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01995 WEST PUBliSHING 5·9685·2/4·95 533852

Associate

Editor's

Report

Trial Fascination By Bill Glenn

No matter how many different areas of law exist in our justice system, one major component connects them all - Trials. Everyone familiar with the judicial system knows the majority of cases do not even make it to trial. The increase of "out-of-court settlements" over the last twenty years has made trials even more obsolete. However, trials, especially those involving a familiar face. continue to fascinate those of us who are ignorant to the legal world. Whether it's a bench trial with Judge Wapner. or a sensationalized jury trial involving a 2.000 yard rusher. the public likes to watch and be informed. Sensationalism is not new. The horde of reporters following the Lindbergh baby case in 1935 overwhelmed the town of Flemington. New Jersey so much. the late-comers were forced to make a 120-mile round trip to New York City every day of the trial. Others followed in the years to come. but the William Kennedy Smith rape trial in 1991 marked the beginning of a new era in sensationalism. With CNN covering every minute of the trial to a worldwide audience. the legal information age began. It is hard to judge the impact television had in the Smith case. On one hand it would seem legitimate since the sequestered jury saw none of the television coverage. Yet. the single camera sent every word. gesture and facial expression to a jury of over three million. It has been said that body language and

demeanor of those involved are very important aspects of any trial. How can this be judged if witnesses know they are being watched and analyzed by so many people? The can of worms opened by the Smith case has penetrated into one of the most stable venues of government process laid out by our country's founders. In this issue of The Arkansas Lawyer. different aspects of trial practice are discussed in detail. We have categorized the topics in trialnotebook form and each subject carries two articles. James Swindoll and Nicholas Patton start the notebook with helpful tips on handling evidence. Diane Graham and John Elrod discuss beneficial ways to use expert testimonies. Nate Coulter and Paul McNeil cover the area of damages and Jim Moody and Stephen A. Matthews handle suggestions on courtroom strategy. Other items in this issue include a photo essay by Ann West. highlighting the newly renovated Pulaski County Courthouse; a salute to the World War II veterans by Phillip Carroll; an interesting look at the possible future of trials with Virtual Reality by Kirk D. Darbe; an outline of the Disabilities Act by Eugene Hunt; and a special feature on one of Arkansas' most prestigious politicians. Senator J. William Fulbright. This issue is very lengthy. but informative. It will provide helpful information to attorneys, as well as anyone else who may be fascinated with trials.

Arkansas Bar Association's 97th Annual Meeting June 14-17 Arlington Hotel Hot Springs Featuring U.S. Supreme Court Justice Antonin Scalia Also: The Bill Tillman Band Rider's in the Sky ABOTA'S "Masters in Trial" program

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VOLUME 29, NUMBER 2 PUBLISHER

Arkamas Bar Association EDITOR

Stacey DeWitt ASSOCIATE EDITOR

Bill Glmn EDITORIAL ADVISORY BOARD Mary L. Broadaway Thomas M. Carpenter Wendell L. Griffen Matthew Horan Brian H. Ratcliff Robert D. Trammell Ruth Ann Wisener

In This Issue: 1

Trial Fascination

4 5 6

Law, Literature and Laughter

By Bill Glenn By Victor A. Fleming

Letters to the Editor President's Message

By Robert L. Jones, III

OFFICERS President Robert L. Jones HI President-Elect Carolyn B. Witherspoon Immediate Past President E. Lamar Pettus Secretary -Treasurer Frank B. Sewall Executive Council Chair Robert M. Cearley, Jr. Young Lawyers' Section Chair Steven W. Quattlebaum Executive Director William A. Martin Assistant Executive Director Judith Gray

n,e

Scientific Evidence at Trial

By James Swindoll By Nicholas Patton

THE EXPERTS 17 Cross-Examining the Medical Expert 18 The use of documents through expert witnesses

By Diane Graham By John Elrod

20 THE DAMAGES 21 Why Punitive Damages are Spectacular and Rare 23 How to talk out of both sides of your mouth

Joe Benson

1ht! ArlcQrfSIlS Lmuyer (USPS 546-(l4() is pub-lished quarterly by the Arkansas Bar Association. Second class postage paid at Little Rock. Arkansas. POSTMASTER; send addn>ss changes to 71w Arbns4s l...auJIpr, 400 West 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 thai of the Arkansas Bar Association or The ArkansAS lAwyer. Contributions to The Arkansas LAwyer are welcome and should be sent in two copies to EDITOR. Arkans/lS lAwyer, 400 West Markham, Uttle Rode, Arkansas 72201.

11 Statistical Evidence

EXECUTIVE COUNCIL Mark Cambiano Charles L. Carpenter, Jr. Michael H. Crawford Robert R. Estes Wendell L. Griffen David K. Harp Dave W. Harrod Charles L. Harwell Don Hollingsworth Henry C. Kinslow Harry Truman Moore Donald P. Raney A. Glenn Vasser Teresa M. Wineland

THE EVIDENCE

By Nate Coulter By Paul McNeil

28 THE STRATEGY 29 Opening Statement 31 Avoiding the Overkill

By Jim Moody By Stephen A. Matthews

A Thing of Beauty is a Joy Forever

37 38

Introduction to Virtual Reality

40 41 42

Executive Director's Report

By William A. Martin

Reflections on World War II

By Phillip Carroll

51 52 55

Developments in the Law

By Ann West By Kirk D. Darbe By Eugene Hunt

Disciplinary Actions Advisory Opinions In Memoriam - What might have been: A Tribute to J. William Fulbright The 1995 Pro Bono Honor Roll

By Bill Glenn

3 ARKANSAS LAWYER SPRING 1995

Law,

Literature

and

Laughter

Railroaded, Ramroded & Fired By Victor A. Fleming If you're a regular LLL reader, you'll recall that LLUs retirement in the summer of 1994 was likened to that of Michael Jordan. Jordan had, however, retired a full season before LLL did, completing only nine years in the NBA. LLL went out on its 10th anniversary as a humor column. Michael Jordan must read the Arkansas Lawyer. For, within days of the publication of the winter 1995 issue, in which LLL began its comeback, Jordan issued a press release which read, "I'm back." In his first game back Jordan hit about one fourth of his shots and the Bulls lost in overtime. In its first reappearance LLL lost its footnotes to an optical scanner which placed them at random throughout the

A closer proofread on a document recently received in my office might have made matters clearer. I was directed to proceed with a foreclosure of a residcntial loan taken out by a mother and her son. The client's letter to me said, "The mother is decased and the son lives in the real estate." Proofreading, like so many mundane tasks, can be a relative matter. Witness a self-typed, self-styled, and otherwise pro se document filed April 30,1990, in the Office of the Clerk of the U.S. Supreme Court. Giving it a liberal interpretation, I'd call it a petition for certiorari. Quoting therefrom: "Dear Sirr's,

textJ

Proceed; in forma pauperis, with appropriots affidavit. "I am still in pursute of my Case #81-1753.... I was Railroaded, Ramroded, Harrased and mentally forced and then Fired. After I was fired then Blackballed, slandered, character asssinated and condeamed to skid row and never to be resurrected to society of norms and values again." A sad tale for sure, but there's more. Under the heading "WRAPPUP," the petitioner wrote:

In the past I've written about typos, word processors, and malaprops. We now need a new word to describe the process by which scanners garbage up a document. Perhaps "proofreadaprop" would work 2 Speaking of proofreading, someone did not do so in a document that was handed to me in the halls of the newly renovated Pulaski Courthouse. Textually, it was quite familiar, pointing out that one party had tried unsuccessfully to move one trial date that conflicted with another and thus needed a postponement. The document was entitled "Motion for Continence." Seeing it, my trusted and faithful assistant said, "Well, it's better than a Motion for Incontinence." 4 ARKANSAS LAWYER SPRING 1995

that I have in me for him and the pepole of this country, and my new family. God did it; HE held me together. My prayer to God in the day time, and the night time is that this Case will not be turned down By The supreme Court. God is my secret Judge I have lold the truth. "Thank you'll for your time and consideration. 'God Bless You all: with your decision. 'Thank You.'" The petition from which the above excerpts are taken reminded me of the words of Jim Branton, President of the Texas Bar Association, who last year said, "In the Florida State Bar's lawyer advertising case, we have filed a curious amigo brief."3

"I want a Motion for Leave to

"It.. makes me ashamed to own my

self. I am almost ashamed to be called a citizen of the U.S. of America. It is so unbecomming to loose what I have lost and sitU carry on a good livehood and life style. "Be It Resolve, I thank my God for holding me together; with the love

Footnotes 1. As I tried to say in a footnote last quarter, footnotes are the quintessence of legal literature. 2. See, the former editor of this magazine did not like footnotes in columns. So,

when LLL was asked to emerge from retirement, I negotiated the coveted Ufootnotes? Okay" clause in my contract with the current editor.

3. I trust said brief was full of footnotes.

EDITOR'S NOTE: Vic Fleming is a member of the Gill Law Firm of Little Rock. Mail, call or fax him your true stories about humorous occurrences in law practice - 3801 TCBY Tower, Little Rock AR 72201; (501) 376-3800/ FAX 372-3359.

Letters Dear Editor. I wanted to take a moment to express my gratitude to the Arkansas Bar Association for its continued efforts to make Mock Trial Competition available for the state's high school students. You truly are making a difference in lives and in the choices of careers! Nothing else that we can offer students at the high school level allows them to experience first hand the intensity of research required, the applied knowledge, the questioning skills, or the verbal and language skills so particular to a career in law. I know it is difficult to find lawyers and judges who are willing to forfeit their Saturdays to hear mock cases, and I know the state coordinator has a very difficult time organizing all the details - not to mention dealing with all kinds of questions and situations that arise in the process! I understand you are the supervisor of Jeri Rutledge, who serves as this year's state coordinator. My students and I thank you from the bottoms of our hearts for allowing her the latitude necessary to assume this responsibility on top of the requirements of her job. Neither of you may know it, but you have a hand in changing lives. Let me share and example: This year I have a student who has a history of falling into the wrong crowd, cutting classes, letting his grades slip, et cetera. However, he is perhaps one of the brightest young men I've seen, and his thought processes are unchallenged. From the first of the year, he has taken an intense interest in Mock

the

Trial as I presented in class - he even decided he wanted to become a lawyer. Because of his personal history, however, he vacillates, often selling himself short as he thinks it is an impossible dream. After state competition was over, and we discovered we were going to national competition, he became a changed young man. His focus these past few days is intense.... his mom tells me he lives, eats and breathes Mock Trial! Somehow, the experience gave him the confidence that he CAN become a lawyer and the assurance that he WILL do well at it. For him, Mock Trial was the experience that changed the direction of his life! How can that be measured in mere words of gratitude?

Editor We do so appreciate the work of Ms. Rutledge throughout all of this. We feel we have begun to know her as a friend as well as a mentor and we sincerely hope you can spare her for the national competition so she can travel with us! Again, thank you for the part you played in making this happen! I hope the Arkansas Bar Association knows how grateful we teachers and students are for the opportunity provided. We hope it continues for many years! Sincerely, Brenda Paten Giftedfl'alented Facilitator Rogers High School

"Please wait lor the beep" is the perlect way to run business all. When your clients call and you're not in, don't let them hear that impersonal beep. Let them hear a pleasant Answerfone operator. Your clients will appreciate the difference. • Archived Messages • Faxing Services • 8 or 24 Hour Service Toll-free throughout Arkansas

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5 ARKANSAS LAWYER SPRING 1995

President's

Message

Summation By Robert L. Jones, III

This issue of The Arkansas road to uniform justice across the Lawyer is dedicated to trial practice. state. I thank the authors who contributed My personal highlight was meettheir time to share with us their ing and working with bar presidents strategies for a more successful and from across the South. I was fortuefficient trial. nate to have attended the Georgia, This year has gone by fast. It Louisiana, Mississippi, Texas and seems just like yesterday I was the Southern Conference of Bar preparing my first President's Presidents annual meetings. I still Report. The bar year has been have Florida to look forward to. We extremely rewarding, but I must have many great bar leaders in the admit that I'm looking forward to returning to the courtroom on a reg- I would like to report to you about ular basis and spending more time several ongoing programs: with my children, David Jones and Lawyer Advertising - A blue ribbon committee is in place Michelle Kooi, who live in Colorado. ready to make recommendations to One of the highlights of this bar our Supreme Court immediately year was the passage of the court the United States following funding bill which provides for a Supreme Court ruling in the state funded administrative assisFlorida case. A decision is expected tantlcase coordinator for every trial any day. judge in the state. It provides for uniform costs and filling fees statewide. Three-Point Attack - This It establishes a reporting system Young Lawyers' project raised which will allow the General almost $40,000 for cancer Assembly to obtain accurate data to research. Steven W. Quattlebaum, determine the cost to the state for Chair of the Young LawyprR' the funding of the judicial system. Section, did a yeoman's job. Past president John Gill of Little LAWYER REFERRAL SERVICE Rock, Judge John Lineberger of - Ann West as chair of this comFayetteville and Judge Betsy mittee has done an outstanding job Danielson of Fort Smith and others in reorganizing this service. We are spent countless hours drafting and fortunate to have Theresa Dixon, a lobbying for this bill. A big thank you lawyer. as our new full-time direcgoes to our lawyer legislators. tor of this program. Without their efforts, this bill would Lawyers Helping Lawyers not have passed. Special praise goes Committee - chaired by my to Wayne Dowd, chair of the Senate Judiciary Committee, and Mike brother Kenny Jones, ha targeted Wilson, chair of the House Judiciary as a goal by the end of the 1996 bar Committee. There is more work to be year to implement a substance done in this area, but we are on the abuse program to provide assis6 ARKANSAS LAWYER SPRING 1995

South. The first Red Mass, which is an ecumenical service at the Catherdral of St. Andrew in Little Rock for prayer for our judicial system, was held on May I, Law Day. Our Professional Ethics and Grievances Committee chaired by Howard Brill is working on establishing a procedure to voluntarily resolve fee disputes as well as complaints againRt lawyers that do not rise to the level of a grievance. The presidents and presidentselect of Arkansas, Louisiana and Mis issippi Bar Associations held a regional meeting in Hot Springs during March. A recommendation was made to have a joint CLE meeting between the three states during the first week of Mardi Gras in New Orleans in 1996. This should be an educational and fun opportunity for Arkansas lawyers. This year's Annual Meeting at the Arlington Hotel in Hot Springs, June 14-17, should be the best ever. I thank Professor Dent Gitchel for his outstanding leadership as chair of the Annual Meeting. There are so many people to thank for making this a successful bar year. I will start wi th the Arkansas Bar Association staff We have an outstanding bar staff that seems to get better and better. This year would not have been the success it was without the help of Bill Martin and Judith Gray. I talked to them almost daily; most of the time severaJ times a day. Bill and Judith are a pleasure to work with. I particularly

want to thank Stacey DeWitt, our new lohbyist and director of communications and her assistant, Bill Glenn. I also wish to thank program planner Carol King; CLE secretary Virginia Hargrave; membership director Barbara Tarkington; administrative assistant Jeri Rutledge; bookkeeper Joyce Bobbitt and receptionist Florence Smith. Many thanks go to my committee and section chairs for their dedication and service to the profession. Let me tell you what a great bar association we have. I probably made in excess of 1,000 appointments during my bar year. I cannot recall a single instance where an Arkansas Bar Association member said no. Special thanks go to our hard-working Executive Council and House of Delegates. These people give substantial amounts of time to improve our profession and our association. I especially want to thank Jim Julian, who chaired the Legislation Committee and David Harp, who chaired the Jurisprudence and Law Reform Committee, for the good

work they performed this year. I also want to thank John Elrod for making our Legal Education Committee more active. A very special and warm thank you goes to my fiancee Niki Cung for her understanding and friendship. She made this bar year even more enjoyable. Appreciation goes to my parents, Robert L. Jones, Jr. and Maxine Jones, for their words of encouragement and advice. I want to extend a standing ovation to Robert M. Cearley, Jr. of Little Rock, who served as chair of the Executive Council. Bobby unselfisWy gave of himself Time and time again I relied upon him for his advice and counsel. Bobby is truly presidential material. But most important of all, I want to thank my secretary of over twenty years, Charlotte Pigg, for working extra hard this year. She spent countless hours on Bar Association work. Without her help and support, this year would have been impossible. I also appreciate the tolerance of

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my partners as it was necessary for me to delegate many legal matters. At the June meeting I will be passing the gavel to our new president, Carolyn Witherspoon of Little Rock. Working with Carolyn has been a pleasure. I am confident our association will continue to grow and get better under her leadership. I predict out new president-elect, H.T. Moore of Paragould, will make an outstanding bar president. To you, the members of the Arkansas Bar Association, I give thanks for giving me the opportunity to serve our profession as your president this year.

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7 ARKANSAS LAWYER SPRING 1995

mE EVIDENCE

8 ARKANSAS LAWYER SPRING 1995

Scientific

Evidence

Trial

Bl" James Swindoll As trial lawyers are aware, in Dwberl u Mmr!l Dew Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993) the U.S. Supreme Court ruled that the Federal Rules of Evidence, specifically Rules 402, 702 and 403, control the admissibility of scientific evidence. This replaced the "generally accepted in the scientific community standard" enunciated in Frye u. United States, 293 F. 1013 (1923) with what has been called a "relevancy based standard" of admissibility. Essentially, Justice Blackmon interpreted the Federal Rules of Evidence to impose two prerequisites on scientific evidence. First, the proffered evidence must be reliable; that is, the underlying methodology from which the evidence is drawn (not just the conclusion) must be based upon scientific knowledge. Second, it must assist the trier of fact either in understanding other evidence or in determining a fact in

issue without being confusing or misleading. Note that the Court's discussion in Daubert is confined to scientific expert evidence as opposed to "technical or other specialized knowledge". Daubert, 113 S.Ct. at 2795 N.8. While these two principles seem "simple enough", Justice Renquist's separate opinion questioned the "helpfulness" of the new standard, Daubert, 113 S.Ct. at 2796, wondering if this new formulation of admissibility of scientific evidence helped the judge with his new role as gatekeeper. The relevancy based standard adopted by the U.S. Supreme Court in Daubert was adopted two years earlier by the Supreme Court of Arkansas in Prater u. State of Arkansas, 307 Ark. 180,820 S.W.2d 429 (1991). A "relevancy based" approach derived from the Arkansas Rules of Evidence was adopted and a "gatekeeper" role was imposed upon

the presiding trial judge. This new role required that when scientific evidence was produced, the Judge would conduct a preliminary hearing under Section ยง 104 of the Arkansas Rules of Evidence and examine that evidence under a relevancy based standard using Rules 402 (relevancy), 702 (expert opinion) and 403 (probative vs prejudicial) to determine its admissibility. The opinion is very similar to Daubert. In fact, since Prater, Daubert has been cited with approval by the Arkansas Supreme Court. See Jones u. Arkansas, 314 Ark. 289, 862 S.W.2d 282 (1993).

A Review of the Rules Prater and Daubert use essentially the same rules of evidence to set up the review of the proposed scientific evidence. The trial lawyer, if the expert is qualified, will use the same inquiries that were used in the past to establish the relevance and reliability of the proposed evidence.

Arkansas Rules of Evidence

Rule 402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible. Rule 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 702 - Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Federal Rules of Evidence

Rule 402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Rule 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 702 - Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 9 ARKANSAS LAWYER SPRING 1995

Practically Speaking In trial practice the "liberalized" approach of Daubert and Prater, and the Frye approach used in the past reach practically the same results. It is the still the trial judge who monitors and controls the admission of the opinion, and it is this "gatekeeper" who makes the preliminary decision. Since this is so, it is incumbent upon the lawyer proffering the scientific opinion to insure that this "gatekeeper" be apprised not only of the opinion, but of its basis in scientific theory, the methodology and technique used to arrive at the opinion and finally the impact of the opinion on this dispute or controversy.

ion met a generally accepted scientific standard in the community from which the opinion arose. A review demonstrates that Daubert is not a significant change from the Frye standard. It is important to realize the rationale used to evaluate the evidence or exclusion of the evidence is different. It is still the trial judge who monitors, controls and if necessary, makes a preliminary decision. The trial lawyer offering the scientific evidence must insure that it not only

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Conclusion In the days before Daubert and Prater, trial lawyers focused upon the reliability of the evidence and had to prove by a preponderance of the evidence that the proffered opin-

meets the preponderance of the evidence test for the admission but that it does so in a way that gives the "gatekeeper" plenty of information to use in explaining why the evidence should be for the jury.

TRAFFIC ACCIDENT RECONSTRUCTION

The Relevancy Standard Applying a Suggested Checklist 1. Rule 401 -

determine relevancy

2. Rule 702 -

determine evidentiary reliability based on whether the expert's testimony is "scientific knowledge". Consider the following: a. whether it is "knowledge," grounded in the methods and procedures of science; b. "knowledge," must be more than a subjective belief or unsupported speculation; c. can it or has it been tested; d. has the theory or technique been subjected to peer review and publication; e. what is the known or potential rate of error; f. does the methodology have "general acceptance" in the relevant scientific community.

3. Rule 703 - The expert's opinions must be "of a type reasonably relied upon by experts in the particular field in forming opinions or inference upon the subject" 4. Rule 403 - The probative value of the expert opinion must substantially out-weigh the danger of unfair prejudice, confusion of the issues or misleading the jury.

10 ARKANSAS LAWYER SPRING 1995

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Statistical Evidence By Nicholas H. Patton Statistical information which can be introduced at trial exists in many different formats. For example, statistical information can appear: as scientific statistics such as public opinion surveys (also known as consumer surveys), as mathematical statistics involving the population (census), as medical statistics involving percentages of the population with various blood types, and as vital statistics involving births, death rates, and marriages to name just a few. Purely statistical compilations may be admitted at trial, in some cases by judicial notice.I With the exception of evidence of vital statistics which may easily be authenticated and admitted into evidence under Arkansas Rule of Evidence 901(7)2, practitioners will encounter problems admitting their statistical information into evidence at trial if objected to by their adversary because certain pitfalls and procedures were not followed. Due to the limited space of this article, I will cover the pitfalls and procedures surrounding the admissibility of statistical evidence in the form of public opinion surveys.3 Readers are then invited to analogize these points to the specific type of statistical evidence they will be using at trial. Public opinion surveys are of a growing importance to practitioners in various cases such as anti-trust, trademark infringement, unfair competition practices as well as cases involving breach of contract or the safety of a working place to name a few. 4 Surveys are a practical way to introduce evidence on a particular topic without the necessity of having numerous individuals testifY at trial in order to establish the point made in the survey. Great care must be taken in conducting surveys in order

) to insure the court will allow their introduction as evidence at trial. The foremost point practitioners should note before they attempt to have their expert either gather statistical evidence or testifY as to evidence already completed by an independent third party is statistical evidence such as records, reports, statements or data compilations must be both reliable and trustworthy as well as the obvious point of being relevant to an issue at bar before the court will allow it to be introduced at trial.s Modern decisions have held that case-specific surveys are generally admissible if they are conducted according to principles accepted by social scientists and statisticians for gathering and analyzing survey data. 6 To qualifY a study or opinion poll for admission into evidence, there must be a substantial showing

of reliability. There must be some showing the survey was conducted in accordance with generally accepted survey principles and the results were used in a statistically correct manner. 7 Once a survey has been shown to conform to "conventional methodology," its arguable deficiencies usually are said to affect its weight rather than its admissibility.8 Courts examine whether the conclusions of the survey researchers rest on sample data collected in such a way as to permit fair inference about the relevant factual questions. 9 Before conducting a survey, the practitioner must establish several criteria with which he will be working, namely, the "universe" and the type of "sampling" that will be employed. A "universe" is the portion of the population which is selected because its characteristics are relevant to the proposition in question.

