Your Partner in the Profession | April 2015 • Vol. 84 • No. 4
Inclusion, Privilege, and Other Uncomfortable Realities P8 Over 1,000 Child Adoptions and No Signs of Slowing Down for Gene Balloun P20 The Law is the True Embodiment: Gilbert and Sullivan for Lawyers P24
Happy 800th Birthday, Magna Carta
24 | T he Law is the True Embodiment: Gilbert and Sullivan for Lawyers By Roger W. Badeker
Cover layout & design by Ryan Purcell, rpurcell@ksbar.org
8 | Inclusion, Privilege, and Other Uncomfortable Realities By Jennifer M. Hill 14 | Progress Rather Than Perfection By Anne McDonald
22 | O ver 1,000 Child Adoptions and No Signs of Slowing Down for Gene Balloun 23 | 2015 KBA Annual Meeting Keynote Speakers
20 | Happy 800th Birthday, Magna Carta By Michael H. Hoeflich
Regular Features 6 | KBA President By Gerald L. “Jerry” Green
17 | Law Students’ Column By Thomas Hiatt
7|Y LS President By Sarah E. Warner
18 | M embers in the News
12 | S ubstance & Style By Jeffrey D. Jackson 15 | A Nostalgic Touch of Humor By Matthew Keenan 16 | L aw Practice Management Tips & Tricks By Larry N. Zimmerman
18 | O bituaries 29 | Appellate Decisions 30 | A ppellate Practice Reminders 38 | C lassified Advertisements
THE
JOURNAL
OF THE KANSAS BAR ASSOCIATION 2014-15
Journal Board of Editors Richard D. Ralls, chair, rallslaw@turnkeymail.com Terri Savely Bezek, BOG liaison, tbezek@ksbar.org Hon. David E. Bruns, brunsd@kscourts.org Boyd A. Byers, bbyers@foulston.com Emily Grant, emily.grant@washburn.edu Connie S. Hamilton, jimandconniehamilton@gmail.com Katharine J. Jackson, jacksonkatie@gmail.com Michael T. Jilka, mjilka@jilkalaw.com Lisa R. Jones, ljones@fgcu.edu Hon. Janice Miller Karlin, judge_karlin@ksb.uscourts.gov Casey R. Law, claw@bwisecounsel.com Julene L. Miller, jmiller@ksbor.org Hon. Robert E. Nugent, judge_nugent@ksb.uscourts.gov Professor John C. Peck, jpeck@ku.edu Rachael K. Pirner, rkpirner@twgfirm.com Karen Renwick, krenwick@wbsvlaw.com Teresa M. Schreffler, tschreffler@gmail.com Richard H. Seaton Sr., seatonlaw@sbcglobal.com Sarah B. Shattuck, bootes@ucom.net Richard D. Smith, rich.smith@ksag.org Marty M. Snyder, marty.snyder@ksag.org Matthew A. Spurgin, spurgin@lawyer.com Catherine A. Walter, cwalter@topeka.org Beth A. Warrington, staff liaison, bwarrington@ksbar.org Issaku Yamaashi, iyamaashi@foulston.com Natalie Yoza, yozan@kscourts.org The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association. The board reviews all article submissions during its quarterly meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Beth Warrington, communication services director, at bwarrington@ksbar.org. The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at additional mailing offices. The Journal of the Kansas Bar Association is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember subscription rate is $45 a year. The Kansas Bar Association and the members of the Board of Editors assume no responsibility for any opinion or statement of fact in the substantive legal articles published in The Journal of the Kansas Bar Association. Copyright Š 2015 Kansas Bar Association, Topeka, Kan. For display advertising information contact Bill Spillman at (877) 878-3260 or email bill@innovativemediasolutions.com. For classified advertising information contact Beth Warrington at (785) 2345696 or email bwarrington@ksbar.org. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise indicated. POSTMASTER: Send address changes to The Journal of the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806.
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The Journal of the Kansas Bar Association
Let your VOICE be 2014-15 Heard! KBA Officers & Board of Governors President Gerald L. Green, ggreen@ksbar.org President-Elect Natalie Haag, nhaag@ksbar.org Vice President Stephen N. Six, ssix@ksbar.org Secretary-Treasurer Gregory P. Goheen, ggoheen@ksbar.org Immediate Past President Dennis D. Depew, ddepew@ksbar.org Young Lawyers Section President Sarah Warner, swarner@ksbar.org District 1 Christi L. Bright, cbright@ksbar.org Toby J. Crouse, tcrouse@ksbar.org Mark A. Dupree, mdupree@ksbar.org Mira Mdivani, mmdivani@ksbar.org District 2 Charles E. Branson, cbranson@ksbar.org Hon. Sally D. Pokorny, spokorny@ksbar.org District 3 Eric L. Rosenblad, erosenblad@ksbar.org District 4 Brian L. Williams, bwilliams@ksbar.org District 5 Terri S. Bezek, tbezek@ksbar.org Cheryl L. Whelan, cwhelan@ksbar.org District 6 Bruce W. Kent, bkent@ksbar.org District 7 Gary Ayers, gayers@ksbar.org J. Michael Kennalley, mkennalley@ksbar.org Calvin D. Rider, crider@ksbar.org District 8 John B. Swearer, jswearer@ksbar.org District 9 David J. Rebein, drebein@ksbar.org District 10 Jeffery A. Mason, jmason@ksbar.org District 11 Nancy Morales Gonzalez, ngonzalez@ksbar.org District 12 William E. Quick, wquick@ksbar.org At-Large Governor Bruce A. Ney, bney@ksbar.org KDJA Representative Hon. Daniel A. Duncan, dduncan@ksbar.org KBA Delegate to ABA Linda S. Parks, lparks@ksbar.org Rachael K. Pirner, rpirner@ksbar.org ABA State Delegate Hon. Christel E. Marquardt, cmarquardt@ksbar.org Executive Director Jordan E. Yochim, jeyochim@ksbar.org
Our Mission The Kansas Bar Association is dedicated to advancing the professionalism and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public understanding of the law, and promoting the effective administration of our system of justice.
