, 1939. The first court se~ions Wl!rc held in a downtown building on 3rd Awllue North between 20th lind 2ht streets, near the downtown courthouse. The court then rented and later purchased the Debardeleben home located at 206 15lh Street South, Courl ....-as held here from 1913 to 1916. From 1916to 1918, the Old Sanitorium located OIl 1st Avenue and 22nd Str~et South housed Ihe cOurt. Th ~n from 1918 to 1926, the City of Birmingham allowed the court to use the Soulhside jail for its ptoceedings. Judge Murphy and the Jefferson County

Conlmission r~COllni1.td the n~(.'<l for perm.'n~nt location for tht family court a!ld mllde the decision to purchase the old Eubank prol)Crty in the EIVIon section of Birmingham for this purpose. EI),\on had been the former COunly seal town of Jefferson County (rom 1821 to 18T3. The new family court was built within two blocks or the 10001tion whe~e the I::lyton Courthouse had once stoo:l. In 1927, the juvenile CO\lrthOUse and detention home, costing $125.000, wa.~ completed at 120 2nd Court North. This building was con~tructcd in tht Ceorgiall nevival style and was considered one of the best facilities of ils kind In the South. TIle structure was later dedicllled M the Samuel O. Murphy Memolial [Juilding. Following Judge t-1urphy's death. fami ly court ....'as presided over by judges Walter Emmett Perl')'. Sr., William L. l'logue and Thlbot Ellis. Under Judge Ellis, work was begun on remodeling the main building and constl"Jcting a SCpol' nlte dc t ~nti()n f~cili ty ~nd shelter cOltage. Judge 1~1ti~ died suddenly in May 1965 nlld he WIIS succeeded by Judge G. Ro,u Bell on June II. 1965. Judge Hell carried on tile efforts of e~pa ll sion and renovation at fnmily courl. A new $700,000 detention home on site was completed in December of 1966. In May 1967 the m~ln court building was renovated. ~:va n t-t Terl')' served as architect for thIs project and J. P. l'lolley Con5\rudion Company, Inc. was contractor.

f~rsl JU~\f/lrli

Coortlm/ldI' I(1 OIl SQ/.lt1isid.J,

tlJil fNlxmkl.-b4.~1 IIf)rllf

Also in 1967. !In act appl'O\led by the legislature required the family court judge to be elected rather Ih.'n ilppolnted. The act elevated the position to that of 1I cirC\lit j(ld,lle. )lJdge Bell was elected ruI the first presiding circuit judge of the ~'amily COlirt of Jefferson County. ~n years later, \....'0 nl'W district judgeships were cre.,ted. William C. Fowler became a district judge in the Birmingham division 1I1\dlWlllh D. Cook became 1I district jud,lle in the Ikssemer division. In 1978, after 18 months of planning and construction. another change was made to the family court physical plant. New offices for juvenile intake ,md two juvenile coortroonu. p~ided over by trial referl'tS. wtre completed. The new facilities were needed because in January 1977. Ihe jurisdictioo of all jUYenile courts in the .rule (/ AlabamJ ....'as raised to a,ge 17. In Janllary 1978. tht jurisdiction was expanded to age 18. Ovtr the neltt few )'~ar$. the appointment of new judges highlighted ch:lngu at family court. On JUlie 20. 1980, Judge Sandra Ross became the district judge in the Birmingham divi· SI(llru~1JI alid rllrlum, Ila.lIl/j OI<lrl (1/ sion. On ) une 23, .Mkl'SOlt COI.mlll 1981 , Judge Vincent Schilleci beCIIIll(: th~ district judge in the Be5$emer division. And on April 30. 1982. Judge Bell retired as circuit judge and ....'3.S replaced by Judge Charles ,,1. Nice, Tht most rtcent judicial perwnnel changes IC)()k place in November 1988

when Judge Sandra Hou (now Storm) was elected presiding circuit judge and Judge Elise Barclay was electtd dbtricI judge in the Birmingham division. The next major Improvement ill family court .....as thc construction of an SO·bed detention facility coml>lctedln 1990. This building .....as dedicated as the C, Ross Bell Youth Detention Center. The Mchitect .....as Harmon Collier i\s$otiates, Inc. lind the gemral contractor was Mirct Construction Corporation. PIaI)I,!ng for the present family court fllCilily began In the early 19901. Court employees tr'llvcled around the country to study sucCts.Sful inoovations in other jurisdictions.. Construction began in 1995. More than $13,000.000 was spent in rtn0V3tions. txpansiOn and landscaping. The interior of the building blends marble. brick and custom woodwork. Atwo-story atrium with il magnificent staircase is the ~enlra l feillurc of the renovated stmcture. The bllildil1g is fully handicapped acctSliblt. It cont.lins II children's play area with a TV and VCR as well as a food court highlighll.'<I by skylights. There are a dozen glassed-in conference roon'\S, six courtrOOf'rlS <lnd a huge reception area, The project was designed by Ciattinll Fisher Aycock Architects. Inc. Supervising architect was Jamie Aycotk. Bi!! Harbert Const ruction Company served as general contractor. The new leUerson County Family Court (acility should serve the citizens. and especially Ihe children. of Je((euon County well ir'l to the 21st Century, • ' .m",. 1 A. RumON, Jr,

s.nurI,.. ""-.,If •• ~d'" ~d NOW 0.....,., ... ~d~ Sc:hactd I.W Ht W'4CI .. 1oundwIg ChMpet. . , d ... 51..- en ~ L4JW s.e.cn IIiO II WlIlIJOo _ ., 8o"'1Qt.." ........ 111m d MIgIrar_ & It.mn

~_."'''''''''''_'''IOf''''I011 n.

CIeUl. pke ..... bo-.... 11 .,......d ~

Ib)«EdIINI BDInI

OPINIONS OF' THE GENERAL COUNSEL IJy J.

~llllhQIlY

MeLfI/n, gllllerul COlIllSc/

Question; "By this letter, Qur Orm requests a writ· ten opinion (rom the Alabmn.l Slale r~lr through its gerleml e(lur\Stl concerning the (ollowing question of conflict of inter-

dent!;!1 information will be mi~u~ed, and your representation of the sub· sidialj' Is not limited by your litigation involving the parent.

Discussion:

est in the context of corporation represenmtion under UIC(011 owing filet!:

Corporate RepresentationParent SubsidiariesConflict of Interest

"Maya lawyer represent a whollyowned subSidiary of II publicly traded parent company and then inslitute separate litigation against the parent com· ""flY? ~'or purposes of this question , the paTcnt company and the wholly owned sub$idi~ry ~re 5cparale corpOrate enti· ties. Further, what other filch or CiT-

cumstancn. if found to exi~ t. would crellte II cQr"ImCl of irllereS\ Msuming

that the separate corporate idenli t ie~ of these two corporate entities would nor· mally, in and of itself, eliminllte n COIl· met of interest under the general rule provided in Hule 1.7 of the Alabama Rules of I'rofessionll Conduct? "Our firm would lpprecillte your writ· ten opinion in this regard and is await· ing that written opinion before making its decision to undertake representation of a pro~peclive (litrl! in ~n action against the p:.rent or holding company referred to above which is a 5ep;!rate corporate enUty from the firm '~ existing corporate client ...."

Answer: You may represent a wholly·owned o( 11 publicly traded corpora· tion while. at the same time, instituting litigation all<linst tht parent company if the subsidiary and parent are separate corporate entities. You may represe!)l both entities in unrelated litigation If both entities have Sel)arate corporate identities, there is no risk that confi· ~ubsidillry

J. Anthon, Mel.ln

8, '.• .,%"111,","! ,:.

T7lflAAll>umu IAm·V"

Hule 1.13 of the Alabama !tules of Professional Conduct recognizes thai an organizl;Ition client is a legal entity ~l1d thus, the entity is the client as opposed to its oflicers. directors. employees. sha reho lder~, or other constituents. Consequently. the parent COrporOltlOn, evell when it OWllS tOO perCent Of the stock of the subsidiary, is ~li[[ a share· holder and constituent cI the sub· sidiary. See California St~te Bar Ethics Opinion 1989· 113 (7/6/91)). The Disciplinary Commission of the AI,~ bama State Bar reached a similar conclusion in I{O·90·96 (incorporated and made a p~rty of this opinion) when It held that a law firm may represent a plaintiff in a suit ag<1inSI an insu rance company that is a sub~idiary of a Inrse corporation. even though the fi rm rep· resented other subsidillTie~ of the cor· poration in unrelnted litigation, if each subsidiary has its own corporate identi· ty and there is no risk thai the firm will misuse confidential information. From a practical standpoint. the enti· ty theory has more validity when applied to large publicly held corporations. Pro(eswr Wolfram addressed this point in his Hornbook on Modem u!gal Ethics. as foll ows: "The position of tht Code II1ld the Model Rul es. thai the lawyer represents only the corporate entity, makes sense primarily in the setting of large, publicly held co r por~tion 5. As corpl)Yate stock ownership is concentrated in

(ewer and (ewer hands, the distinction between corporate entity lind shareholders begins to blur, In the ca~e o( II sole-owner corporation, they may merge, Often n lawyer for such a partnership corporation will provide personal legal 5ervices (or corporate principals interchangeably with services to the corporate ent ity, In recognition o( that common reality, one court has held that (or conflict of interest purposes, a smal1 lind closely held corporation and its shareholders are to be treilted 115 virtu· ally Id('ntical and inseparable," Wolfram, Moderll l.(!go! t.'thics, West Publishing (1986) p. 422, ciling III re Brownsteill. 602 1'.2d 655, 656·657,

Thus, a lawyer IlUY re l)r~5tnt II client in ,m action against:! corporation that i~ a wholly-owned subsidiary of an existing corporate client 50 long as the parent cor· poration is not the ~Iter ego of the subsidiary. Set: also Haryland State Bar Ethics Opinion 87·19. [RO·92·201 •

For an Expert Business Appraisal, Knowledge and Experience Make the Difference ... il.u5R II Financ ia l COIuu h lng, Inc. 15 an lndep.:ndent ccrtlt'icd pro(culonallirm lipeclllU:lng In bo$l· ness ~ PI\mis.~Is. Deirdre il.und l. o wner, h:u the eHperleflee and rtc:ogni;w indumy crcdcllIlflls

thnt provide the hlljhest qu~ lity, expc:rt vnlu:uions (or bus i ncs.~s nnd profC5lJlonfll prflCt1cd. Her um li· [Ilion with the A1l1ericlln Bu~lL\ess Apprr,I:ltN Net· work, II mllional coolition of Indcpo:ndent buslncss npprai$eN, expiu"Kh he r rellources 10 offer a WIde mnJlC 0( bUSlI"IC:i$ (ll'pml~~l 5Crvkes,

VALUATION SF.IWlCE USESI • LITIGAnON SUPIURT SERV1W

• £STATE I't...ANNING • MERGERS AND ACQUISITIONS

1)drdl"l' (DH) Y. Ru~.e ll , CFA, JD

• EMf'LOYEE STOCKOWNERSHIP PLANS • INVESTMENT ANDFINANCING DECISIONS

RUSSELL FINANCIAL CONSULTING, INC. I'o5r Orna. Box 24 1672 . MoNmoMI:IIY. Al.JIaAMA 3612.4-1672.

TtUn1C)Nt l14'6 13'(,o44 '

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3l4·6IHi(l2.9

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The Stand, Experience Counts... Sm iley-Smitb & Brigbt bns tbe Experience yolt en" CQunt Oll. ExperIenced In:

• Forc:nsic Accouming • Expert Witness Tc:.stimony • Litig.1tion SuppOrt Services Served As Expelt Witness In: • Quantification of Economic

Capaci ty Loss • Analyses of Fraud Claims in Consum er Fina nci ng Transaelions

• Damag~ Quantific::nions in Auromorivc: Dc:al~rship Disput~s • Fraud Auditing and Analysis in BusinC:S5 Tr:lt1sactions • An .. lysa of Da mages in Brc:ach of Co ntract/Fraud Claims • Analyses of Claims Rc:: Lost Profits/ Lost Busilll!$.S O pportunity

Smiley'-Smjth &' Bri ht

D~ pY ~ "' D~ n

' 000 I ~oo

LEGISLATIVE WRAP-Up By nobert 1... McCurley, Jr.

Bu.ln ... Entitle. In the IM\ fOUTyears lhe nUlllDcr of business entities avail· able throughout the United States has greatl}' expanded and vir·

tually 1111 of the existing entities have been revised. The model actJ were drafte~ by the Business Section of the American Ilar Association and the uniform acts are proposed by the Commission on Uniform State I..ilws. In each case, committees of the Alabama Law Institute reviewed these drafts. After several years' study in each case the Institute committees mildc <:hangcs to confl)rm Ihe new laws with

exi~tin.l!

Alabama law.

Alabama has kept pace with the rest of the nation and in some ca~es been Qut fron t In providing II range of business entities available for use by lawyers as they assist clients.

The Business Corporation Act was revised lind became effec· tive in Alabama January 1995. Alabama approved a new gener· al partnership law that became effective in 1997 as well as II limited liability partnership law that was effeclive the same year. The Limited I'artnership Act was revised and it will become effective October 1. 1998. In 1994. AJilblmil created the ~uthority for limited liability companies in Alabama and it was revised to meet confornlity with other statts. The ~mended LLC law became effective in Janullry 1998. AI$(1 revised in AI<lb<!ma W<lS the Profes~lon<l1 Corpor"tion law in 1984 when atlhe same time il abolished lulY further (('Inning of l)rofHsionalll$rocilllions. The AI<lbama Nonprofit Business law ,,",'<IS revised in 1985 and a new Unincorporated Nonprofit Act became available in 1996. With eight choices of business entities now available in Alabama, the Institute is looking into areas each has in com· mon with the others, We hope ~ lawyer will nol be C~llght in a trap of havlnJl tQdistingllish not on ly between the different benefits each entity offers bul needing to know how each differs in technical procedures. Since November of 1997 a committee of the Institute chaired by Jllmn PruClt, a Cadsdcrlattorney, with thc committec'! chief reporter, 110ward Walthall. professor of law at Cumberland, has been reviewing areas of law that are in com· mon to determine uniformity among the various acts, Also,

members of this committee <lre: Profes$or JlInleS BryCt, Universily of Alab<lma School or Law Larry n. Childs. I1lrmingham James R. Clifton, Ar\dalusia C. Fred Dlmiels, Birmi ngham Robert Denniston, Mobile Peck F'O!(, t-lontgomery James E Hughey, Jr.. Birmingham Creg Leatherbury, Jr.. ~'oley Mark Maloney, Decatur Tommy Mancuso. t-10nlgomcry Ceorge Milynard, I)irminghllfn r..B. Peebles, Mobile J"mes Pruett, Cadsden DOll Siegal, Birmingham Henry Simpson, Birmingham Bradley Sklar, Birmingham Robert Walthall , I3irmingham Areas that have been identified are: (1) Mergers and conversions-Robert Walthall o(Bradley, Arant, Hose & White has led the review of this 5ection; (2} Definitions-Professor Howard Walthall is comparing the definitions in all the $tatute~; (3) Pormations and filing requiremcnts-Thi5 sludy 15 being led by Mark Maloney of Blackburn, Maloney & SChuppert: (4) Foreign qualifications study led by Brad Sklar o( Si rote & Permutl; lind (5) Diuolution and disassociation is being reviC'.... ed by Itick Clifton o( Albrittons, Civhan, Clifton & Alver.\on. Other areas yet to De reviewed are certificates of good standing, (ees and purpose. It is expected Ihat as an area under review is completed a bill will be presented to the Legislature so that each can be considered by the Legislature lIS Quickly as possible. The entire study may take several ye'lrs. If anyone has a business entity area that yOu would like for the committee to con~ide r, plea~e direct your CQneerns to an)' member of the committee or to the Instllule office. In.tltute Annu.' Meeting

Rob. rt L, McCurl." ,Jr. ~! L McCurlty. Jr I, Ihi tllttetor oIlt\t AlDbamoo Law Inlfltulfl Dt U1a l..\'IiveI'iJoIy 01 AllCImI He rfC~ ~ .. unOtro'rttly· ar. and lew dIgr_ I,om thll.JrVYor.lty

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The Annual Meeting of the Alabama Law Institute was held ThursdhY, July 9, 1998 during the /\Iabama Stale !jilr Meeting. The (ollowing persons were re-elected: I'resident-James M. Campbell or Anniston: Vice-President- Demetrius C. Newton of Birmingham: Executive Commit tee Members: Senator Roger H. Bedford, Jr. of Russellville; Ccorge E. Maynard of Birmingham; Oakley W. I-tcltOll of MOlltg(lnlCry: Yetta C. Samford of Opelika: Richard S. Manley of Demopolis: Senator Wendell Mitchell of Montgomery; Senator Steve Windom or Mobile; alld l{epre5entative Mark G<lines of Birmingham.

Leglal.ton Recognized At the Annual Benth and Har Luncheon, legislators W(':re recognized fo r lh ~ i r leadership in passing comprehensive legislation of interests to lawyers, Sponsors of the Limited Partnership Act: Hepre.sentative Mark CalnH Senator Ted Lillie Senator I~oger Bedford Sponsors of the Limited Liability Company Amendments: Representative MiHk Caines Senlltor SteW! Windom Sponsors of the Legal Separation Act: Ilepresentlltive Martel lilack Ilepresentative ~lik e Rolters Senator Roger Smitht rm.m Senator Sundra Escott·Russell $enator Roger Uedford Senator Roy Smith Senator Ted Little L.wa aelng Studied by Inatltute Commltte.a: The Uniform Child Custody t;nforcement Act, chai red by Gordon l3lliley of Anniston with Penny Davis as reporter: Uniform ~1anagement of Public t;mployee Retirement Systems Act. chaired by K~le 10hn50n of Montgomery with Professor Jim Bryce as reporter; Uniform Prindpal and Income Act, chaired by Leonard Wertheimer of Birmingham with reporter Profeuor Tom Jones; the ongoing review of Criminal Procedure I.aw is chaired by Billy l3urney of Oeci:llu r with the committee's reporter Bob McCurley. For more information about the Institute or any of its pro· jects, contact /lob HcCurley, di reclor, Alabama l.aw Institute, P.O. Box 861425, TuKaloosa, Alabama. 35486·00 13; fax (205)

348·841 1; phone (205) 348·7411: Institut/! homep.1ge: ww.lllw.ua.eduJali, •

We'd like to announce that AMICUS has changed its name. And nothing else. Birmingham's premier sourte for legal staffing Is now Special Counsel. And allhough we may answer Ihe phone II lillie dlfferenlly Itww days, nOlhng else

has really thanged. We SIIII have Ihe same exper.enced l@gal naffing consultanlS you've worked WIth In the paSt - and we still offer the finest attorneys, paralegals, and support staff In the region. So call us at the same number you always have -

(205) B70·3330. we may h<we ch¥Iged 00" name 10 Special Counsel. but we're 51111 the fillt rame In Ieg<II slaffing

S~cial Counsel' Suite 21 a • 2340 Woodcrest pt " Birmingham, M. 3S209 (205) B70-3330: Fax (205) B70-3337 Offlc.. Nfl t ion.ll y I Internationall y · (800)731·]4]6 _ ~_ ' /IiI..,...,,~ w

.........

1999 Joint Meeting of the Federal and State Bench and Bar The Ala bama Judicial College, a divis ion of the Administrative Office of Courts, is joining with the Alabama State Bar Bonch and Bar Task Force again this year to s ponsor the 1999 Joint Meeting of lhe Bench a nd Bar on Janua ry 21,1999 at Embassy Suites in Mon tgomery. They will also be joined by members a nd guests of tho State/Federa l Council.

\ \ 1/1

Registration begins at B lI .m., wi th training sessions of interest to fede ral and state Judges and attorneys proc· ticing in Ihese courtrooms 10 follOw. The regi stration fee ot $55 Inctudes a luncheon at noon and a reception at th e hotel following Ihe conclus ion of the program.

Additiona l informatio n on th e specific trai ning sessions and the registration fo rm wi ll be in upco ming issues of Th e A labama Lawyer and the ADDENDUM. Ul'n MPrn I uno 1301

ALABAMA

302

1I~I'TeMD~ft

1000

STATE

rinki gad riving nAlanama: The Facts, the Laws and Possible Solutions By T. Orad /Jishop Introduction I {umed twenlY-Qnu in prison doi"g life without parole No onll could sltl!r me riglll but Mama /rind Mama Iried 10 mIse me beUOIr but her pleading I dUllieel Now tlu!re 's 011'1 me 10 blam/! because Nama (tied

The Crateflll Deudl

illie C. "'osely never had a driver's license. but he did plenty of drivinll-.'lnd drinking. A second conviction (or DUI murder has put the 6O.year-old Alabamian in prison with II 45-year sentence. I-l is latest victims were a motorcycle driver and passenger. '-lis fi rst were II mOlher and two children. During a recent Interview at the slale prbon in Atmore, Mosely attempted to explain why he drove drunk. fo' osl of the time when you drink, you ain't hardly s.1Isfltd, and you'll be wanting to go somewhere and do ~()m elhin g when you lIin't got no business doing it. At the time, you don't be thinking because you just say I'll run right over here and run right back and ain't nothing going to hallpen, But it really just don't pay to go.' Although t-losely may regret drinking and driving, he cost several people their lives and must spend the rest of his Own in prison, [roniclllly, f.losely's mother was strict about alcohol and never allow(d it in her house, Ilis victims would be alive

.r.d

e., hop

PlatOIllO' Brad Bllhop II a long· time tacutty tnOft'Io bor at SNnIOId vn .......Ity.. Clftlbetland School 01 Law In 1992 he receMtcl the Alabama Stata Bar Award 01 Ment tor hr' cootlloobon II ·1UItoor. t,achlr. logaIlChoiar end rn"nic,pat /UOg&' Author 0I18Yef1l1 bCIOI<J. nlllIIla&t II ()run/( DtMIII Law In Alabamoll, pvbhshed by SamlOId UniYIUI,ty PI",

today if Will ie had heeded his mother's warnin~ , Unfortunately, stories such as his lire not unusual. J'.losely is just one of lhousa ndsllc r~ the nation who h.we caused injury or death as a result of drinking and driving.

