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JDLY 1989 Vol. 23, No.3 OFFICERS Philip E. Dixon, President David M. "Mac" Glover, President-Elect Sandra Wilson Cherry, Sec.-Treasurer jack A. McNulty, Council Chair

LAWYER SPECIAL FEATURES

REGULAR FEATURES

94 95

Willia.m A. Martin, Executive Director Judith Gray, Assistant Executive Director

EXECUTIVE COUNCIL Madison P. Aydelott HI Mark Cambiano H. Murray Claycomb Ronald D. Harrison Robert L. jones [JJ James H. McKenzie Paul D. McNeill Martha M. Miller R. Gary Nutter Robert G. Serio james M. Simpson jr.

Carolyn B. Witherspoon

EX-OFFICIO Philip E. Dixon David M. "Mac" Glover john F. Stroud jr.

Sandra Wilson Cherry jack A. McNulty Edward Boyce

A Morning With David M. (Mac) Glover Courting Disaster?

Substance Abuse In The Legal Community

by Larry R. Hart, M.D.

The President's Report Congressional Update-Veterans Get Judicial Review

by Bill Massey

99 Book Review 100 Disciplinary Actions 101 The Developing Law 106 Law, Literature & Laughter 107 Executive Director's Page 109 113

117

Practitioner's Primer

by David Cahoon

120 121

Young Lawyers' Update

EDITOR Paige Beavers, Director of Communications

In-House News

The Arkansas Lawyer (USPS 546-040) is 1 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - published quarterly by the Arkansas Bar Employment Law: Association, 400 West Markham, Little They've Changed The Rules Rock, Arkansas 72201. Second class postage paid at Little Rock, Arkansas. In

by Jay Thomas Youngdahl all counts, POSTMASTER: send address changes to The Arkansas Lawyer, 400 West In Memoriam Markham, Little Rock, Arkansas 72201.

Subscription price to non-members of the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association Mac Glover steps in as 1989-90 or The Arkansas Lawyer. Contributions to President of the Arkansas Bar The Arkansas Lawyer are welcome and Assocation. Glover took office durshould be sent in two copies to the Arkansas Bar Center, 400 West Markham, ing the 91st Annual meeting, held Little Rock, Arkansas 72201. in Hot Springs last month. Glover

125

127

ON THE COVER:

All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.

hails from Malvern, where he is actively aiding the city in its growth. Cover photo and story

photos by Pat Patterson.

July 19891Arkansas Lawyer/93

THE PRESIDENT'S REPORT

Just Farewell, Not Goodbye

By Philip Dixon In June 1988, several of the past presidents of this Association advised

Susan and me that our year as your representatives would be a fun and exciting time in our lives. They were absolutely correct. Attendance and participation at the Annual and Midyear meetings of the American and Arkansas Bar Associations, together with visits to several of the Bar meetings of our surrounding states afforded us the opportunity to meet and make lasting friendships with many wonderful people.

However, I truly feel that the highlights of this past year have been the privilege of becoming acquainted with attorneys throughout Arkansas, participation in the many and fine seminars attending local Bar Association functions, and the honor of being a participant in the Judicial Council meetings.

I am gratified at the continued interest and contributions made to all of us by former officers of our Association. It would be easy for them to feel that they have made their contributions through past services but the vast majority of them retain that keen and sincere interest in our profession and our Association and give of their time and talents to all of its programs and future. My sincere hope is that I will follow that tradition.

It was with pleasure and confidence that the gavel of leadership was handed to Mac Glover as your new president at the June 1989 meeting in Hot Springs, knowing that Mac and Michele would serve this Association in an excellent way and will become known as two of the finest ambassadors of the Arkansas Bar. Mac has been a source of great sup941Arkansas Lawyer/july 1989

port and assistance to me during his year as President-Elect for which I will al ways be gra teful.

One could never review the past year without realizing the outstanding talents and hard work of the fine staff at the Bar Headquarters. The staff is a dedicated, hard-working, talented, competent group of people who place the well-being and progress of our profession as their top priority. I have learned much from them and will be eternally thankful for their loyalty, enthusiasm, and guidance.

Two important committees have been established recently and the work and product of these committees will positi vely a ffect the professionalism and quality of life of the attorneys in Arkansas.

The first of those committees is "The Task Force for a New Judicial Article" and is to be Co-Chaired by Judge Eugene Harris and E. Charles Eichenbaum. The other principal participants and leaders in this important undertaking and their areas of responsibility are: 1) Finanac-

ing of the Judicial system, Judge Donald L. Corbin and Judge Warren O. Kimbrough; 2) Qualifications and Methods of Selection/ Election of Judges, Judge Ellen Brandley and Herman Hamilton, Jr.; 3) Administration of the Judicial System, Judge Jim Hannah and Don Schnipper; and 4) Structure of the Courts and Personnel, excluding Judges, Judge Sidney McCollum and John F. Stroud, Jr. Professor Robert R. Wright will serve as Chair of the Control Center which will supervise the collection and dissemina tion of research and information. The present plans of this committee call for a new Judicial Article to be prepared and presented to the House of Delegates at its June meeting in 1990. I encourage each of you to participate in this most important event.

The second committee is designated as "Opportunities for Women and Minorities in the Legal Profession" and will be Co-Chaired by Judge John Lineberger, Sandra Cherry, and Les Hollingsworth. This committee will conduct an in-depth survey of the attorneys in Arkansas and make recommendations which address issues of concern to women and minorities in the legal profession as they relate to the judicial system.

My sincere appreciation to each of the Officers, Sections, Committees, Staff, and Membership of this Association for your outstanding work and cooperation during 1988 - 89 and- for making this year such an enjoyable and meaningful one for Susan and me.

Trusting that all of us will have the opportunity and privilege of working together in the future for the betterment of our profession, I Simply say: JUST FAREWELL, NOT GOODBYE.

Veterans Get Right to Judicial Review After a 12-year battle U.S. veterans have won Congressional approval of the right to go to court when they believe they have been treated unfairly by the Veterans Administration. Under the Veterans' Judicial Review Act, Pub. L. No. 100687, veterans may petition for judicial review of final decisions of the Board of Veterans' Appeals (BVA) denying claims for benefits. Appeals of BVA decisions would be filed with a newly-created U.S. Court of Veterans Appeals. In addition, veterans will be allowed to pay their attorneys reasonable fees instead of the $10 maximum aUowed under an anachronistic Civil War era statute.

The judicial review legislation was signed into law November 18, 1988. The United States Court of Veterans Appeals will officially come to life September 1, 1989.

Background The first statutory preclusion of veterans' appeals was enacted as part of the Economy Act of 1933, Pub. L. No 93-2. In more recent years the preclusion had been codified at 38 USc.

Editor's Note: Bill Massey, a native of Malvem, is Chief Coullsel to Senator Dale Bumpers. He received a JD. from the University of Arkansas School of Law at Fayetteville ill 1973, and a Master of Laws from Georgetown University Law Center in 1985.

211 (a). Although generally interpreted to be a broad prohibition on court review of factual determinations and legal questions, courts have found some limited exceptions. For example, several courts have held that section 211 (a) does not bar a review of the constitutionality of the VAs procedural policies l , and most federal courts of appeals have ruled that section 211(a) does not prohibit judicial review of whether a regulation exceeded the VA's statutory authority.2 Moreover, when the VA has attempted to recover its claim against a veteran by way of a set-off against his benefits, section 211 (a) has not prohibited the veteran from challenging the VA's action.'

Other than in relatively rare cases like these, however, section 211(a) has for years served to deny recourse to veterans aggrieved by final decisions of the Board of Veterans Appeals.

This preclusion of judicial review was originally based upon the old notion that "veterans' benefits are mere gratuities" and that veterans have no interest in or right to such benefits so compelling as to warrant the protection afforded by access to court review.'" Obviously, the "gratuity" rationale has been long obsolete, at least since the 1970 landmark decision in Goldberg v. Kelly. sAnd judi-

By Bill Massey

cial review has been available for years to recipients of virtually all other federal benefits. 6 Not surprisingly, then, in recent years the perception began to grow that it was grossly unfair for veterans to be singled out and denied their day in court. In its report accompanying the judicial review legislation, the Senate Committee on Veterans' Affairs summed up the compelling reasons for change as follows: "There is and will inevitably continue to be some proportion of cases, however small, that are wrongly decided by the BVA, where the only hope for correcting the resulting injustice lies in judicial review....To continue to inform claimants before the VA that benefits to which they are entitled by law could be wrongly denied and that there is no remedy for such a wrongful denial, is no longer a viable position. In addition, the Committee believes that judicial review, by opening the decisions of the VA to court scrutiny, will have a salutary effect on such decisions and on the VA decisionmaking process in general by involving the judiciary as a check on agency actions. "7 Legislative History Serious legislative efforts to grant the right of judicial review began in 1975 with the introduction of S. 3392 in the 94th Congress. Basically, the bill allowed veterans to pursue their claims in our existing Article III fed95/ Arkansas Lawyer/July 1989

eral courts. Support for this type of legislative solution grew during extensive hearings and public discussions. Similar legislation first passed the Senate in 1979 in the 96th Congress, and passed the Senate again in the 97th, 98th, and 99th Congresses. Each time it died in the House of Representatives due to opposition from powerful members and many of the veterans' national service organizations. Opponents argued that veterans would not be helped by having lawyers and judges intrude into their affairs.

Finally, in 1988 during the 100th Congress, the House as well as the Senate began to give serious consideration to judicial review, and compromise became possible. Both Houses began to consider resolving the matter by creating a special court with jurisdiction limited to veterans matters. The Montgomery-Solomon bill, H.R. 5288, would have abolished

the Board of Veterans Appeals and established in its place a new 65judge Article I veterans' court. This bill passed the House of Representative on October 3, 1988 by a vote of 400-0, and intense negotiations ensued among key veterans' advocates in the House and Senate.

The compromise that emerged - legislation to strengthen both the procedures and independence of the Board of Veterans Appeals and to create a new 7-judge U.s. Court of Veterans Appeals was passed by both HUUSleS and signed as Pub. L. 0.100-687 by President Reagan on November 18, 1988.

Key Provisions Although it is beyond the scope of this brief article to describe this new law in great detail, its key provisions are as follows: A. Before enactment members of the BVA were appointed by

the Administrator of Veterans' Affairs. The BVA, which rendered 41,296 appellate decisions in fiscal year 1987,8 was criticized as being institutionally incapable of rendering objective opinions because the board members were tied closely to the VA's decision-making process and were subject to the Administrator's authority.

Under the new law, the authority and independence of the Chairman of the board are enhanced. He is appointed by the President and confirmed by the Senate, and is subject to removal only by the President and only for the reasons set out in the statute. The other 65 members of the board are to be appointed by the Administrator, with the approval of the President, based upon recommendations made by the Chairman. And members can be removed by the Administrator only upon the recommendation of the Chairman. 9

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B. Judicial Review by U.S. Court of Veterans Appeals. The legislation creates this new Court as an exercise of Congressional authority under Article I of the Constitution. 1O It is to be composed of a chief judge and from two to six associate judges, 11 of whom will serve 15-year terms.

Its principal office is in the District of Columbia but it may sit from lime to lime at any place in the United States.

As mentioned earlier, the Court will begin operation September 1, 1989.

The Court is granted exclusive jurisdiction to review decisions of the Board of Veterans' Appeals H The veteran or other person adversely affected by a final decision of the BVA must file a notice of appeal with the Court within 120 days of the date on Which the notice of decision is mailed. 12 The Court must, among other things, decide all relevant questions of law and hold unlawful all decisions, findings, rules, and regulations that are (1) arbitrary, capricious, or an abuse of discretion; (2) contrary to a constitutional right; (3) in excess of statutory jurisdiction, authority, or limitations; or (4) without observance of procedure required by law. 13 A key compromise involved the scope of judicial review of findings of fact made in the course of an individual benefits determination by the BVA. The Senate Committee on Veterans' Affairs had been persuaded by several witnesses, including those representing the Judicial Conference of the United States, to grant only severely limited authority for courts to review questions of fact. Thus, under the Senate-passed bill, a finding of fact could be set aside by the reviewing court only when "so utterly lacking in a rational basis in the evidence that a manifest and grievous injustice would result if such finding were not set aside." 14

This austere standard was criticized as the functional equivalent of no judicial review of questions of fact. It was, however, an important element in a piece of legislation which at that point in the legislative process granted judicial review to existing federal courts with no particular expertise in veterans' matters.

As the proposal to create a specialized court with expertise in veterans' issues gained greater acceptability, so did the notion of granting somewhat more expansive judicial review of questions of fact.

Thus, in the final version that became law, the Court of Veterans Appeals may set aside such findings of material fact as it determines to be "c1earlyerroneous."1S There is, of course, extant a large body of precedent that gives meaning to this terminology in civil cases.

Appeals from Court of Veterans Appeals decisions lie with the U.s.

Court of Appeals for the Federal Circuit,16 which must review all relevant questions of law. 17 Unless the appeal presents a constitutional issue, however, the Federal Circuit may not review a challenge to a factual determination. 18 C. Attorneys' Fees. The claimant and attorney may enter into a fee agreement that is neither "excessive" nor "unreasonable."19 The fee may not, however, exceed 20 percent of the total amount of any past-due benefits awarded to the c1aimant. 2o The BVA, Administrator or Court may order that payment be made out of past-due benefits. 21 In order to discourage the hiring of an attorney early in the claims process, and to encourage the use of veterans' service organizations, no fee may be charged by or paid to an attorney for services provided before the date of the first final decision of the BVA.22

Conclusion o longer must legislators struggle to justify why veterans wrongly denied benefits have no day in court. After twelve years of legislative efforts, our nation's 27.4 million veterans now have the right to judicial review. In the words of Senator Frank Murkowski (R-Alaska) , they are no longer "second-class citizens."

