YLS Young Lawyers Section
In Brief In this issue
A Periodic Newsletter of the Young Lawyers Section of the Arkansas Bar Association
Hats Off 2
Vol. 15 #3
Write for In Brief!
In the news 3 What Judges Want Interview with Judge Timothy Fox Jamie Huffman Jones 6 Interview with Judge Mackie Pierce Beth Burgess & Tom Buchanan 8
Interview with Judge Rhonda Wood Chris Burks 10
YLS Report Brian M. Clary 12 Representing Transgender Clients Michael V. Lauro, Jr. 13 Tasty Tips Rashauna Norment 15
Opportunities to write for YLS In Brief include: • Tech Tips (discuss technology that you use in your practice, etc.) • Legal Articles (use this as an opportunity to tell us about your favorite practice area, discuss rule changes, analyze recent cases, etc.) • Arkansas Traveler (play the part of a critic as you share your unique dining experiences, shops, hotels, entertainment venues, etc.) • What Judges Want (volunteer to interview a judge and share the judge’s answers to your questions with other young lawyers) • Tasty Tips (if you have a fun recipe you would like to share, submit it and it might be selected to be included in the newsletter) If you are interested in writing for a future issue, please contact Tasha@TaylorLawFirm.com.
Assistant Editors Cory Childs Kristen S. Moyers Bethany Pike Andrew M. Taylor Tech Tips Editor Keith Pike What Judges Want Editor Mandy Thomas Recipes Editor Rashauna Norment Contributors Jennifer Carson Tim Penhallegon Melissa Sawyer H. Brock Showalter Daryl Taylor Jenny Teeter
YLS Young Lawyers Section Chair: Brian M. Clary Chair-Elect: Vicki S. Vasser Sec-Treas: Anne Hughes White Immediate Past Chair: Brandon K. Moffitt
Michael V. Lauro, Jr., founder of Lauro Law, PLLC, a Little Rock law firm that focuses on providing gender transition assistance to transgender individuals, co-facilitated a discussion session on identity documents at this year’s annual Transgender Law Institute at the National LGBT Bar Association’s annual Lavender Law Conference and Career Fair. The theme of this year’s Institute was “Developing Competence and Expertise in Transgender Representation,” and concentrated on four areas: employment law, identity documentation, incarceration issues and health benefits/insurance coverage. For the press release, visit http://laurolaw.com/news/pressreleases.html.
David M. Hogue and Brian C. Hogue have recently formed Hogue Law Firm, PLLC in Fayetteville, Arkansas. Their practice areas will include: family law, criminal law, real estate law, construction law, business law, personal injury, and others. They can be reached at (479) 444-6311.
Executive Council: District A: Ryan Pettigrew Brian R. Lester Vicki S. Vasser
Aaron Brooks recently finished clerking for The Honorable Morris S. Arnold of the Eighth Circuit Court of Appeals, and joined the Chicago office of Sidley Austin LLP as an associate in the Corporate Department.
District B: Cory D. Childs Grant M. Cox Tasha C. Taylor
Lawson Baker recently joined Crews & Associates, Inc. as an Associate of the Capital Markets Group. He previously worked at Jack Nelson Jones as a Bond Attorney. Lawson was also recently married to Dr. Cynthia Caceres (of Monarch Dental in North Little Rock) on June 4th.
District C: Timothy R. Leonard Susan Weaver Ryan M. Wilson At Large Representatives: Tessica Dooley Cliff McKinney Law Student Representatives: University of Arkansas at Fayetteville School of Law: Angela Artherton UALR William H. Bowen School of Law: S. Kate Fletcher
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Corey D. McGaha has recently joined Emerson Poynter LLP as an Associate Attorney. Corey was previously with the firm of Patton Roberts, PLLC in Texarkana.
Graphic Design & Layout Anna Hubbard
Hats Off
In brief
Editor-In-Chief Tasha C. Taylor
YLS In brief
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Anthony Johnson, joins three other attorneys to form a new firm, Butler, Horn, Nye & Johnson, PLLC and expands with the opening of new offices in downtown Little Rock and another in downtown Benton. Matt Fryar of Cypert, Crouch, Clark & Harwell, PLLC, and his wife, Cori, welcomed their second child, Anna Claire, on June 1, 2011. If you have information on YLS Members who deserve a “Hat’s Off” or would like to submit ideas for articles, please contact the editor of “In Brief,” Tasha Taylor at Tasha@ TaylorLawFirm.com.
In the news
Brian M. Clary 2011-2012 Young Lawyers Section Chair
YLS Volunteers at Humane Society of Pulaski County Dog Wash On Saturday, August 27th YLS Volunteers helped raise over $1,000 for the Humane Society of Pulaksi County. Thank you to the volunteers and and those who brought their dogs in for a bath.
Congratulations to 2011-2012 YLS House of Delegates Members: John T. Adams Angela Artherton Cecilia L. Ashcraft Chad L. Atwell Amber Wilson Bagley Phillip M. Brick, Jr. John R. Byrd, Jr. Zane A. Chrisman Suzanne G. Clark Brian M. Clary Charles E. Clawson III Grant M. Cox C. Michael Daily Erik P. Danielson Jason Earley Farrah L. Fielder S. Kate Fletcher Whitney Foster
Matthew L. Fryar Hollie Greenway Stephanie M. Harris Jackie Bernard Harris Shane A. Henry Timothy R. Leonard Leslie J. Ligon George M. Matteson Emily Sprott McIllwain J. Clifford McKinney II Anthony W. Noblin Lisa-Marie France Norris John P. Perkins III Brandon C. Robinson Gwendolyn L. Rucker Shivali Sharma Patrick L. Spivey William J. Trentham
Curtis J. Walker J. Adam Wells William Zac White Victor D. Wright III
YLS Board of Governors Members: Seth T. Bickett Brian M. Clary Tessica Cherie Dooley Wade T. Naramore Brock Showalter
Brian M. Clary has been named Chair of the Young Lawyers Section. Since 2006, Brian has represented the State of Arkansas as a deputy prosecuting attorney in Saline County. He handles a general felony caseload for the office. Brian was elected to the YLS Executive Council in 2008 and has served on the Association’s Leadership Academy, Membership Development, and Long Range Planning Committees and the Editorial Board for Handbooks. He is also a member of the Saline County Bar Association. Brian is a native of Memphis, TN. He completed his undergraduate degree at Rhodes College in Memphis and received his law degree with honors from the University of Arkansas at Little Rock William H. Bowen School of Law. At Bowen, Brian served as member of the Law Review Editorial Board and as a representative on the Student Bar Association. Brian was recently selected to join Bowen’s Alumni Board.