Stetl.tlcel Dete StatistiC$ show that about two in every five AlYlericalH will be involved in an alcohol·reillted automobile accident at some time in their lives.) On a national level, in 1995, OVet 17,000 pcr$Ons died lind ()V(!T one milliOn were Injured as II result of drunk drivingaccidentJ.' For Alabama drivers, the risks associaled wilh drunk driving arc even higher. While the national rate of deaths caused by drunk driving declined between 1982 and 1991.1he numbers in Alabilmil rose by over 36 percent .' Between 1992 and 1994 , more than 3,000 traffic fHtalities occurred on Alabama's roads and high· ways,' Over 40 percent of those deaths were alcohol related.' In Alabama, between 1992 and 1994, the total Illimber of alco· hol·related ITIlffic accidcnl$ rose three percen\. from 8,998 to 9,242.' Addil iQnlllly, injuries from alcohol·relMed c rlls he~ rose 16 percent, from 6,301 In 1992 to 7.323 in 1994.' In 1995, Alabama's annual highwllYfatality rate was the fourth highest In Lhe nation. II The ~ tat I5t1cs fo r 1996 are equ~lIy discourag. ing. Allhough the number of Injuries resulting from drunk driving accidentJ fell to 5.560, a significant decrease, the num· ber of alcohol·related deaths increased to 348," Leglsl.tlve R •• pon•• to the Drunk Driving

Problem State legislatures have become increasingly aware of the dangers and risks associated with drunk driving. In the past two decades. morc than 2,300 anti-drunk driving laW! have ~en enllcted in the United States.ll llle Alabama Legislature has consistently en1lcted tougher I)UI statutes thllt have resulled in increased fines, longer jail sentences and longer

license-revocation periods." In 1994. the Lellislature substantially amended the OUllaws in Alabama. The 1994 legislation made a fourth OUi conviction within a five-ye."lr period a CIi\55 C felony. punishable by a fine of not leu than $2.000 and by impri$Onment of not Ies.s than one year and one day but not more than tcn yelrS.1i ,.10re recent amendments to the OUi statute dropped tne five-year limitation, and now, II fourth DUI conviction at any Iinle during one's life constitutes a felony offense." Moreover. the minimum fine fo r a fourth DUI conviction is now $4.l00.10 In 1995, Ihe Legislature took further action and 10000rcd the legal blood alcohol level for drunk drivers from 0.10 percent to 0.08 percent." In 1996, the Legislature m:wie it unlawful for any person under the ~ge of2 1. or any school bus or daycare driver. to OfJ(!rate a motor vehicle with a blood alcohol content of 0.02 pemnt or more." In addition, the 1996legislalion k tthe maximum blood alcohol level at 0.04 percent for commercial drivers." Despite the strict amendments to Alabama's OUl laws. the Alabama Department of Public Safety estimates that II driver may drive under the innuence between 200 to 2,000 limes before being arrested for the n r~ t time." St udies also show that drunk driving arrests have faUc n each yenr since 199\.1, The decrease in DUI arrests and conviction5 is not. however. evidence that the stricter laws are working. 1~lIther. in spite of the touRher laws. the number of alcohol-related traffic acddentJ is on the ri~,. Conviction rales, which ranged from 95 percent In the 1980:s to 98 percenl in 1990. have fallen each year and reached II low of 78 ptrcent in 1995.11 AlthOlrgh Alabama law provides. that first-tinle DUl offenders can be sentenced to a year In jllit. and fined $600 to $2.100 Or both. first-time offenders are rarely Inclircerllied. nather. most Alabama judges impose the minimum mandlltory sentence for the first offense. Even (or subsequent orrenks. mll~imum sentences and fi nn are rarely imposed, and o((enders do not al\\'<JYs serve th~ entire time of a strict sentence." Oftcn. maximum sentences are not impowl because the tough mandatory sentencing requirements place judges in a dilemma. The judgt; must balance the value to lOCiety of incarcerating the offender against lhe rea1i!lllion timt lhe decision could cost the offender his job. the family a brudwinner. and increase \\'elfllre co~l! to the state, The jails are alre.'ldy over· cl'O'wdcd.lII\d once the hard core drinker is inC<1Tceraled, the stlite court or nllJl1lci p.~lity IM!comts liable for any medical expen~s incurred during the period of incarcerat ion._ Some may not sympathize with the Judges' dilemma. Critics have argued that maximum sentences should be imposed unconditionally, liowever. one must recognize that even when sentencing was at its toughest in Alabama. drunk driving did not significantly decline. StatistiC$ seem to indicate that tough OUilaws are no real deterrent to the problem drinker. In Alabama. of the aJ1pro~imately 11 0.000 people convicted for driving urlder the innuence between 1988 lind 1992. more than 25,000 were repeat offenders." Many of those repell! offenders hlld four or more convictions durinillhllt time. "Figures from the Department of Public Safety show that almost 1.400 Alabamians had ns marly as eight convictions.·..! Alabama's most notorious repeal offender had 13 DUI conviclions In five years.-

Formerly, habitual repeat offenders benefited from Alabama's statute because convictions that were more than five years old could not be considered prior offen1ts for sentencin" purposes. If a person with a multitude of DUI convictions avoided arres.t for five yean. his next conviction would be treated as if it were his firs!''' However. Alabama's new statute abandoned Ihe five-year limitation with respect to each offense occurring afler Ihe second," Under the new statute. once an individulli has been convicted twice for OUI. the five · year limitation no longer IIppliC$ to thllt individual. and if he receives a DUI at any Hme after the second conviction. it would be treated as a third offense. A major inc re~se in felony prosecutions for drunk driver'S is likely to result. Other solutions have been offered and implemented to combat Alabama'S drunk driving problem. In addition to incarceration and fines, Alabama law requires an accused to attend a m:r.nd:.tory educational projl;ram, often referred to 115 I)UI schooL)' The program is divided into three te\'Cls.:I Level 1 is a 12-hour course directed primarily toward the social drinker who made a bad decision,» Level 2 is a 24-hour course aimed at multiple offenders.;\< Level 3 involves state apprclVed treatmenl programs lhal last from one to 12 months .• The Handatory Treatment Act of 1990 require~ every OUI offender to complete at least Level I of the progrllm .• DUI schools have been successful in lowering the conviction rate of repeat DUI o((enders. A 1991 Auburn Univtnity study concluded that Alabama's DUI School progr:.m reduced the number of repeat offenders, es.peeially in the 31-45 age group.

C LA SS A C TrON ADMINI S TRATI O N

Settlement Notice Administration Call Center Assistance Address Tracking Sorvlce Clan Member Data Basa Maintenance Claims Form Handling

Settlement Benefit Disbursoment

U~ U""'A ' ''". ' 30 ~

For that group, 22 percent of tho!e who dId not attend the program were cO!\victed of a subscqucllt DUI wlthirllhe neKt tW() years." Of those who attended the program, only 12 percent were convicted of another DUI within two years.'" ALA. Code 0 32-5A-181:

Alabama'. Current DUI Statute Driving Under the Influence (DUI) prosecution~ comp ri~e a $Ignificllllt number of the ca$e~ brought in Alabama's municipal and dIstrict courts. Section 32-SA-191(a) of the Alabama Code_ prohibits any person from driving while ( I) the weight of alcohol in his blood is .08 percent or more; (2) he is under the influence of alcohol. a can· trolled substunce, or both to a degree that renders him incapable of driving safely; or (3) he is under the influen ce of Rny substance thai impairs his mental and physical faculties to such a degree thai he is incapable of Stlfely driving. Although mo.~t prosecutions pursuant to section 32-5A-19l rely up(ln ,I chcmiC<ll ilnillysis of the defend,mt's blood or br~nth, the prosecution may e~ tabli~h a prima facie case of Dill without reference to such tests. Aprima fade case requires that the prosecution estnblish tht following: (A) rcasonllble suspicion to stop the vehicle; (B) proof of operation or actual physical control of a motor vehicle; (e) probable cause that led to the arrest: and (D) the arresting omcer"s on-the-scene obseT\lations and conclusions that Ii) the consumption of alcohol or other intoxicants was involved and (iI) the consumption affected the physical coordination and mental fac ulties of Ihe accused to such an extent that he wa~ incap.lble of Stlfely drivinJi. Of course. a chemical test, "It hough not required, may be used to Subst,1ntiate or corroborate the prosecution's cil~e . A. RI!(ISOnah/e SuspiciOn (Q Stop (hI! Vehldt! The flrst element of II prima facie (a$(: rtquires that an omc(:r have reasonJble suspicion to stop or approach the vehicle. [ II Marlli! II. Stale, the court made it clear that probablt c"use is not required to stop a vehicle... However, mere suspicion of a violation is not an adequate justification,·r The o(ficer must demonstrate "independent facts which lead to an 'arliculable and reasonable' suspicion" of a violation before stopping II vehicle," Factors H-wt can cont ribute to a reasonable suspicion include (I) "erratic or evasive" driving such as speeding, running off the road, or crossing the cenler line: (2) the "appearIInCe of tht vehicJt" or those in it; (3) the time lind [()(lItiOr' of the vehicle when it is stopped; for example, in an area known for nllrcolics IIctivity; and (4) the "cxptricnce of the pOlice o(fi cer."u One factor alone will rarely justify an investiglltol')' stop: rather, a totR lit~' of the ci rcumstances test is employed which generally requires a showing of a combinlltion of the foregoing factors." The reasonable suspicion standard. developed by case law, has been codified by the AI~bama legislah1re. Section 15-5-30 of the Alabama Code provides that the officer may "stop any per$On ,Ibroad in a public place who, he reasonably suspccts, is committing, has committed or i~ about to commit a felony or other public offense."<1 /1. AC/IICI! P/rysica/ COilitOl ot lJossessiOl! of tile Vt?fllcle

[n addition to the reasonable suspicion requirement, an offl· cer must prove that the uccused wus in actual physical control 81

"Bm', '91" I,

...

of the vehicle. [n Cagle II. City of Gadsden . the court stated that proof of control or possession of II motor vthicle while under the influence may be established in two I'/ays." One method is the use of direct evidence, typically, the eyewitness test imony of the arresting of1'icer. Second, circumstantial evidence may establish thallhe individual, though not actually s~e n driving, was in "(lc t~rill physic,,1 control" of\he vehicle. "Actual physical control" has been dcfin~d as the "cxclusive phy~ica l power. and present ability, to operate, movc, park, or direct wha t ~v~r usc or non-use is tQb~ r)lade of the motor vehIcle at the momen!."" Under this approach. convictions have been upheld in cilses in which the officer found the dtfendant asleep or behind the wheel of a crashed automobi le... In addition, admissions by the defendant that he was driving and eyewitness testimony that the defendant was driving have been held su(ficient to support a OUI conv1clion ... In Cagle II, City ofGadsdlln. the Alabama Supreme Court int roduced a "totality-of-the-circumstance$" test to determine wh~lher an individual was in act ual physical control ofa vehic l~ ." In SQ holdin", the cou rt exprcssly abandoned the threepronAed ttst enunciattd in Key v. 'TOwn of J(in.~e.l/. which previou~ l y sct forth the clements neccssary to establish actual p hy~ical con trol. Under the Hoy test, the prosecution had to first show that the uccused was in actual Of constructive possession of the vehicle·s ignition key or that the key was not ne"essary to operate lhe vehicle. Second, the prosecution had to establish that the accused WllS in the driver"s sea\, behind the sleering Wheel, and in such condition that, but for his intoxication, he was physically cap.lble of 5tilrling the engine and causing the vehicle to move. Finally, the prNecution had to cstabli$h that the vchicle was operable to 50me extenl.1I The Ca.'Ile court concludtd that the three-pronged test cnuncilltfd in Key was too easy to ci rcumvtnt and that "a mort rtasomble result would be attained by usIng a totality-of-the-cl rcumstances test."~ For instance, under the Kev test, a driver cou ld :woid a OUI conviction by si mply throwing his keys away or moving over to the passenger side of the car before the officer approached the vehicle. However, although the Key elements are nollhe sole facto rs to be considered, those r~ctors are sli ll relevftnt in determining whether ft person WilS in acl\lftl physical control of the vehicle.» Under the Cayle approach. an individual need not bc driving to be arrHted and convicted for driving whi1 ~ ur,der the influence. For example, a person stopped alongside the road. asleep behind the wheel. is corlsidered to be in actual physiclll control of the vehicle. Thus, under Al~b~ma law, .. driver who knows he has had too much to drink will not avoid prosecu· tion if he pulls over 10 "sleep it off," because doing so is equiv.. lent to driving while under the influence. C, Prob(rble Couse /Aludillg (0 U I)U/ Affesl Probilble Ciluse is an essential element of a primll facie case fo r OUI. A law ~nfo rcem~nt officer must have probable cause to milke a I)UI arrl":$t. Probable tilU$e to arre$l t ~ i$ t5 if facts and ci rcunutanccs wilhin the arresting officer's knowledgt are sufficient to justify a man of reasonable cautIon to beHeve that an offen se has been or is being committed." Probable cause for a DUI arrest may be established through evidence indicat· ing that the accused drove in such a manller as to attract the

.~,c.",c.~,c.c"c.c,~=,.c,:-------------------------------

attention of a law enforcement officer and that the omc.tr·~ observation led to the belief that the suspect was intOldcated. The officer's obstrVations are most often based on the appellr· ante of the suspect. the odor of alcohol, and some type of field sobriety tesl, ~'ield sobriety tesls are tesls administered by law enforcement officers to determine wheU\cr lhw: is probable cause to believe that a driver Is under the influence. Although the type of teslllnd the manner in which lhe tests nre applied may vary. all field sobriety tests have two essential purposes. The fl r~ t purpose is tQestablish probable c.1use for a !lUI arrest. Observatlon~ made by an officer administering a field sobriety test c"n provide the requi red probable cause (or a !lUI arrest, The second pUrpok of field sobriety tests 15 to produce evi· dence thllt can be used by the prosecutor at the OUI trial. although fiel d sobriety tuts do nol conclusively establish whether a driver was under the influence." Officer testimony of a driver's performance of the lesu is not considered expert teslimony and can be used as persuasive tvidtnce of a driver's fac ult ies at Ihe time of arrest... Three lIene,.,1types of fiel d sobriety tests lire used to determine whether a driver is under the influence. These Ihree :Ire: IJ sensory/nervolls system te5ts, 2) mechanical tests, and 3) physical coordination tests. The sensory/nervous system tests monitor the reactions of the driver'S nemus system. The I-Iorizontal eate Nystagmus Test IHeNI is such a test. The l·teN test indicatts whether a driver is under the influence by measuring jetk nystagmusy or Quick jerks In eye mo\'Cments. An officer administering the I teN test will ask the driver to cover one eye, The officer will then move an object, usually a pen or lillht, IIr:ld0.:111y out of the driver'S field of vision, As the officer moves the object. he obseNts the driver's uncovered eye for involuntary jerking," Adminibility of lieN test results In Alabama courts is unclear. The court or criminal appeals has held that results of the HeN tesl can be admitted followinlla foundation utablishinillhe "scientifi c reliability of the test and Ihe officer's expertise" in administering the test." The Supreme Court of Alabama. however, has yet 10 explicitly determine the admissibility of HGN test results.- Other s!<ltes are in disagreement over the Ildmiuibility of HGN tests. Arizona holds that HGN tests satisfy the Prill! standard and permits the introduction or IIGN test results in DUt cases." ~'Iorida, on the other hand, concludes that lIGN testing represents scient ific evidence lhat may nol be admitted as a lay observation of intoxication." The second type of fie ld sobriety lests art those thal use mechanical devicu to obtain an estimate of a driver's blood alcohot content. The device most commonly used by Alabama law enforcemellt agencies in the field is Ihe Alco·Sensor ",'hich provides the officer with an estimate of the driver's blood alcohol content after the suspect has blown into the device. Like all other fie ld sobriety tesU, the Alto-Sensor can be used as evidence at the OUI trial for the purpose of establishing proba· ble cause fo r the arrest. The measurements of the Alco-Sensor, however, cannot be used to conclusively establish that Ihe defendant was intoxicated or thai the defendant's blood alcohollevd exceeded legal limits." The third type of field sobriety tests are those that meaJure the physical coordination of the driver. I::xamples of such tesU

Include the one-leg stand, the walk·and·lurn, the finger-tonOk, and the Romberg alphabeltests." These coordination tests Mdo not prove absolutely that the subject is illegally intoxi· c.1ted:~ rather, the.-.e tests measure whether "the subject's coor· dination has been impaired by the consumption of alcohol.M.. Therefore. eXI)trt tutimony regarding the reliability and gener· alacceptance in the scientific community of Ihe particular test is not required to admit the results of these tesl$ into evidence. Observations of the arresting officer, recounting the defendant's perfQrmance of the tests, clln be used as evidence of the defend.,nt's '·b.llance, coordinntion, an~or menlJllllgillty," which is r<:levant to the issue or the defendant's sobriety.• D. I)rllX!r Nusl HI! "U"der Ihe I"n/lc"cll~

Before making a lelUll arrest for OUI. a law enforcement offi· cer must have reasonable grounds to believe the individual was driving under the influence. Alabama case la\\' dennes ~under the influenct" as "havina consumed such an amount of alcohol as to affect Ithe driver'sl ability to opeute a vehicle in a safe manner.H. Chnracterizing II person as "under lhe influence" dQCs not require reliance on a scientific test... rOT lmtancc. tape recordin!ls lind Videotape evidence arc admissible as proof that a defendant was under the influence." A law enfOlcement offi cer may !live his opinion as to the sobriety of the accused in a OUI Coue,. and such an opinion may be based on personal observations. Therefore, the arresting officer should state in clear detail his on-the-Kene observations of tht physical COOt· dination and mental faculties of the accused. this testimony should include the re$ull.$ of field sobriety tests, a description or the manner in which Ihe accused produced his driver's license, the suspect's manner of speech, the suspect's ability to w.alk, the odor of alcohol, the degree of ~upport needed by the accused to stond creel, the accused's ability to understand and respond to instructions, and the general appeltrltnce and overall mannerisms of the accused, Although relevant, the mere proof that the arresting officer smelled alcoholic beverages on the accused's breath will not sustain a conviction for driving under the influence. Intoxication cannot be estab· lished by simply proving that the accused drank intoxicating liquor or had an odor of liquor on his brCilth In the absence of some proof showing that it produced in him some manifestation of intoxiclltlon." Method. of Pro••cutlnll DUI·Alcohol C••••

Driving under the influence may be prosecuted by presenting evidence or (1) driving with an illegal blood alcohol level, (AI"". COllr.132-5A· 191(a)(IJ). or (2) driving ~undtr the influ· ellee ofalcohol, ~ (ALA. COI)E I 32-5A-19J(a)(2)). These subsections merely represent "two different methods of proving the 5IIme offense-driving under the influence lof alcohol I:" The relevant 1)(OOf to be offcTI,:d in ellch case will depend on the code section upon which the prosecution'$ case is based. Under section 32·5A·191 (a)(I), the degree of intoxication as indicated by chemlcaltesling will be the key evidence. Under section 32-SA· 19I(a)(2). the prosecution is not required to reiy on chemical test results but may introduce other direct or cir·

cumstllntial evidence lhllt the defendant was under lhe innuence.'" Unsafe operation of the vehicle. not the degree of intoxi· cation f)I!' SC, is the relev~nt evidence. HOI....ever. \l\'tn in ~ prose· cution under subsection (a)(2), chemical test results aTe admis· sible to suslilin the prosecution's burden of proof.1l "The prose· cution's burden i~ to prove IhM the defend,lnt was under the innuence of alcohol 10 the extent that it affected his abmly to operate his vehicle In a sMe manner."" The Jury, or trier of fact, must decide if the progecutor met this burden of proof. ~ Although providing two meUlOds to charge an accused with driving under the innuence has its advantages, many OUI appeals focus on the issue of whether a defendant was properly c h~rged under Section 32·5A·191(a)( l ) or (a)(2). Accordingly, law enforcement officers and prosec(llors shou ld be ~ware of the proper methods to charlte an offender with driving under the innuence. For Instance, the prosecution is permitted to charge a defendant under both subsections." and it may later elect to proceed under only a single 5ubsection or to withdraw one of the charges." Because proof of a violation of Ol\e: subsection does not support a conviction for the other," charging an accused under both subsections may :tid in securing a ~uc cessful prosecution.'" r.toreover, a complaint that merely refers to a code section or that charges the defendant with being "under the innuence" is insufficient to put n defendant on proper notice of the crime for which he is being charged and is insuffici ent to support II conviction,.. Conversely. a complaint Ihat trOl C~ s the lanlj:\lage of a codl;! section is sufficient to put an accused on notice of the charges against him.11 Prosecutors :tntllaw enforcement officers. therefure. shou ld learn the relevant code language and should use that language in the complaint whenever pos· sible, Jury InstrucliollS also prc:sclll problems in OUI cases: therefore. judges should make certain that the jury is charged under the same OUI subsection as that which the defendant is charged,..