1. Plato v. Roudebush, 397 F.Supp.

1295 (D. Md. 1975); Devine v.

Cleland, 616 F.2d 1080 (9th Cir. 1980); Dumas v. Cleland, 486 F.Supp. 149 (D. Vt. 1980).

2.

See e.g. Merged Area X (Education) v. Cleland, 604 F.2d 1075 (8th Cir. 1979).

3. DiSilvestro v. United States, 405 F.2d 150 (2d Cir. 1968).

4. S. Rep. o. 418, 100th Cong., 2d Sess. 30 (1988).

5. 397 U.s. 254 (1970). In this case the Supreme Court held that Welfare benefits are not a mere privilege that can be taken away without the observance of basic due process procedural guarantees.

6. The Senate Committee cited determinations concerning benefits under the Federal Employees Compensation Act pursuant to 5 U.s.c. 8128(b) as the only significant exception to the general availability of judicial review.

7. 8. Rep. o. 418, supra note 4, at 50-51.

8. Cowan, Veterans Gain Right to Seek Judicial Review, 1988 Congo Q. 3058-59.

9. 38 U.s.c. ยง 4001 (b).

10. Id. ยง 4051. [n contrast, judges serving on courts created by Congress under Article III of the Constitution have life tenure and may not have their compensation diminished during their service.

July 1989/ Arkansas Lawyer/97

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S. Rep. No. 418, supra note 4, at 18.

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JULY BOOK REVIEW

The Parental Alienation Syndrome And The Differentiation Between Fabricated And Genuine Child Sex Abuse

By Richard A. Gardner, M.D. General practitioners of law, as well as domestic relations specialists, have recently confronted a phenomenon virtually unheard-of ten years ago: recurring allegations that the divorced or divorcing father has sexually abused his young child. The charges have become so common that one is tempted to conclude that a very great number of these cases are fabricated.

Even so, professionals in the field - social workers, welfare workers, counselors, juvenile detectives, psychologists, psychiatrists, ministers, good people all -- solemnly assure us that "children don't lie."

These professionals, with their "anatomically correct dolls," assert in case after case, even without medical proof, that genuine abuse took place.

Yet, to date, too few have questioned the core assumptions of these experts: that children cannot fabricate a sexual encounter, and that diagnostic instruments presently used (i.e., the aforesaid dolls) are valid tools for detection of abuse.

One is therefore relieved that a recognized authority in the field, Dr. Richard Gardner, Clinical Professor of Child Psychiatry at Columbia University, has advised that a more skeptical approach be taken, and has shared his concerns in his recent book, The Parental Alienation Syndrome and Differentiations Between Fabricated and Genuine Child Sex Abuse.

Dr. Gardner's argument may be controversial because he believes that recent liberationist developments have contributed to the rise in the number of allegations of sexual abuse of children. The most critical development, in his view, is the idea, born of the fathers' rights movement, that the tender years presumption be

Redell' bl' \Iallhell Horan

and yet the scale is overloaded with subjective determinations: i.e., is

invalidated. The mother, deprived of this protection in the context of custody litigation, searches for weapons to prove the father's unfitness. An allegation of sexual abuse is a potent one.

Dr. Gardner suggests that in subtle (and sometimes overt) ways the custodial parent induces or prepares the child to fabricate a claim of sexual abuse. He describes the behavior of children consistent with a scenario of programming, and terms it the "Parental Alienation Syndrome." He notes, remarkably, that genuinely abused children do not obsessively hate or reject the abusing father, but that fabricators very frequently do.

The presence of the Parental Alienation Syndrome, then, is indicative of fabrication. Untutored professionals, however, are likely to interpret a gross antipathy as suggestive of genuine abuse.

Dr. Gardner has also designed a test for administration by professionals studying a d treating cases of alleged abuse: The Sexual Abuse Legitimacy Scale (SALS). The test, 1 believe, may be a valuable one, pending the development of a better instrument. The biggest flaws in the SALS, 1 think, are these: First, Dr. Gardner does not appear to have performed correlation studies -- rather, both the selection of the questions and the weighing of the answers appear to be arbitrary, or, at best, what an 01' country boy would call "spittin' on the ground." Second, the scoring of the test permits professionals to make determinations of actual abuse on absurdly low threshold scores. Third, the author states that as a whole, professionals in this area are predisposed to over-predict abuse,

accused's denial weak or feigned? has accuser employed a "hired gun" lawyer? etc.

One rather suspects that a scientist of Dr. Gardner's calibre realizes that his SALS is a first step towards a more reliable instrument. It might, in fact, be a valid predictor if the persons administering it were (a) less prone to over predict abuse as a first matter, and, (b) if these parties were more carefully guided by the book in making the correct assays with respect to the questions asked on the instrument.

The irony is this: Dr. Gardner's test may itself become yet another "anatomically correct doll" -an instrument to confirm a pre-existing bias held by the child specialist/ professional.

Dr. Gardner's book, for all its faults, is a good one for both lawyers and judges to review. Lawyers are in a strategic position to head fabricated charges of abuse off at the pass.

These charges are not only damaging to the parent, they also imply profound future damage for the child.

Moreover, Dr. Gardner's suggestions for judges hearing these cases, most especially with reference to interviewing the child and selecting court's "experts," are sound. In short, Dr. Gardner's book is as good as one is likely to find in the current literature, although one wishes that it had passed through a rigorous peer review prior to publication.

The Parental Alienation Syndrome and the Differentiation Between Fabricated and Genuine Child Sex Abuse. Creative Therapuetics.

Cresskill, N.J. Copyright 1987. $20.00 July 1989/ Arkansas Lawyer/99

FEBRUARY TO MAY 1989 From February to May, 1989, the Arkansas Supreme Court Committee on Professional Conduct issued one letter of caution, four letters of censure and one letter of suspension.

The Committee took no action of a disciplinary nature on 113 informal complaints and voted "no action warranted" on 12 complaints against attorneys.

JAMES MAYS, III The Committee on Professional Conduct suspended James A. Mays, III of Palm Beach Gardens, Florida from the practice of law for the period of two years for violations of Rules 1.3,1.4 and 1.16 of the Model Rules of Professional Conduct.

The action was taken after a hearing on complaints filed against Mays by Brenda King, Lois icllOls and Diane Wilkerson Litton. Mays was representing King and ichols in divorce actions and Litton in the modification of her divorce decree.

Each of the complaints said that Mays had not kept his client informed of progress on their cases.

He had closed his law offices after accepting retainer fees and had referred all cases to another attorney.

Mays said he told all clients that he would be closing his practice September 1, 1988, to move to Florida.

WILLIAM A. MURPHY Attorney William Murphy of Sheridan was issued a letter of caution for violation of Rule 8.4D as a result of 100/Arkansas Lawyer/July 1989

a complaint filed by Danny Myers. A hearing was held including allegations relating to Mr. Murphys' position as Deputy Prosecuting Attorney.

The Committee also considered previous disciplinary action that has been taken against Mr. Murphy.

Meyers alleged in his complaint that, in his capacity as Deputy Prosecuting Attorney, Mr. Murphy issued a warrant at his request for the arrest of Robert White for terroristic threatening.

He said Murphy dropped the charge for no apparent reason on the same day Murphy received a letter from the Committee on Profe ional Conduct on another complaint filed by Meyers' secretary, Pam Volner. Myers further stated that he was arrested three days later on an old traffic ticket upon the orders of Murphy. The ticket had already been considered in court and passed for

that since a ruling was made on death qualified juries, he has not seen nor heard from Smedley.

He said Smedley said that when the balance was paid on his account he would continue working on the case. Lasley

said his parents paid the balance and Smedley still would not speak with him.

Smedley said that he discussed the case with Lasley and that as of August 1988 he would be in a better position to help Lasley. He said delays have resulted from the over 5000 pages of transcript and indicated that action would be taken soon. He admitted that he had not communicated with Mr. Lasley in approximately one year, but maintains that his case was not prejudiced because of this.

JAMES THWEATT

concerning executive clemency and

James Thweatt was issued a letter of reprimand for violation of Rules 1.1, 1.3, 1.5 and 8.4 as a result of a complaint by Roger Starkey. Acording to Mr. Starkey, his hunting club hired Mr. Thweatt and paid him $600. in October 1985. He said Mr. Thweatt did absolutely nothing and, in fact, admitted this in a letter in January 1987. Mr. Starkey said after a year and a half of looking for Mr. Thweatt, he located him in Beebe and talked to him several times. He said despite assurance, he did not receive a rehmd.

Mr. Thweatt acknowledged that he agreed to pay back the fee but stated that he had been unable to pay back all but $50. He said he had recently filed bankruptcy and listed Mr. Starkey's club as a creditor.

appeals of his conviction. He agreed to pay Smedley $5,000. Lasley said

(continued on page 105)

later consideration.

Prosecuting

Attorney Joe Kelly Hardin ordered Myers released.

Murphy stated that he dismissed the charge after further information was received. He also said that Myers' charge against White was in revenge for a civil dispute.

JAMES E. SMEDLEY A letter of caution was sent to

James Smedley of Little Rock for violation of Rules 1.3 and 1.4 as a result of a complaint filed by David Lasley. Lasley stated that he is in prison for life without parole and had retained Smedley to represent him

THE DEVELOPING LAW

Us1!1'Y InArkansas: Interpreted,Preempted and Proposed

By W. Christopher Barrier Interpretations of Amendment 60 and of federal interest rate statutes have refined our understanding of the law on the subject, without major changes in the last few years, but several significant interpretative issues remain open.

Specifically, the courts have confirmed that all loans. are subject to Amendment 60's provisions tying the legal maximum to the federal reserve discount rate (FRDR); that most federally-related lenders may "export" their home-state rates; and that a commitmentfee paid at the funding of a loan is additional interest.

However, the scope and mechanics of the "mostfavored lender" status dictated by federal statutes and decisions is not entirely clear, and, of course, while we know that a valid commitment fee is not, just what it takes for a valid one has not been decided.

This article (adapted from presentations to the Financial Institutions Law and Real Estate Sections) will discuss these unsettled issues and their practical impact, and will describe the current legislative proposal for refinement and reformation of Arkansas' constitutional

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amount of interest a lender can charge on a consumer loan or credit sale is five points over the federal reserve discount rate at the time of the contract, or 17%, whichever is less. Southwest Arkansas Communications, Inc. v.

Arrington, 296 Ark. 141,753 S. W.2d 267, (1988).

Although this latter decision could not have been entirely unexpected, it plainly added to the determination of the lending community to seek to undo the rule of the Bishop decision.

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II. EXPORTATION OF INTEREST RATES

Pursuant to federal statutes (12 USC § 85 and 1730 (g) (a), ArtworkbyCarolSpenrerMorris respectivelY)1 national banks and federally-insured savings scheme for interest-rate regulation. and loan associations have "mostfavored lender" status.

I. BISHOP V. L1NKWAY Specifically, each such lender AFFIRMED. may charge interest at the highest of three rates: (1) the rate it could Despite a grudging concurcharge in the absence of the statute; rence and a spirited dissent, the (2) one percent above the FRDR; or Arkansas Supreme Court stuck with (3) the maximum allowed by state the rule of Bishop v. Linkway law in its home state. Gavey Stores, Inc., 280 Ark. 106, 655 S.w.2d Properties/762 v First Financial 426 (1983), considering it settled and Savings & Loan Association, 845 F no longer subject to argument, how2d 519, 520 (5th Cir. 1988). ever meritorious: the maximum Exportation of home-state July 1989/ Arkansas Lawyer/101

interest rates is certainly nothing new. Marquette National Bank v.

Filst Omaha Service Corp~ 439 U.S. 299,99 S. Ct 540 (1978).

Likewise, the cited sections of the ational Banking Act and the I National Housing Act, bolstered by the Depository Institutions Deregulation and Monetary Control Act of 1980 (specifically, P.L. 96-221, §§ 521-523), as well as provisions for particular lending programs (such as Title I loans, under 12 USC §§ 1707, et seq.), make federal preemption of interest rate ceilirigs commonplace.

The Federal Home Loan Bank Board has interpreted those preemptions broadly (12 CFR § 570.11 (1988», as covering federally-insured associations without federal charters.

By extension, that rule would apply to FDIC-insured state banks as well, not just national banks.

These preemptions have provoked some scholarly and abstract debate, both as to their application and their wisdom. (See especially The Business Lawyer, Vol. 43, No.4, August 1988, p. 1558, footnote 3.)

However, as Amendment 60's limits remain close to or at the bottom nationally, the questions for Arkansas lenders are narrower and more practical: a) FLOATI G RATES, FOR , NATIONAL BANKS A D OTHERWISE -As 12 USC § 85 has no "time of the contract" language, it has been routinely assumed that national banks located here may let their rates float with the current FRDR (down as well as up) without reference to the original contract rate ceiling. (37 Ark. L. Rev. 572, 576 (1983».

However, 122 USC § 1730g (a) also lacks the "time of the contract" language, the logical result of which should be the same, since such statures are intended to be "enabling,

definition of interest remain the province of state law, typically the state from which the rate is being exported, but certainly the state whose rate is being used.

The federal statute does allow taking interest in advance by discOllnt, which may contravene a particular state's law, but, otherwise when a lender takes a state's rate, it takes the calculations and definitions along with it. Tiffany v. Bank of Missouri,85 U.s. (18 Wall.) 409, 21 L. Ed. 862 (1874); Meadow Brook National Bank v. Recile. 302 F Supp.

62, 72-75 (E.D.La., 1969); Northway Lanes v. Hackley Union ational Bank & Trust Co. 464 F 2d 855 (6th Cir 1972). c) IS EXPORTATIO MANDATORY? -- Out-of-state lenders generally want to import their rate ceiling into Arkansas on loans made here because those ceilings are typically higher. But Arkansas lenders do not want to export Arkansas "lower ceilings.