Sponsored by
Ethics CLE meets humor, for good! Approved for 2.0 CLE hours, including 2.0 E&P hours in Kansas and Missouri.
Where Does the Money Go? Our designated charities for 2015 are: • CASA (Johnson/Wyandotte Counties) • Safehome and Hope House (domestic violence programs) • Metropolitan Organization to Counter Sexual Assault (MOCSA) • Kansas Bar Foundation • Midwest Foster Care and Adoption Association • In addition, we will fund Ethics for Good Scholarships to each of the KU, Washburn and UMKC Law Schools and the Johnson County Community College paralegal program.
How Do We Sign Up for this Amazing, Funny and Informative Program? For a mere $90, you get both the ethics and the good, the entire Ethics for Good – now in its 16th year! To register for this program, complete the form below or register online at: www.ksbar.org/event/EthicsforGoodXVI-OP www.ksbar.org/event/EthicsforGoodXVI-KC
June 5, 2015, 2:30 – 4:10 p.m.*
Who Are these Intrepid Presenters?
Polsky Theatre, JCCC Carlsen Center 12345 College Blvd. (College & Quivira) Overland Park, Kan.
Stan Davis, Legal humorist, consultant and gadfly Jim Griffin, Scharnhorst Ast Kennard Griffin, P.C. Mark Hinderks, Stinson Leonard Street L.L.P. Todd LaSala, Stinson Leonard Street L.L.P. Hon. Steve Leben, Kansas Court of Appeals Jacy Moneymaker, Swope Health Services Todd Ruskamp, Shook, Hardy & Bacon L.L.P. Hon. Melissa Standridge, Kansas Court of Appeals
*Reception afterward sponsored by the JCCC Foundation
June 25, 2015, 2:30 – 4:10 p.m. The Nelson-Atkins Museum of Art, Atkins Auditorium 4525 Oak St. Parking: $8 museum non-member Kansas City, Mo. parking fee; carpooling encouraged
Questions? Contact Deana Mead, KBA Associate Executive Director, at dmead@ksbar.org or at (785) 234-5696. Please mark the date you will be attending:
June 5
June 25
Name Address City
ST
Zip
$90
Sup. Ct. #
Bill to: MasterCard
Visa
Account Number Exp. Date
AmEx
Discover CVC
Signature
ETHICS FOR GOOD XVI
Check Enclosed Payable to: Kansas Bar Foundation 1200 SW Harrison St. Topeka, KS 66612-1806
kba president
Integrating the Lawyer Referral Service within the KBA and Its New Challenges
L
ast year, the Kansas Bar Assocation took a big step forward and made a substantial and new commitment to Lawyer Referral Service. We did so at a time of challenging budgetary constraints and plenty of other challenges facing the Association. But we did so because we believe helping people find a lawyer when they need one is a vital service the KBA can provide to the citizens of Kansas. We also believe it is a valuable service we can provide to our members who choose to enroll in the LRS. So far, we could not be more satisfied with the results of our decision to make such an investment in LRS. LRS, as a part of the KBA, isn’t new. It has been in existence since about 1974. But until last year, and since 1985, LRS was operated in conjunction with Kansas Legal Services. The KBA contracted with KLS to provide the Lawyer Referral Service call center. The decision to make a change in the LRS program was not because KLS wasn’t doing a good job. But the truth is, with the most important part of the program off-site and contracted out, there was a certain level of disconnect between the KBA and one of its major programs. With that in mind, several years ago the KBA asked the American Bar Association to do a complete and thorough evaluation of our Lawyer Referral Service. The ABA provided the service at no charge. As a result, three experienced LRS attorneys spent several days in Kansas analyzing our program. The result was a comprehensive report made available to the KBA, which then served as the foundation upon which we would act and make future decisions. The ABA’s recommendation was that the Kansas LRS should be consolidated with the KBA offices to make it centralized and a wholly KBA offered service. After several years of analysis and consideration under the leadership of past presidents Rachael Pirner and Lee Smithyman, the LRS Committee, and KBA staff, the decision was made last year by the KBA Board of Governors to end the contract with KLS and bring LRS completely in-house, consolidating its entire operation in Topeka, with our own employees and staff. The process of doing so moved forward, with the first step being the hiring of Dennis Taylor as our LRS director. Dennis, who has not only a law degree but has also practiced law, also has a Master of Law, Urban Planning, and a Master of Public Administration. Dennis was most recently the executive director for the Kansas Lottery, and before that, secretary of the Kansas Department of Administration. Dennis has a long and impressive career in a wide array of business and governmental pursuits. Dennis started with the KBA on July 1, 2014, and has been off and running ever since. Dennis brought with him a wealth of experience and knowledge that has proved invaluable to our efforts. The LRS call center is now completely in-house, operating out of the KBA offices in Topeka, and staff call center training is completed. Comparative analysis has been ongoing between what LRS was doing before and since, in order to evaluate and continue to enhance the program. We have surveyed clients of the service and made personal calls to most of the LRS panelists. We are working on 6
The Journal of the Kansas Bar Association
launching a new “Ask A-Lawyer” service, and hopefully by the time you read this, we will have a new and updated website for LRS. Considerable time and effort has gone into improving the areas of referral screening and case status reporting procedures, all with the goal of providing a better service to the clients as well as our attorney panelists. The end goal is to enable clients to find a qualified attorney to help them, and for the attorneys, not just more referrals, but better referrals. Efforts are also underway to better market our LRS, not only to our members, but also to the public at large. We have accomplished much, but still have more to accomplish. We are preparing to cross-train LRS staff to handle case management tasks and will be conducting a second round of client surveys. We will soon be recruiting attorneys to assume Ask-A-Lawyer responsibilities and working on a proposed LRS newsletter for electronic distribution. LRS staff will be making LRS presentations during upcoming CLEs, and will be meeting with professional/community groups to identify LRS promotional channels, all with the goal of increasing meaningful participation by the public. One challenge for LRS is to have a sufficient number of panelists with a broad range of practice areas to be able to effectively refer potential clients. There are areas in the state where significant gaps in coverage exist. What that means, of course, is that we want to encourage more participation among the Bar to increase the number of panel members. If you have never signed up for LRS, I encourage you to give it a try. If you have been a panelist in the past, but for whatever reason no longer are, I encourage you to give us another try. The cost is small in comparison to the potential for meaningful client referrals. We certainly welcome, encourage and want your comments and feedback. As I have said and written before, there are many ways prospective clients can find a lawyer. LRS is one of them. And, I would propose, one of the best ways to find a lawyer. LRS receives about 18,000 calls a year from people looking for a lawyer. Obviously, not all of those lead to referrals, or to an attorney-client relationship. But many do. There is a large pool of potential clients out there, and we expect the number of referrals to continue to increase. The KBA is committed to LRS. I encourage you to join our commitment, and enroll as a panelist. Or if that is not for you, then I encourage you to tell prospective clients about the service, and to make referrals to LRS. If you want or need information to do so, we can readily provide you with the materials. I am excited about the opportunities that lie ahead for the KBA and LRS. n About the President Gerald L. “Jerry” Green is a member of the Hutchinson law firm Gilliland & Hayes LLC. He currently serves as president of the Kansas Bar Association. ggreen@ksbar.org (620) 662-0537
yls president
Night at Prairiefire!