.--;i""""

Conclu.lon The ideal solution to Alabama's drunk driving problem would be for people 10 "bstilin from driving after h(lvinJl consumed any alcohol or drugs. Hea lilY indicates, however, lhat $uch abstinence is not likely to OCC\lr, irrespective ofwh"t is dOlle to comb<ttthe tlroblem. As long a~ alcohol Is avail<tble for consumption, Alabama will have drunk drivers. Consequently. the state's legislMure, courts, law enforcement Orficillls, and private interest groups must "'ork in concert to develop the most effective possible means to contllin the problem, I'erhaps the best way to lit least mitigate the problem is 10 educate our youth at an early age of the hazards associated with alcohol, Ailudy conducted by the National Institute of Hea lth found thai children who begi n drinking before they turn 15 are four times as likely to become alcoholics as those who m rt drinkins at the age of 21. A(cording to Dr. Clarence Chen, "lkJids start drinking becau$e thr:y think it's the adult thing to do."" Thus, parents need to be aware that they arc role models for kids arld they should educate their children on the dangers lind consequences or drinking and driving. However. parental guidance does not always work. It certainly had little impact on Willie Mosely. who stated in an interview 30\1

O~PTE"OUR

1000

that his mother "was very strict about alcohol, disapproving of it lind never allowing it in her house,"., Willie rtalizes that his mother tried to raise him right. lind he now wishes he had lislened to her advice. "If r had paid attention to her, I'd be in a whole lot betler shape," he 5<lid." •

ENDNOTES Lyric i taken 110m Mama

TMd.a~~iodywrinlln

and PQllor~ed by Mellll

Haggald. 2. ROlf LivingJlon, r.U.d~~ rllmwo,k Cwln O'l/IIk~n Orivvrr, Tfl Bilf,ljHQHMI NlWS, FtbtUBlj' 21. 1993, 81 lA,

3. NAl'L f.lIOHW~Y Twnc S.Ifl1Y ADMIN" U.S. DEI"I Of TIWISI' .. T~ SIrov FACTI 1995(19951. 4. MADe 19911 SUMWJlI' Of Slloltm;:l: THE lMl'AKa DM'IIi(II'IIo&£I,I. TM Alabama ~h"pwot Motllor* Ag~inlr Drunk DIMn; m,y ~ '~~chod'I HIIIIHlJ5·0722. 5. Bob Billock Ind John Archiblld. Oronk ,lid O';"'n/1. The BI""ioghlm Newt!, April4, 1993.. 111 lIlA.. 6. Rev Wdillmt, AI~bilm.t~ T(~ffic D6~rh lI~r' SfCOI!d WOfSl ill N~IJOO. TMf B1AMlHt1HAM NlW3.luJgu$I 31, 1992, II 1/1,. 1, Su/d, 8. Jolin Archlblld Ind DIY' PllkJ, St~" DUI M", lIa'. Drop, " Alcohol· 1161.t'ed Wrecb lI"s~. TI4I: BIIlMIH(jHMI N[W!I, JUNI: 9, 1996. AT lAo 9. S66/d. 5,. ,IJO MADD • AlabaMa. We',. NCIt JUII MOlhelt Anymor •. Malhell Aglln" Orunk Oliver. FiGul" Itt sllGhllV higher 101 19901. Accord,ng 10 MADO, thlr, will. 9,400 IlcoJl/lI.rolatlld Iccldents in Allbama in l1J94. Id. 10. A'ehib~ld e'ld p.,It" $V~ ,",I' 9, ell A 11 . Thl" Ilgure. may be obla~d lram MADD · A1ablrnalll-«X1-&35·C722. 12. MAoo. 1996 Sui.twJrIo 01' SI/J1m:s! GENW.L SIATm1CS. 13. SIIfI At..l. COOl i32·5A.19\1.1 (S"P~. 1996). 14.

SIlfl/d,'I!i32·5A·t~Il').

I~.

1997AIa.Acla556,

16. S__ Id, 11. SIlflAIA. CODII 32·5A·19U.1 (S"p~, 19961: 1995 All, Act ~ 14. 5tH /d"1 I 32·5A·tS\lbl, (el 19. Se.itI.• ri3BA·191(b). 20. Bl.loc:~ and AI~hibald, SUp"~ r.QI. 6, I I lOA. 21, A'cMib.ld 8rod P'Ik,. SUO" l101e 9. II lA, n. 56. /d. 2:1. SH itI. 24. John Archibald and 11gb IIlolock. S/urinp IIIg IIIXI, TN( BoIMl/IG....", N£\IoS, APltI e, 199:), IlIA.

l!I. SlIfIid. ll6A. 26,

80b Blalock .r.cIJDltn Archibald, MMI Rep6llerr

BIfIMLOIGtIAM NlWS, ApllIS,

11193, at5A..

I(e tramSmd Tbwn~ 1'Mf

V. S"id. 28, SlIfIid, 29. Blaloek and A1Ch,b.ld. ,up" nCltI 6. 111 lOA.

30. Sh 1997 Ala.ACII 556, 31. SIIfI Jail" Archib.1d .nU Bob Bl"krck. DUISchIIoI WqrfJ, But SiNnII Won~ G1I, T~ BIfII,OI~_ NLWI, Aprile. 1993.. .IIIA 32. SH /d,

S~.id,

34. 35, :16. 37. 38. 39.

SIIfIId. SB.Id,

Sefid. 5.. ill. SIIfI irI. Au.. Coo!; 132-5.60·191111, Illmlmded by 1995 AI • • Act 784. ' 11181. In lull,

'W",

laj A JlflIIOIl

sIllli nO! drivl ~ be In Ictullphytical c~II,DI of an~ Vlhic~

wha.: !1 I~r. II .08 partin! or mort by weiglTl 01.lcgt-,oj in hil or hi! blood: 12) uflll.r thIIinflu.ncl oI.lcDlml; (3) under the Influlnce of. canuotled tubllince \(1, degl •• MIlch reflllert him Dr hit Inc'Jlflbla 01SI"~ driving:

fill·

(4Jynd.r the comlHnld N!flutnCI ot Iitohol.nd • tonl/oled .ubSlan.ct \0 • dtgrN whlcll rendlrs 111m or htfk!c.p.bII ot •• drr..;.,g; or (5) unci.. the InIhllll"" oI.ny ,ubmrw:' whic:h Imp.~.Ih. mtI1l1l 0< phvtI. ctll.cullitl oIllK:h Plrson to • dlgr.. which rllndfll h"" or htf IflCIPl'~

,.Iy

oI ..,tIy drMnli, ~So, 2d Irm)Ale. Crm App. 191181. ., SHJontIy StllI,S1tSo.21I"57W•. CrmApfll"'~Bf'{IIrll¥ Citvor Gldedtl\. 514 So. 2d ."!AII.eM\. ApfI. lt101: Grlltlard w. c..,or H........, ~ So. 2111331), 1331 (Alt. CMI. o\pp. 1989). ol2. Ell 1M'" ¥tung. q!lSo. 2d 11OB. 1109 WI. HIli!. 013. M.rbn Y StIlt, 5l9So lei 10321A1t,Crim,App, " S.. 1d, lInrItd 51... '1. T'PlI. 912F.2d 1317111111 Cw. 19901. t5. All..CODIil5-5-30 II982I. oil 495So. ZdI14l,I I ~W•. 19III, 47, K.., V, Town 0I1f1f\MV, f24 So. 2d 701 , 7O:J (All Crim. ApIJ. 4t SH MImi V. SIll., r.t5 So. 2d 161 (Ala. lt11I), lOIIII V. $ttll, II!iO So. 2d &21 (...... eM\. A$lP. 111M): SpeN\>. Stall. 4.0 So. 2d 1224 (...... CI'im. ApjI. 1983). 49. F.rlly v, Citv 01 MOMgomt"1. 571 So. 2d 1251 (All. Com. ApjI. U19SI. Robinton v. SI"I,584 So, 1tJ $3J (Al•• Cm.,App. 1991); RHv.. Y. ~01 MontllOllltrv. 46e So. 2d 11)41 (Al. App, I9M) 50, 495 So. 1tJ I \4t. 1" SIAl •. 191181. 51. 5.. I(IV v. Town or (in,.." 4~ So. 2d 701. 7031A11. Clim. App. I982). 52. 495 SO. 2d ,,11 45, 40.

'.1.

,.21.

em.

e'llit.

r.3. SHid.111I4? 54. SH Plrk.ry. 51111,391 So, 211 1991A1•. Crlm, App. 19811.

55. S,. S.~.r v.10Wft of SummordaHi.601 SO. ltJ 198 (Al •. Crtm, App. 19921.

56. S.. Smith Y.CiIv 01 TiJ'ta~ •• Bell So. 2d 101. 103IA1t. Crint. AjljI. 19951. 57. BruntOn V, 51"'. 5(1(1 SO 2d 6H41AII, Cm.. 19911, 58. SirIt, v.Stili, 574 So. 2d M ese IAII, Crim. App, 1990), S.. 1Iao HlrgfOYl Y. CItY of JIIinbow Cicv, 119 So 2d '" lAIt. Crim, App. It9lI; DeUI" 'I SttII. see So, 211 1021"'" trirn. App 11191); JoImon v Stall, Ml So. 2d sao!AII Crm App. 111911. Brakl Y.51111. 581 So. 2d 1282 IAIII. CrIm. App, 1991t MIIcIM v. CIIv 0/ SOMrIIII, 575 So. 2d 101 (...... Crim.A,.., • 59. SH 8""'l(1li Y. StIlt, !!eO So. 2d a IAIII. erm. App, 1991 ~ SH flI{I u ~ Moiont. 575 So. 2d 1011 IAIII 1m. $ide, ~ $Ilre, 574 So. 2d ts9 tAN 19901. 110. SHs.-Itv. Supenor Court. 718 P2d 171 IMt. ,.,. al . s..$ttlt Y. MltcIoI, lf4 So.2daatRt, DIll. CtApp, 19118), liZ.. PIIlI v. C<lVoi Auliurll, 552 So. 2d , .. t...... eM\. ....,...'9891. 113. $COII~, $1-'41, III So. 2d 2XI!AIt. tmI. ~. 19931. ao,t..n v. McHtnry. 843 So, 2d 9141A1t. Civ. App. 19931; St_rv, Town 01 S--d.It.lOl So lei CmI, """p. 19921; Atley v. 51111. 581 So. 2d 285 (AlII. em, Aw. 1119IL Gradbrd v. Ciy 01 HllnlA'lll, 557 So. 2d 1330, 1331 (AI • • trim. ApjI. 19191. !lol . Sttwtr v. Town 01 Surntnerdllt,eol So. 2d '''' 2011 (All. ClII'II.AjlfI, 111!f2).

Ap,.

,.!AIt.

II. Ell 1I'n. 8uckner, S49 So. 2d 4511 ..... , 1189): Fr.lItr v CI!'/ 01 MCRiIlOllll"1. 565 So. 2d 1255 II 1251 tAl •. Crm. ApjI. 19901 SH ,110 StOll v. CI!'/ 01 GI.IIIBfIYillt. 112 So. 2d 12731A11, CrIrn.App. 1!m1. Rici v SUll. all Sa.2d 1161. II63tAII. Cm. App. 19921. Halfll ~, Stfl•. 601 $Q,2d 1099, I la:1 IAI •. Crillt App. 1!192). 1fI. Sf' ShootrlakG( Y.Sift I•. 41 $0. 2d 4O'J IAlI, Crim, App , 19851. 118. Srr Sillill v. Cily 01 O. ntur. 189 So, 2d 1029IAI•• Crim, ApP. 1!1fj~ 8"11111 v. City of Gld.den. 574 So, 2d 9191Ala. Crlm, App, 1991)). 59. S.. Smith v. Crtv 01TiJlClkIolI, II6f So. 2d 101. IGlIAI •. Crlm. App. 111!r.1):

Samford University Cumberland School of Law Continuing Legal Education September - December 1998 Schedule September

25 October 2 9 16 22-23 30 November 6 13

20 December

4 4

10 18 30-31

Consumer Real Estate Finance: Regulation and litigation. Birmingham Is Your Client Covered~ Insurance Claims and Conflicts· Birmingham 9th Annual Bankruptcy low Seminor··80nkruptcy Fundamentals· Birmingham Automobile Accident litigation. Birmingham M the Century Turns, Representing Businesses in Alabama· Birmingham Basic Lawyering Skills··A Primer for New Lawyers· Birmingham A Day in Discovery featuring James W. McElhaney· Birmingham Advanced Domestic Rela~ans • Birmingham 12th Annual Workers' Compensation Seminar · Birmingham Expert Testimany with Edward J. fmwinke/ried· Birmingham Recent Developments for the Civil Litigator · Mobile Recent Developments for the Civil Litigotor • Birmingham Employment law Update, Including Sexual Horassment • Birmingham Pro·Active Mediation ond Arbitrotion • Birmingham ClE By The Hour . Birmingham

For specific information about a ny leminar write Cumberland elf , Ball 292275, 800 lakeshore Drive, Birmingham, Al 35229-2275, or call 870-2391 or '·800·888· 7454. Samford Univef'1ity is on Equal Opportunity Institution and welcomes applications for employment and educationol progroms from a ll individua l. regardl • ., of roc., COIOf, sell, disobility, or nOlionol or ethnic origin. ~~ p'U"U" . ..... ' lM

Routherv. Ciryot Lald l, 599 So. 2d 1246(.0,1•. Cflm. Ap~ 19'32); S.ndG'5 " Ciry al Birmingham. 5.t2 SO. 2d :J25 (AI •. COOl, App. 19891: Spu.geon v. SI. IO 560 So, 2d 1116 (AlA, C.im, App. 19S8llJrimny. SIIUII, 491So, 2d 1053(Alo Clim App, 19l1li), 70. Sn B~., Cir/ ol MOIlIgomG!)" 472 So, 2d 6$-1 (AI • . Crim. App, 19851, 11. Slllon v SUII. S28 So. 2d 1159. 1162(AI• . COm. A)lIl. 11161). 71 Medlty •. Slble,630So. 2d 163(Ala. C.UIl. App. 1993); lIIwranct Y. Siala, 801 So. l d 1901 (All. CrInt. Ap,. 1992). 73, S.. H,rr'f Y.SUllO. 571So. 2d (AI •. trim. App. 19901, 74. Ex pwrt. Butknu, S49 So. 20 451, 4S3/A1•. 19891. 5.. Jone ••, C!Iy 01 Summtrdll•. 877 So.llI 12891A11. Crim. App. 19961. 15. 5e.Jonu Y. 51111. 511 So.1iIi (All. Crlm. App. 19911; SandO'" Y. C!Iy 01 Bllmiogham. 5'2 So. /d :J25 (All, Crlm. Aj1~. 1988), "Ie. 5.. Modi.., v. SlOI., 630 So. 2d 163, 1&\,651A1 •. Crim , App. 19931: Bry.nl •. City ollJ.dJdln, 514 Sa, ld 91 9. 920 1.0,1" Crim , App, 19901 n. 561 Haltlng ' y. SI.18. 58t So. 2d 79S.196 IAI•. Crlm. App. 1!lS11: Nerud Y. CtI"-! 01 Maunuln Brool\. 511 So. 2d 652 (All. Crlm. App. 19811. ]8. 566 Slone Y. C.ty or Hy.llsville. 658 So. 2d 404, "lIAia. Crim. App. 19941: Corum y. Clf'\' 01 HunuvlllG, 411So, 20 1tl91 (.0,10, Crim, App, IMI: Smhh v, Smo. 435 So, 2d 158 (Ala. Cmn. App. 1i1831, 79, 5.. Ston~, 5511 So, 2d 11411 SIf/ '/(1) S\UI~ton y, City of V~rtlv1 •. 599 So, 2d 92 (All . Crim , App. 19921 80. SIHI BilMp Y. $111\8, 555 Sa. 2d 311 IA1a. C,m. App. 19891: Carum y. Cft'; 01 Hu~tsvIlI., 4g1 So. 2d 109IIAI• . Crim. App. IIJlI6I: $milt. Y, SI~I ., 435 So. 2d 158 (Ala. Crlm. App. 19831. 81 . 511 Sandlin v. 5'.811, S75 So. Zd 122IIAI •. Crim. App. 19901. 81 $.. Collier v. Sti li, S44 So. Zd 9116, 11811AtI. Crim. App, 19881: Jonll •. Statl, m So. 2d 50 IAI •. Crlm, App. 19t161. Bl. Kllplnl Srinivallan, Dm'iing Ylwng EntDIJ,aglt$ Ah;QhoJi$m, Study F"md$, TIC

D. Dale 1Yler... Founder oflY1er, 'oton. Morgan, NIchols & Pritchett COl4rt Reporters, died on Janl4aP)' 28, 1998. He wOS ol4r mentor, dear friend and partner. Dale was the first Registered professionlll COl4rt Reporter in the state of Alabama, an expert in his ~erd, and was always armed with a laugh, a helping hand Glnd a WGlrm, caring heart. We will miss him deeply!

Don EGlton lal4rQ Nichols Mike lowe!}, Susan Trtatlaway

Gary Morgan Gail Pritchett

Tere$a rurquln POlge Ptlugh scott

Danll Scott Faltll Ri1t

stewart

call Lowtry

Mayo Xiong

M lrlM1

Eleanor PIckett

Michele Lee

Ann Kines

BIJU.lil;(lHAM NE:"WS, J"UOry 15, 1998, . 14B. 84. Rail livingl lon, T"'~dlQw T9wmwork Curbs Orunk9n Orivtlll, Til( BIRMINGHAM NEWS. Febru.r'f 21. 1993.11 1.0" 115. /d.

575 Park Place Tower ' 2001 Park Plitce NOflh Birmingham, Alabama 35203·2793 205-252-9152 ' WATS: 1-800·458·6031 • FAX: 205-252·0196

With so much at stake, whom will ou trust with your next valuation? E XI~r1 Y~llIallm

II erll!err.1(or you I nd your cllcilli. WhalCYl: r you r r!«d. no OIlier vnlUf1llorl pmctl1loncr !n AlalxlIlI. hll.! IJoII Milly~rd'~ r:on1bl n~1iOIl of (:l<1'"rt l~ dnrl C'rtlk'1I11~l1..

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• I.itlgll1l011 SUI'I)(.\f\ • Iru,," 1:X1I!!lhuc11on • J:...pcrt Wilne.'!! ' Cotllul1lr\~ • nUJ;n~.'I! Vul"ntlon

Minyard and Associates, em Accrcdil~'d !n Business V,lluUliol1 Mom""r Ammr.n IHMltuie oi C~,"1Ird 1\lbtic at CCri ,1iN l'ubhc .I.ct'aInl.nlS, AuoxiIIIDn oi

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Donald H. Minyard, Ph.D., CPA, AJ3V, Crf:

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IMPORTANT! License s/Special Membership Dues for 1998-99 AlilicenlBS 10 practice law, as well as special memberships. , 'e sold through the Alabama State Bar headquarter•.

In mid-Septlmber, 8 duel Invoice to be used by both annuallic.ns8 holdars and specisl members will be mailed 10 every lewvar currently in good standing with the bar.

II VOU lire ectivuly practicing to 81ltlcipata practicing lew in Alebama betwaltn October 1, 1998 and September 30,1999, plo8se be sure that you purchue en occupalionallicense. Licenses are S25D for the 1998·99 bar year and payment rrust be RECEIVED between October 1 and October 31 in order to avoid

ell automatic 15 parcen! penalty ($37.50). Second notices will

NOT be senti An anorney not engaged In the privatI practice of law in Alabama may pav tha special membership fee of $125 to be con· sidered a member In good stllndlilg. Upon recoipt of payment, those who purchase a license will be mailed a license and 8 wallet·size licenso for Idontification purposos. Those electing special membership will be sent a walle t· sizo ID card for both identification and receipt purpOSeS.

If you do not receive an invoice, please notify Diane We ldon, mem bership services director, at 800-354-

6154lin·st'lO WATS) or 1334)269·1515, .,1. 136, IMMED IATELYI

The Alabama State Bar Partnership Program-It's Working Start it working In your community. Call t1e ASB communications director at

(334) 269-1515. oxt, 132. to find out how.

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9!NSUMER INANCE OR ,"",UYING

1jPECTS of IVORCE

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.•. of[ers uplion$ ,Jnd choices

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Alabama State Bar Publications Order Form The AI<lbam(l S'i1le Jl{lr is pleilsed to make ,lV(liiable to individual altorneys, firms and local bar associations, OIl cost only, il series of brochures (In iI variety of legill loPics of interest 10 the generill public. Below is a current listing of public Informalion brochures ilvailahle from the Alabama Slale B,H for diWibution by

local bar associa tions, under established guidelines.

Brochures L..IW As A Career

$ 10.00 per 100

Qty. _

$10.00 per 100

Qty. _ _ $ _ _ _ __

$ _ _ __

...oPl>ortunities ilnd ch:1l1enses of a law C;lrcer today.