This is not a problem for nonfederal lenders, but can Arkansas' national banks and federally-insured savings and loans (and presumably FDIC-insured state banks as well) leave Amendment 60 behind, and search for higher rates?

For better or worse, that apparently is what led many Arkansas savings and loan associations into Texas, with well-publicized results.

Documentation in those transactions would typically adopt the law of the state where the project being financed was located. This adds a fourth alternative ceiling -- that of the state where the loan is "made" -and Gavey says as much.

The trial court in Fisher v. First ational Bank of Chicago, 538 F 2d 1984,1291 (7th Cir., 1976) also said so explicitly - that is, that 12 USC § 85 dictates that a national bank can lend

esglo,

in another slale al the same maxi-

Inc. v. Chase Manhattan Bank, N.A., 506 F. Supp. 254, 266 (1980). That is certainly the thrust of the Gavey decision, supra, at 522-523. b) OTHER TERMS AND CALCULATIONS -- The process of calculating the effective rate and the

mum as state banks in that state. 538 F. 2d, at 1288 and 1291. The Circuit Court, citing Meadow Brook National Bank, supra ., left that holding undisturbed and Fisher no only is not overruled or modified by Marquette (two years later) , it is not

rather thCln restraining ..."

102/ Arkansas Lawyer/July 1989

even cited.

Further, when making the choice, the bank or association need only look to the choice-granting federal statute -- it is immaterial whether the laws of the state whose rates are chosen would allow the same choice, under its own choiceof-law rules. Morosani v. First National Bank of Atlanta, 539 F. Supp. 1171, 1173, (1982).

That result does not appear to be dictated by the wording of any federal statutes or by other cases, such as Marquette, but is not inconsistent with their language or underlying policies, as reflected in the cases. d) "LOCATI G" TRANSACTIONS OUTSIDE ARKANSAS Likewise it is immaterial whether the choice-of-Iaw rules of Arkansas, particularly those relating to usury, would permit that choice, absent the federal statute. for example, a national bank from New York could make a loan to an Arkansas borrower, with Arkansas real estate as security, closing the loan here, and disbursing the proceeds herein, without fear of having an excess of Arkansas nexus. Under the Gavey rationale, a lender coming within either 12 USC § 85 or any of the other similar statutes simply would not be required to "locate" the transaction in the lender's home state to take advantage of the higher ceiling.

Even without these preemptions, the Arkansas Supreme Court has upheld legitimate choices of foreign law, even with substantial Arkansas contacts.

Arkansas Appliance Distributing co. v. Tandy Electronics, Inc., 292 Ark. 482, 730 S.w. 2d 899 (1987).

This is a natural corollary of the judicial inclination "toward applying the law of the state that will make the contract valid rather than void."

Grogg v. Colley Home Center, Inc., 283 Ark. 120, 671 S. W. 2d 733, 736 (1984); Stacy v. St. Charles Custom Kitchens of Memphis, Inc., 284 Ark. 441, 683 S. W. 2d 225 (1985).

However, the Arkansas Appliance decision also represents a continuing trend away from mechanistic choice-

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Similarly whether or not an expense or risk is unusual may depend on whether or not it would occur if the loan were paid according to its terms, at the option of the bor-

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rower.

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of-law calculations by the Court, and a focus on the genuineness of the choice.

Ill. HENSLEE V. MADISON -LESS THAN MEETS THE EYE. State law remains important in deciding what is and is not interest, if that state's law is being applied to determine the maximum rate.

For example, a national bank from a state which does not include fees for guaranties in the interest calculation might make a loan in a state whose law does, but whose interest ceiling for state banks is numerically higher. The bank could not pick the number from one state and the definition from the other.

Likewise, a lender importing its own statute regulating interest rates in a transaction involving a commitment fee would not have to seek to discern the true meaning of Henslee, et al v. Madison Guaranty Savings & Loan Association, 297 Ark. 183, 760 S.w. 2d 842 (1988), as it would look to its own state law on commitment fees, not that of Arkansas.

Nonetheless, Henslee, in fact, may be the first Arkansas case authorizing the collection of a genuine commitment fee without fear of a usury transgression. In this regard, the Henslee decision is more significant for what it does 110t say, than for what it does say. li the Court had lI1enl1t to say that nil such fees should be consid-

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ered and defined as interest, five

pages of analysis would not have been necessary, especially since that analysis concentrates on the particular fncts of that case, reviewed de novo. The dissent implicitly recognizes this.

The critical concepts from the Court's point of view appear to be (l) the "cost of doing business", and (2) "passing on" a "market risk" as to interest rates.

The first concept is a consistent element of usury law, although it typically is stated backwards. What it generally refers to is those normal and usual expenses --- salaries, utilities, rent, etc. -- wh.ich a lender can be expected to pay for from the interest it collects, rather than adding to the interest charged.

In other words, at least part of the inquiry and analysis asks whether the sums being collected are applied to or attributable to an unusual expense or risk, or whether

no such element exist and the lender is merely applying the extra sums to its usual expenses and risks.

In the Henslee case, the Supreme Court treated the testimony of the loan officer as an admission that he klll"u that the funds would be drawn almost immediately. Thus, he knew that the fee would no be needed to cover an unusual expense or

risk, but instead would be applied against the lender's ordinary operating expenses, in the manner of inter-

est.

The Court cited two previous cases, which present this issue. In Mack Trucks ( Arkansas S. & L Association v. Mack Truck of Arkansas, 263 Ark. 264, 566 S.w. 2d 128 (1978)), the lender was making a construction loan -- if the borrower wanted to finish its project, it had to come get the money during a specified period. The was nothing contingent except the precise timing of the construction draws.

In the Arkmo case, (First National Mortage Co. v. Arkmo Lumber & Supply Co., 277 Ark. 298, 641 S.w. 2d 31 (1982»), the fee was called for in the note -- it would arise only nfter the loan was made. Hence, the very act of borrowing the money gave rise to the fee, which could not be considered at all unusual.

However, in Key v. Worthen, (Key v. Worthen Bank & Trust Co., N.A., 260 Ark. 725, 543 S.w. 2d 496 (1976), not cited by the Court, an annual fee to keep funds available was paid, but it was within the borrower's power to use the line of credit or not. Further, a credit card, which can be used virtually worldwide when and where the funds are needed, certainly has unusual elements and expenses the lender associated with it.

The charges which are most closely analogous to a true commitment fee are (i) late charges and (ii) prepayment penalties, which are within a borrower's power to avoid, even if they are used to offset a lender's expenses (there being no real requirement that the fees and the expenses match up, aside from the necessity that these fees be "reasonable").

The expenses contemplated by late charges include the costs of extra billings and added employee time.

Repayment penalties help recoup the costs of putting loans on the books or re-Ioaning the same funds. In both instances, these are expenses the July 1989/ Arkansas Lawyer/103

lender would not have incurred were the loans paid according to their terms.

A borrower also can avoid commitment fees by waiting until loan funds are needed to apply for them In such instances, the borrower bears the market risk of rising rates which is the usual situation.

What Henslee stands for is the proposition that the lender can indeed charge for having that risk shifted to it, if that is what is happenmg.

The fact that the Henslee com-

not always identify the costs (beyond interest shifts) in delaying the funding of a loan.

But, in all three instances, the borrower is paying for

the privilege of departing from the 1I0rmal funding and repayment of a 10011 and for adding some Il1UiSlW! burden or expense for the lender, at the borrower's option.

Henslee also confirms explicitly that nature of the penalties when the usurious loan is secured by a lien on real state. Besides the lender and the borrowers, a second mortgage holder was also a vigorous participant in the Henslee case.

Why? Because the implementing statutes provided that a void debt meant a void lien -- the second lien holder contended that, whereas the Amendment 60 penalties may have set off merely a part of Madison Guaranty's debt, the statutes voided

all of its mortgage.

Artwork

by Carol Spencer Morris

mitment did not mention the risk was probably of no real significance, but the Court took it as confirmation that the risk did not exist. A recitation in the commitment could raise at least a presumption that the risk existed.

It is also well to note that "market risk" may reference more than interest rate shifts alone. Lenders do not always fund every loan request, and they sometimes cut back on one type of loan or another. A commitment may remove these uncertainties for a borrower.

Again, a lender cannot always quantify the exact costs associated with a late payment or an unexpected prepayment, and likewise it can-

104/ Arkansas Lawyer/July 1989

Stating the obvious, the Court held that the repealer in language in Amendment 60 applied to that statute, which plainly had been an extension of the old forfeiture provision and died with its replacement

by Amendment 60's less draconian penalties.

What practical significance does Henslee have, in terms of lending practices?

1. Some lenders refund the commitment fee if the loan is funded and keep it only if they kept the funds available and they were not used. This would seen to be entirely without risk.

2. Merely requiring a separate check (as opposed to funding the fee from the loan proceeds) is 1I0t enough to separate the fee and the funding.

3. Some lenders make their com.mitments cancellable if rates rise, thus, taking no market risk as to the rates. This seems risky even if the fee is refunded upon cancellation, especially if the lender then offers a new commitment for the fee -- but at the higher rate, the borrower having no real "choice".

4. As the dissent pointedly asks, how long is long enough for there to have been a "market risk?"

Less than a week generally is not enough, but the majority opted to give no positive guidelines.

The exact timing may be less important than the substance of the transaction ("substance" being another hallowed usury catchword): if the borrower is genuinely reserving funds to be used ill the future, especially upon

the resolution of certain contingencies or the happelling of certain events, not within the lender's control, then the fee should be viewed as earned.

If, however, there are no such contingencies and, as in Henslee, the lack of a market risk of any sort is apparent to the lender, the loan is no different than a car or bass boat loan with immediate funding. (If the contingencies happen to be resolved very quickly, to everyone's surprise, tha t is not in the lender's control and the fee is still earned.)

A genuine commitment fee is not interest because there has been no loan when it is paid and there is some separation between the transactions. Paley v. Barton S & L. Association, 82 N.J. Super. 75, 81, 196 A 2d 682, 685 (1964).

Consistent with this approach, Henslee merely confirms Arkmo's teaching that if the transactions are not separate, and are too "connected", the fee is likewise connected with and added to the interest charged on the loans and the effective rate increased accordingly.

IV. PROPOSALS FOR FURTHER REFORM. After some jockeying between the Arkansas Bankers Association and The Arkansas Association of Bank Holding Companies over the form it would take, a proposal to replace Amendment 60 was referred to the electorate by the 1989 General Assembly.

The proposal, encompassed within HJR 1012: a. Permits a floating index or a fixed rate; b. Sets a maximum at five points over the one-year T-bill auction rate; c. Except that the consumer

maximum is a flat 17%; d. There is no maximum for business loans over $250,000; and e. And it leaves the penalties the same as Amendment 60.

This proposal does clarify the point that the commitment date is the relevant one for fixed-rate credit, not the execution date, but that the maximum for floating rate credit moves with the T-Bill rate.

Extensions and modifications are dealt with, but, oddly, commitment fees are not.

The holding company group wanted to use another index, but either would, as a practical matter, raise the maximum by around two points at any given time.

Perhaps, most significantly, lenders would have a provision as to large loans which they would want to export. Conversely, out-of-state lenders could be attracted into Arkansas on significant projects by this example of deregulation.

Nevertheless, it is the new consumer ceiling which will generate the most opposition in the electorate.

The Arkansas Wills Library

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CONCLUSION: Our knowl- Continued from page 100 edge of what Amendment 60 means has been changed very little since the first major decision in 1983, although A letter of caution was sent to Dan the Henslee case appears to at least Harmon of Benton for violation of narrow one long-standing ambiguity.

Rules 1.3 and 3.2. The Arkansas Court Similarly, the proposal for fur- of Appeals granted a Motion for ther revision contains no surprises as Extension of Time to File Bleated Brief.

The brief was originally due on to what lenders want it to mean.

However, federal statutes and August 27,1988, but was not filed on cases continue to expand the number that date. On September 30,1988, the of transactions which are not covered Clerk of the Court wrote a letter to Mr. by it at all (or allow that choice), and Harmon inquiring why the brief had not been filed or a request made for an further ferment seems inevitable. ,'--,

DAN HARMON

John E. McAllister, P.E.

EXPERT WITNESS

Graduate Electrical Engineer, 34 Years Industrial Experience.

Specialist in Industrial Machine Guarding and Safety.

Born 8-29-21, Milltown, N.B. Canada, B.S. in Electrical Engineering, 1947, from University of New Brunswick, Fredericton, N.B. Canada.

14 years engineering and sales experience with General Electric Co. 11 years experience in electric motor winding, industrial control panel manufacturing and sales. 9 years President of large safety equipment distributor specializing primarily in the metal forming industry.

EXTENSIVE COURTROOM EXPERIENCE.

extension. On October 7, 1988, Mr. Harmon filed a motion stating that the failure was due to his own fault and request permission to file late. The Court granted the motion and extended the time for filing until November 16, 1988. A copy of that order was forwarded to the Committee on Professional Conduct and the Committee issued a letter of warning to Mr. Harmon. The Court later advised the Committee that his brief was not filed on November 16, but Mr. Harmon asked for an additional extension of 30 days stating that he had been out of town. That motion was granted and the time for filing was extended until December 16, 1988. A copy of the Court's order was forwarded to the Committee. Mr. Harmon said he had no excuse.

John E. McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909, (501) 922-1709 July 1989/ Arkansas Lawyer/105

LAW, LITERATURE & LAUGHTER

(cited hereinafter as "LLL") Tim Watson of Newport has set me straight regarding typos and such.

Tim wrote with reference to April's LLL, in which [ coined the phrase "word processo" to replace "typo" for the 1980's and 1990's. Tim says neither "typo" nor "word processo" accurately describes the examples set forth in that column (one example was a letter in which a lawyer "capsized" his case to the judge; another was a deponent who said someone

III).