11 ARKANSAS LAWYER SPRING 1995

Examples of an universe might include: everyone located in Pulaski county, all registered voters in a certain area, or all individuals with certain characteristics (such as being a college graduate). The sampling technique used is only taken from individuals who compromise the universe. Note that neither the size nor the location of the universe should affect the admissibility of the survey at trial as long as the sample selected was proper and the survey itself is relevant as probative for establishing the point to be proved,10 Practitioners should contrast the point of size not being a factor in the admissibility of surveys against cases such as age discrimination, where the size of the universe selected in determining the statistical evidence is highly relevantJ 1 After offering proof that the universe selected was proper, the practitioner must next satisfy the court that the "sample,"- that is, the persons questioned for the survey, were proper persons since each person's views will be considered representative of the entire universe,12 Various forms of sampling exist: "Random" (or "probability") sampling gives each person in the universe an equal chance of being questioned. In theory, the persons to be interviewed are selected in a way which insures that all of the individuals in the universe have a mathematical chance of being selected. "Representative" (or "purposive") sampling is used in selecting an accurate cross section of the universe. The cross section is determined by selecting characteristics which the practitioner believes will affect the answers given, and then choosing those individuals who possess the characteristics selected.J3 The following criteria should be utilized to insure the admissibility of your sample: 1) the sample is at least large enough in numerical terms to insure that its accuracy will fall within normal limits; 2) the sample is representative of the population being studied, e.g., sex, age, race, etc.; and 3) the sample is free of any bias in the manner the survey was implemented. 14 Perhaps the single most important aspect in gathering statis-

tical evidence to be introduced at trial is to insure its relevancy to the issue at bar. Before courts will allow surveys to be introduced as evidence, the proponent has the burden of proving that the survey is both reliable and trustworthy. Therefore, practitioners desiring to introduce surveys at trial must prove: 1) the relevancy and adequacy of the universe; 2) the relevancy and adequacy of the sample; 3) the qualifications of the person(s) conducting the survey; 4) the absence of bias in the method of interviewing; 5) that the questions asked were simple and unequivocal; and 6) the interviewees could answer the questions in their own terms,15 Many methods exist for conducting public opinion surveys. Of any method used, the practitioner must be able to convince the court that the survey to be introduced as evidence was conducted properly and the results obtained are impartial,16 If the techniques used in gathering the opinions indicate that they are biased or unfair, the court will likely deem the statistical evidence inad-

12 ARKANSAS LAWYER SPRING 1995

missible. A proper method for conducting a survey would include the following points: 1) an unbiased questionnaire which would elicit answers regarding the state of mind of the interviewee; 2) the interviewers followed n uniform pattern of asking questions and recording the answers accurately; 3) proper selection of persons to be interviewed to insure a proper sampling from the defined universe; 4) proper tabulation of the data; and 5) an accepted scientific interpretation of the results and evaluation of the accuracy of the data.J7 Historically speaking, public opinion surveys rejected by trial courts for various reasons, most notably, that the survey itself was hearsay, the method used to conduct the survey was improper, or the findings and conclusions lacked probative value or were not relevant to the issue at bar,18 Of these three, the hearsay objection is the primary objection which rendered surveys inadmissible at trial since the proponent was attempting to introduce

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statements of individuals who would not be cross-examined by the adversary's attorney since the interviewee will not be in court to testify. That point notwithstanding, there are several ways to work around the hearsay objection. First, argue that the statements are "original evidence." That is, the statements are not being introduced to prove the truth of the matter asserted, but are being introduced to show that the statement was made ("the words were uttered"). Second, argue that the statement falls under the state of mind exception as proof of the interviewee's state of mind when the statement was made. Lastly, since the statements which make up the survey are documents which are regularly relied on by experts in forming their opinions, use the statements as foundation for your expert's testimony at trial. 19 In Arkansas State Highway Comm'n u. ScheU!O the Arkansas Court of Appeals held that Arkansas Rule of Evidence 702 concerning the admission of expert testiroony does not depend on the relative certainty of the subject matter of the testiroony, but focuses on whether or not the expert's testimony will assist the trier of fact on a point at issue. Thus, an expert can incorporate the survey evidence into his or her opinions. The

Federal and Uniform Rules of Evidence allow the expert to testify as to the survey if it is reasonably reliable since it will serve as the basis of the expert's opinion. Rule 703 allows the expert to testify to an opinion based on evidence which is not admissible in evidence as long as it is "of the type reasonably relied on by experts in the particular field." The Advisory Committee's Note to Rule 703 notes survey evidence specifically, "The rule also offers a more satisfactory basis for ruling upon the admissibility of public opinion poll evidence. Attention is directed to the validity of the techniques employed rather than to relatively fruitless inquiries into whether hearsay is involved."21 Readers should use the following checklist to overcome the hearsay objection; 1) the testimony is offered not to show the truth of what was said, but siroply to show their state of mind; 2) there is no impeaching of the interviewers' sincerity, narrative ability, perception, and memory; 3) there is no showing that the interviewees were influenced by leading questions, the environment in which the questions were asked, or the personality of the investigator; and 4) there is showing that other ways of getting evidence on the same point are either iropractical or burden-

some. 22 With regard to experts, it is essential to the admissibility of the survey that the survey, itself, be conducted by an expert. Practitioners should not attempt to conduct their own type of statistical evidence during their investigation of the matter. 10 addition to the expert used to conduct the survey, the practitioner needs an expert who can evaluate the information obtained by the survey. This expert who evaluates the data should be a different expert than the one used to conduct the survey. If the proper procedures are followed by the proponent seeking introduction of the public opinion surveys or poll, courts should admit that statistical evidence into evidence. Those procedures include; 1) laying a proper foundation for the survey's introduction; 2) disclosing to the adverse party the fact of the survey and its result; 3) offering evidence supporting the interpretation and verification of the results of the poll; 4) and in most instances, 5) making available for cross-examination at least some of the interviewers who conducted the questioning of the persons interviewed. 23 Once admitted into evidence, a public opinion poll or survey should be entitled to receive probative value. Of course,

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13 ARKANSAS LAWYER SPRING 1995

the way in which the survey was conducted has a direct influence on the weight it should receive by the trier of fact. If the results are inconclusive or the survey was flawed in the way it was conducted or bias is shown in the questions asked, courts could deny the survey any probative weight. 24 Readers should note that a proper founda.tion must always be made before the evidence will be admitted. With respect to surveys, one writer suggested the following procedure be followed: 1) The individual in charge of the survey should testify as to the method by which the survey was conducted and the purpose for conducting the survey; 2) The individual(s) who conducted the survey should testify as to how they conducted the survey and identif'y and verif'y the completed questionnaires; 3) the individual who tabulated the survey should testif'y qualifications to conduct the survey, the method he used, and how he made the statistical results of his tabulation; 4) an expert should testif'y as to the appropriateness of the sample and universe of the individuals surveyed in addition to testimony regarding the reliability of the survey and its margin of error; and finally, 5) all of the documents and relevant exhibits used in conducting the survey should be offered into evidence.25

pIe, universe and questions for the survey interviews, provide same in advance to their adversary, and then let the court rule on any objections in a pre-trial hearing before the survey is actually conducted. 26 In conclusion, introducing statistical evidence at trial through your expert is an excellent way of assisting the trier of fact in determining an issue in your favor. Statistical evidence in the form of surveys is always beneficial because the trier of fact is able to hear the opinions of many people who were not actually called to testify at trial. In conjunction with your expert's testimony regarding the inferences to be drawn from the survey, practitioners will hopefully find that the time, effort, and expense used in gathering the statistical evidence resulted in a verdict in their favor.

statement, or data compilation must be

trustworthy to be admissible under the public records exception to the hearsay rule). Advocates have relied on pre-existing research involving sample data in

product liability, food and drug, environmental and other cases. For a general discussion of the admissibility of evidence of experiments, demonstrations, and tests, see 29 Am Jur 2d, Evidence §

818 et seq. 6. See McCormick, 3d Ed., § 208; see also 76 ALR 2d 619 (Admissibility and weight of surveys or polls of public or consumers' opinion, recognition, preference, or the

like). 7.C.A. May Marine Supply Co. u. Brunswick Corp., 649 F.2d 1049 (5th Cir.), cert. denied, 454 U.S. 1125 (1981). 8. See e.g., Squirt Co. u. Seuen·Up Co., 628 F.2d 1086, 1091 (8th Cir. 1980) 9. See McCormick, supra note 6, at § 208 for a discussion of the factors indicating that surveys are accurate as opposed to only being misleading estimates.

10. See 18 Am Jur POF 2d 305, § 4. 1. For cases wherein the court rejected as

unreliable statistical evidence based on SOURCES sample size being too small, see, e.g.... 1. Courts generally take judicial notice of Birkbeck u. Maruel Lighting Corp., 30 statistical facts of general and common F.3d 507, 511 (4th Cir. 1994) and Palmer knowledge. For example, statistical facts u. United States, 794 F.2d 534, 539 (9th derived from census, rules of arithmetic, and weights and measures. See 29 Am Cir. 1986). Jur 2d, Evidence § 112, 113 (judicial 12. See 8 Am Jur Trials, § 360. notice of statistical facts). See also 13. See 18 Am Jur POF 2d 305, § 5. See Metropolitan Life Ins. Co. u. Fry, 41 also Note, Public Opinion Surveys as S.W.2d 766 (1931) (judicial notice of pop- Euidence: The Pollsters Go to Court, 66 ulation of states and towns); Board of Harv. L. Rev. 498 (1953). Trustees, Uniu. ofArk. u. Pulaski County, 14. 18 Am Jur 2d POF, § 5. 315 S.W.2d 879 (1958) (judicial notice of 15. Id., at § 13 16. See 76 ALR 2d 619, §§ 26-37. census figures). 17. See 18 Am Jur 2d POF, § 3. 2. ARE 901(7) provides: The requirement 18. See 76 ALR 2d 619, §§ 3-7. of authentication or identification as a 19. See 18 Am Jur 2d POF, § 9; see also condition precedent to admissibility is 19 ALR 3d 1008 (Admissibility, as by evidence sufficient to sup· satisfied By disclosing to the adverse party against hearsay objection, of report of your intent to use statistical evi- port a finding that the matter in question tests or experiments carried out by indeis what its proponent claims. (b) dence in advance of trial, practition- Examples... pendent third party). With regard to a ers will likely stave off many of the (7) Public records or reports. Evidence hearsay objections given for reports preobjections which would come at trial. that a writing authorized by law to be pared by independent third parties, an For example, many jurisdictions recorded or filed and in fact recorded or exception exists for those records or reports that are made in the usual and require that as a condition to the filed in a public office, or a purported regular course of business. Courts have admissibility of survey evidence, the public record, report, statement, or data allowed the admissibility of those records compilation, in any form, is from the pubadversary must have been given rea- lic office where items of this nature are or reports which are relevant in situations where the actual pre parer is sonable notice with respect to the kept. survey. That point notwithstanding, 3. 29 Am Jur 2d, Evidence § 447 deals unavailable as a witness for trial or is no longer living. 19 ALR 3d 1008 § 2. sometimes it just makes sense to let with public surveyor polls. 20. 13 Ark. App. 293, 683 S.W.2d 618 4. See76 ALR2d 619, §§ 3-7 (statistical the other side know of your intent to (1985). gather statistical evidence to be evidence is also used in immigration, 21. McCormick, supra note 6, at § 208 naturalization, deportation cases, as well introduced at the trial since your as and n.5. in administrative agency proceedings, adversary might then ask to assist in food adulteration cases and false adver- 22. 18 Am Jur 2d POF 305, § 9. determining the proper sample, uni- tising or misbranding cases, and injunc- 23. Id., at § 7 24. See29 Am Jur 2d, Evidence § 1102. verse, and questions to be asked. The tion suits). 25. 18 Am Jur 2d POF 305, § 7. 5. See 18 Am Jur POF 2d 305 court could thereafter enter an 26. Id., at § 12. appropriate order. Similarly, practi- (Admissibility of Opinion Survey); see 36 ALR 4th 405 (a record, report, also tioners can formulate their own sam-

14 ARKANSAS LAWYER SPRING 1995

15 ARKANSAS LAWYER SPRING 1995

THE EXPERTS

16 ARKANSAS LAWYER SPRING 1995

c路~ The purposes of cross-examination of a medical expert are no different from the purposes of cross-examination of any witness. The objectives are to obtain favorable admissions, discredit unfavorable testimony, and impeachment. The most important tool in an effective cross-examination of the medical expert is preparation. That preparation begins when the file is opened. Preparation means knowing the facts of your case, the law which will be applied to those facts, the area or areas of medicine the expert will address and the background of the expert. Know the facts. Know not only the facts relating to the events involved, but the medical facts. Immediately after opening and acknowledging the file, send a medical authorization to opposing counsel. Obtain copies of all medical records before and after the event. Occasionally, you will uncover some surprising information that will be critical to your defense. Know the law which will be applied to those facts. Knowing the law will help you focus on the relevant information to be obtained. Become knowledgeable about the particular area or areas of medicine the expert will address, and the background of the expert. There is no substitute for adequate preparation in this regard. Your expert can and should be consulted in this preparation stage. He can suggest medical literature, assist you in understanding, help you devise a blueprint of how to get where you need to go with the expert and help you prepare for the expert's deposition. An essential part of this preparation is your pre-trial discovery. Prior to taking the expert's deposition, you should obtain information through interrogatories, informal discovery or deposition notes. The expert's bias is something you will not want to overlook. Obtain the details of the financial arrangements in your case. Obtain information about prior testimony, deposition and trial and prior review and consultation even though testimony was not involved. You will be interested in discovering which "side" the expert typically leans toward. The qualification of the expert or lack thereof should be explored. Also, determine what literature the expert

considers authoritative and obtain copies of that literature. Determine what person or persons he considers authorities in the particular field. You may want to contact those authorities as your potential expert. Much of this preparation will be done before the expert's deposition is taken; however, you will discover some of the information at the deposition. The deposition will not only provide you the expert's opinions, the facts, assumptions and deductions that support those opinions, but also will allow you to assess the type of witness the expert will make at trial. The objectives of crossexamination, obtaining favorable admissions, discrediting unfavorable testimony, and impeachment, should be kept in mind as you prepare for the deposition. You can expect to obtain favorable admissions on uncontroverted or non-controversial matters. In some instances, you may actually be able to turn the opposing party's expert into your own during the discovery deposition. However, if you are too successful in this endeavor, expect the opposing party to drop that expert and acquire another. Discrediting unfavorable medical testimony may be attempted by showing there is honest room for differences or medical opinion or that differing methods of diagnosis and treatment are recognized and followed. The opinion may also be discredited by focusing on areas of weakness in qualifications of the witness or mistakes in factual information upon which the opinions are based. Impeachment of a medical expert can be accomplished through several techniques: bias, interest and motive, prior inconsistent statements, contradictory facts and the use of treatises, periodicals and pamphlets. The foregoing is offered as a general guide in preparing for the cross-examination of a medical expert. Your actual practice will no doubt vary from this guide in many instances and may be governed by the type of case you are handling and the amount in controversy. However, your goal will remain the same. With the proper preparation, you should be able to achieve your goal of effective cross-examination.

Guidelines to Pre-trial Discovery 1. The expert's complete file on your case, including all correspondence, documents, notes, test results, examinations, medical records and films reviewed. 2. Any and all reports, either preliminary or final, authored by the expert in the case. 3. Copies of all items, documents or reports provided to the expert for the purpose of providing background or information on the case in order for the expert to prepare an opinion or opinions to testilY in the case. 4. Copies of all documents and materials which may be used by the expert as demonstrations, exhibits or an aid in testifying in the case. 5. Copies of all items, documents or reports, articles, treatises and manuals on which the expert relies in forming conclusions and opinions in the case. 6. His curriculum vitae or statement of professional background. 7. The style of each case in which the expert has testified to review materials related to that prior testimony.

17 ARKANSAS LAWYER SPRING 1995

The Use of Documents Through Expert Witnesses By John Elrod Hoist

them

vidence Rule 703 is well known. It provides that the facts or data of the case upon which one's expert hases an opinion may be those perceived by or made known to him at or before the hearing and that if they are of a type reasonably relied upon by experts in a particular field in forming opinions, the facts or data need not be admissible in evidence. Rule 705 then permits the opposition to force disclosure of the underlying facts or data relied upon by the expert on cross examination. However, we are not told the permissible boundaries of document introduction within the four corners of either rule. Consider that you will typically have two choices for the introduction of the other side's damaging internal documents, confidential engineering studies, product marketing evaluations and the like. First, you can call an officer or manager of the opposition and make introduction through an unfriendly sponsor or second, from a strategic standpoint, you should always assess the possibility of introducing the same documents through your own friendly expert who has reviewed them and relied upon them as a basis for opinion formation. Traditional notions say that lawyers only have two opportunities to speak directly to the jury, during opening statement and closing argu-

their own

ment. But in reality, through the ere路 ative utilization of experts to sponsor the opposition's damaging internal documents, the attorney will effectively have a third opportunity. Throw them on the screen, pass them to the jury and then through dialogue with your expert massage them, give thorough consideration to the most harmful passages, think about them, dawdle over them and generally utilize your expert to hammer home the concept that what you are looking at is the opposition talking to itself, presumably confidentially. You may thus demonstrate that the decisions which caused harm to your client were conscious, considered decisions. Any good expert witness is, by definition, a good teacher. Consider using those teaching skills to show to the jury a well planned demonstra路 tion of what the opposition was saying to itself. At the same time, don't believe that you can satisfy a prima facie case solely through expert witness document introduction. For instance, in American Uniuersal Ins. Co. u. Falzone 644 F.2d 65 Ost Cir. 1981), the court instructed the jury that a report introduced and accepted into evidence through an expert was admitted 2Ill.Y to show the basis of the expert's opinion and not for the truth of the report and the report itself did not therefore become substantive evidence for all purposes.

18 ARKANSAS LAWYER SPRING 1995

Petard

Therefore, while Rule 703 may operate as essentially an additional exception to the rule against hearsay, and the original writing rule (Rule 1002) or may serve as an alternative method of satisfying authentication requirements, differences do remain and the cautious Ht路 igator should therefore view document introduction through an expert as an effective strategy tool as opposed to filling a gap in one's prima facie case. There is also a line of thought which holds that the facts, data, or opinions otherwise admissible in evidence as forming a part of the basis of an expert witness' opinion may be excluded under Rule 403 if the trial court determines that the probative value of such facts or data is substantially outweighed by the dangers of unfair prejudice, being misleading or confusing or a waste of ti me.

People u. Coleman, 38 Cal. 3d 69, 211 Cal. Rptr. 102, 695 P.2d 189 (1985). Even if certain data contained in documents is excluded under Rule 403 from evidence introduction, the expert may still render his opinion if an adequate basis remains otherwise. For a meaty discussion of this whole area see Zenith Radio Corp. u. Matsushita Elec. Inc. Co., Ltd., 505 F.Supp. 1313 (E.D. Pa. 1980), reversed on other grounds 723 F.2d 238 (3d Cir. 1983).

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THE

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20 ARKANSAS LAWYER SPRING 1995

___________________________I

Why Punitive Damages are Spectacular and Rare By Nate Coulter Before he took his cowboy boots and mules to the federal judiciary, Judge William R. Wilson, Jr., wrote a glowing review of a local attorney's Fourth Amendment treatise. Given the Fourth Amendment views held by federal judges being appointed at the time by President Reagan, Judge Wilson noted that he feared the talented author had written "a masterpiece on the art of dinosaur hunting."]