Lawyers .lnd Leg.ll Fees

... <l summ<lry of basic inform<llion on common leglll questions <lncl procedures for the genera l public

Last Will & Testament

$10.00 pcr 100

Q' y. _ - $ _ - -

... covers aspects of estatc plan l1inl:l anti the Imporl<lncc of howing;l will

Legal Aspects o( Divorce

$ 10.00 per 100

Qly. _ - $ _ - -

... offers options .lnc! choices involved in divorce

Consumer Finance or "Buying on Time"

$ 10.00 per 100 QlY· - - $ - " -7 - ... ou tl ine> important considera tions ;lIld p rovides tldvice 0 11 fin{lnci~1 matters "((C{; ting the individual or lamily

Mediation ... Another Method (or Resolv;nS Disputes ... prollitles

$ 10.00 pcr 100

Qly. _ _ $ _ _ __

an overview of the n1l'diillion process in qucslion-and-i1nswer form

Acrylic Brochure St<lfl(1 $.'•• 00 ea eh Ql y. _ $ :::-_ _ __ ... individllal stand imprintc<l with individual, firm or bar association Ililmc for usc at distriuution l)Oin t ~. One stand per brochure is recommended. Name 10 imprint on siaml: _ _ _ _ _ _ _ _ _ _ _ _ __ Subtota l S _ _ __ Mailing Address

Shipping & Handling$ 5.00 TOTALS _ _ __ Plc,ISC remit C/IECK OR MONEY ORDER MADE PIIYA/JLE TO 'rHE ALABAMA STATE BAR for the amount listed 011 the TOTAL fine and forwnrd it with this order form to: Sus,1n H. Andres, Director of Communications, Alabama St.l te Baf, P.O. Box 671, MMtHornery, AL 361 01, (334: 269-1515

INTELLECTUAL PROPERTY SECTION Attorneys interested in participating in the Intellectual Property Section of the Alabama State Bar

should contact Will Hill Tankersley, Jr. at Balch & Bingham, (205) 226-3424 or

wtankers@balch.com, or Ed Patterson at the state ba r. (334) 269-1515, ext. 161 , or edpanerCa labar.org. The section's mission is to promote expertise, networking and updates on a variety of intellectual property areas, including trademarks, trade sec rets, copyrights, patents, computer law, "Year 2000" litigation, and inte llectual property consu mer protection statutes.

Appointments United States Bankruptcy Judges, Middle District of Alabama The United Stalas Court of Appeals for the Eleventh Circuit invites applications trom highly quallijed porsons for 8 14.vear torm 01 appOintment as U.S. BankruPtcy Judge in the Middle District of Alabama succeeding Judga A. Pope Gordon. Judge Gordon has Indicated his Intention to retire upon expiretion of his term April 14. 1999, The position will be available for appointment Apr!l15, 1!m. The duty station lor this position will be located at Montgomery, Alabama. The basic iUfisdlction 01 a Bankruptcy Judge is spacified in TIti. 28, U. S. Code and explained IfI TiUe II, U.S. Code, as well as in 98 Slat, 344 P.L 98-353, TItle I, Seclion 120. The duties of the position are demanding and comprehensive. This selection process wilt be confidential alld competitive. A subcommittee of the Judicial Council of the Eleventh Circuit will review all.pplicants and recommend the best qualified persons to tho full Judicial Council, which In turn will recommend in confidence 8t least lhree nominees 10 the judges of the U.S. COJrt 01 Appeals lor the Eleventh CirClli!. The Court 01 Appaais will make the appointment subject 10 an FBI and IRS investigation 01 the eppointee. The currant annual salery is $125.164. Persons shall t:e considerad without regard to race, color, gender. religion. or nationalilrigin. The Court also invites applications from highly qualified persons for a 14-yaor term of appointment 8S U.S. Bankruptcy Judge in tho Middle District of Alabama succeedlnll Judge Rodney R. Steale. Judge Sleeia has indicated his intantion to reUre upOn expiration of his term on October 17, 1999. The position will be availabla for appointment Octobor 18, 1999. The duty station for this pOsition will be located at Montgomery, Alabama. The basic jUlisdiction of a Bankruptcy Judge is specified in Title 28, U.S. Code end &xplllln&d in TItle 11, U.S. Code, es wall 8S In 98 Stal. 344 P.L 98路353, Title I, Sectian 120. Tho duli&s of the position ere demanding and comproh&nsiva. TIlis selectlan process will be con fidential end competitive. A subcommittee of the Judicial Council of the Eleventh Circuil will review allipplicents and recommend the best qualified persons to the full Judicial Council, which In turn will recommend in confidence at !aut three nominees 10 the judges of the U.S. Coun of Appeels for the Elevanth Circuit. The Coun of Appeals Will malle the appointment subject to an FBI and IRS investigation of the appainlee. The curr&nt annual salary is $125,764. Persons shall be considered Without regard to race, color, gender, religion, or national Origin. Application form. and Ihe fullannouncementl may be oblalned trom IIny dillricl court or bankruptcy coun clal1l of the EI"anth Clfcuh or from I" ClfC1I11 uecutlve In Allanla. Furthar Information cou:eming Ihe po.itiona ia anilable through Nonnan E. Zoller. cifcuiteKltcullvt, U.S. Court of Appell. for th. Eleventh Circuit. 56 FOflyth Slreet. NW. Allanta. Georgia 3OJOJ; phone 141M! 33S-G535. Applica'lofl' "IU" be racefvtld ,h. circul, .xacu'i".', oNic. in AIII",f. no Iltt" thltn Octobtl' If, , .

tt'

Punitive Oamages In Alabama After BMWv. Gore: Are Outcomes Any More Predictable ? 11,/1

e. BurlOIl Spf!llce

Introduction [n HbY 1996. the Supreme Courl of the United Statu lUlled its opinion In BNW of North America, Il1c. u. Core, 517 U.S. 559, 116 S.Ct. 1589 (1996) ("Gore·U.S,"), rtverslng a decision of

the Supreme Court of Alabama and holding that a punitive damage award affirmed by the Alabama court violllled the Due Proce» clause of Amendment XIVof the Consiitution of the United Statu. Oy January 1998. the Supreme Court of Alab.una hlld luued its first ten opinions review;nr:1. under the ""uldep()SL~" created by Justice Slevens in Gore·U.S., awards of punltive damages

In cases not involving wrongful death. This paper exarrines thosc ten CIISes IUld analyzes whethe r Alab/lOlll'S punitive

damages laws are more concrete or predictaul!! as a result. The len Cilses lire listed, along with urier items of information concerning them, in Thble I. ~'i\le of the len were Ihe subject of order~ of remand from •. a . rlon Sp. nc. E BtrmSpenoe . . . . . . In". 8tr~ IVm oI~,~~

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the Supreme Court of the United Siaies which required the Supreme Court of Alabama to review the casu a second time in light oflhe Gore-U.S. opinion (see Table 2). Within the body of these opinions, the Alabama Supreme Court has concluded that the factol"5 enumerated in IlummOlld v. Cily ofGodstA.'", 493 So. 2d 1374 (AI:.. 1986~ :.nd Gn.'t'71 Oil CO. I '. HOnlshy. 539 So. 2d 218 (Ala. 1989)(the so-called ~llommonrJlCfC(!ll Oil factors" ~ ,

Lhat it W35 using prior to Gore-U.S. to detel'll"line whether punitive dlimage awards ~'l!re excessivt. pass constitutional muster under Gore-U.S. The Alabama court has also incorporated the three "guideposts" referenced by the U.S. Supreme CO(lrl in Core-U.S. ilS a me<lns of ilsscssing whether a civil defendant has been Iliven fai r notice of the ;lInount of pUIlitive danlilge$ that might bI: awarded against it by a civil jury in Alabama. Even though the Alabama wurt has. to some Il}!tent. treated the HammondlGfC(!Il Oil factors and the "guidtposts" lIlI cumulative or additive doctrines. it hilS sUIted that the Hammond/Green Oil stamLlrds contain the guideJ)l»ts and iltcommOO.lle the due proce$5 COIlC~m5 that led to their creation. This reasoning is most fully expounded in tlV' Alah:ima Supreme Court's opinion in BMW 01 {l/orlh America, '"C. IA Con! 701 So. 2d 507,

509·10 (Ala. 1997) ("Core-Ala,"). which it Issued In Hay 1997 lifter the case was remanded to it from it the U.S. Supreme Court in May 1996. The Alabama court has not, ho'o\.oeveT, directly confronted the 5en\iment expressed by Jwtice Breyer in his concurring opinion in Gore-U.S.: i.e., that "the IlIammotl(JICn.'01 Oill stan· douds. as the Alabama Supreme Court authoritatively interpreted them here. Ilrovidtd no sillnificanl constraints or protection ag.linst 1Irbitr1ll1 rcsull.$.H 116 S.Ct. al 1605. The guideposts created by Justice Stevens in Gore-U.S. ate (I ) the reprehensibility o{ the defendant's act (2) the ratio o{ the punitive damages 10 the compensatory damages: and (3) a comparison of the punitive award 10 compaTilble sMctions that could have been awarded in other civil or criminal pro· cccdinQs. This pilper cxaminesthe Supreme Court of Alahama's treatment of these guidepos\.J in its first ten postGore-U.S. opirliO!lS. The d ~ ta Hed anal),sis summarized in the text Dnd presented more fully in tables I and 2 illustrate that the guide~ts have not provided greater predictability of outcomes than existed prior to CO/1!-U.S. Aep,.henslblllty: A L.ck of M •• nlngful Hler.rehy

In only four of the cau! declded since

Core-U.S. does the Alabama cou rt apply a specific label (i.e" "high." "moderate." "Iow~ "significant') to the degree of reprehensibility of the acts of the defen· dant. None of the fOllr labels has been used more than once. In the other six opinions. lhe degree of reprehensibility Is either left llns~cified or is defined only in relative terms as "leuer" than some other sltulltlon or "higher" than that found in a dliferent case. M C<ln be seen from Table 2, the Inherent lack of a definable hierarchy of degrees of reprehensibility runs counter to the go:.l of consistency ilnd predictability. It does SO by prcvcntinp: nny positive correlll\ioll between the punitive to compensatory dart\ll.ge ratios and the stated degree of reprehensibility of the defendants' acts. For example, in F'oromosllns. Co, /I, llar/ulm, 693 So. 2d 409 (Ala. 1997), the degree of reprehensibility Is unspecified. The court points out. however. that many of the aclions (ound fraudulent In this case were not so defined at the time they were committed, The comt's prospective ruling also indicates thflt most. if not all, of these acts will not be considered fraudulent from the dale of the opinion forward. These are indica· ti on~ of low reprehensibility. Even so, the unspecified degree of reprehensibility is held sufficient to support ratios of punitive to compenSl"ltory damllgcs

ranging from 37: I 10492: I (this elise involved four different cau~(:~ of IIction from two plaintiffs lind each count \\IllS analyzed separately). Lven if one uses the QVerllll ratio of punitive to compensatory dllmllges arrived at for each plaintiff. one is left with the ratios of 94;1 and 121:1. This pose. <l sharp (ontrast to Ford MOlor Co. I'. Sperau. 708 So. 2d 111 (Ala. 1997), in which the reprehensibility wa~ lllbeled "moderate." yet II 3.5: 1 ralio of punilive damages was redllced to a ratio of 1.06:1 on the premise Hut a ratio as high as 3.5:1 would run afolll of the Core-U.S, guid(post5, In :.nother of the cases, Union &CurilV Life IllS. Co. v. Crockf!r, So. 2d (AlII. August 15. 1997). the court upheld :m 1I\'Iard of punitive damages without knowing what the rati() was because the verdict fo rm used by Ihe jury did not specify which damages were comptnsatory and which wert punitive but merely included a total. It did this in the context of II degre~ of reprehen~ibll ity labeled "high." In Life Ins. Co, of C.eotyiu I'. Johnson. 701 So. 2d 524. 530 (Ala. 1997), however. a case in which the court found the reprehensibility to be "far morc reprehensible than that of Union Security," It reduced a 20:1 ratio to II 12:1 ratio. A fourth IlIbel (in adllition to ··Iow.~ "moderate" and "high") for the degree of reprehensibility, "significant." WliS introduced in Palel IJ. Polel. 708 So. 2d 159. 163 (Ala. 1998) to describe lin unde's defrauding of his nephew in the purchase of a hotel anJ to provide a l»sis for the affirmance of a 2.6: I ratio of punitive to compen$1ltory damages. The only empirical conclusion that can be drawn from these ten holdings is thllt when the Alabama Supreme Court puts no label on the dtgree of reprehensibility, as it hIlS done In the rn;tiorit)' of its post-Gortl-U,S. deciJions, the ratio o( punitive damages to comp(:n$lltory damages can range from I: I to 492: I (Sf!(! Thble 2), Th. R.tlo: Th .... Are No Precl •• M••• urem.nt. The necessity of nnalY1.inll lhe ratio of punitive dafnbgCS!O compensatory damagu gives an initially logical or formulaic appearance to the measurement of punitive a\\oards. Tilt Alabarll/l court

has not developed, however. a predictable formula for arrivi"g at II constitutionally appropriate ratio. It has refrained from doing so in furtherance of a stated policy 110<11. Specifically. the Aillbama court has explained that it will nol adopt a precl5e mellSuremenl by which a defendant could know in advance the total amount of punlti\'t damages to which it might be subject for the doi ng of a p/lrticula~ act; We reject the easy answer of "doptlng one ratio that would apply to all and \\'OOld therefore gi\'(: a wrongdoer precise notice of the pen"lt)' that. his misconduct might incur. To do so would fnlS trate tht purpose of punitive damages, which is to punish and deter a defendant'5 misconduct. Corti-Ala., 701 So. 2d 507, 514 (AlII. 1997). The apparent rationale for this avoidance of precise notice is one predicated on economics, In theory. a fixed. predkt<lble nne for speciflc conduct mllY be treated as a cost of doinll business. If Ihe benefit of engaging in tile prohibited IIctlvlty exceeds its cO$t, even a cost enh<lnced by the flne.thal fine will be ineffective to deter th~ conduct. I~o r cX<lmpJe, if one can sell enough cars by defrauding the buyers to generate pro(il.5 that are in excess of the profiU thaI would be incurred without the fraud, even after deducting the C05t of the punitive damage awards, then the punitive award has not created an incentive to cea$e defraudln.lt the buyus. If one has no idea, however. how high the fine mlly go, one cannot So1(ely engage In this prllctlce. Whether this rationale accurlltcly reflects behavior in the marketpillce is subject to debllte by economists. See A. l\litchell Polinsky &. Steven Shavell, Pl.lnililHllJamages: ,III t.""conomic Anafysis. 111 Harv.l.. Rev. 869 (1998), Whether or not such a policy of (refitlng dctnr~nce through uncertainty is ultimately benencilli. howeYer, docs not change that it Is llndeniably at odds with the nated g0.11 of Ihe U.S. Supreme Court in Core-U.S .. which was to further the fair notice component of due proceu by creating predictability with regard to punitive awards. /Is \,Ias demonstrated in SEction I bod in Thble 2. the ratio of punitives to comU .... U.D( R'_'l ' ~

there <Ire two competing ideas expressed In various o( these ten opinions. but nei· ther hils been adopted In iln actual holding endorsed by II eltar majority. One proposal. championed by Justice Corman Houston in his concurrence in the resu lt ofCorl.'-AIa. (701 So. 2d at 52 1-22), would (lse a 3: 1 ratio as a

penSlltoriC$ cannot. in thest ten opinions. be correlated with the degree o( reprchcllsiblilly of lhe defendant's wrongful conduct II further look at l'.tbJe 2 suggesU that there is. as yet. no limit to the punltive:eompensatory ratio inherent in the post.Gore rulings of the Alabama Supreme Court. In this context

CASE

FACTS

henchmark, only 10 be exceeded in cer· tain defined circu mslanc~, This idea has been remarked on (~V(lrably by Justice See (in his concurrence in part and dissent in p~rt in JohllsOn and his dis~ent in Sperau) and by Justice Maddox (by his joining in Sec's di~sent hl Sperau), as well as by Chief Justice Hooper (who

E PUNITIVE AWARa

PARTICIPATION aFJUSIICES'

FOREMOSt'

Fraud claims against homaowner's insurer lor misrepresentation about premiums and suppression of fact that coverage for adjacent structures was oplional.

Pla!n!il! I: $7.500.000 rtductd to $175,000. Ptalntllt 2: &1,500.000 redueld to $t73.000.

AUlhor H Concurring: kp. M. It A. S~. S Concurring In R'Iutl; C alUlndng: e

GORl?

Fraud claim against car maker for failing to disclose pre-sale repair 01 paint scratch.

$2.000,000 rlduced $50.000.

SPIVEy4

Book defraudlld borrower by disbursing procaOds from conSlructioo loan 10 credilors of borrower not involved in Ihe coostruclion projllct

$500,000 Ifflrm,d,

Concurring: Sh, K, B. A. C Concurring In lIt$uf\: H, Hp, M R&C"lid: S Au!ilor! H Concurring: A. Sh. C, 8 Co~cufring I~ Allult M, S. lip NOl penlclpllllng: K

HILLCRES.,s

Building lessor defrauded lessee by misrepresonting oxtont of parking spaces available to lesseo in operation of heir selon.

$130.000 r~d"c,d 10 $'9.1.000.

UNION SECUR/rtf!

Sales ager1t reprosellted that insured would be covored on cfedilllfe policy even though agent misrepresented to insurer health problems of insured and know thaI discO'.'ory of health problllnts would void covorage.

$2.000.000 $1,000.000

DAISEY JOHNSON'

Insurance IIgen\ defraud$d insured by seltlng her unnecessery medicare coverage.

SPEREAIfi

Auto manufecturar dElfrauded purchasers of dealer· ship by failing 10 disclose poor financial performance of other, similar doalers.

$6.000.000 reducld $1.m.lXIl,

WILLlAMSOf\B

Insurance company defrouded sales agenl by refusing 10 pay commissions,

$2.000,000 $750.000.

TALENT TREE10

Employee of personnel service was defrauded by employer who manipulated her sales figuros 10 raduce her commissionS.

$2,000,000 Ildvced 10 $1,500,000.

PATELll

Purchaser was defrauded by sollor regarding potanlial profitability of hotel.

$225.000

'~ ~un~m

Authar: C

Co~cufrlng: A. Sh, K. H Concurring/Oiutoting: e al"entlng: H!I. M, S

Author. 8 Concurring: I., 5h, H. K, C Di.unting : ~. M, S

leduced to

S5.ooo.000reduced to $3.000.000.

reduced to

Author: Sh Concurring: A. K. C. B Concurring/OiIUnllng: HP. H. S Plr curiam Concurring: Hp, Sh, K, C, A Oilunting: 1>1, H. S R'CUJtd;8 Author. C Coneumnll: S1, K. H~, M. H, e, S NOtPartic:ipllng: A AVlhor. Sk Concurrin;: A. K, C, H Conc~rrrn;l" rllu~:

M, 8

Concumng!OiUlnling: Hp Not plrlicipillng: S ~urhor: ~

Concurrin;: Hp, A. SIl. H. K, B Cuncurrin; in r'IU~: M, S

aNirmed.

FOOTNOTES

I. The nine IUlticu 01 the Sup/lme Coun 01 Allbeml wllo penlclpftted In !hue d.cisions WQro Cni., JuStice Hooper IHpJ end JUllle. . HOUltOn (HI, MlddQl (MI. Sit IS)' Shor,,(Shj, Almon IAI. K enn,d~ !KI, 811nl IBllnd Cook (CI.

1. Lif'

Ins. Co.

of Giorgi, v. DlillyJohnJon, 701

So.2d 52411111. \9971.

8. Ford MOlor Co. v. SP'flU. 708 SO.2d IIIIAII. \997J. 3. BMW of North Allllic., Inc. v GOlf, 701

4. FiW Comm,relfll/,nk v. Spill,y, 6901 5. HillClUI C'nltt, I~c.

SO.2d S07IAII. 19971.

SO.2d t316 (AI •. 19971.

v. ROll', _ So.2d _ IAI •. Augult 1, 19971.

9. Am,,/c.n P!on"r Lif, In,. Co, v. Willi,ms(lt!, 11>' So.2d 136IIAlf, 19971. 10. T,I'I!! T,,, P'/Jonnel S~"" Inc.

FI"nor.

I!. PIIIIII: P.II/, 708 So. 2d 158 IAI •. t998J.

70J So.2d 911 (Ala. 1991).

"'Sf fOREMOSr2

REPREHENSIBI UTY

II( PRf HENSlelliTY ANALYSIS

Unspecified (8ppllln sl'ghtl

Mi.r,pf...nl' llon~ Oamagu Imlll.tId ,nllll.., tcOllQmic inn.lul, Supprtllion: Concealment ~r faell prob.blv WI' nOI .etion.bl, It tha lime it occurred.

BEGINNINGRA no,

[~OING

459:1' 624:1 10,94 1:1

37:1 50:1 488:1 492:1

500;1

12.5:1

1:1

10,647:1

RATIO'

ell' involved on ~ 10011D111lc damage, making economic tI.·

GORP

"lesser"

hllan what?)

lUI of plainlilt fe levanlleCOI1(mlc Injury 10 1'0'111'011 pI.il'lijff I, /lOCIl rlp'lhensible II .conllmlt InJul'( to poor pI.lnti"), Cn. dklllot involve reckklll dill...rd lOf 11181111 and saltl'!, TIlt Court Nl'llhellllCUlhow. "leiHI' ~f"· 01 reprthtl\tl. biIIty, but does not IpeciIV whet It il "leuM" \/Ian. Court h'(llhlt the "_f,N 'Iprlh,nllblhtv" Ollhl delln-

d.nt', conduct munith" thl ' ;1 'I\]O 01 punitN'lo com·

SPIVE~

Unspecified

p,nl'lOry dlm'gll pII.'. eonlliMion.1 mUIIII. Th, Cou" dO.. 1101 lI'v, ,1,b,ll) 1111 dlg"1 01 reprlh,nllbility or upl,in why \h, d,l,ndlnr, ,Cllonl .rl .ep.lhlnllble.