Comedian Norm Crosby's doubletalk routine is cluttered with outrageous mala props. Webster's cites Time's reference to someone who, "famed for mala props," said things like "polo bears," "Remember Pearl Island," and "neon stockings."

Archie Bunker was great malapropist. The example I recall best is Archie's repeated references to the "Reverend Fletcher," which would prompt Edith to say "Felcher," whereupon Archie would retort, "Whatev-

gave him"artificial insemination"

when he meant to say "mouth to mouth resuscitation").

"Your examples,

11

er!"

During his career as a baseball announcer, the late Dizzy Dean was noted for saying, after a foul ball, that the runners were returning to "their respectful bases."

In what I believe to have been a tongue in cheek malaprop, a lawyer once sent me a resume and wrote that he was transmitting the requested "biological information."

Tim Watson says he once bore witness to a "malaproper" who, "following a lengthy discourse to the effect that opposing counsel's prayer

writes Tim,

"are true mala props .. " The distinction, he says is that a typo (or processo) happens when the operator of the machine "knows what he or she intends to type, but ... the typewriter types something else," whereas a malaprop is an error resulting from the writer intending "to type exactly what came out on the printed page."

Or the vocal chords stating exactly what the mind conjured up.

I am indebted to Tim for the lesson. We should all know of this distinction. I am bumfuzzled that it did not occur to me earlier, for 1, too, am a

devotee of mala props.

We get the word "malaprop," which became accepted as a noun around 1823, from a character in Irish playwright R.B. Sheridan's The Rivals, a 1775 comedy (I didn't major in English for nothing). Her Name?

What else, Mrs. Malaprop. The word has come to mean a misapplication of a word for one with similar sound or meaning, usually with a humorous result. Among the gems produced

by Mrs. Malaprop are these: "I would have her instructed in geometry, that she might know something of the contagious countries" ( Act I, sc. II); "[Wle will not anticipate the past; ... OUT retrospection will now be all to the future" (Act N, sc. 11); "So! So!.. -- here's fine suicide, 106/Arkansas Lawyer/July 1989

,

I

for damages was excessive, . . .

By Vic Fleming paracide, and simuiation going on in the fields! and sir Anthony not to be found to prevent the antistrophe" (Act v., sc. I); and (on learning that someone said her "ridiculous vanity ... makes her. .. deck her dull chat with hard words she don't understand") "[I1f 1 reprehend anything in this world, it is the use of my oracular tongue, and a nice derangement of epitaphs" (act III, sc.

summed up as follows: 'The jest of the matter is that the addendum in your Complaint is ridiculous'." A double whammy there, that would make Mrs. Malaprop exudingly proud. [n collusion, I conjoin you to alliterate from your minds my pervious column in which I inovertingly crackerized various and Sunday mala props, equalizing them to typological forepaws.

FACED WITH A DRINKING PROBLEM? Perhaps Alcoholics Anonymous Can Help Write to P, 0, Box 5415, Fort Smith, AR 72913 or Call (501) 783-0123

EXECUTIVE DIRECTOR'S PAGE

MCLE -It's Here and law professors. Minnesota, the first state with MCLE, says their lawyers attend an average of one third more hours than the requirement.

The rules provide opportunities for those who fail to meet the first deadline of july 1990 to cure their deficiency. The lawyers administering the program do not want to suspend anyone, but suspension from practice is the sanction for those who do not eventually meet the require-

By William A. Martin

Minimum Continuing Legal Education (MCLE) arrived in Arkansas via a Supreme Court per curiam order on March 6, 1989, culminating a six year effort on the part of the Bar Association.

What does a continuing legal education requirement mean to Arkansas lawyers? Each of us must attend 12 hours of approved educational programs each year, complete and return an attendance form to the program sponsor, plus sign an affidavit, supplied by the Supreme Court Office of Professional Programs, listing the courses attended and return it by july 31 of each year starting with july 1990. ot a difficult requirement for most lawyers.

The "why" of an educational requirement is basically lawyer competence -- a spur to overcome the inertia of some lawyers and push all to meet the ethical obligation to acquire and maintain the knowledge and skill needed for any representation a lawyer undertakes.

Our records show about the same one-third of Arkansas lawyers attend Association and Arkansas Institute for Continuing Legal Education programs year after year.

While a few go to other programs, many attain no formal continuing education. Arkansas is not alone in these statistics, hence the actions of 32 additional states, including all bordering Arkansas, to establish CLE requirements over the last dozen years.

ment.

Our Court chose the word "minimum" to describe our requirement

and convey the idea that 12 hours is a starting point. The MCLE Rules encourage the Arkansas CLE Board to recognize attorneys who attend substantially more than the minimum hours. (Texas publishes the names of their attorneys who get 27 hours in a year, calling them members of the State Bar College.) Going to courses is something all of us need to do in addition to doing self directed reading of advance sheets and legal publications for which we get no MCLE credit. That reading we should continue because it is good for us.

Bar Leaders in states where MCLE has been in operation several years report an approval rate of about 75%.

They find they can offer more programs and professional relationships improve as more lawyers get out and mingle with fellow lawyers, judges

The MCLE requirement applies to all Arkansas lawyers -- Chief justice jack Holt, jr., judge Henry Woods, Governor Bill Clinton, Senator Dale Bumpers, Dr. Robert A. Leflar, and to you and me. The only way to get an exemption is to make a career decision to take inactive status. The barrier to return to active practice is high -take 36 CLE hours the year following return and pay a $250 reinstatement fee.

Model Rule of Professional Conduct 8.4 is specifically incorporated in the MCLE Rules. The section states that it is professional misconduct for a lawyer to: " ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

Compliance is serious business.

While license suspension could result from not going to educational programs, disbarment could result from lying about attendance.

MCLE is a worthwhile national trend. Lawyers more in touch with the developing law and with other lawyers will be the result. Both the public and the profession will benefit.

July 1989/ Arkansas Lawyer/107

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11627861

Cover Story

AMorning With

David M. (Mac) Glover

"I dOll't look at myself as Presidellt/CEO, I prefer to thillk of my positioll as Chainllall of the Board, providillg leaderS/lip ill the overall decisioll makillg process."

Mac Glover walks out in khakis and a white pin point oxford. There are no huge leather chairs, no big conference room, only one secretary is in, and the view out of the office is of a parking lot across the street, a gravel parking lot. Not exactly what was expected - neither is Mac Glover.

Mac Glover is a lawyer who comes from generations of lawyers. He is the third of these generations. Glover is the grandson of the late David D. Glover, a prominent Malvern lawyer, who had an illustrious career including being elected prosecuting

attorney of his district and three terms as Arkansas Fourth District Congressman.

Glover is the son of Lawson Glover, another notable attorney, who passed away two years ago this summer. The elder Glover was extremely active in the community and state also, serving as prosecuting attorney, church deacon and teacher, civic worker and being president of

By Paige Beavers

the Arkansas Enterprises for the Blind in Little Rock. He also served on the Board of Directors of Baptist Memorial Hospital in Memphis for ten years.

Besides these direct lines, three of Mac Glover's uncles also were very prominent lawyers, Quinn, Bill and Julian Glover. Quinn, now deceased, an active Shriner, was a Little Rock Municipal Judge. Bill is not only a lawyer but also a successful entrepreneur in Malvern. Julian Glover, also deceased, served as prosecuting attorney for Hot Springs and was chair of the Garland County July 1989/Arkansas Lawyer/109

Democratic Committee for thirty years. There is also a cousin, Dorsey Glover, son of Bill, who is an attorney in Malvern and also an entrepreneur as is his father.

Of his two degrees from the University of Arkansas at Fayetteville David M. (Mac) Glover says" I am an outstanding mediocre graduate."

He served as assistant attorney general in Little Rock for a year before joining his father's practice in Malvern. He has been very active in

office stuffed with leather and mahogany furniture? Not so. It路s a nice office, there is new carpet, paneled walls and lots of built in book shelves. (It must be mentioned that there is a small leather loveseat in Glover's personal office but his chair is grey tweed cloth.)

My favorite however, was the refrigerator which contained Coca-Cola, in bottles, I mean like the old bottles you got out of machines ten to twenty years ago.

My expectations were of a slightly stilted, stuffy and formal person and office. What I got was a friendly guy in a 'ground floor' office. othing fancy or pompous here.

Before we started the interview, Glover

wanted to take me on a tour of Malvern, the town that has obviously held a lot of history for his family. He thought it would help to give a better sense of who he is and what he does. He was right.

We started down Main Street, which leads back to the interstate. As we went by a Bank of Malvern branch. I asked about the flag Mac Glover stands by the window memorializing his father American which towers over at the First Baptist Church in Malvem. the road.

"That flag is the Boy Scouts (an Eagle Scout, he was awarded the Silver Beaver 1,800 square feet. They bought two Award, the highest honor for an adult flags and witch them every thirty scouter, in 1984) and the First Baptist days. The wind whips a flag of that Church of Malvern. He has served in size so much it frays the edges. A the House of Delegates of the seamstress sews the flag every thirty Arkansas Bar As ociation and as chair days as the other flies."

"How do you know so much about of the Executive Council. ow with all this history, this?"

"Members of my family are active wouldn't you expect a huge, old law supporters of this bank, but I belong 110/Arkansas L.1\vyer/ July 1989

to Malvern National, j'1l show you later."

We head onto a gravel road into a beautiful area filled with tall trees and small rolling hills. It looks a lot like the beginning of an exclusive resid"ntiaJ area. But it is actually the second phase of an expanding industrial park which is looking for more tenants.

" I helped start this Industrial park for the county. We needed it very badly after Reynolds Aluminum pulled out. A Japanese company has recently shown some interest in the park. They like the idea of sitting in their offices overlooking the interstate;' said Glover.

We then head to the place in which Mac Glover appears to take the most pride, his church. The Glovers have been very active in the First Baptist Church of Malvern for years.

So much so that the cornerstone of the church bears the name of David D. Glover. But that's the old church, the new one is a huge red brick steepled building which looks for the most part like other Baptist churches around the country. But, Glover quickly points out that this church was featured recently in The Arkansas Times Magazine for its architectural design by Larry Black of Benton, which won an annual award in the magazine. As we go in, I have the pleasure of meeting Mac's wife, Michele, who has headed up the preschool program of almost 80 children this year.

We go in to the sanctuary which is strikingly beautiful. It has light grey walls with enormous white columns and the largest stained glass windows I have ever seen. The effect is awe inspiring. ''They took out the old windows and put these in when they renovated the sanctuary. The original window over here memorialized my grandparents but the window there now was donated by a client of my dad's and mine who gave over $12,000 to have this window memorialize my dad. I picked the window depicting the Ten Commandments or "the law" especially for my dad. The old window bearing my grandparents' names is in my office now. "

Our next stop is the bank across the parking lot, the one Mac Glover supports, not only by banking there but by representing them when the need arises. The Malvern National Bank is a new building, tan stone with lots of windows. It's plush inside, lots of marble and thick carpeting. As we walk in, passersby say hello to Glover.

"Do you know everyone in I

I

town?"

"Yes, pretty much," he says.

Among the appreciated clients of Glover is the Roy and Christine Sturgis Trust, one of whose trustees lives in Malvern. Glover and his father litigated over entitlement to certain funds culminating in $10 million being placed under his trustee clients' surpervision.

'The evidence of their subsequent charibtable gifts in our community is simply overwhelming," says Glover.

The Glover home is next on the agenda. I was betting on a huge private estate set high upon a hill.

Instead, the Glover's live in a typical middle class neighborhood. As he says, ' You don't get rich practicing law in Malvern." The house is more contemporary than most in small towns. Built on two levels, it sits on large lot surrounded by signs of children -- a trampoline, bikes, etc.

Glover likes to work in his yard, it's the only apparent thing he does just for the fun of it.

We go around back and he wants me to meet his dog, Sir. With a name like that, I was somewhat leary about the meeting. SIR ( I prefer to capitalize it hereafter to show the respect this animal definitely commands) is a Siberian Husky, big, grey, with the bluest eyes I've ever seen. He also has the most vicious bark I've ever heard. He barks at me , he looks lovingly at Glover.

Inside, the home is beautifully furnished, mostly modern. Glover says both he and Michele decorated the house. (Michele was not there to verify this) On display in the family room are objects which the Lawson Glovers brought back from their extensive travels after the elder Glover retired.

Back in Glover's office we sit down to talk about his plans for the Bar Association during the coming year. He sees it as a big responsibility. ''I'm comforted by the fact that Bill Martin and Judith Gray are experienced professionals. Knowing that they are there to do the day to day running of the office makes me feel very secure about the Association," says Glover..

"I don't look at my self as President/CEO. I won't be running the day to day operation, that is for Bill Martin, who does a fantastic job at it. I prefer to think of my position as Chairman of the Board, providing leadership in the overall decision making procedures."

"Through observation I've concluded that the absolute best work of the Association is done through the sections and committees, and I've made a commitment that the strongest emphasis of my year at the helm of the Bar will be in encouraging those groups to function. I've called about the state soliciting those people who

will chair these committees. " "We've done things in the past few years that we didn't dream of ten years ago. This is largely because of the strong push by very able past preSidents of the Bar, but its also attributable equally to the hard work of some individuals in specialized areas for which they had an affinity.

I have asked each appointee to limit the goals of each committee to three. I would like the members of the committees to have the vision of the chair, the vision to be simply stated and reachable within a one year period and I want the members of each committee to work toward that end. I am requiring large doses of accountability."

Glover says that he knows he is expecting a great deal of the committee and section members but that in turn he wants to 'spread the wealth' with them. He doesn't want to take the credit for their work, he wants them to accept the credit. This can be done by way of bar publications which will recognize the

David M. (Mac) Glover walks through an Industrial Park which he helped create to aid Malvern's sagging economy.