Save the Date 2012 Annual Meeting June 6-9, 2012 Hot Springs
Become a fan! Join the Group! Arkbar Young Lawyers Section 3
-CLE Take it to the
vel Next Le in Leadership
2012 Leadership Academy Applications due October 3, 2011 Go to www.arkbar.com for more information
2011 Leadership Academy October 20 - 21, 2011
Bridging the Gap UALR Bowen School of Law, Little Rock
October 27, 2011
Securities Law Arkansas Bar Center, Little Rock
October 28, 2011
Project Management & Teamwork for Lawyers & Multitasking Gone Mad UALR Bowen School of Law, Little Rock
October 31, 2011
Nightmare on Ethics Street Live Webcast
November 3, 2011
Fall Legal - CNA
Opening retreat at Lake Degray
John Q. Hammons Hall, Springdale
November 4, 2011
Fall Legal Institute John Q. Hammons Hall, Springdale
November 9, 2011
Mount Magazine retreat
Environmental Law Workshop Arkansas Bar Center, Little Rock
November 16, 2011
Hot Legal Topics: Views from the Bench and Bar Hilton Garden Inn, Jonesboro
November 17, 2011 November 18, 2011
What You Do on Facebook Can Get You Fired Webinar
Meeting with Governor Beebe
13th Annual Government Practice Institute UALR Bowen School of Law, Little Rock
TBA
Financial Institutions
TBA
Health Law Pro bono session in Hot Springs
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YLS In brief
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In the news YLS Challenge Reminder
Participation in YLS activities throughout the year will put you in the running for winning a great gift at the 2012 Annual Meeting.
Earn points by volunteering for YLS service projects and Association community events, attending YLS meetings and social events, or referring new members to the Association. A member is entered into the contest if they accumulate over five (5) points during the year (ending at the 2012 Annual Meeting in Hot Springs). Each member must attend at least one meeting, social event, and service project. The additional two points may be accumulated in any manner previously mentioned. YLS has been keeping track of participants, but it is your responsibility to let me know of referrals and Association community events. You can contact me bmclary@gmail.com. Good luck and we hope to see you at our next event! --Brian Clary
YLS Tailgate Party September 17th Go Hogs! University of Arkansas School of Law/Arkansas Bar Association YLS Pre-Game TailgateParty Arkansas Razorbacks v. Troy Trojans Where: Tailgate Spot G-4 at Leverett Elementary School on corner of Cleveland Street and Garland Avenue, adjacent to northside of campus. Tailgate location is behind the playground (look for the blue canopy) 2 pm until the game starts at 6:30
Get Involved
Share the News about 18 & Life to Go “18 and Life to Go: A Legal Handbook for Young Arkansans” provides young people with invaluable legal advice on important topics such as the management of credit and the various ways of settling disputes. It covers both civil and criminal legal issues. • Download for free at www.arkbar.com • Order on the Kindle for $2.00 at Amazon.com • Order a paper back copy for $5.00 on Lulu.com Forward the links to your friends and family in high school & college.
Present A Level Playing Field
Why the American Legal System Matters To You
Although the American legal system might seem complex and intimidating, it really has a lot in common with the game of football! Both have a set of rules, and require someone to interpret their meaning and decide whether they’ve been broken. Judges, like referees, endeavor to treat everyone alike, and have no interest in the outcome as long as it is fair. In a court case, like any football game, there’s a winner and a loser, but our Constitution ensures that no matter what, justice will prevail. In this short video and instructor’s guide, Arkansas’s finest judges, public officials, and lawyers celebrate our country’s most noble aspiration – a truly level playing field.
