VOL.33_NO.2_SPRING 1998 by Arkansas Bar Association

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VOLUME 33, NUMBER 2 PUBLISHER

Arkansas Bar Association

on en s

Phone: (SOl) 375-4606 Fax: (SOl) 375-4901 Homepage: W\vw.arkbar.com E-Mail arkbar@jpa.net

IRK I'" '" R IR I""OC IITIO' ~lll1

\\ \IJrkhJnl Iltlk Rod" -\rkJn"J" ~~:!Ol EDITOR

Adrit'rl"t! H. Brinzke ASSOCIATE EDITOR

Sara lAndis

L.mY~RS' L\t4GE

EDITORIAL BOARD Gerard F. Glynn, Chair Wiley A. Branton Thomas M. Carpenter Stacey A. DeWitt Morton Citelman James c. Graves Thomas H. McGowan AI Schar Jacqueline S. Wright

Yes, Mother and Fathers, Let Your Children Grow Up to Be Lawyers

OFFICERS President Jack A. McNully President·Elect Robert M. Cearley, Jr. Immediate Past President Hany Truman Moore Secretary -Treasurer Daniel R. Carter Executive Council Chair

John H. Davis, III Young Lawyers' Section Chair R. Scott Morgan Execut'ive Director

Don Hollingsworth Assistant Executive Director Judith Gray

EXECUTIVE COUNCIL J. Ray Baxter William M. Bridgforth Daniel R. Carter Robert M. Cearley, Jr. Thomas A. Daily John A. Davis. III Thomas F. Donaldson. Jr. Lynn M. Aynn Dave Wisdom Harrod Michael E.. Irwin Louis B. Jones, Jr. Thomas D. Ledbetter Jack A. Mo'\lulty Michael W. MitcheU Harry Truman Moore R. Scoll Morgan Brian H. Ratcliff Sianley D. Rauls Steven T. Shults James D. Sprott Lynn Williams

quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to TI,e Arknllsa5 Lawyer, 400 West Markham, Uttle Rock, ArkmlS<1s 72201 Subscription price to non-members of the Arkansas Bar Association $25.00 per year. Any opinion expressed herein is that of the author, and nol necessMily thai of the Arkansas Bar Association or TIll? Ark/ltlS/l5 Lawyer. Contributions to n,e Ark/llIS/l5 Lawyer are welcome and should be sent in two copies to EDllOR, nrc Arkall5t1s Lilltlyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to Editor, TI,e Ark/ll15/l5 lAwyer at the above address. Copyright 1998. Arkansas Bar Association. All rights TeSenred.

The Fourth Estate: The Impact the Media Has on the Image of Lawyers by Stacy Pillman and Jonathan Portis

Tips on Preparing to Meet the Media 18

by Jndith Kilpatrick

Correction: Dear Editor: Regarding your 1998 winter issue, which features UM Rose on the cover, I just want· ed to let you know that Rose's statue is in Statual}' Hall of the U.S. Capitol, not the Rotunda as you state on the 'Contents' page of your magazine. I know this because I give tours of the Capifol and because I'm from Arkansas and usually give tours to other Arkansans, I always point out Mr. Rose. Thanks for your time! Melanie Kibler Office of Congressman Asa Hutchinson

Pro/Con: When Lawyers Talk to Ihe Press: Does it Do More Hann Than Good? Pro by Sam Hellr Call by Jlldge Willimll R. WilSall, .lr.

20 21

Law 011 die Fnlutier: The Superior Coon in die Arkansas Terrikxy by J.w.l..otw!y

County Seal of JlIlItial by JoIrIt GiN

One IIundI'ed Houn for One Hundred Years

The Writin& Careen of Prominent Law Wrilas From Arkansas by J«qW/iIIe Wrigllt

In EWll• Issm· PRESIDENT'S REPORT, COMM IlTEE

n,e ArkilnSII5 lAwyer (USPS 546-040) is published

by Rodney K. Smith

by Jock McNulty

EWS

by DOll Hollingsworth by Mark M. Henry by D. P. Marshall, Jr.

EXECUTIVE DIRECTOR'S REPORT, LAW OFFICE TECHNOLOGY, ON ApPEAL,

JUDICIAL ADVISORY OPINIONS

I SWEAR,

by Jlldge Vic Flemillg

YOUNG LAWYERS SECTION REPORT,

by R. SCali Morgall

LAWYER D,SC,PLINARY ACTIONS IN MEMORIAM CLASSIFIED ADVERTISING/INOEX TO ADVERTISERS CLE CALENDAR

2 3 4 8 12 38 39

40 41

47 48 48

l'I'I'sidl'1I1 \ 11,'pm'l

Remembering Where We Have Been and Thinking About Where We Are Going by Jack McNulry crowned by a Barristers Ball on November 14. Reserve the date on your calendar now路 Saturday. November 14.

As I embarked all writing this, my last column for the President's Page. many possibilities swirled in my head as I thought about possible topics. Should I write about celebrating our Centennial? Should I write about our 100th Annual Meeting? Should I write about the promise of a new Judicial Article for our Constitution? Should I write about the finals of the Mock Trial competition I attended March 7? Or should I write about "Cleaning Up After Elephants" as H. T. Moore suggested last year when I inquired of him about suggestions for columns. All of those subjects present such good possibilities for a column, I decided to write

about all of them, except the last one which I will leave to H. T. for a future missive. CELEBRATE OUR CENTENNIAL I encourage all attorneys and their family members to join in the celebration of the

Centennial

Anniversary

the

Arkansas Bar Association through participation in several of the activities. There are many and for all ages. Celebration of the tradition of lawyers helping people will be evident in several f0011S. Lawyers can participate in the" I00 Hours for 100 Years" program.* Elementary school students can participate in the poster contest on the subject of Lawyers Helping People. Middle school students can participate in the essay contest on the same subject. High School students have participated in the expanded Mock Trial program. The Annual Meeting in June will be more special than usual and there wi 11 be events for the whole family. (More about that later). This special year of celebration will be

; Thr .Iriml! LIII)rr

101. II 10. ljS~riDg 1995

CENTENNIAL ANNUAL MEETING The I DOth Annual Meeting in Hot Springs on June 10- 13 will be filled with educational and entertaining events for the entire family. A presentation by a Justice of the United States Supreme Court, entertainment by The Capital Steps, a presentation to spouses about interior design ideas and special activities for children are but four examples. "A Moment in History" will enable attorneys to record on video their special recollections about the Arkansas Bar Association, the legal profession and individual attorneys. This video history production will be available throughout the Annual Meeting. I hope many of you wi II come prepared to share those special memories and thereby help our Association to preserve them for future generations. You will not want to miss the Centennial Group Picture. Be on the lookout for more information on this. Group pictures will likely be taken several times during the Annual Meeting in order for all attendees to be "captured" on film. (Snapping 1.000 attorneys at once would indeed be a challenge.) You and your family can help make this the most exciting and memorable annual meeting ever. I look forward to seeing you there. JUDICIAL ARTICLE On March 14 our House of Delegates and the Arkansas Judicial Council held a joint meeting to debate and vote on a proposal for a new judicial article for the Arkansas Constitution. I am pleased that the I-louse of Delegates is recommending that our Association request that the Arkansas General Assembly place a proposal for a new judicial article on the ballot in the November 2000 election. The

Judicial Council is supporting the same proposal. But first our membership must approve this recommendation by the House of Delegates. If not already, every member will soon receive a ballot on this issue. If you have any questions about the judicial article, please feel free to contact me or any member of the House of Delegates. You can also find infonnation in the last NewsBulletin where there are several articles on this important matter. As members of the legal profession, we have a special responsibility to work for the improvement of our judicial system. I cannot think of a better or more fitting way for us to fulfill that responsibility and to celebrate our Centennial than to successfully support this recommended revision of the Arkansas Constitution. MOCK TRIAL One of the most impressive events I have anended this year was the finals of the Mock Trial competition which was held on March 7. The two hour competilion I witnessed between two teams was the culmination of competition which began in February between thirty-nine teams. Congratulations to both of the finalists - Pulaski Heights Junior High School and Rogers High School - and congratulations to Ihe Youth Education Committee of the Arkansas Bar Associalion which sponsors and coordinates this wonderful project. If these young people are the attorneys of the future, then the future of our profession is in good hands. FTNALE Finally, I cannot pass up this occasion to thank all of you for allowing me 10 serve as Presidem of your association. Thank you even more for the support you have given in this year of remembering our past. As we remember the past and look to the future, let us not forget the essential importance of the spirit of volunteerism Continued Otl page 3

1'II111111ittl'I' \I'\\S President's Report Cominuedjrom page 2

which has made the profession we enjoy. 'Please remember that the 100 Hours foml may be completed and sent to the Association whenever the paJ1icipant has 100 or more hours during the preceding 12 months. In other words, the 100 hours do not have to have been donated to community service solely during this calendar year. As we celebrate our centennial anniversary, we should continue and enhance our community service. The 100 Hours for 100 Years is a centennial project which accomplishes this. For the latest infonmation on the 100 Hours, see pages 28 and 29 in this magazine. There will be a Centennial Commemorative Issue of The Arkansas Lawyer this fall. The special contributions of Arkansas Lawyers will be recognized. Call Judith Gray and Adrienne Brietzke with your stories, histories and ideas.

"Committee & Section News" is aI/ update report intel/ded to inform the members of rhe Association of current activity. Your volwlfeers are working hard for you and rhe Association. Please note: activity reported has not necessarily been recommended to rhe Executil'e Coullcil as yet.

Organization and Redistricting Committee President Jack McNulty and PresidentElect Robert M. Cearley, Jr. have appointed this new committee which was established by the House of Delegates. This comminee will address a number of organizational issues including the size and functions of our Association's two governing bodies (the House of Delegates and the Executive Council), and the review of the Association's delegate districts, which is done every ten years. The committee will then make a redistricting recommendation to the House based upon current membership statistics, the need for maintaining a cohesive statewide membership, and any recommended structural changes in the governing bodies. The committee is beginning its work this Spring with the expectation of making its final recommendations to the House by early 1999. Martha Miller Harriman is the chair of the committee. Other committee members are: E. LeRoy Autrey, Thomas M. Carpenter, Vince O. Chadick, Sandra Wilson Cherry, H. Murray Claycomb, Robert L. Coleman, Michael H. Crawford, Thomas A. Daily, Boyce R. Davis, Winslow Drummond, Kay West Forrest,

Gwendolyn D. Hodge, Leon N. Jamison, Henry L. Jones, Jr., Louis B. Jones, Jr., Philip E. Kaplan, William A. Martin, Harry Truman Moore, Rosalind M. Mouser, Steven T. Shults, James D. Spron, and Danny Thrailkill. Association members are invited to share their views with committee members at any time.

LOBBYIST POSITION The Arkansas Bar Association is accepling applications for its lobbyist posilion, which is a part-time contractual arrangement. Lnterested persons should contact Don Hollingsworth, the Association's Executive Director:

400 West Markham Little Rock, AR 72201 Phone: (501) 375-4606 or (8OD) 609-5668

...

Registered Professional Engineer in 3 states.

...

9 years of experience as President of large distributor specializing in all types of safety equipment, major emphasis on metal forming and st'amping. II re'.trs of e.xpericnce as Presidenl of company involved in rcpai.r and rewinding of clc~triC motors and manufacture, sales, installation and servicing of e1ectncal control panels for rndustry. 14 YC:lrs of c.xperience with General Electric Co. in engineering ancl industrial sales. Earned OS路 Electrical Engineering in 1947. Compltl'e curriculum vitae and references on request.

1'01. II .\0. tlSpritlg 1995

Thr .Ir~anSlll,lt\)Pr

hl'llIlill' lIil'l'llul'\ Ht'llOl't

100 HOURS: To Disclose or Not Disclose by Don Hollingsworth Raymond Abramson • Sherry Bartley • John Beasley • Max Bowie • Edward Boyce • Doug Buford • Sheila Campbell' Gary Carson • Robert Cearley • Milton Copeland' Barry Coplin • Mark Corley • Nate Coulter • Zimmery Crutcher • Elizabeth Danielson • Don R. Elliott, Jr. • Georgia Elrod • Alan Epley • Bill Etter· Vince Foster' H. Zed Gam· Anne Gibbons George' Ken Gould • Jerome Green • Morril Harriman • Demaris Hart • William (Bill) Hightower • William Hodge • Joel Johnson • Steve Jordan • Claude R. Jones· Louis B. (Bucky) Jones' Durwood King· William J. Kropp III • Ike Laws· David Malone • James Mainard • Jerry Malone • Richard Mays • Sidney McCollum • Donn Mixon • Wm. Kirby Mouser • Clay Patty • Jerry Post • Tom Ray • Joe Reed • Dorsey M. Ryan • Gregory Smith • Eddie Walker· Ray Waters • Keith Watkins • Kandy Webb· Mary Ann Westphal • Richard A. Williams • G. Alan Wooten • Sam Whitfield, Jr. Arkansas attorneys give generously of

their time, talent and money

their local

communities and our state. BUI there is a reluctance on the part of some attorneys 10 "disclose" their community service. This reluctance is causing our profession to miss an opportunity for coumcring the negative image of attorneys, which is por-

trayed regularly in the media. Our Association's "100 HOURS FOR 100 YEARS" is one such opponunity which is available LO all attorneys and law stu-

magazine is also a needed example for our profession internally. The" I 00 Hours" in twelve months is a significant amount of community service,

for children and youth. Recognition internally will be through The Arkansas Lawyer and The NewsBulletin. Each succeeding issue of

equaling about two weeks. But just stop

these two publications will contain the names of all attorneys and law students

and consider what our profession is doing today for our community and state. The

members of the Supreme Court's Board of Law Examiners contribute 100 hours per year through this community service alone. Attorneys who serve on local school boards do the same or more. The list could

dents in Arkansas.

go on and on - building Habitat homes,

One of our members wrote me expressing his concern over lhe recognition which

donating blood, local planning commis-

will be received by those completing the "100 Hours" form. He stated .....that one of the most outstanding features of the Arkansas Bar, and the Association, is the almost universal willingness to assist others. Volunteerism is not a project, it is a way of life for Arkansas lawyers. Many times people are unaware of this fact and, to that extent, I commend the efforts to try and document the type and amount of volunteer hours that lawyers spend." He went

sions, United Way campaigns, and church/synagogue/mosque-related work. The first batch of "100 Hours" forms received at the Arkansas Bar Association reveal that all of the" I 00 Hours" participants so far have a mix of community service. They include pro bOllo representalion

of the elderly, soccer coaching, college trustees, Scouting, the Mock Trial Program of our Association, advocacy for victims of spouse abuse, disaster relief for victims of the tornadoes last year, and

who have submitted the form with 100 or more hours of community service. In other words, we hope to see this list grow and grow. Further recognition will be the Centennial Community Service Award from this Association and the Governor's

Volunteer Excellence Award presented by the Arkansas Office of Volunteerism. Well over half of the "100 Hours" forms thus far include hours benefiting children, with some participants' hours

being 100% dedicated to children. The reason for including these hours is that our Association, in cooperation with the Arkansas Office of Volunteerism, is asking lawyers to give particular attention to Arkansas' "Promise to Youth," which is a major volunteer mobilization to help

Arkansas' 20,000 underserved youth. Questions have been raised about some

aspects of the" I00 Hours" program. First, all allomeys are encouraged to participate. One does not have to be a member of the

conversation where a fellow attorney

teaching Sunday School. No participant has her or his 100 + hours in just one community service endeavor. Most of the forms reveal more than 100 hours of com-

recalls the "old days" during which new

munity service, including some with over

attorneys were taken under wing by an

200 hours. The first batch of about 25 forms had only one or two attomeys under forty. By the time this issue of The Arkansas Lawyer

nized. Second, the qualifier is 100 or more hours within the 12 months immediately

on to authorize the use of his 150+ hours but not his name.

How many limes have you been in a

older all arney, with one of the stated expectations being community service. Unfortunately, this expectation is 110t so easily ingrained today for a variety of reastarting place for doing so again. For this

is printed, I hope more forms from the younger generation will have arrived. I am aware of so many younger attorneys who

reason, I differ with the above member and

are building Habitat houses, caring for a

friend, because listing the names in this

person with aids, and coaching athletics

sons. But perhaps the" I00 Hours" is a

Tbr .IrklDSllI,3\\!U 1'01. II ,I'D. VSpriDg 1998

Arkansas Bar Association to be recog-

preceding the date of the foml. Third, we are including only Bar Association activities which are clearly community service,

such as Mock Trial, Lawyers for Literacy, disaster relief, etc. Other examples which may be included are service on Association committees and Bar commissions which are making improvements to

the legal system and society, such as draft-

~~"

ing new laws or working to reform the

legal aspects of the foster care system. But

this cannot include any activity lhat is a

part of regular employment duty or is Bar

Association business. (John Gill gave me

the task of trying 10 answer questions on

this, so feel free to call.) Fourth, any legal

is not included.

Lastly. please stay with me for a word

1898-1998

100 YEARS...

~JV' DOT

non-profit corporate boards of the local Legal Services Programs in Arkansas. I know most of them personaII y, and they have given significant lime and energy to

THE GREAT ARKANSAS IAWYERS OF THE PAST

work for family members or an employer

about common threads. The names listed at the beginning of this column are the attorneys who have served as presidents of the

WHEN YOU lHINK OF

WHAT LAWYERS COME TO YOUR MIND?

HELP US WITH YOUR

improve legal assistance to the poor and

elderly. Since 1965 there are hundreds of other attorneys who have served on these Legal Services boards or who were presidents or members of the separate boards

for pro bOllo programs (VOCALS and AVLE), but space does not allow their

CENTENNIAL CELEBRATION!

inclusion. These attorneys, as a group, constitute about 10% of our Association's membership.

Now's the time to tell us who or what you

Participation on Legal Services boards

know. Jot down your stories or names of

is just one example of community service

by attorneys to the govemance of nonprof-

those you think deserve

it organizations. Serving on the boards of directors of nonprofit and charitable organizations has been a significant calling for

recognition and send them to us for possible

many attorneys. We are uniquely qualified to assist our local communities and charities through the governance of these organizations. Our problem-solving skills are especially beneficial to charitable organjzations which are in transition or crisis. We would like to hear from others about common threads in our profession's community service, whether it be the attorney Scout leaders in Arkansas or the attorneys who have served on the board of a particular nonprofit organization. We will

inclusion in our 1998 Centennial Celebration.

r------------------------------, 'Your suggestions:

gladly publish such lists. Yes, the" I00 Hours" is part of our Association's Centennial Celebration for

I998. I hope it becomes a part of every year for us, regardless of individual public recognition .•:.

MARK YOUR CALENDARS!

The Best of CLE June 24·26, 29·30, 1998

Please send your suggestiolls: names to be recogllized, stories, allecdotes, aud allY illterestillg facts from the last 100 years to Adrienlle Brietzke, The Arkansas Lawyer, 400 West Markham, Little Rock, AR 72201 Dr FAX 501-375-4901 for possible inc/usioll ill 0111' celltellllial celebratioll.

1'01. ~~ 10. !/Spriog 1995

Thr .Irlanlal 1,;I\\)rr

ER OF YOUR MEMBERSHIP ••••••••

For more information about member benefits or programs call Barbara Tarkington (501) 375-4606 or 1-800-609-5668.

CLE SEMINARS AT REDUCED COST The cornerstone of an attorney's professionalism is up-to-date information. The Arkansas Bar Association provides the most comprehensive statewide CLE program, and members pay reduced tuition! Over 20 CLE Seminars are produced alU1Ually. ANNUAL MEET) G, Hot Springs - June 10-13 1998. For CLE, for spouses, for kids, for friends. BEST OF CLE, Little Rock - June 24-26, & 29-30, 1998. 6 Thr .Irkullm 1,;III,rr

I'II1.l1 ,\11. ~/Spl'ilig 1998

LEGISLATIVE PROGRAM

You are well-represented on legislative issues affecting the profession and legal system. The Associa tion' s lobbyist represents its members' interests in the Legislature.

INSURANCE DISCOUNTS

Call Rebsamen at 501-664-8791 for professional liability (5% discount for members) and member group rates for accident, disability and term life.

IN THE ARKANSAS BARASSOCIATION HANDBOOKS

PUBLICATIONS FREE TO MEMBERS

MEMBERS RECEIVE A SPECIAL DISCOUNT

Ten practice handbooks on CD-ROM from LOIS and in print and disk from this Association. The updated version of the Arkansas Form Book will be available in May 1998. Call the Association at 501-375-4606 for print or disk versions or call LOIS at 1-800-3642512 for CD-ROM.

DEL ~RY SERVICE

ALLTEL MOBILE

UPS gives members discounts and quick response time. Call 800-325-7000 and identify yourself as a member of the Arkansas Bar Association, or use account #50000700360. CREDIT CARD PROGRAM

The

MBNA

Platinum

• The Arkansas Lawyer • The NewsBulletin • Legislative Summary F1'Om the Hill • Guide to Arkansas Statute of Limitations • Arumal Membership Directory • The Arkansas Law Review • The UALR Law Journal Brochures on Law-Related Topics are available for members to share with clients or civic groups.

Plus

•

• -.

MasterCard includes a card with the Arkansas Bar Association logo, no alillual fee, miles plus option, a low APR, and travel services. CaII 800-847-7378. RETIREMENT

This Association has endorsed the American Bar Association's program. It offers options, stability, and comprehensive services. Call 800-826-8901 or visit the website at http://abra.ris.ssga.com CAR RENTAL

Call 501-661-5853 or 680-5029 for discounts on services and equipment. IMPROVING THE LEG~L SYSTEM

The Arkansas Bar Association has historically worked to secure adequate funding of the court system, to revise outdated laws, and to provide needed legal information to the public. Association members do this through the legislative program, Sections/Committees, Mock Trial Program, Young Lawyers Section's projects, and special studies.

AT&T SAVINGS An arrangement between the Arkansas Bar Association and AT&T provides members with discounts on long distance, 800 service, fax and even residential calls. Call 800-722-7756, ext. 1486.

AVIS - for discow1ts call 800-331-1212 and give them this number, B-314500. rol.l:I,lo. t/Spring 1998 Tbr .\rkanm J,;I\\)rr i

Lilli

linin' T"l'hlllllllg)

Computer Scanners May Suit Your Law Firm by Mark M. Henry Two

his article will attempt to

LEVEL

give legal practitioners practical and simple solutions to law office problems: i.e., how computer scanners can make life in a

MINIMIZE WORI> PROCESSING

law fim1 easier and more efficient.