July 1989/ Arkansas Lawyer/111

work of these people. These will also models around the state. 1 want spiritual makeup, my relationship with God is first. A close second is emphasize to the membership what others to step forward." our committees and sections are "The last thing is the Judicial my family, 1 really love my wife and Article Task Force. It's a very kids. And next, my integrity, my selfdoing.

Til give the President's page of important task to rewrite the Judicial esteem as a lawyer, and as an honest THE ARKANSAS LAWYER to Article of our state constitution. It and dependable person. 1 guess that's recognize these people if that's what needs revision. 1 hope that our efforts the guy I am, 1 think that's me."

Mac Glover takes his left hand it takes. It's not just the lawyers that will culminate in a new article which want to be appreciated, it's their the Bar can unanimously agree to, and pushes his hair back, something spouses who give them up regularly hopefully by the end of this Bar year:' he does often, not because he's to bar efforts who want to see that the said Glover. "Those four projects in worried about the way he looks, but work these committee members are addition to an emphasis on simply because his hair is falling into doing is being recognized." committees and sections are where I his eyes. David M. (Mac) Glover is Glover feels we haven't tapped hope to spend the bulk of my efforts pretty Simply a nice guy. â&#x20AC;˘ our talent resources yet by far. There this year." are those in the trenches who have Mac Glover has had several been working but not enough in the mentors in his life. His father is very Editor's Note: trenches. He hopes to draw these out important to him, he still finds it hard This story was written to show IlOt and at the same time motivate those to talk about him. His mother only ollr new president's goals for the who have been doing more than their continues as "his close friend and a Association, bllt also so that the share to continue enjoying their good confidant." He says that his parents membership who has Hal had the taught him the basic values by which work. pleasllre of getting to know this man, Over the past year Glover says he he lives today. coliid get a brief glimpse of his life. 1 has learned a great deal as PresidentAnother mentor is Little Rock wish to thank Mac Glover and his family elect. He also has very warm feelings Attorney Bill Wilson. The two have for letting my photographer and me for past President Phil Dixon and his maintained a close friendship for into their home and the other places that wife, Susan. many years. are so important to them. 11 was a very "Phil is a pleasant, easy person to "What are the three most important enjoyable dllty to write abollt sllch a be with, but he can be tough when he things in your life?" lovely family. We appreciate their Glover stops to think for a moment. needs to be," says Glover. willingness to share so milch with liS. Glover is very pleased with the " 1 would have to say that my Young Lawyer's Section of the Bar. He feels they have been a catalytic force for the Association.

"They don't wait for the senior members of the Bar to tell them what to do, they are all self starters:' Glover said.

Glover has four things he wants to carry forward during the next year.

"One is MCLE, that represents hard work for six and a half years by a committee headed by Russ Meeks.

This is the year to implement MCLE and as an Association we are really going to promote it. " "Also, 1 would really like to strengthen our relations with the judges at the state and federal level.

We have a Judicial Council that is equally interested in helping the barbench relations improve -- it's helpful for both organizations."

"I want to encourage women and minorities in our bar to the forefront, to take their place and to shoulder up to the other people who are now The offices of Mac Glover and his partner, Mark Roberts. The plaqlle reads: Glover active. We have very outstanding role Law Offices, where Mac and his father practiced together lin til the elder Glover's death two years ago.

112/ Arkansas Lawyer/ July 1989

Courting Disaster?

Substance Abuse In The Legal Community •

By Larry R. Hart, M.D. Can lawyers "Just Say No" to alcohol and drugs? Apparently many cannot, according to a recent survey by the Washington State Bar Association (WSBA). Results of the survey that examined various symptoms of distress among lawyers reveal that alcohol abuse or dependence among attorneys is as high as 18 percent, compared with 10 percent among the general population. In addition, abuse or dependence on drugs was admitted by about three percent of the approximately 800 randomly selected practicing attorneys responding to the

...

•

.• •

•

, f

survey.

Women attorneys in Washington State are half as likely to be chemical abusers as men, but here too the figures are considerably higher than the five percent for women in the population as a whole. Of the 187 female attorneys responding, 18 indicated the presence of alcohol abuse or dependence (9.6 percent). Of the 610 men in the survey, 126 (20.7 percent) were either alcohol abusers or alcohol dependent.

Washington State lawyers are apparently not unique when it comes to symptoms of distress as indicated by the WSBA study. WSBA matched the profiles of Washington attorneys with those of lawyers in Arizona and found them to be quite similar, suggesting that these responses may be typical across the country. A number of factors including the availability of alcohol and drugs, the climate of acceptance and the presence of job and other stress factors, combine to increase the likelihood of

Artwork by Carol Spencer Morris

substance abuse among attorneys nationwide.

What is Chemical Dependence?

Although many people continue to think of alcoholism and drug dependence as character flaws-- such as lack of willpower and selfdiscipline -- medical researchers have continued to uncover biological and genetic factors behind chemical dependence.

The American Medical Association and World Health Organization have defined alcoholism as a "disease" for the past thirty years.

The American College of Physicians identifies chemical dependency as a medical illness requiring medical diagnosis and treatment. The vast majority of medical authorities agree that substance dependence is a complex disease with social, psychological, biological and genetic components.

Experts understand that not everyone who uses and abuses alcohol or drugs will develop a dependency.

This is in part because the disease of chemical addiction is a condition involving chemical changes in the brain, and at least in some individuals July 1989/ Arkansas Lawyer/113

there is a genetic predisposition toward these changes.

Chemical dependence is defined by medical authorities as the continued use and abuse of chemicals despite repeated adverse consequences to self and others. But it is the unseen factors that turn abuse into dependency when chemical changes take place in the brain making further consumption of alcohol or drugs a necessity.

Addiction is the body's response to repeated use of these chemicals, and it occurs more readily among individuals with susceptible body chemistry.

In most people, the decision to consume alcohol or drugs is a conscious, rational decision. This is not the case among addicts, however.

The best available information indicates that among those who have become chemically-dependent, the substance has passed through the "biogenetic wall" and altered the chemistry of instinctua I portions of the brain. The result is that among addicts, the decision to consume is no longer a rational one, but an instinctive one, without regard for constraints and consequences. The drive to consume the alcohol or drug becomes a compulsion, the primary symptom of the disease.

support network of family and friends and few recreational outlets. Alcohol and drug use become a substitute source of relaxation and support to help cope with the stresses stemming from the drive to achieve, Lifestyle factors among attorneys and other professionals also contribute to substance abuse and subsequent dependence. Studies funded by the National Institute for Alcoholism and Alcohol Abuse have shown that alcohol use among executives is pervasive, with less than three percent being abstainers, as compared with 27 percent of the general population.

Cocaine use has also become increasingly common as it has become more available and less costly. Such Widespread use contributes to the climate of acceptability of these practices despite their potential for harm.

Chern ica Ily-d e pend en t professionals may go undetected longer than other groups because their relative affluence insulates them from the impact of their disease. They have, in effect, a financial cushion that helps them conceal their addiction.

Beyond this, attorneys tend to have little supervision in their employment, and employers or

Chemical Dependence and the Impaired Attorney Lawyers may be no more likely to be predisposed to chemical dependence than the rest of the population, but a number of social and psychological factors may contribute to a higher rate of abuse that can lead to dependence.

Like other substance-abusing professionals, lawyers present special problems. They tend to be selfconfident and independent, and are accustomed to handling problems on their own. Consequently, they are not inclined to seek outside help even in the unlikely event they acknowledge the existence of a problem.

In addition, lawyers' professional environment tends to encourage them to be workaholics, a situation frequently complicated by a poor

and discuss problems for fear of making the working environment uncomfortable, Unfortunately, chemical dependence among attorneys can have serious consequences for a legal firm, as well as for the dependent individual. These go beyond the usual problems associated with chemical dependence, such as absenteeism and low productivity.

Attorneys occupy a position of trust and confidence with their clients; chemical dependency may cause them to violate that confidence and jeopardize the relationship between a client and the firm. In addition, an attorney's chemically-impaired judgment can cause serious harm to the client's interests through poor management of cases, such as missing filing deadlines.

While lawyers may not differ from other groups in terms of biological susceptibility to addiction, they are probably better equipped to develop rationalizations that perpetuate a denial of drug dependence problems.

Attorneys are uniquely difficult to convince of their dependence and the need for treatment because of their years of training and experience in developing the nuances of arguments and in uncovering extenuating circumstances. These techniques help them avoid recognizing problems of chemical dependence in themselves.

Earlier this year, the Kentucky Bar Association (KBA) and the American Bar Association (ABA) cosponsored the "National Workshop for Growth," which covered the assessment and treatment of impaired attorneys. Representatives of state bar associations from 33 states attended the three-day session.

colleagues are reluctant to recognize

114/Arkansas Lawyer/ July 1989

,

I

I

Artwork by Carol Spencer Morris

participants were in fact recovering

establish a well-balanced pattern of living that can be carried forward

attorneys themselves. They compared

without chemicals.

programs and resources, beginning a

There are several treatment centers which have established programs

A

number of the workshop

dialogue between the states and the ABA on the diagnosis and treatment of impaired attorneys.

As a participant in the workshop, I discussed the trials and tribulations the impaired attorney faces upon entering treatment.

Assessment and Treatment of Attorneys Attorneys, like other professionals, usually do not seek treatment until a crisis has developed, in many cases, a medical crisis resulting from abuse.

When entering treatment, they remain defensive and reluctant to accept the support that is offered.

In addition, it is often difficult for them to accept treatment in settings such as Alcoholics Anonymous or Narcotics Anonymous, where they may feel that they have little in common with others present.

Like other professionals, attorneys have particular difficulty accepting the idea that they have lost control and require the help of others.

Because the disease of chemical dependence is a complex one, treatment also is complex. It involves attending to both physical and psychological dependence. In the early recovery process, the emphasis of treatment is on the individual's acceptance of the diagnosis of chemical dependence and on detoxification.

After this is accomplished, the remainder of the recovery process helps the individual

specifically for the treatment of chemically dependent professionals.

At the Ridgeview Institute, where I am director of the Recovering Professionals Program, we combine elements of programs like Alcoholics Anonymous with a setting and therapy specifically sensitive to the needs of professionals. The program consists of four phases, beginning with a four-week in-patient treatment process that includes group and individual therapy sessions and

education, as well as detoxification.

The first phase is followed by six weeks of out-patient treatment, including five hours of treatment per day, while residing at the Ridgeview Recovery Residence. In the next phase, recovering professionals perform volunteer work with other recovering patients, gaining insight into their own chemical dependence while continuing to receive treatment.

In the aftercare program, recovering patients return to their profeSSion whiJe continuing to receive

weekly treatment. Because drug dependency affects the entire family, workshops are conducted to help family members through the recovery process as well.

Self-Assessment Guide Recognizing that an individual has a problem and needs help remain the most serious obstacles to treatment.

Below are some symptoms of the disease that may help identify a

ACOUSTICS & AIR QUALITY â&#x20AC;˘ Industrial and community no~e studies .Audible warning signal evaluation ¡Air qual~y and ventilation testing .Industria I hea~h and safety assessment Fitteen yean; experience Cert~ied Industrial Hygien~t

Expert witness (state and federal courts) Institute of Noise Control Engineering

THOMAS W. RIMMER, MS, CIH 40 Pine Manor Drive LiHle Rock, Arkansas 72207 (501) 663-4742

chem ica II y-dependen t ind i vid ua I. Chemical dependence may exist if a colleague: o Loses time from work because of alcohol or dmgs. o Begins to suffer damage to his or her reputation. o Feels remorse after drinking or using d mgs. o Seems irresponsible of family concerns.

o Shows lack of attention to client matters. o Has problems sleeping. o Becomes less productive and allows the quality of his or her work to deteriorate. o Drinks or uses dmgs by himself/herself. o Uses drugs or alcohol to escape from worries.

o Has been hospitalized for dmg use.

o Uses drugs or alcohol to build self-confidence.

People who are concerned that they may be chemically dependent should seek assistance from qualified professionals as soon as possible. Lawyers are no more immune to chemical dependence than any other group.

In fact, several factors combine to make lawyers less resistant than others to this dangerous disease. Treatment is not an easy process, but with personal determination and with proper treatment and counseling, the chemically-dependent attorney can recover and begin a new life free of drugs or alcohol.

(Dr. Hart is the Director of the Recovering Professionals Program at Ridgeview Institute in Smyrna, Georgia.)

(Philip K. Lyon is the chair of the Arkansas Bar Association's "Lawyers Helping Lawyers" Committee which assists attorneys who have chemical dependency problems. To get more information on this program call Lyon at 375-1122.)

July 19891 Arkansas Lawyer/llS

A GENERAL

PRACTITIONER'S

PRIMER

"When Them Cotton Bolls Get Rotten" Crop Damage in Arkansas: Inconsistent Decisions or Lack of Evidence

By David W. Cahoon

ArtWork

by Carol

Spt"nc.!r Morris

This article is written for the purpose of summarizing the major cases in which the question of damages for the injury to or the destruction of a growing crop has arisen and to provide a guide for the development of proper evidence so as to enable the litigant to take advantage of the most favorable measure of damages.

Lawyers in rural Arkansas are often faced with one or more of the following situations(1) "A crop duster has just sprayed my neighbor's rice field. The chemical drifted over on my beans and they are going to die."

(2) "That joker built a dam across the drainage ditch and the water is all over my cotton."

(3) "The .... !!!! knew better than to burn the wheat when) had my crop still in the next field."

The list of potential fact situations wherein litigation for damage to crops develops is endless, covering the range from agricultural aviation to self application of mislabeled chemicals.

The liability issues connected with them are just as endless and are not for discussion here but rather this July 1989/Arkansas Lawyer/117

A

G ENE R A L

article will deal strictly with the damage issues.