Addressing the role of punitive damages in trial practice today may be a similarly academic exercise. Congress is brimming with bills to cap or otherwise limit the imposition of punitive damages by juries, primarily in product liability cases. 2 Over half of the states already have some type of punitive damage limitation or cap.3 The concept of punitive damages has been around for a long time - at least since Hammurabi's code called for punishing wrong-doers twelvefold in 2000 B.C.4 English co=on law first recognized punitive damages in the 13th century.5 The obvious purpose in all traditions is to discourage future wrongdoing. The notion is so ingrained in our law that the Arkansas Supreme Court long ago upheld "send a message" arguments to the jury even in the context of a claim for compensatory damages.' As the plaintiff's lawyer argued in that 1914 Drumright case, it is incumbent on juries from time to time to "call a halt" to the deplored activities. That duty will remain, regardless of what elected legislators may do. 7 In spite of the recent congression-

al exploitation of the subject, punitive damages are not a co=on factor in litigation, according to the National Center of State Courts. More and more pleadings may invoke punitive damage claims, but punitive damages are awarded in fewer than 1% of all cases.8 One pundit last year likened a multi-million-dollar punitive damages verdict to a lightning bolt - "spectacular but rare."9 Among other restrictions, the United States Constitution imposes a substantive limit on the amount of punitive damages, giving a flexible basis for appeal in large verdict cases." 10 According to one study, over half of the punitive damages awards in the country are appealed and half of those are reduced for one reason or another.J 1 The law requires that a punitive damages award be reduced if the appellant court concludes that the amount of the award suggests that the jury acted on the basis of prejudice or passion. 12 In short, in the rare event that a jury awards punitive damages, chances are strong that some judge is going to lop off a portion of the punitive award if the award is out of line with the compensatory damages. Notwithstanding the statistical evidence that punitive damages are rarely awarded and often reduced, there is still skepticism about the concept of punitive damages in the abstract. People hear about high profile cases like the McDonaids' coffee spill and perceive that juries everywhere are wildly awarding punitive damages with nothing to check them. Perception is more important

than reality here. Even in a case where there is no prayer for punitive damages, the public belief that gigantic jury awards are handed out like lottery tickets must be a factor in evaluating the case, picking the jury and making your argument once a jury is seated. An experience of mine last fall brought this home. My client had a relatively small product liability claim against the manufacturer of a small kitchen fire extinguisher. We contended the product was defective and sued in federal court. During voir dire it was obvious that most of the people in the box had read or heard about the award a few weeks earlier of 2.7 million dollars in punitive damages to a woman in New Mexico who was burned when McDonald's coffee spilled in

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her lap. The potential jurors had formed definite opinions about the McDonald's case, opinions that did not bode well for me and my client. Stella Leiback's award was a symbol of the jury system run am uck. Missing from most of the early media accounts of the McDonald's coffee case were the details of this anecdote. Never mind that these were the details that surely inspired the punitive award. Few if any of my potential jurors knew that the 81-year-old McDonald's customer had suffered burns serious enough to require skin grafts and put her in the hospital a week; that McDonald's served its coffee hotter than other fast food institutions because it believed the coffee smelled better, enticing more customers; that prior to this accident over 700 McDonald's customers had complained of burns from coffee spills; that McDonald's had settled claims for coffee burns and on one occasion paid $500,000 to do so; and that the judge reduced the New Mexico jury's 2.7 million-dollar award to $480,000. 13 Without this background information, it is easier to see why my jury pool saw the coffee spill as a monument to the greed of modern litigants and lawyers and proof that there are too many lawsuits filed by people who refuse to take responsibility for their own mistakes. Beyond my problems, the McDonald's case and the perceptions that have grown up around it have strengthened the hands of those political forces seeking to diminish the authority of the jury. This explains in part why Congress is soon probably going to follow those states that have decided to cap punitive damages at three times the compensatory damages. I happen to side with the statement of the group that publishes Consumer's Reports: "the threat of damages is a very powerful incentive for companies to make sW'e they produce the highest quality and safest products, and act reasonably." 14 The jury's seldomly exercised authority to impose punitive damages is an important part of this threat. To reduce that threat by diminishing the prerogative of the jury to decide

when a defendant's behavior has been egregious is to diminish the effectiveness of basic market incentives. The policy and legislative debate aside, lawyers already have a "pow_ erful incentive" of their own to be cautious in leveling punitive damages charges. Juries can smell a trumped-up claim for punitive damages and they will invariably reject it. Lawyers who foolishly assert it may bring down the ire of the jury on their clients. In short, to be effective a lawyer must maintain credibility with the jury by conservatively pleading and arguing punitive damages. A lawyer who stands in front of the jury and claims punitive damages are in order when they are not, or asks for an exorbitant amount of punitive dam-

ages in view of the facts is certainly going to undermine her credibility with the jury on a number of other issues where they may be with her. She's also likely to get reminded of this basic truth: jurors are reluctant to award punitive damage unless

22 ARKANSAS LAWYER SPRING 1995

there is very inflammatory behavior by the defendant. In Arkansas the punitive damage instruction, AMI 2217, contains two alternative descriptions of conduct which can justify an award of punitive damages if proven.J 5 The plaintiff has the burden of showing that the defendant knew or should have known that his conduct was "naturally and probably" going to cause harm and that he kept up this conduct in reckless disregard of the results; OR that the defendant intentionally injured the plaintiff. Punitive damages claims predicated on the intentional injury grounds are far more likely to get the jury's attention. For example, cases of fraud are more likely to provoke punitive damages awards than cases of product liability, even when personal injuries are extreme and consumer safety has been callously disregarded. Punitive damages claims in fraud cases are the easiest to justify with the jury and run the least risk of damaging the lawyer's credibility on

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other issues for a simple reason. Jurors can understand that it is not enough to require the defrauding defendant to give back what he extracted from his victim. The defendant must be punished to create the proper disincentives for repeating this conduct and to show others an example of what happens if you seek to take advantage of people. Jurors instinctively know that it is not right to force the bank robber only to give back the money he took. If the worst thing that could happen to a convicted thief were that he had to return the fruits of his crime, bank robbers and would-be bank robbers could reason that the windfall they might receive in a bank heist is well worth the risk of prosecution. Similarly, dishonest and fraudulent predators in the marketplace would have less incentive to play by the rules if the only consequence of getting caught were that they had to disgorge what they had extracted from their duped prey. Juries know better and are more inclined to "send a message" in these contexts. An informal, unscientific survey among lawyers will confirm this jury preference. And whatever the context, I venture that the rare punitive award in Arkansas will have some strong correlation to and be co=ensurate with the underlying compensatory damages that the jury found. Last fall - right after being snuffed out by the fire extinguisher defendant - my partners and I tried a four-week case involving allegations of fraud and kickbacks against our grocer client's former employees and brokers who sold to our client. The jury returned punitive damages awards against only the former employees, although the brokers and non-employees were all found liable for fraud and assessed compensatory damages. The level of punitive damages we won for our client was large, 1.5 million dollars, but this was substantially less than the compensatory damages of 5.35 million dollars, proving to me that juries are (1) instinctively skeptical about punitive damages claims and (2) quite capable of exercising restraint in the rare instance when they do decide to

award them. In the name of reform, Newt Gingrich threatens to tilt the American civil justice system against consumers. Particularly dangerous are his advocacy of "loser pays" rules and limits on pain and suffering. But seeking to cap punitive damages at three times the compensatory damages, or $250,000, whichever is greater, may be like decreeing that jurors breathe and eat. We don't need caps on punitive damages in any context because once in a while, like that rare, but spectacular lightning bolt, punitive damages at more than threefold the compensatory damages are needed. But the likely imposition of those caps by Congress in the near future may not have as great a bearing on litigation as proponents of the caps hope and opponents fear. Juries and judges already know how to restrict the scope of punitive damages in Arkansas. They do it all the time.

Rock LJ. 473 (1982).

2. New York Times, April 3, 1995, p. A8. 3. Id. 4. John D. Kitch, "Proving and Disproving Punitive Damages,'" ABA

Litigation Section Journal, Vol. 21, No.2 1995, P. 13. 5. Id. (1914). 6. St. Louis, I.M. & S.Ry.Co. v. Drumright, 112 Ark. 452 7. Id. at p.466. 8. Los Angeles Times, March 10, 1995, p.D1.

9.Los Angeles Times, November 28, 1994, p.A17. 10. Honda Co., LTD. u. Oberg, - U.S., 114 S.Ct. 2331, L.Ed. 2d 336 (1994), p. 2335. 11. Rustad, In Defense of Punitive Damages in Products Liability; Testing Tort Anecdotes with Empirical Data, 78 Iowa L.Rev.1 (1992). 12. Honda Co., LTD v. Oberg, -U.S.-, 114 S.Ct. 2331, L.Ed.2d 336 (1994). Ford, Inc. u. Dauie, 299 Ark. 45, 770 S.W.2d 656 (1989). 13. Atlanta Constitution, March 7, 1995, p.A6. 14. Los Angeles Times Friday, March 10, 1995, p. D1. 15.Walt Bennett Ford u. Keck, 298 Ark. Footnotes 1. Wm. R. Wilson, Jr., 5. U. Ark. Little 424,768 S.w. 2d 28 (1989).

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23 ARKANSAS LAWYER SPRING 1995

How to talk out of both sides of your mouth By Paul McNeil It is seasoned defense lore that you cannot talk dollars to the jury and defend liability. There's good reason for this. People presume if you suggest a dollar figure as a fair and reasonable amount of compensation, that even though you have stated your client does not owe any money, you're just hedging your bet and you really don't believe you have a worthy defense. However, the change ofthe legal climate, the ability of juries to understand, and the increasing pressures on defense counsel from excess exposure claims mandate that experienced trial counsel be skilled at actively defending damages in addition to liability, including, if necessary, suggesting a dollar amount. Different situations require different tactics. Catastrophic Damages - No Liability - Excess Exposure In this situation, there are huge damages if the jury finds against the defendant, although the plaintiff has a tough case of liability which is being vigorously defended on liability and proximate causation. A plaintiff's verdict could easily be in excess of policy limits, exposing the insured's personal assets. The insurer typically does not want to settle this case because of no probable liability, so what must the defense lawyer do to protect his insured against a "run-away" ver-

dict? Several options exist. Each option must be decided on its own based upon the particular facts; however, strong consideration must be given to calling defense damage witnesses. These include, but are not limited to (1) a defense independent

medical examination; (2) a defense vocational rehabilitation expert; (3) a defense economist; (4) a defense annuitant; and (5) a defense life care planner. This article does not discuss these different areas of expertise by these specialties, nor the nuances of when you would want to use tbem in each particular case; however, these need to be in the defense arsenal. Defense counsel must decide before the trial begins which, if any, ofthese particular areas are going to be presented. As early in the trial as possible (usually voir dire), counsel must emphasize to the jury that there are three essential elements to the plaintiff's case: one, is fault; two, is proximate cause; and three, is damages. Defense counsel should outline that the plaintiff must prove all three elements; and explain that the defense is going to vigorously defend lillll call witnesses on ~ of these three elements; and get a co=itment from the jury that by vigorously defending all three elements, including damages by calling damage witnesses, that the jury will not lessen the defense's position on liability issues. This needs to be reiterated in opening statement and reminded in summation. I have experienced this. I was like many of you, stating, "I am never going to call defense damage witnesses in a case where there is no liability." Since making that statement, I've called defense liability witnesses in three jury trials. In two of those, the jury returned with a defense verdict. It can be done; however, the ground

24 ARKANSAS LAWYER SPRING 1995

work needs to be laid out from jury selection to maintain the defense lawyer's credibility. The presentation of a damage figure under this scenario is really quite easy. If, in fact, the defense has called a defense economist or a defense annuitant to talk about the "special" damages, as well as a life care planner and/or vocational rehabilitation expert, then, tell the jury that although your client doesn't owe anything, if, in fact, they decide for the plaintiff, the dollar amount awarded as fair and reasonable is the dollar figure that you have presented during.YQJn: case, and not the number presented during the plaintiff's case. Probable Liability of the Defendant These are situations where the defense is going to lose on liability, but there is a chance of some sort of comparative negligence or affirmative defense. While you are not admitting liability, the main purpose is to "control" damages. These cases are tough. The defense lawyer, is "the fish in the barrel." Consideration must be given to calling defense witnesses specified earlier. Again, the jury needs to be told in voir dire, opening statement, and closing argument, that all three elements are being contested. The tough issue here is closing argument. What amount do you suggest to the jury? There are no rules, but several suggestions: 1. Straight Face Argument If you can't suggest a dollar amount to the jury and keep a straight face, then that number is too

low. The tough part is going to be what number you do suggest. Obviously, you have to suggest a number that you can live with as a defendant if, in fact, the case comes to that, but it must be credible. It must consider each realistically com· pensable element of damage before the jury and have some logic and reason to it, as opposed to being "out of the air." 2. Doubling Rule Whatever number you suggest needs to be enough that your client can live with it if that number is dou· bled. Most plaintiff's lawyers (after the administration of truth serum) in closing "ask for more than what they really expect," and figure that most jurors are at least going to cut it in half. Likewise, the rule applies to the defendant in suggesting a number as well. whatever number you suggest, if you would not be con· tent with a verdict of twice that, then your number is probably too low ll.l: you don't need to be trying that case. 3. There Should Be a Number In a case of probable liability, you should give the jury a number. Most of the time, it should be a number that you can arguably support to the jury that considers every reasonably compensable element. There have been times when I've stood up to make closing argument, was going to

suggest a number, and decided not to. There have been times when I've stood up to make closing argument and was not going to suggest anum· ber, and did. (On some of those occa· sions, I made the right choice.) You must stay flexible, depending on the opening summation by the plaintiff. 4. Plaintiff Has the Last Chance Whatever number you suggest, the plaintiff can rebut. If your number will not withstand critical analysis. For example, if you've not taken into consideration lllI. elements of damage, or if you have not rebutted some element of damage by proof with proof, then your number will not withstand scrutiny. An example illustrates this point. Assume you are defending a probable case of liability. The plaintiff is claiming total disability and lost future wages of $150,000. If at closing, you don't suggest any number for lost future wages, then whatever number you suggest is not going to withstand scrutiny upon a proper rebuttal. It doesn't necessarily mean that you had to suggest a number to the jury during the proof. In other words, it is not mandatory that you call a defense economist. The $150,000 can be attacked other ways, but this must be explained during your close. For example, if the

plaintiff's physicians themselves did not testify that the plaintiff was totally disabled, you could attack the number and argue that there is no basis in the proof, Therefore, you've not considered the plaintiff as totally disabled. If the defense vocational rehabilitation expert has testified that plaintiff is not totally disabled, that would give you some plausible explanation of why you've not considered that in your number. If the $150,000 is not a present value figure, and you can show that to the jury, then you could argue what the present value would be. (In that case, you would have to suggest through evidence what that present value is.) Or, if, in fact, the defense proved that the $150,000 figure was not reason· able or rational, based on the evidence, then you could argue that no consideration should be given to lost wages. 5. Rule of Primacy If the jury hears a defense num· ber for the first time in closing argument without any foundational support for that number, you are in trou· ble. If the jury has no clue until clos· ing of the basis for that number, then that number is going to be subject to much juror scrutiny. This gets back to the ground work that needs to be done in telling the jury why you are defending damages. Furthermore,

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when you have your defense damage witnesses on the stand, you can preface your questions to remind the jury that you are still defending liability. For example, you can ask the defense vocational rehabilitation expert, "Mr. Smith, assuming that the jury were to rule against the defendant on the issue of liability, and to consider the issue of damages, have you reviewed the plaintiff's vocational history records, to reach opinions as to his employability?" Of the defense economist or annuitant, you can ask, "Dr. Jones, assuming

that the jury rules for the plaintiff, have you reviewed the plaintiff's earnings history and wage losses to reach opinions that would assist the jury on the issue of the present value of future wage loss or earnings?" Another primacy issue is what order do you argue these matters in closing? I have argued damages first and last. It depends on the strength of your liability defense. I usually argue damages first. This fits neatly with AMI 203, which lists in order the elements that the plaintiff has to prove as (1) damages, (2) negligence, and (3) causation. In state court and in most federal diversity cases, the jury will be instructed prior to closing. Therefore, you can show or read the elements of proof. It makes sense to take them in the order the court has instructed as opposed to mixing them up. This allows you to end your argument on liability, suggesting that nothing should be awarded. 6. Find The Silver Lining During the damages argument, it is important to stress the positives. Usually, if you look close enough, ~here will be some posi~ive aspects of the damages that can be noted. These can include (a) the plaintiff has made a good recovery; (b) the plaintiff has had excellent medical care; (c) the plaintiff's surgeries were successful; (d) the plaintiff is now off any pain medication; (e) the plaintiff has been able to marry or have children since the accident; (f) the plaintiff has a strong family support group; and (g) the plaintiff has been able to go back to work. These are some examples to give you "something to talk about" during the dam-

ages phase, without just talking gloom, doom, and despair. That will be the plaintiff's closing. If you look closely enough, there will be something positive that you can talk about that probably has been ignored by plaintiff's counsel. 7. Never Use the Plaintiff's Charts Many times plaintiff's counsel, during closing, will use a chalkboard, blackboard, or an artist pad to list the various components of damages he is submitting to the jury, and to list dollar amounts with a total. For convenience sake, a defense lawyer who is going to argue damages may think, "Well, I'll just use his poster, or use his chalk board, and/or follow the same format." Don't do this! First, if both lawyer follow the same format, then the jury most likely is going to do it as well. Second, it gives credibility to the plain~iff's attorney and his numbers if, in fact, you use his exhihit. Third, plaintiffs commonly will list pain, suffering, and mental anguish as separate elements of compensable damages. In the jury instruction, they are listed as one element of damage (AMI 2201). For the defense, they need to be listed together, perhaps with hyphenation between them. 8. Loss of Consortium One last item is arguing loss of consortium as a defense. This obviously depends on the type of injuries a plaintiff has suffered; the testimony that has come in on that element during the course of the trial; and the make-up of the jury. We are basically a rural state ,vith pretty common folk that sit in jury trials. Most married people promised traditional wedding vows, which included the statement "for richer, for poorer, for better or worse, in sickness and in health." Those vows effect some jurors' perspectives on the weight to be given to a loss of consortium claim. Again, it depends on the age of the plaintiffs and the type of injury. The most common case probably involves a sore back or neck, or even a back or neck surgery. These usually are not particularly strong loss of consortium.

26 ARKANSAS LAWYER SPRING 1995

Summary Juries can understand that you're not giving up on liability when you defend damages. You can do your insured and insurer better service by vigorously defending those damages by knowing that if, in fact, an excess verdict comes in, the jury at least bad a number suggested by the defense that was inside available coverage. That fact would go miles to withstand the scrutiny of a later bad faith claim for excess exposure. Hopefully these suggestions will be of some assistance to help you not experience the "college of hard knocks" in this area.

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28 ARKANSAS LAWYER SPRING 1995

pening Statetnent By Jim Moody

The opening statement in a trial must graphically portray counsel's theme of the case with force and efficiency. As is true in every aspect of litigation, the key is to carefully select and define goals and to diligently prepare for those goals in both breadth and depth. The goal of the opening statement should be to establish with clarity and logic the proper tone and mood of the case rather than merely to communicate the substantive aspects of one side of the case or to discuss the evidentiary details. Studies show that 80 percent of jurors decide who should win the case during opening statement. When the opening is finished, the jury should have a clear understanding of the facts, the theory of the case on which you are prosecuting or defending and why your client is entitled to a verdict. Why is it so critical to thorougWy prepare the opening statement? The opening places the lawyer for plaintiff or defense in a precarious position. During presentation of witnesses and closing argument, the lawyer can be mOQl expansive without fear of exposing his own position. However, every inference made in the opening statement can be scrutinized closely by opposing counsel and his witnesses and evidence and argument presented in rebuttal. Even the best trial lawyer has regretted his own lack of circumspection in an opening statement after being needlessly "nailed" by a witness for something said in opening that was not fully accurate and probably not crucial to the presentation of the case. During preparation, consider the opening to be a mine field in which your objective is to get across without something blowing up. If you

don't take care to avoid the pitfalls, you will remain exposed for the remainder of the trial for opposing counselor witnesses to punish you for your mistake. Make the opening statement an opportunity to establish in the mind of each juror how evenhanded and fair you are in the characterization of the case. This is your best chance at getting the undivided attention of every juror. Take advantage of it. The most likely thing a juror will remember during the trial or while deliberating on a verdict is the first two or three sentences of the opening statement. For a lawyer to talk too long during closing argument is forgivable, but to talk too long during opening is to invite disaster. While

too short is not good, too long is worse. If a lawyer can make the following points in the opening, he has gone a long way to accomplishing the objectives mentioned above: (a) Condition the jurors to the theme of the case. (b) Instill in the jurors' minds that you are confident in your case and well prepared to present it. (c) Portray basic models or analogies for the jury to use in mentally categorizing the evidence to be received during trial. (d) Defuse the weakness in your own case.

The following is a suggested format:

Suggested Format 1. Introduce yourself and your client and make sure the jury identifies the lawyer with the client during the progress of the case. Personalize the client so jurors can more easily identify with them. 2. Get to the point of the case and avoid long explanations of what the judicial system is all about or the purpose of an opening statement. 3. Give the jury enough information to understand the case without overwhelming them with details. By the end of the opening statement, the jury should have enough information to understand your client's position. 4. Confront problems and weaknesses in your own case. To avoid the opposition exposing your own Achilles heel, diffuse those areas by addressing them directly in opening statement. 5. Emphasize the weaknesses in your adversary's case. If there is a vital weakness, point it out but avoid the temptation to flag some unattractive fact which may seem petty and of no significance. 6. Emphasize vital pieces of evidence or witness testimony on which you want the jury to focus and forewarn the jury about conflicts in the testimony. Tell the jury why the conflicts exist and why the evidence will support your client's version. 7. Finish the opening statement expressing confidence that the jury will return the verdict you want. 8. The opening should be delivered confidently and without any doubt as to your view of the case and your expectation of the outcome.

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Avoiding the Overkill By Stephen A. Matthews here are times in the trial of cases where the temptation to overkill or over-try the case is almost irresistible. Sometimes failure to resist such temptations can turn out to be costly, possibly even resulting in the loss of a case which ought to be won, on reversal and remand of a case which ought to have been won and wiped out at the first trial. Sometimes an attorney is so impressive and persuasive that the trial judge may admit evidence which is inadmissible, or exclude evidence which is admissible, or give an instruction which is erroneous, or refuse to give an instruction which is proper, all over the objection of the opposing counsel. The result may be that the case, which was a winner all .'- - --y, winds up with reversible . it. After the expense of an including payment of the "I'i"'u...ot's costs, the matter winds up being retried, and finally won, when it would have been concluded at the first trial, with no reversible error, but for the overkill tactics of counsel in pressing for advantages in the form of trial court rulings which were not really necessary to win the case. Trial counsel should develop a knack for being attuned to the way the case is going and the way the jury is leaning and learn to discern when a case is clearly in the process of being won. When this is so, counsel should not mess it up by requesting, or permitting, the trial court to commit reversible error simply to add a little momentary fire power which is really not needed. Of course it is always necessary to make a proper record, and in all cases where the opposing side's evidence is weak, counsel will ask for a directed verdict to protect the record. If the motion is pursued with vigor, the trial court may grant it and may be right or may be wrong. If the case

is weak to the point that the jury obviously has no intention of returning an adverse verdict, counsel would be better served to let the jury make this decision than to press for, and obtain, a directed verdict, which might cause a problem on appeal. As we all know, appellate courts are much more prone to sustain the findings of a properly instructed jury than a directed verdict by the trial court. It is best not to argue vigorously in favor of a directed verdict on a questionable call. Other areas where trial counsel is sometimes led to commit overkill are the cases where a party represents himself or herself, pro se, or if the lawyer on the other side is so inept, or ill prepared, or both, that the jury decides it needs to help the poor down-trodden and oppressed underdog. While the temptation for counsel to demonstrate greatly superior skills, knowledge of the law and ultra skillful trial techniques may be great, such tactics may reach the point where the jury will punish an attorney (and the client) for belittling and ridiculing the pro se opponent who cannot afford a lawyer, or for showing up and embarrassing the opposing lawyer for the simpleton that he is. We know the public does not like lawyers. Jurors consist of members of the public. A lawyer who subjects his pro se opponent or less than brilliant lawyer opponent to ridicule or embarrassment is not going to be popular with the jury, and may wind up losing a case which would be won if counsel had just exhibited a little compassion or gentleness toward an inferior opponent. There is no need to kick an opponent who is down and not going anywhere. The jury may rise up and strike a blow against arrogant or mean-spirited counsel, and in favor of the party who really has no business winning the case but evokes sympathy because of what is

perceived to be an unnecessarily cruel onslaught against him. The foregoing principles also apply to the cross-examination of witnesses. Once the credibility of a witness is destroyed, there is no need to continue an overkill with brow beating and oppressive tactics which may cause the jury to feel sorry for the witness and to resent what it considers unnecessarily mean cross examination of a "little dog" by a "big dog." Such tactics may lead to a verdict favorable to the "little dog" and disastrous to the "big dog" who clearly had the upper hand and should have won the case but frittered it away by continuing to beat on an obviously whipped witness. Although difficult to achieve in practice, counsel should strive to develop the ability to accurately analyze the flow of the lawsuit, and when things are going well to accept it graciously. Under such circumstances, to consciously set out to degrade and utterly humiliate the counselor a witness on the other side is not only bad manners, but such lack of civility may so alienate the jury that it is persuaded to find against the side which clearly ought to win, and would win, except for bullying tactics and arrogant behavior by counsel. The above comments suggesting that sometimes counsel should relax and go with the flow and not work too hard at winning should not be construed to suggest anything less than complete, thorough, leave-nostone-unturned preparation for trial. An attorney should always be thoroughly and completely prepared for trial, even when the other side is represented by inept counsel, or is proceeding pro se. But once painstaking preparations for trial have been completed, the trial is in progress and it becomes apparent which way the wind is blowing, counsel should not kick away or diminish the winning edge by conduct amounting to an overkill.