Besides word-processing, time keeping, scheduling, inner-office networking, legal research, and Internet access. what other purpose could a computer serve for a law finn? The ability 10 put leners and

Assume your opposing counsel sent your office extensive interrogatories. Instead of retyping all of their interrogatories. begin by placing the documents illlo the scanner, capture all of the interrogatories on your computer, then proceed to change the heading, insert Ihe answers, and print out the response. This level is still only the beginning of the time management benefits derived from a scanner.

documents onto a computer may prove thai computer scanning equipment fits

LEVEL THREE

neatly into a law practice. This piece of

CREATE A SEARCHAIlLE DATAIIASE

hardware may open a whole new door to a

Once an attorney knows how to use a scanner, it is easy 10 create a searchable database of your opponents' responses to requests for admission, interrogatories or discovery requests. Because the scanned infonnation will be like any other word processing document, you may then organize the files according to client, topic. or date, effectively opening new avenues for understanding a case. As a bonus, the database can now be easily searched for key words using the general "find" function on your word processing program. For example. Wordperfect (Version 8) curremly allows you to search for any word contained in a Wordperfect document lIsing the 路'Quicklinder'路 function. This could be used 10 quickly search for admissions or responses using key words without lediously reading Ihrough all pages. Several commercial programs are tailored specifically to enable a law firm to scan documents, organize them, and search for key words. If a law firm is interested in creating a flexible system for document searching, it has several options from which to choose. An example of this type of word searching program is found on West law discs, the difference being that such a word-search program could be applied to a computer's word processing program documents. Clint Mathis, an attorney in Arkadelphia. uses word-search programs on his existing computer files of letters,

legal practice. and it may be the next step for either a first-lime computer lIser or a computcr-integrated law office. The scanner is the ground upon which an effective document managemcnt system can be builL. A scanner can create a photographic-type reproduction of a document, including signatures, graphics, and notations. More importantly, using optical character recognition ('"OCR") software, a scanner can "read" lhat photographic type reproduction and create a word processor document containing the lext of the original documcnt. After the image is transferred to a computer, an attorney can make changes. add wording, and save it like any other documenL. This whole process lakes very little time, especially compared to typing an entire document. Any size law office can save more time than you might think. There are several different levels at which a scanner can help a law office:

LEVEL ONE

ARCHIVE DISCOVER\' AND PLEADINGS

With the scanner-based document approach, a law finn can effectively keep and store all documents, including documents produced during discovery, pleadings and photographs. It is equally useful to SlOre closed files or fonn files.

S 1'hr IrkallSasl,alljrr

101.33 .lo. ~/Spring

documents, and pleadings and is also now using a scanner to import documents. THE REQUIRED HARPWARE

A scanner is a separate machine Ihat connects to your computer. There are several different types. but their sole purpose is to make an exact picture of the documcnl or pholograph and send the infon11ation to your computer. The general consensus in the computer world is that natbed scanners offer the best quality. When scanners were first introduced, a person could only reproduce documenlS in black and whjte. Today's scanners can clearly reproduce color photographs with amazing quality. "Resolution" is an important component to scanners. Resolution detennines how c I ear the picture will appear not only to your own eye bUI also to the computer. Eric Brinkley at PC Assistance in Linle Rock says to "choose the machinc thai offers the highest resolution without software enhancements that your fin11 can afford." THE REOUIREP SOfIWARE

Before your compuler can read the images that the scanner captures, it must have the required OCR programs. or software. Your selection of software is worth calling several different computer experts for Iheir input, because software is the heart of the matter. The scanner-associated softwme translates an image into a word processing document such as Microsoft Word or Wordperfect formatted documents. Most scanners and software are user friendly, have very small learning curves and are quite reliable. Eric Brinkley says that "Omnipage Pro (Version 8.0) is one of the best optical character recognition software programs available on the market today with a recognition rate above 90%." The equipment and software is remarkably affordable, with estimations for a com路 plete system between $300-500. A scanner is a very useful tool to any

size law finn because of its ability to capture and convert infonnalion into a word processing document. After an initial invesLment of time and energy [0 familiarize yourscl r wilh a scanner and the accompanying software, a law (inn cun save time and maintain flexibility in managing and

storing case files. CO\1~1ERCIAL SCANNING· FILt: STORAGE

A close relative of the desklOp computer scanner is commercial document imaging. Many finns have hired companies to scan and archive much of their past, hard-

copy materials because the cost of doing this quickly pays for itself through drastic reduction in paper copies, lransport, storage, and searching. Additionally, it is safer and easier to electronically store many documents. Several businesses in Lillie Rock specialize in document imaging; these companies can simply scan and save documents as a picture and organize them by file name fields. The basic cost for commercial scanning ranges between $0.10 and 0.15 per page with additional charges associated with typing in the file names and search fields. The drawback to this type of service is that the document is not translated into a word processing document, it is merely an image. This limitation is significant for people who want to perfonn extensive word searches or modify the document. The type of search possible with these types of picture files is also limited 10 the file name assigned to the document or document grouping. If you need greater searching capabilities, these companies can translate the document into a word processing document for additional cost.

sive rights of copyright. so scanning vinually any document will constitute copyright infringement unless (I) there is some express or implied license pemlining the scanning; (2) the scanning is pennined by one of the limitations of exclusive rights set forth in 17 U.S.c.§§ 108-1 12, or (3) the scanning falls within the general "fair use" exception of 17 U.S.c. § 107. Although there would likely be an implied license to scan discovery requests and responses of opposing counsel for use in connection with a panicular law suit. there may not exist an implied license to scan materials from legal journals, treatises or periodicals.·:·

Mark M. Henry is a registered patem altomey associated with Gary N. Speed and Mark Rogers at the firm Speed and Rogers. PA .. located ill Little Rock. Arkansas. which practices exclusil'ely ill ,he area of pmems. trademarks. copyrighrs. and other matters of illfelleetl/ol property.

MARK YOUR CALENDARS!

1DOth Annual Meeting June 10-13, 1998

LET'S ALL MEET AT THE lOOTH ANNUAL MEETING

..,

10-13, 1998

Arlington Hotel, Hot Springs!

IContinues in a

as the Arkansas Bar Association

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SOME OF THE REASONS TO ATTE D, Joint Annual Mttling with lhc Arkansas Judicial Council Speakers indude: Justice: CI:lo~nclL" Thomas. Supreme: Coun of the United Sr.lIle5 Chief Circuil Judge: Richard S. Arnold

Governor Mike Hucbbtt An histOrical pand of former Arkansas Go\'crnors (discussing (he influence' ortaW)"C-rs on ArbnS<lS hinory)

American 'hr Associuion Pn:sidcm-E1«t Philip S. Anderson James W. McElH:lney. Author of (he An of Trial AdVOClC)' Roben C. "'Bob" llaker. mcmber orlhc 0.). Simpson civillrial defense tnm Jay Foonberg, aulllOl of the ABA's all (receive a copy of his book "500+ Steps

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Finally. before you get too carried away with your scanner. remember that copyrighllaws apply with full force LO scanning documents much like they apply to photocopying documents. After the 1989 amendments to the Copyright Act of 1976, it is virtually impossible to inadvertently abandon rights of copyright in a document, so most if not all of what you will want to scan will be protected by rights of copyright. When you scan a document, you create a copy of the document and yOlilikely create a derivative work based upon the document. This may violate IWO of the excJu-

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Take advantage of unequalled networking ol>portunities Participate in Historical Group Photograph Greet Old Friends and Meet New Ones Play in the Golf Tournament Enjoy The Capitol Steps (as the group takes a humorous look at serious issues and provides a laugh a minute) Dance to the Music of Uttle Joe & the 8Ks

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AN ANNUAL MEETING TRADITION

"Yes, Mothers and Fathers, Let Your Children Grow Up to be Lawyers" by Rodney K. Smith, Donaghey Dean of Law

I love a good joke, but I do not tell lawyer jokes. I rec-

ognize,

however,

that the legal profession has long been maligned. In a book written in 1938, Max Radin wrote: "We are not likely (0 see persons parading the streets with great placards bearing the words, "Kill the lawyers!" This did happen, however, in the Slreels of American cities shortly after the revolution. And if we go back farther in history, we find that whenever a popular insurrection look place in medieval England, the persons whom the rebels most wanted to kill -- and often did kill -- were the lawyers. I suppose the lawyers of today are in no danger of being killed, even if there should be a popular outbreak - at least in 110 more danger than other persons. But there is one fact about which the lawyers themselves have no illusions. If they are in no danger of being killed, it is not because they are loved and venerated." Whether carelessly or maliciously told, each lawyer joke fuels animosity toward the legal profession and diminishes, to some degree, respect for the rule of law. In 1990, I was asked to go to Warsaw, Poland 10 assist in small fashion, as they made the transition to a constitutional democracy. I ultimately made numerous trips to Poland, Hungary and even China. At every turn, I was asked the same question -- A question that I initially had not come prepared to answer. The question was: "How do we secure the rule of law?" The Poles and Hungarians quickly added,

10 Thr Irkanm l,allTrt

In/. 11 In, !/SprinI U9S

"We never want to return to a world where there is no law to protect people from unfettered governmental power." My version of a twilight zone episode, therefore, is that the American people wake up one morning without any lawaI' lawyers. They live in that lawless society for a single day. The horrors that transpire during that day would be deeply unsettling

we are applied philosophers. The trick today, of course, it that we have to apply OUf legal thinking in a very complex theological world, a world that requires a wealth of diverse knowledge 10 achieve

even basic competence.

Without such

competence. clients suffer and, as a consequence, our position as lawyers in society is rightfully jeopardized.

My version of a Twilight Zone episode is that the American people wake up one morning without any law or lawyers. to every viewer who had the stomach to watch the carnage and cruelty depicted. Those watching the program would welcome the return of the rule of law and the presence of lawyers. As a father of 8 children. I tremble to think of the growing disrespect for law and our work. We must turn the tide. How can we do so? We can best do it by helping all to understand the three C's Ihat constitute the basis of great lawyering and should be the foundation of a solid legal education. Of course, our first year students blanch at the thought of receiving 3 c's, but (like all of us) they quickly adjust. The three c's are: competence. caring and conscience. All three are necessary to lawyering worthy of respect. Law schools have always worked hard to graduate students who are competent legal thinkers -- who. in shan, can think like lawyers. Competence today means more than the core of thinking like a lawyer. however. It means being able to use that thinking in a wide variety of very practical capacities. Ln legal education, therefore. we emphasize integrating theory with practice. As my father used to put it,

I do not believe that competence is enough, however. We must add to competence. compassion. We must care about our clients and about law itself. That understanding can do much to build the bridges that we must build to strengthen the profession. I leamed this early in my practice. My senior partner saw that I was starting to objectify my clients -- you know what I mean, I saw a client as a broken neck or a limited pannership, not as a human being with a problem. As my senior partner observed this in me, he intervened. He said that he wanted me to work on a project with him on Saturday morning. That was nothing new, so I said, "Sure." He added, however, that I need not wear a coat and tie --- Now, that was something new, and I sensed that this was going to be a different kind of assignment. When I arrived early Saturday moming, he was there and asked me to get in his car with him to go "visit some clients," I always wondered why this partner, who no longer had children al home, owned a Bonneville stationwagon. When I got in the car, the back portion was filled with potted nowers. We took those nowers to one individual after another. Most of them

were old and shut-in and many were poor. To a person. they were deeply touched (but clearly not surprised) that the senior partner slill thought of them, long afler he had

wise, for the profession he respected so very much. He was a lawyer of compelence, caring and conscience. I slill rely upon him to make sure thai my bearings

completed whatever work he may have done for Ihem. I had always greatly admired the competence of my senior partner, but, Ihat day. as I watched my senior panner interact with his fonner clients. I caught the vision of what it really means to be a lawyer. My senior partner was not

are right -- that the compass of my conscience is working -- and he has never

failed me. This year, he will be 86, and is retired. although the constant parade of fonmer clients to his home, the quickness of his mind, and his abiding concern for the profession tell me that he will remain a

merely respected for his compelence, he

lawyer. I pray that we can live up to his

was loved for his compassion and I understand what he meant when I once over-

expectations. Full disclosure requires that

heard him say to a client, "Lel me help you carry your problem for awhile:' We must endeavor to be caring as well as compe-

father. When I lold my dad that I wanted to go to law school, he thoughtfully responded, "Son, only go if you have to do so. It is a hard profession Ihat will demand much of

tent.

Even caring and competence is not

you." Once again, my father was right -- it

ple of conscience. Early in my practice, I

ed much. and I fear that I have sometimes

was called by a judge and asked to represent a "biker" in a criminal action. dealing wilh the Iheft of a motorcycle. I was busy and unenthusiaslic as I told the judge that I would call him back. When I asked my senior partner whal I should lell Ihe judge,

matter of conscience, as to how his acts would reneci on the profession. I know

fallen short of what is required of me. But. I begin virtually every day on my knees grateful thai I am a lawyer. The profession has been demanding, but il has been so good to me. Today, two of my college-age children occasionally say they want to be lawyers. I lell them, "Only become a lawyer if you feel that you have 10 do so. It is a profession thai will demand much of you:' I confess, however, that, as I offer that caveat. I silenlly pray that Ihey, too, may be called

has been a hard profession, il has demand-

that he would never take advantage of a

lO the profession.

client, thai he would never bill for thai which he really did not do, thai he would

falhers, let your children grow up to be lawyers, if Lhey mUSL路:路

never use his position for personal gain,

D~Qn Rodn~)'

and finally that he would always be willing to sacrifice, by court appointment or oLher-

Medium-sized

orthwest

Arkansas law firm seeks anorney to practice in the field of

I confess that my senior partner was my

enough for us to fulfill our stewardship in this great profession. We also must be peo-

my partner scolded me for even inquiring- of course. I would accept the responsibilityand I would do my very best work. My senior partner was always so sensitive, as a

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Have You Got Your Addendum Ready? by D. P. Marshall, 11:, Barrell & Deacon Law Fiml. Jonesboro, Arkansas The Arkansas Supreme Coun recently announced that. starting in a few months. appellate briefs must include a new section called an "addendum:' This new require-

ment is effective for briefs med wilh the Supreme Court and Court of Appeals after July I, 1998. Arkansas lawyers who handle appeals in the Eighth Circuil are familiar with the addendum animal: it is a

seclion at the back of Ihe brief where key record materials are reproduced verbatim.

By local rule, Ihe Eighth Circuit has required an addendum in all briefs for several years. 8th Cir. Rules 28A(i)(7) & 30A(d). Here is the new slate requirement:

Our Supreme Coun reeenlly amended Arkansas Supreme Coun Rule 4-2, which govems the contents of appellate briefs. to require an addendum as part of every

Ihe appellalll finds the trial coun deciding the question Ihat he is appealing. Ihal documenl needs 10 be in the addendum. Rule 4-2 (a)(8) provides funher Ihat Ihe appel-

more cases decided on lhe merits. That was the Supreme Court's intent.

lant should not abstract the record malerials in the addendum. The addendum gives the Court a direct look at the record. rather

Circuit practice, it should nOi lake long for LIS 10 fall into the addendum habit in slate

than Ihe second-hand look provided by the abstract. Appellees. listen up: do nol include an addendum in your brief unless the appellant leaves a required document Oul of his addendum.

ote what should not be in the addendum. The appellanl cannol photocopy important parts of the record and insert those in the addendum. Your case may turn on the construction of Mrs.

Quickly's will.

BUI under the Rule you

may not put her will in the addendum. Your case may turn on an erroneous jury instruction or a provision in a contract. BUI you cannot put those documents in Ihe

appellant's brief. As revised. Rule 42(a)(8) stales: ADDEND M. Following the

addendum either. Only the documenl con-

Argument (and after the signature and certificate of service if they are

taining the court's ruling that you are appealing an order or a transcript

contained in the brief). the brief

excerpt or the like - goes in Ihe addendum. Here is the difference between our new state court Rule and the Eighth Circuit's Rules. In a federal appeal. the

shall contain an Addendum which

shall include photocopies of the order. judgment. decree, ruling. leiter opinion. or administrative law judge's opinion. from which the

helpful malerials in the addendum:

where any item appearing in the

trial court's order or ruling. a conlract or other key document, an eXlended transcript excerpt. or even a statute or federal regulalion involved in the case. 8th Cir. R.

Addendum can be found in Ihe record.

An item appearing in the

Addendum should not also be abstmcted.

Pursuant to subseclion

the

30A(d). NOI so under Arkansas' new Rule. Put only the lrial coun's ruling in your state addendum. And do not confuse Ihe

not contain the required Addendum.

new state addendum with the broader kind

The appellee's brief shall only con-

of addendum allowed on appe,,1 in federal

tain 3n Addendum 10 include an item which the appellant's

court. New court rules sometimes cause confusion. All Arkansas lawyers. however,

Addendum fails 10 include. 333 Ark. Appendix (January 29. 1998). This change. again. is effeclive for briefs med after July 1st. Note what the Rule requires. The appellant must include a photocopy of the ruling. or rulings, thai he is appealing. II may be an order; it may be a decree: it may

be an evidentiary ruling at trial. Wherever I~

appellant can and should put all sorts of

appeal is laken. II should be clear

Tlllr~lIlilllw!rr

Ill.ll II. ! S,rilf 1111

should applaud this new rule. Pick up any volume of the advance sheels. You will probably see at leasl one case affinned because the appellanl failed to abstract the trial coun ruling being appealed. The

Moreover. since many lawyers are familiar

with the addendum from their Eighth

court.

The Supreme Coun has done ils best to make sure that the new addendum require-

ment does not calch lawyers by surprise. The Court announced this rule change in

late January - but they made it effective only for briefs med afler July I, 1998. In its "Notes re Addendum:" the Court also

instrucled the Clerk 10 help lawyers comply with Ihe new Rule: he should be "Iiberal" in granting extensions to bring a brief into compliance. The new addendum requirement high-

lights Ihe pressing need

the record is handled

refonn the way in appeals in

Arkansas. This pasl June. Juslice Newbem wrote a concurrence suggesting that the time had come 10 reexamine the abstract-

ing system. Hood v. late, 329 Ark. 21.35. 947 S.W. 2d 328 (1997). He is right. The best way 10 handle the record on appeal is: (I) require in Ihe briefs a fuller Slatemenl of Ihe case, anchored with lOiS of references direclly to the record: (2) require an addendum at the b~tck of the brief containing the lower court's rulings and twcl1lY or so pages of other crucial record materials:

(3) require the panies 10 provide each judge with an indexed "designated record" of all the record materials the parties believe are necessary to understand and

decide the case: and (4) allow the Coun 10 go behind Ihal designated record to the full record when necessary to decide a case on the merits.

Thai is Ihe record system on appeal in federal court. II works splendidly. We should lailor that syslem 10 fil Arkansas appellate praclice. I hope our Supreme Coun eventually agrees. In the meantime. the Court has smiled in that direction with the new addendum requirement. Lawyers handling appeals

addendum requirement should eliminate

should rejoice.

Ihal kind of lechnical win for Ihe appellee.

addendum will bring our clients more justice on appeal in state court .â&#x20AC;˘:.

In other words, the addendum will get

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Estate described by Thomas Carlyle and Thomas Macaulay. And in this day and

The Fourth Estate: The Impact the Media Has on the Image of Lawyers

age, most specifically the image of lawyers that is projected by the television media.

Because of the many highly publicized cases, such as t.he Menendez brothers' tri-

als, 0.1. Simpson, the Oklahoma City bombing trials, Sergeant McKinney's sexual harassment trial, the au-pair trial, Whitewater, Travelgate, Paula Jones.

Kenneth Starr, the jailing of Susan McDougal and numerous other high profile legal wrangles in the I990s, the media has taken the great mass of Americans

deeper inside the legal system than ever before. And what the people have seen is not pretty. And unfonunately, it has convinced them t.hat the legal system - and the lawyers who serve in it - is "broken" and needs to be fixed somehow. Some are

even suggesting our system of trial by jury should be scrapped. But more importantly here, many are convinced that lawyers are a cunning gang of tricksters and connivers, ready to use any technicality to subvert the law and more than willing to exploit the glare or publicity to fanen their pocket-

books. Columnist Philip Terzian. writing in

The Plliladelphia Inquirer, addresses this

by Stacy Pittman and Jonathan Portis Ellilor's Nole: The coining of tile expressioll "rhe FOLirth Estate" used when alluding to the media, is Cll1ribmed 10 borh Thomas Carlyle (/795 -1881). Ihe SCaliish essayist and historian Gnd Thomas Macalilay (/800 - 1859). Ihe hislorian and statesman. Carlyle staled: "/Edmund] Burke said there were three estates ill Parliamell1: but ill the reporter's gallery yonder, there sal a jOl/rth estate more importalll jar 'han they all:' /The other three estates were the Lords Spiritual (Clergy). Lards Temporal (Arislocracy).

n a November 1997 Gallup Poll ranking

26 professions or occupations on honesty and ethics, lawyers showed up at o.

20, just above labor union leaders and three notches below newspaper reporters.

This, in the parlance or the polls, is a

"This is not entirely the fault of the legal

downward (rend for lawyers. The number of respondent.s ranking lawyers as "high" or "very high" in honesty and ethics in

profession. The nature of American society is such that lawyers playa disproportionately outsized role in national life, especially politics, and huge numbers attract a fair share of sour apples."

Gallup's 1985 survey was 26 percent, which declined to 22 percent in 1991 and dropped to 15 percent in the 1997 poll. Lawyers' negative numbers in 1997 put

"Of Heroes alld flero

them at No. 25 (just above car salesmen)

Worship. and Ihe Heroic in HisrorY;' 184f. The Oxford Dicrionary of Po/ilical Quotations suggests Illar Macauley's usage was earlier: ''The gallery in which the

with 41 percent of respondents rating lawyers' standings as "low" or "very low."

alld fhe Commons.}

(Details on the poll can be round at www.gallup.com.

Phannacists rang in at

the realm." -Thomas Babington Macaulay,

the No. I position, as they have for nine straight years, and car salesmen came in

Isf Baron

last, an unbroken string since 1977.)

reporters

Sil

has become a fourth esfale of Macaulay.

historian

and

Secretmy ofWm: Grear Britain. "f-Iallums Constitutional History;' Edinburgh Review, Sepi 1828.

fhp .Irkanm I,all)pr

1'01.1110. !/Sprio! 1998

image by saying: "Every profession has its scoundrels, of course, ... but the law is especially in need of rehabilitation. The best-known allorney in the land is Johnnie Cochran, and most Americans see lawyers as creatures on TV, imploring them to dial a convenient 800 number and get rich quick.

Lawyers are finding themselves asking

A REVOLUTIONARY SI-IIFT IN CONCEI)T

This "disproportionately outsized role" is further magnified by a revolutionary

shift in the concept of media and the daily impact it has on the average citizen. With cable and satellite transmissions, Americans have the option of viewing up to 300 or more television channels. And

when digital broadcast satellite technology comes to the fore in the next few years.

those numbers could double or triple.

the famous question first proposed by the Coasters' Charlie Brown: "Why is everybody always picking on me?" A good part of the answer to that ques-

cable news networks: CNN, CNN Headline News, Fox News Network, MSNBC and CNBC. Then there are

tion lies in t.he image of lawyers that is pro-

"quasi-news" channels such as Court-TV

jected by the media-the ramous

and C-SPAN, plus cable channels like

Fourth

As of this writing, there are at least five

Discovery and The Learning Channel that broadcast a number of news-like documentaries and "live-action" video pro-

grams that take the viewer right to the source of the action on police bems, in hospital emergency rooms and other front

for their willingness to make combative and provocative assertions for the mass audience, are put on the screen together to argue loudly. interrupt each other constantly, and cast political aspersions on each other's motives.

lines of human drama and excitement.