I
n the past few issues of the Journal, people have discussed the upcoming KBA Annual Meeting (June 17-19 in Overland Park—go online to http://www.ksbar.org/ for more details) and the fate of the meeting in years to come. In response to these articles, several newer attorneys have approached me about the meeting, asking what it is, what happens there, why younger attorneys should go, whether there’s any reason to go when you have all of your annual CLE credits filled, why meetings like this exist at all … the list goes on and on. I thought about using this column to address these more substantive questions. For example, I could discuss the benefit of attending highquality educational programming—for personal and professional enrichment—regardless of whether you have CLE boxes to check. (I’m reminded of the conversation between Jennifer Anniston’s character and her boss in the movie “Office Space.” To paraphrase: “Look, we want you to [be a great lawyer], okay? Now if you feel that the bare minimum is enough, then okay. But some people choose to [be better educated] and we encourage that, okay? You do want to [be a great lawyer], don’t you?”) Or I could write about how we benefit—both individually and as a profession—from being surrounded by lawyers who are enthusiastic about being lawyers. After all, networking with people you don’t normally see, in different areas of practice or from places you don’t normally go, can be enlightening, and can lead to business opportunities and lifelong friendships. Talking with more experienced attorneys or younger lawyers can give you a fresh perspective on how to approach items that come across your desk. It’s interesting. And fun. Despite what we’ve been told, lawyers are cool. You should come hang out. And I could talk about the specifics of the fantastic programming that Greg Musil and the Annual Meeting Planning Committee put together this year. About how you’ll be inspired by Thursday’s keynote speaker, Darryl Burton, who was wrongly convicted of a crime he did not commit and was later exonerated—thanks to the help of some dedicated lawyers in our area. About how Friday’s nationally renowned keynote speaker, Daniel Bowling, will help energize you and help you develop habits to make you happy as well as successful. About the many other great events, from case law updates (Thursday) to breakfast with judges (Friday) to the annual KBA Awards Ceremony (Thursday). About how many things there are to do around Kansas City, for both you and your family (who we hope you will bring along), and the transportation that will be provided from the Doubletree to help facilitate the fun. Yes, I could talk about those things, any of which would be reason enough to come to Overland Park in June. But instead, I want to focus on one aspect of the annual meeting that I am ridiculously excited about: bowling. Well, bowling and bocce. And restaurants. And a world-class museum. In short, I want to talk about the KBA Night at Prairiefire on Thursday, June 18. In place of the bar show, this year’s planning committee has developed a fantastic night for the attendees and their families at one of Kansas City’s newest venues—Prairiefire (http:// visitprairiefire.com/), which features restaurants, shopping, and entertainment the likes of which exist nowhere else in Kansas. Specifically:
• Drinks with Dinosaurs. No, that’s not a reference from a young whippersnapper to our more seasoned members. I mean dinosaurs! The evening will begin with an exclusive reception for the KBA members, their spouses/families and the judges (who will be attending their annual meeting just down the road) at the Museum at Prairiefire (http://museumatpf.org/). Come grab a drink and peruse the museum’s unique and fascinating exhibits, acquired through a collaboration with the American Museum of Natural History. • Food and Flair. Following the reception, members will be able to explore all that Prairiefire has to offer, with exclusive discounts for all who attend our conference, from high-end dining at The Newport Grill and Wasabi Sushi Bar, to the more relaxed but no less delicious fares of CocoBolos, Paradise Diner, Pinstripes, and Rock & Brews. And Entertainment! It’s not just about the food and fossils. There will be ample opportunities—hosted by my colleagues in the KBA Young Lawyers Section—for fun and a little friendly competition with other lawyers and judges. To give a taste: • The KBA has reserved the entire upstairs at Pinstripes (http://pinstripes.com/). This indoor/outdoor venue’s tagline is “Bowling. Bocce. Bistro.” On top of great food, drink, and atmosphere, we are going to be running a bowling and bocce tournament. It’s time to get a team and sign up! Maybe the Southwest Kansas Bar wants to call out Douglas County for a bowling match. Maybe Wichita wants to challenge Topeka on the turf. Trial lawyers versus defense attorneys. ADO versus the DAs. Play alongside (or against) your colleagues or judges. Want to be crowned the Bar’s bowling or bocce champion? Contact me at sarah.warner@trqlaw.com to throw down the gauntlet. • Across the development, there also will be a Guitar Hero competition going on at Rock & Brews (http:// www.rockandbrews.com/overlandpark/). Bring your aspiring musical self (or bring in a ringer) to compete. [Insert mind-blowing guitar riff here.] • Plus, there will be live music, shopping, and hopefully beautiful June weather. And lawyers! Who could say no to that?! Bottom line—come to the KBA Annual Meeting in June. There’s something for everyone. I’m excited, and I can’t wait to see you there! n About the YLS President Sarah E. Warner is an attorney at the Lawrence firm of Thompson Ramsdell Qualseth & Warner P.A. She serves as an adjunct professor at Washburn University of Law, and is a member of both the KBA Appellate Practice Section executive committee and Board of Publishers. sarah.warner@trqlaw.com www.ksbar.org | April 2015
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the diversity corner
Inclusion, Privilege, and Other Uncomfortable Realities
G