Virtually everybody in the world is fighting, scratching, clawing and swimming, doing everything in the world they can to get here, because no nation in the world is fairer or has such a rule of law that works.” U.S. Senator Dale Bumpers
“Every generation has an obligation to pass on to the next generation the principles that this country was founded on.” Governor Mike Beebe
SPECIAL FEATURES
INSTRUCTOR’S GUIDE COVERING THE SUBJECT MATTERS: • Rule of Law • Equal Justice • Jury System • Fair, Impartial and Independent Judiciary
A PRODUCTION OF THE ARKANSAS BAR ASSOCIATION “A LEVEL PLAYING FIELD: WHY THE AMERICAN LEGAL SYSTEM MATTERS TO YOU” MUSIC DIRECTED PRODUCED BY ADRIAN TILLMAN BY RON BLOME BY NICK ROGERS SCREENPLAY DIRECTOR OF BY NICK ROGERS PHOTOGRAPHY GARY JONES & LEONARD CHAMBLEE TRT: 20 MIN
Arkansas Bar Association
Law Related Education Committee
www.arkbar.com
Why the American Legal System Matters To You
“Strong or weak, rich or poor, black, brown, white, red, male, female, you have an entitlement to the same treatment under the law.” Dean Cynthia Nance, University of Arkansas
WHY THE AMERICAN LEGAL SYSTEM MATTERS TO YOU DVD and Instructor’s Guide
Make plans to present “A Level Playing Field: Why the American Legal System Matters toYou” at your local school. Please contact the Association at (501) 375-4606 for materials and more information. A short excerpt from the DVD can be seen on YouTube at the following site: http://www.youtube.com/watch?v=tDvzw4QfI_g
For More Information contact the Arkansas Bar Association at (501) 375-4606
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What Judges Want INTERVIEW WITH
JUDGE TIMOTHY FOX by Jamie Huffman Jones
Judge Timothy Fox was born and raised in Little Rock, Arkansas. He received his B.A. in political science from Hendrix College in 1978 and his J.D. from the University of Arkansas in 1981. He subsequently practiced law for twenty-one years, representing individuals and corporations in a variety of litigated matters. In 2003, he was elected Circuit Judge of the Sixth Division of the Sixth Judicial Circuit (Pulaski County). In 2007, he was the first judge in the state of Arkansas to be awarded a Master in Judicial Studies from the joint venture between the National Judicial College and the University of Nevada at Reno. Recently, YLS member Jamie Huffman Jones was given an opportunity to hear Judge Fox describe practice in his Court and learn the answers to the following questions: Q: What should a young lawyer not say to the jury? Judge Fox explains that if it is your first jury trial, you should not tell the jury! Doing so only undermines the confidence the jury has in your abilities. And, if you do tell the jury it is your first trial, Judge Fox advises that you have previously told your client. 6
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Q: What is your judicial philosophy? Judge Fox now handles 100% civil cases. He explained that he believes “there are two general philosophical theories concerning civil jury trials. The first theory is that a civil jury trial is a quest for the truth. The second theory is that a civil jury trial is a purely adversarial proceeding governed by the rules of civil procedure and the rules of evidence, and perhaps in limited circumstances by the rules governing legal ethics.” Judge Fox’s philosophy is the second theory. Q: What is the jury told in orientation? Judge Fox advises lawyers to be familiar with what the jury is being told about the trial process. He explains: Attorneys are welcome to come to my jury orientations. Probably not a good idea to come sit with the venire panel if you have a trial during that four-month rotation but any other time you are welcome. It might be helpful to know what they’ve been told about the process not just in my court but in any division or jurisdiction in which you have a jury trial. Judge Fox utilizes a two-segment orientation, which takes about an hour to complete. During the first part of the orientation, his deputy clerk and bailiff go
over the basic housekeeping matters, such as calling in for service and parking. This takes about 15 to 20 minutes. Judge Fox does the remaining orientation himself. He explains the entire jury trial process including voir dire, opening statements, bench conferences, jury instructions and closing arguments. Judge Fox says, “I have found that jurors are much more forthcoming in answering voir dire questions if I have explained to them in orientation that each side gets three preemptory strikes and attorneys are asking questions not to pry or to be nosy but rather to discharge their professional responsibilities.” Judge Fox explains to the venire panel that they do not get to ask questions, and why, and the difference between opening statements and closing arguments. He emphasizes to the venire panel the importance of jury instructions, telling them that the “trial equation is testimony and evidence plus jury instructions equals verdict.” Q: How do you determine the number of days for which a trial is set? “In my court it is the plaintiff’s obligation to insure that sufficient days are allotted for the case to be fully tried. I don’t tell attorneys how long it will take them to try their case, but however many days they request
are all that trial will be allotted. The litigants in the case set for the next day’s docket may have waited a year or a year and a half to get their day in court and they have a right to go to trial as scheduled.” Q: Do you issue scheduling orders? Judge Fox issues scheduling orders for all multi-day trials. Scheduling orders, according to Judge Fox, “assist attorneys in being ready for trial on the scheduled date(s) by providing external preparatory framework and to more efficiently utilize the docket days available for civil jury trials.” Where there are more than two days of trial requested, he includes a mediation requirement. If a party believes mediation would be helpful, he would be open to including a mediation requirement in the two-day scheduling order. He is considering adding an expert disclosure deadline to the scheduling order given experience in recent cases. Q:Do you enforce your scheduling orders? “My general position is the failure to disclose witnesses or exhibits if required by the Scheduling Order means those witnesses and/or exhibits will not be used during the trial.” Q: Can the attorneys modify your scheduling order? “I generally advise attorneys that if they wish to enter into modifications of the Scheduling Orders between themselves that is up to them, but that I am not modifying the Scheduling Order or sanctioning such agreements, so they better know who they’re dealing with because if there is a dispute as to any agreement I will be strictly enforcing the Scheduling Order deadlines.” Q: What is a trial day like in your Court? Attorneys will meet with the Judge in chambers at 8:30 a.m. Judge Fox describes the remainder of the day: I also feel very strongly that jury trials should not be an endurance contest. We start with the jury promptly at 9:00 a.m., take one mid-morning break, one mid-after-
noon break, and an hour for lunch. If the case is a one-day case, we stay until we get it done, however late that may be. But on multi-day settings I let the jury go at about 4:30 p.m. to 5:00 p.m., except on the last day, when we stay however late as is necessary to finish. Information overload sets in after a full day in the box and most are used to working a regular work day. Letting the jurors know that their evening activities will not be adversely impacted not only makes it easier to seat a jury but I believe leads to a more attentive panel for the time they are in the box. Lawyers should be prepared to work through the lunch hour so as to efficiently use the jury’s time. Q: Should my client come back to chambers with me? Yes, Judge Fox responds. “Clients are always welcome in chambers, it is after all their case, and we are only in chambers to be outside the presence of the jurors and witnesses.” Bringing your client with you to chambers only furthers the client’s understanding of the process and the court rulings. Q: How do you want jury instructions? Jury instructions should be tendered to Judge Fox in both hard copy and electronic Word format no later than 9:00 a.m. on the business day preceding trial. Judge Fox warns, “failure to comply with such requirement may result in removal of the trial from the jury trial docket.” Q: How do you conduct voir dire? Judge Fox first announces the case and asks the attorneys if they are ready for trial. He then welcomes the potential jurors, tells them how many days the case is set for, and that he is going to call the first eighteen names. He reminds them that “there are no right answers or wrong answers just that the attorneys need information in order to intelligently utilize their preemptory strikes.” Attorneys should not waste time by calling for responses from those seated in the galley. Judge Fox further explains the process: I then give the jurors a very brief descrip-
tion of the allegations of the parties, introduce the attorneys, the parties, and identify all of the possible witnesses. I ask them if there is any reason they are unable to serve as jurors and about any prior jury service. My involvement in voir dire is minimal as I prefer to leave the questioning to the attorneys. In the event the case involves extremely sensitive matters such as sexual abuse I will often ask the questions on those subjects myself. I do this to relieve the attorneys from having to be the heavies on those issues and because those are the type of questions the jurors will raise their hands to ask to approach the bench to answer. I let them sit in the witness chair and give me their answer. If the answer clearly constitutes cause to strike I release the juror, then call the attorneys to the bench and advise what the answer was and that I have excused the juror for cause. If the answer does not reach the “for cause” threshold I send the juror back to their seat, have the attorneys approach the bench and give them the answer to use in making their preemptory strike decisions. Q: How do you rule on motions in limine? “I have three rulings I use to resolve motions in limine: granted, denied, and denied without prejudice. The attorneys who practice regularly in front of me know ‘denied without prejudice’ is a shorthand I use to advise them I believe the subject matter of the motion is not suitable for disposition without hearing the testimony or evidence.”