A reading of the appellate decisions wherein the measure of damages for injury or destruction to crops has been stated reveals the following seemingly inconsistent statements of law: (1) The measure of damages for destruction of a growing crop is the actual cash value of the crop at the time of its destruction. SI. Louis IM&S RY. Co. v. Lyman. 1 (2) Where crops at the time destroyed were so immature as to

have no market value, and yet it was too late to replant, the measure of damages is the rental value of the land. SI. Louis IM&S Rv. Co. v.

Saunders. 2 (3) The actual value of a crop at the time of its destruction is to be ascertained from consideration of the circumstances existing at the time of

its destruction, as well as at any time before trial, which favor or render doubtful the conclusion that it would attain to a more valuable condition and from consideration of the hazards and expenses incident to process of supposed growth or appreciation; the rule is the same as to crop damaged, if the jury believes that otherwise it would have matured, except the cost of gathering and marketing must also be deducted. Kansas Citv, P&G Rv. Company v. Pirtle, 3 and Dickerson

Construction Company, Inc. v.

Dozier. 4 (4) The amount of money which will reasonably and fairly compensate for the difference in the fair market value between the crop that the land would otherwise have produced and the crop that was actually produced, less the difference between what it would have cost to have produced, harvested,

and

marketed

an

undamaged crop and what it did cost to produce, harvest, and market the actual crop. Arkansas Model Jury Instructions, No. 2225. 5 The above statements are representative of the language found in the many cases dealing with crop damage.

Having read these statements of law the following questions must be resolved before 1181 Arkansas Lawyerl July 1989

PRACTITIONER'S lawyers can be comfortable in their knowledge of law in tlUs area: (a) Under what circumstances is my client limited to the rental value of IUs land? (b) Cannot my client recover

lost profits or at least the fruits of what would have been a good crop? (c) What is meant by this phrase "actual cash value at the time of destruction"?

The Dickerson Construction Company 6 case, supra, is probably the most enlightening of the Arkansas decisions in this area. In Dickerson 7 a Lee County farmer had a soybean crop in the field which was described as knee high when it was destroyed by flooding. The flooding was caused by a construction company having built a temporary dam across a drainage ditch adjoining the farmer's property. In discussing the law as it had developed in Arkansas, Justice Fogleman points out that prior to any application of the law of damages to growing crops one must first make a

threshold determination of fact as to whether the crops had sufficiently matured so as to have a market value

or at least have reached such a level that a reasonable estimate of their expected production can be made.

This threshold question of fact is one for the jury unless reasonable minds could not differ on the question. 8 It is the development of evidence in answer to this threshold question that trial counsel must carefully prepare in order to take full advantage of the law in this area.

When one goes back and reads the four representative statements of

the law together with the underlying cases, the reader discovers that in the instances where the court awarded only rental value, the more restrictive measure of damages, that either the litigants failed to put forth evidence of the crops mature value or the crops were, in fact, so immature as to lead one to specuJation about their value at maturity. Additionally, many of the cases applying the more restrictive measure were completely lacking in proper evidence from which any reasonable caJculation could be made,

PRIMER

and the court resorted to rental value as its only alternative. Thus it is learned that the nature of the evidence presented is controlling of the measure of damages rather than the subject mailer itseU. For example, when evidence was presented as to crop maturity, expected yields, market value and cost of prod uction, the farmer was allowed to use the more liberal measure of damage but when the evidence was lacking the court applied the more restrictive measure. Thus much of the confusion as to the measure of damages is owing not to any inconsistency in appellate decisions but rather a failure on the part of litigants to put forth the proper evidence to allow this issue to go to the jury.

The decisions often include the statement that the damages recoverable cannot exceed the actual value of the crops at the date of injury to them. 9 This statement standing alone would seemingly eliminate recovery for the value attributable to the crop maturing. However, though the court has carefully reminded us of this limitation, it has not adhered to it in that its long standing formula has been to allow as damages the difference in the value of the crop that would have been produced and that actuaJly produced, taking into account any differences in the cost of production. This statement found in Dickerson 10 and the early case of SI. Louis IM&S v. Saunders11 clearly allows the farmer to recover an increment of damage which exceeds the actual cash value of the crops, i.e. an increment for lost production.

Clearly this is the fairest measure in that the term actual value includes not just the present value which would often be zero, but an increment for the crop's value were it allowed to be harvested normally.

AMI 2225 12 is the clearest expression of the rule as adopted in the earlier decisions.

Caution, however, that such an instruction would probably prove to be erroneous unless evidence sufficient to allow the jury to decide the threshold question

A

G ENE R A

L

PRACTITIONER'S

of crop maturity was presented. 13 In summary it can be said that the measure of damages for injury to or destruction of growing crops is actually well settled with decisions supporting the current AMI dating back to 1900. The task for the lawyer then is to make a determination as to the facts available to either support or defeat the proposition that the cro;:> had sufficiently matured so as to have a market value or at least have reached such a level that a reasonable estimate of the.ir expected production can be made by the jury.

Of considerable importance to the trial lawyer is the varying degree of proof set forth in these decisions required to be shown regarding whether the crop has grown to "sufficient maturity". In Crumbley v.

Guthrie 14 a farmer claimed damages to strawberry production due to trespassing cattle.

The farmer produced three appraisers who testified that they were able from the appearance of the plants to give a "fairly accurate estimate" of what had been lost in that "sufficient progress" had been made to promise a production.

Another strawberry case is that of Brown v. Arkebauer,15 wherein the court considered evidence again involving the appearance of the plants describing the evidence as "approximating with a reasonable degree of certainty".

In Railway Company v.

Hoshall 16 the court stated that "probable value" of the crop at maturity could be used to establish its value.

Dickerson 17 provides the reader with a record of the actual testimony ending with "a pretty good idea" as to estimating production.

The courts have obviously accepted the fact that there is an inherent difficulty in estimating the value of a growing crop. One must,

1.

2.

Immediately involving personnel from the Arkansas Extension Service (County Agent), State Plant Board, Agricultural Soil and Conservation Service, and private consultants if available. Their observations concerning the appearance of the plants can prove to be invaluable.

Arrange for the plants to be photographed. Be sure to provide reference to size (a yardstick is helpful). Also photograph a healthy plant for comparison.

3.

Aerial photographs can prove valuable in cases where there has been complete destruction or a noticeable change in color.

A 35 mm camera and a local pilot can accomplish this without much expense.

4.

A survey of the acres involved needs to be made in conjunction with your damage witness. Often this can be performed by your local ASCS Office using a planimeter device comparing your photographs of the damaged areas with those already on file in their office.

5.

Don't overlook taking some actual plants and putting them in the freezer for later analysis.

Plastic bags work great.

6. The University of Arkansas has several experiment stations specializing in rice, cotton, soybeans, strawberries and other crops which can provide expert witnesses, temperature charts, growth cycles, etc.

however, endeavor to remove the

decision making process as far away from pure speculation as is possible under the circumstances.

Some suggestions for doing so are as follows:

7.

Have neighboring farmers witness the problem and its development over time.

Photographs of a neighbor's

PRIMER healthy plants can be convincing evidence.

However, be sure to check on comparable planting dates and farming practices.

8. Harvest dates can be documented through local grain elevators, gins or produce marketing centers.

Complete agricultural statistics for Arkansas can be obtained from Economics, Sta tistics, and Coopera ti ve Service, U. S. Department of Agriculture - Little Rock, Arkansas.

9.

From a defense standpoint, determination should be made as to whether the farmer continued good farming practices in light of the damage or abandoned the crop thereby increasing his damages by reducing yields.

1.

2.

57 Ark. 512, 22 S.W. 170 (1893).

85 Ark. 111,107 S.W. 194

(1908).

3. 67 Ark. 617, 55 S.w. 940 (1900).

4. 266 Ark. 345, 584 S.W2d 36 (1979).

5. Arkansas Model Jury Instructions, Number 2225.

6. 266 Ark. 345, 584 S. W.2d 36 (1979).

7. Id. 8. Id. 9. Railway Company v. Lvman, 57 Ark. 512 (1893), Dickerson, supra at N.4.

10. 266 Ark. 345, 584 S. W.2d 36 (1979).

11. 85 Ark. lll, 107S.W 194 (1908).

12.

Arkansas Model Jury Instructions, Number 2225.

13. 266 Ark. 345, 584 S. W.2d 36 (1979).

14. 207 Ark. 875, 183 S.W2d 47 (1944).

15. 182 Ark. 354, 31 S.W.2d 530 (1930).

16. 82 Ark. 387, 102 S.W 207 (1907).

17. 266 Ark. 345, 584 S. W.2d 36 (1979).

July 19891 Arkansas Lawyer/119

YOUNG LAWYERS' UPDATE

Senior Citizens Handbook Fifth Edition to Be Published Oklahoma. The Section is grateful to Mike for his continued support of Arkansas YLS.

By Edward Boyce The Arkansas Senior Citizens Handbook is a publication that the Young Lawyers Section is very proud of. First published in 1981, it is about to be revised and reprinted in its fifth edition.

The Handbook is distributed free of charge to Arkansas' elderly through Legal Services Organizations and state agencies assisting senior citizens. It provides answers to legal questions of particular importance to seniors. The idea is to provide basic information so that people can recognize legal problems and know when to ask questions.

Funding for the fifth edition of the Handbook has been provided by the Arkansas Bar Foundation and the 10LTA Foundation (Interest On Laywers' Trust Accounts). The YLS is very appreciative of their support and assistance in this project.

Topics to be covered include: real estate conveyancing, landlord-tenant, government benefits (Social Security, 551, Medicaid, Medicare), wills and probate, guardianship, powers of attorney and consumer protection.

The Handbook will also contain a current listing of eJected state and federal officials as well as the various agencies providing assistance to senior citizens.

••••• As chair of the Section, the past year has been most enjoyable and rewarding. The lawyers as well as laymen that one meets in traveling to various meetings and functions 120/ Ark.1nsas Lawyer/July 1989

•••••

around the state broaden one's perspective and ·insight.

I will be leaVing office in June, probably as this publication is distributed. Rosalind Mouser who has been active in the YLS for the past four years will be Chair of the Section as of the annual meeting in Hot Springs.

She will do an excellent job. With several projects started it is hoped that she will finish them and receive all of the credit.

Rosalind practices in Pine Bluff in the firm of Ramsay Cox, Bridgforth, Harrelson, and Starling.

If all goes as planned Michael Crawford (Chair 87 - 88) will be elected to the position of District Representative of the American Bar Association's Young Lawyers' Division at the annual meeting of the American Bar in Honolulu this August. Michael will be representing the district comprised of young lawyer affiliates in Arkansas and

The Section appreciates the support it has received from the Senior Bar as well as the staff and executive director at the Bar Center. A .special thanks goes to Judith Gray who has assisted the Section with its projects, meetings, and activities. In addition the Section is deeply indebted to the Arkansas Bar Foundation and Arkansas 10LTA Foundation not only for the Senior Citizens Handbook and our newsletter, The YLS Advocate. but also for the many other projects they have helped the Section with.

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IN-HOUSE NEWS LAW SCHOOLS, A.I.CL.E. AND HOUSE OF DELEGATES

UNIVERSITY OF ARKANSAS SCHOOL OF LAW 8

. W. Loone Professor joan Chapman has just completed a six year term as a member of the Arkansas Endowment for the Humanities. She was also a member of the Executive Committee an

was Chair of the ByLaws Revision Committee.

Rob Leflar is still in japan working on his comparative study of U.s. and japanese citizen rights on selected health and safety issues. He will return in September.

Since the last report he has given speeches to the ational Liaison Council of Consumer Organizations, Tokyo (in japanese); Ritsumeikan University, Kyoto; Osaka University Faculty of Law, Osaka; japanese Government Foreign Studies Orientation Program, Saitama; Hiroshima University, Hiroshima and the Osaka Bar Association Asbestos Study Group, Osaka. Rob's article,

"Public Accountability and Medical Device Regulation", is in press and will appear soon in 2 Harv. J. Law and Tech.

Professor john Watkins authored a chapter on the Arkansas FOI for Tapping Officials' Secrets, a three-volume compendium of state open government laws published in March by the Reporters Committee for Freedom of the Press, Washington D.C. john has been awarded an offcampus duty assignment. He will spend next spring conducting research on first amendment issues at the john F. Kennedy School of Government, Harvard University.

Dean jake Looney spoke in ashville, Tennessee at the annual meeting of the Southern Research Administrators Society on "Legal Challenges to Lega I Research." He was the keynote speaker at the annual convention of the Tennessee Association of Conservation Districts where he spoke on "The Legal Framework for Water Quality Control."'

He also gave the Wershow Distinguished Lecture at the University of Florida. In March he was educational leader for a legal study tour in the People's Republic of

China. jake and Lonnie Beard published an article in the University of Kansas City Law Review, "Farm Business Planning: Coordinating Farm Program Payment Limitations with Tax Law." jake also co-authored with judge Ruby Sondock of Houston an article in the Texas Bar journal, "Change in the Soviet Legal System: A Nation of Laws?"

Dean john Sexton of the New York University School of Law has announced the programs honoring Robert A. Leflar for his long-time service as Director of the Appellate judges Seminars 0956-1986) will be held during the Seminars at ew York City in july.

Professor Paul Schwartz published a book review, "Baby M. in West Germany" in 89 Columbia Law Rev. 347.

He spoke in December to a seminar dealing with computers and privacy at the Goethe University in Frankfurt - am - Main, West Germany.

Howard Brill has returned from his term as visiting Professor at the University of Tennessee, Knoxville last fall. He is now serving as the President of the Central States Law Schools Association.

Dick Richards is

presently working on the annual supplement to the second edition of Employment Discrimination, which he coauthored with C Sullivan and M. Zimmer.