rowing up, I identified myself as Mexican. Because I am. My freckles and pale skin and red hair are pretty sneaky but my maiden name was “Lopez” and I grew up eating from scratch Mexican food and hearing about my grandfather immigrating to the United States at 12 years of age, by himself. He escaped the horrible fate of being forced to become a child soldier by hiding in the confessional stall in the local Catholic church while the revolutionaries killed and “recruited” young men in his village in Jalisco, Mexico. And somehow, two generations later, his granddaughter is an attorney in the United States, living a wonderfully privileged and blessed life. I never knew my grandparents (they died before I was born) but I knew their story and I am incredibly proud of my heritage and their story. If I had been born just two generations earlier, just two, I would have known Jim Crow, likely disenfranchised if I attempted to vote, probably told to jump in a lake when I applied to college and law school and no question, my destiny would have been one assigned to me. As luck would have it, I was born in 1978 and the fact that my last name was Lopez had little to do with my ability to get an education and work toward a successful career. I have experienced discrimination indirectly at times, called a “half-breed” and other lovely experiences, but I shook it off. The changes in our society, which occurred shortly before my birth, dramatically opened doors for me, personally. I am technically an ethnically “diverse” attorney, though my freckles would never tell you that. And I just so happened to marry a Caucasian law student and change my name. But, I take nothing for granted because I know that many people sacrificed in ways I will never know, just so people with “ethnic” last names would have the opportunities I’ve been given. In 1976, President Gerald Ford formally adopted February as Black History Month. While Black History Month does not change the state of affairs, it allows society to take a deep breath from Ferguson, from protests asking for the president’s birth certificate and from Title VII litigation and ask “how are we doing?” And so I ask each of you to put aside the politics for a minute and truly, introspectively, ask whether the legal world reflects the real world. The obvious answer is “no.” In our busy lives and full, consuming careers, diversity becomes one of those things we know we should work on but that we often relegate to the “when I have time” shelf. Why? Why does diversity in our profession matter? We all know there are not many people of color on the bench or at the partnership table. There are not many people of color in our profession at all. Truthfully, if the legal community does not reflect the makeup of the population, it loses credibility. Our system of justice and dispute resolution must look like the people trying to seek justice and resolve disputes. If the system looks like a system that is unattainable for average people, then people seek out other ways to extract “justice.” In reality, this can evolve into a dissolution of our society and our culture.
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The Journal of the Kansas Bar Association
“It’s not my fault I was born a white Protestant male in the 1950s.” Opposing counsel in a case wickedly teased me with these words a month or so ago. And I laughed, heartily. Being a well connected rich white guy has some pretty significant perks. Whether you acknowledge it or not. Heck, the truth is that being a poor, working class, poorly dressed white guy means challenges, sure, but if you can talk the talk and work hard, chances are, no one will slam a door in your face. People of color simply do not have that experience. You can work hard. You can come from money. You can know how to look and speak the part of a professional. And you still might get pulled over for driving “too nice of a car.” I attended a big sports university with pretty rigorous academic standards. My African-American friends were routinely (as in daily) asked “What sport do you play?” They were asked this question by other students, teachers, local people in the community. Because the natural conclusion was that if a black kid attended that school they were an athlete, not an academic. Are you tired of hearing these stories? I think most anyone of color is tired of living these stories. But until these stories are not the reality for significant portions of our population, it is the duty of people in leadership roles, people of color and most importantly wealthy, influential, well bred white males (and specifically, yes, attorneys) to keep telling them. Whether you are comfortable with it or not, as an attorney you are a leader in the community. Friends, clients, your children look to you for guidance and thoughtful analysis of our society. If you ask attorneys if they wish there should be more attorneys of color, more judges of color, more partners of color they will say “yes.” Because that is what you’re supposed to say. But the reality is that “wish” is as far as many attorneys go. No matter who you are and where your name falls on the letterhead, it is important to educate yourself and speak about these problems. Talking does not create diversity, but at the very least it creates an environment where people can speak candidly about the issue. Further, if you educate yourself and speak knowledgeably about the lack of diversity in our profession, you may find yourself working to right the skewed numbers. n About the Author Jennifer M. Hill is a partner at the Wichita firm of McDonald, Tinker, Skaer, Quinn & Herrington P.A. She earned her bachelor’s degree from the University of Notre Dame in 2000 and her juris doctorate from Washburn University in 2003. Hill currently serves as president of the Wichita Bar Association and is past president of both the WBA and Kansas Bar Association Young Lawyers sections. jhill@mtsqh.com
IMPORTANT: Check every session/event you wish to attend. These details are needed for food and meeting space provisions. Pricing all inclusive for registrants.
Three Ways to Register! 1. Register online at (LOG IN FIRST) http://ww.ksbar.org/event/AM15 2. Fax registration to KBA at (785) 234-3813. 3. Mail this registration with payment or credit card information to: Kansas Bar Association Meg Wickham / Annual Meeting 1200 SW Harrison St. Topeka, KS 66612-1806
Full registration includes 2 days of CLE, program materials. Foundation Dinner and golf fees are not included. Refund Policy: Full refunds for registration will only be issued before Wednesday, June 10.