On behalf of the YLS, Jamie Huffman Jones, would like to thank Judge Fox for his time and his advice. Jamie Huffman Jones is a partner with Friday, Eldredge & Clark. Her practice focuses primarily on the defense of class actions, business, commercial disputes, and FELA litigation. She can be reached via email at jjones@fridayfirm.com. 7
INTERVIEW WITH
JUDGE Mackie Pierce by Beth Burgess & Tom Buchanan Judge Mackie Pierce is a Circuit Court Judge in the 17th Judicial District. The 17th Judicial District includes Perry and Pulaski Counties. Judge Pierce grew up in Pulaski County, outside of Jacksonville. He received his B.A. in Political Science and his law degree from the University of Arkansas.
Beth Burgess: What drew you to the practice of law? Judge Mackie Pierce: Well, I’m colorblind, so I couldn’t be a pilot. I found that out at an early age, so I decided to be an attorney instead. My Grandmother Pierce always thought that I should be an attorney, so she always encouraged me to do that. I always liked government, history, and politics. I was just naturally drawn to it. Tom Buchanan: After law school, what drew you back to Central Arkansas? MP: I came back to Central Arkansas after law school in 1980 and clerked for Judge Lowber Hendrix for about nine months. I had always wanted to return to my home town of Jacksonville and practice law. I received an offer in Jacksonville and went into private practice with Ben Rice and Robert Batton in 1980. BB: What areas of law did you deal with in your law practice? MP: It was just a general practice—we 8
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pretty much covered everything from A to Z. I did some criminal work; Judge Hendrix had gone to a criminal docket while I was there, and I really liked that. We also handled civil cases, domestic relations, real estate and probate cases. In 1991, I left the Rice Law firm, and opened my own firm. I took over the practice of an attorney, Les Mattingly, who had become an Administrative Judge for Social Security. I was there from June of 1991 through December 31, 1998. BB: What went into your decision to run for Circuit Judge? MP: When I was a clerk for Judge Hendricks, it was something I thought I wanted to do someday. My goal was to practice law for 20 years and then get elected to a judicial position. I practiced law for 19 years before I was elected, so it worked out. TB: Has your case load changed since you were elected to the bench? MP: I was elected as a Chancellor, before Amendment 80 went into effect, so I originally handled equity and probate cases. Now I still handle domestic relations and probate matters, but I also have a civil mix. I now have law and equity cases. BB: What do you most enjoy about being a judge? MP: I enjoy the work. I enjoy the cases that are tried; it is so very interesting to me. I like to think I am good at what I do; that I
reach a fair and proper decision in a majority of my cases. I enjoy seeing good attorneys try cases. I have a great staff. I enjoy working with them. They make my job and my life much easier than it could be. It’s just a great challenge, and I enjoy coming to work every day. TB: What advice could you provide to a young attorney who is to appear in your Court? MP: 1) Be prepared. 2) Know what it is that you want to achieve or what your goal is. 3) Understand what your burden of proof is. 4) Always conduct yourself as a lady or a gentleman in the courtroom. 5) Be familiar with the Rules of Civil Procedure and Rules of Evidence before you come in to try your case. TB: What are some common mistakes you see young attorneys make in your courtroom? MP: I see attorneys, and not just young attorneys, who are ill-prepared, who have no idea what their burden of proof is when they present their case. One example that comes to mind is in a probate case, if you will look at the Probate Code, it will generally spell out for you what it is that you need to do— whether it is a guardianship, an adoption, a decedent’s estate, whatever the case may be—and it’s amazing to me that there are a lot of attorneys who never even bother to open the Code before they walk in the courtroom to have a hearing. There are attorneys
who don’t understand what their burden is or what they are trying to accomplish in the case they are trying. I think there is a common misconception that anyone can try a domestic relations matter. Anyone can, but you need to know what you are doing. It is different from a motion for summary judgment, or a civil dispute. I would say lack of preparation is the biggest mistake I see. Not being familiar with the latest case law is the second biggest mistake. TB: In terms of feedback that you have received after jury trials, what are some complaints or frustrations jurors have with attorneys that you can share with us? MP: One complaint is that attorneys waste juror’s time too often, and that attorneys talk over their heads instead of talking to them as peers or equals. That’s a major complaint that I’ve heard over the years—that we waste a lot of juror’s time in trying a case. It is hard for an attorney because that attorney doesn’t necessarily know what the juror is looking for a lot of times. It comes back to a focus on the part of the attorneys as to what they are seeking to achieve with a jury or a judge, and keeping that in the front of their minds throughout the process instead of getting overwhelmed by all the details and tending to spew everything out there for the jury. BB: When it comes to oral arguments in your courtroom, what do you expect from attorneys, especially in cases that may have voluminous pleadings? MP: The first rule I would urge any young lawyer to follow is to keep in mind what the word “brief” means. It means short and concise. If you submit a 30-page brief to me, I’m going to look at it; I’m going to read it. However, I am going to be able to do a better job when looking at a three to five-page brief than I am with a 30-page brief. There are very few cases where you can’t just hone down your argument to the basic issues that you need the Court to decide or consider. I understand that with some things there are often a lot of issues to decide. I try to read any motion or brief that is submitted. I urge all attorneys to send a copy of their pleading to my office prior to the hearing on the matter. Just because you file something with the