The Uni versity Board of Trustees elevated Mort Gitleman to the rank of Distinguished Professor in March. He also became a charter member of the University of Arkansas Teaching Academy. He is serving on the Arkansas Bar Association jurisprudence & Law Reform Committee, the Committee on Uniform State Laws and the Ad-hoc Committee to plan the Mid-Year Bar Meeting. This spring he has addressed the Unitarian Church, Fayetteville, and the United Presbyterian Church, Fayetteville. In February he was on the Panel on Evidentiary Objectives in Divorce Cases at the Arkansas Trial Lawyers Association Mid-year Meeting in Little Rock. Mort has been selected for inclusion in the 1990 edition of "Men of Achievement," lnternationaJ Bio-

graphical Centre, Cambridge England and for inclusion in the 3rd edition of International Book of Honor, American Biographical Institute.

July 1989/ Arkansas Lawyer/121

Centre, Cambridge England and for inclusion in the 3rd edition of International Book of Honor, American Biographic Institute.

UNIVERSITY OF

ARKANSAS AT LITTLE

ROCK SCHOOL OF LAW

By Paula Casey Hillary Rodham Clinton spoke the the 1989 graduating class of the UALR Law School at the hooding ceremony on May 13, 1989.

Professor john C. Coffee, the Adolf A. Bede Professor of Law at Columbia University lectured at the Law School on March 16. The lecture, "RICO and the Corporate Defendant: Has Innocence Become Irrelevant?" was sponsored by the Ben j.

Altheimer Foundation.

The Ben j. Altheimer Foundation sponsored a lecture on April 14, 1989, by Professor Charles Wolfram of Cornell University Law School entitled "Lawyer Turf and Lawyer Regulation -- Lawyers and Courts

Versus the Public Interest."

Professor Wolfram also spoke to the Pulaski County Bar Association on April 14.

122/Arkansas Lawyer/luly 1989

FACULTY NEWS Professor Susa n Wright was one of three people nominated to replace judge Elsi jane Roy as a federal district judge in the Eastern District of Arkansas.

Professor Wright spoke to the Arkansas atural Resources Institute in Hot Springs on "Recent Developments in the Arkansas Law of Oil and Gas." Professor Robert R. Wright was installed as president of the Central States Law Schools Association at the Association's Annual

Meeting in Branson, Missouri in April.

Professors Charles Goldner, Dennis Hansen, Andrew McClurg, and Arthur Murphey, and Associate Deans Paula Casey and L. Scott Stafford attended the meeting.

Law Library Director Lynn Foster has coauthored the third edition of Legal Research Exercises. published by West Publishing Company. The new edition is now available. Professor Foster attended a conference on Law School Buildings sponsored by the American Bar Association at Notre Dame University in March.

STUDENT NEWS

The first recipients of the UALR Faculty Excellence Awards for the Law School are Professor Andrew j. McClurg for research, Professor Philip Oliver for teaching, and Associate Dean Paula Casey for public service.

The winners of the awards each receive $1.000.

Bill Burton and Patrick Turley participated in a program concerning hearsay exceptions at the April meeting of the William R. Overton American Inn of Court.

Professor Arthur Murphey will have an offcampus duty assignment during the Fall 1989 semester.

Professor Robert R. Wright chaired the ABAAALS joint Inspection of ova University Law Center in Fort Lauderdale, Florida in March.

Professor Glenn Pasvogel and Associate Dean Paula Casey spoke at the Annual Meeting of the Arkansas judicial Council in Little Rock in April.

Professor Andrew j.

McClurg's article, "Your Money or You r Life -Interpreting the Federal Act Against Patient Dumping" was published in the May issue of the Wake Forest Law Review.

Professor Kenneth S. Gould attended the Trademark Law Revision Act of 1988 Conference in Chicago, illinois and the Fourth Annual Spring Educational Program of the American Bar Association in Washington, D.C.

Professor Philip Oliver will be a visiting professor at St. Louis University during the 1989 - 1990 academic year.

Professor Dent Gitchell attended the Annual Conference of the Society of Teachers of Family Medicine in Denver, Col.

Stacy Allison and Greg Wallace defeated Terry Hickam and Kelly Hook to win the Advanced Appellate Advocacy Intramurals in an argument before

Chief justice jack Holt and Associate justice Tom Glaze of the Arkansas Supreme Court and Chief judge Don Corbin of the Arkansas Court of Appeals in April.

The Student Bar Association held its annual Awards Banquet on April 8, 1989, at the Holiday Inn West in Little Rock.

Charles Buron, Mark Rogers, Greg Wallace, and Allison Graves were selected as winners of the West Publishing Company Awards for Outstanding scholastic achievement.

The Thomas E. Downie Award for achievement in the course of legal profession was awarded to Vic Snyder, Michael White, and Todd Lewellen. Kathryn Pryor received the International Trial Lawyers Association Award for the best student performance in trial advocacy.

SylVia Borchert, jay Moody, and Glen eel were recognized as winners of the Henry Woods Annual Award for Trial Advocacy sponsored by the Arkansas Chapter of the American Board of Trial Advocates. The Bogle Sharp Award, which is given to the graduating senior who is selected by his or her fellow graduates

as most likely to succeed in the practice of law was awarded to David Miller.

Patty Lueken was named Outstanding Woman Law Graduate, an award sponsored by the National Association of Women Lawyers. The Bureau of National Affairs Student Award which is presented to the graduating student judged to have made the most satisfactory progress in his final year was given to Bill Brown. The john Burnson Memorial Award for outstanding contributions to the UALR Law journal was presented to Don Taylor. Don Taylor, judith Elane, Bill Burton and Charles Nichols were recipients of the Arkansas Bar Foundation Student Writing Awards

A.I.C.L.E. NEWS

By Deb Garrison On March 6, 1989, Arkansas became the thirty-third state to adopt minimum continuing legal education.

Attorneys who have been reluctant to accept the concept of minimum continuing legal education are beginning to realize that the time for criticism is past. These lawyers are now saying, "l've got to do this. How can I get my money's worth?"

The Arkansas Rules for MCLE set forth the standards for accreditation of CLE sponsors and programs.

However, an attorney who wants to

get the most for his CLE dollar, should also consider the following guidelines:

diately.

Does the sponsor engage in research and develop-

to address these problems by exploring alternative delivery systems for CLE programs.

ment?

Does the sponsor have a planned curriculum?

Rare is the educational institution that doesn't follow some sort of planned curriculum. Sponsors should be responsible for developing a planned curriculum and for disseminating information about

that curriculum. Attorneys can then develop meaningful individualized study plans. Lawyers fresh ou t of la w school should look to basic, practical skills-oriented programs for their CLE. Attorneys who have been in practice five or more years should attend intermediate and advanced programs.

Is the sponsor a nonprofit organization?

Non-profit CLE sponsors generally offer comparable programs at lower registration fees than forprofit sponsors. Also nonprofit providers usually reinvest program proceeds in worthy but less profitable types of courses while for-profits take the money and disappear until the next "moneymaker" topic presents itself.

Granted, if a for profit organization offers what you consider to be the ideal bankruptcy program, you should probably attend that program.

Waiting for a non-profit organization to offer a similar course is not a cost-effective alternati ve when your client needs bankruptcy advice imme-

Course and speaker evaluations are an integral

part of a CLE sponsor's research and development efforts. The evaluations should be distributed to attendees before they leave the program and should inquire into the effectiveness of topics, speaker presentations, and course materials.

They should also give program attendees an opportunity to address the overall effectiveness of the program through a series of open-ended questions. Finally, the evaluations should ask attendees to suggest additional topics for future programs.

Does the sponsor offer programs in a variety of locations?

The cost of attending a seminar isn't accurately reflected in the registration fee alone. Loss of billable hours, missed telephone inquiries from potential clients, and travel expenses are factors which escalate the cost of attending.

On the other hand, bringing seminars to the remote areas of the state isn't always feasible.

Speaker travel expenses, inadequate facilities and lower attendance numbers are considerations

which weigh against planning programs outside of the larger metropolitan areas.

Many of the non-profit organizations

here in

Arkansas are attempting

While these guidelines do not address every factor which should be considered by an attorney who wants to get the most out of his CLE dollar, they do represent a point of departure for becoming a smart CLE consumer.

How does AICLE measure up under the guidelines?

During 1988, the AICLE Program Committee developed a master plan for a comprehensive curriculum approach to program planning. Advisory committees in four practice areas were appointed to spearhead the development of a planned curriculum of continuing legal education.

Incorporated in May, 1977, AICLE is an independent, self-supporting non-profit corporation and charitable organization.

The AlCLE Board of Directors established a set of objectives in june of 1987 which included improving the quality of CLE programs by "utilizing evaluation information from previous programs in the planning process.

AICLE has recently devised a Video Replay Network for the delivery 01 videotape replays of live programs through a network of county and local bar associations.

Local bar associations currently enrolled in the network include Sebastian, July 1989/ Arkansas Lawyer/123

work include Sebastian, Pope, Jefferson, Boone and Poinsett Counties.

••••• Preview of Upcoming Programs: Under the leadership of Circuit Judge H.A. Taylor, of Pine Bluff, the Fifth District trial practice committee is planing its second Fifth District Trial Practice Seminar for 1989. The oneday program will take place on July 28 at the University of Arkansas at Monticello campus. The program will provide an informal a tmosphere for frank discussion between lawyers and judges about practice and procedures in the Fifth Court of Appeals District.

The Third Annual Criminal Law Seminar will be held August 25. This course addressed the difficult task of keeping concerned lawyers and judges informed about significant court decisions, rule changes, and legislative actions affecting the practice of criminal law. Trial technique discussions are also a valuable part of this program.

A new program entitled Arkansas Probate and Trust Seminar (September 15) will give attorneys an opportunity to examine a wide variety of estate planning and probate topics.

Co-sponsored by the Probate and Trust Section of the Arkansas Bar Association, this seminar will expand your horizons as an estate planner.

The 1989 Advanced Bankruptcy Seminar, a multi-state meeting, will be held September 21 -22 at the Excelsior Hotel. Faculty for the program will feature

some of the most qualified and authoritative experts in the field including George Triester, senior partner in the Los Angeles firm of Stutman, Treister & Glatt and member of the National Bankruptcy Conference; Professor Lawrence P. King of New York University School of Law; and Herbert P. Minkel, senior partner in the New York law firm of Freid, Frank, Harris, Shriver & Jacobson. All three have served on the Advisory Committee on Bankruptcy Rules of the United States Judical Conference and as editors of Collier on Bankruptcy.

Several bankruptcy judges from Arkansas an other jurisdictions will complete the faculty.

Meeting the educational needs of the newly admitted lawyer is the goal of the 1989 Bridging - the Gap Course. The name of this program vividly describes its purpose: to "bridge the gap" between the theory of law school and the practice of law. The program is targeted toward lawyers entering practice in Arkansas and experienced practitioners who want to learn more about areas of law with which they are not familiar. The seminar will take place October 4 - 6, 1989.

Speda I fea tu res include a court orientation session and a young lawyer's panel discussion discussing tips for surviving the first year of practice.

The theme of the 1989 Fall Legal Institute will be Tort

Law Update.

William R. Wilson and Mike Thompson will co-chair the seminar which will be held on October 19 20 at the Fayetteville Hilton. The program will review several traditional theories of recovery as well as explore a variety of innovative causes of action. The Institute promises plenty of extra-curricular activities including a reception and War Eagle Weekend.

For more information concern i ng any of the upcoming programs or to offer suggestions for programs, contact Deb Garrison, Arkansas Institute for CLE at 375-3957.

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124/Arkansas Lawyer/July 1989

J

Employment Law: They've Changed The Rules

By Jay Thomas Youngdahl All lawyers no matter what their area of specialization or expertise have been faced during their years of practice with an-employment law question.

The lawyer's cousin believes she has been fired in an unfair manner or the boss is harassing an aunt's child. Giving an answer used to be fairly easy, even if employment law was not the attorney's forte. If the facts were simple, such as a discharge from employment, the lawyer could quote the "employment at will" rule. The rule states that an employer can discharge an employee for good cause, bad cause, or no cause at all.

The only exceptions were those created by federal law which include limitations on the discharge of an employee because of the employee's race, sex, national origin, age, or union activities.

While this may not have

seemed fair to the discharged employee, it was the law. But, things have changed. Decisions issued in ]988 by the Arkansas Supreme Court have awarded new rights to employees which make quick answers to employment questions much more difficult.

Since ]980, with its ruling in the case of M.B.M. v. Counce, 268 Ark. 269, 596 S.W2d 68] (]980), the Arkansas Supreme Court has been hinting that it felt that the employment at will rule was unfair and should be changed. It followed the Counce case with a series of cases which gingerly placed the court's toe in the sea of exceptions. But the court

never jumped in.

Finally, in ]988, the court issued decisions in this area which have created a new landscape of state remedies for employment wrongs.

Cleverly, the courts have made these changes in such a way to give some cheer to advocates for both employees and employers. Employees can be happy that clear causes of action are available while employers can be pleased with the narrow remedies a]Jowed.

With these changes, the ability of attorneys to give quick and easy answers to questions about unfair discharges has been considerably diminished.

In Sterling Drug v. Oxford, 294 Ark. 239, 743 S. W2d 380 (] 988),. reh'g denied, 294 Ark. 239, 747 S. W2d 579 (J 988), the court for the first time expressly found a public policy exception to the employment at will doctrine.

In Sterling Drug a manager with twenty years service to the company claimed he was constructively discharged for whistle blowing. He argued that he was forced to resign because he had informed the General Service Administration that his employer had submitted false information to this government agency. The company vigorously denied these contentions.

At trial, the jury returned a large verdict in favor of the plaintiff.

On appeal, while overturning the verdict and remanding for a new trial, the Supreme Court expressly found that Arkansas has no public

Artwork

by Carol Spt'r'Ia.'r Morris

policy exception to the employment at will doctrine. But in doing so the court was very careful not to open the always feared "flood gates of litigation." The decision tightly limits the available remedies.