Wednesday, June 17 Please note: the cost of golf is NOT tax deductible
KBF Golf Tournament (Ironhorse Club) • 10 a.m. – 4 p.m. • $25 KBF donation with mulligans & strings ($50 at door) $ $100/person $ Driving range & putting greens open for practice • 9 a.m. registration, 10 a.m. start • Boxed lunch with burger or brat/chips/fruit/cookie/bottled water • Prizes awarded! • 2 drink tickets (soda, Gatorade®, or beer • Gary Woodland hole • Cash beverage carts throughout the course Participant Name
Handicap or average score/18
Please assign me to a foursome. Please assign me to the following foursome:
KBF Dinner: The Kansas Bar Foundation Fellows invite anyone interested in learning about the Foundation to join them for their annual dinner on Wednesday, June 17 at the DoubleTree. Please RSVP by June 3 to Anne Woods at awoods@ksbar.org or at (785) 861-8838. The dinner is a time to recognize donors and the recipient of the Robert K. Weary Award. The cost is $85 per person. Dress is semiformal to formal.
Thursday, June 18
OVERLAND PARK JUNE 17-19, 2015 Approved in Kansas for 8.0 CLE, including 3.0 E&P and 6.0 LPM.
7:30–8:45 a.m. 9–10 a.m.
Breakfast with Champions for a Diverse and Inclusive Bar Opening Session/Welcome/Keynote Speaker Darryl Burton: I Am Not Bitter, But I Am Better: Journey from Convicted Murderer to Free Man
10:10 – 11 a.m.
How’s Life in D.C.: Highlights and Updates on U.S. Supreme Court Decisions (1.0 CLE)
Our Criminal Justice System: Protecting the Public and the Defendant (1.0 CLE)
11:10 a.m.– 12 p.m.
How’s Life in Topeka? The Latest Highlights, Lowlights, Trends and Rumors about Kansas Appellate Court Decisions (1.0 CLE)
Get a (Social Media) Life (1.0 CLE, 1.0 LPM)
Approved in Missouri for 12:15–1:30 p.m. 8.0 CLE, including 3.0 professionalism hours. 1:40–2:30 p.m. Attendance is definitely encouraged for the LPM content, but those hours will be capped at 2.0 towards the annual requirement.
KBA Awards Lunch (included in initial registrant price) # of guests @ $40 / guest • Total $ How’s Life in the Legislature? Highlights and Updates on the 2015 Legislative Session (1.0 CLE)
Happy Lawyers: Making a Good Life in the Law (1.0 CLE, 1.0 LPM) UMKC Law Prof. Nancy Levit Book signing following. I plan to preorder “The Happy Lawyer” book no later than June 5 at www.rainydaybooks.com/KBA2015
Thursday, June 18 (continued) 2:40–3:30 p.m.
Night at Prairiefire 5–6 p.m. 6 p.m. 6 p.m.
2x4s Are for Houses, 5x10s Are for Lawyers! Basics of 5 Areas in 10 Minutes Each (1.0 CLE)
Use Limited Scope Representation to Expand Your Practice: The Ethics and Application in Kansas (1.0 CLE, 1.0 EP)
Reception/Mixer – Museum at Prairiefire . . . . . .# of guests Pinstripes (bocce & bowling) . . . . . . . . . . . . . . . .# of guests Rock & Brew (Guitar Hero) . . . . . . . . . . . . . . . . .# of guests
Friday, June 19 7:30–8:45 a.m. 9–10 a.m.
Breakfast with Judges Opening Session/Welcome/Keynote Speaker Daniel Bowling: Well-Being and the Practice of Law: The Choices Happy Lawyers Make
10:10–11 a.m.
Millennials and the Evolution of Leadership: Developing 21st Century Leaders (1.0 CLE, 1.0 LPM)
Trends, Trials and Tribulations in the World of Employment Law (1.0 CLE)
11:10 a.m.–12 p.m.
Mental and Behavioral Skills for Lawyer Happiness (1.0 CLE, 1.0 LPM)
Examining Personal Challenges: Confidential Assistance and Cooperation by KALAP and the Kansas Disciplinary Counsel (1.0 CLE, 1.0 EP)
12:15–1:30 p.m
Casual Buffet Lunch (included in initial registrant price) # of guests @ $25 / guest • Total $
1:40–2:30 p.m.
Attract and Retain Top Attorney Talent: Leveraging Flexible or Reduced Schedules (and Technology!) to Keep the Best and Brightest (1.0 CLE, 1.0 LPM)
Law Student to Happy Lawyer: Making Successful Transition to the Real World. Ethical Lessons Imparted by Attorneys Under 35 (1.0 CLE, 1.0 EP)
2:40–3:30 p.m.
Judges Have a Life, Too: The Good, The Bad, and The Ugly from the Bench (1.0 CLE)
Solo and Small Practitioners Have Headaches, Too: Your Daily Dosage of 10 Websites, 10 Apps and 10 Hacks (1.0 CLE, 1.0 LPM)
Going Green Most conference materials will be available online one week prior to the conference and available on flash drives to all registrants attending the conference. Questions? Call (785) 234-5696.
Hotel Reservations The KBA has reserved sleeping rooms at the Doubletree by Hilton Kansas City Overland Park at a standard rate of $99 (plus tax). Reserve by calling (913) 451-6100 and mention you are part of KS Bar Association or group code KSB.