clerk’s office doesn’t necessarily mean that the judge is going to get it in a timely manner, so I encourage attorneys to make sure my law clerk has a copy well in advance so that I can consider the arguments. If you come in on the day of oral argument, and I haven’t had the chance to read your pleadings yet, I’ll tell you, and I won’t make a ruling until I’ve read the material. But it just delays my ability to make a decision for you that much longer if you don’t make sure that I have received the pleadings in advance of the hearing. Also, I don’t need attorneys in oral arguments to go back through their briefs point by point or line by line. Just go back and hit the high points. Tell me what it is that you want me to consider, the relief that you want, and I can look at the brief and apply the law. It is not necessary for attorneys to spend an hour reciting what took them several hours to prepare in a multipage brief. Attorneys should never cite a case in support of an argument or point when it in fact does not. You lose all credibility with the court when you do that. I’ve been amazed a few times at the attorneys who will cite some law that simply does not apply to the case at hand. It’s disappointing because either the attorney has misread the case, misapplied the case, or is willfully attempting to mislead the court. TB: We handle civil cases and find ourselves spending the majority of our time dealing with discovery disputes. What advice do you have for attorneys on how to deal with the discovery issues that seem to inevitably come up in bigger, more complex cases? What are you looking for from your side of the courtroom because we’ve found that it is no longer the exception to have a discovery issue; it’s really become standard practice. MP: My least favorite activity is dealing with discovery disputes. It is the biggest waste of the court’s time. I have very little patience with discovery disputes because the rules of discovery are pretty clear. There is very little that is not discoverable. If the information sought is proprietary or confidential, then draw up a protective order. I will gladly sign it. I don’t understand most discovery disputes. A lot of discovery disputes are just the result of the parties not cooperating, not
willingly giving up information everyone knows is discoverable. I will grant a request for attorney’s fees and costs sometimes in these disputes, and if there is a willful failure to comply with an order to compel discovery, I’ll strike answers, or dismiss complaints. BB: So what advice can you offer to attorneys who find themselves in the midst of a discovery dispute? MP: I encourage everyone to keep fighting for everything to which they believe they are entitled—whether you are plaintiff’s counsel or defense counsel. The problems with dealing with discovery—I think it is a game that some people play. I just don’t have a lot of patience for these types of disputes. TB: How has the legal profession, based on your view, changed or evolved since you began practicing law, in terms of the style or manner in which attorneys interact with one another? MP: I believe that the practice of law has become more of a business and less of a profession. I can’t say that all the changes I’ve seen have been good. There is much less good will, trust, and professionalism amongst lawyers than there was thirty years ago. TB: How do we get back to the way practicing law used to be? MP: A lot of people have the perception that in order to be a successful attorney, you have to be a go-for-the-throat, no-holdsbarred, win-at-all-costs type of attorney, and I think that’s wrong. It’s a small world in which we as attorneys and judges live. Attorneys need to remember that what goes around comes around. A little good faith and fair dealing can go a long way.
Tom Buchanan is the Managing Member and Beth Burgess is an Associate Attorney at the Law Office of Thomas G. Buchanan in Little Rock, where their primary focus is on personal injury litigation for plaintiffs. They can be contacted at tom@thomasbuchananlaw.com or beth@thomasbuchananlaw.com. 9
INTERVIEW WITH
JUDGE Rhonda Wood by Chris Burks
Judge Rhonda Wood is a Circuit Court Judge in the 20th Judicial District. The 20th Judicial District includes Faulkner, Van Buren, and Searcy Counties. She is married to Dr. Michael Wood and they have 4 children. She graduated from Hendrix, magna cum laude with a degree in Politics, awarded with distinction. She received her law degree from the UALR Bowen School of Law with highest honors and was named the Arkansas Law Graduate of the Year by the Arkansas Bar Association and received the Top Score on the Arkansas Bar Exam.
Chris Burks: Thanks for sitting down for the interview, Judge! To start, what are key points of lawyering you look for in civil proceedings; brevity, clarity, concise factual statements from witnesses? Judge Wood: I am honored to have this opportunity to reach out to the Young Lawyers. Preparation, preparation, and preparation. It sounds simple, but know what you have to prove going in and then prove it. You don’t need to do any more or any less, both extremes are flawed. CB: What is the best advice you can give young lawyers who appear in trial court? JW: First, investigate the judge before 10
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you appear the first time. Visit with the trial assistant, law clerk, and local attorneys about their experiences. Second, have confidence. There can be a misperception that the more seasoned attorney has the advantage. I do not find this to be accurate and you should never feel intimidated. I have yet to find a required element in any cause of action that prescribes: “and the lawyer has practiced longer than the other lawyer.” In medical school residency they often say “watch one, do one, teach one.” Legal practice is very similar. CB: Often we’ll see seemingly small civil cases be passed down to young lawyers because of their complexity as to one particular issue or problems with a client. What advice do you have for a young lawyer who gets such a ‘problem case’ handed down to them? JW: Always be cautious before taking a case after previous lawyers have disassociated with it. These clients need representation, but you must be diligent to fully understand the reason for a change in representation. You do not want past issues repeated. Often, these cases can be very rewarding in the end because of the obstacles you have overcome. CB: With increasing filings in certain practices areas, including foreclosure and bankruptcy, what advice do you have for young attorneys about managing these high volume practices effectively?