31 ARKANSAS LAWYER SPRING 1995

A Thing of Beauty...

Special thanks to Chris Dimon, Project Architect Burt Taggart & Associates, Inc. Tommy Jameson Borne & Jameson Architects, P.A. Ray Wagoner, III and Susanna McSpadden The Darkroom 32 ARKANSAS LAWYER SPRING 1995

•

• • • IS a

Joy Forever By Ann West

The original Pulaski County Court House at the comer of Spring and Second Streets, designed and built by Maximilian A. Orlopp at a final cost of $100,000, was begun in 1887 and completed in 1889. The 1887 or "South" building is Romanesque Revival coupled with aspects of Queen Anne style. Previously the court house was housed in a log house, a private home, a series of rented houses, and from 1840 to 1882 in the East Wing of the Old State House. The rugged exterior of the Old Court House is of Little Rock Fourche granite with bands of Batesville limestone. The use oflarge scale stonework, arches, columns and towers contrasts with intricate Queen Anne detailing in the pediments and terra cotta work around cornices and gables. Intricate interior detailing on the stairs, doors, floor, and moldings also reflect the Queen Anne Style. The clock tower located at the southeast comer of the building rose 65 feet from the foundation to the top of the steeple and housed four clock faces. Over the years the clock tower was damaged by water and termites, and in 1961 it was removed after a severe storm blew sections of the tower roof onto the sidewalk causing a safety hazard. A new steeple, custom built from old photographs and a line drawing, arrived in Little Rock April 28, 1995. After installation of slate shingles by the contractor, the six-ton structure will be lowered into place atop the clock tower by helicopter. This installation will take place during Riverfest weekend. By 1912 the 1877 courthouse was overcrowded. A new four-story addition to the old courthouse was designed by architect George Mann

who was also the architect for the Arkansas State Capitol. Work on the annex (or "North" building) was begun in 1913 and completed in 1915 at a cost of $565,987. The design for the annex has been labeled Italian Renaissance Revival and displays Mann's knowledge of Beaux Arts classic design. The central hall houses 12 statues that represent art, justice, agriculture, and machinery. Marble columns outline a two-story rotunda covered by a stained-glass dome lit from above by a skylight which serves as part of the fourth floor roof. The building's exterior is Batesville marble; the interior walls and pillars are imported marble. In 1979 a master plan for restoration of the two courthouses was compiled and in 1994 renovation began. Three architectural firms worked on the project as a joint venture. Extensive renovations cost approximately $7 million. More courtrooms were added; electrical, mechanical, and plumbing along with heating and air conditioning systems were completely replaced; better access for people with disabilities was provided; ornamental details were restored; wood work was cleaned; the clock tower was redone; new elevators were installed; and usable space was added in the basement. Awnings, window air conditioning units, and asbestos were removed as was a smokestack; a chiller unit was relocated, and water lines and electrical and telephone cables were placed underground. At the same time the integrity of the building was maintained. The courthouses were put back as nearly as possible in the original condition, but wbat could not be reinstalled was replaced. For example, tiles on

the first floor were used to repair the floor on the second floor in the Old Courthouse. Bronze entry gates, missing from the east side were located and reinstalled. Every light fixture was shipped off to be rebuilt and rewired, hardware was cleaned and polished, door hardware was disassembled, repaired, cleaned, and reassembled. The stained glass in the dome was cleaned. When the Old Courthouse (South building) was built, electric lighting did not exist. Ventilation was provided by opening a window. Walls of the South building are solid brick or rock, which necessitated chiseling channels in the walls to hide conduits for wiring and plumbing. The court moved back into the court house in January, 1994, but finishing work has been done since that time. The renovation will conclude with erection of the steeple. On the following pages, Ann West chronicles the renovation of the Pulaski County Courthouse.

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"The Courthouse is a finely crafted building that will be around forever. It is one of the finest buildings in the state. » --Tommy Jameson, architect on the Joint Venture Team.

Stained glass dome in the rotunda. The stained glass dome is the largest in the state and the rotunda is second in scale only to the Arkansas State Capitol.

• • • • • • • • • •• • •• • •

•

North entry door with arched transom and beveled glass sidelights looking through the logia to entry glass.