The court found that this July 1989/ Arkansas Lawyer/125

exception sounds in contract. The public policy which is alleged to be violated must be one that is well established in the state. Damages under this exception are limited to lost tangible employment benefits and to wages lost by the employee from the time of the adverse employment action to the date of trial, less any wages which were earned or could have been earned in mitigation. As the difficulty in finding future work, often the major damage suffered by a discharged employee, is left uncompensated, and future lost wages are not a measure of damages, employers could breath a sigh of relief.

The public policy exception to the employment at will doctrine joins one other major state court remedy for the wronged employee. In Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984) the court made it clear that the tort of outrage, or intentional infliction of emotional distress, can be applied in the employment context.

In several recent cases, however, the justices of the Supreme Court have made it clear that they are not easily outraged.

In Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.w.2d 103 (1988) the court upheld a local court grant of a directed verdict in favor of the employer. The facts in Ingram demonstrated that the plaintiff, a supervisor, was treated in a petty and insulting manner by the employer.

He was treated differently than other supervisors and told by management that this differential treatment was for the purpose of "harassing" him. He was subject to a campaign which included being required to work 10 hours a day, seven days a week, and to attend a meeting each day for an hour which only he would attend.

When a machine in the factory became inoperable but there were no parts available to fix it, he was ordered to stay and baby sit the machine all night.

The majority of the court, however, found that this harassment did not rise to the level necessary to trigger the tort of outrage.

126/Arkansas Lawyer/July 1989

Another illustration to the court's sensitivity to claims of outrage came later in 1988 when it reviewed a jury verdict on the tort of outrage in Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763 (1988). In this case, an employer, suspecting theft, scheduled several employees to take "lie detector" tests. One of those scheduled for the test was the plaintiff who suffered from multiple sclerosis.

The employer was aware of t'his condition, but knew little of how it affected the plaintiff.

According to the machine operator, who also was a defendant, the lie detector revealed that the plaintiff had been "deceptive." Because of this result, the employer scheduled a second test but first checked with the employee'S physician. The physician advised against a second test for medical reasons, and it was cancelled.

The plaintiff testified that hearing the results of the test aggravated his disease and he missed two weeks of work immediately after the cancellation of the second test due to this aggravation. Upon his return to work, the plaintiff was discharged because he was physically unfit for the job.

The case went to the jury on the tort of outrage and a substantial verdict for the plaintiff was entered.

The court reversed the determination of the jury finding no evidence which would elevate the

level of conduct of the defendants to the level necessary for a finding of outrage. The court held, however, that "conduct not otherwise outrageous and extreme can be elevated to satisfy the test if the employer knows of an employee'S inability to deal with emotion'Bl distress." Knowing that the plaintiff had multiple sclerosis was not enough to make the defendant's conduct tortious. However, if there was also knowledge that the exam could exacerbate the disease the ruling could have been different. The court also reaffirmed the rule that emotional distress must be intentionally inflicted to trigger the tort of outrage.

The cumulative result of this group of decisions in the employment area in 1988 is that wronged employees now have an outlet in state court. Employers must be more careful about taking adverse employment actions against employees for "bad reasons".

Remedies for conduct which is against an established public policy are presently limited and await further judicial development. lSee Youngdahl, The Erosion of the Employment-At-Will Doctrine in Arkansas, 40 Ark. L. Rev. 545 (1987Âť

LAWYER'S MART BOOKS TO BUY OR FOR SALE: Wanted: set United States Reports; also Arkansas Reports volumes 43 - 44, 71 -72, 111,113, 240 - 46, 249 - 50, 252 - 54. Call 663-5156.

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IN MEMORIAM

RALPH CRAVENS Ralph N. Cravens, 85, of Paris died May 7, 1989.

Cravens had been a practicing attorney in Paris from 1933 until his retirement in 1986.

He received his Bachelor of Laws Degree from the University of Alabama in 1933. He served as City Attorney for the city of Paris from 1961 until 1983.

Cravens owned and operated Sadler Abstract Company from 1942 until his retirement in 1986.

He was a member of the Paris School Board and served as it's president from 1962 - 1970. Cravens also served as Director of the Arkansas School Board Association from 1965 1970.

Survivors are his wife Marguerite Cravens; two sons, David R. Cravens, an attorney, and three grandchildren.

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FLOYD CHARLE S CROW Floyd Charles Crow, 83, died in February. He was a native of Valley Springs, Arkansas, a retired attorney and a member of the Arkansas Bar Association.

Mr. Crow served two terms in the Arkansas State Senate sponsoring the legislative amendment that financed the University of Arkansas School of Medicine and War Memorial Stadium.

Survivors include his wife, Mary Virginia Martin Crow of Hope; two sons, Dr. Neil E. Crow of Fort Smith and Dr. Martin L. Crow of Missio~ Hill, Kansas, three sisters, seven grandchildren and eight great-grandchildren.

and the Arkansas Associations of Women Lawyers.

She was a member of the American, Arkansas, Oklahoma, and Pulaski County Bar Associations; a former state delegate to the National Association of Women Lawyers; and a member of the Arkansas Association of Trial Lawyers, the Association of Trial Lawyers of America, and of the Family Law Section of Arkansas and American Bar Associations. She was also an Original Fellow of the Arkansas Bar Foundation, served as a special circuit judge and a special chancery judge in Little Rock.

Ms. Frances D. Holzendorff Davis

FRANCES D. HOLTZENDORFF DAVIS Frances D. Holtzendorff Davis, a retried lawyer and bar official died Tuesday March 28.

She was a cum laude graduate of the University of Arkansas School of Law in Fayetteville and was licensed to practice law in all state courts, the '8th U.S. Circuit Court of Appeals in St. Louis and the U.S. Supreme Court.

Prior to opening her own practice, she practiced law with her father, the late J. F. Holtzendorff, then with her uncle, the late C.B. Holtzendorff, in Claremore, Oklahoma, from 1942 - 45.

She served as city attorney of Claremore for two years. From 1945 47, she was assistant attorney for the US. Department of Agriculture legal offices in Little Rock. She served as secretary-treasurer of the Pulaski County Bar Association, and was a former president of the Little Rock

FRANCIS S. GETTLE Francis S. Gettle, 92, a retired attorney died April 9, 1989.

Gettle was one of the earliest settlers of Stuttgart. He was a 1927 graduate of Washington University Law School and was a 1959 recipient of the Galatan Award from the US. Treasury Department.

He was admitted to practice before the US. Supreme Court in 1936. He was a member of the District of July 1989/ Arkansas Lawyer/127

Columbia Bar Association, the Arkansas Bar Association and the Texas Bar Association.

Survivors are his wife, Mrs.

Helen Fairchild Gettle; two sons, five grandchildren and three great-grandchildren.

He was born on August 30, 1899 in Hardy, a son of Robert and Mattie (Cope) Jackson.

He was a charter member of Spring River Presbyterian Church in Hardy and served several years as chairman

of the Sharp County Republican Committee. He was an attorney-atlaw, a real estate broker and owned

Hardy supply for many years. Mr. Jackson served in the U.S. Army during World War 1.

WILLIAM THOMAS HARPER William Thomas Harper, 80, of Fort Smith died Tuesday, March 7, 1989 in a Fort Smith Hospital.

Born in Greenwood, Arkansas, Mr. Harper had practiced as an attorney in state and federal court since 1930.

During that time he also was served as a Special Associate Justice, Arkansas Supreme Court; general counsel and member of the board of directors for City National Bank, Arkansas Best Corporation and Fort Smith Boys Club; U. S. Commissioner;

"Referee

in

Bankruptcy; member, Arkansas Statute Revision Committee; Mr. Harper was also a member of the Arkansas Board of Law Examiners; fellow, Arkansas Bar Foundation; chairman/Arkansas

Democratic Committee; delegate, Democratic National Convention; member, Democratic National Committee for Arkansas; member, American, Arkansas and Sebastian County Bar Associations; member, American College of Trial Lawyers; past president Hardscrabble Country Club.

He is survived by three sons and one daughter.

At Mr. Harper's request a memorial has been established with the Fort Smith Boys Club.

EARLJ. LANE Earl J. Lane, 75, of Hot Springs, national known law science specialist who was formerly of Gurdon, died April 11, 1989.

He was a retired ::;enior partner

with the Lane, Muse, Arman and Pullen law firm.

Mr. Lane was a founding member of the Law Science Academy of American and the Law Science Foundation of America and a fellow of the International Academy of Law and Science.

He received his J.D. from the University of Arkansas, Fayetteville.

Mr. Lane was admitted to practice law before all state and federal courts in Arkansas, the U.S. Court of Appeals for the 8th Circuit, and the U.S. Supreme Court.

Mr. Lane was a former presi-

dent of the Garland County Bar Association, the Arkansas Trial Lawyers Association, and former president and fellow of the Arkansas Bar Foundation.

He was a member of the Arkansas Bar Association, the American Bar Association the American Trial Lawyers Association, and the American Judicature Society, and was a former State of Arkansas Committeeman.

ROBERT AUBREY JACKSON Robert Aubrey Jackson, aged 89, of Hardy died Tuesday, April 18, 1989, in White River Medical Center, Batesville.

128/Arkansas Lawyer/July 1989

He is survived by his wife, Marjorie E. Lane.

GEORGE E. PIKE George E. Pike, 84, of DeWitt, a

lawyer and farmer, died Monday, March 15, 1989. Pike was a Mason, a member of the Dewitt Rotary club and the first president of DeWitt Chamber of Commerce. He also served as a former member of the board directors of DeWitt Bank and Trust Co., a member of the board of trustees of Hendrix College, former chairman of the Arkansas Soil Conservation Committee, member and past-president of Arkansas County Bar Association, the Arkansas Bar Association and an active member of Dewitt First United Methodist Church.

Memorials may be made to DeWitt First United Methodist Church or Hendrix College.

Survivors are his wife, Mrs.

Winnie Shackleford Pike; two sons and nine grandchildren.

G. DAVID WALKER G. David Walker, 78, of Jonesboro, a retired senior partner in the Walker, Snellgrove, Laser and Langley law firm in Jonesboro died Thursday, April 16, 1989.

He was valedictorian of his graduating class at the University of the South in Sewanee, Tennessee, and was a member of the school's board of trustees.

Walker was admitted to the Bar in 1933 while still a student at the University of Arkansas School of Law at Fayetteville and began practicing law in Helena in 1934 with the firm of Moore and Burke.

He was past president of the Phillips County, Craighead County and ortheast Arkansas Bar Associations, and was a former assis-

tant U.s. attorney in Little Rock.

In 1983, he received the Arkansas Outstanding Lawyer Award.

Survivors are his wife, Mary

Catherine Walker, two sons, a daughter and five grandchildren.

Memorials may be made to St. Mark's Episcopal Church in Jonesboro, the University of the South, Ducks Unlimited or St. Bernard's Regional Medial Center.

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Jury Instructions mandated for use wherever applicable by order of the Supreme Court of Arkansas!

Newly prepared by the Arkansas Supreme Court Committee on Jury Instructions - Civil, Arkansas Model Jury Instructions· Civil (AMI), 3d, is a must-have publication for every attorney in Arkansas. This Third Edition of AMI not only represents a merger of the Second Edition (1974), and its 1986 Supplement, but also first time coverage of many significant developments in the law of torts in Arkansas, as reflected by decisions of the Supreme Court of Arkansas and the Arkansas Court of Appeals, through October, 1988. Statutory references are to the new Arkansas Code of 1987.

NEW.

• • NEW.

the first model instruction on the tort of deceit (AMI 405), instructions on the tort of outrage (AMI 404), instruction on the theory of absolute liability (AMI 1107), landlord's liability to his tenant or to an employee or invitee of the tenanf (AMI 1104A)

• includes illustrative sets of instructions for most types of tort cases, which eliminates drafting of most instructions, • includes a"How to Use This Book" section that gives you step'by-step guidance on how to approach and use an instruction, as well as its purpose, •

each instruction has been prepared by the Arkansas Supreme Court Committee on Jury Instructions - Civil,

Committee Comments provide helpful information to show an instruction's development, and provide case citations to cases that interpret a particular instruction.

Also included are many editorial features, such as a complete table of cases, rules, and statutes, an expertly prepared index to take you directly to the proper instruction, and library references.

ASK FOR YOUR COPY TODAY BY CALLING TOLL FREE 1·800·328·9352.

• each instruction is objective and prepared to show no partiality, • each instruction is clear, brief and understandable so both your job and the jury's job is easier, • each instruction accurately reflects the law involved which greatly reduces the chance of an appeal or reversal. e 1989 West Publishing Company

Notes on Use follow each instruction when applicable. This aids you in determining exactly how each instruction can best be used for maximum efficiency and effectiveness, and advises you on when an instruction should not be used.

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West Publishing Company 50 W. Kellogg Blvd.

PO. Box 64526 51. Paul, MN 55164-0526 170192

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SPECIAL FEATURES • A handy guide to county. state and federal offices inclUding departments of the U.S. and Arkansas state government.

• A complete digest of courts containing terms, rules and jurisdiction of federal. state and local courts with names, addresses and telephone numbers of court

personnel.

• A complete roster of attorneys and law firms in Arkansas with addresses and

telephone numbers.

• Professional associations including officers, committees and sections of the Arkansas Bar Association.

• Professional and biographical data of some of the law firms and individual practitioners in Arkansas.

"YOUR BLUE BOOK OF ATTORNEYS SINCE 1935" LEGAL DIRECTORIES PUBLISHING COMPANY, INC. 2122 KIDWELL STREET P.O. BOX 140200 DALLAS, TEXAS 75214-0200 Facsimile: (214) 821-0200

Order as many copies as you need today I The price is $29.00' plus $2.67 for postage and handling totaling $31.67

Check must Accompany order.

'Price subject to change without notice.

Telephone: (214) 824·8092

PLEASE CALL OR WRITE FOR ADVERTISING OR BIOGRAPHICAL CARD RATE INFORMATION

William E. Brown, Sr., President Honorary Member of the National Association of Legal Secretaries -