JW: If lawyers are working in these areas, then they either need to have great organizational skills or have a trusted employee that has these skills. Your staff can make you or break you. Lawyers have to determine their strengths and weaknesses. Focus your time on your strengths and hire someone to manage your weaknesses. CB: With the advent of e-filing, practice management techniques will become increasingly key to managing a caseload. What advice do you have about techniques such as paperless offices? JW: I am thrilled that we are moving to e-filing in the state of Arkansas. E-filing will change the way all of us function. If you practice in counties that are in line for e-filing, then I recommend you begin immediately to develop your new case management system. For instance, service of pleadings will be electronic through an e-mail notification system. If you start planning and developing the systems, you will be ready and comfortable when it begins in your area. My office has slowly moved towards a paperless environment and it’s difficult. I can only relate it to one lent season when I tried to give up french fries. The withdrawls were horrible, but I came through it a better person in the end. Perhaps the Young Lawyers might consider a CLE on new case management techniques in light of these changes (hint hint).
CB: Civil litigation is often tied up in discovery disputes, what advice do you have for young lawyers who want to efficiently proceed through discovery in a way that benefits their clients? JW: The rules do mandate you attempt to work out discovery disputes with opposing counsel prior to contacting the court. This should be substantive. Every attorney will have a time arise where the attorney will need an extension from another attorney. Keep this in mind and try to be reasonable regardless of which side you find yourself on. In addition, you will never get the perfect answer to everything you want from Interrogatories. You will have to conduct a deposition and a deposition is your friend.
increasingly used as a discovery and litigation tactic to move a case along. However, we often hear that many judges don’t look favorably upon such a use of pre-trial summary judgment motions. What advice do you have about the use of summary judgment motions? JW: The legal standard for Summary Judgment is difficult, however, often very appropriate. I find that there is often not a need for a hearing on a Summary Judgment motion. I feel that it’s best to let the court decide if a hearing is necessary to flesh out anything in the briefs. There are often times in the middle of a bench trial where it so apparent that a summary judgment would have resolved the case months earlier.
CB: For young attorneys who may take on juvenile or domestic relations cases, these cases can seem to drag on for some time. What advice do you have for getting clients a resolution to their problems fairly and efficiently? JW: The most difficult aspect is giving your clients reasonable expectations from the start. It is not helpful to promise a full moon and then six months later try to sell the half moon as the best outcome. It’s also important in these cases to convince the parties that they have to set aside past hurts and focus on moving forward. Until the parties are ready to move forward with their lives, they may not be ready to move forward with the case.
CB: How do judges get our pleadings? JW: This can depend on which county. For instance, my staff picks up every pleading in my division from the Faulkner County courthouse daily (assuming the pleadings all make it into my box). In Van Buren and Searcy counties, the judges do not have staff nearby and the counties cannot afford to mail the pleadings to the judges. Each time a judge goes to one of these counties, they collect the pleadings and distribute them back to all the other judges. Often weeks can go past before I get my pleadings from those counties. If you have a motion or are waiting on an order from a judge, don’t hesitate to call their chambers and check to make sure the judge has it regardless of the county.
CB: Most attorneys balance many cases and clients. Scheduling issues often arise, what advice do you have about asking for a continuance? JW: I don’t think you should use swear words in this interview (“Continuance”). Continuances are for unforeseen situations that prevent you from fully representing your client on the set date. Continuances are not for you to reschedule because you forgot about the date or haven’t prepared. If you do request a continuance, request it as soon as you know so that another case can benefit from your court date. CB:
Summary Judgment motions are
Chris Burks: Thanks for your time Judge! Any other passing thoughts for the young lawyers out there? JW: Make a commitment to get involved in your community and represent those less fortunate. I remember early in private practice representing for free an elderly lady on social security. She was so grateful, that she brought me homemade cookies every week until she passed away. I never felt more appreciated by a client. When you are sworn in, the oath you took states that you will use your license to reach out to the under privileged and not discriminate in your representation. Never forget the oath you took.
Chris Burks is an attorney and law clerk to Judge Wood. He is a 2007 Graduate of Davidson College and a 2010 Graduate of the University of Arkansas School of Law. You can contact Chris at chburks@gmail. com.
2012 Mock Trial Competition Attorney volunteers are needed to coach participating high school teams around the state. Coaching is a wonderful way to give back to the community, develop business and reputation, and to instill in the community the good works provided by the state’s excellent legal community. If you would like more information on becoming a team coach in your area, please contact the Arkansas Bar Association at (501) 375-4606. The Committee will pair those who volunteer with a participating high school team in their area.