•

~~~~:.il.

Center medallion on bronze entry gates. 34 ARKANSAS LAWYER SPRING 1995

• • • • • • • • •

Custom cast bronze knob and escutcheon with "PC" (Pulaski County) logo and county seal.

"There is a fine line between restoration and rehabilitation. Restoration is putting a building back as close as possible to the original. Rehabilitation is taking an old structure and preserving as much as possible, but bringing it up to code and making it workable for current every day activities. Our goal was to make the Courthouse functional into the next century." --Chris Dimon, Project architect

One of four statue niches in the rotunda.

First floor arched window showing decorative stone work.

• • • • • • • • • • • • • • • • • • • •

Massive panel entry doors marking the south entrance with decorative terra cotta panels and cut limestone arch framed in locally quarried granite.

•

Richly detailed Beaux Arts limestone facade showing two of the many window forms used throughout the Courthouse. 35 ARKANSAS LAWYER SPRING 1995

Detail of statues and stained glass dome. Here a woman holds a sculptor's mallet in the "Art" statuary.

•• • • • • • • • • •• • •

Example of classical Beaux Arts detailing, painted plaster ornament, at second floor rotunda arches.

"Our intent was for people who came to the Courthouse to say, "It doesn't look any different, except that you painted everything and cleaned it. " Of the $7 million spent on renovation, three-fourths is hidden behind the walls.» -- Chris Dimon, Project architect

Bronze entry gates, first floor entry (north side), with gargoyles guarding the entrance. 36 ARKANSAS LAWYER SPRING 1995

• •• • • •• • • • • • • •

Massive scale bronze light fixture, north side.

Introduction to Virtual Reality By Kirk D.Darbe The time is the near future. The scene is of a room devoid of furniture except for two tables where the defense and prosecution are sitting. A bailiff stands behind the defendant. All present except the bailiff are wearing Darth Vader looking helmets. Witnesses are in a separate room also in helmets. There is no judge or jury, only computer generated images seen in the visors. Virtual Reality has come to the courtroom. Virtual Reality. The phrase conjures up images from the movie The Lawnmower Man or the holodeck from Star Trek: The Next Generation. While the technology for the holodeck is not here yet, technology is making rapid advances in both price and capability and may be closer than you think. In this article, it is not my intent to give a detailed discussion of virtual reality but to give an introduction to the subject. Virtual Reality, abbreviated YR, is one of the most exciting uses of advancing computer technology. The person given credit for creating the phrase is Jaron Lanier who used the phrase to distinguish between the digital worlds he was creating and the usual computer simulations of the day. The term is sometimes used synonymously with 'cyberspace' but 'cyberspace' is most often used to describe the internal world of computer networks, like the Internet, or computer generated worlds. 'Cyberspace' is the term given by William Gibson to the computer worlds described in his novel There are two primary categories of YR, immersive and non-immersive. Nonimmersive VR is relatively inexpensive, can be done with a minimal amount of equipment, and is already in the marketplace in a big way. It asks the user to suspend his or her belief in the scene surrounding the monitor, even though the scene is very visible to the user. Immersive YR, on the other hand, seeks to substitute its computer generated reality for the reality in which the user exists. How expensive it is will depend on how real the user wants the VR to be. A listing of the available equipment for VR shows an overlap between the two types. Most desktop VR relies on the standard keyboard, mouse, trackball,joystick, and pilot yoke to act as the input device to the virtual world. Though these items will still work in immersive YR,

they are not frequently used. An additional item of equipment used in nonimmersive VR that is also used in immersive VR is the dataglove, a glove with multiple sensors linked to the computer that relate the hand's position in the real world to the virtual world. When people think of immersive VR equipment, the one item most often mentioned are the are the goggles, or head mounted display writ, abbreviated HMD. The HMD is best described as two little display units in a eyeglass type frame. The newer versions include stereo sound. At one time the HMDs were so heavy and cumbersome they were mounted in a gimbals arrangement, swinging on an arm as the user moved his or her head. Now, the more advanced models are completely portable to the extent of a short distance wireless connection with the computer. When combined with a glove the user can not only see and hear but move objects as well, thus giving an almost total escape into the computer generated reality. Another piece of equipment used in VR was highlighted in the movie The Lawnmower Man. This was the body suit. A thin suit loaded with sensors CODnected to the computer system, it does for the body what the glove does for the hand. It registers the position and movement of the entire body inside the virtual world. A much larger and more expensive piece of equipment is the current class of simulators making its way into the arcades. Totally enclosed capsules, pods on the end of hydraulic arms, move in response to the commands of the person inside. Similar to the video rides at amusement parks, it differs in size and control the passenger has over its movements. Technology invariably moves on and, in its wake, lowers prices. Equipment that cost tens of thousands of dollars just a few years ago now costs in the hundreds. Several companies such as Virtual I/O, Forte Technologies, and Victormaxx are introducing HMDs costing less than a thousand dollars in time for this Christmas. These are designed to work with personal computers or video game machines like Sega or Nintendo. Of course, all this technology would be useless without the underlying software that incorporates it. Like equip-

ment, software comes in a variety of capabilities. The lower end of the scale allows the user to build simple buildings or objects and will interface to some VR equipment. The higher end of the scale allows complete VR worlds to be built, walk through capabilities, and total manipulations of objects in those worlds. This software will interface to almost all VR equipment without modifications. Although some software will run on an average personal computer setup, some of the more enhanced software uses either a special machine or a large personal computer (something like a Pentium with 32 megabytes of memory). It goes without saying the price goes up with capability. YR is currently used in games, simulations, education, almost everything is being tried. Surgeons are being trained on virtual bodies. Children and adults alike are enraptured by the games coming on the market. NASA is experimenting with telepresence, the control of robots from a central location. Volvo is offering potential customers the opportunity to take a slow motion crash inside one of its cars. Architects are constructing buildings and making modifications based on customer feedback from virtual experiences. As this article is being written NBC is using non-immersive virtual reality to give viewers a look at the Nicole Simpson murder scene. The future is limited only by the imagination. Virtual Reality may soon join other technology issues on the legal battlefield. For example, will copyright law cover artificially generated worlds? Or, analogous to biotechnology, would virtual worlds be treated as a new invention and be covered under patent law? How much should Virtual Reality be allowed to be used in the courtroom to prosecute or defend raises additional concerns such as aiding indigent defendants and interpretstion of available data Aside from the legal issues, what future does virtual reality have for the legal commwrity? Is it really such a reach to see the scene described at the start of this article actually taking place? Virtual Reality offers a possible way to relieve the current overcrowding and to give speedier justice to all. For that to happen though, the current state of artificial intelligence would have to greatly improve. But that's another article.

37 ARKANSAS LAWYER SPRING 1995

Developments in the Law: An Outline of the Americans with Disabilities Act By Eugene Hunt In passing the Americans with Disabilities Act, the congress found that some 43,000,000 Americans had one or more physical or mental disabilities and that historically, society tended to isolate and segregate individuals with disabilities. (42 USC Section 12101) The EEOC Technical Assistance Manual states that an individual with a disability is a person who has: 1. a physical impairment that substantially limits one or more major life activities; 2. a record of such an impairment; or 3. is regarded as having such an impairment. The Americans with Disabilities Act (ADA) requires private employers, state and local governments, employment agencies, labor unions and joint labor-management committees to comply with the terms of coverage of the ADA. Title I of the ADA, 42 USC Sec. 12111, refers to the foregoing as "covered entities".

Employers are prohibited from discriminating against qualified applicants or employees on the basis of disability. The ADA became applicable to employers on July 26, 1992 and subjected all employers with 25 or more employees to coverage. Effective July 26, 1994, employers with fifteen 15 or more employees fell within ADA coverage. The two step phase of coverage was designed to provide smaller employers more time to prepare for compliance. Employer is given a restrictive definition in the ADA and it defines employers as those companies that have 25 or more employees as of July 26, 1992 working for them for 20 or more calendar weeks in the current or preceding calendar year. The ADA prohibits discrimination against "qualified individuals

with disabilities." A qualified individual with a disability is: "An individual with a disability who meets the skill, experience, education, and other job related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job." [See 42 USC Section 12111(8)] One of the first cases litigated under the ADA was EEOC v. AlC Sec. Investigations. Ltd., 820 F.Supp. 1060 (N.D. Ill. 1993). The AlC Sec. Case, Supra, focused on the question of whether the employer's executive director, who suffered from cancer, was "qualified" to perform his job within the meaning of the ADA. The employer, apparently believing the employee was not a qualified individual within the meaning of ADA, terminated the employee after missing work due to surgery and cancer treatment. The evidence in the case, which was tried to a jury, indicated the employee was able to work long hours and profits in the executive director's division increased while the employer's overall profits decreased. The jury's finding of discrimination exposed the employer to a damage range of $50,000 to $300,000 to compensate the employee for wage loss, compensatory and punitive damages, reinstatement and counsel fees. The ADA has a tripartite definition of disability based on the definition under the Rehabilitation Act, which reflects the specific types of discrimination experienced by people

with disabilities. It is not the same definition used in other laws, such as state workers' compensation laws or other federal or state laws that provide benefits for people with disabilities and disabled veterans. Persons who currently use drugs

38 ARKANSAS LAWYER SPRING 1995

illegally are not protected by the ADA. In the case of Wormely v. Arkla. Inc.â&#x20AC;˘ PB-C-94-1, Wormley had been terminated by Arkla during his participation in a company sponsored drug rehabilitation program. Wormley had undergone drug rehabilitation before the effective date of the ADA and after completing the drug rehabilitation program returned to work. As a condition precedent to his continued employment, Wormley had signed a ''CoOOitiooaJ Reino1Jlta:nffi Agreement" that provided, inter alia, he would be subject to discharge should he resume illegal drug use or fail to participate in periodic drug screens at the request of Arkla. In deciding whether summary judgment was proper, the court identified the pivotal issue as turning on the definition of "current drug user." The court found that persons engaging in the current illegal use of drugs are not "individuals with a disability" when the covered entity (Arkla) acted on the basis of such use within the meaning of 42 USC Sec. 12210(a). The court found that an employer may discharge a person who is currently illegally using drugs on the basis of the drug use without incurring liability for discrimination under the ADA. However, a person who is a drug addict but who is "no longer engaging in the illegal use of drugs", is a protected individual under the statute. 42 USC Sec. 12210(b). The court stated the policy objective is to prevent employers from firing persons solely on the basis of their past drug use. It is a violation of the ADA if an employer treats an employee as if that employ,ee suffers from a disability. In the case of EEOC v. Potlatch Doris Scott Intervenor, PB-C-93-647,

the employee was regarded as having a disability. In EEOC u. Potlatch, Supra, Doris Scott, Intervenor, a probationary employee, worked as a utility employee for 58 days at which time her probation was extended. During the period of extended probation, Scott, while working the night shift, became faint in the production area and went into the break room where she lost control sitting on a stool and fell to the floor. A fellow employee went to her aid and concluded Scott had momentarily lost consciousness. The plant nurse rendered emergency assistance and Scott finished her shift of duty. Plant management learned about the incident in the break room involving Scott and refused to allow Scott to return to work before getting a diagnosis from a physician. After examination by two physicians, one of which regularly conducted physicals for the company and had performed the employment physical on Scott three months earlier, could not find a medical reason for Scott's momentary loss of consciousness. The company characterized Scott's condition as syncope and refused to allow Scott to return to work without a medical explanation for the episode in the break area of its plant. Scott filed an EEOC charge and the EEOC subsequently filed suit in which Scott intervened. Upon trial of the case, the jury found that Scott had been the victim of disability discrimination in violation of the ADA and awarded $20,000 in compensatory damages. The court then ordered the reinstatement of Scott, back pay and counsel fees. An employer's refusal to allow an injured employee to return to work may be a violation of the ADA. Attorneys handling workers' compensation cases should proceed cautiously in the advice given an injured employee after settling cases on joint petitions or after litigating cases where there is evidence of substan-

tial physical impairment. Many employees who suffer residual disability of 15 percent or more to the body continue to have the ability to perform the "essential functions" of the job held by that employee prior to injury. However, many of such employees do not return to work or it is implicit in the joint petition process that the employee will not return to work. Quite often, when the employee

seeks to return to work, he discovers that due to a disability or perceived disability, the employer will not allow the employee to return to the work force. Violations of the ADA are not actionable unless an EEOC charge is filed within 180 days of the alleged discrimination. An attorney's failure to advise an injured employee of that employee's right under the ADA may be an act of malpractice.

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Murphy's Law, Ginn's Corollary and the Mini Brief By William A. Martin "If anything can go wrong it will and at the most inconvenient time," is a summation of what has come to be known as Murphy's Law. Any of us who try cases know it can certainly apply to trials as well as to everything else in life. When 1 was legal advisor to the Commander, U. S. Forces Japan, Lt. General William Ginn, he taught the staff a corollary to Murphy's law that has served me well in planning: "It will go wrong, now how are you going to recover from it?" This question is perhaps a more colorful way of stating the Boy Scout motto of: "Be prepared." The message that preparation is essential to success in the courtroom is transmitted in many ways through law students, new lawyers and experienced lawyers. We know it is true and still it may not be impressed on us sufficiently to cause us to change our behavior. When I entered the Air Force right after I was admitted to practice, I was fortunate to have a mentor who was a hard taskmaster. For my first trials he insisted I prepare a trial brief and bring it to him for review, criticism and suggestions. One of his frequent questions was: "What if opposing counsel does .... l' It might be said it was the opposition's job to give Murphy's law every opportunity to work. This challenge got me to thinking about what surprises the other side might be planning and how to counter them. Sure enough, at my first court martial one of the motions suggested came up and I was ready. Although I had not at that time heard General Ginn express his corollary, I was able to

recover when something went wrong. Over the years I found taking time to let my imagination run wild and list both seemingly legitimate and far fetched motions, objections, arguments, offers of evidence and other challenges which might come from opposing counsel turned out to be time well spent. Most of the unusual ones were not presented, but just enough were that having thought through and written down potential responses gave me the ability to counter many efforts which the other side expected to use to catch me off guard. In my trial briefs I always liked to have ready citations to rules and cases to support each position I needed to advocate-especially why the evidence I wanted was admissible and why my opponents anticipated evidence was not admissible. Specific rules and decisions were vastly more effective than just logic in persuading a judge to rule in my client's favor. The structure of having a detailed written trial bricf mcant I had already phrased much of what I expected to say. Although I work from notes in order to avoid reading and often said things a bit differently from what I initially composed, having once selected what words I should use to articulate my questions, motions, arguments and responses helped greatly in my being able to speak clearly and confidently during the heat of a trial. I always felt I wanted enough written down so if I blew up I could still muddle through by reading from my trial brief. With that back up I had the

40 ARKANSAS LAWYER SPRING 1995

assurance that prevented such problems. While I was stationed in Washington I got to know Mark Dumbroff who was Chief of the Aviation Litigation Branch of the Department of Justice. He gave me an additional variation that I never

got to use in the courtroom, but which should be a valuable addition to recovering when "it" goes wrongthe mini brief Even with today's discovery and motion practice, there are always going to be some issues that will not be resolved by pretrial conference and motions in liminie. Counsel can anticipate such issues that may come up at trial. Instead of relying on oral presentations, the thing to do is prepare a mini brief-a one page summary of the rules and cases that support your position. This minibrief has to be broadly enough written to summarize the law on the general point you suspect might be raised. Then when opposing counsel makes a move you can respond: "Your Honor, I have a memorandum on that point. " You then present a copy to the judge, opposing counsel and the court reporter and add orally whatever is necessary. Although you may have many you do not use, if you can whip two or three out during a trial you not only make your points with the judge and increase the odds of a favorable ruling, but you also have your opponent wondering: "How many more of tbose things am I going to bave to face?" You have anticipated "it" will go wrong and you have recovered from "it."

Reflections on World War II By Phillip Carroll It was a good war. Obviously, I mean this figuratively and only in a limited sense. It was a war that most of us who were of age and healthy would not have missed even if we had been given a choice. The sneak attack at Pearl Harbor was personal. The hand that held the dagger had stuck it into the back of its neighbor. Our enemies were evil and our survival as a free nation was at risk. Hollywood, the newspapers, and the radio pumped adrenaline into our glands by the gallon. A congenital spinal curvature destroyed my dreams of being a navy fighter pilot, and for a time I feared I would miss the action. That was unthinkable. I was ecstatic when, at age 18, I was drafted into the infantry. "That crooked spine will support a full field pack, soldier," they said. I was an expert typist, but I purposefully flunked the army's typing test to avoid being placed

behind a desk. The possibility that I would be killed never entered my mind - until later when it nearly happened. I was one of the lucky ones. About 400,000 of us never came home. If you want to know more about what it was like, read "The Good War" by Studs Terkel. Uncle Sam sent me to college on the G.!. Bill. Three months after graduation and admission to the Bar, I received my orders to return to active duty as an infantry platoon sergeant. North Korean forces were swarming down into South Korea and they had to be stopped. But this time, things were different. I was no longer just a dog face - I was a lawyer! We reservists who were recalled grumbled that we had discharged our duty. Let someone else do it this time. No sacrifices were being asked of our contemporaries on the home front. They were getting

rich. My innocence had disappeared. This was not a good war! Friends, there hasn't been a good one since. Again, I survived. 25,604 other American GI's did not. They say it's just a matter of being in the right place at the right time. All I know is that the Lord has been good to me. A half century after VE Day, I am enjoying the golden years. What a wonderful experience it has been to have lived during these times and in this great nation. I weep for my fallen comrades whose luck ran out. We must never forget the enormity of their sacrifice. They were so young. God bless them.

Editor's note: The author of this reflection on the occasion of the 50th anniversary of the end ofWorld War II leaves out the information he was a prisoner of war, following capture by the Germans.

41 ARKANSAS LAWYER SPRING 1995

Disciplinary EZRA EARL MAGLOTHIN, JR. Upon recommendation of the Supreme Court Committee on Professional Conduct, on December 12, 1994, the Arkansas Supreme Court granted the Committee's petition and ordered that Ezra Earl Maglothin, Jr. of Fayetteville, Arkansas be barred from the practice of law in the State of Arkansas and directed that Mr. Maglothin's name be removed from the list of attorneys authorized to practice law in this state. In July, 1994, the Committee caused a disbarment action to be filed against Mr. Maglothin in the Washington County Circuit Court. Among other things, the complaint alleged misuse of trust account funds, assisting another in the violation of the Model Rules, making false statements to third parties, dishonest conduct and commission of a criminal act. Subsequently, the Court granted summary judgment against the attorney and found that Mr. Maglothin had violated Rules 1.15,4.1, 8.4(a), 8.4(b) and 8.4(c). GENE E. MCKISSIC Gene E. McKissic, Pine Bluff, was issued a letter of reprimand for violation of Model Rules 1.3 and 1.4(a) as a result of a complaint filed by Willie Lee Rich. Mr. Rich alleged that he retained Gene McKissic to assist him in obtaining workers' compensation benefits. The day follo\ving Mr. Rich's initial interview with Mr. McKissic, Mr. McKissic wrote to Mr. Rich's

medical providers seeking medical reports. As time continued on, Mr. Rich did not hear from Mr. McKissic, and, messages to his office were not returned. A Prehearing Conference was requested by Mr. McKissic and scheduled for November 30, 1993. Mr. Rich was unaware of this request and setting. A questionnaire was required to be completed prior to the hearing. Mr. McKissic never contacted Mr. Rich about this questionnaire. Mr. Rich first became aware of the

Actions

questionnaire when he was provided his file from Mr. McKissic's office on March 28, 1994. Mr. Rich's questionnaire was evidently never completed since his claim was returned to the Commission's general file' section. On March 11, 1994, an Order of Dismissal was entered in the matter. Mr. McKissic said he conducted an interview of Mr. Rich about his workers' compensation claim on April 29, 1992. He stated that Mr.

Rich provided him \vith his version of the facts surrounding the injury, and, advised Mr. McKissic that compensability was being denied. Mr. McKissic said that he had deep concerns about accepting Mr. Rich's case because of the length of time since his injury and the notification of denial of his claim. He also states that he advised Mr. Rich that he would make no decision on representing him until he received and reviewed pertinent medical records. Mr. McKissic stated that he informed Mr. Rich it would be four to six weeks before he would receive all medical records and that Mr. Rich should contact him if he had not heard from him \vithin that period of time. Mr. McKissic said that he considered the claim as dead once he received the medical records. In his opinion, Mr. Rich's credibility was seriously in doubt. To the best of Mr. McKissic's knowledge, Mr. Rich came to his office on a Saturday morning, at which time Mr. McKissic explained his opinion of the matter in detail and the reasons he felt the claim could not be won. He also stated that Mr. Rich understood, and was also aware he was free to obtain other counsel. Mr. McKissic believed there was a possibility of Mr. Rich filing a fraudulent claim based upon his seeking social security benefits. He stated he did not hear from Mr. Rich again until October, 1993, at which time Mr. McKissic requested a hearing solely to preserve Mr. Rich's right to proceed if he so chose. After requesting the hearing, he stated he once again advised Mr. Rich that he

42 ARKANSAS LAWYER SPRING 1995

would not take any further action but would try to maintain his right to proceed should additional evidence develop. There was a prehearing conference on November 30, 1993, during which Judge Andrew Blood instructed Mr. McKissic to file a pre-hearing information questionnaire as soon as possible. The attorney said he told Mr. Rich that because of the long periods of inactivity he thought it was Mr. Rich's intent not to pursue this matter. Mr. McKissic stated even though he had not heard from Mr. Rich, he wrote the Commission on Fehruary 16, 1994, asking them to set this matter for a hearing to try to preserve the client's right to proceed. He stated that as of a telephone conference with Commission personnel on March 8, 1994, he still had not heard from Mr. Rich. He said it was apparent to the Court that Mr. Rich had no claim, so it was dismissed for failure to prosecute. Mr. McKissic denied having received messages from Mr. Rich. He also stated that Mr. Rich's claim that he "neglected [the client'sl case is as hogus and non meritorious as [the client's] claim that he injured himself on the joh." The attorney concluded his response by stating that he considered it his responsibility as a member of the Bar not to pursue this claim without additional evidence PHll..IP N. WILSON Philip M. Wilson, Little Rock, was issued a letter of caution for violation

of Model Rule 7.3(c) as a result of a complaint filed by James K Fraser. Mr. Fraser's wife, Beverly Jo Fraser, died as a result of injuries sustained in a motor vehicle accident on June 6, 1994. On June 14, 1994, a letter addressed to Mr. Fraser's deceased wife was received by Mr. Fraser. This letter was signed by Mr. Wilson and its purpose was to solicit representation. The outside envelope failed to contain the language "Advertising Material." Neither Mr., nor the late Mrs. Fraser, had any

Disciplinary family relationship with Mr. Wilson, nor had either of them had any prior professional relationship with Mr. Wilson. Mr. Fraser stated that this solicitation was most inappropriate since it was directed to his wife, based on the accident report, and the report clearly indicated her death. In his response, Mr. Wilson admitted causing the letter to be sent, and that it appeared the complainant's exhibits were correct. He stated that his firm does send the type of letters sent to Mrs. Fraser, but that his office does not request to review accident reports on fatalities. Mr. Wilson noted that his letter was sent without knowledge of a fatality, because the report he obtained was filed in the non-fatality section and later amended to reflect a fatality. He acknowledged his awareness of the requirement of placing the words "Advertising Material" on the outside of the envelope. The attorney stated that for a time there was a personnel change within his office which could have caused some confusion, but admitted that the responsibility was his. JOHN SKYLAR TAPP John Skylar Tapp, of Hot Springs, was issued a letter of reprimand for a violation of Model Rules 1.1, 1.3, 1.5(c) and 8.4(d) as a result of a complaint filed by James H. Kelloms. Mr. Kelloms said he hired Mr. Tapp in or around March, 1991, to represent him in relation to a motor vehicle accident which occurred in January 1991. A verbal agreement was reached whereby Mr. Tapp would handle Mr. Kelloms' case for 25 percent of the total recovered, but no written agreement was ever executed. In June of 1991, Mr. Kelloms met with Mr. Tapp to discuss the death of B.D. Meredith, the driver of the other automobile. Mr. Kelloms was concerned about how this matter would be handled since the death of Mr. Meredith. Mr. Tapp instructed Mr. Kelloms not to worry because there were three years in which to

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file a claim against the Estate of B.D. Meredith. He also told Mr. Kelloms that the Estate could not be settled, and on one occasion even told Mr. Kelloms it was against the law for the family to settle and close the Estate, and if they did so Mr. Kelloms could sue the attorney handling the Estate. Mr. Kelloms later discovered that the Estate was closed and all assets distributed. Mr. Tapp filed a cause of action against the Estate on December 30, 1993. This allowed Mr. Kelloms to receive the insurance proceeds, but he was barred from recovering against the Estate. Mr. Tapp denied representation of Mr. Kelloms began in March 1991. He stated his representation began in March 1992, after Mr. Kelloms became disenchanted with his first attorney. Mr. Tapp said he did visit with Mr. Kelloms in 1991, but he was not hired at the time. Mr. Tapp asserted Mr. Kelloms' statement about his verbal fee agreement is not totally correct. He stated he agreed to donate his one-third attorney's fees to Mr. Kelloms so he would recover more and not have to turn over the majority of his recovery to the Public Employee Claims Division. The attorney also stated that over the course of time, Mr. Kelloms became increasingly hostile to him and his staff. He acknowledged that not every telephone call was returned. He acknowledged no claim was filed with the Meredith Estate, because in his opinion it would have been pointless because of the lack of assets. The attorney maintained, that after Mr. Kelloms became extremely hostile, he filed the lawsuit on December 30, 1993, and, subsequently provided Mr. Kelloms with his file in late January 1994. Tapp was also issued a letter of reprimand for a violation of Model Rules 1.3 and 1.8(h) as result of a complaint filed by Jimmy L. Ducharme. Mr. Ducharme hired Mr. Tapp in

September of 1992 to represent him in a divorce action. On several occasions, Mr. Ducharme was the subject of contempt motions. Numerous times he was not informed of hearings scheduled upon these motions until immediately prior to the same. Various of the motions were based upon Mr. Ducharme's actions directly resulting from information and advice provided by Mr. Tapp. Mr. Ducharme also complained of his inability to make contact with Mr. Tapp and Mr. Tapp's failure to respond to his questions about the case. After the Court entered its Order regarding the property division, Mr. Ducharme requested that Mr. Tapp file an appeal. A Notice of Appeal was filed by Mr. Tapp on May 19, 1993, however, Mr. Tapp failed to file a new Notice after the Court entered its Order related to the opposing party's Motion For New Trial. This failure resulted in Mr. Ducharme's appeal being dismissed. The dismissal left Mr. Ducharme with no method to challenge the Court's property division decision. Following the dismissal, Mr. Tapp provided to Mr. Ducharme an agreement without advising him to consult with another attorney prior to signing it. The agreement contained certain obligations to be performed by Mr. Tapp, and Mr. Ducharme agreed not to bring a malpractice action against the attorney as long as the obligations were satisfied. Mr. Ducharme also stated that Mr. Tapp is in breach of the agreement. Mr. Tapp admitted being hired by Mr. Ducharme. He stated he represented Mr. Ducharme through conclusion of the divorce. He also admitted the decision was made to appeal the Court's ruling concerning an Ante-nuptial Agreement. The Notice of Appeal was filed on May 19, 1993, eight days prior to the Judge's Order denying the opposing party's Motion For New Trial. Mr. Tapp admitted failing to file a second Notice of Appeal, which resulted in the dismissal of Mr. Ducharme's appeal. Mr.

48 ARKANSAS LAWYER SPRING 19911

Disciplinary Tapp denied every other allegation made by Mr. Ducharme. He specifically denied that Mr. Ducharme was noL informed of pending motions as well as that Mr. Ducharme was unable to make contact with him. The attorney also denied that Mr. Ducharme was denied copies of documents pertaining to hjs mvorce action. Mr. Tapp further reiterated he filed the Notice in what he felt was a timely fasmon, only to be met by a rule of law that he considers to be "nothing but a trap for lawyers." He denied that Mr. Ducharme was not adyjsed to consult wjth another attorney regarding the agreement. He stated after he drafted the agreement, Mr. Pucharme took the agreement to another attorney to reyjew. A day or so later, according to Mr. Tapp, Mr. Ducharme returned with changes he wanted made. After the changes were made, he stated Mr. Ducharme again took it to he reyjewed by another lawyer and then

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it was signed. The attorney stated that he represented Mr. Ducharme for free before the Supreme Court related to Mrs. Ducharme's appeal, and that he was successful in hayjng the former spouse's appeal msmssed. He also denied breaching the agreement and asserted that he has pffid in excess of $10,000.00 in accordance with the agreement. G. GREGORY NIBLOCK G. Gregory Niblock, of Stuttgart, was issued a letter of reprimand for yjolation of Model Rules 1.1, 1.3 and 8.4(d) as a result of a complaint filed by Dora Lee McDaniel. Mrs. McDaniel llired Mr. Niblock to represent her on October 17, 1991, in connection with an accident she was involved in on December 21, 1990, in Mempms, Tennessee. Mr. Niblock filed a Complaint on Mrs. McDaniel's behalf in St. Francis County, Arkansas, on December 11, 1991. After mscovering that one of

the defendants had med, Mr. Niblock filed an Amended Complaint during March, 1992. Later in March, 1992, Mr. Niblock served the remffining defendant, City of Memprus, with these pleamngs. After receiyjng the City of Memphis' Special Appearance Contesting Jurismction, Mr. Niblock filed a Motion To Transfer in an effort to have Mrs. McDaniel's action transferred to Tennessee. An Order To Transfer was never entered. After several conversations in whjch Mr. Niblock indjcated Mrs. McDaniel should withdraw her file from him, she did so on September 17, 1993. On February 28, 1994, the St. Francis County Complaint was msmSSed for lack of prosecution. The statute of liInitations had expired in Tennessee by the time the Complaint and Amended Complaint were served. The fajjure to file the action in the proper jurisdiction left Mrs. McDaniel wjth no recourse or reme-

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44 ARKANSAS LAWYER SPRING 1995

Disciplinary dy in this matter. Mr. Niblock admitted Mrs. McDaniel retained him on October 17, 1991. Based upon his knowledge of the one year statue oflimitation in Tennessee, he stated efforts were made to hurriedly file a complaint prior to expiration of the statute of limitation. He also stated that in the rush of filing the Complaint, he failed to consider the issue of jurisdi.tion. Mr. Niblock states that after receiving the Special Appearance Contesting Jurisdiction from the City of Memphis, he consulted a Tennessee attorney regarding Mrs. McDaniel's claim and about the possibility of intervening in a companion case arising out of the same accident. Mr. Niblock also indicated that it was Mrs. McDaniel who initiated conversations about dropping her case. He further averred that he forwarded to the Tennessee attorney Mrs. McDaniel's medical index and a

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demand for settlement to be forwarded to counsel for City of Memphis in May of 1993. The attorney's response also contained the information relating to his request of Judge Oily Neal to enter an Order transferring Mrs. McDaniel's action to Tennessee. Mr. Niblock continued to correspond with the Tennessee attorney until he received Mrs. McDaniel's September 17, 1993, letter relieving him of any further responsibility. His response concluded with an apology to Mrs. McDaniel, the Committee and the Bar, along with a statement concerning his embarrassment over filing the cause of action in the wrong jurisdiction and being unable to bring Mrs. McDaniel's legal matter to an acceptable resolution.

7.2(d) as a result of a Complaint Before The Committee. The Complaint Before The Committee alleged that Mr. Pendowski's advertisement for Juvenile Law contained in the 1994 Southwestern Bell Yellow Pages failed to include the name of at least one lawyer responsible for its content. Mr. Pendowski stated in his response that he was ignorant of the requirement of the Model Rules when he prepared the complained about advertisement in August of 1993. He further stated that when he became aware that it was a violation, it was too late to do anything since the yellow pages went to press in October of 1993.

ROBERT J. JOHNSON THOMAS JOHNPENDOWSID Upon recommendation of the Thomas John Pendowski, North Supreme Court Committee on Little Rock, was issued a letter of Professional Conduct, on January caution for violation of Model Rules 17, 1995, the Arkansas Supreme

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Disciplinary Court accepted the surrender of the license of Robert J. Johnson, Cro sett, to practice law in the State of Arkansas and directed that Mr. Johnson's name be removed from the list of attorneys authorized to practice law in this State. Based upon a formal complaint against the attorney arising out of a bankruptcy proceeding in which the Bankruptcy Court found that Mr. Johnson, through legal representation and business association, defrauded a client of certain funds, and upon Mr. Johnson's entry of a plea of guilty in the U.S. District Court for the Southern District of Texas to a felony charge - conspiracy to commit bank fraud, he elected to surrender his law license in lieu of formal disharment proceedings. Mr. Johnson's petition for surrender admitted violation of Rules 1.4(a),(b), 1.8(a)(b), 1.15(a)(h), 5.3(c) and 8.4(a)(bXc)(d).

G. ROBERT DITI'RICH G. lWbert Dittrich, Stuttgart, was issued a letter of caution for violation of Model Rule 3.4(c) following a public hearing on January 20, 1995, upon the complaint of Jill Barber. Based on the affidavit of Mrs. Barber and from her testimony at the hearing, it was learned that Mr. Dittrich and Mrs. Barber had a working relationship as well as a social relationshi p stemming from her former em ployment with the circuit courts. In 1986, Mrs. Barber developed Temporal Mandible Joint Syodrome (TMJ) as a result of a car accident. Mr. Dittrich agreed to write a letter to the insurance company in an effort to negotiate a settlement. When the statute of limitations was close to expiring Mr. Dittrich filed a lawsuit. Later, interrogatories were filed and served on Mr. Dittrich. Over a year later the interrogatories had not been answered and a Motion To Compel was granted. Another set of interrogatories were served on Mr. Dittrich, but neither set was ever answered in spite of the judge's

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order. Finally, in 1993, settlement negotiations began. Mrs. Barber testified that she never discussed fees with Mr. Dittrich and she thought Mr. Dittrich was pleased to do this work for her free of charge since, as a court reporter, she had done so much for Mr. Dittrich. Eventually, a settlement amount was negotiated and in March of 1993, Mrs. Barber received her releases. However, they were not correct and she refused to sign them. On April 6, corrected releases were signed and executed. Two months passed and Mrs. Barber had not received the proceeds and in midJune Mr. Dittrich asked Mrs. Barber what she thought about him retaining ten percent as a fee. Mr. Dittrich was referred to her husband, but contact with him was not made. On July I, a check was received by Mrs. Barber, but it appeared to her that Mr. Dittrich had, in fact, deducted ten percent. Mrs. Barber was concerned because she had never seen or endorsed the drafts. She stated that Mr. Dittrich had no authority to endorse the drafts on her behalf. Mr. Dittrich testified that Mrs. Barber had told him that she wanted policy limits and his fee paid. He averred that he told the Barber's he would not charge a fee, only costs and expenses, if the only offer received was unacceptable, to which they agreed. In January of 1993, he testified he had a verbal agreement to accept a particular amount if offered. Subsequently, a larger settlement offer was received and accept-

ed. He testified he did have the drafts for approximately three months because he was deciding what to do about a fee. Eventually, he unilaterally decided to retain ten percent as a fee and did endorse the check, "Jill Barber, by her attorney Robert Dittrich." Mr. Dittrich did this believing that Mrs. Barber had agreed in January to accept a certain minimum settlement. With respect to the interrogatories, Mr. Dittrich testified that following a discussion with Mrs.

46 ARKANSAS LAWYER SPRING 1995

Barber, a decision not to file responses was made because she needed to prevent a trial setting for as long as possible in order to allow for maximum healing time. It was felt that when responses to the interrogatories were filed, an early trial setting would be forthcoming. Therefore, the strategy was to avoid any trial setting by failing to submit answers in an effort to assess Mrs. Barber's past, present and future medieal expenses. GUY HAMILTO JONES, JR. Upon the recommendation of the Supreme Court Committee on Professional Conduct, on Fehruary 13, 1995, the Arkansas Supreme Court accepted the surrender of the license of Guy Hamilton Jones, Jr., of Conway to practice law in the State of Arkansas and directed that Mr. Jones' name be removed from the list of attorneys authorized to practice law in this State. Upon a formal complaint against Mr. Jones arising out of his bankruptcy proceedings in which the Bankruptcy Court denied the bankrupt's discharge upon a finding of a clear pattern of untruthfulness, fraudulent conversion and violation of federal law on his part, Mr. Jones elected to surrender his law license in lieu of formal disbarment action. His petition for surrender admitted violation of Rules 3.3(aX1) and (4), 8.4(c) and 8.4(d). DAVIS HENRY LOFfIN Davis Henry Loftin, West Memphis, was issued a letter of reprimand for violation of Model Rules 1.3 and 8.4(d) following a public hearing on March 17, 1995. The complaint was a result of a per curiam opinion. The per curiam opinion issued September 19, 1994, related back to the Supreme Court curiam of July 18, 1994, wherein Mr. Loftin was ordered to appear before the Court to show cause why he should not be held in contempt for failing to file a