Name Firm/Company Name Address City State Phone Fax KBA Member # Email Your name (for name badge): Guest(s) name (for name badge):
Event Price
Zip
Total
Full Conference Registration Full Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . $295 . . . $ SUBTOTAL FROM WEDNESDAY. . . . . . . . . . . . . . . . . . . . . . . . . . $
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substance & style
For Effective Persuasion, Don’t Neglect the Narrative “Sing, goddess, the anger of Peleus’ son Achilles and its devastation, which put pains thousand-fold upon the Achaians . . .”1
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or as long as there has been humankind, there have been stories.2 Stories are the predominant way in which humanity has always communicated, and because of this, our brains are “evolutionarily hardwired” to think in terms of stories and to comprehend information given to us in terms of stories.3 It is not surprising, therefore, that stories are important to the practice of law, especially with regard to the art of persuasion. Judges and jurors have one major thing in common: they are people. Because they are people, they more easily understand concepts if those concepts are presented as part of a story. This is not a new concept. For a long time, lawyers have been taught that part of their job is “telling their client’s story.” However, only in the last twenty years have legal professionals devoted serious study to the art of legal storytelling and the reasons that it functions as a persuasive tool. That study has led to the creation of an entire field of “applied legal storytelling” aimed at producing “how-to” scholarship regarding storytelling that is “relevant to the practice of law.”4 The scholarship produced by the movement has included both instruction on how to incorporate narrative theory into specific legal situations,5 and also more empirical study regarding the effectiveness of storytelling in such situations.6 However, despite the substantial amount of evidence of storytelling’s effectiveness, lawyers in practice often neglect that useful tool, both in their writing of motions and briefs, and in their presentation of witnesses and evidence at hearings and trials. Part of that may come from an unfamiliarity with storytelling techniques, or from a failure to realize the role that storytelling can play in legal work. While an extensive discussion of applied legal storytelling and its uses is beyond the scope of this column, I do want to highlight some of the important benefits of legal storytelling, some of the cautions when using it, and where those interested in learning more about it can find additional information. Footnotes 1. The Iliad of Homer (Richard Lattimore ed. 1967). 2. See Kendall Haven, Story Proof: The Science Beyond the Startling Power of Story 3-4 (2007). According to Haven, the evidence suggests that “[h]umans have told, used and relied on stories for more than 100,000 years.” Id. 3. Id. at 4. 4. Ruth Anne Robbins, An Introduction to Applied Storytelling and to This Symposium, 14 Leg. Writing 3, 12 (2008). 5. See, e.g., Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459 (2001); Margaret Moore Jackson, Confronting “Unwelcomeness” From the Outside: Using Case Theory to Tell the Story of Sexually-Harassed Women, 14 Cardozo J.L. & Gender 61 (2007); Stacy Caplow, Putting the “I” in Wr*t*ng: Drafting an A/Effective Personal Statement to Tell a Winning Refugee Story, 14 Leg. Writing 291 (2008).
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The Journal of the Kansas Bar Association
A. Two Important Benefits of Legal Storytelling in Writing and Presentation Two of the greatest benefits that can come from the use of storytelling not only in motions and briefs but also in the presentation of cases to judges and juries, are that legal storytelling makes for a more persuasive presentation of the case, and, independent of its persuasive value, legal storytelling makes for a more understandable and accessible presentation of the case. 1. Storytelling makes a more persuasive presentation of the case
By using the word “persuasion” in this context, I do not mean to imply that storytelling is a magical tool through which the lawyer can somehow “trick” the judge or jury into ruling for or finding in favor of his or her client.7 Rather, the use of story can result in a more effective presentation of the case for a number of reasons. First, the effort required to construct a narrative presentation forces the lawyer to understand how all of the parts fit together to make a coherent whole, and how adequate that story will seem to others.8 That allows the lawyer to understand what facts must be presented to make the story work and what parts of the case may be particularly difficult for judges and juries to accept.9 Similarly, the act of constructing a coherent story helps the lawyer understand not only what must be presented, but the order in which the presentation needs to take place to gain the maximum persuasiveness. Anyone who has had the experience of attending, or reading transcripts, of legal proceedings when the presentation of the evidence was not connected to the underlying story should appreciate the importance of this insight. Further, presenting a complete story that coherently explains why the persons in it acted in the way they did is inherently more persuasive than simply presenting facts and law divorced from the underlying theme.10 2. Storytelling makes for a more understandable presentation of the case
Apart from its persuasive value, storytelling is useful because it makes the presentation of the case more understandable and accessible to judges and juries. Because humans have always thought in terms of stories, information told in story form is more comprehensible than the same information presented in other ways. Not only does comprehension increase with the use of stories, but scientific studies have shown that informa6. See, e.g., Kenneth D. Chestek, Judging by the Numbers: An Empirical Study of the Power of Story, 7 J. ALWD 1 (2010). 7. Although, wouldn’t that be neat? 8. See J. Christopher Rideout, Storytelling, Narrative Rationality, and Legal Persuasion, 14 Leg. Writing 54, 64-66 (2008) (discussing the coherence and completeness of the story and its effect on persuasiveness). 9. See Carolyn Grose, Storytelling Across the Curriculum: From Margin to Center, from Clinic to the Classroom, 7 J. ALWD 37, 45-46 (2010) (discussing storytelling and its role in helping lawyers “figur[e] out what matters”). 10. See J. Christopher Rideout, A Twice-Told Tale: Plausibility and Narrative Coherence in Judicial Storytelling, 10 Leg. Comm. & Rhetoric 67, 70-71 (discussing the plausibility of the story in persuasion independent of the quality of the evidence).
substance & style
tion and experiences that are not framed in story form are not remembered as clearly as those that are.11 Through the use of stories, lawyers can present their cases in a format that can be more readily understood by juries and judges alike, and one that will make it easier for the intended audience to retain the information that is presented. B. Important Considerations in Legal Storytelling Of course, the fact that storytelling is a very effective way to communicate does not mean that it is not subject to some cautionary words regarding its usage. However, for the most part, these cautionary considerations are not unique to storytelling; rather, they are considerations that are inherent in everything that lawyers do. 1. This isn’t a romance or action-adventure novel
Simply put, the use of storytelling isn’t a license to use bad prose. As Professor Kenneth Chestek notes, if the “writer uses highly charged, emotional prose, the reader will see what the writer is up to, will feel manipulated, and will resist.”12 Remember that this is a legal document, not a mass-market paperback. Don’t substitute adjectives for thought.