Mock Trial
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Young Lawyers Section Report
by Brian M. Clary
YLS on the Move Originally printed in the Summer 2011 issue of The Arkansas Lawyer magazine. Reprinted with permission. Greetings! I am honored to serve as Chair of the Young Lawyers Section for 20112012. I hope to continue to grow the work of my predecessors during the upcoming year. As the Chair from District C, YLS will be promoting its work and engaging its members across Arkansas. The YLS Executive Council recently hosted a reception for young lawyers and held its first organizational meeting of the year in Jonesboro. Look for us in a community near you. There are a number of ways to participate in YLS and the Association. This year, YLS will sponsor a membership and recruitment contest. Young lawyers will be asked to attend meetings and social events, volunteer at a YLS or Association event, and recruit new Association members. The young lawyer that contributes and participates the most will win a prize (to be determined, but well worth the effort) at next year’s Annual Meeting. Members will benefit from serving the community and networking with other attorneys from across the state. Look for details in the next YLS In Brief. Speaking of YLS In Brief, YLS always appreciates new contributors. Articles provide the YLS membership with an update on your work and a marketplace to exchange ideas. Over the last two years, the Communications Committee has set out to increase the range of topics, news, and features presented in YLS In Brief. Whether you would like to write an article on substantive law, procedure, practice advice or simply review a recipe, book, restaurant, or watering hole, we provide a forum for you to do so. In addition to the Communications Committee, YLS has several other committees that provide a way to serve the Association, its members, and the state. Over the last two months, the Disaster Relief and Pro 12
YLS In brief
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Bono Committees have assisted individuals affected by this summer’s storms and floods in Northeast and Central Arkansas. The Federal Emergency Management Agency requested that the Association and YLS assist citizens with legal questions and concerns. A group of YLS members fielded calls on a daily basis. The program is limited to pointing individuals in the right direction, but we were also able to match people with attorneys that could provide more in depth assistance. A recent success of the Law Related Education Committee was publication of 18 & Life to Go: A Legal Handbook for Young Arkansans. The Handbook is currently available on the Association’s website. One of the committee’s goals this year is to place printed copies in as many high schools as possible. Another project for the committee is distribution of A Level Playing Field to students. The DVD was developed by the Association’s Law Related Education Committee and seeks to educate students on the American judicial system. Law Related Education also handles Law Week activities and works in conjunction with the American Bar Association to host a Law Day poster contest for elementary students. The Minority Outreach Committee is primarily responsible for reaching out to those groups and individuals that are underrepresented in the legal profession. The committee made progress last year to organize and meet with undergraduate students to foster an interest in pursuing a legal career and provide information to them regarding different legal fields. The committee will work this year with undergraduate institutions and student legal groups to continue our efforts in this area. While not a complete surprise, the Recruitment and Social Committee hosts parties and membership receptions throughout
the year. We all need to blow off a little steam and relax with our peers. In the past, YLS has hosted Christmas and Cinco de Mayo parties in Fayetteville and Little Rock. YLS has also hosted a party during the Annual Meeting. I expect to continue these events and expand them to include other locations. Finally, I would like to take this opportunity to introduce the YLS Executive Council for 2011-2012 listed below. As you can see, there are a number of ways to be involved. Please do not hesitate to contact a council member or me if you have an idea for an event or wish to join a committee. I look forward to a great year. n
2011-2012 YLS Executive Council Chair: Brian M. Clary Chair-Elect: Vicki S. Vasser Sec-Treas: Anne Hughes White Immediate Past Chair: Brandon Moffitt Executive Council: District A: Ryan Pettigrew, Brian R. Lester & Vicki S. Vasser District B: Cory D. Childs, Grant M. Cox & Tasha S. Taylor District C: Susan Weaver, Timothy R. Leonard & Ryan M. Wilson At Large Representatives: Tessica Dooley, & Cliff McKinney Law Student Representatives: University of Arkansas School of Law: Angela Artherton; UALR William H. Bowen School of Law: S. Kate Fletcher
Representing Transgender Clients by Michael V. Lauro, Jr.
Lawyers have a duty to provide competent representation. We should strive to be effective advocates and provide meaningful services through respectful representation. Although the population of transgender people is small, they deserve access to competent and effective legal representation. Because laws and policies pose obstacles for transgender people, it is imperative that lawyers break down barriers to effective representation. Although the initial learning curve may seem steep, numerous resources provide excellent opportunities to learn more about transgender people and the legal issues affecting them. This article is meant to be a starting point by briefly touching on cultural competency, client interaction, and due diligence to improve legal representation of transgender people. Although transgender cultural competence requires many steps, building a foundation begins with basic terminology. “Transgender” is an umbrella term describing people whose gender identity and expression do not conform to predominant societal expectations associated with their sex assigned at birth. “Gender identity” is a personal characteristic referring to one’s internal sense of being a man or a woman. “Gender expression” is the external manifestation of gender identity and includes characteristics such as behavior, clothing, voice, and hair style. Transgender people typically desire to express themselves in a manner consistent with their gender identity rather than their sex assigned at birth. “Gender transition” is an individualized process by which a person changes from their gender assigned at birth to the one consistent with their gender identity. It involves various personal, legal, and medical adjustments, and may or may not include anatomical alterations through the use of hormones and surgical procedures. Understanding transgender terminology not only improves the lawyer’s ability to understand relevant case law, statutes, and regulations, but also leads to improved client