Only a few years ago BC's programmers were forced to put a label on its" nsolved Mysteries" program to clarify that the show contained dramatizations and reenactments and was not a news program. That this disclaimer became necessary reneel how easily viewers can become confused by what they see on television. In the "Golden Age" of television during the 1950's and 1960's. when there were only three networks. lawyers enjoyed a morc burnished image. Shows such as "Perry Mason·' and '·The Defenders" depicled lawyers as caring. honest and ews procrusading pillars of society. grams were just 15 minutes long, and the only time lawyers were depicted in an actual setting were in rare live broadcasts from Congress. such as the ArmyMcCanhy hearings. Things have changed in the illlcrvening years, (a say the least, and not always for the better. The Founh Estate has grown tremendously and now affects our daily lives almost constantly, and it's depiction of lawyers has changed dramatically. Even television stahval1s admit that the fundamental product offered by television news today is entenainment. In a recenl issue of Delta Air Lines' Sky magazine, ··60 Minutes'· producer Don Hewin said, "Broadcast journalism as we've come to know it is dead. What once was a great and proud chapter in American journalism doesn't exist anymore. Before. broadcast journalists were every bit as good as the people of The el\" York Times and The Washington Post. Today. they're the People magazine of broadcasling. If Walter Cronkite, Eric Severeid and Edward R. Murrow came back today, the networks would have nothing to do with them:' Thus, in a drive to produce "entertaining" news programs, the major TV networks and many of the cable news channels now routinely use the device of seeking out the most outspoken and outrageous lawyers they can lind. Alan Dershowitz, Gerry Spence, Greta Van Sustem and Marcia Clark. whose "face time" on television appears to be endless, may be the only lawyers with whol11 many Americans ever come into contact. Oftentimes, such lawyers who are selected

PERCEIYrlON

REALITY

The result is that these very visible lawyers. who provide television commentary on high prolile cases. have become the public's perception of the legal profession. And unfortunately. perception is reality. While that may sound cliche, it is no less true. TIle perception - created by the media and abened by

few will deny thaI Drudge was instrumental in creating the current White House climate of scandal because he was the lim to "repon" the rumors. The result: television viewers watch anllies of lawyers troop in and out of counhouses in Little Rock and Washington. And more lawyers are constantly popping up on the news and commenlary programs to explain just what the arnlY of lawyers in the counhouses are doing.

Is IT HOI'ELF s? So what is the legal profession to do about the Fourth Estate and its impact on

the lawyers - is that all lawyers are like the noisy. "Ifyou do not deal with the media, the media argumentative and unrewill deal with you anyway. Ifyou think you strained lawyers who are might have to deal with them, you have to seen daily giving television commentary III have the mindset - some foundation of an America's living rooms. idea ofwhat you will say to them, And never (We hasten to say here that not all lawyers on televi- forget - the media has an infallible memory sion are putting their profor prior quotes. " fession in a negative light. -Bobby McDaniel, Jonesboro Arkansas A good example of this is Professor John DiPippa, of the University of Arkansas at Little lheir image? Is the situation hopeless? Rock School of Law, who frequently Why should someone practicing the legal appears on Little Rock lelevision stations profession even be concerned about all as an analysl of news events that involve this? One reason is that more and more the law. DiPippa conlines himself 10 straight-forward comment and analysis lawyers are encountering reporters. micro· without employing histrionics to advocate phones and cameras during the course of one side or the other. He is merely doing what used 10 be a routine day. Even what he should do - helping the viewer to lawyers in small towns or remote areas are bener understand the legal aspects of a no longer surprised to find a reporter on given issue.) the other end of the phone line or at being confronted by a television crew waiting outside the courthouse or their office door. Now COMES THE INTERNET Perhaps the latesl example of the trans- When these lawyers watch on the 6 fonnation of Ihe concepl of new media is o'clock news or pick up the paper. they the Internet. where anyone with a comput- find themselves faced with a new reality: er and a modem can become a '"journalist:' Even if thcy don·t deal with the reponers. The Inlernet is in such an amorphous stale the reporters are going to deal with them. that not even legal experts can be sure The Fourth ESlate is no longer an abstract what is legal and what isn"1. or even which notion to be sludied from a comfonable nation's legal system should apply to the distance. but a real. immediate force innu· encing lawyers and their clients everyday content. Most typical of the new-found clout of lives. Take, for example, the aHomey who the lntemel i the success of MaH Drudge, who set up a site on the World Wide Web represents a school district that linds itself to publish gossip. ·'tips'· and his own com- embroiled in a lawsuit over disciplinary ments on the news. Drudge calls himself a procedures. or the company aHorney who journalist although he had never worked as deals with consumer or producl safety litione before establishing "The Drudge gation, or the government-employed Report" on the Internet. Workaday news lawyer who linds herself publicly defendpeople consider him reckless and amateur- ing newly imposed environmental regulaish. Regardless of whether he is embraced tions. Each of these cases can involve or rejected by journalism professionals, Srr pagt t6

101. ~~ \0. j/SpriD! 1995

Thr \rlmall.att)rr

From pag~ /5

reputation of your employer/c1ien!. How is that done? Let's look at IWO high-profile cases that involved public relations professionals and corporale lawyers - the Exxon Valdez and Ihe Tylenol crisis. Allhough Ihese cases happened many years ago. both cases have become "case swdies" in the public relalions industry for how to handle communications with the media and the public. and even more importantly. how nOI to handle them. Many of us have memories of Exxon's public relalions mishandling of the 1989 Exxon Valdez oil spill in Prince William Sound in Alaska. As a resull of Ihis debacle. Exxon to this day continues to be plagued with bad press and a loss of customers who communicated their dissatisfaction by ceasing to purchase Exxon's producls. While there is still some disagreement over the cause of the oil spill (the ship's DEALING WITIÂˇI THE FOURTH ESTATE: captain was accused of being drunk and WORKtNG EFFECTIVELY \VITH THE there were allegations of poor seamanship on the part of the tanker's crew). there is MEDIA The goal is 10 work effeclively with Ihe near-unanimity of opinion that Exxon and news media to lay the foundation for an its corporate leaders botched the afterupcoming case, create an atmosphere of math. public support and m<.lintain the long-tenn Simply put, Exxon sent CEO Lawrence G. Rawl out as its main r - - - - - - - - - - - - - - - - - - - - - - - , spokesman without preparing him for his task of dealJONES LAW FIRM ing with the media. Rawl, who had a reputation as a is pleased to announce strong corporate leader who the association of hated Ihe media. refused to go to Ihe scene of the disasTom Harper, Jr. ter. He eventually issued a videotaped statement tell ing in the practice of law. the public what chemicals would be used in the cleanup The firm name has been changed to but refusing to make any statemenl of apology 10 the fishenncn whose lives had JO ES & HARPER been ruined by the spill. He Attor/Jeljs at Law showed no emotion over the Parklane BlIilding, 3200 Rogers, SlIite 105 impaci of the disaster on the P.O. Box 8070, Fori Smilh, AR 72902-8070 lives of the people who live Telephone: (501) 783-1887 â&#x20AC;˘ Fax (501) 783-4015 and work on Prince William sound, or the environment. E-Mail: jOlleslawfirm.col11 The public responded to Mr. Rawl by boycolling Exxon service stations and Robert L. Jones, III Ihe company's products and Tom Harper, Jr., PLC by sending back their CUI-UP Charles R. "Buddy" Garner, Jr. Exxon credit cards. Rawl resigned in 1993 and Exxon Kendall B. Jones continues to pay for the disR. Scott Zuerker aster in both financial seuleNiki Trang Cung ments and public mistrusl of the company and its motives. media activity that will ultimately influence how the public perceives the organization and the law profession. The public relations strategy used by the legal team may not influence the outcome of the courtroom but it will most certainly affect Ihe long-Ierm repulation of their employer/c1ien!. BUI what about Ihe lawyer who represenls individuals. or who prosecutes or defends criminals? In these types of cases. where the long-ternl reputation of an organization is not at stake, how does media relalions playa role? We asked that question of several lawyers who practice in this arena, and all agreed that effective media relalions can playa role in Iheir legal strategy. From swaying legal decision-makers who read the daily newspaper in rendering a trial verdict, to influencing a potential selliemelll.

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The lesson to be drawn by lawyers from the Exxon case sludy is that being unprepared and disdaining the public's emotions can be disastrous even for the most successful. bUlloned-down corporate official. The opposile case sludy is the effeclive role public relations played during Johnson & Johnson's 1982 "Tylenol Crisis:' Many remember the grim news of the five Chicago-area deaths from cyanide poisoning of EXlm-Strength Tylenol products. Johnson & Johnson's response is now the classic study of what a company. its officers and lawyers can do right when confronted with a potential media meltdown. Although Johnson & Johnson had no fonnal crisis communications plan (few companies did at that time), it did have a company credo written by the son of one of the company's founders in the I940s. That credo slated that Johnson & Johnson had four responsibilities, in the following order of priority: the consumer: its employees: the communilY: the slockholders. Wilh Ihis credo as ils guide, Johnson & Johnson opted to be open and completely cooperative with the media in getting out the news about the poisonings and the company's response to the tragedy. Company officials believe Ihe evemual success of Johnson & Johnson's response was due to three things the company did: I) it was open with the media: 2) it was willing to recall all Tylenol producls. no matter what the COSI to 10 the company: 3) it appealed to the American sense of fair play and asked the public to trust the company. Admittedly. Johnson & Johnson's response may not have been the one its corporate legal team favored initially. bUI it proved to have been the classic correct response. Johnson & Johnson not only recovered quickly from the crisis. but it also went on 10 reeslablish public acceplance of Tylenol as one of the most successful over-the-counter products in history. The lesson for lawyers here, when conlemplating Ihe effecI of Ihe media and its impact on their image. is that honesty and acceplance of responsibility can carry the day in a public relations setting. PREI'ARING FOR THE MEDIA ENCOUNTER:

SOME I'R METIIOIlS

What follows are methods that have proven successful time and again for public relations practitioners. While most of

them have been well-tested and proven,

makes a true statement but avoids nettle-

each lawyer must also remember that there

some details: "We have not yet received a copy of the lawsuit, so it would be inap-

are no ironclad rules. Every legal case and every news reponer should be evaluated on an individual basis. A panicular suggestion listed here mayor may not be applicable to your panicular case. I.) Prepare For The Possibilitv. If you think a case with which you are involved might generat.e media interest. prepare

yourself for that possibility. Confer with your employer/client about the possibility of media interest and olltline a general strategy lhat all can agree with.

propriate to comment without reviewing

the specifics." or "We have a very clear policy on sexual harassment that has been transmined to all our employees:' 6.) Keep Your Message Simple. Quantity seldom wins when working with

the media. Remember that the average newspaper story uses three quotes and the average television news story lasts no longer than 15 seconds. Those facts arc

the reason that public relations profession-

2.) Prepare For The Tough Ouestions. Before you engage ill an interview, take

als advise clients to communicate only two to three messages. In fact, one repetitive

time to write down the questions you

message usually works best when anempting to innuence public opinion through the

would ask about the case if you were the reponer. Make cenain you analyze the

media.

weaknesses of your case in order to pre-

7.) Avoid Legal Speak. Instead. reduce

pare for the worst. Chances are, if you can

your message to easy-to-understand tenns eliminating jargon such as "notwithstanding" or "right of reclamation." \Vhen you eliminate the need to translate what you say. that's when you truly communi-

handle the tough questions -

case scenario -

the worst

you will be able to handle

anything else that will come your way.

power" and financial resources as they attempt to research and write the top news

stories of the day, If you really want some coverage, provide a copy to the news outlet. and make yourself available to answer questions, CONCLUSION:

UNOERSTANOING

THE

FOURTII ESTATE

Let's not be naive about all this.

realize lawyers are suspicious of the media, and rightly so, The law is an adversarial profession. And in order to become licensed to practice law, lawyers must survive a grinding educational process. And then to keep their license. they must

adhere to rigorous standards imposed by the courts and their profession, On the other hand. journalism is a craft. The

practitioners don't have to be licensed. and in fact. they don't even have to be college graduates, (although the vast majority of them are). But their standards are selfimposed: the management of each differ-

3,) Always Return A Reoone,s Call. The only person who can tell your side of the story is you. If you don't, it's going to be a one-sided story - the other side.

cate with the general public. You simply cannot build bridges, substantiate your case or innuence the public by using a

cal and what's not. Lawyers will always

Most reporters are working on a deadline,

legal vocabulary than cannot be under-

and that deadline is most likely to be 5 p.m. today. The sooner you return that call the beller. Don't cry foul when you return the reporter s telephone call the next day 10 find out the story has already been written. 4,) Be Cooperative. Lawyers are trained to be adversaries and to be suspicious in their approach. On the other hand. public relations professionals are trained to be cooperative and accommodating. When

stood outside the profession. 8.) Play Up Public Interest and Downplay Self Interest. Focus on how the

Americun) are guaranteed under the First Amendment of our Constitution. We know there are lawyers who have

lawyers emer into the realm of media rela-

tions, they should allempt to mute their

legal issue affects the average viewer or reader, such as First Amendment rights. public disclosure, environmental safety,

patient rights. By answering the public's question. "what does this mean to meT' you can increase the public's interest in your case.

9.) ever Go Off The Record. This could be the most confusing and trouble-

ent newsroom decides what's fair or ethi-

be sensitive to the seemingly unbridled privilege that reporters (and every othcr

been victimized by the press - perhaps lured into an interview on the pretext of exploring one particular aspect of an issue.

only to find the edited product, with its fragments of quotations and out-of-context statements. uninfonned case. We don'l to embrace

made them look foolish or or just plain misstated their expect lawyers and reporters and live happily ever after.

But lawyers can and should develop the skills and understanding that will enable

adversarial position and take a more cooperative approach. That's nol to say you can't exhibit strength or passion or emolion. But you mUSI communicate them in a way that is not offensive or petulant. The point to keep in mind is that you will not

some aspect of media relations, Each reporler has a separate understanding of (he terms "on the record," "off the record," "not for allribulion," and "background infonnation only," If you want to use any

be seen as talking to the reporter, you will

be seen as talking to the reporter's readers

reporter have a solid, up-fronl understanding and agreement on what they mean,

or viewers. Lf you seem hostile. the readers or viewers will see that hostility as

Most reporters will honor these expressions. BUT BE CAREFUL! TI,e best

aimed at them. If you seem cooperative, the viewers are more likely to see your

advice is to assume that anything you say

Pittman/Portis Comm""iCllr;o1ls. a Lillie Rock

to a reporter might be quoted. An editor with the Arkansas Democrat-Gazene said it beSt in one of his recent columns: "If you don t want it published, don't say it." 10,) Keep in Mind The Media's Limited ResQurces. If you've filed a 250-page

public relotiollsfirm. in /996. Sial')' Pillman is

issue/clienl/organization as beneficent.

5.) Never Say .. 0 Commem:' The media detests it and the public, without a doubt, will assume you're guilty of something. In many cases, the reporters are not looking for a long comment. but merely seeking a sound-bite or a two-sentence response, usually something to balance out their report. Consider a comment that

of those tenns, be sure that you and the

brief and are looking for some media exposure by hoping reporters will track it down, think again. The print and broadcast media continue to stretch their "1113n-

them to deal with the media in a way that maximizes their effectiveness as advocates and spokesmen for their clients, themselves and their profession. By doing so. lawyers can begin to have greated control

on their image, as projected by the Fourth Estate.路:路 SIOC)' Pittman lmd Jonathan Portis formed

know" for her work in media training and media re/mio1ls and ;s 'he fOllnder of "Highway Hero:'

Jonal/lim Porris, m'er a

lwelltJ-year jOllrtlalism career worked for a

number of newspapers he/ore moring infO public re!ariollS iI/ /993.

Iii. UIi. t Sprilf 119\

HI Irlmas (,lll!rr

Tips on Preparing to Meet the Media by Judith Kilpatrick Arkansas lawyers can respond appropriately and ethically to media inquiries if lhey follow a few simple sleps:

I. Anticipate. Rule 1.1, Arkansas Rules of Professional Conduct, requires that an attorney provide competent representation to a client. Rule 1.4 requires that attomeys communicate with clients 10 the extent lhal the client may make infonned decisions regarding the representation. A competent lawyer should anlicipate lhe possibilily of publicity lhat may be adverse 10 the c1ient's interesl and work closely with the client to minimize negative effects. The attorney and client should analyze the matter for its publicity value. Are the issues presenled. lhe underlying facls, or lhe personalities involved likely 10 be of interest to lhe general public? If so, bolh aHomey and client should give consideration to the lype of publicily likely 10 resuit and lhe effects of Ihal ,lI1ention on the clienl's case, business. or personal life. Is il to the client's benefit to respond to media inquiries? If the matter involves or will involve a trial. what is

the judge's reaction to the c1ient's engaging with lhe media likely 10 be (panicularIy if a jury lrial is involved)? What is known about the pmclices of opposing counsel Wilh regard 10 publicity? 2. Know the Rules. The primary rule

applicable to a lawyer's conduct in the course of trial publicity is Rule 3.6. Olher fules, however, are present by implication and must be taken into account. They are Rules 1.6 (confldenlialily). 1.7 (connict of interests), 3.4 (fairness 10 opposing pany and counsel). 3.5 (imparlialily and decorum of the lribunal), 3.8 (proseculor s special burden). 4.1 (lrulhfulness in statements to olhers). 4.4 (respect for rights of third persons). 5.1 (responsibililies of panner or supervisory lawyer). 8.2 Gudicial and legal officials). 8.3 (reponing professional misconducl). 8.4 (misconduct). In addilion. Rules 3.4 (Fairness to Opposing Pany and Counsel) and 3.5 (Impaniality and Decorum of the Tribunal), while seemingly limited 10 attorney conduct in trial, may be applied to

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attorney conduct outside lhe courtroom that has negative effects on the trial process. (Nole: This commel1l does nOl include references to the rules relating to lawyer's advertising or self-promotion (7.1. 7.2). It would be an improper conn iCI of inlerest (1.7) for an allorney 10 use trial publicity for personal gain.) Arkansas Rule 3.6 was adopted from the American Bar Association's Model Rules of Professional Conducl in 1986. It currently provides that: "(a) a lawyer

inlerpreted by the Arkansas Supreme Court. What this means for the Arkansas lawyer is lhat subsections (b) and (c) of the currenl Rule 3.6 may not be lhat helpful in deciding what 10 do about lhe media. A lawyer will want to reHd both the Gemile opinion and lhe amended ABA Model Rule to dctennine a coursc of action in any particular case,

sholl not make on extrajudicial s(Otemem . .. if- .. it ,\'ill hare a subswmiallikelihood of materially prejudicing an adjudicmi\'e

they should consider whether the)' may

proceeding:' [Emphasis added.] In Subsection (b), lhe Rule lists a number of topics lhat arc considered ordinarily ... likely 10 have such an effecl when they referl] to a civil matter triable to a jury. a criminal malter, or any other proceeding that could result in incarceration, . . . Subseclion (c) contains an approved list of topics a lawyer may state without elaboration: . .. Comment Llito the rule notes an effort to balance the right to a fair trial and the righl of free expression. The lawyer's key concern is to avoid making comments that could negalively affect the legal process in question. Arkansas Rule 3.6 mUSl be il1lerpreted in light of lhe United Slales Supreme Court's decision in Gemile \'. State Bar of Nerada. 50 I U.S. 1030. III S. Ct. 2720 (1991). That case involved a disciplinary proceeding pursuant to an alleged violalion of Nevada's Rule 177 (which contained language almost identical to Arkansas Rule 3.6). While the Coun did not find the Rule's prohibilion of speech lhal creates a substanlial likelihood of material prejudice unconstitutional, it held lhal lhe Rule's safe harbor provision was void for vagueness. In support of its holding. the Coun stated that an aHomey may take reasonable steps to defend a c1ient's reputation and reduce the adverse consequences of [legal aClion] ... in lhe coun of public opinion. The ABA's Model Rule 3.6 was amended following Gentile. eliminating subsection (b) and revising subsection (c). Arkansas has not amendcd its rule, nor has the rule been

3. Planning. If attorney and client

determine that publicity is ine\'itable, pre路empt its major effects with a motion to the court for specific restrictions on what the attorne)'s, parties, and witness路 es may disclose to the media (i.e., a gag order). Given the argument thaI gag orders constitute a prior restraint on news media and the public's right to know. such orders are difflcull to obtain. If a motion is unsuccessful, and involvement in publicity is unavoidable or neccssary. lawyer and client must agree on an approach for responding 10 media questions. Who will speak on lhe client's behalf? In most inslances. the a!lomey will be lhe official spokesperson. but lhat is not necessarily the resull. When the client is a business or other entity. there may be olhers who are more appropriate. \Vhoever is designated to answer questions must know what to say and be prepared for the possibilily of misquotes or misinterpretation of any statements. Some suggestions that may minimize negative coverage are: (a.) Undersland that the reponer is only doing his job. but that success means presenting a story lhat will create interest or sensationalism. The lawyer should assume lhal any publicity is likely 10 be negative. What infonnation ought to be disseminated? Consider what are the imponant poinls of the case 10 lhe c1ient's position and whether communicating them to the media will promole lhe c1ient's best inlerests. In deciding what should or may be said, the lawyer should keep in mind several professional conduct prohibilions: Rule 4.1 (concerning

false statements of Illaterial facl or law to third persons), Rule 4.4 (barring lawyer acts that have no purpose but to embarrass, delay, or burden third persons), and Rule 8.4 (citing as misconduct actions that are dishonest, fraudulent, deceitful, or constilute misrepresentation. or that are prejudicial to the administration of justice). The lawyer should be particularly careful of violating Rule 8.2 (concerning statements about the integrity of a judge or other legal ofticials). (b.) Answer only the questions the Having client wants answered. determined at the beginning of the representation what categories of information or topics should be discussed. stick to those subjects. Lf the question is outside the scope of appropriate topics, or otherwise unwelcome, refocus it. Answer a question that will be more to the client s benefit. If diversion does not work, remind the reporter that lawyers work within the constraints of the rules of ethics and cannot always respond to every question. Use a reporter's questions to educate the reporter and the public about the legal issues at stake, rather than discussing the factual details of the situation. (c.) Clarify the type of conversation the spokesperson is having with a reporter. Does he or she want to be quoted and their name used? May they be quoted, but their name not used? May the comments be used only for background information, without quotes or attribution? Caution requires that this clarification be repeated several times during a conversation to assure understanding. (d.) Keep the conversation honest and simple. The spokesperson should assure that he or she understands each question and takes time to think about an appropriate response. Is the question ambiguous? Ls it comparable 10 the question "When did you stop beating your wife?" When responding, speak in plain English. Do not use legal tenns with which the reporter may not be familiar. If there are public documents that will provide

a complete and better response than can be achieved orally, perhaps it would be useful 10 provide those documents to the reporter. 4. Caulions. The spokesperson should not demonstrate disloyalty to the client (Rule 1.1), reveal confidential or privileged information (Rule 1.6), or inadvertently disclose legal slrategy. The lawyer's responsibility, under Rule 1.2, for determining the means by which the client's goals are achieved, requires that the lawyer control the extent of COI11munication with the media by anyone speaking on the client's behalf. The lawyer is also responsible, under Rule 5.1, for any statements made by persons under his or her comrol, e.g., investigators, paralegals. secretaries and the like. Support staff should be instructed not 10 discuss the client's business with third parties. Prosecuting attorneys, because of their role in representing interests of the state, are given special responsibilities under Rule 3.8.