Disciplinary record and brief in the appeal of Robert Lee Jones. In Mr. Loftin's response to the Supreme Court, he conceded he had filed a notice of appeal, but, he never filed a motion to withdraw, nor took any further action to perfect or lodge a record in the matter. Therefore, the Court held that he remained attorney-of-record and responsible for representing appellant on appeal. The Arkansas Supreme Court found Mr. Loftin in contempt and, in fixing the fine, the Court stated that they considered, among other factors, his previous failure to lodge a record after having filed a notice of appeal in another matter. Mr. Loftin testified he previously was employed by the Crittenden County Public Defender's office where he was subjected to a substantial and practically unmanageable workload. It was through that office that Mr. Jones became his client, but the lawyer left the office after the entry of the judgment of conviction. Mr. Loftin testified that, following Mr. Jones' conviction, he discussed with him all the possible consequences of an appeal and suggested that he should take some time to decide whether or not to pursue an appeal, The notice of appeal was filed to protect the client's rights. In the meantime, Mr. Loftin left the public defender's office, and by special contractual arrangement with that office took some cases with him, including this appeal. He learned that Mr. Jones was no longer being held in the county jail, but did not know whether he was out on bond or in the Department of Correction. However, he took no steps to determine whether or not to pursue the appeal, to withdraw as counsel of record or to dismiss Mr. Loftin apologized to the Committee for his failure to file a written response to the complaint and stated that he had improved his calendaring system to avoid recurrence of this situation.

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FRANK E. SHAW Frank E. Shaw, Conway, was issued a letter of reprimand for violation of Model Rules 1.3, 1.4(a) and 8.4(d) following a public hearing on March 17, 1995, as a result of a complaint filed by Charles T. Swafford. In his affidavit of complaint, Mr. Swafford stated that he and his wife filed a complaint in Small Claims Court. When the defendants hired counsel and had the case transferred to the civil division, the Swafford's hired Mr. Shaw to appear in court on their behalf. The Swafford's agreed to do all the administrative work and they paid Mr. Shaw for any necessary court appearances. The Swafford's prepared interrogatories and responded to interrogatories served on them. On October 13, 1993, they delivered a copy of their responses to Mr. Shaw and requested an early court date. However, they did not know and Mr. Shaw did not

tell them that one week earlier, on October 6, 1993, their complaint was dismissed without prejudice. In December, 1993, motivated by a lack of communication, Mr. Swafford averred that he insisted on a meeting during which Mr. Shaw stated that he would determine how to reopen the case or would make financial compensation. However, two months and four letters later, the Swafford's had no communication from Mr. Shaw. At the hearing Mr. Shaw testified that he had financially compensated the Swafford's and that they were "still friends." Mr. Swafford corroborated those statements and indicated if permitted, he was willing to withdraw his complaint. Mr. Shaw stated the court date was missed because of an inadequate calendaring system that had since been updated. His testimony was that he did respond to Mr. Swafford's letters,

47 ARKANSAS LAWYER SPRING 1995

Disciplinary but verbally, not in writing. Finally, he stated procedures are now in place to avoid this type of situation in the future. ZACHARY P. MUNCY Upon recommendation of the Supreme Court Professional Conduct, on March 27, 1995, the Arkansas Supreme Court accepted the surrender of the license of Zachary P. Muncy of Searcy to prac路 tice law in the State ofArkansas and directed that Mr. Muncy's name be removed from the list of attorneys authorized to practice law in this State. Upon a formal complaint alleging that Mr. Muncy had mishandled certain estate funds, made false state路 ments to a tribunal, disobeyed an obligation to a tribunal, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, Mr. Muncy elected to surrender his license in lieu of formal disbarment action. His petition for surrender admitted violation of Rules 1.15(aXb), 3.3(aXll and (4), 3.4(c) and 8.4(c).

WEBSTER LEE HUBBELL Upon recommendation of the Supreme Court Committee on Professional Conduct, on April 24, 1995, the Arkansas Supreme Court accepted the surrender of the license of Webster Lee Hubbell to practice law in the State of Arkansas and directed that Mr. Hubbell's name be removed from the list of attorneys authorized to practice law in this State. Mr. Hubbell elected to surrender his law license in lieu of disbarment proceedings following his entry of a plea of guilty in the U.S. District Court for the Eastern District of Arkansas to felony charges of use of the mails to defraud and an attempt to evade taxes. In his petition for surrender, Mr. Hubbell admitted violation of Rules 8.4(h) and 8.4(c). A . WAYNE DAVIS A. Wayne Davis, Little Rock, was

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issued a letter of caution for violation of Model Rules 1.3 and 8.4(d) as a result of a per curiam opinion by the Arkansas Supreme Court. The Complaint before the Committee arose out of information provided in a per curiam order entered by the Arkansas Supreme Court on December 5, 1994. Mr. Davis' client, Mark Thomas Stout, was convicted on January 24, 1994. The next day Mr. Davis filed a notice of appeal. At the time he filed the notice, the transcript had not been ordered. Six months after Mr. Stout's conviction Mr. Davis ordered the transcript. The transcript was then completed on August 16, 1994, but Mr. Davis did not send payment for it until October 11, 1994. After receiving the transcript he did not file the motion for rule on the clerk until November 18, 1994, resulting in another delay in Mr. Stout's appeal process. Although Mr. Davis did receive the formal complaint from the Committee and was granted an extension of time within which to respond, he failed to do so. Davis was also issued a letter of reprimand for violation of Model Rules 1.3, 3.4(c) and 8.4(d) as a result of a per curiam opinion by the Arkansas Supreme Court. Mr. Davis' client, Ivan Floyd Pipkin, sought to appeal his criminal conviction. Mr. Davis failed to timely file a brief. A Master was appointed by the Arkansas Supreme Court to determine whether he had a meritorious defense to his failure to file a brief. This hearing was on December 21, 1994. At the hearing Mr. Davis admitted being the attorney of record and being solely responsible for filing the brief. He stated that he was out of town the date the brief was due, July 5, 1994, but that he had dictated a petition for an extension of thirty (30) days with instructions that the brief be filed on that date. However, the petition for an extension was not timely filed. Mr. Davis presented no further evidence of any effort to tender or obtain per-

48 ARKANSAS LAWYER SPRING 1995

IOlsslon to file an untimely brief. Further, he admitted receipt of the notice from the Clerk advising him that no brief was filed and requesting a response. Mr. Davis testified that he did call the Clerk, who was out, but he did not call again. His testimony was that the brief was almost complete and it would be tendered to the Clerk on December 27, 1994. As of January 9, 1995, no brief had been tendered. Mr. Davis accepted full responsibility and added that because he was a sole practitioner he "simply could not get it prepared." The Court found that Mr. Davis mismanaged his client's affairs and demonstrated an inability to fulfill his obligations to the Court as well as his commitment to the Master that he would have the brief filed by December 27. Consequently, Mr. Davis was held in contempt of court for failure to comply with the Court's orders. Mr. Davis failed to respond to the Committee after being duly served.

G. LEROY BLANKENSHIP G. Leroy Blankenship, Batesville,

was issued a letter of reprimand for violation on Model Rules 1.5(c), 1.9(a) and 8.4(d) following an evidentiary hearing as a result of a complaint filed by Stu Brown. In his affidavit of complaint, Mr. Brown stated that he began receiving chiropractic treatment following a car accident in which he was injured. He hired Mr. Blankenship because he was not receiving timely

compensation from the insurance company for his medical treatments. According to the client, Mr. Blankenship received a settlement draft which Mr. Brown did not endorse. Mr. Brown did not believe the check was depo ited to a trust account. He stated further that when he went to Mr. Blankenship's office to collect his share of the settlement, he was advised by Mr. Blankenship's secretary that the doctor had been paid directly by the insurance company. Mr. Brown averred that,

Disciplinary although he believed the matter was concluded, he was served with a Writ Of Garnishment because the doctor had not been paid. He stated that this was his first notice that the doctor had not been paid and that a judgment for the unpaid balance had been obtained. His surprise was compounded by the fact that Mr. Blankenship and his firm represented the doctor in this colIection matter. Mr. Blankenship's affidavit and testimony at the hearing took issue with the accuracy of Mr. Brown's allegations. Mr. Blankenship's testimony as well as the affidavit of his secretary stated that Mr. Brown did endorse the settlement draft which was deposited into the attorney's trust account. At that time Mr. Brown told Mr. Blankenship's secretary he preferred to pay the doctor himself. Mr. Blankenship's secretary averred that she did not tell Mr. Brown that the insurance company had directly paid the doctor. Mr. Blankenship recognized that, perhaps, the use of a settlement statement would have prevented this misunderstanding. However, testimony at the hearing revealed that there was no settlement statement provided to tbe client as contemplated by the Rules. Rather, one year later in a letter to another attorney, Mr. Blankenship handwrote the amount of the settlement and the balance after subtracting his fee and expenses. Mr. Blankenship testified that Mr. Brown should not have believed the matter was concluded. Following completion of the personal injury action, the attorney's secretary made efforts to have the doctor paid by sending letters on his letterhead to Mr. Brown. Later, Tim Weaver, an attorney in his office, sent a colIection letter to Mr. Brown. However, the copies he provided to the Committee were not on his letterhead. Mr. Blankenship explained that was because Mr. Weaver still uses carbon paper and the retained

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copy is not on letterhead stationery. When Mr. Brown failed to respond to the collection letter, a Complaint and Affidavit Of Service was filed. Subsequently, a Judgment was obtained. Following the issuance of the Writ Of Garnishment, Mr. Blankenship obtained an Order allowing him to withdraw as counsel for the doctor. In the Motion To Be Relieved As Counsel, he cited his previous representation of Mr. Brown in a related matter as grounds for withdrawal. PAUL MARK LEDBE'ITER

Paul Mark Ledbetter, Memphis, Tennessee, was issued a letter of caution for violation of Model Rules 7.5(a) and 8.4(c). In the course of an investigation by the Board of Professional Responsibility of the Supreme Court of Tennessee, it was learned that Mr. Ledbetter's name appeared on a law firm letterhead whose address is in Memphis, Tennessee. Two asterisks appeared next to Mr. Ledbetter's name denoting that he is "also licensed in Arkansas." By his name appearing on the letterhead, the location of the firm in Memphis and the use of the word "also" in denoting his licensure in Arkansas, Mr. Ledbetter implied he was licensed to practice law in Tennessee, as weII as in Arkansas. However, Mr. Ledbetter only recently applied for admission to the Bar of Tennessee. The appearance that he was practicing law in Tennessee has existed for several years. For Mr. Ledbetter's response, he stated that the wording on the letterhead could have been misleading given the location of his office; however, the letterhead has been corrected, although it should have been corrected much earlier. He added that he had procrastinated in obtaining his license in Tennessee, but has always been a qualified candidate. Finally, he stated that the allegations made in the complaint are similar to the allegations made in

Tennessee which had been resolved by agreement. BERT N. DARROW Bert N. Darrow, Cabot, was issued a letter of caution for violation of Model Rules 1.3 and 1.4(a) as a result of a complaint filed by Robert J. McCullough. In his affidavit, Mr. McCullough averred that Mr. Darrow was hired based on his advertisement stating that he handled Social Security Disability Claims. During the representation Mr. Darrow was sent a Notice of Reconsideration on both the Disability Insurance Benefits Claim and the Supplemental Security Income payments claim by the Social Security Administration. These were notices denying Mr. McCulIough's claim and advising him of the time limitation for appeals. Mr. McCulIough and his wife phoned Mr. Darrow several times for a status report on the appelIate hearing only to be told that he had not yet heard anything. Finally, after about one year, they contacted the Social Security office and learned that Mr. Darrow never requested a hearing and the file had been "closed." When Mr. McCullough next contacted Mr. Darrow he was unable to determine why Mr. Darrow failed to request a hearing, terminated his services and had his wife retrieve his file. Mr. McCullough is attempting to pursue an appeal. Mr. Darrow stated in his response that although the appropriate forms were completed and mailed, he never received any notice of denial. He added that, to the best of his knowledge, he first learned of the Notices Of Reconsideration when he read Mr. McCullough's affidavit. Additionally, he stated that during no phone conversations with the McCulIough's did they mention that they had received any notices denying benefits and/or payments. Finally, Mr. Darrow stated that, with hindsight, he could have been more diligent, but denied any viola-

49 ARKANSAS LAWYER SPRING 1995

Disciplinary tion regarding commurrication.

THOMAS A. POTIER Thomas A. Potter, Texarkana, Texas, was issued a letter of reprimand for violation of Model Rules 1.3 and 8.4(d) as a result of a per curiam from the Arkansas Supreme Court. The complaint was based on a per curiam delivered by the Arkansas Supreme Court on October 31, 1994. Related to this per curiam was the October 3, 1994, per curiam which ordered Mr. Potter to appear and show cause why he should not be held in contempt for failure to file an abstract and brief for appellant, Frank Williams, Jr. The Supreme Court granted his Motion To File A Belated Brief, and he filed the same subsequent to the show cause hearing. At the hearing, Mr. Potter entered a plea of guilty to the contempt order. After hearing his offer of mitigating circumstances, the

Court imposed a fine of $250 for failure to timely file an abstract and brief. In Mr. Potter's response, he began by explaining that he was one of the Public Defenders for Lafayette and Miller Counties. He also explained his responsibilities as such. He acknowledged that it was in his capacity as Lafayette County Public Defender that he was appointed to represent Frank Williams, Jr. He stated that following Mr. Willjams' convictions, he filed a timely Notice Of Appeal and obtained an Order from the trial judge extending the time to file the trial court record. He asserted that because of his extensive caseload, he was required to request numerous extensions, and was given a final deadline of July 29, 1994, which he admittedly did not meet. He continued his response with the various mitigating circumstances offered to the Court. He related not only the caseload of the Public Defender's office in both counties but also all the measures he took with respect to Mr. Williams' appeal,

Actions

as well as the time spent on the appeal. He then discussed his hectic work schedule. Additionally, Mr. Potter asserted that he did act with diligence on behalf of Mr. Williams, but he was stretched to the limit in his capacity as an attorney. In concluding his response, Mr. Potter stated that in reviewing the final draft of Mr. Willjams' brief, he discovered an omission of a portion of an argument. He stated he was unable to locate this portion of his argument so he canceled his charter flight to Little Rock thereby failing to meet the time deadline. DAVID M. CLARK David M. Clark, Batesville, was issued a letter of reprimand for violation of Model Rules 1.3 and 8.4(d) as a result of a complaint by Gregory W. Nail. Mr. Nail stated that in March of 1990 he was convicted of manslaughter and was sentenced to ten years in the Arkansas Department of Correction. Mr. Clark was his attorney at trial and advised the court of his intent to appeal. For three years Mr. Nail believed that Mr. Clark was pursuing the appeal. Mr. Nail averred that Mr. Clark made such statements as, "I'm working on it" and "I'm waiting on an answer now." Mr. Nail eventually contacted the Clerk's office and learned that no Notice Of Appeal was ever filed. He then petitioned for a Writ Of Habeas Corpus in federal court and has been appointed an attorney who is appealing his conviction. Mr. Clark stated that Mr. Nail was charged with first degree murder, that he did represent him at trial and he was convicted of manslaughter. Following his conviction, Mr. Nail's probation of another sentence was revoked. Mr. Clark averred that the revocation was of an illegal sentence. Mr. Clark and Mr. Nail decided that Mr. Nail, acting pro se, would appeal the conviction upon which the revocation was entered rather than the manslaughter con-

50 ARKANSAS LAWYER SPRING 1995

viction. Mr. Nail was successful in having the earlier conviction set aside. Mr. Clark stated that he assumed, at that point, that Mr. Nail no longer needed his services and closed his file. He stated, in conclusion, that had he understood Mr. Nail wanted to appeal his manslaughter conviction, he would have filed a Motion For Rule On The Clerk. CLAUDELL WOODS Claudell Woods, Magnolia, was issued a letter of reprimand for violation of Model Rules 1.1, 1.3, 1.4(a), 3.4(c) and 8.4(d) as a result of a per curiam order. The complaint which was before the Committee arose out of two per curiams delivered by the Arkansas Supreme Court. The initial per curiam was based on Undra Sumlin's Pro Se Motion For Rule On The Clerk. After his conviction January 13, 1993, Mr. Sumlin informed Mr. Woods that he wished to file an appeal. Mr. Sumlin stated that Mr. Woods informed him his duty was over and he was not required to file an appeal for him. Mr. Sumlin was also told by Mr. Woods that if required to file a brief, he would file only a "No-Merit" Brief. Mr. Woods did file a Notice Of Appeal two days prior to the expiration of time for doing so. Mr. Sumlin repeatedly requested information about his appeal as did his parents. On one occasion, Mr. Woods told Mr. Sumlin's parents that it was a failure on the part of the trial court which led to the delay of the appeal. At a subsequent show cause hearing before the Arkansas Supreme Court, Mr. Woods assured the Court that he would file a petition for Writ Of Certiorari and Brief within 60 days. Instead of filing this pleading, he filed a Motion For Belated Appeal. During further investigation of this matter, the court reporter affirmed that no transcript had been ordered as of August 17, 1994. In a second per curiam on this matter the Court

Disciplinary Actions/ Advisory Opinions treated his Motion For Belated Appeal as a Writ Of Certiorari so as to not cause any further delay for Mr. Sumlin. The Court also removed Mr. Woods from the case. In Mr. Woods' response, he admitted having been appointed to represent Mr. Sumlin in February 1993. He stated that he informed Mr. Sumlin he would file an appeal on his behalf He further acknowledged that the Notice Of Appeal which he filed contained a statement that a copy of the transcript was being ordered. In addressing the matters contained in the per curiams, he stated that he relied on information from the criminal law handbook in taking action on this matter. He also stated that over 90 days had elapsed before he realized he had to personally request a trial transcript. He also admitted his failure to closely read the appellate rules. Further, he acknowledged his failure to act promptly before the Arkansas Supreme Court. Additionally, he admitted to not responding to all of Mr. Sumlin's letters. He also stated that he did advise Mr. Sumlin's parents that it was his duty to file the necessary papers to perfect the appeal. He concluded his response with assuring the Committee that he now has a better understanding of appellate procedures. Woods was also issued a letter of reprimand for violation of Model Rules 1.1, 1.3, 1.4(a) and 8.4(d) as a result of a complaint by Brenda J. Young. In her affidavit, Brenda J. Young stated that on May 11, 1993, she was convicted of aggravated robbery and theft. Mr. Woods told her, on that date, that he would file a Notice Of Appeal for her. Beginning in June 1993, Ms. Young and her parents attempted numerous times to obtain information from Mr. Woods about the appeal. After a year without information from Mr. Woods, MS. Young filed a Pro Se Notice Of Appeal and a Pro Se Motion for Belated Appeal. The response by Mr.

Woods in relation to Ms. Young's Pro Se Motions contained his admission of neglect. Ms. Young's affidavit also averred that it was his admitted neglect which had led to the unnecessary and lengthy delay in processing her appeal. In his response, Mr. Woods admitted representing Ms. Young in May 1993. He also admitted filing a Notice Of Appeal and stating therein that a copy of the transcript was ordered. He also stated that his mistake was in relying on procedures found in a criminal law handbook. He also asserted that over 90 days had elapsed before he discovered it was his responsibility to request the trial transcript from the court reporter. A request by him for an extension of time was denied by the trial judge. He acknowledged his error in not reading the appellate procedures closely, and, in failing to act promptly in obtaining necessary relief from the Arkansas Supreme Court. He further admits his actions prevented a timely appeal. Additionally, he acknowledged not responding to all correspondence from Ms. Young, but asserted that he did inform Ms. Young's parents of his duty to file necessary papers to perfect an appeal.

Judicial Ethics Advisory Opinions Advisory Opinion #94-05 April 7, 1994

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that, where an attorney appearing before a judge is an announced candidate for the position of the judge, the judge must recuse even if no one before the court objects.

Committee stated that a judge is not disqualified from a case in which a subsidiary of AT&T is a party by the fact that the judge is the executor and one of the three beneficiaries of an estate that holds approximately 1,000 shares of an equity income fund about 18% of which is invested in AT&T. The issue before the court was whether a city had appropriately levied a franchise tax or fee. Noting that AT&T has one billion, three hundred million outstanding shares, the Committee concluded that the judge's relatively small share of the fund's relatively small investment in one of the world's largest corporations was a de minimis interest that did not require disqualification.

Advisory Opinion #94-09 January 20, 1995 In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may not serve on the ad hoc fund-raising committee of a local boys/girls club where the fund-raising will involve lobbying government officials.

Advisory Opinion #95-1 February 14, 1995 In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that judges may write letters of recommendation but must do so on personal stationery and that judges may permit their names to be used as references and may respond to an inquiry using judicial letterhead.

Advisory Opinion #95-3 March 16, 1995

In an advisory opinion, the Arkansas Judicial Ethics Advisory Committee stated that a judge may serve on the advisory committee of a public technical college where the committee recommends changes in Advisory Opinion #94-08 the college curriculum, assists in planning, supports the program at September 12, 1994 the local level, and offers suggestions In an advisory opinion, the to the college authority, and where Arkansas Judicial Ethics Advisory political activity is not anticipated. 51 ARKANSAS LAWYER SPRING 1995

James William Fulbright 52 ARKANSAS LAWYER SPRING 1995

Memoriam

What might have been: A tribute to J. William Fulbright By Bill On February 9, 1995, Arkansas lost one of its most influential politicians of the 20th Century. Senator James William Fulbright passed away in Washington D.C., leaving a legacy built of insight and idealism. This man, who was born in Sumner, Missouri on April 5, 1905 to Jay and Roberta Fulbright, entered politics for the reason our founding fathers had in mind when this country began. Fulbright's philosophy involved straight-forward, honest, tell-all tactics that set him apart from all other statesmen during his reign as U.S. Senator. The first of many Fulbright prophecies came in 1959 when he spoke about the growth of the Soviet Union. "The public opinion of the world will cause the Russian people to relinquish their control of the once free people of Poland and East Germany...... he said. "I do not believe that the Soviets desire to dominate the world as the Germans did... and I can see no reason why we cannot get along peaceably." It was Fulbright who voted against appropriations for another year of Joseph McCarthy's investigating committee. Fulbright stood alone in the 85-1 vote, while other senators skipped the vote, afraid to let their voices be heard. Fulbright's voice rose again during the deliberation of the Bay of Pigs operation. Fulbright said, "The Castro regime is a thorn in the flesh; but it is not a dagger in the heart." Once again, Fulbright's suggestion to stay away, proved to be correct. Fulbright's intellectual ways were found in Oxford, England, where as a Rhodes scholar, he graduated in 1928 and earned a Master's Degree in 1931. It was at Oxford

would not run for re-election. The fall of communism; the Bay of Pigs failure; the Kennedy assassination; and the Vietnam War. Major components of this country's history Glenn might have been different if our country's leaders had followed the where Fulbright said he first became lead of James William Fulbright. "intellectually curious." From ••• Oxford, Fulbright entered law school James M. McHaney at George Washington University James M. McHaney, of Little where he graduated second in his Rock, died in April at the age of 76. class in 1934. He then spent time as He was president of the Pulaski a law professor at George County Bar Association from 1968Washington and at the University of 98. He served as chief counsel to the Arkansas School of Law. In 1939, at Arkansas Department of Pollution age 34, he became the youngest uni- Control and Ecology for 25 years. He versity president in the United was secretary of the Little Rock States at the University ofArkansas. Committee on Foreign Relations, His political career began in 1943 in president of the Country Club of the House of Representatives. From Little Rock, president of the Little there he became the most famous Rock Club, and a member of the senator in Arkansas history, and one board of trustees of Roselawn that chaired the Foreign Relations Cemetery. Committee for 15 years. He is survived by his wife, Fulbright's only problem was his Marilyn Newsom McHaney; a home state. His continued support of daughter, Frances M. Allen; a brothstate's rights and segregation cost er, Col. Gailon McHaney; two sisters, him any chance of moving into the Virginia Thayer and Bette Bennett; White House. and four grandchildren. In fact, John Kennedy wanted him to be his Secretary of State, but John C. Finley Robert Kennedy knew that even if John C. Finley, Jr., of Ashdown, Fulbright never mentioned civil died in August. He graduated from rights during his tenure, his broththe College of the Ozarks in 1935, er's administration would always and the University of Arkansas Law have to answer to Fulbright's posiSchool in 1938. He practiced law in tion. Ashdown for 56 years and was the The plain fact is Fulbright would senior partner in the Finley and have never been elected in Arkansas had he chosen to speak against this Finley Law Firm. He served as State touchy subject. Representative from Little River It was Fulbright who, at a White House dinner party one month County in 1947-50, deputy prosecuting attorney in 1938-40 and secrebefore the assassination of President tary of the Little River County Kennedy, voiced concern about the Democratic Committee from 1953President's trip to Dallas. 68. Mr. Finley was veteran of World Perhaps Fulbright's strongest War 11, a member of the Arkansas opposition came with the Vietnam Bar Association, Southwest War. He tried to persuade the leaders Arkansas Bar Association, American of all countries involved to meet and Legion, Ashdown Masonic Lodge and discuss a way of peace. Lyndon First Baptist Church of Ashdown. Johnson and Secretary of State Dean He is survived by one son, John C. Rusk said no. It was shortly after Finley, III, of Ashdown, and one sisthis that Johnson announced he ter. 53 ARKANSAS LAWYER SPRING 1995

In Henry M. "Hank" Britt Former Garland County Circillt Court Judge Henry M. "Hank" Britt died in February. Britt graduated from the University of Illinois in 1947 and began his law practice in Hot Springs in 1948. After a stint as an assistant U.S. attorney for the Western District of Arkansas in Fort Smith for five years, Britt returned to Hot Springs to continue his private practice. Britt made an unsuccessful run at governor against Gov. Orval Faubus in 1960. He worked as Garland County Circillt Court Judge for 16 years. He also served in the U.S. Army from 1941 until 1946.

Memoriam

Harrisburg, died in February. Mooney was a graduate of Arkansas State University and the University of Arkansas School of Law. As a member of the Henry and Mooney firm, he was serving as public defender for Poinsett County and was a member of the Church of Christ. He was a member of the Poinsett County Bar Association. He is survived by his wife, Mrs. Connie Mooney; one daughter, Lauren Mooney; one son, Taylor Mooney; his mother, Mrs. Glenna Mooney; one sister, Mrs. Faith Coles; and his grandmother,

Mrs. Birdie Stotts.

William Purifoy William Irving Purifoy, of Little Rock, died in January. He was a retired lawyer who practiced in Arkansas, Loillsiana and Tennessee. He was an Air Force veteran ofWorld War II. He is survived by two sons, Wayne Purifoy and Bill Purifoy; one daughter, Dana Purifoy; one niece, Linda Greenlee; four great-nieces and nephews; and four great-great nieces and nephews.

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1995

Pro

Obviously, no price tag can be placed on the good works contributed by private attorney volunteers who provide pro bono legal assistance to those persons in need. However, in 1994, the value of services and contributions provided by private attorneys to lowincome clients through the state's organized pro bono programs exceeded $1,000,000. There is a great need for the provision of legal assistance to individuals who financially cannot afford to hire an attorney. Through the committed work of the seven legal services programs serving the state in conjunction with the dedication and pro bono efforts of the private bar, increasing numbers of single parents, children, working poor, physically and mentally challenged persons and elderly individuals living on extremely limited incomes are provided access to justice. Effective March 24, 1995 ~ Iy ljll8Arkansas-licensed attorneys were enrolled as members of an organized pro bono program. Our warm gratitude and appreciation are extended to the following attorneys who are active members of the state's established pro bono programs. By this Honor Roll the Arkansas Bar Association recognizes the following lawyers for their participation in organized pro bono programs across the state. Those programs represented by this Pro Bono Honor Roll are: The Arkansas Volunteer Lawyers for the Elderly, AVLE; VOCALS (Volunteers' Organization for Central Arkansas Legal Services) for Pulaski County, Jefferson County, Lonoke County, Faulkner County, Garland County, Saline County, Hot Spring County and Clark County; Pro Bono Panel of Ozark Legal Services; Legal Services of Northeast Arkansas Conflict Panel; and Twelfth Judicial District Pro Bono Program. Funding for these pro bono efforts is provided by the Arkansas Interest on Lawyers' Trust Accounts, 10LTA Foundation; the Department of Human Services, Division of Aging and Adult Services; and six Arkansas Legal Services Programs. In addition, some of the attorneys and law firms are fLnanciaJ contribu~ tors to CALS through their pro bono program.

Bono

1995 Pro Bono Honor

Roll ARKANSAS COl JNTY Russell Beny Robert Dittrich J. W.Green David Henry Carl Madsen David J. Manley Denni.8 MoLock ~Wcolm Smith Norman Smith

Asm,Ey COIINTY William Arnold James Barker, Jr. Gary Draper Herman Hamilton James Hamilton Reid Harrod BiJI HubbeU William Johnson

Sam Pope Paul Selby Timothy Tarvin Gayle Zimmerman BAXTER COUNTY

Jodi Carney Leo "Bud" Carney Mark Carney Kerry Chism Mark Cooper Rick Cooper Roy Dammer David Ethredge Van A. Gearhart Price Harned Frank Huckaba Jamoo C. "Jimmy" Johnoon Ronald Kincade Deborah A. Knox Roger Morgan Richard Nelson David Osmon Terry Poynter Ted Sanden Rick Spencer Judith Strolher Lane Slrotber BENTON COUNTY

Wayne Ackerman Oliver Adam.s William Alley Bruce Bennett John Blair Ronald Boyer Debbie Bradley Ray Bunch Uoyd BUlTOW Craig Campbell Michael Chase Greg Clark Jim Clark Curtis D. Clements 1'amra Cochran Victoria Cochran Jeff Conner Max G. Cooper Mark Corley Wesley A. Cottrell Warren Coulter Terry Crabtree Eldon Cripps Ca.sey Croxton

Honor

Dena C. Dicltinaon John Dodge Jerry Dossey Daniel Elrod Geo"pa Elrod John Elrod Dan Ford Mark Fryauf Anthony Fuller David Fuller David B. Fuller AlliBon Garrett Stephen Geigle Anne Gibbons George David George Charles L. Gocio Scott Greear C. J. Hardcastle William T. Haas RiWnl Hood Deborah Hudson Donald Huffman Blaine Jackson Jim Johnson Lewis B. Jones, Jr. Brad Karren Donald B. Kendall Eugene Kelley Ernest Lawrence Terry Lee Barbara Lingle Jim Lingle Ben Lipscomb Martha Londagin Ella Maxwell Long Rick Lorence James LufIman David Matthews Mark W. McBeth Michael McCauley Edwin McClure Ron McLaughlin Jay C. Miner Tom Morris Carrie Myers Doug Norwood J. Robin Pace Sam Reeves Geo~ Rhoads Robert. Rhoads Chris !loge", Stephen Sawyer Jay Saxton Mary M. Schneider DougSchnmtz John Scott John Skaggs Howard L. Sli.nk.ard Mike Spivey Richard J. Stocker Robert Teague Stephen Thomas Larry Thompson Thurston 'Mlompson Cyntb.ia Underwood Sallie Varner Bill Watlrina Timothy Monroe Weaver Ralph C. Williams Stephen Wood BOONE COl TNTY

Donald Adam.s Don Bishop Dan Bowel"8 Gail Inman Campbell Gene Campbell Scott Covington Brad Crawford

Roll

Doug Daniel Steve.n Davia Peter DeStefano Bill Doehier Deanna S. Evans Garvin Fitton Buford Gardner Jim Goldie Jame. Gresham Claude Jona Fred C. Kirkpatrick Thomu D. Ledbetter Johnny Nichols Richard Parker Jerry Pinson John Putman Ken Reeves Jim Sprott Michael Stubblefield KandyWebb Donald West Ernie Wright Van C. Younes BRADLEY COl TND"

Bruce Andenon Murray Claycomb BiU G. Wells CAI/HOllN COllND'

Mary Thomason CARROl ... COlINTY

Russ Atchley Kenneth Castleberry Kent Coney Gerald K. Crow William F. Douglas Alan Epley Lewis Epley Connie France Gary Holman Scott Jackson Stevan Vowell Wade Williams CHICOT COUNT)"

Robert Avery Laurie Bridewell Robert Bridewell Thomu Deen Don Glover James Haddock Kimberly J . Keller Joeeph Mauanti CLARK COUNTY

Rae Rice Perry CLAY COUNTY

Guy Brinkley Gue Camp David Copelin Gary Garland Robert Hall C. W. Knaul8 John Lingle Rick Rodery CI.EBIJRNE COlINTY

Stephen Choate Beverly Claunch Patrick Gardner Jeffery Hance Michael Irwin Rebecca Lynn Terry Lynn John Purtle Carl McSpadden

Leon Reed Lynn Skinner Tommy E. Smith Bryan Tilley CI/EVELAND COl JNT'i

Sanford Be8hear, Jr. COI.IJMBIA CQIJNT'( Ronny Bell

David Butler Carolyn J. Clegg Francia Crumpler W.A. Eckert Michael Epley Mike KinanI Jed Molleston David Price David Talley, Jr. CONWAy COIJNTY Scott Adams Michael Allison Mark Cambiano Ben Caruth Jeannie L. Denniston Steve Kirk Dale Lipsmeyer Lynn Plemmons Stephen Ralph Jim Rankin Bart Virden Howard Yates CRAIGHEAQ COUNTY

Joe Barrett Anthony Bartels John Barttelt John Beason Keith Blackman Jim Burton Keith Carle Jon Coleman Mike Cone Phlllip Crego Malcolm Culpepper J. David Daniel William Davidson Brent Davis Michael DeLoache Barry Deacon Warren Dupwe Scott Emerson Bill Etter Paul Ford Robert J. Gibson Michael Cott Barl>ara Hal8ey LeifHamman Wilham L. Howard P. Sanders Huckabee Curt Huckaby Christopher Jester Barry LaFarlette Glenn Lovett Richard Lueby James McCauley Lucinda McDaniel Paul McNeill Bryant Marshall Price Marshall C. D. Mitchell Donn Mixon Mike Mullally Ch.risPaul Brant Perkins Val Price Jeff Puryear David Rees

55 ARKANSAS LAWYER SPRING 1995

1995 Jeannette Robertson Bed Smith Paul Waddell Ralph Waddell Robin Wadley Mike Walden Phillip Wells Todd William.s Arion Woodruff CRAWFORD COl JNTY Phillip Bagby Fines Batchelor Gary Cottrell ChRrlea R nyPr, .Jr. Paul Cant Zed Gaot Martha Harriman Ray H. Hodnett Marvin Honeycutt Roger T. Jeremiah Michael J. Medlock Jan Nielsen Thurman Ragar, Jr.

CRrITENPeN COUNTY William Ayers MarcBaretz Kathleen Caldwell Ben Cole Jerry Coleman Chadd Durrett John Fogleman Donald Forrest Timothy Ginn James C. Hale Jim Johnson Davis Loftin Julie Menke Tom Montgomery Cecil B. Nance, Jr. Elton Rieves, IV Kent Rubens David Shelton J. Michael Stephenson Jan Thomas Richard R. West Ronald Wilson Stephen K. Wood Margaret Woolfolk CROSS COIIN1j" Joseph Boeckmann Robert Ford Kyle Hunter Jim Luker Jim Shaver Tom B. Smith PALI.AS COlIN1j" Mark Klappenbach Ronnie Phillips pESHA COUNTY Mark Drake Larry Dunklin Teresa French Kenneth Johnson David Stubbs pREW COlJNTY William Ball David Chambers William Daniels Katharine Day Cliff Gibson Hani Hashem David D. Hoffman non Rn~~

Pro

Sara Sawyer FAW,J{NER COlTNTY William C. Adkisson Matthew Adlong D. l"ranklin Arey

Richard W. Atkinson Rita B. Atkinson Amy Brazil William Clay (Bill) Bnu.il

Charles E. (Ed) Clawson Kenneth Fuchs Helen Rice Grinder Steve M. Harper George F. Hartje Clifford J. Henry Robert W. Henry Casey Jones Michael A. Maggio Michael L. Murphy Pamela S. Osment Kimberly M. Pavelko Lynn Frank Plemmons Jack L. Roberts Boyd L. Tackett Robert L. Thacker JeMe Thompson Friuie Vammen Kim Kelley Wiedower Tim D. Williams FRANKLlN COUNTY Stephen White Ernie Witt Neva Witt FID,TON COUNTY John Belew David Blair Leroy Blankenship Tom Garner Adam Harkey John Norman Harkey Bill HIl58 Paul Hopper Mark Johnson Larry Kissee nRn Orr DeWayne Plumlee John Purtle Keith Rutledge Jim Short Robert D. Stroud Tom Thompson Tim Weaver GARI.AND COlrNTY Margaret. Beam Danjel Becker Kenneth Breckenridge Janet L. Burtness David P. Cann Michael H. Crawford Kathy Cruz Jack W. Dickerson Terry P. Diggs Janie M. Evans Lance B. Garner Morse U. Gist W. David Goldman Richard L. Henry D. Scott Hickam Gary M. Lax Dan McCraw C. Burt Newell Charles R. Padgham T. B. Patterson Neil V. Pennick Donald Pullen Bryan Reis

Bono

Jerry M. Rephan Bryon Rhodes Donald R. Roberts Charlie Rudd Richard L. Slagle Stephany R. Slagle Eddie Spitzer Michelle Strause J. Sky Tapp William R. Wisely GRANT COUNTY Eddy Easley Robert Jeffrey Joseph Swaty

GREENE COUNTY Jeffrey T. Branch Robert Branch Mary Broadaway Roger Colbert Gregory Crow Don Denton Andrew Fulkerson Joe Holifield H. T. Moore John F. Muller Randy Philhours Daniel Stidham Robert Thompson Mike Todd Jon Williams Robert E. Young HEMf$]EAD COUNTY Kathleen Bird Al Graves Jim Pedigo Charles Walker Willia.m Randal Wright Tony Yocom HOT SPRiNG COlJNTY Phyllis J. Lemons Willie E. Perkins G. Christopher Walthall HOWARpCOUNTY Peter Darling Melinda Gilbert James Graves Terry Smith INDEPENDENCE

Tom Allen John Belew Steve Bell Leroy Blankenship Eric Hance Jeffrey Hance Josephine Hart Wesley Ketz John Purtle Keith Rutledge J. T. Skinner Chaney Taylor Tommy Thompson Gary Vinson Bill Walmsley Vickie Warner Tim Weaver IZARD COl JNTY C. B. Barksdale J. Scott Davidson L. Gray Dellinger Eric Hance Jeffery Hance

56 ARKANSAS LAWYER SPRING 1995

Honor

Roll Broce Harlan

Paul Hopper Michael Wayne Loggins David Miller Tim Weaver

Tim Parker Joe Perry

Guy Long

LINCOLN COUNTY Mark Binns

John Mays Mite-hd Moore

JACKSON COlJNTy Richard Allen Ed Boyce Henry Boyce Sam Bo,..,. Wayne Boyce Phil Hout Steve Howard Joe James James McLarty Leon Nicholson Marvin Thaxton Tim Watson Ronald Winningham

Odell Carter Victor Harper Veletta P. Smith

Janet Moore-Hart

LITTLE BNER 00lIN'IY Eric. T. Bishop Mickey Buchanan Jay Metzger

Hunter Williams

.JEFFERSON COUNTY Kenneth Baim David Bridgforth William C. Bridgforth William M. Bridgforth Kenneth E. Buckner Patrick A. Burrow F. Wilson Bynum Othello Cross Michael Dennis Judith DeSimone Don A. Eilbott Horace J. Fikes Sharon Fortenberry David Gunti William J. Harrelson Sandra Y. Harris Kyle Havner Ann Hill

Zenola M Hilliard Stephen A. Matthews James C. Moser, Jr. Wm Kirby Mouser Rosalind Mouser C. Mac Norton J. Slocum Pickell Leisa Pulliam Phillip A. Raley Greg Robinson Spencer Robinson Jan Scussel John T. Starling Joseph Strode Zachery Taylor Vashti Varnado Terry Wynne .JOHNSON COlINTY Len Bradley Iva Nell Gunn Jeffrey Levin William Pearson Roderick Weaver Bruce Wilson I.AFAYE'ITE COlTNTI William Magee LAWRENCE CO! INTY Larry Hayes Dick Jarboe Harry Ponder J. F. Sloan Larry Steele LEE COITNTY Dodd Daggett Jesse Daggett Robert Donovon

Brent Martin

LOGAN COUNTY Kevin Barham Herschel Cleveland David Cravens R. H. Hixson Wendy Wofford Johnson C. Richard Lippard Brian Mueller Coy Rush David Rush John Wtlliams Paul x.. WilliamJl Ernie Witt LONOKE COl JNTY Lori Hoggard Stephen Lamb Howard Martin James Rankin William Reed Edward C. Swaim MADISON COUNTY Bill All.-.d Joanna P. Boyles W. Q. Hall MARION COUNTY Judith Bearden Christopher Carter Kcnford O. Carter Kenneth Hall Michael Kelly Kenneth R. Smith MILLER COUNTY LeRoy Autrey Charles Decker Barnette Donald Capshaw James E. Davis Richard Dodson David Folsom Gregory Giles John GoodBon Demaris Hart Thomas Johnson Matt Keil Raritan Kemp Mary Helen Mitchell Thomas Potter William Roberts Charles Tilmon MISSISSIPPI COUNTY Walter Barton Mike Bearden Tom A. Bennett BiU Bracey John Bradley Leon Burrow Marvin Childers Robert Coleman Charles Ellis Oscar Fendler Lee Fergus

Richard Reid Daniel Ritchey Bill Ross Ralph Wilson, Sr. MONROE COUNTY Raymond Abramson David Carruth Steve Elledge Baxter Sharp MONTGOMERY COUNTY Bill McKimm NEVApA COl JNTY Danny Rodgers Glen Vasser NEWfON COl JNTY Thomas A. Martin George Stone OIJACH1TA COUNTY Eugene Bramblett Ralph GoUl Searcy Harrell DanielIves Edwin Keaton Robert Laney Paul Lindsey James Pratt Allen Roberts Jeff Rogers Benton Rollins Hamilton Singleton PERRy GOlJNTY Randolph Baltz Herby Branscum Lisa George PHllJJps COUNTY Charles Allen Kathleen Bell Louis Etoch Charles E. Halbert Durwood King Jesse Porter Charles B. Roscopf ChSTles David Roscopf Danny Schiemer Edward Schiemer David Solomon Sam Whitfield PIKE COlINTY Charles Yeargan POfNSETI COl JNTY Jimmie Dunlap L. D. Giblwl1 Steve Inboden Larry Jennings Kelley Webb POLK COUNTY Judy Baker Joe Hardegree Bob Keeter David Maddox Pal Page

1 9 9 5 Jerry Ryan Danny Thrailkill Tim Williamson POPECffiJNTy

Susan Allen Bunny Bullock Keith D. Coker Ken D. Coker, Jr. James Coutts James Dunham Jim Dunham David L. Eddy Jeff Faught Dale W. Finley Stephen Gardner David Gibbons Robert Hardin John Harris Kenneth Hodges Robert E. Irwin John L. Johnson Allen Laws Hugh Laws Ike Laws R. Bryant Marshall David McCormick Lorre Moore Carl Moyer Tim Murdock Richard Peel Jon Sanford Jonathan Shermer William F. Smith Anna Stiritz AJex G. Street WiJliam Swain John Van Kleef Susan Walker

PRAmIE COlINTY Robert Abney Keith Rhodes Anne Smith

Pl U ASKI COUNTY Leslie R.. Ablondi Greg Actin Douglas S. Adams Jim F.Adkins Erin B. Ahearn H. William Allen Mark H. Allison William G. Almand James M. Ammel Guy Amsler, Jr. Christopher D. Anderson Overton S. Anderson Phillip S. Anderson Richard Lance Angel Stephanie Houston Angel

Benjamin F. Arnold Jess Askew, II1 Michael E. Aud Brent Baber Joyce Bradley Babin Donald H. Bacon Nancy H. Bailey Rita F. Bailey Charles W. Baker Darryl E. Baker James C. Baker Stan Baker Les R. Baledge Dee Davenport Ball Wayne B. Ball Randolph Baltz Robert E. Bamburg

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...

P r

Coleen M. Barger J. Madison Barker Don K. Barnes Marcia Barnes W. Chris Barrier Thomas L. Barron Sherry P. Bartley Steve Bauman

Samuel R. Baxter W. Tom Baxter AJlison Graves Bazzel James P. Beachboard Paul B. Benham Keith I. Billingsley John Biscoe Bingham M. Stephen Bingham Garland W. Binns, Jr. Allen W. Bird, n William E. Bishop Clayton R. Blackstock Amy Bendos.ki Blackwood Tim Boe C. Tad Bohannon Richard Boling Barbara P. Bonds Michael D. Booker Sylvia Borchert Raymond E. Bomhoft David O. Bowden Arthur P. Bowen William Bowen Brian P. Boyce Valerie F. Boyce Lawrence J. Brady Cynthia J. Brandon Ellen B. Brantley Sam I. Bratton Brian Brown Charles A. Brown Joseph L. Brown Marilyn J. Brown Robert L. Brown Jack E. Browne Bettina E. Brownstein John A. Bryant C. Brantly Buck Randall S. Bueter C. Douglas Buford, Jr. Jane Burleson Kevin R. Bums James A. Buttry Randall L. Bynum Arlci.

Byrd

Robert D. Cabe John Calhoun, Jr. Joseph D. Calhoun, III Ken Calhoon Donald K Campbell, III George E. Campbell Howard G. Campbell Phillip W. Campbell Rick Campbell Sheila F. Campbell Paul Capps James Allen Carney G. Scott Caroom Phillip Carroll Daniel R. Carter Mark S. Carter Clarence W. Cash Meredith P. Catlett S. Graham Catlett Brad A. Cazort Robert M. Cearley Victoria Charlesworth Tim S. Cheatham John S. Cherry, Jr. Sandra W. Cherry lAwrence E. Chisenhall, Jr.

~-~--------

James C. Clark W.DaneClay Charles T. Coleman

Barry E. Coplin

W. W. Elrod

.-----