I-

HILLCRES.,s

Unspocified

Cou" ItVI "roprOhonllbihlV ol llle defendanll' conductl. oi l degrto th~tIUPPO"$lh' iury's punitlv' dlm_gea Iward" wlthOUIII.tlng what ~'lIroe 01replehenlib ilil'l hn bun IIllblished. Tho conduciis rlplllhlnilbl, beuu.. it Involve d knowinG coneutm,nt,

UNION SECURIn6

High

R,pfeh,nslbllity Is "high" ble.uu ~ IMOIY.. knowmg conc ..lmtnt, bUI thl$ls mlti~lttd by Ill, IICI that th, ,g.nt'. bid conduct WII In ",Delf.,ion" lor til' company

R'prlllinlibility il morllo t1ln In /}(l/orl SlClmrybtuull thl dll,nd.nl'l conduct inv)/Y,d knOWIng conclilmen! but wn nOI In .blrr.tion Ipersons oth'r thin thl' plainlll! wlrl slmillt ty vietimiledllnd lI.d. grul Iconomlc Imp.C I on, POtU plaintilt

20:1

12:1

3.5:1

1.06:1

8:1

3:1

6.67:1

5:1

2,6:1

DAISEY JOHNSON7

Higher than

Union Security

SPEREAdl

Moderate

aegrtll 01repr,l1 anaibility, IMugh ulll/l1ftle ly libeled "mode(lle: II di,cu$ud " "high: bUI nOI high enough 10 Wlrrtnl l $8,000,000 punitive award , I1II d8lm,d to be lhil high beCaulllv'n Ihough it involvad only economle Injurin'o 10philtiU18d plaillilh (buy'" ol.n IUIlI detl· ,,,hlp\, Ih, Imounl at Icon.mic dlm.ge Involved WIS grnl 'lIOugll 10 polentilily ru" th, pI.intifll,

WILLIAMSOf'13

low

EconomiC InjulY w .. n01 grltt, .nd tlltrt w.. no 'VidenCi 01Ilmn,r IfI~d on other ptrlOn.,

TALENT TREE10

Unspeci fied

purtty ICOI1OO1ic. ThI dtlllf1denl provided l0III11 kllormllion when the pt,in1JfI ori9H1IJ1y compilined, blllthe dtHtrident WJlhheld one ~IIV document until one month prior to I/ill, Thl ~1~lnli" g,vo lhe del,naDnl' fUlonabl, OPlIOnu· nily 10 r\llrl\ldv its milconducl bolore liling IUit The delenaBnl mlde eauntOllee usationl'lI/Iinll the ptlinhl! during the cour •• ol l~ialtiort. Thl dvllll"d.nt conc .. ftd information wIllch" t'Mlnc:. olin knPfcptr motive

PATELll

Significant

F.m lly mlmb,r'1 liking Idvantlgl 01rel,tlv"ln halfl Is,nuction .nd milrlprellnllng prolil.bllrty w•• -.1110111. Clnl/y repfllI,nlibl,:

2.8:1

2:1

111jllr'l/ wU

c.,,, rtill.ndt\! boo th. Unlttd Stlill SUPfllM Caun lor lul1htr reView PIIrlu,nllO BMW of North A_fin, Inc. v. GIN" 517 US. 551, lie s.Ct. 1!lit URI) fOOfNOlts 1"EncIwI\I ratio" mUIII IN rWo 04 ~ d.m.!It" 10 eCllllPln,,1OrY dim"" ,: B.girvw!g ratio" indi<:,."lht rtll\l, of lht "tio 01 punIuvt ~llIIIg.. to com~ni\(;luded in the AJ'NIIII SuP/tmt Coun'llinIt ruling In otIltl wordl, ~ l!!I (Ilia hll "\01'1 d.m'QII willi wI"!i:~ th, Altbam. SUprlnlt ColI" WII contrOll!td 111 the 0\11. t .... rtductd on .ppt.I, 1hl11ig~rt II -MIlt k hIS be ... "duetd 10. HI of \hI currtlll 1rtv1ew IlIIht CIM.IM 10IIII' CI.", thl Court Is r,..;,wing I lillY 1 Thli c••, kwolv'IItM difteuifl! eaurU: on, ..ch at mI,,,pr,,,nlltion'nd I Up' VIIrdlct far rn l Ilrll ~m., lhllur(1 VIIrG iet m.v or m.y not h,VI beln rtduc.d by thl ~fI"ion lor two dilfll.nt ~.intflfl trill COUrt belart !hI ,pPIII, I~ other CI'eI, thl Allblll\l Supreme COurt nl$y 4. 1l1li ,,1Ia1!1)f thll elll." PI'Wlltd In IhII Of~lr (I) P1.Intr!! Pllhlm·, misllpr •• ,I,udy ~.yt "ducta Iht verdict onee, Iwt I, now rty~ Iht c." •• lcOfld time ,,"IIOan clll.-n; 121 Pl,01!rH Musey'l mIIrtpr'llnt.ltion ct.1m; (3) PIt ntt!! p.rhfm·, on oru.r IrOfl\ lilt U.S. :suprenlll CIIurt Ith,.. enll 'rt1ndlc.1Id with In Il1lr1sk). IJppr.11IOr'I clllm; 141Pltintifl M.IM'(J IUlJPl"tulon cllm. 'f I'TU'P~" ' ''''B I :, , '

joined in See's dissent in Johnson), The other plan, announced in the per curiilm opinion in COre-Ala" would generally cap punitive damages, regardless of their TOltio to compensatory dOlmltge~, at 10 percent of the "net worth" of the defendan t. This idea was endorsed by Justices Shores, Almon, Kennedy and Butts (viII their COllcurrences in the per cur/ml1 opinion of Gore-Ala.), lmd perhaps also by Justice Cook, though his concurrence in the Core -Ala. opinion is not entirely clear on this jloint, As with so much in this area of law, however, the proponents of each of these plans have not advilnced them on a consistent basi$. Justice liouston authored the majority opinion in Poremost in which a ralio of 492: 1 was deemed appropriate. Justice Houston hM al~ concurred in a ratio of 5:1 ('flllent1'H!e Persollnel Senlice.~. Inc. /J. Fk'tmor , 703 So. 2d 917 (Ala. 1997)) witiloul specifying any ci rcumstances that lWuld j u ~tify a ratio higher than 3: I. The "10 percent" pllm hM fa red no beUer. In Hillcresl Cenler, Illc. /J. Rone, So. 2d (Ala. August I, 1997), authored by justice Cook and concurred in by justices Almon, Shores, Houston and Kennedy, an award of much greater than 10 percent of the defend.lnt's net worth (43 percent) was uphe'd in a case in which the pl ~in t iffs complaint was that the defendant miMep r~~entcd how many parking spaces wQu!d be available for Ihe plllintiffs hair foII lon if it leased space in a p;!rticular commercial building (Ihe repre· hensibi lity of tllis act was ~ unspecified). The ratio of punitive to compen5.llory damages deemed fair in this case was only 2: I, however, leaving il within Justice Houston's bench\Thlrk approach. nathel' th~n <lpplyina ei ther the" 10 percent" rule or the "3:1" benchmark, bolh of which have been cxpres$ly discussed in tht opinions, the court IIppears to be merely reducing liwatds by IIrbitrary percentages once il has made a finding that the aWlird is excessive, A (llir number of these reductions are very roughly il, the neighborhood of one· hal(, though a look at Ihe change in ratios of the ten cases as illustrated in fab le 2 (what the ratio was before the court heard the appeal and what the ratio became as a result of the court's ruling) show5 three clear ellceptions: (I) Core-Ala., in which a 500; 1 ralio was reduced to a 12.5:1 ratio (bul remember thai the (i rst time lhe Alabama Supreme Court had this case, before it wenl to the U.S, Supreme Court, the Allibarna CQu rt cuI the p\rni tive award (rom $4,000.000 to $2,000.000, exactly iTl halO (.tile BMWorNorlhAmerico, Inc. /J. Gore, 646 So. 2d 619 (Ala. 1994)): (2) Foremos t , in which a ratio liS high M 10,94 1:1 was reduced to 492:1; and (3) Tolllnl Tree, in which a 6.67:1 ratio was reduced to 5:1 (but, again, the originlll jury verdict was ]0: 1 before it was reduced by the trial court. 50 the ultimate effect o( the appeal process was to cut the jury's puni. tive verdict in ~aIO. Potul is a particularly interesting opin-" 8

Md'"" " i !.

TIo~tlM"",,,, 1.IJ"~r

ion in this regard, in that the Alab3ma Supreme Court affirmed an award or $225.000 in punitive damilges whic~ itself was arrived at by the trial cou rt's cullin~ in half the original jury verdict's award of $450,000. In other words, the Supreme Court of Alilbama merely adopted the post-vcr· dict review Imd remitti tur of the trilll court. which was ~ reduction of t ~e verdict by half. In the other cases, we see changes such as the reduction of a 20: I rlllio down to 12: 1 (johnsOll), and a reduction of 2,8: 1 down to 2: I (Hillcrest), both of which are reductions of not Quile half, i110ngside reductions of 8: I down to 3: I " Imaricon PiOIlC(fr Life Ins. Co. /I. WilliamsOIl, 704 So. 2d 1361 (Ala, 1997)) and 3.5:1 down to 1.06:1 (Spcrou), bolhofwhich are cuts of more than half. Once a~ain, however, the results in these cases provide no real predictilbility of how future awards of puni tive damages will be ~l1lr.lyl'.cd 011 ~ppeal. Perhnps more importnrltly, these results have nothing to say about the ini tial stage of the process, the jury trial. Even if a defen· dant had II rough notion that lin "eKceuive" ver· dict might be significantly reduced on ap]leill. there is nothing in the post·Gore decisions (rom which that defendant could reasonably predict what amO\lIlt of punitive damages might result from the trial court's inst ructions to the jury, [n other words. one-half of an indefinite number i~ still "n indefinite number. ''Comparabla Sanction,": The L.a,t·U,ed Guldepoat In deciding if a defendant received fair notice of the amount of punitive damages that might be assessed against it, the U.S. Supreme CQurt emphasized in Gore-U.S. the role of "comparable sanctions." In other words. if there is iI civil or c rimin~ 1 statute th~t hpplics to the same lIel$ M those which form the basis of a common-law (:.use of IICliol\, the reviewir,g court is to compare the maximum statutory fine to the puni tille damage award. TIle simplest example of this is Alabama's Deceptive Trade Practices Act. Ala, Code §§ 8·19-1 th rough 15 (1993), which crelltes a civil fi ne for certain types of dishonest beh311ior in a business can· tex-I. The victi m of such an act has II choice of sui ng under the common law (or fraud, or for violation of the trade practices statute. The maximum civil fine (or a s i n~le vio l ~ t ion under the statute is $2,000. The act also authorizes a private action in which "up to three times ~ny actu~1 damaAes" (§ 819- IOl may be recovered. Oased on the language of § 8· 1910(11)(2), il seerYl$ clear thlll the amount over ~rld above lhe actual damages. or an amount equal to twice those damages, is intended as a punitive award. The punitive damage awards at Issue in the first len cases decided since GOfB-U.S., howev· er, are all much higher than $2,000 3nd most are more than twice the amount of compensatory damage (see fab le 2),

MtlnY of them are in the millions of dollars. The ~compa rable 5antti on~ guidepost has had no dis· cernible erfect on the computation of the awa rds in the majority of the ten Alabama cases. Instead. in most instances, the Alabama court has held that if the statutory (ine to which it would otherwise compare the awa rd of punitive damages is lower than the award. it cannot be meaningfully eml'loyed in the post.verdict ana ly si~. Only if the statutory fine is already large enough to Justify either the jury's award or the amounlto which the court Intends to remit that award will the court un it for complITison. Th is was made clear in the p(!r curi(1m opi nion in Corll' Ala.. which statu: under the Alabama Deceptive Trade Practices Act. Ala. Code 1975 § 8- 19·5. tht m.. :dmum sanction for committing a fraudulent act against an Alabama con· sumer Is a meager $2.000. Benuse tht legislature has set the statutory penalty for deceitful conduct at such a low level. there is little basis for comparing it with any meaningful punitive damages award, particul<lrly where the defendant is wealthy and the profit gained from the fraudulent act i5 substantial . Core·Ala .. 70 1 So. 21,1 ,,15 14. Thus. the court turned away from the Question of whether anything in AlalNlm,I'S positive law would Ilut a defendant on not ice that it might be punished by an aW:lrd in the mlllion~ of doll .. rs, and addressed instead the unrelated (though potentially important) question of whether the. legislature had Itt the civil finl: for deceptive trade practices at an amount sufficient to deter a \\'ealthy transgressor of that statute, Justice Cook's m~orit}' opinion in Sp41f(J1I proceeds similarly: As we recogn i ~ed in Bf.1W II. a $2.000 statutory pemllty for deceitful conduct is so meager lhallhere is little basis for comPMing it with any meaningful punitive dnmnges awnrd, Spt/rau, 708 So. 21,1. 111 122. Despite the lrenlment of this (tuution in the above exam· pies, in six of the ttn post-Core cases, the "comparable sanc· tion" guidepost Is not employed at all. Only in "'orcmost, Spcruu, To/elltThY, and Patel is this guidepost actually included in the analysis of the case. In 1-'oromost, Justice Houston noted with rupect to one of the four cou nls being analyzed thlll the jury's Ilward of punitive damages was 3,000 times greater than the maximum civil fi rle available for the defendant's conduct, The 1l1ll0unt of Ilunitive dnmnges to which the court reduced lhe award, how· ever, was still 750 times greater than the civil fine, Only in Spt/rtm, authored by Justice Cook, has there been any meaningful use of Ihls guidepost. In reducing a punitive damage award (rom a 3.5:1 ralio to an "pproximalely I : 1 ratio. Justice Cook noted that a comparable slMutory action would have allowtd a total aWlird roughly eQull1 to Ihe lotal amount of punitive and compensatory damages al which he arrived after anal)'1,ing the other guideposts, Because his tolal was si milar to what WQuld have been mandated by the statute, Justice Cook concluded thaI the defendant , under that guide. post. could not be 50111,1 to have been denied fair notice of the poleniiallllllount of punitive damages that might be a{firmed by an appellate court in Alabamll.

In Toltmt1h.'e, however. Justice Shores noted that the defendants' conduct was analogous to the crime of Iheft by deception . ..... hich carries potential imprisonment o( two to 20 years. She further concludtd that potential impriwnment of 20 years should put a defendant on notice that it might have 10 pay as much as $1.500,000 in punitive damllgu in /I civil case, She did not. however. explain why Ihe potential for prison time could not justify the origlnnl award of S3,000,000. or Ihe award of $2,000,000 which foll{)wed the trial cou rt's remittitur. In perhaps the mOll puzzling of these analyses. Justice Cook mmmarlly concluded in Potl!/tllal "I tlhere are no comparable civil or criminal penaltiu for similar conduct~ (708 So. 2d at 163) even though the case dealt with common·law fraud. which he had already compared to the Deceptive Trade Ilractices Act in Sperall. Indeed, in Sperou Justice Cook specifically discussed the attributes of the Deceptive Trnde Practices Act that would have 11l<lde it a useful comparison to the facts present in Patel. In SperO/I , Juslice Cook Quoted from Ala, Coda f 8·19·5(20), which declares unlnwful the (ollowing: In connection with any seller-assisted marketing plan, either misrepresenting the amount or extent of ea rnings 10 re$ult therefrom ... SpmYlU , 708 So. 2d <It 121. The fraud in 110M. though not in the rontext of a ~selle r·.:L'Uisted marketing plan.~ concemed misreprt· sentatiQlu of the extent 01 earnings that would result from the qlCration of a hotel which the def~ndant $Old to the plaintiff. In addition. the sanctions available under this ,t..lule would ha\'e come very close to justifying ~ total punitive award affirmed within Justice Cook's opinion, The coml>enscatory darro.g~'S in Pulel wert $85,908. A treble damage a....'ard under Ihe Deceptive Trade Practices Act would have yielded II toUli damage award of $257,7201 plus attorney'S fees. The total a....'ard affirmed by Ju~t ice Cook w~ $3 1Q,908, $225.000 of which .....as punitive (a rlltio of 2.6:1). A ratio of 2.6:1 is not 50 far (rom 2: 1 that one could, with any predicl.'lble degret of succeS$. claim a IlIck of fai r roHce that a jury mig,ht moderately exceed the statutorily·sanctioned punitive a.....ard. I~cg."lrdless. Justice Cook cho5e not 10 compare the staluto1')1 remedy to the conllnon·iaw action for fraud despite having Wrle$Oin SpmJu, SIX!rulilherefore remains Ihe sole exception to a body of opinions in which the Alabama Court has Simply not ut ili~ed the "comparable s.lnction" guidepost in lilly wily that could provide predictability.

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Barbara C, Miller v, Alabama Siale Bar ASB 93-393, 94-086, 95-192 ALABAMA SUPREME COURT ORDERS S.C. #1950330, 1960912 January 9,1998 "(W)e conclude thut Mi lle r should be

unconditionally rclnstntcd, ..lmmedlalcly. ,. March 13, 1998 "(T)his Court became convinced thnt Miller had unduly been required 10 suspend her practice." "We cannot come to the conclusion thnt Miller deliberately defi ed (Ill order or this Court." June 10, 1998 Refund or Court costs denied. PAID FOR BY FRIENDS OF BARBARA C. MILLER, ATTORNEY JOines Reeves, Trustee, SOUTHTRUST ACCT. #57-493-080

-HiM" l""ill,l .

Th.IlIabumuUsu·yn-

regarding

punili ~

awards in civil

one (/lnno! yct reliably fo r~see the maximum punitive verdict thai might be rendered in any given cllse. Tht only rcal lesson o( the first ten cases is th<ll it is

case~.

800 529.6278 w.ow, blumbtrg.tom

belter for a civi l defendant to appeal an award of punitive dall1age~ thlln to accept it. 1'he odds appear Quite high that a IMge puniti\'e award in 11 non,wrongful dl:ath case wi ll be red (Iced sill:nific.lnlly on appeal. though the reasons for thb rl1!ly r\Ol lilway~ bt> cil;ar. This uncertainty ,ippears to be a conscious choke of public \'IO!icy-the favoring of deterrence over predictability. For betLer or wor§e. how· ever, the Supreme Court r:i the United States has enshrined predictability in the temple of due process. II I\ls not yet made a similar icon of deterrence. The PQtential conflict of these twQ gOOl5 sug· gests that COf(!' U,S, may not be the last ~tatement that our nation'5 highest court i~ called on to r'n;tke in the arena of p~mi. \lW! iliImalles. •

Prepaid Affordable College Tuition Program (PACT) Alabama State Troosurer Ll.Cy Baxley encouragos paronts of c:!Jildron from birth to ninth grade to consider enrolling thorn in .illabama's Prepaid Atfordable College Tuition lPACT) program This program is administered es B d i~jsion of the Stata lraasurar's Office and prosontly has en enrollment of 4S,OOJ children Since its inception in 1989. assets of the trust fund have grO'Wll to over $470.00J,!Xll laws establishing thiS Pfogl1lm JXavide an opportunity for parents. gmndperents or othel spoosors to participate by purchming Ii contract with PACT, Benefits of the contract Pfovide full payment of tuition and mandatary fees fOI four years of ul'dergraduate school a! eny publiC college or univerSIty in the state. If the student elects to el1encl a pri' vate or OUt·of·state sc/'ool, PACT will pay the amount of the weighted avclage cost of tUlMn and fees charged by the public foor·year institu· tlOl1S in Alabama EnrOllment is open only one month each year Enrollment for 1900 WIll be avaIlable f()( the month of September only Cast for ernolhng thiSyear valles from $7.949 for en infant to $11,001 for a studoot emellng ninth grilde In the fall Payment can be made In one lump sum or bot an exter.ded paymoot plan. For more information or an application for enroll· m ent, pleB!e call the PACT Division of the Tr08$l,lrer's Office at ' -800-252-7228 or (3341242-7514.

/4utirj ~@J' 1IP;:o.ft/4Off, Ib I,",

Appellate Judges alk About Appel ate Practice by Susan S.

_.-f.

na perhaps ur1('! recedcntcd gathering. 14 appeliate judges mel in May to talk about effective lIPpcl. Illle IldVOCllCy at the 1998 Business Torts and _

AnlitruSI Inslilute, cospon50Tcd by the Alabama Stlltl! Ilar Ilusineu Toru lind Antitrust Section and ABICLE. The panel

consisted of seven active justices and one (or· mer justice of the Alabamll Supreme Court, the entire Alaooma Court of Civil Appeals, and one representative of Ihe Eleventh Circuit Court of Appe;lts. In a program packed with notable speakers and timely issues. Ihe appellille panel WM the high. light Mnl.

Bot topics amol"4 the Alabama judges ....'ere from tnt Alabama Supreme Court to

Ihc Court of Civil Appeals under Ala. Code I 12-27(6) and discreliOl\lry review of AI,,/)'lm., Court of

Civil Appeals decisitms by writ of certiorari to the Alllooma Supreme Court. Other topics included effective writing and oral argument, Interlocutory appcOib, common mistakes, and miscellaneous procedural tips. SlIpreme COllrf Riller Act, The "denection" provision of Ala. Code § 12-2-7(6), which Presiding Judge William Hobertson

calls the "Supreme Court Relief Ac\''' was enacted in 1993. 11 permIts the AlllbllMa Supreme Courlto transfer cases previ. ously within Its tKclu~ ive jurisdiction to the AI"b"ma Court of Civil Appeals. In fact. with the eKception of utility rate cases, i>ond lIaluation proceedings, land bar disciplinary proceedings, the supreme court may in Its discretion trOinsfer ally COi$C, unless the court determines that thc aue "presents a substantial question of federal or state constitutionlll lllw" or "irwolws a novel legal question. the resolution o(which will halle signif-

W_,n.r

Su. . n S. S wtor*. ol I'll 8tr~ Innol~. l~ .... & I<uInne! _ '" lW1. CNIoDliIOi' 01 " ' ........ Staat BIt a.a... r_ &. Ml\ruII SteIlOn ShlfWC.....:I oto'M IoI:m lilt r..w..ttMy 0I1Jeb11Ti1

"""'

....