BAKER, DONELSON, BEARMAN & CALDWELL

A final concern is with an opponent who is deliberately revealing infonnation in an anempt to sway public opinion. In this situation, renewed consideration should be given to the possibility of obtaining judicial restriction of media statements or a motion for sanctions. In situations (usually criminal matters) where negative publicity occurred before the attorney's involvement in the maner, a calculated use of the media in disseminating information may be needed to level the playing field. Anomeys should be careful that their statements are limited to responding to the hostile situation while not exacerbating it (Rules 3.4, 3.5). A reading of the Gemile opinion will be most helpful in such instances.

Judith Kilpatrick is a" Associate Professor at the University of Arkansas at Fayeueville, teaching in the areas of professional responsibility and skills (iflferviewing. cOll11seling. negofiation. alternative dispute resolUfioll. Gnd law practice managemem).

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Thr lr~IOla! I,l,,}rr

Pro â&#x20AC;˘ Con When Lawyers Talk to the Press: Does it Do More Harm than Good? PRO ACTIO - - -ROLL EM In 1991. Solicitor General Kenneth Starr argued before the United States Supreme Court that the evada Supreme Court's private reprimand of a criminal defense attorney, who presented a prepared statement to the press following his client's indictment. should be affirnled. Solicitor Starr lost. In reversing the reprimand. Justice Kennedy stated: "An atlorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss aner trial. so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment in the court of public opinion that the client does not deserve to be tried." Should the allorney confront the media when he or she is engaged to represent a high profile case or client? Our public has an unquenchable thirst for courtroom and trial drama. This thirst certainly drives the media. The nation's best selling fiction author writ.es about legal dramas. The subject may concern an aupair accused of murdering her host's child. a fornler football star accused of murdering his former spouse. siblings who are accused of murdering their parents, or former business pal1ners of the President of the United States accused of being involved in crooked land transactions. Good coverage of these events causes a boost in ratings. Because of this thirst the media is always ready to go with a story which focuses upon the misfonune of the person who has been accused. The press always has a wealth of infonnation to draw from for the next edition, as well as an army who are charged with locating additional sources for different angles.

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Your client's charge is a mailer of public record. as are all of the other pleadings in the case file. There are always those who know or knew your client. who find themselves enamored by t.he immediate attention that they are given when they are suddenly presentcd with the prospect of seeing their names in print. Rumors. hearsay, and sheer speculation are 110t mailers which may be excluded from the hearing of the jury. but provide excellent headlines and sound bites for the next story about your client. Their slOries. for the most part, will not be kind to your cl ient who stands accused. You, as the attorney. are many times the only person who stands between your client and the public. The news coverage permeates into the coffee shop. the beauty parlor. the social club, the church. or becomes idol gossip of all persons who have a penchant for reveling in the misery of others. Everyone is touched by the debate of whether the accused is guilty. when the matter is of great public concern. ot a single reader can say that they did not engage in a discussion of whcther O. J. was guilty of killing icole. It is impossible to find a juror who was not opinionated one way or the other, even though these people will someday state that they had never fornled an opinion about a case. when questioned. The United States Supreme Court has recognized the burden that an attorney faces. when representing a client in a high profile case. The allorney has advised his client to enjoy his silence. However. on the front page of every paper in the State, and sometimes. the nation, as well as the lead story on every television news your client is being hammered. You must allempt to level the playing field. The only possible manner in which you can accomplish this is through the courtroom of public opinion. To remain totally silent. in the face of overwhelming coverage of the accusations, is not proper and adequate representation of your client. This is not to say that there arc times when the allorney must avoid the media. ever should counsel seek to make a rou-

tine case sensational. Never should the anorney make statements that are contemporaneous with jury selection. or timed for the sole purpose of affecting the opinions of potemial jurors. Nor should the attorney engage in tactics where he tries his or her client's case in the media. However. when faced with the high profile case, the attorney must step forward and represent his client in the public forum. I once heard a colleague make a comparison to the presentation of the government's case. through drawing a mental picture of looking through dirty window panes. which cause the outside world to be distorted and dirty. This. as opposed to looking through the window pane that has been cleaned. where the clear colors of nature's beauty can be seen. In representing your client before the court of public opinion. you have a duty to wipe the dirt from the window pane and explain the case as if you were viewing it through a clean pane of glass. Initially. when the c1iem makes his firsl appearance to answer the charges. the attorney will have an opportunity to make a statement to the media. Hopefully. you will not find ten satellite trucks and hoards of persons with boom mikes waiting for you in front of the courthouse. but you may. Your statement should be well thought through. The last thing you would want to do is make a statement which adds to the plight of your poor client. If you are not prepared. arter the media finds their favorite sound bite. the antidote that you gave in a joking manner could become the le,ld headline. Be re(ldy. Know what you are going to say. When you face the press. you should have already made the detemlination of whether you arc going to attcmpt to answer questions that will be ask following your statement. I would suggest that you not engage in this practice. Make your statement clearly, concisely. and state that you have no more comment. The press will always have additional questions. Generally. the reporters who are

Pro â&#x20AC;˘ Con When Lawyers Talk to the Press: Does it Do More Harm than Good? Firsl. the following will primarily address public comments made by lawyers who are not representing parties. Those who represent a party are restricted by the Model Rules of Professional Conduc!. and

sometimes by orders entered in a specific case. Addilionally. First and Fifth Amendment considerations may be

involved. This is a complex area. and I do not purport to resolve the questions involved. I will say that, as a practicing lawyer. I almosl invariably followed the "no commenl" philosophy. In facl, I can

only remember making public comments in one case in which I represented an accused citizen. I realize that the "no comment" approach is 1101 mllch in vogue nowadays, but I slill believe it 10 be lhe bes!. despile the client's powerful desire 10 have the lawyer fight back in lhe media. Now. to "color comments" by lawyers 1101 involved in the case. Not long after John Adams arrived in Philadelphia the first lime, he wrote Abigail that he had met many young men "with a passion for distinction:'1 TIle desire to appear as a guru in lhe media seems to go along with the usual Irial lawyer passion for distinction. So. let me point out, here at lhe fronl end, that I do not expect whal I say to appreciably affect the availabilily of trial lawyers and law professors to make comments when the media comes calling. I see nothing wrong in general comments about the nature of judicial proceedings (e.g. the plaintiff/government goes first. a witness before a grand jury is not entitled to have a lawyer present. etc. ), but I doubl that lhis lype of comment will be much in demand. I suppose that this "color-eomments-asyou-go" wafted over from lelevision coverage of sports. But, hey folks. sports are emertai"mem. A trial is not designed to entertain spectators (although some trials may do so). I find commentary during the course of a trial, especially a jury trial, disturbing. This includes pre-trial comments. Most of lhe color commenlary is based on sheer speculation. I repeal. sheer spec-

ulatioll. We constantly see (or read) comments on whal a lawyer for a party is thinking when she presents certain evidence. or makes certain argument. or files some motion. How in the world can an uninformed byslander. no mailer how able. when she or he is actually involved in a casco know. or have any reasonable idea. what a lawyer is thinking at a particular time? The late Irving Younger said that a jury trial is the most complex institution in the common law world. Every trial lawyer knows thaI a multitude of considerations often go into a tactical decision. Often these considerations are based upon confidential information which the commelll(llor cannOl possibly know abou!. Only in the rareSl of cases will ajury be sequestered. In a trial of any lenglh il is inevitable that public comment will tend to invade the jury room, regardless of how conscientiously the members of the jury allempl 10 follow the judge's instruclions to avoid all media infomlation regarding the case. Furthermore. this problem does not apply only to jury trials. An English barrister of the lasl century remarked. "A judge is but a juror in ennine skin robes." Most judges read the newspaper. listen to the radio, and watch television. While many comend that judges are trained 10 disregard extraneous information. I am not satisfied. The best course for the judge to follow is 10 do everything possible to

avoid seeing or hearing any media comment about a case he is presiding over. It is not unusual to hear an "expert" give a definitive opinion on the weight of the evidence. the credibility of a witness. etc., when that expert has very little informalion regarding the delails of the case. The commentator may be well versed in a particular area of the law. but factual nuances may make a major difference in how lhe law is applied. Yel the media seems 10 have an endless supply of experts who are ,IS confident as a Christian with four aces on any given point. no matter how complex. and no maller how little the guru knows about the specific facts. A trial is a serious fact-finding procedure - a search for the truth. Public commenlS by lawyers and law professors do not, in my opinion, well serve this search.Âˇ:Âˇ I. I believe that it was also during this first trip that he met Thomas Jefferson and wrote the poigmmt line to Abigail. "He has seized upon my heart:'

Judge William R. Wi/sou. 11: has beeu a UI/ited Stmes District Judge sil/ce /993. He was formerly a parmer in the Lillie Rock lawjirm afWilsoli. Engstrom. Corum & Dud/ey.

Charles B. Itzig, Jr., M.D. F.A.C.S. Research and Review of Potential Medical Malpractice Claims Specializing in General and Laparoscopic Surgery with 25 years of private practice Associates in Major Fields Available HCR 62 Box 87 A Flippin, Arkansas 72634-9735

Phone: 870-453-4635 Fax: 870-453-7706

lol.ll II. tlSpriug 1995

Tlr

\r~aBlall.a\l)rr

Celebrating 100 Years

LAW ON THE FRONTIER: The Superior Court in the Arkansas Territory by J. W. Looneyl ndrew Scott and

This episode is but one example of the

Joseph Selden worked together for three years.

rough and tumble nature of Arkansas law

They sometimes differed in their opllllons, but

lore often agreed. Both were Virginians

and politics in the territorial period. Couns were established (0 provide a forum for the resolution of disputes, but more direct methods were yet popular. even among

members of the bench and bar.

""...........and had arrived in Arkansas seeking adventure and professional challenges. Both were supporters of President James

When the Louisiana Territory was transferred 10 the United States in 1804 it brought with it an established civil law tradition with French roots but with almost

Monroe and came to Arkansas

fony

his

request.

In 1824 during a card game in Lillie Rock, Selden made a remark to the female companion of Scott to which SCOIl took offense. The dispute led to a final meeting

years

of Spanish

experience.

Arkansas Post. like other areas. was under the jurisdiction of the post commandant. a

military officer who also served a judicial function.

vice on the bench. A replacement on the

Legal disputes handled through the established procedures were apparently rare. As Judge Arnold suggests: ''The hunters. the COllrellrs de bois. the bulk of the Arkansas population of roughly 600 at the end of the Spanish period. simply regulated their lives by whatever light nature could provide them:" When the transfer to the United States occurred. the old legal ways cOJ1linued for

fill the vacancy created by the death of Superior Court Judge Joseph Selden'.

three years or so until some effort was made 10 organize an American-style COlirt in Arkansas Post in 1808. albeit one con-

on a sandbar in the Mississippi River across from the Arkansas Territory, where

Andrew SCOIl fatally shot Joseph Selden. They met at the river to avoid prosecution

in Arkansas Territory where dueling had been outlawed by the territorial legislature. Superior Coun Judge Andrew SCOIl returned (0 Arkansas to continue his sercourt was soon appointed to

;; Up Irllll.llllll!pr 111.11 Il! S,ri!! 1m

sisting entirely of lay judges: a Coun of Common Pleas and Court of Quarter Sessions. The convening of the Coun of Common Pleas at Arkansas Post on December 5. 1808 was likely the first such court to sit there 4 .

The Missouri Territory had been officially created on June 4. 1812 and a County of Arkansas created on December

13. 1813. A new Court of Common Pleas was established and in 1814 an additional judge was authorized for the Missouri Territory and given exclusive jurisdiction to reside at or near the village of

Arkansas. George Bullit!. from Ste. Genevieve. was appointed to that judgeship as the first professional lawyer to sit on an Arkansas Court. He served For five years until the Territory of Missouri was

divided iJ1lo two parts. one of which became the Territory of Arkansas effective July4.18195 . When Missouri Territory was divided

in 1819. the Act dividing the territory provided for the appointment of three Superior Coun Judges. These first judges. along with appointed executive branch officials, were authorized to serve a legislative function until such time as a regu-

lar legislalive body could be organized in the lerritory. Andrew SCOII along with Charles Jouell of Michigan and Robert P. Letcher of Kentucky were named as the first

Superior Court Judges." Under the laws of the Missouri Territory, which were extend-

ed 10 the newly eSlablished territory, Superior Coun judges were assigned to Districts and were required (0 hold coun as Circuit Court judges in addition to their

duties on the Superior Court. In 1821, the

Judge Johnson was the "founding mem-

ber" of whal became an Arkansas dynasty the Johnson-Conway-Sevier families that dominated Arkansas polilics during the entire amebellum period. These judges, SCOII, Selden and Johnson, aCling in an appellale capacity, reported Iwenty cases in the three years prior to Judge Selden's death in 1824. 10 The firsl reported decision of the Superior Court was rendered by Judge SCOII. alone. in January, 1820 prior to the

Superior Court was given original jurisdiction in criminal cases. concurrent jurisdiction with inferior couns, and exclusive appellate jurisdiction in civil cases with any two of the judges empowered to sit on

arrival of the replacements for Jouett and Letcher. This case. United Stales v. Dickinson, I I involved a proseclltion for rape in which the objection was made that

appeals.' Apparenlly, two of Ihe original Superior Court judges, Jouen and Letcher,

lilal potential jurors had been improperly discharged. These objections were over-

left the Territory without ever serving in a

tained. Two interesting sidelights appeared in the reported case. The court sentenced Dickinson to be castrated "according to the law:' A note indicates that the sentence was not carried out since Governor

tI,e indiclment was improperly drafted and

ruled and Ihe jury's verdict of guilty sus-

lims had been permined by Congress to obtain certificates for 160 acres of public land anywhere in the U.S. A William O'Hara had obtllined three of these certificates related to the site of Lillie Rock. He had assigned a partial interest to Stephen F. Austin and Austin's brother-in-law, James Bryan. Amos Wheeler represented these claimants. This area partially over路

lapped a claim (by preemption) made firsl in 1814 by William Lewis but claimed in 1820 by William Russell and Benjamin Murphy. The competing interests both

sought to have Linle Rock named as the capital, and a number of prominent individuals had invested in one claim or the other. Judge Scott apparently had invested 111

the

Russell-Murphy

preemplion;

Governor Miller. for example, had an interest in the Wheeler ew Madrid c1aim. 14 Wheeler had offered to the legislature.

judicial capacity. They participated in the Provisional Legislature, then lef!." Judge Jouett may have actually commenced a move 10 Linle Rock, but, according to comments in the Arkansas Gazette in

James Miller had pardoned Ihe defen-

November 1820, he was "driven from the Territory by a swarm of mosquitoes, at the mouth of the White River, while on his way to this place. and within about eigh-

dant. 12 Perhaps, the most important case in the early territorial period is the second reported, Russell v. Wheeler 13 heard by Judges

teen miles of his place of destination:")

Scon and Johnson in June, 1821 before

tain lots for use of the Territory and promised to furnish accommodations. Russell then brought a suit for trespass on behalf of the preemption claimants. The reaction of the New Madrid claimants was to move the town. 15 A compromise was soon reached by the exchange of part interest in the competing claims so that the

No menlion is made as to what caused Judge Letcher 10 leave the territory and

Selden joined actively in the court's work. This case grew out of the controversies

capital could be established. After Judge Selden" death. William

there was apparently some difficulty in finding replacemems for both. The Ga:ette nOled that Judge Jouett's

on behalf of Ihe New Madrid group, cer-

Trimble. who had served as a Circuit

Anomey. a member of the legislature and as judge of the Third Judicial District, was appointed as his succes-

first named replacement, John Thompson, turned on his journey to Arkansas Territory after hearing

See page 24

reports of Ihe "unheallhiness of this place, by travelers from Ihe upper coumry:'

Judge Scott held court by himself ...._-==:;..;;;'""'....... from January 1820 umil in mid-1821 when Benjamin Johnson of Kentucky arrived in Little Rock as the second named replacement for Judge Jouett and participated in

Court sessions starting June 18, 1821. Later thai year the third member, Joseph Selden of Virginia, succeeded Judge Letcher. As mentioned earlier, Judge Selden served until killed in the duel with Judge Scott in 1824. SCOII served the remainder of his lerm in 1827. and was reappointed but failed 10 gain Senale confinnation. Judge Benjamin Johnson served until statehood in 1836 and then was appointed as a U.S. District Court Judge. a

position he held until his death in 1849.

seat government from Arkansas

Post to Linle Rock, and, in particular, the competing

land claims for the lown-

sit

Following Ihe New Madrid earthquake of 181 I, the vic-

III. II lD. ilSpring 1995

nr .Ir~mall,lll)rr !.

From page 23 sor. 16 Trimble's service on the court con-

tinued until 1830. He had announced as a candidate for congressional delegale in

early 1823 but withdrew his candidacy after a conference in which he, along with another future member of Ihe court, Thomas P. Eskridge, were induced to withdraw from the race in favor of Henry W. Conway, who claimed 10 have secured the promise of James Woodson Bates not to run again. 17 This was a mailer of great controversy and contributed, in pan. to an eventual polilical schism among Ihe leading figures of Ihe Territory.

When Scon's tenn ended in 1827 he was renominated by the President but his

appointment was rejected by the U.S. Senate 23-14 following a Judiciary Committee report concerning his involvemenl in the duel which resulted in Selden's death. ls The territorial legislalure (unoffi-

cially) urged Scon路s reappointment and he was supported. to no avail. by a number of prominent leaders in Little Rock. 19 SCali was subsequently appointed as Circuit

Judge with full support of the Arkansas bar. He was an unsuccessful candidate for the legislature in 1827 and. following Ihe political campaign was confronted by Ihe successful candidate, General Edmund

Hogan. Judge Scon was knocked down during a heated exchange, drew a sword from his cane and thrust it several limes

as a member of the legislature and as a member of the statehood constitutional convention in t 836. 20 Scott County is named in his honor. Judge Scott's replacement on the Superior Court was Thomas P. Eskridge, another of the candidates for Congress who had wilhdrawn in favor of Conway in 1823. Eskridge was serving as a Circuit Court Judge al the time of his appoint-

ment. He was supported by Conway for the Superior Court posilion. 21

Eskridge

was apparently not too highly regarded by lawyers who practiced in his court. This may have resulted from his own intemperate language regarding members of the profession which he had included in a Irial court opinion in 1824 which Judge Arnold calls the earliest surviving opinion of a trial court. 22 In the opinion. Judge

Eskridge states: ''The court may be pennined to remark in conclusion that it hopes that this decision may operate as a salutary admonition to the gentlemen of the Bar. It is a fact too well attested to admit of doubt Illal most cases which are lost may be ascribed to the inallentions of the Bar.''2J Judge Arnold indicates that Ihe Eskridge's remarks about the bar "reflect a class war"

being waged to make the law a leamed

profession. 24 During the 1827 legislature. an act was

passed to request a fourth judgeship on the Superior Court. Congress adopted this

change on April 17, 1828 and fonner delegate James Woodson Bates was named to the posilion by President Adams. 25 His appointment meant that the Superior Court in the October 1828 tern1 would be com-

posed of Trimble, Eskridge. Johnson and Bates. This foursome served together for two years.

In 1830 Judge Trimble was replaced on the court by Edward Cross. The exact circumstances surrounding the appointment of Cross in Trimble's stead are unclear.

Governor John Pope had journeyed to Washington in the spring of 1830 and had apparemly spoken well of Cross. He denied reports that he had attempted to have all the Superior Court judges removed from office. 26 During the campaign of t 831 suggestions were made that

Trimble had been removed because he had opposed delegate Ambrose Sevier." Judge Cross served until statehood. He has the distinction of being one of only two members of the Superior Court 10 also serve on the Arkansas Supreme Court after slatehood. Cross also served three tenns in Congress and Cross County is named for him.

During the two year period, 1830-32.

through Hogan's body who died almost

the Superior Court was composed of

immediately. SCali was not prosecuted for this action but he did leave Pulaski

Cross, Eskridge, Johnson and Bates. They heard sixteen cases, two of which are of particular interest. In Grande \I. Foy,28 the court concluded Ihal Ihe common law had

County to senle in Pope County in a place he named Scotia. He subsequently served

COUNTY SEAT OF JUSTICE M)' Im'e affair ...ith Arkansas matured ...hen I realiud the treasures of our Arkansas courthouses. It is tacky to quote one's self, but at limes (some might sa)' al...a)'s) a young la...yer's .'i....point is belter Ihan an older ones Consequently, I have quoted in this article passages written almost two decades earlier. Forgi\'e me for restaling a case, bll/ it appears 10 have stood the test offume. John P. Gill

n, .Ir~mls I.lll!Ir

iiI. 11 10. !/Sprio! 1995

In America one structure more than any place else represents freedom. It is not the Statute of Libeny. it is not the ational Archives. housing Ihe original Constitution parchment, it is the counhouse. It is the place in America where worlds collide - the jilted lover, the abandoned child, the tycoon and the thief. They all come together at the crossroads of each county. The counhouse has always

by John Gill

been a symbol of good and evil. Cases of baby fannula for indigent mothers can be found stacked in the same counhouse displaying confiscated drug paraphernalia. We are 100 quick today to use acronyms and abbreviations; so it is with the "county seal of justice," a name no longer familiar to Arkansawyers. A look at Arkansas counhouses is a reminder though, of what our forbearers thought about this idea of a

been adopted in Louisiana Territory as far back as 1807 and "indeed prior to that time." This opinion by Judge Cross has been characterized by Judge Amold as

eries; and that Samperyac was a fictitious person. The government requested that the court annul the former decree. The court reversed all the prior decrees based on new evidence produced by Ihe government. The court made special nOle of Ihe faci that numerous transfers that purported to have been made to Bowie were attested by

the same witness, John Cook. They questioned whether this same person could have been present on several different days at different locations to witness the transfers from different original claimants to Bowie. The court's reversal of the prior decrees was appealed to the United States Supreme Court and argued al the 1833 January term. The high court held Ihat the original decree was a nullity and that Bowie had never acquired any title in the property and given that fact, the transfer to Steward passed no right or tjtle to him.)l In 1832 Bates was no longer sitting with the couri. He was removed, perhaps because of his support of Benjamin Desha who ran an unsuccessful race against Sevier for delegate to congress in 1831. Charles S. Bibb was named as his replacement on the court but Bibb did not parlicipate in any cases in 1832. His only recorded act was to license an attorney in June of 1832. He died on OClober 15 of that year and Alexander M. Clayton was named to the court. 32 Clayton served only during the January 1833 lern, and apparently resigned soon thereafter although there is some evidence that he remained in Arkansas, perhaps conducting trials in the Circuit Courts for a few additional months. 33 During this period, 1832-33 and Ihe first tenn of 1834, lhe primary work of the courl was conducted by Judges Eskridge, Johnson and Cross. Of Ihe tot,,1 of Ihirtynine total cases from January 1832 until July 1834, almost all involved debt collec-

courthouse being a place of justice. Emblazoned above the door of the Crittenden courthouse are the words "Obedience to the law is liberty." At the Cleburne Counhouse door are the words "Let troth be spoken and honesty and justice prevail." The Mansawyen that built our courthouses constnlcted reminders of justice. We Americans are quick to equate our freedom with the Declaration of Independence. but the Declaration of Independence speaks of revolution. The concept of justice is found in the Constitution. which each official in the courthouse lakes an oath to support. and it is the Constitution which underlies that concept of justice in each courthouse. In many instances. it is the Constitution that causes courts. judges and lawyers to be criticized today for "turning criminals

loose." And the modem lawyer is sensitive. even defensive. about these charges. but technicalities have been a symbol of justice since the common law. One technicality is the courthouse itself. In the early part of this century. the Arkansas Supreme Court was faced with determining the validity of a conviction for assault with intent to rape where the prosecuting witness was too ill to testify and the trial adjourned from the courthouse to a hotel across the street for the purpose of laking the willless' testimony. Mr. Justice Hart, speaking for the Court. was not troubled by this technicality. and said simply: "It would detract from the majesty of the law, lessen the dignity of courts, and cause trouble and injustice to litigants if the courts should be held at any other time or place than that provided by law." Mell " State. 133 Ark. 197. 20Z S.W. 33 (1918).