~~~~-~~~~~-

Lisa Ferrell Jack D. Files John W. Fink Hugh Finkelstein B. Dewey Fitzhugh Victor A. Fleming Scott D. Fletcher John A. Fogleman Judy R. Forester Grant E. Fortson Kent R. Foster Lyle D. Fosler Marsha Talley Foster Stephen Doak Foster Donald Frazier Randal B. Frazier Byron L. Freeland G. Spence Fricke William C. Frye Donna S. Galchus Price C. Gardner

Andrew L. Clark

Stephen C. Engstrom Gary L. Eubanks Herman W. Eubanks Robert M. Eubanks, II[ Audrey R. Evans Ann P. Faitz Jackson L. Farrow, Jr. John C. Fendley Todd Ferguson

Jana K Brown-Ch.ristian

Dorty K. Corbin M. Gayle Corley Garry J. Carrothers Robert R. Cortinez, 11 David A. Couch Nate Coulter Nancy KaY" Brooks Cound J. Lee Covington Ray F. Cox, Jr. Bryant K Cranford Kevin A. Crass Claiboume Crews Hugh E. Crisp Willis D. Cronkhite, III J. Bruce Cross Zimmery Crutcher, Jr. Stephen K Cuffman Sid C. Dabbs William M. Dabbs, Jr. Robert Danecki Ed. Daniel, IV Roland E. Darrow, n Mark D. D'Auteuil J. Mark Davis John A. Davis John D. Davis John Gary Davis Marva J. Davis Sleven R. Davis T. Martin Davis Bob Dawson Cynthia S. Dawson Rush B. Deacon Neil D. Deininger Betty J. Demory James M. Dendy Rebec<:a J. Denison James B. DePriest Sharrock Dermott Terri A. DeSio Stacey Allison DeWitt M. Jane Dickey W. H. Dillahunty Edward B. DiJlon, Jr. John A. DiPippa Philip E. Dixon Allen C. Dobson David Donovan Richard T. Donovan Darrell D. Dover James F. Dowden Richard C. Downing James H. Druff Winslow Drummond Timothy O. Dudley Larry G. Dunklin Treeca J. Dyer J. Benton Dyke Jack East, III Raymond Easterwood Walter M. Eoot Katherine D. Ehrenberg Byron M. Eiseman

---

I I

Richard A. Grant Kathlyn Graves O. Jerome Green Gena H. Gregory H. Watt Gregory, III Joseph W. Gregory William M. Griffin, III Ann Bilheimer Grimes Audrianna Grisham Mark W. Grobmyer Paul D. Groce Timothy W. Grooms Robert L. Gross Rita W. Gruber Wayne A Gruber H. Charles Gschwend, Jr. Karen D. Gulley Russell Gunter Susan G. Gunter Dawn Guthrie Michael E. Hale

John D.Garnett Garland J. Garrett. Deb Garrison Tammy B. Gattis Anna Hirai Gibson Melinda Gilbert John P. Gill W. Dent Gitcbel Roger A. Glasgow Tom Glaze Gilbert L. Glover Jim Glover Scott P. Goldsholl James F. Goodhart Arnold N. Goodman Kathy W. Goas Kenneth S. Gould Robert J. Govar David A. Grace William Lee Grace, Jr. Jeffrey M. Graham

U.l. _ _

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57 ARKANSAS LAWYER SPRING 1995

1995 John H. Haley

Don F. Hamilton Jim Hamilton Frank S. Hamlin Ralph C. Hamner, Jr.