'* ....

Ic.lnt stDtewidc Impact." practitioners who h:ld nellH prllcticed before the court of civil appeals may now find a large portion of their IIppellls being decided in Ihe firs t- and often last- instance by the court of cilli l appeals,

~lany

Mlu ed Qpportllll itll' The Alabama Supreme

~denectionri

Wagm~r

Court Iknects roughly 29 percent 0( 115 cases, and the denected cases make t.Jp about 30 percent of the c.ucload of the court of civil appeals. On the other end, only about 10 percent of petitions (or wrIt of certiorari to the court 0( civil .. p~als are granted. Thus, the best chance of assuring that a case is heard by the Alabanlll SUI)remt Court may be to resin denection in the first place. The time to oppose denection is before it happens. Judge Sharon Yales noted that ~·orm 24, the docketinll statement for appeals to the Alabama Supreme Court, contains a question addressed to the appropriateneM of dent'Ction. It ;uks, "If you believe this case should rot be transferred to the Court of Civil Appeals Ipurs\J(lnt to AI(I. Code § 12-2· 71. pleil.~ SlMe with specificity the TCiI.'IOns(s) why it sho\Jld IIQI be transferred ...." Unforturl.'tely, allpellant5' attorncy5 ollen delcgate the task of completing Form 24 to M(rCUlries hnd Il'lralegal$ who do not know the significance of thls quc~tlon. AIlPClieef cOlUl5e1 rarely Ulke any stand on denection, but may make their yiews known through a leiter to the clerk of the Alllbam:l Supreme Court. ApfH!J/ot(l Hlli(l 39-the Silent Killer. Justice !'>lHk Kennedy reports lhat an ~ow rwhelmlng number" of applications for (trtiorllr! to the Alubllma Supreme Court are procedurally defective beca u~e they fail 10 comply with Ala. n. !\pp. R. 39. These applications are denied because lhe court ca,not reach the merits. Justice Kennedy said that the order denying certiorari in these cues generally dots not cite the proctdural irregularityas the reason for tht denial. Justice Corman ilouston reports countinR 20 certiorari petitions in a single conference

Of Iht ~ u pr(: m e courllhal were denied bet,lUse the lawyers faill!d to campI} with nule 39 of the Alabama Ilules of Appellate Procedure. The critical requirements of flute 39 ,Lre de$crib~d in /:.X J)ar/~ &/00 Our Sfreams, IIIC., 541 So. 2d 549 (Ala. 1989). Under Hule 39(a). an appliCillion (or rehearing in the court of civil appeal$ must tirst be filed. According \0 Judge Sharon Yate.!!, the mon common mistake in applying for rehearing is the fail ure to comply with Hule 39(k) re l<~ ting to motions to adopt additional or corrected facts. This failure effectively precludes review by the Alabama Supreme Court. Ac,;ommon mistake in seeking certiorari is in failing to satisfy thl! requirement of nule 39(c)(4) for specificity in alleging that the court of ciyiI appeals' decision confli cts with other controlling Illw. Other " " sl ak(ls lha( "'altllr. Justice HMOld See pointed out

that because failure to file a notice of appeal within the lime sct forth in Alii, H. App, I~ 4 is jurisdictional. 5uch mistakes as niing in the wrong court or attempting to file by fax can result in the dismiss.,1of an appeal. With respect to papers to be filed in the appellnte c,;ourb. Justice See also noted that they arc "deemed filed" under Ala. It Civ. P. 25(a) on the day ormailinll: if "certi· fied. registl!red. or express mail of the United States I'ostill Service" Is used, but /lot if th~y ar~ sent by Federal Express or lIny other overnight courier servke. Thu~, an application for reheari ng sent b~ Federal EKpres~ on the due date will be dis· missed a5 untimely.

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Justice See noted that it is the litigants' responsibility to get the record I'iled ,Lnd to make sure that it is Corllplete, Counsel should personally review the appellate record. including exhibits. in the trial court to be su re nothing is omitted , Judge 10hn Crawley sugllested that counsel should make sure, in ClLSes with 1L preliminary hcarinll, that (11/ of the transcripts make it into the record. Where no transc ript of the proceedings is a\'ai lable. Ala. R App. 1'. IO(d) permits the filing of a "stat emcnt of the evidence or proceedings from the best ayailable melLM. including the appellant's recollection." Judge Roger Monroe sta ted that without a transcript or Rule IO(d) statement, the appellate cou rt cannot reverse on the basis thai the decision is not supported by the evidence, If no evidenliary hearing has been held, Jildge Crawley suggested being su re th,Lt the absence of a hearing appears of record. Don 't Nake

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Cr/l. Chief lustice Perry Hooper's advice for

oral argument:

Don't make a jury argument: Stay at the podi um: I)on't spread yourself too thin: and Be prepared to answer Questions (rom the court. Accordinll: 10 Justice Corman Houston, the Alabama Supreme Court hears oralilrgument in on ly 10 percent of the ca~e~ . Counse l can expect that at least one justice- the one to whom the Cdse is assigned- has thoroughly studied the case. briers, 1ll1d record llild n ccd~ help in writing an opinion. This justice will have written and ci rcul ~ t ed to the other jU$tices a bench memorandum in which the fa cts, issues. !tandard of review, and contenliorls of the parties arc $tt forth.lu ~ ll ct Houston explained that the court is looking for: A factual summary distilled into Ii few sentences: A "dialogue with the court. not a monologue to the cour!"'; No jury speec,;hes, lectu res, personal attacks all opposing counsel, or overstatements; A logical <Lnalysis: Eye contact: Courtesy and honesty: and A complete understanding of the I~w pertinwt to all the issues. flow 10 Write tile Opi llioll. On the topic of brief writi ng, rormer Justice Terry Butts agreed that the court docs not want {L jury argument. 5<lying, "Please don't 'w/lYe the nng' or ask the court to 'send a message.'"' Justice l3ults also adYised:

A\.'Qid legalesl!: Write in th~ active Yoice; "If it can be said in ll!n words, don't S<ly it in 11," DOLl't put nn Issue before the COurt and then f~i ! to develop it so that the cou rt has to do your research fo r you: Dorf t make arguments in (ootnotes: Oon·t "endlessly chronicle ",'ell·established points of law," such as the standilrd o( review in summary judgment cases:

Cite only recent cases unless an older ca5e is mort notable aulhority; Don't discuss dted ell.~(:! withQut explaining how they apply to your case: Don't misquote or misrepreunt the holdings of cases: Make the brief friendly and easy to re.ld: Bind the brief 50 that it lies flat ; and Break for paragraphs frequently. Justice lIouston s.,id that in prcpMing briefs, he would first wrile "the best opinion that I think my client could J'JOs~ i bly gel" to "makt sure that it will write that way" and then would brier (rom Ihat opinion. J It $uggnted lilat i( the law is against you, cite Justice Shores' slatement in Jackson v. CitVof flor/!/ICfl, 320 So. 2d 68, 73 (Ala. 1975), 10 Iry to get the court to change the law As stron"ly as we believe in the stability of the law. we al$O recognize thililhere is merit , j( not honor, in admitting prior mistakes and correcting them.

Justice Kennedy suggested th<lt it might not help your rehearing application to argue thai the originDl opinion "shocks the conscience:' is "the worst thing I've ever read," or "cannot be the lall'." Justice Janie Shores ~id that the court is looking (or help from the lawyers, txplaining that the Alabama Supreme Court handles more than 1.700 cases per year, comp.ved with 100 cases decided by the United States Supreme Court. Accordin" to Justice Shores. "Some firms can complicate any cMe." She strongly suggested that in the statement or the case. only the criticall'Vcnts be outlined, not the date of each pleading, rnQtion, and rulinJl.

upon by the Appellee and Appellant:" 6. folisquote, or better yet, don't C\len cite le~l authority which supports your argument on a point rJ law, Simply use words like'l conclude:'1 beliC\le' or 'Ihe court must' to get around this technicality. 7. In your statement of (.lcts, include only those facts favorab le to your client. The judges will have no prob路 lem with your attempts to deceive the court and will likely not even notice the inconsistencies betwecn )lOur brief and that o( your opponent, 8. Include every issue, fact and argument you Clln think of, t!vt!n if they weren't raised at the trial court level and the chances of succeeding on lhese points is extremely unlikely, This will serve to beef up )lOur brief and make (or extremely tedious reading. 9, Do not cite to the record in your brief. I-Iowever, i( by chance you slip up and do so by Ilccident, make sure you reference the incorrect page number and send the judge on a wild goose chase. 10, Exce5Sive humor, sarcllsm and cliches arc definitely to be Included. II , Don't miss an opportunity to Cllst aspersions on the Intfiligence, motives. or integrity o( the opposing attorney. 12. Try to include 50melhing insulting about the court In your brief, For example, tell them that you've researched their opinions and have found that they consistently, unfairly rule against people like )'Our

A Rflolfll JJod IJrI,1. Judge William Thompson reminded uS

thallhere are many fine books and articles written about how to write good briefs. I-Ie c ho~ instead to provide" 12 Steps (or Writing a Really Old Brier': 1. Totally disregard rules 28, 31 and 32 o( the Alabama Rules ofCillil Procedure. Following thtu rules will only lead you to file the requisite number of copies of a time路 Iy and technically correct brief. 2. Don't worl)' about Ume constraints. Wait until your opponent files B motion to dismiss (or your (allure to timely file a brief and then file your brief the next day. 3. Include numerous eye,catchingtypogrllphlcal and grammatical eTrors interspersed with a multitude of mlssilelled and misused words. 4. Never miss the opportunity to confuse your reader with a ftw misplaced modifiers or poor pronoun place, ment. For example, one we saw recently was, 'My client could not see Ihe judge because he was In jail charged with Driving Under the Innucnce: 5. Confuse the facts by using 'Appellant' and 'Appellee' instead of the parties' names. For example, "'The Appellant lold the Appellee thai the A1lpellant'$ land. which previously was owned by the Appellee's mother would be sold to the Appellee when the Appellee paid the Appellant the purchase price agreed

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tions and prog ram opara tions of the bar, Now ASB commissioners are: William I. Grubb. II, 3rd Circuit, Eufaula; Ernestine S. StipP.

5th Circ uit, Tus kegee: W. Scott Dona ldson, 6th Circuit, Pla te No. 1, TUSC8Io0A8; CellI'! J . Collins, 13th Circuit, PI8ce

No. 4, M obile; Thomas J . Methvin, 15th Circuit, Place No. 4, Mo ntgomery; Charles A. Langley. 24th Circuit, Fayette; Homer W. Cornett, Jr., 26th Circuit, Phenix City: and Roy W. William s, Jr., 32nd Circuit, Cullman.

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client. Or you m:ay want to take the lead from the Texas attorney you may h:ave read about in the AflI.\ Joumal, who described the Texas Supreme Court as 'one of the fou r horsemen of the apocIlIYP$e' and its justices as 'nine nUlly professors: J feel sure he'll prevail."

E.rtruunlinar/l and 'nterloclI/or/l. Justice Hugh Mnddo" slaled thlll e"traordinary writs mllke up approximately 12 percent of the Alabama Supreme Court's Clliendar and are often used by the court to review arbitration and clllSS action rulings, Apptal by permission under Ala, It App. P. 5 is rarely used, Justice Maddo" suggested Ihal summary judgments sometirI\Cs arc used, wit h the trial court's cooperalion, as a method of interlocutory review on /I dispositive i5S\le of law. While the rules prescribe no time limit for the filing of mandamus petitions. U,e court may I'IOt be impressed that a petilion riled 42 days after an adverse ruling is Ihe sort of emergency that merits extraordinary relief. Last-minute petitlon5 to delay trial are not well received. Judge Hobertson recommcnded thllt if the Alabama Court of Civil Appeals denies:a writ of mandamus, the losing party should rile a nlOW petition in the Alabama Supreme Court under Alll, R. App, p. I~ule 21(e), rather than an application for rehearing in the cllurt of civil appeals. What B!s, YOII Should Know About the COllrt of CMI Appllals. Presiding Judge William Roberl$on explained that

court of civil appeals' cases are randomly assi~ned to individual judges by a "draw pool." The court of civil ;Ippeals holds lin internal "motion docket" each Thnday to keep motions and extraordinilry writs (rom "(ailing through the cracks." I( a motion or writ is:an emergency, the court will re5pond immediately. Otherwise, motiom usually are acted upol'l withil'l 14 dll.Ys, Extraordinary writs remain on the motiol'l docket until ruled on or placed in the "draw pool" (or preparation of an opinion. Judge f.1onroe noted lhal the Alabama Court o( Civil Ap~a ls r;lrely grants oral argument$ becau5e o( its heaV)' case load, Bec.luse the court will hold cases sill ted (or oral argument until it gets a full calendar, their dispositlOrt may be delayed,

bwyers PilY heed to the wisdom of Wirtston Churchill, who said, ~Sho rt words are best and the old words whtn short are besl of all." Judge Carnes also told of John Newton, an 18th<entury English slave ship captain turned abolitionist and prellcher, who is remembered chieny because "one of the songs he wrote is such a pmverful statemenl aOOI.J1 his wretched put and his deeply felt religious f/lith , , . that it has become the most popular Christian hymn ever written. It hll5 endured for more than two centuries, has betn translated into many lanllllalles, and is sung by millions of people every year." The song is "Amazing Crace," Judge Carnes mused, "Why is that hymn so powerful Mld moving? or course, John Newton had much to work with, beClluse he had a real message to deliver aoout his pllS!. 111$ conversion, lmd his faith, I laving something to say is essential to effective writing in briefs and In hymns," "Ama: ng Crace" has six verses, but a total or only 148 WQrds, The a\erllge WQrd length is four letters, There are only \....'0 three-syllable ....,ords In the song - "amazing" and "al ready" - and none more ~ompliC<ltcd than that. "The old slave trader turned preacher wrote with siml)le, direct, powerful words," "fl ow fortunate we are thllt John Newton was nol an attorney,~ Judge Carnes said, "Think about it. If h~ had been, instead of writing 'Amazing grace, how sweet Ihe sound th;tt SlIved a wretch like me.' he might have wrillen: 'Oh, extr..ordinary reli"ious epiphllllY, which was not unwelcome inlml1l.lch as it induced a stale of spiritulil transcendence for an allegedly not unneedy p;lrty, such as the undersigned: "It Is hard to imagine singing those wQrds ala funeral. and there is little chance they would h:ave lasted for more Ihan 200 years," JudJte Carnes then challenged the audience to translate the (ollowinJt legalese into a famous line (rom a "down-home, bayIng-at-the-moon, done.me.wrong" COurl11'y sonQ:

"Your ","lent predisposition (or indiscriminate cunality will inv,uiably lead to self-inOicted mental anguish, as ....'tll as to self-incrimillilling gestures, WQrds, and deeds."

A" E.rtraordfnary Eplphatl/l. The sole representative of the

Eleventh Circuit Court of Allpeals, Judge Ed Carnes. add ressed effective speech and writing, He suggested thilt

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When Justice Se~ guessed I-l.. nk Williams' "Your Che~ti n ' lieart" ("Your cheMin' heart will tell on you, , . ,"), Judge Carnes said that it worried him that Justice See was able to g~t it right, Judge Carnes summarized his advice: "So. if you're in trial or on appeal because your client has a chutinQ heilTt, just rtmember to write and speak with amll2:ing grac~."

6(""diOl(S' ? Justice Jllllie Shofes told us to call or come by the clerk's office fo r answers to tricky procedural quntiorlS, The personnel are knowledgeable and an"lous to help, Judge Crawley echoed this stntiment with respect to the court o( civil appeals, but advised: ~If the phone is busy, go read the rules," •

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the state and nation . The person sought m ust have a J.D. degree and 8\ least two years' experience in the practice of law or other equh"alent experience; be self路motlvated and self-directed; possess excellent communication skills: possess strong organizational abilities; be willing to undertake regu lar statewide travel; and be able to work with a wide variety of personalities and groups. The salary is commensu rate with experience, and an exceilent fringe benefits program is provided. For consideration, forward the following materials: resu me and salary history, INCLUDING a cover leltsr expleining backgrou nd and In teresl In posillon, in con fidence to: SEARCH COMMITTEE VOLUNTEER LAWYERS PROGRAM P.O. BOX 671 MONTGOMERY, AL 36101 Deadline for submission is Oct ober 15, 1998, The Alabama Stata Bar is an equal opportunity employer.

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Reln.t.tementa • On May 26, 1998, Elberla lawyer Andrew WllMlrl 111I)'e$ WII~ rein~llIted on the roll o(lhe Alabama Supreme Court;u an attorney aUlhorh td to practice law in the courts or Alabama, [Pet. No. 9 ·0021 • On January 9, 1998 Huntsville lawyer Uarbllrll C. tolilier was reinstated on the roll or the Alabama Supreme Court ,\5 an IIttorney authori1.ed to practice law in the courls of Alabamll, [pet. No, 97-0071 • Huntsville atwrney Joe N , Lflmp1cy Yo'as reinstated 10 the practice or law by order of lIle Disciplinary I30ard of th(' Alabama State Bolr effective May 19, 1998. Ire!. No. 98-04 1

Notices • Nolict' is hertby given to Charles Timothy Koch of Mohile. Alahilm" that he must respond 10 Ihe chnrJles in disciplinary filc~ ASfi No. fl7.0YO(A) and ASB No, 97 · 11 OrA) within :10 days (mill the dnle of this publielltion (September 15. 1998). Failur~ 10 respond shnll result in (urther ,Iction by the Office uf General Counsel, (ASH No, 97 -090(A) and ASB No. 97· 11O(A)[ • Notice is henby !:liven t(l Theodort Richllrd Pcanon of Bi rmin~ham , Alabama that he musl respond to the charges in disciplin,u)' file ASB No. 96·313(/\) within 30 days from th~ dale oftbis publication (September 15. 1998), Failure to re~p(lnd shall result in further nction by the O(f"ice o( General Counscl.lASB No. 96-313(A)1 • Notice is henny p:iven to Carey W. Spencer, Jr.. wh(l pr:lcLiccd Iilw 111 SturnridJle, H a5s~chu5ells and whosl! whcreahouts .Ire unknown, thai pur5u~nt to ,Ill ordtr to show caU$C o( the Disciplinary Commissinn of the 1\lah.ln1a Stale IJar, datetl June 2:1, 1998. he has 60 days (rom the dnt~ o( thi~ puhlicMi:)n (September 15, 199R) to come into compli. ance with the tolantlalory Cunlinuinll l.eJlill Education requirements for 1997. Noncompliance wilh the tole!.!:: requirements shall result in a su~pen5 iun of hi~ lice n~ , [lU; No, 98.381 • Nolice is hereby ~iven to tolclvin Hichard Il ullhe! who prilc· Heed Inw hI Bi rmhighalll, Alah;nna .lOd whose whereabouts ltre unknown, thnt tlUrSulint tn an order to show cm,ISI! of the Disciplinnry Commission of the AlnlxlM11 Stilte Bar, tlated

2:1. 1998, he has 60 days from the date d this publica · tion (Scpt~lIIbcr 15, I99S)tn corne into compliance with the tolandalory Continuing Ltgal Education fI:quirements ror 1997, NonCOllltllinnce with the toICU\ requirements shall result in a susllCnsion o( his license. [CI.E No. 98-9J

Jun~

• Notice i~ her .. hy /oliven to l.cl~nd l.. I'rlcc, who practiced 1::11',' in I{noxville, Tenne~se~ :md whose whereabouts are unknown, th:rlllUrSll!Ull to ,III order to .~how Cilu~e of the Discirlill~ry Commission of the Alabnmll StOlte liar. d~l ed June 23.1998, he has 60 days frolll the dnle oflhi5 publica· tion (September 15, 1998) to cOllie inlo ~(lmpl iance with the t-Illntlatory Continuing u:gal Education requir~mcnt5 for 1997, Noncompliance I\'ith the to1CLE requirements shall rc~ult in .1 suspension o( his license. [en: No. 98-37J • Notice is hereby given to Rehl'ccil Kirkland Stephenson. who practiced I~I\' in Birminghlllli. AI~b.lma and whose wherenbouts are unknown. thai llursuant to ,m order to show cause of the Disciplinary COlllmi5sion o( the Alaba11lil Stale liar, dilted JUlie 23,1998, she hns 60 davs from th., date of this publication (September 15, (998) to come into comilliance with the r.landntory ContinuillA Legal EducatIon requirements for 1997. Noncompliance with the r.1 Ct.~: requirements shall result in a susp.:nsion of her liccnse. ICI.E No. 98-191 • Notlet i~ hereby !liven to Kenneth II, t-1i1lican, \\,1'10 practiced law in Hamilton, Alabama and whose whcrelloouts ar£: unknown, that pursuant to an order 10 show c<ruse of the [)i5cip1inary CI)mmission o( the AI~h~ma State Bar, dal~d JUlie 2:1.1998. he has 60 days from the dilte o(this Illlhlic". lion (Scl1tember 15, 1998) to come Inlo compliance with the M,,"d;ltory Continuing Lc~nl ~:tluca ti on r~Quiremcnts (or ]997, Nuncoillpliancc with the MCL!:: requirements shall result in a suspmsion of hi~ license. [eu: No. 9S·27J • Notice is her~by Iliven to Carlos Rac Allen, Jr., who prncticed ]IlW in Iloml-wuod. Alabam.l ~nd whosc ..... h~rc~bouts IIr.: unknown, thnt pursuant to an order to show cause of the Oisciplinl1ry Commi~ion of the A111ham;1 Stnt~ 1~lr, doIted June 2:1, 1998. he has 60 day~ frOlI) Ihe date ofthi~ pllblica. tion (September 15, 1998) to come intu cOlilpliance with the Mnndlliory Continuing Leg,rI Educ,ltiOl\ requirements (or H197. Noncompliance wilh til" MCl.f~ requirements shall rc~ult ill a 5usJ1Cn~ion o( his license. lel.E No. 98-1[