"discursive and incohercnt"29 but it is the only opinion in which the Arkansas territorial court addressed the question of the adoption of common law instead of civil

law. The second significant case of this period was the most detai led and lengthy opinion of the territorial era. The case is of significance because it resolved dozens of controversies growing out of Spanish land

grants that dated back to 1789. The case, Unired Stares v. Samperyac and Stew-

0,.,.30 involved claims that have been

COI1-

fimlcd by a previous decree in December 1827 in favor of Bernardo Samperyac and others for four hundred 路'arpens" of land each. The fonner decree had been based on purponed land litles which reflected that Samperyac had acquired the land by a grant signed by the Spanish Territorial Governor Miro. The title showed a subsequent transfer to John 1. Bowie and from him to Joseph Stewart. The United States took Ihe position thaI the decrees were obtained by fraud; thaI the documents in question were forg-

tion or suits on various types of obligations. One criminal case is reponed and one involved a procedural matter relating to grand juries. 34 One change made in July 1834 was the appointmenl of Thomas J. Lacy to nil the vacm,cy crealed by the departure of Judge Bates and his replacements Bibb and Clayton. Judge Lacy would serve until statehood and would later serve on the Arkansas Supreme COUri as welPs One interesting episode during 1833 involved an attempt to impeach Judge Benjamin Johnson brought by Pulaski County attorney, William Cummins. Cummins received supporting testimony from fourteen witnesses including fanner Judge Andrew Scott. The charges against Johnson included excessive drinking on the bench; thrcatening to cut the throat of a citizen al Ihe polls in 1829; and, failing to punish an attempted murder. With regard to his judicial conduct he was accused of "strong partiality," violating laws he was bound to administer, giving opinions before causes werc submittcd and "inconsistent. vasallating [sic], and contradictory" opinions. 36 Judge Johnson was supported by letters from his Arkansas friends and was vigorously defended by his son-in-law, Sevier, before the House of Representatives. Among his supporters were his fellow judges Edward Cross and Thomas P. Eskridge. The House Judiciary Committee examined the charges while expressing doubts thaI impeachment was proper for a territorial judge and voted in favor of See /J{ff!e 26 In reversing the conviction on a technicality. the Court quoted from an early Mansas case reported in the second volume of Arkansas Reports as follows: "The common law defines a court to be a 'place where justice is judicially administered,' and therefore to constitute a court there must be a place appointed by law for the administration of justice. and some person authorized by law to administer justice at that place, must be used for that purpose." L. Justice Hart's analysis included the observalion that: "The manifold mischiefs that might arise from permitting a court to assume a migratory character and travel from place to place in the same locality or even in the same town are manifest." I-I. The location of the courthouse has always been intriguing. Universally, the old courthouses were built at the most imponant intersections in the county.

rol. 11 .ro. :!ISpring IY9S Thr .Irkanll! 1,11I)rf !l

From page 25 Johnson. The full House never voted on the articles of impeachment and Johnson remained on the bench. 37 What conclusions may be reached from this review of legal activity in the 1803-1836 period? Clearly, Arkansas was "frontier" but its character was changing rapidly. A part of Ihat change is reOecled in the developing political institutions including the courts, as the area progressed toward statehood. The prominent participants in this process included a number of young lawyers who saw the potential of political careers in the new territory.38 Various economic opportunities attracted many of these men, especially in Ihe early years when the pOlential for living on a lawyer's income was limited. Many engaged in other activities, especially land speculation, and supported Ihemselves with a variety of public positions. Judicial appointments were particularly attractive and many future state politicians were, at some point during the territorial years. members of the judiciary. The Superior Court was the plum appointment. NOI only did it provide a sleady income. it served as a base of operation for political activities which, in today's world, would be considered inappropriate. No better example of political success

is found Ihan that of Judge Benjamin Johnson, whose brother Robert was Vice President of the United States from 1837 to 1841. His son-in-law, Ambrose Sevier, was congressional delegate and later United States Senator. His son, Robert Ward Johnson, served both in Congress and the Senate. The elder Johnson died "rich in this world's goods, rich in honor, and rich in the esteem of the entire people of Ihe State:'39 Judges Eskridge and Trimble were frequently cited as examples of poor men who made money quickly. Trimble, it was said, came to Arkansas "clad in homespun and dreams" and in just ten years left the state with 路路$20,000 in gold honeslly made, something better than any lawyer in the Mississippi Valley had been able 10 do up to that time..w Andrew Scott "acquired a fortune in private life."41 James Woodson Bates, founder of Batesville. in the early years, was a real estate agent. He eventually "married a wealthy widow and became stationary on a rich farm near Van Buren:',J2 Edward Cross, after service on bolh the Superior Court, the stale Supreme COLIrt and in Congress took an active part in organizing the lron Mountain railroad and was its president for seven years. 43

Merchants clustered around the courthouse. Modem Arkansawyers have forgotten that the courthouse was the most imposing structure in the community. Arkansas' earliest courthouse still in use was built in 1870 in White County, five year after the end of the Civil War. It is one of only nine still in use which are older than the Arkansas Bar Association. ['The others are Crawford (1878). Fulton (1892). Green (1888). Jackson (1892). Perry(1888). "old" Pulaski (1887). Searcy( 1889). and Lake City District. Craighead (1883). Courthouse design reOects life in Arkansas. The rather simple Wolf Courthouse for Baxter County reOects the simple unpainted world of the Arkansa~ Territory in 181 J. The magnificent towered Washington, Monroe and Jackson Courthouses reOeet a dynamic, boundless optimism of their presidential namesakes. The Arkansas Adamesque style of the Stone and Montgomery Courthouses reOects the sturdy independence and self-reliance of the Arkansawyers who clawed a living out of

the mountains. The bureaucratic style of the Hempstead. Randolph and Miller Counhouses reOects the submissive reliance on government during the WPA recovery from the Great Depression: and the Sharp, Cross and Nevada Courthouses reOect the mid-20th century institutional trend in buildings that could pass for modem banks or libraries. The location of the county seat of justice is even more intriguing. and complicated by the fact that Arkansas has ten counties with two county seats that were originally created, for the most part. due to terrain, Now a juxtaposition of community pride and confusion creates an anomaly unique to Arkansas. In a recent decision, the Arkansas Supreme Coun was forced to determine that dual county seat counties are in fact two separate counties. The Coun was called upon to determine the effectiveness of notice filed in the Fon Smith District of Sebastian COUnty concerning property located in the Greenwood District of Sebastian County. both of which have courthouses, One statute

Tbr

Ir~anslll,l\\Trr

Inl.ll \0. :!ISprinf 1995

The issues before the court rellecled the changing nature of the society as well.

Prominent among the disputes were those surrounding claims 10 land. These controversies involved not only the political leaders and other citizens but, sometimes, members of the judiciary themselves. Conflicts over debts and other obligations dominated the workload of the courts and some evolution of other commercial disputes is noted. Interestingly, a relatively small number of suits involved criminal matters or tort claims. Presumably, l11any disputes of a personal nature were still handled outside the structure of the legal system. Dueling remained a COl11mOI1 means of dispute settlement even among prominent leaders. 44 One additional conclusion is suggested. A professional class was evolving as society changed. The initial group of lawyers in the territory were, al best. marginally qualified to practice law. Even Ihose appointed to Ihe bench had limited lraining in lhe law. For example, of the fourt.een Superior Court judges to serve during the territorial period, none had anended law school. Only two were college graduates. 45 Even with these limitations, it is clear that a professional class of leaders, including the bench and bar, would soon emerge. The "rich and powerful" in the territory by statehood included a significant number of lawyers and judges.46

required the establishment of "a recorder's office" in the "seat of justice of each county," and another required that the notice in question be filed in the office of the "recorder of the county in which the trust property is situated." The Supreme Court therefor held that the "sensible approach" was to treat each district as a separate county, thereby requiring a duplication of offices in each district. Henson \'. Fleet Mortgage Co.. 319 Ark. 491, B92 S.W.2d 250.252 (1995). Arkansas therefore has eighty-five county courthouses and seventy-five counties (or is it eighty-five?), and twelve federal courthouses counting the bankruptcy courthouse in the restored federal building in Linle Rock. In looking at some of these courthouses. one is prompted to inquire whether or not we have changed our respect for the law and its illusive concept of justice by the way in which we have changed the appearance and imponance of the special building sitting at the county seat of justice. and its federal counterpart. All too often they have ragged jury rooms,

Drawn by opportunity, many capitalized on Ihat opportunity by using Ihe legal system as one means of achieving social and economic success.•:.

II. 12.

The pbotogrnphs used ill Ibis nrticle were used

with permissioll of101m a"d MmjemGill. coau/bors oftbe book 0" the Courthouse Square ill Arkmulls. Endnotes

Distinguished Professor of Luw. University of Arkansas. Fayetteville. Stevenson. C.R., Arkansas Territory-Stale alld lis Highes! Courts (Linle Rock: _ 1946) p. 13. hereinafter "Stevenson:' The duel effectively ended Judge Scotl's sllccessful tenure on the Superior Coun bench although he was not removed from office. When his term expired in 1827 he was reappointed by President John Q.

4. 5. 6. 7. 8. 9. 10.

Adams. The senate f:tiled to confiml his appointment due to objections by friends of Judge Selden. Arnold. Morris S .. Unequal Lows UmoA Samge Race: European Lt>gal Traditions ill Arkansas. /686-/836 (Fayctteville: The University of Arkansas Press. 1985) p. 112. hereinafter "Arnold:' Arnold p. 156-168. Arnold p. 175. Stevenson p. 4. Slevenson p. 6. Slevenson p. 8. A/'kansas Ga:erre. November 18. 1820. S.H. Hempstead collected these decisions and compiled them in 1856 as Hempstead's Reports. In the preface he indicated thaI Judge Johnson wrOle oul his opinions and gave lhem to Hempstead before his death. Judge Johnson died

false acoustical tile ceilings", plywood covered windows, and sterile buildings. Mell". State, supra clearly stated almost a century ago that the building in which lawyers worl< is a place where the public can find majesty in the law, and no other place is appropriate for the administration of justice, not even for one who would attempt rape. The courthouse is a symbol of "ArI<ansas people and their most preciou heritage, the freedom of self-government. These buildings which have become ymbols of the law also reflect that all citizens - not just lawyers - are responsible for establishing and preserving the law, because many per>ons, especially architects, have had a direct influence on the character of our courthouses. 'The same may he said of the courtrooms which stand at the center of the judicial process." Gill, "On the Courthouse Square" in Arkansas., MJG Publications. Preface (\ 980). It can he argued that today's lelevision. telephone conferencing. and computer-animated reenactment do not require marble columns and statues, much less stained glass domes. But a win-

13.

14.

1S.

on October 2. 1949 after serving for 13 years as U.S. District Court Judge. His Dislrict Court opinions also appear in Hemp:.;read· s Reports. Hempstead's Re/lorls I. Hempstead apparemly added lhe notes when he compiled the opinions. In one nole. reference is made to an "old notion" that if a woman conceived. mpe had nOI occurred because. in thm case. she must have consented. The note indio cates that thaI notion has been "quite exploded" and refers to a medical jurisprudence text as well as olher sources. J-Iemsteatl's Re/HJrfs 3. While. Lonnie 1.. Poliric.\· on the Southwestern Frontier: Arkansas Territory, /8/9-/836 (Memphis: Memphis Stalc University Press. 1964) p. 30-31. hereinafter "White." Ross. Fmncis Ross. "Some Arkansas Cases:' Arkansas LlIIl'yer (April 1985) p. 75·77 quoling Dallas T. Hemdon. Why LillIe Rock \Vas BOI"/I

(L;llte Rock. 1933) p. 139·140. 16. 17. 18. 19. 20.

Stevenson p. 60. While p. 27. White p. 49-50. Slevenson p. 13. Stevenson p. 59. Also sec Hallum. John. BiographiCliI all(/ PiclOrial NiJlOry of Arkansas (Albany: Weed. Parsons and Company. Printers. 1887) p. 62-63. hcreinafter "Hallum." 21. While p. 50.

22. Arnold p. 199. 23. 24. 25. 26. 27. 28. 29. 30.

Arnold p. 234. Arnold p. 229. While p. 89. While p. 107, Herndon p. 185. White p. 120. Hell/ps/ead's Ri'ports 105. Arnold p. 193. Hempstead's Reports 118

dowless courtroom with a television monitor is no place to find the light of truth. The early Romans prohibited trials at night, not because of lack of electricity, for they had artificial light: these early jurists conducted trials in the light of day at a time when it was thought that light c1arifted truth. If jurors in the nineties sit around a room which could pass for a corporation conference room or a comer cafe, then their job of finding truth does not seem to he any different from their daily routine. BUI if jurors sit in a room emphasizing the majesty of the law, then jurors. by their very environment, can understand that their duty is a higher calling. Speaking of Romans, the current Arkansas courthouse still reflects Roman trials two centuries ago. The names of Roman jurors were drawn from an urn. The parties were summoned by a cilalio(n). The place of trial was called a forum, and the judges sat on a raised platform. Clearly, the tradition of ArI<ansas jurisprudence finds its roots in the common law and the law of Rome. and "is repeatedly reflected in both the exterior

31. United States v. Sampeyreac .llld Slewart. 7 PeterJ 222 (1833). For some reason. lhe reporl on the case in the Supreme Courl uses a different spelling of "Sampeyre;\c:' 32. Stevenson p. 14. 33. Sleven son p. 14-15. 34. According to Hemsread's R£'ports in July 1834 lhe court wa... joined for one easc by Archib:lld Yell who would later be appointcd to replace Judgc Eskridge. It is nOI entirely clear if this C.ISC was actually handled in July 1834 as reported because Judge Yell regularly appears in the July 1835 tenn and anOlher case involving the same panics is reported in the July 1834 tcrnl in which Judge Eskridge participates. Apparently. Yell did nol begin his service on Ihe courl until after March of 1835 when Judge Eskridge's leml expired. 35. Slevenson p. 61. 36. White p. 142-143. 37. White p. 144. 38. White p. 204. 39. Shinn. Joseph H.. Pioneers (I"d Makn.f of Arkansas (Baltimore: Genealogical Publishing Company. 1967) p. 202-206. hereinafter "Shinn." 40. Shinn p. 93-94. 41. Shinn p. 20 I. 42. Hallum p. 137. 43. Hallum p. 120. 44. For an inlriguing look at lhis practice sec. Sherwood. Diana. ··Code Duello in Arkansas:' Arkansas /-liSlOrical Quaterl)'. 6: 186-197 (Summer. 1947). 45. Smith. Stephen A.. "Arkansas Advocacy" The Territorial Period.: Arkansas UM Rt'I'iell'

31 :449-476 (1977). 46. Arnold p. 198-199.

and the interior architecture of many of her courthouses. Although the effect these buildings have had on devotion to the law, respect for the law. and a desire for justice cannot be calculated, those responsible for courthouse construction over the Ia.~t century, many of whom were lawyers, have provided evidence of high a.~pirations and have left us a great heritage." 0" the Courthouse Square in Arkansas, supra Afterword. Most of Arkansas' courthouses were built during the 100 years of the ArI<ansas Bar Association. During the early years of that period the ArI<ansas lawyer's challenge was 10 build them. Regrellably. some of those more recently responsible for maintenance of these citadels of justice have not always demonstrated the same love and respect for the law that was evident in the original construction of their courthouses. Today our challenge is to restore them and equip them for another one hundred years of justice.•

lol.ll.\o. tlSprillg Ig9S

Thr ,\rk~os~s

I,~\\~rr

IAWYERS MAKE IT HAPPEN... Lowyers are too often the U115111J8 heroes ;" mall)' of the communities ill Arkansas. As part of our Ceme1JIJial Celebration. Ille Arkansas Bar Association has implememed a project. "/00 Hours for 100 Years:' 10 gh路t! the public a more realistic image of our legal comnllwit)' and their COIIS;Slelll \'olumeer;sm. Bill we need your help. By participating in 'he "/00 Hours for 100 Years" project this year. all of liS CO" take part ill recognition of our pro/essio,,' s contributiollS 10 our communities alld our sUIte. We wom 10 show that 1/01 011/Y can lawyers make ;1 happen - bill they're been making it hap/Jell for years.

100 Hours for 100 Years... by John P. Gill To celebrate the Arkansas Bar Association Centennial, the I(X)-year tradition of community service by Arkansas lawyers will be recognized. Throughout this century, lawyers have rolled up their sleeves to serve their communities. The '路100 Hours for 100 Years'路 project will kick off another 100 years of service to boy scouts, church boards, little league coaching. free representation of the poor - you name it, lawyers are doing it. In limes past, lawyers have given their lime freely 10 their communities, because the very nalure of their profession is 10 help others. Today it is called volunteerism. I Strangely lawyers do not get much credit for volunteerism. yet it is an integral part of the profession. During 1998. the Arkansas Bar Association will recognize those lawyers who give 100 hours of free

community service by awarding these volunteers a Centennial Community

Service Award. All lawyers are encouraged 10 submit the fornl on the opposite as soon as 100 hours are completed during 1998. The following activities are nOI considered volunteer community service: Bar Association work other than as described above (unless authorized in advance by Executive Director), any activity that is part of a regular employment duty and legal work for family members or law finn. All lawyers receiving the Centennial Community Service Award will be recognized by the Arkansas Bar Association and will, in addition, receive the Governors Volunteer Excellence Award presented by the Arkansas Office of Volunteerislll. The Arkansas Bar Association will also encourage non-lawyers to volunteer

their time in the communities. just as lawyers have done for the past 100 years. by publishing public service announcements during the Bar's Centennial. In coopemtion with the Arkansas Office of Volunleerism, lawyers arc asked to give particular atlention to Arkansas' "Promise to Youth," a major volunteer mobilization and focus shift by everyone to help assure access of five fundamental resources to Arkansas' 20,000 underserved youth. These fundamental reSOllrces are a caring adult, safe places, a healthy start, marketable skills, and the opportunity to give back. Jack Lassiter has been appointed by ABA President Jack McNulty to serve on the Arkansas Promise Executive Committee established by Governor Huckabee to implement the President's Summit in Philadelphia this year chaired by General Colin Powell. .:.

THESE ARE THE FIRST: E. LeRoy Autrey

Vicki S. Cook

David K. Harp

Anthony Bartels

James D. Cypert

John T. Holleman

Laura E. Partlow

Anthony W. Black

Michael J. Dennis

Don Hollingsworth

Donna

e. Tad Bohannon

Jeffrey H. Dixon

Louis B. Jones. Jr.

E. Lamar Pettus

Robert Branch

W. W. Elrod, 11

Jim L. Julian

Isaac A. Scott. Jr.

Lewis E. Epley, Jr.

Howard L. Martin

William R. Simpson. Jr.

Robin Brown

Ann P. Faitz

Stephen A. Matthews

Rodney K. Smith

Thomas M. Carpenter

Victor A. Fleming

Jack A. McNulty

Jim D. Spears

Phillip Carroll

Kay West Forrest

Harry Truman Moore

Joseph A. Strode

H. Murray Claycomb

John P. Gill

R. Scott Morgan

Larry D. Vaught

Pat Jackson Compton

Gerard F. Glynn

Charles R. Nestrud

John D. Watson

Ray A. Goodwin

Wyck Nisbet. Jr.

William

Bridgforth

R. Gary

utter

e. Pellus

(lIS of

4/6/98)

100 HOURS FOR

100 YEARS 1898-1998 oor

L..-~~~~....J ;:

Complete tbis form and retu,.,. it to tbe Arkansas Bar Association wben yOll bave completed 100 bOllrs ofcommllnity service dllring tbe past 12 montbs. Tbis project is part of 0111' Ctmtennial Celebration and yOll will receive recognition.

Arkansas Bar Association· 400 West Markham· Little Rock, AR 72201 • 501-375-4606 or 800-609-5668

Hours I.

Church, Synagogue or Mosque Work (ocher than regular 3ncndance)

Service on national, state, or local government board, commission, committee

or task fo rce (no compensation was paid)

Civic Projects, including nonprofit boards and commjttees (Other than anendance 3r service dub meetings)

Free Legal Assistance (thtough organized pro bono programs or individually with up front pro bono commitment)

State or Local Bar Association Outreach Efforts Disaster Relief, Lawyers for Lireracy. Mock Trial, L.1W Day Acriviries, erc.

Other (specify)

TOTAL HOURS SERVED DURING PAST 12 MO THS

UMBER OF THESE HOURS BENEFITTI G CHILDRE

Please Describe Three Primary Aetivicies from Above:

(for additional commt:nu, pinK aue back of form)

I certify tbat I bave perf'onlled 100 hours ofcommullity service for which 110 compellsatioll ,uas received.

City,

Name

(P\cut' Prinl)

Signature

Date

jj: 100 Years of Legal Writing The Writing Careers of Prominent Law Writers of Arkansas by Jacqueline Wright Associate Justice LOllis D. Brandeis wrote thaI .. :' it is more impofwllf fhal fhe applicable rille of law be sell led ,hel/1 if be sell/ed right." Burnet \I. Coronado Qil & Gas Co., 285 U.S. 393 (1932). Our precedems are importa1l1. They make the rules

of law predictable. coherem anti stable. Where would we be lvitl/oll! our precedems? Unpredictable? Incoherent? Unstable? Even with these precedems we are /lot i/l very good shape wilhout 'he law writers who collecl them, pllllhem together. index them. compare and cammst Them alld make these random rules oj law lInderstandable. This article examines the wrifil1g careers of (WD of our masl prominent law writers. Albert Pike and Robert A. Leflar, in addition to a summary of a number of our millor law writers. The material for the sectioll 011 Albert Pike is dislilled from Ihe early chaplers of Professor Walter Lee Brown's recellfly pllblished book. "A Life of Albert Pike,"pllblished by Ihe Ullil'usily of Arkansas Press in Fayeflel'ille. Arkansas.1997. The illformatioll abOlll Professor Roberl A. Leflar is from his alllobiography, "aile Life III Iile LalV: a Sixly-year Review," pllblished by Ihe Ullil'usily of Arkallsas Press, 1985.