Stuart W. Hankins Mildred H. Hansen Regina Haralson G. Robert Hardin John T. Hardin Karen Queen Hare Melva Hannon Ernest H. Harper, Jr. James Edward Harris James L. Harris Patrick C. Harris Sandra Y. Harris Paul E. Harrison Roger B. Harrod Mike E. Hartje, Jr. John T. Haskins Richard F Hatfield James E. Hathaway, III William D. Haught Steele Hays Floyd A Healy David Heasley Sarah J. Hemey Peter B. Heister Christopher J. Heller Donald H. Henry Judy S. Henry Paul Hickey Fran C. Hickman Basil V. Hicks, Jr. Carrol Hicks Charlee R. Hicks Sam Hilburn KathJeen A. Hillegas R. Steve Hix Gwendolyn Hodge Henry Hodges Alice Holcomb Cyril Hollingsworth Patrick E. Hollingsworth William Gary Holt Janan Kemp Honeysuckle Clifton H. Hoofman Paul Hoover Ronald A. Hope Gregory M. Hopkins Mariam T. Hopkins Randolph B. Hopkins Allan W. Home Bryan E. Hosto Mike Huckabay Lewis A. Huddle, Jr. Karen J. Hughes Richard L. Hughes Bruce P. Hurlbut Joseph B. Hurst James W. Hyden Annabelle Clinton Imber David L. Ivers Hermann Ivester George S. Ivory Donald T. Jack, Jr. Michael T. Jackson Stuart Jackson David Jacobs John H. Jacobs Patrick R. James William Owen James, Jr. Neal Jansonius Faber D. Jenkins Alston Jennings, Sr. Barry J. Jewell John M. Jewell W. Horace Jewell

Pro

Gary D. Jiles Karen Johnson Michael Johnson Michael B. Johnson Stephen N. Joiner Beverly Hood Jones Glenn W. Jones Jerry C. Jones M. Samuel Jones, III Stephen W. Jones Tonia P. Jones W. Wilson Jones Jim L.Julian Richard C. Kalkbrenner Philip E. Kaplan William B. Keisler Herbert W. Kell, Jr. Jana Kim Keller Glenn Eugene Kelley A. J. Kelly Walter A. Rendel, Jr. Kevin Wade Kennedy William H. Kennedy, III Judson C. Kidd Joseph E. Kilpatrick, Jr. John S. Kitterman David Knight Joseph F. Kolb John Kooistra, ill C. James Kubicek Peter G. Kumpe H. Baker Kurrus H. T. Larzelere Gail Laster Scott G. Lauck Richard L. Lawrence Jamcs Lawson R. Cb.ristopher Lawson Michael F. Lax Leland F. Leatherman Michael A. LeBouef Samuel E. Ledhctter T. Michael Lee Bob Leslie Jack L. Lessenberry Patricia Sievers Lewallen Todd A. Lewellen Harry A. Light Louis "Whit" Light John G. Lile Gary F. Liles Ruth Lindsey Lynn D. Lisk W. Kirby Lockhart Rita S. Looney Thelma M. Lorenzo Edwin L. Lowther, Jr. Robert C. Lowry Patty W. Lueken Patricia Stanley Luppen William P. Luppen S. Scott Luton Robert Lyford David Mackey Diane S. Mackey Harold W. Madden Jean M. Madden J. Phillip Malcom Jorry L. Malonc Drake Mann Cheryl K Maples William Marshall David P. Martin Everette L. Martin William A. Martin Everett O. Martindale J\.1ichael O. Massey Terry L. Mathews Diana Maulding

Bono

Jo Ann C. Maxey Nancy Bellhouse May Ronald May Walter E. May S. Hubert Mayes, Jr. Richard L. Mays Robin L. Mays Letty McAdams Martha Jett McAlister John M. McAllister J. Cal McCastlain Andrew J. McClurg Linda McCormick J. Van McCracken Charles D. McDaniel Jane Willbanks McFarlin Phillip A. McGough Mary Spencer McGowan Thomas H. McGowan Robert McHenry Josh E. McHughes Robert C. McKinney Kaye Hartenstein-McLeod James McMath Ben C. McMinn Marian McMullan Judy P. McNeil Keith Martin McPherson Walter McSpadden Henry N. Means, III Paul Means W. Russell Meeks, III David F. Menz Lance R. Miller Marie B. Miller Peter A. Miller Stuart P. Millcr Philip Miron David S. Mitchell H. Maurice Mitchell Michael W. Mitchell James G. Mixon Ark Monroe Orin E. Montgomery Edward O. Moody Dewey Moore, Jr. Jeffrey H. Moore John E. Moore Michael S. Moore Richard N. Moore, Jr. Jay Morgan H. Keith Morrison Lori A. Mosby Pamela A. Moseley Bobby Keith Moser Lee J. Muldrow Bruce Munson Charlotte Murphy Randy P. Murphy Steven Napper Sheffield Nelson Charles R. Nestrud

58 ARKANSAS LAWYER SPRING 1995

Honor

Margaret M. Newton Marshall S. Ney James E. Nickels A. WyckliffNisbet, Jr. W. Robert Nixon, Jr. Walter Nixon N. M. Norton, Jr. Alan J. Nussbaum Gene O'Daruel Michael C. O'Malley Bennie O'Neil M. Darren O'Quinn John Ogles Richard E. Olszewski Nina Orsini Henry J. Osterloh William D. Overstreet. William L. Owen William Adolph Owings JohnR. Pagan Steven J. Paris Donald L. Parker Michael O. Parker Terri S. Parnell Goodloe M. Partree Claibourne Patty. Jr. Walter A. Paulson, II John B. Peace B. Jefferey Pence James R. Pender Edward M. Penick, Sr. Suzanne Penn Mark Alan Peoples Pam Corker Percefull Fred M. Perkins Kathryn Bennett Perkins Liea G. Mathis Peters J. Slocum Pickell Mike Pickens Mackie M. Pierce Robert L. Pierce George Pike, Jr. Deborah I. Pipkins George N. Plastiras John B. Plegge Norvel N. Plowman Joe A. Polk Austin Porter Jr. David M. Powell Charles C. Price Dale Price Troy Price Willard Proctor, Jr. John E. Pruniski Mary J. Pruniski Michael James Ptak John I. Purtle Joseph H. Purvis Steven W. Quattlebaum Richard Quiggle Jo Ann C. Quirk Bill Rshn

Roll

Michael R. Rainwater Richard L. Ramsay Gordon S. Rather

Carrold E. Ray Middleton P. Ray, Jr.

Thomas Ray Michael Redden W. Michael Reif Charles W. Reynolds Steve Riggs

Anne P. Ritchey Lewis E. Ritchey

Richard W. Roachell Andree L. Roaf Elizabeth J. Robben Chet Roberts Judy M. Robinson Robert L. Robinson, Jr. William S. Robinson Gary B. Rogers

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1995 Pro Bono Honor Roll Judith Hogen Maurice Rogto:n Joann C. Rooeevelt Brian Roee.nthaJ FT8IlCe8 Roeenzweig

Joel Taylor Marcella J. Taylor Richard D. Taylor Randell Templeton

Robert D. Rosa Robe" R. Rooa

Lee Thalmeimer Jeffrey H. Thomas Peter O. Thomas, Jr. Thomas P. Thrash John R. Tisdale Jim Tilley Marti S. Toennies Alice M. Tot8Ch

Beverly A Rowlett Herbert C. Rule. III Amelia Russell G. Randolph SatWfield J. Scott Scha11hom AI Schay James Gerard Schulze 1... Howanl Schwander, ill 18aac A. Scott, Jr. Mary Davies Scott Frances E. Scroggins J. Fletcher See. ill John S. Selig Rick Sellars Frank B. Sewall Robert S. Shafer Michael N. Shannon Jacob Shatp, Jr. Jay F. Shell Kenneth R. Shemin W. Bradford. Sherman William F. Sherman Michael T. Sherwood Robin L. Shively Scotty M. Shively Robert Shults Steven T. Shults Shawn Sibley David E. Simmons James M. Simpeon James M. impeon Barry A. Sima Walter L. Skelton Rhonda K Slayden Graham F. Sloan R. Brannon Sloan Anne Oni Smith David Alan Smith Griffin Smith, jr. H Vann Smith Jim E. Smith Laura A Smith SimmofUI S. Smith Stan D. Smith Steven R. Smith Steve E. Snider M-ichael W. Spades C. Timothy Spainhour Carla G. Spainhour O.C,S.,.,u Hugh F. Spinks John William Spivey, III Ralph M. Spory, Jr. Logan Scott Stafford Paul Stanfield Douglas J. Stanley James W Stanley Amy Lee Stewart David Stewart Jean D.S~u~r Tom Stone O. H. Storey, III Paula J. Storeygard Sammie P. Strange, Jr. John C. Stratford. Gary L. Sullivan Patricia L. Summerville Sleven R. Sumsion Buddy Sutton Thomas J. Swearingen Gregory D. Ta,ylor Jimmy D. Taylor

William T. Terrell

Geoffi-ey B. Treece William H. Trice, III Walls Trimble James L. Tripcony Andree L. Trosclair Deborah K.. Truby David R Tn>seell Betty Tucker Jim Guy Tucker Kimberly Wood Tucker Scott Tucker John E. Tull, ill Diana Hamilton Turner Tab Turner Edgar J. Tyler Frederick S. Urse.ry Michael P. Vanderford Thomas C. Vaughan, Jr. Scott 1: Vaughn Larry D. Vaught Mart Vehik Kent Vestal William A Waddell, Jr. Guy Alton Wade Jack. Waaoner, ill William J. Walker Woodson D. Walker Mark N. Waller Keena V. Wamble Garry S. Wann Joyce Williams Warren Ralph Washington John Dewey Watson William Watt Richard N. Watts Ed Webb Jeffry A. Weber Raymond Weber Ann West Dana S. Wesl Frederick S. Wetzel Rhooda Mcl<mnis_ Bernard Whetstone Bud B. Wbetatone John Ray White tephen B. Whiting Stephen E. Whitwell Gordon M. Wilbourn Penny Brown Wilbourn Tony L. Wilcox James H. Willrina., Jr. A. Gene Williams Danny R. Williams David H. Williams Richard A Williams Stephen P. Williams Thomas G. Williams W. Jackson Williams J. Gaston Williamson Fran.k. J Wills David D. Wilson John C. Wilson Mike Wilson Philip M. Wilson Ralph R. Wilson Laura G. Wiltahire

Reba M. Wingfield Mary A Winze-rling Carolyn B. Witherspoon Donna J. Wolfe

RUM E. Wolff David J. Wood Fnld A. Wood Henry Woods William H. L. Woodyard,

ill Dean L. Worley

Matthew Keith Wren Edward L. Wright Herbert T. Wright, Jr. Robert R. Wright Susan Webber Wright Walter G. Wright, Jr. James W. Wyatt John C. WyvilI Gregory 1... Yeatman David Young RANDOLPH COUNTY Bob Castleman Richard L. Castleman Murrey Grider Kirl>y Riffel Philip G. Smith David Throeocb John Tbroesch FRANCIS COUNTY John Bridgforth Allen Cline Michael Easley Preston Hickey Philip Hicky Ann B. Hud.80n Knox Kinney James Miller teve Routon Harold Sharpe William Snowden

SAI.JNE COJINTY Ronald D. Jonee Meredith Wineland

SCOTI' COl1N1'X Donald Goodner Michael J. Hamby Matthew Ketcham Dan Nelson Wayland Parker, U James B. Pierce John Verkamp Bill Walterl SEARCY COUND" John Aldsworth Jerry Patterson SEBASTIAN COJINTY John D. Alford Dale Amold Jamee A. Arnold, rJ Jeff Atkinson Ben Barry John R. Beasley Bruce H. Bethell Robert Bishop Robert S. Blatt Michael P. Bradley Katluyo S _ Campbell Jerry Canfield Doulgas M. Carson Michael C. Carter Rex Chronister Orville Clift.

Eldon Coffman J Michael Cccbill Robert Cohen Craig L. Cook

Thomaa E. Robertaoo. Jr. David Ilogen Gill Roge...

Kenneth Cowan

Shelton Sargent Denn..i.s SbanoLto John Settle Stephen Sharum Timothy C. Sharum Randolph J. Shock Michael Shone Jack Skinner Douglas O. Smith Greg Smith Oscar Stilley Mike Stubblefield PhilJjp J. Taylor Gary Udouj David Vandergriff John Verkamp Wyman Wade Eugene A Wahl, Jr. Eddie H. Walker, Jr. Bill Walten Montgomery Watts Jan Whitt Bill W;ggm. Norman WLlkin.son Alan Wooten Michael Yarbrough

James Cox

Thomas L. Craft, Jr. Jan R. Cromwell Hal W. Davis Robert T. Dawson Judith L. Deason Ge.ald Delung Bruce Denney Jannell C. Dillon Troy Douglas Jim Dunn Davis Duty Leslie J. Evitts, III Christina Ferguson James R Filyaw Lawrence Fitting Michael Fitzhugh R. Ray Fulmer, II Lynn Manning Flynn

Dean Garrett PaulGean RoyGean Roy Gean, III Daniel Gilbreath E. C. Gilbreath Paul Giuffre James Haaser Michael J, Hamby Ronald D. Harrison David K.. Harp L. Cody Hayes William Hill Josef Hobean Stanley Mel Holleman Robert Hornberger Robert Hough Stephen G. Hough ABa Hutchinson Randolph Jackson Joel Johnson uaan Johnson Kendall B. Jones Robert Jones, ill Greg Karber Matthew C. Ketcham Naif Khoury Gary King Phil Kinsey Eileen Kradel William Kropp Spence A. Leamons Stanley Leasure John Alan Lewis Gregory Magness Patrick McCarty Joey McCutchen J. Randall McGinnis Stephen Meeh Phillip J. Milligan Rodney Mills David Moore Bennett Nolan James O'Hem Lows B. Paddock Wayland Parker, U Thomas Pennington James B. Pierce Paul R. Post Annie Powell Kelly Procter Jerry Pruitt Thomas B, Pryor Michael Redd Bill Reynolds

Doney Ryan

SEYlER COUNTY La Jeana Jones Robert Lowery Henry Morris Randall Wright SHARP COllN'IT Sam Beller Uoyd Harper Mark Johnson Kevin King Dan Orr Andrew G. Ponder Keith Watkins

STONE COI1N1'X Leroy Blankenship Whitman W. Fowlkes Jeffery Hance Adam Harkey Joaephine Hart John Dan Kemp John Purtle Robert Stroud Chaney W. Taylor Tom Thompson Tim Weaver UNION COl TNTY W. H. Armstrong Jamee Baine Jim Bennett Sam Brooks Worth Camp Robert L. Depper Don Dodson David Guthrie Pat Hall Joeeph Hickey Jay Hoggard Henry C. Kinslow Kevin Phillipe Brian Ratcliff Dennis Shackleford. James V. Spencer, OJ George LeCroy Taylor Denver Thornton Jan Thornton

Robert Trammell Teresa Wineland VAN BUBEN C01lNTY Karen Baker Ralph Blagg Jim Burnett

Stephen James Jack Lewis Dale Lipemeyer

Eddie Morgan WASHINGTON COUNTY Andy E. Adams Steve E. Adams Richard Alexander Sarah Harkey Ashley Richard Atkinson Brenda Austin John Barry Baker Lindlee Baker Carlton Bailey Dorothy Ann Barry Tod Baasett Woody Bassett W. W. Bassett, Jr. Chester Baugus Joe Benson James H. Bingaman Mikel Blocker Stanley Bond Leslie Borgognoni Diane Boyd Raymond Boyles Marcia Brinton Stephanie Brodacz Tim Brooks Tim Buckley Ronald E. Bumpass Jim Burnett John Burrow George Butler Jack Butt James Calloway Kelly Carithers Marshall Carlisle Denise J. Caron Gary L. Carson Earl "'Buddy" Chadick Vincent O. Chadick Nadine R. Chenault Constance Clark William Clark John W. Cloer John Copeland Alene Cox

Boyd Cox onnan G. Cox James Crouch Charles E. Davis Sidney P. Davis Mark Denniston Ann Donovan AogeIaM eo.. D. Westbrook Dou, Jr. Claudia Driver DUlna S. Blackman Duell Ken Edwards John R. Eldridge, m Don R. Elliott, Jr.

Pete Estee Robert R. Estes Marshall Dale Evana James E. Evans, Jr. Deb Sexton Everett John C. Everett Keith Faulkner Janet Flaccus Susan Fox

59 ARKANSAS LAWYER SPRING 1995

Gene Franco Dale Garrett Virginia Gates Alan C. Gauldin Kathrinc C. Goy William Gibson Carol Gillespie Morton Gitelman Robert Gladwin Dottie Godsey Carol Goforth Douglas Gramling Judy Gray

Mary Green Ray Green Steven D. Gunderson Mary Ann Gunn James Hall Randy Hall Nancy Hamm Charles E. Hanks Robert C. Harder Jeff Harper Terry Harper Scott Harrison Michele A. Harrington Charles Harwell Curtis E. Hogue Jenniffer Morris Horan David Horne Tim Howell R. Read Hudson Rusty Hudson Elizabeth Huggins Joel O. Huggins Donna Hutchins Phyllis Hall Johnson Rufus W. Johnson Clinton "Casey" Jones Terry Jones William B. Justiss Marjorie M. Resl Tim Klinger Conrad C. Krauft.

BobLamben Michael Langley Robert Laurence Gerald D. Leti Mark Lindsay Tabi Rubbe Lipscomb J. W. Looney Stanley Ludwig Winnie MacDonald Thomas A. Mars Jack Martin Mark L. Martin Michael Mashburn John May Bob I. Mayes William R. Mayo A. D. McAllister

Ronald M. McCann LaGayle McCarty Laura McKinnon Richard lI.liller J. D. Moon Phillip Moon David Lawrence Moore Rudy Moore David E. Morris Charlie Moyer Charles T. Mulvey, Jr. Tim Myers Darla P. Newman David Nixon Phil Norvell Kim Novicki Bobby Lee Odom Conrad T. Odom Kenncth Osborne

Steven L. Parker Wayland Parker Thomas Pcar80n Neal Pendergraft Donna Pettus Lamar Pettus Marshall Prettyman Susan Purtle Bm Putman Joe Reed Ray Reynolds Bruce Rhoades Dick Richards Jon Robinson Jim Rose, ill James M. Roy Frances Rudko Sharon D. Ru.ssell David Schoen Job Serebrov Holly L. Smith J. Timothy Smith Lavenski Smith Raymond C. Smith Scott E. Smith Brian L. Spaulding Roy StanJey Lou Steenken Brent Sterling

Lee Biggs

Red Morgan John Patterson Phil Shoffner Todd Wooten

Comer Boyett Thomas R. Bryant Leroy Froman Lori Hoggard

Teresa Hughes Thomas Hughes Russ Hunt Steve Jordan Larry KiUough Wesley Lody Margaret Meads Robert Meurer Mike Millar William Mills

WOODRUFF COUNTY John Eldridge, 111 Joe Peacock Ray Waters VEI,I, COUNTY

Randall Dixon John Van K1eef

Bob S';II David D. Stills 1bm Stockland William A. Storey James Strother Charles L. StuLte Don A. Taylor Paul Taylor Stephen Taylor W. H. Taylor Steven Tennant Jay N. Tolley Bruce Trammell

Amber Carter Trumbo Bass Trumbo Shawn Twing Obert M. Undem John Van Winkle W. Todd Ver Weire

Betta S. Volkamer Lynn Wade David Wall Mirna Wallace Marilyn Washburn John J. Watking Dana Watson Jason Watson Jeff Watson Gary Weeks Mary Ann Westphal Esther White Roben R. Wbj", Kit Williams Russell Winburn James Wire R. L. Wommack Brian Wood Marsha Woodruff Ronald Woodruff James Wray. IIJ Danny Wright TikIen P. "Chip"Wrigb4 ill Charles Ii:. Young, In Steve Zega Stacey Zimmerman Andrew Zizer Joseph David Zurborg WHITE COl [NT)"

Pat Aydelott Richard B. Berry

60 ARKANSAS LAWYER SPRING 1995

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THE ARKANSAS LEGAL DIRECTORY HYOUR BLUE BOOK OF ATTORNEYS SINCE 1935

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