• Notice is hereby given to Scott " atrick Archr t, who prac· ticed Inw in Atbnta, Ceor~ia and "'hose whereahouts are unknown, that llursuanl to an order 10 show causr of the Disciplinary Commission of the AI:lb,lI1lil Stale Har, dated June 23, 1998, he has 60 days (tomlhe dl\le of Ihi$ public(llion (Septeml)er 15, 1998) to come into complial\ce wi lh Ihe f-Iandatory Conti nui ng I. ~glll Education requirements for 1997 Noncompliance with the HCLE requi rem cn t ~ shill l result in iI suspension of his lice ll se.IC I. ~: Nfl. 98.291 Suapenalona

• Gadsden .. norney John Oavid Floyd pled guilt)' before the Disciplin.. ry Board of the Alabama State Bar to a violation o( I~ule 3.4(a), whkh provides that a lawyer shllii not "unlawfully obslructllnother party's access to evidence or unillw, full y alter, destroy or conceal a document or olher ffill terial having potential evidentiary valu~~ and to a viol .. ! ion of I~u le 4. 1(a). which ptovide~ that a lawyer shall not knowinltly "ma ke a false stJtement o( materllil (act or law to a third person," Floyd waSordered suspended ftom the practice of law Inlhe St,lteof Alabama for a period of9 1 dllys with Ihe imposition of said suspension to be held in aMyancc: pending successful completion of a one-year probationary ptriod. As .. condition oi probation, Floyd 11,'35 ordered to serve /I 30· d/l)' sus!W!nsion from the practice of law in the State of Alabama dftttiv~ June 13, 1998. Other conditions of probation were ordertd. In July 1996, the respondent attorney W35 retained to represent a criminal defendant who had been charged with two counts of criminal trespass in the third degree and one count of unlawful [)Osseuion of a controlled substance. The defcrldtl nt's a rre~ t for criminal tres· pass in the third degree was based on the fact lhal he had been banned from Cadsden Housing Authority property and that his name wu published on a banned lisl maintained by the Gadsden !lousing Authority for use by the Gadsden I'olice l)ep;lrtment. The search incident to the defendant's arrest (or criminal trespass in the third degree led to the charge of possession of a conlrolled substance. Although a plea agreement in the matter had b«n negotiated betwten the respondent IIttorney and the deputy district uttorney prior to the dille of trial. on the morning of the trial. the respondent attOllle), requested to be heard on a molion to suppress. Prior to the hearing on lhe mollon to suppress, Ihe respondent attorney represented to the dCI)uty district attorney that the defendant's name was not on the I-lousing Authority notice of trespassing "banned list~ and, therdore, his arrest and Inddent search were unlawful. The respondent attorney produced a copy of the "banned l ist ~ which did not contain the defendant's name, When the police offi· cers involved In Ihe arrest produced their copy of the Housing Authority b.. nned list. it was diKovered that the Housing Authorlty banned liSl produced by the respondent attorney had been altered to delete his client 's name. In determining discipline in this case, the board considered the (act thai the altered document was !lOt submitted as ,"'V idence in any proceedi ng and that Floyd had no prior discipline.IASB No. 97-20 1(1\)1

• 8irmingham attorney Charles I.eroy I-toward, III was suspended from the practice of law in the Stdte of Alabama for .. period of 91 days, effective July 16. 1998, by order of the Supreme Court of Alabama, This suspension is based upon Howard's guilty pleas before the DiscipHnary Board of the Alab.. ma State Bar to violati ng rules 1.1 5(a) lind (b) l$3.fe. keeping propertyl, and 1.1 Icompetencel, Alabllma Rules of rrofe~~iona l Conduct. In ASI3 No. 95·214, Howard pled guilty to vioilltinit rules J .15(01) and (b), A.n. r.C .. based upon his participation with a client and other individuals in a series of improper and ill-advised Investment schemes, Howard. acting as escr/)W .. gtnt for Ihe group. solicited in excess of $200,000 from a single investor. The investment for which these (unds were initially solicited neW!r materia1i~ed, It w..s later discovered Ihllt HQY.'lIrd had co-mingled these funds with attorney and personal funds and that he failed to account (or these funds when called upon to do so by the Investor, The Disciplinary Board ordered that Iloward make restitution to Ihe investor in Ihe amount of $201,000. In Asn No. 96-170, I-toward provided lellallldvice arld counsel 10 lhe White Hall Downtown Ocvelopmelll Authority in connection wilh bond iuues 10 be issued by the Authority. Iloward, ..cling as bond counsel, gave certai n advice and made certain recommendations to the Cit)' of Whitehall in connection with this bond issue, This advice .....as improper and resulted in violations of the Securities Act of 1933 and the Securities and Exchange Act of 1934. How.. rd admitted that he had no legal trllining or uperience with slich matters. Howard's conduct resu!ted in Ihe nting of a civil action by the Secu rities and Exchange Commission which was settled in Februllry 1997 by erltry o( a consent order in (avor of lhe Secu rities and E~chlinge Commiuion.IASB Nos. 95-214 and 96-1701 • Jackson attorney l..arry Wllync Kecl WIiS suspended (rom the practice of law in the State of Alabama fo r a period of 89 d<iys, effective June 17, 1998. On June 16. 1998, Keel appeared before Panel I of the Disciplinllry Board of the Alabama State Bar and admitted to violating rults 7. I(a) and (b) .. nd 7.3. Alabaffill Rules of Professional Conduct. Keel obtained the n.. me and telephone number of two indio viduals who were involved in an automobile accident in Evergreen. AllIl»!ma. On the day after the accident, Keel contacted one of the individuals by telephone fo r purposes of soliciting the prospective client to tml!,lge his services in the malter, Neither of the individuals who were contacted by Keel knew him or had ever used his strvices and neither had requested that he contact them. During his conversation with these prospective clients, Keel made «veral repreuntations to these individuals concerning the resulu his firm could achieve on their behalf and benefits available to these clients through his firm, and compared hit firm's ser· vices as suptrior to those. of other lawyers. In imposing the diKipline in this case, the Disciplinary Board speCifically noted that the severity of discipline impo5ed was substan· tially mitigated by I(eel's 1tCkllowlcdgmCllt of his wrongdo· ing and IIcceptance of full responsibility for hi$ misconduct in addition to the fact that Keel had been sued by the individuals for invil5ion of privac)' which resulted in Keel's

agreement to pay thc individuals S10,000 to ~ettlc their claims and substantial adverse publicity reg~rd ing I{eel's conduct in the local media. No prior discipline was considered, [ASB No. 97.54(A)I • Birmingham attorney Charles ~; uge ne Caldwell was ~uspe ndcd from the practice oflaw in the State of Alabama for a period of 45 days effective July 7, 1998, Caldwell was found

gui lty of violat ing Hule 1.5/0, which provides that "without prior notifica· tion to Md prior approval of the appointi ng court, no lawyer appoi nted to represent an ind igent criminal defend,ml ~hall accept any fte in the matter from the defendant or anyone on the defendant's behalf." Ca ldwell was also found guilty ofviolating Hule 8,4(c) which provides that it is professional misconduct for a lawyer to "violate or attempt to violate the

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: Ml ~I SSJPrr VALLEY 'l'ITI.E "." INSUR.-\NCECOMI'ANY

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Itules af Professiona l Conduct" ar)d fou nd guilty of violating I{ule 8.4 (c) which provides that it is professional misconducl for /I lawyer to "engage in conducl involving dishonesty, fra ud, deceit or misrepresentation," The board's findinll Q( guilt was bllscd upon 1111 incident where Caldwell WM a~ t ins a$ ~ppointcd counsel for a defendant In the Di strict Court of Jeffcl"$on County, Alab3ma, in connection wi th two pending fe lony drug C~5es, At the time of his appointment. Caldwell requested that the defendant pay him ,Ill additional S600 fo r his services. S(lbSeqllenl to the appoint ment and their initial meeting, Clildwell advised this defendant that there wa~ !lOthing he cou ld do (or hin\ until he paid the S600. In a sub· sequent meeting between ClIldwcll and his client. his client eKprused his displeasure wilh Caldwell 's continued req uest fo r an ooditional S600. According to the defendant, Caldwel! then advised him that the S600 .....as for bond and thnt he was negotinting with the district attorney regarding a plea. When Caldwell's demands were made known to the district COurt, the cou rt relieved Ca ldwell o( his appointment ~ nd ordered ~ hearing on the al! eg~ tion$ . Immediately prior to the hearing, Caldwel! advised the cou rt that he had just been retained by the defendant and that he had rtcently accepted the defendant's income tax refund check of approximately S591 for his services. During the hearing the defendant initially indicated that the whole rn~lter WM a misunderstanding and that his earlier statements to the court r eg~ rding C~ ldwe ll 's repeated request~ ror more money were untrue. However, upon further elCamilllltiol1, the defendant admitted that the first statement that he gave .....as true and that he had changed his t.esti mony because Cald\\'elt had met with him prior to the hearing, coached him concerning their agreement, and advised him thaL his stillement to the district judge had jeoP' ardized his chartce for problltiOr\ ~r'ld that he should advise the court that his inilial statement wa.s untrue. IAS13 No. 95-571 •

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RECENT DECISIONS 811 Wifbur G, Silberman and Oavid I), Byrne, Ir.

United States Supreme Court Whit. delendant h •••tendlng to attack .ntl-black bl •• In Orand Jury ••IKllon Cmnpbefl,'. i.ouisialld, Case No, 961584, U,S .. 66 U.S. LW 4263 (1998). While defendants have the requisite legal sumd· ing to challenge indictments against them based on alielle<l discrimination against blacks in the selection of grand jury member" The United Stales Supreme Court ruled b)o a seveo-to-rn.'O vote thai an)' white dcfendOlnl can "raj$(! an equal protection chal1cnae to discrimination agaiN! black persons in the ~It(;tion of his grand jury," Justice Anthony 1'01. Kennedy, writing for the Court. observed. "Regardless of his or her skin color, III dcfendarltJ suffers II signlficMI injury in fact when the com· position of Ul(~ grand jury is tainted by racial diKrimilUtion," The Court's holding on the equal pro· tection issue represented an eJCtension or the doctrine of third party standin", which the Court applied in Pou.'f~rs II. Ohio, 499 U,S. 400 (991), in the con· text of alleged discrimination in the exercise of perrmplOry challenges to pelit jurors. The defemlant. who was convicted of murder, based his claim of discrim· Ination on evidence that in the Louisiana parish where he was indict· ed, no black person had served as a grand jury fOrtperson from 197610 1993, even thO\lgh blacks made up approximately 20 percent of the parish's registued voters. The Louisiana Supreme Court held that he had no standing to raise a Fourteenth Amendment challenge because he was nol b member of the racial group who suffered Ihe alleged discrimination. Outside of tile core holding in Campbell, Ihe Court's extension of the

three-part lesl set out in POlwrs II. OhiQ for Ihird-party standin", was expressly adopted. as follows: 1, Adefendant must have suffered an injury in fact; 2. The defendant must have a close relationship to the e~ l uded jurors: and 3, There must be $(]ffie hindrance to the excluded juror's Msertion of their righls on their own. The Supreme Court left for another day the problem of defining II defendant's due process rights In the context of grand jury select on, The Court held only that, "01 defendlllt has st.mdinll to litigate whether hi5 conviction was procurtd by means Or procedures which contravene due prOCtu." Tht Court again made the point that tht defendant's claim did not COrlcern Ule fo reperson's "per(onnance of his dut), to preside," but rather, his Pfrformance as D grand juror. Attornev.cnenl privilege e.tend. bevond the gr.ve Swidler and Ikrlh 0. Uni/ed Siales, Cast No. 97·1192, U.S. (1998j. The United States Suprtme Court ruled that the attorney·client privilege exlends beyond the grave. The Supreme Court. on June 25, 1998. held, In a siX-Ie-three decision, that a grand jury subl>Oena does not trump the allorney·clienl privo ilege after a client's death. Indet)endenl counsel Kenneth SllIrr had sought to review the notes of II conversation that White I'[ouse Deputy Counsel Vincent Foster had with a lawyfr shortly before committing suicide in 1993. Chief Justice Rehnquist, writing for the Court. obstrved. ~... The allomey· client privilege is Ont of the oldest rcoogn;,::cd privileges for ~o n(ldential commu· nications, Knowing that communica. tions will remain confidential even after death encourages the client to commu. nicate fuliy and frankly with counsel."

The case involved three p<1Res of rlOtes taken by Jame.~ Hamilton, a Washington lawyer whom roster visitrd at home nine da)'$ before his death. Starr contendtd that he needed tht notes lS part of his inquiry inlo whether Clinton administration officials lied 10 coocf31f.1rs. Clinton's alleged role in Ihe 1993 firing or the White House travel office employees, After noting thai "there is no case authority for Ihe proposition that the privilege applies differently in criminal and civil cases," the Chief Justice added. "batancimt ex post the importance of the informat ion against client interest, even limited to criminal cases, introduces substantial uncertainty into the privilege's IIpplication. ~'or Just that rea· son, we have rejected the use or a bal· ancing test in defining the contours of the privilege." H..... Corpu.: Gun-U.lng .u.. peets c.n reac:lnd guilty pi. . . 8Qusfev II, 8rooks, Cm No. 96-85\6, U.S. (1998). I)efendanls who pleaded guilty to "using" a gun during a crime, in violation of 18 U.S.C. 924(c)(lj, before II judicial dedsion significantly narrowed the federal law's scope, can move to withdraw thtlr rrevlously entered (lleas of guilty, In the 1995 decision, Bailey II, U.S" 5 IIi U.S. 137 (1995),lhe Supreme Court held that prosecutors musl show someone actively "used" II gun during II drug crime, by displaying or firing it before II conviction under the antl·gun law could be obtained. Adrug trafficker, who secretly had a gun nearby In cau of a confrOntation, did not violate the law. In a st'tlen·to·two decision. Chief Justice Rehnquist wrote thai II defen· dllnt who takes back his previously entered plea of guilty must show in II new habeas proceeding that he is aclu· ally innocent of the crime, "Although his claim was procedurally

defaulted. petitioner may be entiUl'(i to a hearing on the menu of it ifht makes the necessary showing 10 reliM the de(lIult." Punltlva forfeiture and the Eighth Amendment'. exce •• I..,e 'Ina. clau.e UniWlt States /J. &jakajion. Case No. 96· 1481,-U.S._(1998). The Supreme Court, in Utlited States v. lJujakojion, applied the l-:ighth Amendment's excessive flnes clause (or Ihe fi rst time in Ihe Court's history. The ruling resulted in the lfigh COurt's first reversal of a ror· feilu Te on Eighth Amendment grounds, and featu red a rare. if not unprecedent. ed. split bttwecn Justices Thomas and Scalia in II criminal cast. The defendant. II California business· man, failed to report $357.144 hidden in hi$ luggage on an International flight. Although tht money Wi15 lawfully obtained and intended for lawful use, the Customs Service seized all the funds becauw the ddendlnt failed to reporl it and then lied about it when Questi(med by Custor'n$' age nt ~ Writing for the five- four majority, Justice Thomas declared that certain forfeit ures constitute punishment. and thus. violate the excessive fines clause of the Eighth Amendment If they are "grossly disproportionllt to the gravity of the ddendant's offense." The Court held thaI the forfeiture of the respondent's entire $357.144 would bt grossly disproportional to the gT/lVi ty of his o((en~~. 111$ crime was solely a reporting offense. Thus. for the first time. the Supreme Court used the yardstick of proportionality to datermlne whether or not the forfeiture would be Arossly disproportionalto the gravity ofltle offense. The Court critically focused the i$SlIe as follows: A punitive forfeiture violates the excessive fines clause if it is grossly disproportional to the gravity of the offense that it is designed to punish. Although the proportionality principle has always bten the touchstone of the inquiry. seo l1.g. AuStill, supra at 622· 623. 11 3 S.Ct. IIt 28 12- 13. the clause's texl and history provide little guidance as to how disproportional a forfeiture must be to be exces~ive. Until today. Ihe Courl has not articulated a governing standard. In deriving this stllndard. the Court finds two comiderations particu.

larly relevant. The fi rsl previously emphasized in cases Interpreting the cruel and unusual punishment's clause is that JlIdllments about lhe appropriate punishments belong in the first instance to the legislalure . . . The sec· ond is Ihal any judicial determination regarding the gravity of a particular criminlll offenu will be inherently impreCise. Becauu both considerations counsel against requiring strict propor· tionality. lhe Court adOj)tll the gross disproportional ness standard articulated in Sofom /1. No/m, 463 U.S. 217.

Recent Bankruptcy Cases and New Legislation a.nk In pre'arenca action lo.e. $37.5 million on letter o' credit .alzure Matter of P.A. BerYl/ef. (7th Cir. April 9. 1998). 140 E3d 1111.32 BCD 536. Bank One issued a standby letter of credit for two beneficiarie~, The debtor. as the aCCOlltlt party. cOIl,milled to reimbllTse the issuer any sums drawn whelher OIl the time the draft was pre· sented by a beneficiary or thereafter. and in the event of a default, the debtor was to pay is~uer the f(11i amount of the drarts presented under the letters of credit. Thus. the Issuer bank would hold the money, without interest. and be in a position to honor any dr:lfts. Additionally, the blink was granted a security interest and lien on any amount on deposit with II. The court described the arrangement as a tripod. one leg being the standby letter bnd agreement between the bank and debtor, the second beinglhe letter of credit arrangement bet.... een the Issuer and the beneficiariu. iIIld the third being the obligations (secured by the lellers of credit) from the deblor to the beneficiaries. The debtor became in default to the btneficiaries and, within 90 days of bankruptcy. paid the bank over $31.2 million in order to protect the blink in honoring drafls under the leuers of credi\. After filing chapter II. the debtor claimed a voidable preference against the bank. The bankruptcy court ruled in debtor'$ favor but did not allow interest. The case ultimately

reached the Swtnth Circuit on appeal. The bank. in iu defense. contended (I) there WIiS no transfer; (2) if there were a transfer, it was not b~'Ca lise of an antecedent debt: and (3) the deblor's u tate WilS undiminished by the transfer. AU of these contentions wen rejected by the appellate court, which held there ....·a$ no new value given. as Ihere was no subsequent credit granted. The court reasoned that the different obligations were indel)fndent of each other, as the bank was leg811y bound \.0 pay lhe bene· ficiary according to the term$ of the let· ter of credit regardless of Whll debtor did in satisfying the bank 115 the i55uer. Because any alleged perfecticn of a common law security interest in the debtor's bank account could not haw occurred until Bank One assigned control of the bank account. such control occurred within the 90-day period. and thus was not within the exception. The court also ruled against the bilnk's claim of a security interest in the bank account of the debtor. Finally, adding to the woes of BlIllk Olle.the $(.'venth Circuit held the debtor to be entitled to pre-judgment interest. and d~termined 115 an abuse of discretion the b;mkruptcy court's reasoning that interest would he a windfall to the debtor. Comment: The opinion of the court IIppelirs logical. However. because of the amount involved unless the case is set· tied. I (lSjume it is on the wa}' lo the United Siaies Supreme Court. a.nkruptcy Judge Jack C.dden hald that proc.ed. of payment bond, a. contr••ted with performanca bond, are property o' e.t.ta Matter ofMOlwrch Tile, Bktcy N.D. AL., I·'eb. 12. 1998,3 19 B.H. 622. In Mny 1994, the Alabama Dep.lTtmcnt of Transportation (ALDOT) issued a permit to l'>lonarch Tilt to construct a turnout lane along a public highway. The permit required a bond or certified check (or $10.000 "to gUllfllnlte lIle fllilhful/X!rformonoo of this permit. . UI)()n s.11is(actory completion. lhe money or bond was to be returned to Monarch, but otherwise to be used to complete the projett. Monarch filed a cash bond. and subean· trllcted the job 10 David Hichael for SS.SOO. Michael satisfactorily completed the Job but. prior tQ receiving payment. " H

D[PHMOHn .ooa, III

Monnrch flied ~ chapter 11 oonkrupt(..)'. Michllel fli ed an advt! r~ry compillint against debtor and ALDOT to obtain payment. Judge Caddell ruled in rllvor or debtor and ALDOT, stilling that the "Little Hiller Act" in §39-1·1 (1975) of the Alab,uTh1 Code pertllined only to pay· ment, while the transaction in the instllnt C<lse was a performance bond for the ben· efit of ALOOT to insure construction of the turnout lime. and 110t II p<wmcnl bond for Michlll'l's i)cnefit. III' also held that although symp.lthetic. § lOS of the Bankruptcy Code doe~ not allow a b:lnk· ruptcy judge to do equity withoutlimil.!l.