Albert Pike Albert Pike was one of the first and certainly one of the most prominent of our law writers. He made a deep impression on the history and politics of Arkansas. Yet during his travels as a young man, he never intended to come here. He came to Arkansas by mistake.

Thr .Ir~anla! Law!rr

lol.ll.\o. !/Sprin! 199!

Pike was born and raised near Boston. Massachusetts. His father was a shoemaker and farmer. His mother was described as beauliful and brilliant. Albert, the oldest of six children, went to public school until he was 14. He wanted a classical education and dreamed of Harvard. His family was too poor to finance a preparatory education, so a cousin tutored young Alben to take the Harvard entrance examination. Although he passed with high scores, they were not able to raise the money for his tuition. Pike secured a teaching position so he could earn money to allcnd Harvard, and the next year he taughl and studied to take the Harvard junior examination (the equivalent of loday's "CLEP" tesl). He passed and was admilled, but money stood in the way a second time. The school expected him 10 pay a fee for Ihe tenllS for which he tested out, and he did not have enough saved. Pike went back to teaching, and it was during this period that he became a serious writer. He developed a passion for poetry and also wrote essays. Many of his poems were published in magazines, although these did not produce any income. He increasingly wanted time and solitude to express the deep feelings in his soul, and he began to consider leaving New England. An intervening event helped him make that decision. He fell in love with "fair-golden-haired" Elizabeth the Perkins, but he was too poor to propose marriage. Pike's friends gave him a going-away party that Âˇâ&#x20AC;˘...was a night of wassail and

carousal, of song and wine, and all the greater gayety and laughler for the heartache that I could not hide...." On March 10, 1831, Albert Pike left his disappointments behind and headed wes!.! Pike's journey involved more privation than adventure. A wagon train he joined in Missouri left a month later in the season than was usual. By the time they got to the plains the rivers and grass had dried up, and before they reached New Mexico, winter had set in and the snow was deep and cold. They arrived in Santa Fe, New Mexico in the winter of 1831. Pike spent eight months there clerking in a store. But this was not the answer for Pi.ke, so late in the summer of 1832, he and several companions headed nonh on a hunting expedition that failed, then went east to Fort Towson. On ovember 28 Ihey reached Ihe Fort Smith-Fort Towson road. They intended to take the road south to Fort Towson, then go down the Red River and the Mississippi 10 New Orleans. A cloudy, foggy day and a crooked road confused the weary travelers. And when they realized that they were heading north toward Fort Smith, they had gone too far to tum back. On December 10, 1832, after walking and riding 1400 miles from New Mexico, a hungry, ragged, tired Pike arrived in Fort Smith, Arkansas. After a few months of chopping Lrees, sawing logs, grubbing cane and splitting rails, he tired of these labors and wen I back 10 teaching. There was no school to hire him, so he solicited subscriptions. The families whose children he taught were to pay him half in money and half in pigs. This was his life for the next year or so - tcaching. exploring the countryside, and writing. Pike wrote down all of Ihese experiences in colorful, readable language. His descriptions of the frontier were so well done Ihal he became a "pioneer in the development of southwestern literalure...."2 He was a good and faithful reporter of his adventures, which he later published in a small book, "Prose Sketches and Poems Written in the Western Country," published in Boslon in 1834. Yel none of his wriling brought him the financial rewards Ihat he needed. It was another kind of writing that would lead him oul of Ihe "hard pan of life;" his polilically-charged poetry that opened Ihe path to greatness.

We do not know whether Pike had an interest in national or slale politics before he sen led in Arkansas, bUI he learned a great deal about them after he got here. He

desire for a polilical career,") He did hold one political office. He was appointed Associate Justice of the Arkansas Supreme Coun, to serve a tenn during the Civil War.

used what he learned about colorful characters and sometimes violent situations to

Pike's Law Publications

write political satire in verse. He sent the

first canto of the

poem tilled "Los

Tiempos," to the "Advocate," This was a Linle Rock newspaper thai was dedicated to the Whig party, and was published by a

friend of a prominent politician, Robert Crillenden. During Ihe summer of 1833, Crittenden was campaigning to be elected Delegate 10 Congress. Albert was privileged to spend an evening with him when he campaigned in northwest Arkansas. It was this meeting that was a turning point in Albert Pike's life - one Ihal he sensed and cultivated. He added more polilically-

charged verses to his poem and mailed them 10 The "Advocate" along with some OIher wrilings. These efforts did not go unrewarded, because he soon received an

offer to work for the publisher. Pike immediately wen I 10 Linle Rock to accept the offer. He lingered long enough to collect what money was owed him bUI left his pigs behind. It would be several years before the position with the "Advocate" would result in prosperity. Pike had some more learning to do, and during this period he learned the publishing trade and also read law. The combination of these skills enabled him to create some wonhwhile publications as well as become a wealthy man. His first law job was with the legislature while he was still an apprentice at the "Advocate." He was employed as assistant secretary to the territorial legislature, which was in session when he arrived in Lillie Rock. After Pike was admitted 10 practice law, he continued to write for the "Advocate," which he purchased in 1835. For as long as he owned the paper, until mid 1837, he continued to write about political matters. A prime subject for him was how Ihe slale should be organized politically after it became a state. This and other public issues received the passion of Pike's pen. Professor Brown has observed Ihal "[a]dmission 10 the bar and ownership of a newspaper were the nOJ11laimeans for seeking polilical prefennent, yet Pike never announced as a candidate for any office in Arkansas, and he always denied having any

Albert Pike's first important law publication was the "Revised Statutes of the Slate of Arkansas. 1838," By Ihen a respecled and able lawyer, Pike urged Ihe legislature to provide for the codification of Arkansas statutes. The project was approved 4 and the Governor appointed William McKnighl Ball and Sam C. Roane to do the work.' Unfortunalely, Ihe drafl was late. did not have an index and there was no printer in the territory that was equipped 10 do Ihe prinling, along with other problems. Ultimately the legislature pUI the code in Pike's hands. Compensation for his services and travel was sel al $1,500. He lOok Ihe manuscript to Boston, where he spent seven or eight weeks reading and correcting proofs. striking enacting clauses, arranging it into chapters. revising some of the sentence structure, and compiling a lengthy index. 6 He also visiled his mother, who slill lived in the area during his stay. During the same session of the legislature, Pike was appoinled Reporter of Decisions for the Arkansas Supreme Court. He held this posilion for five years. This job paid very linle' but included some important responsibilities: he was to let lucrative printing contracts. In addition, he was able to trade copies of these volumes for other law books to expand his personal library. Not to go unnoticed is Pike's name as attorney-of-record in these volumes. He also had an extensive appel-

late practice, an activity that is 110t permitted today becHuse it is a violation of the court rules. BUI Ihal apparently was not a consideration in these early years. A later publication that Pike authored is the first "Arkansas Form Book," published by William E. Woodruff at Lillie Rock in 1842. Today these publications are used almost exclusively by lawyers. but in the early days, the fonn books were standard publicalions that were used by all kinds of people in all kinds of business transactions. Pike explained the purpose of the book in the introduction: "The want of some collection of precedents for magistrates and inferior officers, and of a practical conveyancer, has long been felt in this State, and that want has produced not only much confusion and uncertainty in titles. but much delay and loss of justice in suits for small amounts before justices of the peace." He further explained. "A neglect of Form is often a neglect of substance; and if men are compelled to draft instruments for themselves. it is important that they should have at hand the means of drafting them in proper form and legal language...." It would not be surprising if seeing his name on this publication induced readers to use his services when they were needed. Although Pike's interest in good govemmenl cOnlinued during and after his professional career. his writing took a different course. Except for "Notes on the Civil Code of Louisiana," annotations to the code of Louisiana. and "Maxims of the Roman Law and Some of the Ancient French Law as Expounded and Applied in Doctri.ne and Jurisprudence,"8 neither of which was published, no OIher law titles bear his name.

Su Pagt33

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The Official Directory Of The Arkansas Bar Association

Nearly 500 pages of information not readily available anywhere else. Contains all the information to make it the number one reference tool for the Arkansas legal profession.

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From Png,31 There are some illleresring parallels between the writing careers ofAlben Pike alld Robert A. Leflar. The)' were both scribblers ar all early age.. each had an ;merest in good go\'erllmellt and wrote passiollatel)' alld prolificall)' abollllegisla(;\'e reform; each was im'oh'ed ill the /egislarive process: and each served a sharI.

the study of law was much different. He

Beale. After Lenar studied with Beale the

knew that at Harvard he would not be free

second time, Beale asked him to write the Arkansas annotations to the "Connict of

to work to make money, but instead would

be working to make himself a fine lawyer. Therefore, after graduation from the University of Arkansas, he taught school for (wo years and worked for (he University's news bureau during the summers to save money. Leflar's Harvard experience was a fine

Laws Restatement," When he did the research he found that the Arkansas cases made good legal sense and produced fair results, but did not fit the "Restatemem" rules. He decided that the material was better suited for a treatise than as annotations which would be negative and useless to the understanding of the "Restatement."

appoi11led term on the Arkansas Supreme Court. Blil/here are also important differ-

one, fondly remembered. He studied with

ences. Leflor did IIO{ !lOl'e 10 endure tile hardship that marked Pike's earl)' life, alld was privileged 10 be educated at his il1S1;路 1I11io11 of choice. Har\'ord University. Both were teachers. but Lej7ar's teaching was rhe foundation for his life, whereas Pike's reaching was a means to an end.

Dean Roscoe Pound, Joseph H. Beale,

I-Ie published the book himself and soon sold all 1,000 copies for $4.50 each. The

Felix Frankfurter, Samuel Williston, and

profits went

others. His classmates were Henry Friendly, who became one of the nation's

law school library. His was one of only

Robert A. Leflar Roben A. Lenar was born in 190 I at Siloam Springs, Arkansas, the oldest of eight children. His father was Lewis D. Lenart a drayman, and his mother was Viva Pilkington Lenar. He went to public school at Siloam Springs and graduated from high school in 1918. He knew from

the great names that are now legends -

ablest appellate judges, Lewis Powell, Paul Freund and Erwin Griswold. later Dean of the school. then Solicitor General of the United States. After he finished law school in 1927 Lenar was offered the position of Instructor a( the University of Arkansas

Law School, which had opened in September, 1924. After four years of teaching Conflicts, Torts and Criminal Law, he took a leave of absence to study for his doctorate at Harvard. While he was

he University of Arkansas

two books t.hat treated the confl icts law of The common-sense

a single state.

approach and the clarity of his analysis of connicts problems is still useful today, even though the rules have changed dramatically since that book was written. Lenar was deeply involved in the dramatic changes in the conflicts area of the law that took place during the next few decades. He was one of the advisers who assisted

drafting

and

editing

the

"Restatement (Second), Connict of Laws," Lenar wrote a number of law books in

an early age what he wanted to do with his

at Harvard the first time, Lenar look

life, and took that direction and succeeded. His career is not marked by the shifts and disappointments that make Pike's biography so interesting. Lenar decided when he was 15 years old that he wanted 10 be a

Connicts from Professor Joseph Beale,

addition to the Arkansas connicts treatise. but his favorite media was the legal peri-

and he was accepting of the analyses

odical. He authored his first law journal

offered by the professor. as were all the other slUdents. When Lenar was later

article in the first issue of the

assigned to teach the course at the

lawyer, and that he wanted to study law at

University of Arkansas, he discovered the

Harvard. He selected this school because,

law literature that questioned the traditional approaches to conflict of laws resolutions. Then he went back to Harvard and

after reviewing catalogs from the five most outstanding law school in America, he realized that it was the professors at Harvard who wrote the casebooks from which all the others (aught. From that time on his whole life revolved around this

goal. Leflar went to Ihe University of Arkansas for his undergraduat.e education. Although he was not impoverished, he needed to work to earn his education.

took Professor Beale's advanced seminar

in Connicts. Professor Beale was the reporter for the first Conflict of Laws Restatement, which had had so much dissention among the American Law lnstitute committee of advisers about where the law was and where it should go, that a number

of them resigned. Then, Lenar arrived in Beale's classroom. and he was the dissenter there. His second time around with

niversityof

Arkansas School of L.,W publication, the "University of Arkansas Law School Bulletin," in 1929. 10 and had an anicle in one journal or another nearly every year until a few years before he died. Although he is known primarily as a teacher, it was his writing that opened other doors. He continued to write for popular publications. Articles for the Arkansas Press Association analyzed the referred and initiated acts and constitutional amendments that would appear on the state's biennial election ballots. These arti-

cles explained the choices that the public had in deciding about laws. He wrote not

a janitor and also worked the Kansas

views, and it turned out that was just what

only about what the law is, he wrote about what it should be. and he wrote it for everyone-the general public as well as

wheat

Beale wanted. He needed 10 debate these views. Beale also helped Lenar with his

lawyers. Because he was always interes(ed in the "improvement of Arkansas' law

Therefore, he worked during the whole time he was in Fayelleville. He worked as harvest

during

the

summers.

During his junior and senior years he earned his way as a writer, as a stringer for

the Arkansas Gazelle and the Fon Smith Southwest American.

He also worked at

the University's news bureau. Although he admits that he did not take his undergraduate studies seriously, his attitude about

Beale, Lenar presented these opposing

writing and recommended one of his arti-

and legal system."

cles to the Harvard Law Review" Lenar's first book "The Arkansas Connict of Laws," was published a rew

"'sometimes impartially" about constituI iona! amendments. I I

he spoke and wrote

years later, in 1938. The material for this

His first experience with writing in the area of legislative drafting was with a

book was drawn from his relationship with

commission appoinled to rewrite the

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Arkansas criminal laws. His experience teaching criminal law was the incel1live for

wllS elected president. Although neither of the constitution drafts were npproved by

Governor J.M. Futrell to name him to that

the general electorate. many of the ideas thai were generated at the conventions

commIsSIon. Their purpose was to aid prosecuting attorneys to convict guilly criminals. and therefore they tightened the

laws. This required both a constitutional

were subsequently put into fonn. 15 Another parallel with Pike was service

on the Arkansas Supreme Court. appointed

Associate

Lenar

amendment and an initiated act. both of

was

which were adopted at the 1936 general

Governor Sid McMath in 1949 to com-

Justice

election. 12 A few years after this LeClar was

plete a deceased Justice's unexpired tenn. It was service on the court that inspired a

appointed to the Arkansas Statute Revision

1935. 17 There are regular II1qumes on where to purchase this valuable work. We know little of this writer. except that he practiced law in Texarkana. Jones' book on Arkansas titles was

apparently so well-respected by the publisher. that in 1939 the Thomas Law Book Company published a general work authored by Jones. This one is titled "Cyclopedin of Real Property Law." The title page describes Jones as the author of "Arknnsns Titles to Real Property. Editorin-Chief on Real Property Lnw:'189 Jones'

tion of "Arkansas StalUtes Annotated." As

number of his subsequent activities. He was deeply involved in selling up the first seminar for appellate judges at New York

chair of the commission. LeOar was proud

University in 1956. and wns the

of this publishing accomplishment and the

organizer and teacher for that institution

Vendor and Purchaser."

fact thai he was able to secure a publishing contract at what was a very good value for

for most of his professional life. This work inspired a book of n different sort than his usual ConniclS subjects. He edited "Appellate Judicial Opinions:' sponsored by the Institute of Judicial

were published because lawyer Jones died thnt year. Jones had been elected

Commission that produced the 1947 edi-

the state and for the practitioners who

would need to purchase the books. 13 He also worked directly with the legislators. but on a differel1l basis than did Albert Pike. From 1936 he was in charge of "The School for Legislators" that the University of Arkansns School of Law sponsored every two years for newly elected legislators as they entered their term of office. TIlis exercise made Lenar feel

chief

Administration. 16 This is a compilation of excerpts of articles about judging, that contain the wisdom of grent judges and jurists who have spoken on the functions

of appellate judges. A smnll book of only 343 pages, it is a Ireasure trove of quota-

much like a legislator, and in a sense he almost became one. The Legislative

lions, citations. bibliographies. and excerpts the meat from the most important writings of various recognized scholars.

Council (now the Burenu of Legislative Research) was created in 1947. 14 The

Robert Lenar.

including some half dozen articles by

enactmem establishing the Council pro-

vided that the Denn of the Law School should be an assistant to the Council. Lenar had been Dean for seveml years by that time.

He actually experienced the legislative process twice when he was involved in constitutional conventions. In 1968 and in

1978 Lenar was elected from his district to be a delegate to the respective constitutional convemion. At each convention he

THE MINOR WRITERS Pike and Lenar were the lions of the genre of law writers. but there are others who were somewhat minor law writers. but who made significant contributions to Arkansas law literature. The work of some of these is still sought after. "Jones on Arkansas Titles:' for instance, was writ-

ten by Paul Jones, Jr., of Texarkana, and published by a major law publisher in

Harvard educarion is also noted on the title

page. The book is delineated "Volume I. 0 other volumes

President of the Arkansas Bar Association

in 1934. but he died before he ga"e his presidential address. Jones speech, "The Lawyer and His Place in the World" was delivered instead by his son. and showed how much he knew about legnl history. with the scholarly address drnwing heavily from Roman law and tradition, but without references or footnotes.

Another popular Arkansas law book is "Griffin Smith's Arkansas Form Book:' Published '9 in 1958 and supplemented in 1974. it is desired by law practitioners because of the brevity of the fom1s. The publisher first contacted Smith's father about writing the book. Griffin Sr. was a justice of the Arkansas Supreme Court at that time and could not make the commit-

ment, so he referred the publisher to his son. Griffen. Jr. who had recently gone into private practice. milh is famous in this state for writing the Gridiron for so many years, and the form book was his only venture into serious law writing. Christopher Columbus Hamby was

probably referred to as C.c. becnuse lhat is how he signed everything that has been found.

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when he was a young man. studied law and had an active praclice in Prescon.

Arkansas.

He was not only a highly

respected practitioner of the law. he was a

STEVE

He was born and raised in

Calhoun. Mississippi, moved to Arkansas

successful and well-liked politician.

SMITH

served two tenns in the state senate and

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was elected president pro tempore of the

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senate in 1891. When the governor suf-

fered nn illness during the summer of 1892. Hmnby served a short time as acting govemor. 20

A strong supporter of education, Hamby was appointed to the University of Arkansas Board of Trustees in 1897, and was also president of the Prescott school board. He apparently had little time to write in those years since his name appears on only one published law writing in that period. In 1918, after retiring from the practice of law, Hamburg put together a short book titled "Appeal and Error: A short treatise on what is necessary to be done, in trial courts in Arkansas, to insure consideration of alleged errors of said courts on appeal in Supreme Court."21 It was published by Hamby himself. A modest but charming little book, thoughtfully organized, it contains explanations of theories of appellate practice with a few fomls scattered throughout its 42 pages. ARKANSAS BAR ASSOCIATION PUBLICATIONS: THE NEXT 100 YEARS From its inception, the Arkansas Bar Association has rewarded its members wirh high quality publications. III the beginning rhe publication was that of the proceedings of the Association meetings. The commilfee reports provide an importam source of information aboUf developmem of laws as well as rhe developmem and growth of the Associarion. They include rhe full texr of the addresses made or the meeting and rhese were a well-balanced selection of scholarly papers abollt jurisprudence and currem law topics. The Report of Ihe Proceedings of Ihe Bar Association of Arkansas was issued each year from 1900 I/lIIil 1947. ThaI year the Association voted to support the publication oj the Arkansas Law Review {by the University oj Arkansas School of Law] In retUnI, the journal 1V0uid publish the Association proceedings. and each Association member 1V0uid receive a subscription to the Journal. The Association did not publish extensively unlil Ihe 1960s. The firsl produced the Desk Book and participated in publishing the Arkansas Probate Practice System. From that time to the presell1, the publications have increased in quantity and variety. Tiley are always of high quality. An assorllllelll of form books, 1'0111plllets and institute materials also help the Arkansas lawyer 10 be belle,. inJormed and more efficient in his or her practice. The future of the Association's publica-

tion /tillction is curremly ill the process of evaluarion. Recognizing that more frequent changes in the law require continuOliS updating and a creative use of electronic media to provide the updated material, the Association staff and key committees are working hard to set up a j;·ame· work to provide association members with law publications to assist lawyers and their diems. More members should consider joining the fraternity oj law writers and making regular colltributions to the many different publications our

Association produces. Present day law writers have the advantage ofa well-developed and sophisticated system of law publishing to aid in the delivery of their works. Legal periodicals are published at bOlh Arkansas law schools. Books such as Judge David Newbern's "Arkansas Civil Praetice and Procedure" did 1/01 have to be self-published. Allhough Ihere are slill a few sel/published titles that are quite good, such as "Arkansas Rules oj Evidence," written See Page 36

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From Poge 35

by Mor, Cite/mall. Marcia Mclror Gnd Carl E. Smilh. published by M & M Press The Arkansas Bar Association acth'ely sen'es the ill/ormation needs of fhe bar ill

periodical form as well as practice books. As the Arkansas Lawyer Editorial Advisory Board and the Arkansas Bar Association del'elop publicatioll policy. there will be more opporrullities for lawyers to ho\'e lheir writings published. alld 10 work ill cooperation with other lawyers ill producing something oflasting value. AI/ lawyers are writers. That is what we do. We write COll1racts. pleadings. briefs and other documents ill represelll{Jliol1 of our diems. And some are privileged to be i/l that fraternity of law writers who comribUfe

rite greater gaoc/.

Membership does not reqilire grear scholarship or lirerary ralem. All rhar is needed is a willingness ro share one's exper· rise.•:. Jacqueline S. Wrighr has been rhe librarian or rhe Arkansas Supreme COllrl since /979.

I. Waller Lee Brown. A Life of Albert Pike (Fayeucville. 1997). 12. 2. Ibid .. at 18. 3. Ibid.. at 62. 4. 1836 Ark. Acts. Ocl. 26. page liD: Resolution. DV. 8!h. page 208. 5. Revised Statutes of Arkansas. 1838. "Preface:' 1838. Ark. Acts. Dec 14. page 27. 6. Revised Statutes of Arkansas. Ch. 127 sec. 16. 7. Brown. A Life of Alben Pike. 302. 8. Robert Allen LeOar. "Extrastate Enforcemenl of Penal and Governmental Claims:' 46 Harv. L. Rev. 193 (1932). 9. Robert Allen Lenar. "Business Trusts in Arkansas:' I Arkansas Law School Bulletin 35 (1930). 10. Robert Allen Lenar. One Life in the Law (Fayellcville. 1985).20. 11. Ark. Constitution. Amend. 21 (see Acts 1935. p. 995); Initialed Act NO.3. 1937 Ark. Acts. page 1384. 12. LeOar. One Life in lhe Law. 73. 13. 1947 Ark. Act 264. page 797. sec. 10. page 801. 14. LcOar. One Life in the Law I. 76 15. Robert Allen Lcnar. "Appellate Judicial Opinions. Institute of Judicial Administration" West Pub. Co.. SI. Paul. Minn.. 1974. 16. Paul Jones. "The Arkansas Law of Tille to Real Property" (SI. Louis. Mo. 1935). 17. Paul Jones. "Cyclopedia of Real Property Law:' (St. Louis. Mo. 1939). 18. Griffin Smith. Jr.. Ark:lnsas Forms Wi,h Practice Commentary. ( 51. Paul MN .. 1958. Supplement. 1974).