2. This isn’t a “based on a true story” treatment
In their rush to tell a compelling story, many lawyers might be tempted to leave out inconvenient facts or stretch to attribute more-heroic motivations to their clients to make a better story.13 However, this defeats one of the greatest strengths of storytelling, which is its ability to coherently explain in a believable manner why people acted as they did. Such license almost inevitably backfires when the audience tries to reconcile it with real life. As Alan Dershowitz notes: “In Chechovian drama, chest pains are followed by heart attacks, coughs by consumption, life insurance policies by murder, telephone rings by dramatic messages. In real life, most chest pains are indigestion, coughs are colds, insurance policies are followed by years of premium payments, and telephone calls are from marketing services.”14
C. Putting Storytelling into Practice Storytelling, used properly, can be a powerful legal tool. Fortunately, the explosion in scholarship that has arisen under the applied legal storytelling banner has made it easier than ever for lawyers to learn more.16 Those who despair of finding the time to integrate the idea of storytelling into their documents should heed the advice of Professor Carolyn Grose, who notes that “the reality is that lawyers do all this anyway; we just don’t know we’re doing it, and we are therefore not doing it as intentionally, and as effectively, as we could be.”17 A lawyer tells his client’s story whether he or she wants to or not. The story told should be the right one. n About the Author Jeffrey D. Jackson is a professor of law at Washburn University School of Law, where he teaches Legal Analyses, Research and Writing, Constitutional Law, Constitutional History, and Comparative Constitutional Law. He received his B.B.A. in economics from Washburn University in 1989, his J.D. from Washburn Law in 1992, and his LL.M. in constitutional law from Georgetown University Law Center in 2003. While at Washburn, Jackson was assistant editor for the Washburn Law Journal and currently serves on the Kansas Judicial Council Death Penalty Advisory Committee. jeffrey.jackson@washburn.edu
3. This isn’t fiction
This should be self-evident. Ethical rules still apply to storytelling.15 The story that you tell can’t be false, even if it would be a good one. 11. See Haven, supra note 2, at 4. 12. Chestek, supra note 6, at 34. 13. See Jeanne M. Kaiser, When the Truth and the Story Collide: What Legal Writers can Learn from the Experience of Non-Fiction Writers about the Limits of Legal Storytelling, 16 Leg. Writing 163, 164-65 (2010). 14. Alan M. Dershowitz, Life Is Not a Dramatic Narrative, in Law’s Stories 99, 100-01 (Peter Brooks & Paul Gewirtz eds. 1996). See also Kaiser, supra note 13, at 163 (discussing Dershowitz’s quote). 15. See Steven J. Johansen, Was Colonel Sanders a Terrorist? An Essay on the Ethical Limits of Applied Legal Storytelling, 7 J. ALWD 63 (2010). 16. For a partial bibliography of articles on storytelling, see Kenneth D. Chestek, Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions, 9 Leg. Comm. & Rhetoric 99, 135-37 (2012). A new updated and comprehensive biography is forthcoming at J. Christopher Rideout, Applied Legal Storytelling: A Bibliography, 12 Leg. Comm. & Rhetoric __ (forthcoming 2015) (accessible online through the Legal Writing Institute’s website at lwionline.org/uploads/FileUpload/rideout storytellingbiblio2014.docx). 17. Grose, supra note 9, at 47.
www.ksbar.org | April 2015
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kansas lawyers assistance program
Progress Rather Than Perfection1
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t some point in our marriage when we had become comfortable with making “helpful little suggestions” to each other, my husband would occasionally say, “Anne, fast forward and get to the point.” Because the unexamined life is not worth living, they say, I took a look at my behavior and here’s what I found: it was a symptom of perfectionism. Subsequently I realized two related facts: procrastination is often caused by perfectionism, and the legal profession experiences both at a high rate, often with detrimental effects. Going back to the “fast forward” comment, I realized that I was going into great detail about a matter because I was expecting criticism or counter-argument and I wanted to be so perfect that the criticism was deflected from the beginning. Not a bad strategy when used properly but not always useful in casual conversation, and certainly not useful when it took over my mind and added a layer of stress. The criticism part I traced partially to my growing up circumstances. The counter argument part, well, that’s obvious – it’s the way we’re trained as lawyers. Anticipating counter arguments and being prepared to refute them is a big part of what we do; and it can become part of who we are. But what about when perfectionism veers out of control, and we stay up all day and all night researching every case going back decades that relates to some fairly tangential piece of our argument? What about getting to the point that we can never admit error and grow increasingly rigid because we, along with our work product, must be perfect at all times? What about seldom to never taking time away from work because we’re sure no one else will do it right? What about when perfectionism leads to procrastination and procrastination leads to an ethical violation? Failures in diligence and communication are in the top five areas of ethical lapses and they are often caused, at least in part, by procrastination, which in turn, is an aspect of perfectionism. An aphorism attributed to Voltaire is: “The perfect is the enemy of the good.” The most common explanation of the phrase (in Wikipedia) is the understanding that the achievement of absolute perfection may be impossible and so, as increasing effort results in diminishing returns, further activity becomes increasingly inefficient. Another site takes it a step further: If you are too ambitious and try to make something better than you are capable of, you may ruin it.2 Looking at it from another angle, we might go to excessive lengths to make the good become perfect and miss other opportunities in the meantime. And in any case, Psychology Footnotes 1. In Chapter 5 of “The Big Book of Alcoholics Anonymous,” the authors say that members “claim . . . progress rather than . . . perfection.” Alcoholics Anonymous, The Story of How Many Thousands of Men and Women Have Recovered from Alcoholism, ch. 5 (4th ed. 2001), available at http://www.aa.org/assets/en_US/en_bigbook_chapt5. pdf. 2. http://idioms.thefreedictionary.com/best+is+the+enemy+of+the+good. 3. Alex Lickerman, Why Perfect Is The Enemy of Good, Psychology Today (June 26, 2011), https://www.psychologytoday.com/blog/happinessin-world/201106/why-perfect-is-the-enemy-good. 4. Id.
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The Journal of the Kansas Bar Association
Procrastination Hacks 1. Work against your mood by using mandatory procrastination. Lay out your material, set your timer for a short, weird interval like 4 or 7 minutes, literally do nothing for those minutes, then get started. 2. Plan a nightmare day. List those tasks you have been avoiding and do them on that day. This strategy is good for folks who like a challenge and a deadline. 3. Layer your workday by doing a task you like less for a while, then a task you love. Repeat this throughout the day. It’s called building a work sandwich. 4. Divide big projects into baby steps or chunks. Set your timer for 15 minutes or 30 minutes and work on the task. When your timer goes off, decide whether or not to reset it for another 15- or 30-minute time block. Most tasks seem more manageable when broken down this way. 5. Picture your success with the project done on time and all of the benefits. Imagine yourself literally doing the task, and then get started.