June 19. 1998, immediately eff~ctivc. IImends §§ 544, 548. 707, lind 1325 of the B>lnkruptcy Code by ameliorating Ule Slrict lllw on al'oidable transfers \oiith relation to chlTitable contribu· tions. The limitations in the Act are that the transfer does not exceed 15 percent of gross annual income of the debtor for Ihe yeilr in Question. Or is consistent with prior practices of the debtor in making contributions, that it must qualify II~ a chllritllble cOlliributiOIl

Commelll: Although this allllellred to be a close question. upon inquiry. I found there was no >lppeal.

under the Internal Hevenue Code. i ~ rn~de by <I nlltural pt r~(lI'I to ~ "qualified religious or chadt,lble eMity" under the mc. and is In cash or II finllnciltl instru· ment as defined in the IRe. The law is intended to prevent su its against chari· table and religiOUS organiziltions to set aside gifts. which indudes lithing in the organizations. However. transfers intended to hinder. delay, or defr'lUd remain vu lnerable to attack. •

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by the Open Society Instkute of New York, to help match needy legal servic8 offices with 10081 firms 111M ere upgrading their system s. Firms ere being asked to donate their used equlpmt/nt to II computer clearinghouse being coordinated by the ABA. The ABA will kick off th8 project by doneting ebout 400 USlld compul8rs during Ihe naX! two yllars. Firm s lire IIsked to donate equipment that is in 1I00d working Older and that is capable of using Windows 3.11. A firm that does not have equipm8nt to denote can still halp with the project >:>y volunteering time of ks inform6tion services steH to serve as technicel support lor legal services programs.

MARK YOUR CALENDARS! The At,lldma Crimin.11 Dl'fcnsc l ,lwycrs Associi.ltion Presents :

"De fendin g Against Allegations of Child Sex Abuse: Current Issues and Strategies" November 7, 1998 l-iunt5ville MimioU 9 :00 a.m,-4 :30 p.m,

S 100 Rc!!i~lr;lIion Fcc (lunch included)

TO PI CS INCLU D E: - EvidCIll:C and Problems Unique 10 Child Sex Abuse Cases -Trial Pmpar.l1lon for Ca!.l!S Without Live Child Testimony -Cross b:amlnilt!on of the Case Worker or Child Advocatl' - Attacking the SUHScSllvc Child Interview - New Slr,11egjc~ (or Oht,lining DI~C'Ovcry

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SEPTEMBER 9· 11 )'I tcdiation and Connlct fil:lIIllgemelll Iluntsvil1t

Community Mediation Center or the Better Busi n~s Bureau CLI:: credits: 20.0 Cost: $275 (205) 532- 1425

10 I)omcstic Violence Bench fo1a.rl\Jlll Training Seminar MOl'Ilgomery Alabama Judicial College eLE credits: 5.3 (334) 242-0300

Elder Law Birmingham Alabama Bar Institute (or CLE CI.E credil.$: 6.0 (BOO) 627-65 14 Oevelopment.s and Trends in Health Care l.llw Birmingham Cumberland Institute for CLE Cl.t; credits: 6.5 (800) 888·7454 11 -12

1·low to Get and Keel' Good Clients Auburn Auburn UnivHsity Hotel /md Conference Cenler Auburn Universit)' Bar A»ociation CU: credits: 5.0 Cost: $225 (334) 321-5816

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18 Consumer Rca' [fitate Finance. Ih:gutalion and Utiga!lon Birmingham Cumberland Institute for CLE CLI-: credit.s: 6.0 (800)

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Criminal I>efense Birmingham Alabama Bar Insl.Jtule fo r CLE CLE m llits: 6.0 (800) 627-6514

Labor ~nd Employment Law in Alabama r.lontgomcry HolidllYInn South Nalional BusineS5 Institute CLE credits: 6,0 Cost: $179 PI 5) 835-8525

I ndlvl du a ll n com~ Thx Stnh:lljes and I'reparatlon Birmingham Professional Education System.~ . Inc. eLE credits: 6.7 Cost: $195 (715) 836-9700

Labor and Employment l..aw In Alabama Hobile National Busin!!$! Institute CLE credits: 6.0 Cost: $179 (71 5) 835·8525 25

Is Your Client CO"fered? Insurance Claims and Conflicts Birmingru.m Cumberland Institute (or CI.E

OCTOBER 1·5 l)I\'orce Nediation Traininll r.lobile Atlanlll Dl\IOrce r.ledialon. Inc. CLE credit.s: 40.0 Cost: $895 (404) 378-3238 2

Ninth Annual Bankruptcy Law Seminar-Bankruptcy Fundamentals Birmingru.m Cumberland Inslilule for CLE CLE credit.s: 6.0 (800) 888-7454

Depositions Birmingham Alabarna Bar Institute for Cl.E CU; credits: 6.0 (800) 627-6514

9 Automobile Accident Litigation Birminllhnm Cumbcrlnnd Inst itute ro r Cl.E Cl.1': credits: 6.0 (800) 888-7454 Tort Law Birmingham Alabama I1ar institute for CLE CU; credits: 6.0 (800) 627·65 14 15 Winn ing Strlll cglc! (or Jury Scict tion

In Alabama Mobite

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In-State Mediation Training (Approved for CLE credit and Alabama Center for Dispute Resolution roster regl5trallOr) September 9-1 1 Huntsville Medlatlon·Conflict Manllgement Bottor Business Bureou !Anne IsbelU

(205)539·2 11 8 20 HOurs September 17-19 Birmingham Mediation Procell & th e Skllil of Conflict Resolution Llttgllt!On Alterr'\8tlvos. Inc. (Troy Smith) 18001 ADR·FIRM 18891 ADRCLE3 22 Hours

OUT-OF-STATE September 10.14 AtlMUl Divorce M edilltion Atlenta DIVorce M edIators (Elizabeth Manleyl

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(8001862-1425 40 Hours

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October 22·24 Blrmmgham Medilltion Procul & the Skill s of Conflict Re,olutlon Litlg8\1on Alternal lves. Inc. ITroy Smithl (800) ADR-FIRM 16891 ADRCLE3 22 Hours

October 5 A1Itmla Arbitration Training Resolution Resources CorporatIOn

(8001 745·2402 7 Hours

Note: To (ulle. all cOtJr5es e)(cept tt'oQse noted h(lve been approved by 1'10 Cen tor Plaase chack the Interim Medl810f Standard!;! and R&gISlrOllon Procedules to n'l8l::e sure course hours IIsled WIll sallsfy the 'eglstrallon reqwEtments FOf ~lllQnfl Out-of-st8le !filmIng. IncludmQ coursos m Atlanta. Georgl8. cell the Alabama Center for Dlspule Resolu llon 01 (3341 269.()409

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CLASSIFIED NOTICES

Ratel: Member. : Two free IIsllngs 01 50 words or le55 per bar member per calendar year eXCEPT lor ·poslllon wan ted" or ·posltlon ollered" IIstlngs-$3S per Insertion 01 50 WOrds or less, $.50 per additional word: Nonmembers: $35 per Insertion 01 50 words or less, $.50 per additional word. Classified copy and payrrent must be received according to the following publishing schedule:

September '981.luo-deadUne July 15, 1998; November '98Issue-deadline September 15, 1998. No deadline extensions will be made.

Send claulfled copy and payment, payable to The Alsbsma Lawyer, to: AlatnJma Lawyer Classlfleds, clo Rlla Gray, P.O. Box 4156, Montgomery, Alabama 36101 .

SERVICES TRAFFIC ACCIDENT RECONSTRUC· TI ON AND EVALUATION OF HIGH·

WAY OeSIGN: This engineer has r&conSlruclGd over 3,000 8ccidenlsIn

20 states on highways, streeta, rail· roads 8t\d hl~way construction zonee Involving truckS, vans, eare, pedeetrl· ane, and larm 1mJ)lementa. ComllUtGr anlmatloos and CAD drawings preparlKlto Illustrate hll opinions. Over 42 yeats' enginet(ing exl'8oonce. Registered prokmionel engineer and lUll ACTAA c«tillcatiOn. JoIvI T. Bates, P.E., toll·lree t·800-299·595O. STRUCTURAL. ENGINEER AND CONSTRUCTION MANAGER: Reglsterod protesslOnal engineer In three states, IA,S,C,E. Twenty·llve years' experl~nce with heavy Industrl· ai, pulp and poper, petrochemical plants, commercial, and residential. Experience with unusual structural fall· ures and ctalms. Computer anlmallon for tailed struc1Ufes, Nogotl8tO con· Slruellon claims and mlldl8tO eonllruc:· lion disputes. Contact Hal K. Cain. Mobile. Phone (334) 681·2605. INVESTIGATIVE SERVICES: ARGUS Prot8CIlve Services Ie a privately owned, Blrmlngham·based security company, ofterlng a lull range of Inves· tlgatlve services Including Insurance lraucf InvestlOlitlons. surveillance, background Irvestlgatlons, witness

location, process service, ssset traces, accident reconstr~etJon, undercowr operallons, due diligence, and corpo· rate consulting. ARGUS serves clients In AIEIbEima and Mississippi, Contact Allison McFarlin at (888) 987·5600. FORENSIC DOCUMENT EXAMINER: Handwriting, typewriting, altored docu· menls, medical recordS, Wills, contracts, deeds. checks, anonymous Iottllrs. eoun-Qushfled. Eighteen yeal'S' exl'8ri· eflO$. Certified: American Board 01 FQrensic DocufTl8f\t Examiners. Member: American SocIety 01 0ves1ion6d Documenl Examiners, American Acadom( of FOf&nsIc ScieflO$s, Southeastern AssoeIauon 01 Forensic: OocufTl8f't Examiners, Crlmll'\8l and eMf maners. Carney & Hammond forensic Oocumert L.abottllory, 4078 Biltmore WooOs Courl, Bulord (Atlanta) Georgia 305t9. Prone (770) 614·4440, Fax (770) 27 t -4357. MEDICAL. REVIEW: SlIva lime and money. L.el U!:l organize and summarize your d;ant"s mediceJ racorcIs. If you nood an export review we hqve thO board-cer· tilied J*risIcian you need, lWatve years' medical review exparfence 'NOfkIng for you. call Export Resources. PhOne (61 4) 475-1260. INSURANCE EXPERT WITNESS: Douglas F. Miller. Employefl' Alsk & Insuranca Managtiment·lndependenl risk manager. Fee basis only. experl wllMSs, Eighteen ~oars'ln risk man·

agament Insurance conevlt!ng, polley analysis, assistance to your corporate cllonts. Mamber SRMe. EXP'lrlance In deductlblos, soU·lnsvrance, excess, underlying covarEige. Catl (205) 967· 1168, Birmingham, Alaooma or WATS 1·800·462·5602. INSURANCE EXPERT WITNESS: Bad tallh/1raudllnsuranca coverage/claims mal1ert/ marltellng ISIIJeI. Former claim attorney with prior sales background ave liable to consult and to&1J1y In Cllses with life or health insurance disputes. EXl'8rlenced In trial tes~imony. Excellent cradenUals. A.C. Jones. Jr. J.O., CL.U, FLMI, Birmingham, Alabama. Phone (205) 968·32tO. No representation Is mads Ihal/he qI,!{Jlity of the IeQ8lservices to be performed Is greater than the qUB~'ly of /egol Hr· vices performed by othtu IBwyf1fS. DOCUMENT EXAMINER: Examination 01 questioned document~. CertltiOd lorensle handwriting and document axamlner. Thirty years' oxperlence In all forensic dOCumont problems. Formerly. Chief QueStioned Docunent Analyst, USA Crlmll'\8l Invaltigation L.ab0r8tor\et. DIplomate (certified)· AFFOE, Member: A$ODE; lAt. SAFOE; NACOl. Resume and 1M schaduIo upon requost. Hans M8)ef Gidion. 218 Merrymont Drive. Augusta , Georgia 30907, Phone (706) 8604267. DEVEL.OPMENTAL. DISABIL.lTIES:

Expert UtltlrT'lOl"l provided related to the administration 01 programs lor persona with mental retardation or devel· opmental dlsablltles. Particular emphasis on the propriety 01 policies. procedurea and Individual lreatment In Inslltullonat and community living selllngs related 10 risk managemenl and compliance with stale e.nd tederal reguta· lions. Phone (316) 22 1-6415. William A. Lybarger. Ph.D. SOCIAL SECURI TY DISABILITY BRIEFS; E.perie~ attorney witt write SocIal Security di88bllity aP98als brlets. Twenty·lour brials written lor the firm 01 Davil & Horne Of Jacksonville, Florida. Norma) ten-day turnaround. Emergency serviool evallabla. $325 per brief. SOllllacUon guaranteed. Referencea and wriling sample available. Contact Jonathan Graen. (205) 870-4343. No repreS6rlllJ/kHI & made IhBtthe quaUty oIlh4J Iegltl servrces /0 be performed Is grealsr Ihltn 1M quality 0I1f1gs1 services p6rlormed by OIMr I.<IW)IIW$.

• DOCUMENT EXAMINER: Certilled Forensic Document Examiner. Chief doCument el«lminer. Alabama Oepartment of Forensic Sciences. rellred. American Boord of Forensic Document EKaminers. AmerICan Academy 01 Forensic Sclonce•. American Society 01 Quostloned Documenl EKaminers. Over 20 yoars' eKperlence In atate and federel cour t. In Alab£lma. l.arrtlr Miller, 11420 N. Kendall Drive. Suite 206·A, Miami, Florida 33176. In Birmingham, phOne (205) 988-41 58. tn MiamI. phone (305) 274·4469. FaK: (305) 596-26 18. HANDWRITING EXPERTIFORENStC DOCUMENT EXAMtNER: ABFOE certllied: pasl president. Southeaalem Asaoclation 01 Forensic Docoment Ellamlners: American Academy of FOrlll'lslC Scieoees fellow. Fedallli court qualiliad. Nlnetoen yeOfll' 6lCperlence. Clvllaoo Criminal. HandWriting comparison, Iofgory oot9ctlon, detection of allerad medicaJ r.cordI and other documenlS. L. KeIth Nelson. Stone MountaIn. Georgia. PhOI'Ie (nO) 879·7224 .

LEGAL RESEARCH AND WRtTING: Research and writing services. IncludIng briefs, trial memoranda. aoo other doCuments. Prompt doadline services. E.perlenced researcher 8I'Id writer. LlCel'lsed Alabama attorney and member of the Ale-bama State Bar since 1979. Katherine S. Weed. P.O. Box 590104. Birmingham. Alabama 35259. PhOne (205) 941-1496. No represlHIlalion Is made lnat the quality of 1fJ()81 S&rv/cBs to b6 performed Is greater than the quIJlity 01 lepa/servlces per/ormMi by other Iswyers.

LEGAL RESEARCH, WRITING AND CONTRACT LEGAL SERVICES: Attorney (tormer federsl taw clerk). John RltondO. 11205. 140 Robert Jemison Drive. Blrmlrlgham, 35209. Phone (205) 940-9953. No represenlatlon Is mMM thBl the quality 01 legal services /0 tM p6rformed Is fJT6Bler Ih/ln 1116 QUlJ/,ty 01 ~I services perIonn8d by other I8W)'&1'1. ECONOMIC eXPERT WITNESS: Personallnlury: workers' compensation; business loss: agricultural loss; bankruptcy fea sibility plans; etc. 'TWenty-sill years' as ~nMtrSl1y laeul1y member, t2 years' e~porlence as economic e~pert witness. Member 01 Alabama Slate Bar. William E. Hardy, Jr., Ph.O.. J.D. Phone (334) 82t-0855: Fell (334) 844-3519; .·mall: whardyOacesag.auburn.edu. No (tJpI9o sert/allon Is fTIlWIJ thaI the qUlJ/ity 01 legltl services to be {J6riormtKI Is prIMler IhBn Ihe qual.'ty of IOQIJI serA vices performed by other Iawyef1.

STRUCTURED SETTLEMENTS AND LOTTERIES: Il'Iform your cllentsl Top dollar paid for insurance 88t1lements, strUCIurad sell1emel'lt annuities, buslI'IOSS notos and periodic payment contracts. Help cfiel'l1s eKj)lore their options. Call today. no obllgotlon, Your cllant will recelvo 8tralghtlorwsrU, reliable servICe. MOBrUand Capital Funding. Inc. (800) 897-9825. ·ProleSSIonaI Al'lnuity Funding lor you and your client." Brochur8S available.

PSYCHIATRIC SERVtCES: Clammle Palmer Ill, M.D. anoouncet the op8l'1lng 01 Palmer P&ychlatnc Sarkas. pc. specializing In general psychiatry, Indl· vldualthel'(lpy, medlCatfon m8l'lsgement. culturaL/ethnic lsaues, dlsat>lllty and /o(ensle ellamlnatlons. Hit oHIce Is located at 283S Zei(l<l Road. Suite '8. MonIQOlTl8fY. Alabama 36106. Phone (334) 398-3030.

SKtPTRACING·LOCATOR: Need to IocaIO 8OI'YIeOI'I87 Will loCate the person or no charge/no minimum lee lor basic search. 87'% suoceu rate. t-4ationwlde. Conlldenllal. OIhar attorney needed searcheslracordslraporlsl1n!omlatlon services In many areas lrom our extensive databases. Tetl us What you need . Verify USA. Call lotl·lroa (888) 2-VERIFY. ELECTRICAL EXPERT WITNESS: Stoven J. OWen. electrical consultal'lt. 24 years' In electrkallndul1ry. Mamber of BOCA, CABO. IAEI. IC80, SacCI. OSHA authOrlzad Instructor. LPI certl· lied lightning protoctlol'l. NICET certllied. Master EI&ctrlclal'llContractor 11'1 39 $Ialel. Foe basis only. Call (205) 9872502: Fall (205) 982·9613. ANIMAL LAW: The Southern Al'limal Law Center 18 now ollerll'l" legal 8er-

vices and counseling tree 01 chorga In cases which Involva animal mottorS. Emphasis Is placed UPOI'l cruelty aM abuS8 cases. representation 01 animal wellare groups, public pol cy COI'ISlderatiol'l, pet death. criminal defense And prosecution. and anlmal-c8uS&d Il'Ijury matlars. The director 01 the cel'ltOr Is Huntsville atlornay James R. Foloy, who may be reached at (205) 536-2788. No representation II made IMIIM qUllllty ()I Ihe leg.1 SBrv/ces p&rlormMJ Is grBslBr lhan the quality of I(lpal IQ(V/ceS performsd by 1M orhBr lawy(fn.

POSITIONS OFFERED ATTORNEV JOBS: Harvard Law School celts our publication. ·Probably arpu .. ".n

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the most comprehensive source 01 nationwide anti International job open· Ings recalved by our oflice and ShOuld be the starting point 01 any jOb 59f)rch by lawyers looking to change jobs: Each monthly Issue contains 500·600 Cuffont (publlclpdvoto seetor) JObS, $45-3 months, 575-6 months, Contact: Legal Employment Report, 1010 Vermont AvonuO NW, Suite 408·AB, Wo shlngton, DC 20005. (800) 29696tl , VlsalMClAMEX, Wobslte: www.(l ttorneyj:>bs.com ASSOCIATE POSITION: Mld·sI:«I AV rated, BovIs, K}1e & Burch, LL,C, Is seek· Ing an associalO with \'NO to live years' experience In corporate, transactlonal arl(l general bv;Jlnel>S, Must posseS8 superior academic qlJBmicatlons, be able to assume Immediate lile handling r~slbility anti \o\IQrk directly with clients with mlrimal supervision. Mall resume 10 Fraril Klein, 53 Perimeter Center East, Third Floor, Atlanta. Georgia 30346 Of lax (770) 668-0878. ATTORNEYS WANTED: Oulstanding attorneys needlId In all pmcI/cs areas ar'l(l 01 all &xperler'lCl'lIfM)IS, Our cUontS

Include the top firms arl(l companies In the Southeast arl(l across the nation. Strictly COr'IlidentlBl. COr'It&CI Richard G. Breck, 9Sq" at Special CounseVAmk::us. Phono (205) 87()'3330, extension 102. Fax (205) 870-3337, ASSOCIATE WANTED: Mid· to senior levol assoclato for small, commOr'Clol Illigallon IIrm In Birmingham. Superior research, writing sKills and abovo ovor· ago acadomlCS neoossary, Porks Includo casual dress and Interesting work. Inquiries kept conlldentlal, Submit reSume, wriling sample and salary requirements 10: Managing Parlner, P.O. Box 530101. Birmingham, AI{lbema 35253.

Georgia 30308·2216. No phone calls or place men! Ilrms, please. EOElAA INTERNATIONAL LEGAL REFORM: The Am&rican Bar Central al'ld East European Law !n~iativa (CEELI) seeks experlencad ettorneys to work on crimi· nal, erMronmantfll, commer'Clal ar'I(Vor ClviII{lW rOlOrm prOjOC1S In Contral arl(l Eastern Europe al'ld !ho brmor SOvIet Union, Support IndlJdof;.!I1I housing. lrar'lsportatlOl'i. srl(l living 9)q)(lnsGS, CaJi 1·800-982-3354101" an appllco!lon,

MISCELLANEOUS LEGAL ASSISTANT CERTIFICATE:

The Samlord unlvorslty of Paralogal ASSOCIATE POSITION: Atl onta office 0 1 International law Ilrm seeks labor

end employment assocla!e. Successful candidate should have excellent aCEld· emic credentials an(1 a minimum of two years' experience in employment litigation. Sand reSJrne and law school IrsnSCrip! In conlidence to Hunlon & William s, Recruiting Coordinator, NationsBank Piau, Suite 4100, 600 Peachlree Street, f~ . E" Atlanta,

Education announces lIs Legal Asslstent Certillcate Program, The program \(Illes one yoar 10 comp1ole lor students with a prlor degee, FOf stuclan!s With no prior degree, lhay may complete one COr'ICurren'y. The prcgl'8m Is approved by the American Bar Association. For morelnlormotk>n. call (205) 870-2783, or write to 5.U. Box 2200. Birmingham. Alabama 35229, The next term began August 3, 1998.

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