19. Reynolds. John Hugh and David Yancey 20. Thomas. "History of the University of Arkansas" (Faycneville. 1910). 21. C.C. Hamby. Appeal and Error. published by the author. at Prescott. Arkansas. 1918

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.llIdiriill\d\ isOl') Opinions

The Judicial Advisory Opiniolls are writtell and provided by the Arkansas Judicial Ethics Advisory Commiuee. Judge Lance L. Hanshaw, Circuit/· Chancery Judge, Division I, Seventeenth Judicial District West Lonoke, Arkansas The Arkansas Judicial Ethics

irrelevant whether a judge is managing the building or simply a partner. Likewise, it is irrelevant whether the partnership is yielding net income on an annual basis, and whether an atlomey is the only tenant or merely one of many tenants.

Accordingly, in any proceeding in which an anorney who is a tenant of a building owned, in whole or in part, by Hanshaw. is an attorney of record, he should recuse. The alternative is disclosure of the rela-

Circuil Judge, Twelflh Judicial Districi Fort Smith, Arkansas. He requested an advisory opinion concerning the recusal from a Circuit court case because of bias.

The opinion stales thai Canon 3(E) provides Ihat judges are presumed to be impartial. The party seeking disqualifica-

tionship and the reason for the disqualifi-

Seventeenth Judicial District - West

calion. If there is an agreement of all the

tion bears a substantial burden to overcome that presumption. Further, a mere allegation that a judge's conduct has the appearance of impropriety is not sufficient. Moreover, bias is a subjective malter which is confined lO the conscience of

Lonoke, Arkansas. He requested an advi-

parties that the judge should nol be disqualified, Ihis should then be incorporated

a specific allegation involving grounds for

Advisory Committee recently issued an

advisory opinion

Circuit/Chancery

Lance L. Hanshaw,

Judge,

Division

sory opinion concerning the rental of property. of which he owns and is a partner, to attorneys who practice in his court.

the judge. Accordingly, in Ihe absence of

into the record.

disqualification under Canon 3 (E) (a,b.c,d), or olher material evidence of bias, the Committee saw no basis for recusal. .:.

within and without the legal community might question the impartiality of a judge

Judge John G. Holland, Circuit Judge Twelfth Judicial District Fort Smith, Arkansas The Arkansas Judicial Ethics

who has an ongoing financial relationship as landlord of one of Ihe attorneys. It is

Advisory Committee recently issued an advisory opinion to John G. Holland,

The opinion states that, as in advisory opinion #97-03, reasonable individuals

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The Things They Say (and when they say them) By Judge Vic Fleming Copyright /998

The young man had been clocked on radar at 113 mph at 4:30 a.m. The police officer caught up to the driver only after he had pulled off into the parking lot of the International House of Pancakes. Asked why he was driving so fast, the subject told the officer that his girlfriend had paged him and said "she wanted some waffles and she wanted 'em now!" Hearing that story, Benton's Kathy Taylor, fonnerly of Miami, shared her similar experience. The day after purchasing a Really Fast Car, she was caught driving Really Fast. On a Florida freeway. "Do you know how fast you were going, Ma'am?" the trooper inquired. "Yes, sir," she responded, unable or unwilling actually to say "135," which is what the speedometer showed before she noticed the blue lights. But an inner voice lOok over: "I thought it was a law that when you got a new car, you got one chance to see how fast il will really go." Kathy claims to have been released with only a warning, the trooper enjoying a rather sarcastic laugh. NOl so David Eldridge of Little Rock, who gave a trooper a chuckle with forthright honesty. Many years ago he rented the only car available - a large Buick - on a business trip requiring him to drive quite a piece. He was accustomed to a much smaller car, in which speed was more easily felt and noticed. After cresting a large hill and beginning to coast down, he glanced incredulously at the speedometer and began to brake. Then he noticed blue lights in his rear-view mirror. When the officer asked, "Do you know how fast you were going?", Dave said, "Well, I know I was going at least 115 for a few seconds there." The enforcer laughed, finding the candor refreshing. Dave was charged with a few miles per hour less than 115. Which brings me to Robert Holitik of the Little Rock City Attorney's Office.

Robert reports that while still a law student in Fayetteville, Arkansas, he once drove home with a speedy escort. Jt seems he had barely got onto 1-40 when a hearse whizzed past him at about 90 miles per hour. Robert "slid in behind" and cruised for 75 miles or more in less than an hour before noticing blue lights activating behind him. He pulled over and respectfully tendered driver's license, registration and insurance. "So what's the rush that you're trai ling an emergency vehicle, son?" was the trooper's inquiry. "No rush," Robert said. "But being in law school, I've heard a lot about chasing ambulances and I wanted 10 see what it was like." The law enforcement officer is said to have so enjoyed his laughter that the lawyer~to-be was let off with a warning. A woman in traffic court not long ago was asked "When was the last' time you had a moving violation?" She responded, "I don't think I've ever had a moving violation. Although 1 have hit a number of non-moving objects." The judge so enjoyed his laughter that the woman was placed on probation. Her statement reminded me of the guy who told the insurance adjuster, "The guy was all over the road. I had to swerve a number of times before I hit him." 1 have a friend who prosecutes OWl

JOHN

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cases. He recalls an instance where, at 3 a.m. he was stopped by a pol icc officer who mistakenly believed drinking had been taking place prior 10 the motor vehicle operation in question. Something about the neighborhood of the stop. My friend was asked to do a field sobriety test known as "Saying the ABC's." He boldly went where few would ever go, responding: Officer, I'll do the ABC's if you'll repeat after me: "Slarkle, starkle, liule twink. Who the heck you are I think. I'm not under the alcofluence of incohoi As some thinkle peep I are. Hey, drinktender, bring me another bar." My friend claims to have accomplished his recitation without slurring his speech or mumbling his voice. With clarity and proper enunciation all around. Again, a gendamlc's giggle box was activated, with the result that all present were thoroughly convinced of the young man's sobriety. But be careful out there. There is a story going around about someone who used humor with a patrolman, telling him that sure she knew she was speeding in a school zone because "Those children are armed." She concludes her story by saying, "l've never seen anyone laugh so hard - and still be able to write a ticket."路:路

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Comments on Recently Undertaken YLS Projects by R. Scorr Morgan, Chail; Young Lawyers SeCTion The Young Lawyers Section has been extremely busy since I last reported to you.

There are several projects that we have recently undertaken and I want to comment on a few of these in particular. We were work.ing in conjunction with the Association's Centennial Committee to sponsor an essay contest and poster COIltest for seventh graders statewide. The essay conlest was on the subject of "What is an Attorney?" We were pleased to have Jackie Johnston and Gwendolyn Hodge

spearhead these projects for our Section. The Section is also in the fonnative stages of assisting the Bar Association with a Speaker's Bureau for the upcoming proposed Constitutional Amendment on the use of retired judges. Gwendolyn Hodge is our liaison to the Committee of the Arkansas Bar Association members and the Arkansas Judicial Council members, and she will be coordinming our work with the Committee. This project will involve sending speakers to local civic clubs to educate them on the proposed Amendment and its purpose. I am sure the Committee would like to have volunteers from all areas of the State to speak to the local groups, so please call Gwen if you have an interest The Hospice Program is progressing. Jonann Roosevelt is working with me on this project and we are still in the formative stages. I have received letters from some of you, wanti.ng to help with this project, and I am not ignoring you. We will contact you as soon as we get the proper frame-work and guidelines established for this project. I believe the Section could use more participation from our membership in the Mentor Program, which we sponsor at the law schools in Fayetteville and Little Rock. The Section needs to make a better effort to make this an active program and one in which the law students and the young lawyers in the communities participate. Please let me know if you are interested in assisting with this project. Our "Bridging the Gap" seminar was very successful. Dave Hodges and John Myers deserve thanks for their efforts, as

Thr ,Ir~anm 1"II\!er

I'nl.ll ,I'n. tlSllrin! 1998

well as, Charlotte Greer and the CLE staff at the Arkansas Bar Association, who did their usual excellent job. Gwendolyn Hodge will be coming on as

your Chair for the next Bar year. I know she would appreciate aU volunteers who will help her with her ulXoming year.â&#x20AC;˘:.

Harper, Young, Smith &: Maurras, PLC. announces the change of its name to Smith, Maurras, Cohen &: Redd, PLC.

The firm continues the practice of law at 510 North Greenwood Avenue Fort Smith, Arkansas Phone: 501/782-1001

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til\\}rl' The Lawyer disciplinary actions are writand provided by the Supreme Courl of Arkansas' Committee all Professional Condue!. fell

MR. PHILLIP A. MOON HARRISON, AR A letter of reprimand was issued 10 Mr. Phillip A. Moon for the violation of Model Rules 1.3.

1.4(a). 1.16(d) and 8.4(d) upon the complailll of Mary Beth Ritchie. The letter was filed January 5, 1998. These Rules Slate. in part, that a lawyer shall ael with reasonable diligence and promptness in representing a client: a lawyer shall keep a client reasonably infonned about the status of a mailer and promptly comply with reasonable requests for information; upon termination of rep-

resentation. an attorney shall take steps to (he extent reasonably practicable to refund any advanced payment of fee that has not been eanted; and, a lawyer shall not engage in conduct that is prejudicial to the administration of justice. According to Ms. Ritchie, she contacted Moon during July of 1996 to discuss filing a divorce action. During her initial meeting with him, Ms. Ritchie made him aware that the divorce would not be contested because of criminal charges her husband was facing. Moon advised Ms. Ritchie that he would begin working on the divorce action as soon as she paid the retainer fee of $300. After obtaining a loan, Ms. Ritchie mailed the final payment on the retainer in October of 1996. Ms. Ritchie believed, since the retainer had been fully paid. Moon was beginning work on her divorce action. In fact, he had not done so. Ms. Ritchie was unable to contact him after she made the final payment. In December of 1996, Ms. Ritchie went La his office to ask about the divorce proceeding. When she arrived at the office, she learned he had moved out of the office. Ms. Ritchie was unable to ascertain a new address for him. Since he had taken no action 011 Ms. Ritchie's behalf, she filed a grievance with the Comminee on Professional Conduct. The Executive Director, James A. Neal. sent Moon an informal letter requesting that he address the matter with Ms. Ritchie. He failed to respond to that letter from Mr. Neal In responding to the affidavit of complaint, Moon acknowledged meeting with Ms. Ritchie during July of 1996. It was his recollection that Ms. Ritchie advised him that the divorce proceeding could not be filed until after criminal charges were brought against her husband. He also admitted that Ms. Ritchie was correct about the $300 retainer fee. He explained that he closed his office in October of 1996. When he closed his office, he placed all of his files in storage. Someone was hired by Moon to monitor his mail after he closed his office. According to him. it was that person who deposited Ms. Ritchie's last check which was received in November of 1996. He was not aware of the check nor the deposit. Further, he admitted

Ilisl'iplinill')\rtinns

that be could not locate any file related to Ms. Ritchie in his closed files. He did accept full responsibility for bis conduct in this matter and he repaid Ms. Ritchie the full $300 which was paid to him. MR. GENE O'DANIEL LITTLE ROCK, AR A letter of reprimand was issued to Mr. Gene Q'Daniel for the violation of Model Rules 1.1, 1.3, 1.4(a), 3.4(c) and 8.4(d) upon the complaint of Daryl Smith. The letter was filed February 24, 1998. These Rules state. in part, that a lawyer shall provide competent representation to a client including the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation; a lawyer shall act with reasonable diligence and promptness in representing a client; a lawyer shall keep a client reasonably infonned about the status of a mailer and promptly comply with reasonable requests for infonllation; a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists: and, a lawyer shall not engage in conduct that is prejudicial to the administration of justice. In his affidavit Mr. Smith stated that be retained O'Daniel to represent him in a discrimination case against his former employer. Mr. Smith had filed a pro se complaint, but Judge Harris entered an order in March of 1992 permitting O'Daniel's appearance. A Scheduling Order was entered on February 5,1993, following several continuances. The order set August 30, 1993, as the date on which the Pretrial Conference Information Sheet, Trial Brief and Proposed Finding of Faci and Conclusions of Law were due. A Motion for Sanctions and To Dismiss for O'Daniels failure to comply with the Scheduling Order was filed and granted. The following day O'Daniel filed a Responce wherein he attempted to blame opposing counsel for his failure to comply because, while completing the infonlmtion sheet on August 30. he was served with a motion that was two inches thick. According to Mr. Smith, O'Daniel failed to timely advise him lhat his case had been dismissed. Nearly one year later he did send a Motion To File Lawsuit 10 the Clerk. The motion was granted conditioned upon the payment of $1,500 to the defendant by plaintiff for unnecessary work perfornled by the defendant. O'Daniel advised Mr. Smith that he did not have $1,500. He has been unable to pursue his case because of an inablility to raise the $1,500. He averred that O'Daniel said that he should sue him since he doesn't have anything anyway. O'Daniel's response began with the facts preceding his representation. Mr. Smith filed a claim before the Equal Empl;oyment Opportunity Commission. After a full investigation, which included interviewing all the witnesses, the Commission concluded that there was no discrimination and a right to sue letter issued. O'Daniel

pointed out that since Mr. Smith suffers from a chemical imbalance which causes some serious mental problems he never spent more than an hour with him. Instead he primarily dealt with his mother. Ms. Smith. Following a review of the file O'Daniel deemed it necessary to file an Amended Complaint and he explained to the Smiths that it is very difficult to succeed in discrimination cases. He explained that his only strategy was to show lhat white employees were treated differently than the manner in which the employer. GeorgiaPacific. treated Mr. Smith. who is black. O'Daniel's affidavit averred that Georgia-Pacific had deposed all of the witnesses, but that Ms. Smith alluded to other witnesses at her deposition. O'Daniel agreed to include them in his Pretrial Conference Information Sheet. However, Ms. Smith refused to allow them to be included. Opposing counsel had no alternative bulla file the Motion for Sanctions and to Dismiss. O'Daniel averred that in his twenty six years of law practice he had never seen a case dismissed because a Pretrial Conference Information Sheet was not filed on time and opined whether lhe dismissal was entered because it enabled the judge to clear his docket. Additionally, he explained that settlement offers had been made by Georgia-Pacific but the amounts were not satisfactory to Ms. Smith. Following the dismissal he told Ms. Smith lhat she would have to pay the $1.500 to refile the case. He set forth his belief that he was sanctioned because of Ms. Smith's failure to cooperate. Further, he stated that the motion for sanctions was filed merely to protect the interests of Georgia-Pacific. In conclusion, he denied having violated the Model Rules and stated affirmatively that he provided competent representation; that he acted with diligence and promptness; that he kept Ms. Smith reasonably infonlled; that he did not violate an obligation under a tribunal because the Easlern District Judges "have no problem" aboul an Infonlmtion Sheet being late: and he did not engage in and conduct prejudicial to the administration of justice. G.B. COLVIN, III DERMOTT,AR A leiter of caution was issued to Mr. G.B. Colvin, 111 for violation of Model Rules 1.3 and 8.4(d) upon the Per Curiam complaint of appellant Dennis Cornell Tucker. The letter was filed February 25, 1998. TIlese Rules state that a lawyer shall aCI with reasonable diligence and prompl'lless in representing a client and a lawyer shall not engage in conduct that is prejudicial to the administration of justice. On October 30, 1997, lhe Arkansas Supreme Court delivered a Per Curiam opinion in which Colvin's Motion for Rule on the Clerk in the mat路 ter of Dennis Cornell Tucker v. S(me of Arkansas was granled. The opinion was forwarded to the Committee by the Supreme Court. In the Motion.

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til\\ )1 1' Ilisripliniln \l'I ions 1

upon which Ihe opinion was based, Colvin admitted that the transcript was tendered late due to an error on his part. He admined that neither the transcript nor a Motion for Extension of Time was filed within the time penniued by law. In his response. he explained thai he was the Public Defender for the 10lh Judicial District of Arkanas. Since January I. 1990. he has worked for the 10th Judicial District Public Defender Commission and has not had to appeal a case during that time because it is policy to farm out appeals to private counsel. In Mr. Tucker's case he was unable to find private counsel to handle the appeal so he had to perfect it himself. He asserted that he forgot lhat no one in his office had ever worked on an appeal and subsequently failed to advise any of the members of his staff of the time deadlines associated with an appeal. Because of this fuilure. no one in his office advised him when the Court Reporter telephoned to let him know the transcript had been completed. He closed his response by explaining the steps he had taken to prevent such an incident from occurring again.

MR. KENNETH G. BRECKENRIDGE HOT SPRINGS, AR A letter of caut'ion was issued to Mr. Kenneth G. Breckenridge for the violation of Model Rules 1.3 and 8.4(a) upon tbe complaint of Greg Heinritz. The letter was filed February 25. 1998. These Rules state lhat a lawyer shall act with reasonable diligence and promptness in representing a client and a lawyer shall not violate or auempt to violate the rules of professional conduct. knowingly assist or induce another to do so, or do so lhrough the acts of another. For his complaint. Mr. Heinritz stated that he hired Breckenridge in December 1995 to collect on a judgment he had obtained. Mr. Heinrit'Z went to his Mt. Ida office and met with his secretary who informed him Ihat she would forward the infonnation provided to her to Breckenridge at his Hot Springs office. Several days later, his secretary called Mr. HeinrilZ and informed him that Breckenridge had agreed to represent him and the fec would be $150.00 which would be added to the amount of the judgment owed by the debtors. Mr. Hcinritz waited until April 1996 to call Breckenridge's office and check on the status of his case. He was informed that nothing had been done as the fee had not been paid. A check in the amount of $150.00 was then forwarded to Breckenridge's office. An appointment was scheduled for Breckenridge and Mr. Heinritz 10 meel at his Mt. Ida office in June 1996. He failed to appear at the scheduled time. Thereafter. Mr. Heinritz made seveml calls to his office but the calls were not answered. Finally. the appointment was rescheduled for November 8, 1996. On the morning of the appointment, Mr. Heinrilz received a call from Breckenridge's secretary infonning him that he would not be available to meet at the scheduled

time. Shortly thereafter, Breckenridge personally called Mr. Heinritz and stated that he would call him back to reschedule for later tlml day. Mr. Heinritz did not receive any more calls from his office. When Mr. Heinritz's grievance W'IS initially filed wilh the Supreme Court Commiuee on Professional Conduct. it was determined Ihat an infomlal leiter to him setting forth Mr. Heinrilz's complaint was appropriate. The leiter was sent to him on January 7, 1997. However, Mr. Heinritz advised that there was no action taken by Breckenridge. A fonnal complaint was sent to Breckenridge by certified mail. restricted delivery. on November 4. 1997. He signed for the formal complaint on November 6, 1997. He failed to provide the Commillee with a response to the allegations within the 20 days provided by Section 5 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Allorneys at Law.

MR. WILLIAM E SMITH, JR. RUSSELLVILLE, AR A lellcr of caution was issued to Mr. William F. Smith. Jr. for the violation of Model Rules 1.9(a) and 8.4(d) upon the complaint of Barbara Louise Allen. The letter was filed February 25. 1998. These Rules state. in part. lhal a lawyer who has formerly represented a client in a maller sh~llJ not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the fomler client unless the fonner c1ielll consents after consultation: and, a lawyer shall not engage in conduct that is prejudicial to the administration of justice. In her affidavit, Ms. Allen stated that sometime in late September of 1995, she hired Smith to file a divorce complaint on her behalf. He did so. According to Ms. Allen. she and her husband reconciled, but she never advised him of that fact. For some reason. however. no action of any kind was taken on the complaint. When Ms. Allen and her husband separated again during 1997. she asked him to refile the divorce. Ms. Allen averred that she was unable to pay Smith the amount quoted and she hired another ~morney. Subsequently, she receivcd an Answer and Counterclaim which Smith filed on her husband's behalf. A Motion to Disqualify ounsel was filed to which Smith respondcd. Uhimately, the judge disqualified him. According to Ms. Allen. he never consulted with her regarding the representation of her husband to obtain her consent to the representation. For his response Smith stated that he spoke with Ms. Allen 011 only one occasion in 1995 and did file a divorce complaint on her behalf. He averred that he bad no recollection of ever having spoken with her again about the 1995 complaint nor about the 1997 re-filing. Additionally. his records renect having had only one meeting with

Ms. Allen. With respect to the fee, he stated Ihat he would not have quoted a specific fee bused on a telephone conversation. Smith explained that. based on his fee schedule, if the divorce was contested. the fee would have been at least double the amou", quoted by Ms. Allen. Likewise. if it was not contested. the fee would have been less than one-half of the amount quoted. Smith averred Ihat when he was contacted by Mr. Allen in June of 1997 he did not remember the 1995 divorce action. He filed an Answer and Counter Pelition on behalf 01" Mr. Allen. In conclusion, he sl<lted that because he was disqualified so early in the proceeding that he never represented Mr. Allen in COLIrt against any interest adverse 10 Ms. Allen nor did he intentionally engage in any conduct prejudicial to the administration of justice.