interactions. In addition, lawyers can adjust their interactions with clients to better serve transgender people. Modifications to intake forms allow clients to write in their gender instead of checking “male” or “female,” to list their preferred name, and to describe special needs, such as use of appropriate names and pronouns when talking to them, to their employer, and to family members. It is rarely necessary to ask about specific anatomical or transition procedures unless relevant to the representation. Other adjustments involve the use of restrooms, which most non-transgender people take for granted. For transgender people, using restrooms may create substantial anxiety. Law firms can relieve this anxiety by designating single-use restrooms as “gender neutral” and restrooms with multiple stalls as “family restrooms.” Family restrooms respect transgender people and accommodate those who may require assistance from an attendant of a different gender or parents who may need to care for an infant or small child. Implementation and display of nondiscrimination policies that include gender identity and expression signal to everyone that a law firm respects transgender people and their rights. Furthermore, lawyers advance the legal profession and further the interests of justice by recognizing their lack of knowledge in a particular area and acquiring that knowledge to provide effective representation. It is critical that lawyers understand that laws and policies affecting transgender people differ not only among entities within one jurisdiction but also among different jurisdictions. For example, while Arkansas gender-change laws require proof for changing driver’s licenses that is different from the proof required for changing birth certificates, Arkansas and Iowa have different requirements for changing birth certificates. The U.S. State Department requires proof for changing passports and birth certificates
issued to U.S. citizens born abroad that is different from proof that the Social Security Administration (SSA) requires for changing social security records. Moreover, lawyers should realize that helping a transgender client in one matter may involve subsequent issues that the lawyer thinks falls outside the scope of that matter. However, the client will likely see all of their issues as connected and look to the lawyer for guidance. For example, after obtaining a legal name or gender change and updating some but not all of their identity documents, a client may encounter a problem changing their employee personnel record. An employer may receive “gender no-match” letters from the SSA indicating that the employee’s reported gender does not match the gender on file with the SSA. Also, if a transgender client is either married or wants to get married in Arkansas, or if there are parenting or custody issues involved, the lawyer must understand the legal impact of the client’s transition on the client’s marriage or family law issues. This may involve looking outside of Arkansas to see how other jurisdictions have dealt with similar matters. Lawyers must recognize potential issues arising from a client’s transition in order to advise the client accordingly. There is a growing trend toward more respect for the identity of transgender people. Participation in this trend allows lawyers Mike Lauro is a solo practitioner and founder of Lauro Law, PLLC. His practice areas include family law and estate planning with a focus on transgender law and gender transition assistance, and lesbian/gay/ transgender anti-discrimination, advocacy, and education. For questions or comments, please email mike@laurolaw.com. 13
to positively affect transgender people by improving their access to legal services and showing respect for their identity and rights. One way to gain a further understanding of transgender law is through Lavender Law, the annual bar conference for the National LGBT Bar Association. It took place this year in Los Angeles, California, September 8-11, and included a one-day program called the Transgender Law Institute. The Institute’s 2011 theme was “Competent Representation of Transgender Clients” and will cover identity documents, employment, incarceration, and health care. For more on the Institute, see http://www.lgbtbar.org/ annual/program/transgender-law-institute/. Additional reading: Paisley Currah, Richard M. Juang, and Shannon Price Minter, Transgender Rights (Univ. of Minn. Press, 2006); Joan M. Burda, Gay, Lesbian and Transgender Clients: A Lawyer’s Guide (American Bar Association, 2008); World Professional Association for Transgender Health, Standards of Care (6th ed. 2001) (available at http://www.wpath. org/publications_standards.cfm). n
Arkansas Bar Association’s New Mentor Program Beginning later this Fall, the Arkansas Bar Association will be launching a new mentor program that will provide young lawyers with a variety of opportunities to network with and gain insight from more experienced attorneys. If you are a young attorney thinking about expanding your practice areas, opening your own firm, making a move to a non-traditional legal career, or if you just want to know how to achieve work-life balance, the Arkansas Bar Association’s new mentor program will provide you with unique opportunities to get your questions answered by attorneys who have been where you are (or where you want to be). Stay tuned for more information about this exciting new member benefit brought to you by your Arkansas Bar Association.
A Guide to Arkansas Statutes of Limitations
The Arkansas Bar Association receives many calls from the public every day asking for the name of an attorney to help them. Our staff refers the caller to:
www.arkansasfindalawyer.com Just $75/year List up to 7 practice areas Help potential clients find you on the Web site that receives over 5,000 hits per month! NEW! Sign up with your membership enrollment! NEW! Reduced rate for members practicing <2 years 14
YLS In brief
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Seventh Edition Revised March 2011
Prepared By Arkansas Bar Association Young Lawyers Section
F R E E D O W N L O A D T O M E M B E R S
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Tasty Tips
Sizzlin’ Lime Chicken Estimated Preparation Time: Marinade: 5-10 minutes; Dressing: 5-10 minutes Chill time: 2-3 hours; Cooking/baking time: 15-20 minutes Ingredients Marinade: 1 cup water 2 tablespoons lime juice 2 teaspoons minced garlic (or onion) 1/3 cup teriyaki sauce ½ teaspoon salt ¼ teaspoon ground ginger 1 teaspoon liquid smoke (hickory or mesquite) 4 chicken breast fillets Dressing ¼ cup sour cream 1 tablespoon milk ¼ cup mayonnaise ¼ teaspoon parsley 1 ½ teaspoons vinegar 1/8 teaspoon cayenne pepper (or ¼ tsp hot sauce) 2 tablespoons salsa 1 teaspoon minced onion 1 tablespoon Cajun seasoning 2 cups shredded mozzarella, cheddar, and jack cheese (mixed) Instructions Marinade: Combine ingredients for the marinade in a medium bowl. Add chicken fillets to the bowl, cover and chill for 2-3 hours. If short on time, 1 hour chill time should be sufficient. Dressing: Combine ingredients for dressing in another bowl and stir. Cover bowl and chill until final steps. *Depending on the brand used, the salsa and Cajun seasoning combination can become a bit salty, so make adjustments to taste as needed. Cooking: After the marinade has chilled, cook chicken until tender and done, either in oven (350 degrees Fahrenheit), grilled, or on the stove. Place cooked chicken on a baking sheet and spread chilled dressing over each piece. Add a layer of the cheese blend over the dressing. Broil chicken 2-3 minutes, or until cheese melts. This meal goes great with rice, pasta or potatoes, salsa and chips, and vegetables. You can customize the spiciness of this recipe by adding more cayenne pepper or hot salsa. Enjoy!
Rashauna Norment is a registered patent attorney at Calhoun Law Firm, where her practice focuses on prosecuting patent applications, as well as applications to register copyrights and trademarks, forming legal entities for businesses, and assisting in litigation involving infringement and business disputes. You can reach Rashauna at R.Norment@CalhounLawFirm.com. Rashauna enjoys experimenting with cooking, working in her flower garden trying to develop a green thumb, and spending time with family and friends. 15