MS. GINA K. ROWLAND HUDSON SHERIDAN, AR A letter of reprimand was issued 10 Ms. Gina K. Rowland Hudson for the violation of Model Rules 4.2. 8.4(c) und 8.4(d) upon the complaint of Audriannu Grisham. The leller was filed February 26, 1998. These Rules state that in representing a client. a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in lhe mailer. unless the lawyer had the consent of the other lawyer or is authorized by law to do so: a lawyer shall not engage in conduct involving dishonesty, fraud. deceit or misrepresentation: and. a lawyer shall not engage in conduct that is prejudicial to the administration of justice. Ms. Grisham was counsel of record for Richard Camp in a divorce procceding filed in Grant County. Hudson was counsel in thm proceeding for the plaintiff, Angela Camp. During the course of the divorce procceding. Hudson and Ms. Grisham attempted to prepare a Property Settlemcnt Agreel1lcntto which both of her clients were agreeable, On March 10. 1997 Hudson provided Ms. Grisham wilh a proposed Agreement. After Ms. Grisham reviewed the Agreemcllt with her client. she made her c1ient's requested revi路 sions and returned the proposal to Hudson on or about April 18. 1997. Approximately one week later, according to Ms. Grisham's secretary, Joy Ray, Hudson ccdled Ms. Grisham's of/ice. Ms. Ray's recollection was that she advised Hudson of Ms. Grisham's absence from the office until Monday. April 28. 1997. On April 25. 1997. Hudson's client contacted Ms. Grisham's client and requested that he immediately meet her at the Grant County Courthouse. When Ms. Grisham's client arrived. Hudson presented him papers to sign and infomled him that the papers were from Ms. Grisham. The papers were not those which Ms. Grisham provided Hudson. Hudson misrepresented the true 11<lture of the documents when she asserted that they were from Ms. Grisham. By her actions she caused an Agreement to be filed

I"ol.ll XO. ilSpriog 1998 fbl.\rkaolall,a\\!lr

till' )'1" which had nOI been agreed upon by opposing counsel. Ms. Grisham. Hudson's responsive affidavit began with an acknowledgement that she represented Angela Camp in a divorce proceeding filed in Grant County. Arkansas. According to her. on March 21. 1997. after she had provided Ms. Grisham with a proposed Property Senlemcm Agreement her client contacted her and advised thai Ms. Grisham and her client wanted her 10 make changes 10 the proposed Agreement. II is her

assertion that she did so and senl the revised proposallo Ms. Grisham. Hudson also admits having received a revised proposed Agreement from Ms. Grisham on or about April 18. 1997. On April 25. 1997. her client contacled her and advised her thai Ms. Grisham's client wanted additional revisions made. Thereafler. she made Ihe revisions and made arrangements to meel her client so she could review and sign Ihe agreement. She denied thai she called Ms. Grisham's office as Ms. Grisham's secretary asserted. When her client arrived to meet Hudson on April 25. she told Hudson that Ms. Grisham's client was also present and wanled to see the Agreement. Hudson stated that her client took the Agreement to Ms. Grisham's client to sign. "Iudson denied ever speaking to Ms. Grisham's client. According to her verified response, she told her client that she would fax the documents to Ms. Grisham's office for approval. but that her client advised her that Ms. Grisham's client wanted to sign immediately after reviewing the documents. This is contrary 10 Hudson's assertion made in her transmillal leiter to Ms. Grisham dated April 28. 1997. In that leller. she advised Ms. Grisham that her client reviewed the documenls while visiting the children and wished 10 go ahead and sign them. Hudson closed her response by averring thai al no time did she violaiC and of the Arkansas Model Rules of Professional Conduct. MR. ERWI ' LEE \)AVIS FAYETI路EVILLE, AR A leller of reprimand was issued to Mr. Erwin Lee Davis for the violalion of Model Rules 3.1. 3.4(c} and 8.4(d) upon the Complaint Before the Commillee. The leller was filed March 5. 1998. These Rules slate Ihat a lawyer shall not bring or defend a proceeding. or assert or conlrovert an issue therein. unless there is a basis for doing so that is nOI frivolous. which includes a good faith argument for an extension. modification or reversal of existing law: a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assenion Ihat no valid obligation exists; and. a lawyer shall not engage in conduct thai is prejudicial to the aministration of justice. On May 22. 1997. the United States Coun of Appeals for the Eighth Circuit affirmed monetary sanctions imposed upon Davis by the Honorable Franklin Waters. The imposition of sanctions

1'hp Irkansall,all)pr

101. ,3 ,10. 2/Spring 1998

IlisripIiUill')'\l't ions

derived from Davis' representation of Danny Chris Ivy in his lawsuit against Chancellor Warren Kimbrough and Fayeueville Police Officer David W. Shull. The initial complaint was filed in federal court on July 24. 1995. Part of the basis of the lawsuit was predicated on allegations that Chancellor Kimbrough and Officer Shull had conspired 10 have Davis' client arrested. The pleading was slricken by Judge Waters less Ihan a monlh later. Judge Waters explained that it was stricken because it failed to comply wilh the FederaJ Rules of Civil Procedure. It was also poinled Oul Ihal if JLKJge Walers had only stricken the scandalous nmerial in the Complaint. there would have been nothing left to properly state a cause of action as required by the Federal Rules of Civil Procedure. Davis was direcled to serve the parties within 14 days if he elected to refile a Complaint on Mr. Ivy's behalf. David did not serve Ihe parties as directed when he refiled the Complaint. Through the course of the proceedings. he also failed to heed the Coun's w<:lrnings <:Ibout Ihe potential use of sanctions. His failure 10 heed such warnings was evidenced not only by his failure to serve the defendants but also by his assertion Ihat he had no notice of the time limitation for service despite the clear language of the Court's earlier order. Additionally. he wholly failed to respond on his c1ient's behalf to the defendant's Motions for Summary Judgment. Judge Walers found the law路

suit filed by him was frivolous from its inceplion. was filed for improper purposes. and. was not based upon sufficient evidentiary support. Davis' response began with an explanation that he had tried several relaled state cases on Mr. Ivy's behalf before he filed the federaJ civil rights action. He believed thatlhe federal case would be the first opportunity for all the pertinent facts to be heard. He asserted Ihat not only did he have cause to believe Mr. IVy's rights had been violated under color of law. he had actual knowledge of it. According 10 him. Ihe facts were so slrong Ihal prior criminal charges against Mr. Ivy were "bogus" thai he could have won the federal case .. 10 out of 10 times" before a jury. His belief was that this case represented the greatest injustice to a man Ihal he had witnessed in 27 years of law pmctice. He explained that instead of gelling a trial where .. lithe evidence would be allowed. he got "a federal judge who made up his mind on the slrength [sic.] of newspaper accounts and operated in ways to kick us out of Coun:' He did not apologize for filing the federal lawsuit. He only expressed his wish that he had drawn a Judge "who was not both so enamored with the politics of the case and so anxious to do the bidding of a local newspaper editor:'路:路

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covering a case of this nature are very well educated and may know just as much, if not more. than you do about the prosecution's case. An embarrassing question from one of these reporters does not cause the cameras to be turned off, or the recorders to be muted. Again, more damage lhan good can be caused to your client if you are not ready for lhese types of questions. Following the initial appearance. be prepared for reporters to allempt to contact you or your client so lhey can obtain their own scoop. While I have found many reponers to be very professional, lhere are no rules when it comes to conduct by media, and unfortunat.ely there are some reponers who will use any angle 10 get an exclusive. You muSl continually keep the fact in mind that the reporter has no concern for your client's plight. The reponer's concern is lhe slory, period, end. You may have persons contact you, stating thaI they want to do a profile on you, in advance of the trial. You may also have reporters call and make statements, whether they know them to be true or not, just to see if you will give them a reaction that will generate another story about your client or the case. Again. while the lawyer is nol the one thaI slaned all of lhis pubIicily, lhe lawyer cenainly should nOl be one to creaLe a media frenzy. When lhe trial begins, you may be besieged by these reponers. If you decide to engage in some public conferences outside the counroom, you should do so cautiously. It is certainly the bener practice to not talk to the media at this point in trial. You never want your opponent 10 be able 10 detennine your trial stralegy by watching the evening news. tn addition, the question thaI you generally will be asked is concerning how you think the trial wenl on thaI panicular day. "Well, they really kicked our ass today;" is jusl not a stalement lhat your clienl will appreciate. Your concentration must be on the jury and your preparalion for lhe next days. You may also be asked queslions about what may have occurred during the trial al a bench conference, or whelher you agree with a ruling from Lhe judge. There is just nol much that you can do which benefils your client by fielding press queries while lhe trial is in progress. Finally, you do nOl want to become an aggitant 10 the judge,

•

Con

who perceives you 10 be of the mind thaI jurors do nOl follow lhe coun's instructions and really do read newspapers and watch television. Following the trial you will cenainly be asked for your comments. Be professional. If you lose, you can always say lhat lhe fight will conLinue through the appeals process. However, you should never criticize the jury verdict, the jury process, or Lhe jury trial process. On the other hand, if you win, you really don't need to make a

statement. The jury has already made one for you. Finally, be professional. Familiarize yourself with the Professional Rules of Conduct. and follow them. Always remember that the client is your main concern.•:.

Sam Neuer is a criminal oflorney who practices ill Little Rock. He has halldled a few newsworthy cases.

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Sustaining ~Irmbrrts 01' thr .trtkansas Bart .\ssoriation 1997-1998 BAR YEAR H. William AJlen Philip S. Anderson R. Keith Arman

Darrell D. Dover

E. leRoy Aurrey Kenneth B. Bairn Charles W Baker Charles A. Banks Coleen M. Barger

Winslow Drummond

Marcia Barnes W. ChristOpher Barrier Anthony Bartels

R. T. Beard, III Paul B.Benham, III Evans Bemon

Keith I. Billingsley Daniel C. Blaney Ted Boswell William H. Bowen Ronald L. Boyer Debbie D. Branson

Davis Duty

B. Michael Easley Byron M. Eiseman, Jr.

John D. Eldridge Don R. Elliott, Jr. John R. Elrod Stephen Engstrom

Roben R. Estes Mike Evererr John C. Everett Oscar Fendler

Clint Huey AJan R. Humphries Eugene Hum Michael F. Irwin

Donald T. Jack, Jr. Sherry L. Jenkins Alston Jennings Louis B. Jones, Jr.

Glenn W Jones, Jr. Robert L. Jones, III Philip E. Kaplan William H. Kennedy, III Judson C. Kidd

Robert M. Ford

Warren O. Kimbrough Milam Mike Kinard Peter G. Ku mpe H. Baker Kurrus

Katherine C. Gay

David N. Laser John T. Lavey Ike Allen Laws, Jr.

John A. Fogleman

Edward O. Moody James M. Moody Harry Truman Moore

Richard

. Moore. Jr.

James L. Morgan Kenneth R. Mourron Rosalind M. Mouser Wm. Kirby Mouser

Charles T. Mulvey Jr. Ralph C. Murray Timothy J. Myers E. Sheffield Nelson George H. Niblock Raymond L. Niblock Walter R. Niblock Johnny L. Nichols R. Gary Nurter Bobby Lee Odom Conrad T. Odom Ranko Shiraki Oliver Joe D. Olson

Fred E. Briner

Sam Ed Gibson John P. Gill W. Denr Gitchel

Edward W Brockman, Jr. John A. Buckley Jr. Richard K. Burke

David M. Glover

Leland F. Learherman

David L. Osmon

Charles L. Gocio John C. Gregg

Samuel E. Ledbetter Ronald T. leMay

Hugh R. Overholt

Jim Burnett

Murrey L. Grider

Robert O. Levi

Richard C. Burler, Sr. Robert D. Cabe John C. Calhoun, Jr. Phillip Carroll Daniel R. Caner Robert M. Cearley, Jr.

William M. Griffin, III Ronald L. Griggs David K. Cunri Michael E. Hale

Harry A. Light John G. Lile, III

Charles R. Padgham B. Jeffery Pence Edward M. Penick

Edwin L. Lowther, Jr.

E. Lamar Pettus

Patry W. Lueken Philip K. Lyon D. Price Marshall, Jr.

John V. Phelps Norwood Phillips

William A. Marrin David R. Marrhews Gail Matthews Srephen A. Matthews

John B. Plegge David M. Powell

Sandra Wilson Cherry

H. Murray Claycomb John R. Clayton G. Randy Coleman

Donis B. Hamilton Frank S. Hamlin David M. Hargis

David K. Harp Paul E. Harrison Dave Wisdom Harrod

Jack W. Dickerson

Richard Hatfield William D. Haught Brad L. HendrickJ; Donald H. Henry Sam Hilburn Henry Hodges Curtis E. Hogue Alice L. Holcomb W. R. Holland Cyril Hollingsworth Don Hollingsworth Cliff H. Hoofman Ronald A. Hope Robert E. Hornberger D. Michael Huckabay

H. Tyndall Dickinson

Ann B. Hudson

Robert C. Compron

Barry E. Coplin Ben Core

Nate Coulter Steve R. Crane

Hugh E. Crisp Willis Cronkhite, III James D. Cypert Thomas A. Daily John A. Davis, III Roben T. Dawson J. C. Deacon Sherry D. DeJanes Judith DeSimone

lti

Philip E. Dixon Thomas E Donaldson, Jr.

Thr

Ir~lnlall,a\\!rr

Inl. ~~ In. t/Spring 1995

Sam Laser

Joann C. Maxey Ronald A. May S. Hubert Mayes Jr. Herbert H. McAdams II Bobby McDaniel James H. McKenzie

James A. Mclarty III Sidney S. McMath Phillip H. McMath James Bruce McMath

Jack A. Mc ulty Russ MeekJ; H. Maurice Mirchell

Michael W. Mitchell Gary J. Mirchusson Thomas Ark Monroe

Charles C. Owen

David A. Pierce

William I. Prewett

Donald C. Pullen Janet L. Pulliam John I. Purrle Louis L. Ramsay, Jr. Brian H. Ratcliff J. Thomas Ray Elron A. Rieves, III Charles B. Roscopf Charles D. Roscopf Kenr J. Rubens John L. Rush Donald S. Ryan Sandra L. Sanders

Don M. Schnipper Isaac A. SCOtt Jr. John R. Scorr John S. Selig

Frank B. Sewall Dennis L. Shackleford James B. Sharp J. L. "Jim" Shaver, Jr. Robert Shulrs James Marlon Simpson, Jr.

Ted C. Skokos J. Timothy Smith Ray S. Smith, Jr. Robett D. Smith, III Rodney Smith Laura H. Smith David Solomon

Donald M. Spears James D. Sprott Thomas S. Stone Leonard P. Srrickman John F. Stroud, Jr. William H. Surron Robert F. Thompson Denver L. Thormon

Danny Thrailkill Robert D. Trammell Fred S. Ursery James R. Van Dover

Mart Vehik W. J. Walker Bill H. Walmsley C. R. Warner, Jr. Timothy F. Warson, Sr. Jennifer D. Wheeler Bernard Whetsrone

Bud B. Wherstone John W Whitehead Robert H. Williams

W Jack Williams, Jr.

Gaston Williamson

Michael K. Wilson Russell B. Winburn Carolyn B. Witherspoon

Tom D. Womack Marsha Choate Woodmff Henry Woods Robert R. Wright, III Cary Young Damon Young

Paul B. Young Robert E. Young

fu of 4/8/98

III lh\1II III'iilllI

JOHN ALFRED COOPER John Alfred Cooper, the developer of Cherokee Village, died in March at his home in Dallas. He was 91. Born in Earle, Arkansas in 1906, Cooper was a West Memphis lawyer, planter and banker when he started fannulating plans in the early 1950s for a retirement community in the Ozarks. His con-

cept for retirement/recreation communities became a pattern for other developers in Arkansas and throughout the South. Mr. Cooper founded Cherokee Village Development Company in 1954 and opened Cherokee Village the following year. He also founded Cooper Communities, Inc., developed Bella Vista Village, which opened in 1965, and Hot Springs Village in 1970. The three communities are home to 30,000 people. Mr. Cooper was 11 generous supporter of the Arkansas Bar Foundation as both a Fellow and a Patron. ARTHUR A. GIVENS, JR. Arthur A. Givens Jr., 62, died February 16, 1998 at his home in Sherwood following a battle with Lou Gehrig's disease. MJ. Givens graduated from Arkansas Law School, and later attended the University of Arkansas Law School at Little Rock where he received a juris doctorate degree, graduating in 1968 with the first graduating class. Mr. Givens practiced law for over 25 years and was a member of the House of Representatives for 20 years. He joined the Arkansas Bar Association in 1970 and was a Fellow of the Arkansas Bar Foundation since 1972. He was active in civic affairs and he was instrumental in the formation of the Arkansas Lou Gehrig's and Motor Neuron Disease Foundation. He was a member of Sylvan Hills Church of Christ.

JUDGE DEAN R. MORLEY Judge Dean R. Morley, 87, passed away March 13, 1998. He was a charter member of the Arkansas Bar Association House of Delegates, past president of the Pulaski County Bar Association, the North Little Rock Rotary Club and numerous other boards and commissions. Judge Morley joined the Arkansas Bar Association in 1952 and was a continuous member until his recent death. He served on numerous committees and served as Chair of the Lawyers Helping Lawyers Committee for many years. In 1935 he was appointed as a Special Agent with the Federal Bureau of Investigation. In 1949 he was appointed as Commissioner of Revenues by Governor Sid McMath and in 1952 he began the private practice of law. He was elected as a traffic judge in 1971 and continued until his retirement in 1986. He is survived by his sons, Stephen and Randy Morley, who are attorneys in North Little Rock.

The Arkansas Bar Foul/dation acknowledges with grateful appreciation the receipt of memorial gifts and scholarship conrribuitiolls given in memory of Ihe following individuals from January 27, /998 throllgh March 27, /998: IN MEMORY OF PHYLLIS BOYCE

Justice Jack Holt Mary Holt Truemper IN MEMORY OF MRS. WILEY BRANTON, SR.

Judith Gray Judge Robin L. Mays IN MEMORY OF DARREl.l. CAVANEAU

Judge William R. Wilson, Jr. IN MEMORY OF BURNS CROTTY

Judith Gray Judge Willialll R. Wilson, Jr. and Cathi Compton IN MEMORY OF INEZ DAVIS

JAMES EDWARD YOUNGDAHL James Edward Youngdahl, a labor lawyer and fornler union organizer, died recently of a stroke. James Youngdahl attended Washington University and received his bachelor's degree in philosophy at the University of Missouri. He earned a law degree with honors from the University of Arkansas at Fayetteville, and was editor路in-chief of the Arkansas Law Review 1958-1959. Mr. Youngdahl began his legal career at the Little Rock law firm of McMath, Leatherman, Woods and Youngdahl. Youngdahl's life of working for labor interests began when his father, who was a teacher and social welfare administrator, talked about labor and the need for social progress in Minnesota where he grew up in the late 1920's and early 1930's. Mr. Youngdahl was a legend around Arkansas and the South, where he had lived through the thick of labor battles here and in surrounding states. Many labor lawyers moved to Little Rock in order to practice law with and learn from Youngdahl. He was the first full-time union lawyer in Arkansas. His son, attorney Jay Youngdahl, is also a labor lawyer.

Judith Gray Philip E. Dixon IN MEMORY OF SUSAN DIXON

Justice Jack and Jane Holt IN MEMORY OF DEAN R. MORLEY

Justice John and Annis Fogleman Judge Henry Woods IN MEMORY OF ANNE RIl.EY

Judge Will iam R. Wilson, Jr. IN MEMORY OF DAl.TON WHETSTONE

Judge Willialll R. Wilson, Jr. and Cathi Compton IN MEMORY OF ROBERT WRATHER

Judge William R. Wilsoll, Jr.

Please send obiluaries 10: Adrienne Brietzke. Editor. The Arkal/,sas Lawyer. 400 West Markham. Little Rock. AR 72201 501/375-4606 or 800/609-5668 or fax correspondence 10 501-375-4901 The edilOrs re.W1'e the right 10 edit copy for /ellgT1I and comifllliry. If a photo is (II'ai/able. please send wu/ il/dicare wheTher if is lO be 1"f.'IIII'11NJ.

1'01. Jj 10. !/Spriog 1995

The .Irkaos;ts l.;tIIlrr

1998 Arkansas Bar Association CLE Calendar

1'( I all 11\11111111\(, \\ll \( ( 01 \ 11\(,

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through Juue 30, 1998 updaled'I/I/98 If you don't see the seal - it's !Jot an Arkansas Bar Association eLf Program. As a volllntary association, we depend on yOIl, Ollr members, to !J'upport our eLf programs. Your financial support benefits every Arkansas Bar Association member with enhanced membership benefits and disCOllflfS as well as the highest quality eLf programs in the stafe.

!Iay I, 1998 TAX AWARENESS

UALR School of Law, Little Rock, AR 6.0 Hrs. CLE

!Iay 1a·16, 1998 ENVlRONMENTAL LAW

Inn of the Ozarks, Eureka Springs, AR 9.0 Hrs. CLE

!Ia)' 15, 1998

PAGE West Group Inside Front Cover Rebsamen Insurance Inside Back Cover John McAllister 'Expert Witness' 3 Tax Anorney Wanted 11 Health Care Auditors 11 ABA Retirement Program 13 Litigation Anorney Wanted 19 American Environmental Consultants 19 Dr. Charles Itzig 21 Richard L. Schwartz 31 Legal Directories Publishing 32 Brian Donahue Mediation 34 Draco Collison 35 Landtech Data 35

Great American Insurance Schultze, Maechling LOIS, Inc. Paul D. Mixon Commercial Litigation Firm John T. Bates ADR, Inc. Smith Barney Rick Peterson Ciassitied Advertising: ProBili Michaei E. Serjeant

36 36

37 38 38

39 42 44 45

48 48

SOCli\L SECURITY LAW

UALR School of Law, Little Rock, AR 3.0 Hrs. CLE

SUl........t al Oome<oIl1p, ,

!Iay 1a, 1998 SECURITIES 101

UALR School of Law, Little Rock, AR 4.0 Hrs. CLE

!Ia)' 29, 1998 DOMESTIC RELATIONS LAW

Hilton, Fayetteville, AR 6.25 Hrs. CLE

June 10·13, 1998 100TH ANNUAL MEETING

Arlington HOlel, Hot Springs, AR

June 24·26, 29-30, 1998 BEST OF CLE

UALR School of Law, Little Rock, AR 30.0 Hrs. CLE

,18

The Jlrkansall,a\\j"er

I'nl.ll Nn.l/Spring 1998

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'What's in it for my firm?' • a managIng partner might rightly ask. Why theCNA acquisition of Continental Insurance

The CNA Insurance Companies became one of the largest writers of lawyers professionalliability insurance in the nation earlier this year with their acquisition of Continental Insurance Co. The CNA member companies now insure over 50,000 attorneys in 49 states. The Merger makes the CNA more valuable both to the firms we now insure and to those that are considering our coverage. ·Combined underwriting expertise enables us to price policies more flexible for small as well as large firms.

• •

IS Important

· Greater underwriting resources make it possible for us to offer coverage for higher-risk practice specialties.

to attorneys

· Enhanced resources will improve responsiveness and service. · Highly focused loss-control services for a broad variety of specialties will continue to be offered and enhanced.

Firms currently insured by CNA can now expect even more value for their premium dollar. For firms not insured with CNA, we can demonstrate how we will perform for you.

Call Rebsamen for more information. Telephone (SOl) 664-8791 Fax (501) 664-9487

The Arkansas Bar Association endorsed Professional Liability Program is underwritten by Continental Casualty Company, one of the CNA Insurance Companies. CNA is a registered service mark of the CNA Financial Corporation, CNA Plaza. Chicago,lL 60685.

INTRODUCING... r THE 1998 ARKANSAS FORM BOOK ~

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The 1998, two volume 1,200 page Arkansas Fonn Book is now available. TItis convenient collection of fanTIS is a practical necessity that is indispensable for attomeys practicing in Arkansas. Every chapter has been reviewed and, where necessary, revised or rewritten to comply with current law, court rules and practice. Each chapter has a detailed table of contents. Chapters are cross-referenced for ease of use. If you need forms for anything from Acknowledgement to Zoning & Land Controls... yoll need the Arkansas Fonn Book.

COPY THIS ORDER FORM TO FAX OR MAIL

$50.00 member discount (print version only) expires June 15, 1998.

(The Arkansas Form Book on Computer Disk and CD-ROM will be available May 1998.) Member Member Discount Non-Member Price Price Price 1998 Arkansas Form Book $170 $350 5220 $$ $5.00 Postage & Handling

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TOTAL AMOUNT DUE Method of Payment

Check

VlSA

Credit Card Number

$ --

Mastercard Exp.

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CardholderSignature Name

Streel Address

_ _ ---,,==============-c.Cily/Zip To order print or disks nllthe Arkansas Bar Assodation at5Of-37s-a606 or 800-609-5668 orFal( 501-375-4901. L

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For CD-ROM orders please nil LOIS al 800-364-2512. or 501-471-5635.

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