Today says “The quest for perfection also leads to dithering . . .”3 and may even lead us to abandon the project completely. Or we may become “trapped in a miasma of permanent dissatisfaction.”4 Recognizing that point at which continued tinkering in pursuit of perfection reaches the law of diminishing returns is a hard skill to learn, but necessary. That point is where the concept of “good enough” comes in. Most of the time we think of “good enough” as “settling for” or “less than,” and undesirable – definitely not up to our standards. But what if it meant “The best I can do today, even though it may lack something.” Isn’t that a more workable standard? Not to mention a more realistic one. As in “This column isn’t perfect but I tried to make it good enough.” n About the Author Anne McDonald was appointed to the Lawyers Assistance Program Commission at its inception in 2001 and has served as the Executive Director of KALAP since 2009. She graduated from the University of Kansas School of Law in 1982. mcdonalda@kscourts.org
a nostalstic touch of humor
Making Time for What’s Important
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mazon shows 335,568 books under the heading “too busy.” The literary works include a fascinating assortment of subjects for which the busy word has apparent relevance – ones on “Too busy to pray, eat, exercise,” “Too busy to budget financial goals,” “Too busy to notice,” “Too busy thinking about my baby.” There were many more books listed but I was well, you know, too engaged, to read them all. Admittedly, though, “Too busy to die” did pique my interest. Roughly 15 years ago I had my own “too busy” experience that might be worthy of its own book. The title would be something like “You agreed to do what?” Due to a convergence of circumstances that occur with the frequency of Halley’s Comet, I became the Cubmaster for Pack 3096 in Leawood. The Cubmaster is akin to the organizer of a circular firing squad – I found one description that said: “Conduct the pack program according to the policies of the Boy Scouts of America. Plan and carry out the Cub Scout program in the pack. This includes conducting regular monthly pack meetings.” The “how-to” packet resembled something put together by NASA for the Apollo Mission. Unofficially, the title is “chaos coordinator.” Or my wife’s description: “Avoiding the ER and creepy volunteers no one recognizes.” At that time our Pack was the largest of any in Johnson County – some 125 members – boys between grades 3-5. This moniker was tossed around my shoulders at a time when I was a 40-year-old attorney and lots of legal work was rolling downhill and my office was gravity-friendly. The number one task ahead was to recruit other adult volunteers. The moms – who would serve as den leaders – stepped up quickly. I found an abundance of dependable, reliable, creative moms who raised their hands to assist. But it was dads that were in demand; plus an assistant Cubmaster, someone to run the Pinewood Derby, and someone to organize and do “dad things.” This was in the days of the land-lines, and caller ID was the rage. The word got out that I was looking for men volunteers and suddenly all my friends became acquaintances. Caller ID gave me away as repeated calls went straight to answering machines. But those I did speak to gave me the all too familiar – “too busy,” “travel a lot,” “gone all the time.” Busy is a relative term, and, for example, the mother of three who takes your order at McDonalds probably has a different appreciation of that term than the rest of us. But that experience of asking for help and finding excuses has stuck with me. I’ve seen it crop its head in many other contexts – sometimes in the legal world, sometimes as a parent, but it’s become the go-to excuse for young and old. So this was September 2000 and I still hadn’t found an Assistant Cubmaster. In my pursuit for another dad, one name that came to mind was a physician – a neurosurgeon actually. We shared Western Kansas roots and a love of scouting, but he was and remains the top neurosurgeon in the city. He was, without question, truly, actually busy doing things like saving lives.
I called, he responded. “Sure.” And that’s when I came to understand something else about “busy people” – if you want something done, ask someone who is really busy to do it. They are skilled at managing, adapting, achieving. My Cubmaster journey lasted four years and helped shape some of the best experiences I have today with my three sons and with a handful of other adults who had the courage to pick up the phone. And along the way, I made wonderful friendships that remain today. And so with the Kansas Bar meeting approaching, some of these considerations return to my mind. Our Bar Association represents all of us, but the organizers are fellow professionals who are unquestionably jammed up, and yet finding time to organize and orchestrate an event that will entice us to come and contribute for two days in June. And then equally busy colleagues make time to attend and contribute in their own way. Greg Musil is the chair of the KBA Annual Meeting Planning Committee. Greg is a constant presence in both the metropolitan bar, and all things Johnson County. Adding to Greg’s “to-do” spreadsheet is networking with his new firm – Douthit, Frets, Rouse, Gentile & Rhodes. And while this column was still rolling around my head, I was driving through my neighborhood and saw a yard sign in my neighbor’s yard. And that truism came back to mind – busy people find a way. The sign? “Re-elect Greg Musil, Johnson County Community College Trustee.” n About the Author Matthew Keenan has practiced with Shook, Hardy & Bacon LLP, Kansas City, Mo., since 1985. mkeenan@shb.com
www.ksbar.org | April 2015
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law practice management tips & tricks
Ransomware – Your Data for Dollars
“I
don’t know who you are. I don’t know what you want. If you are looking for ransom, I can tell you I don’t have money. But what I do have are a very particular set of skills, skills I have acquired over a very long career. Skills that make me a nightmare for people like you. If you let my data go now, that’ll be the end of it. I will not look for you, I will not pursue you. But if you don’t, I will look for you, I will find you, and I will kill you.” Sure, you may mutter that famous phrase from “Taken” if you discover your data held hostage with ransomware. Be honest though. You have no particular set of skills to aid in tracking down a digital devil. You will not pursue them, you will not catch them, and you most certainly will not kill them. Just as likely, you will grumble, curse, and maybe pay the ransom for your data. Computer as Hostage The concept of ransomware is simple. You click a hostile popup ad or visit an infected website and the ransomware installs on your computer bypassing security holes in the operating system. Bad Guys then demand a ransom. The more interesting variants encrypt the data on your computer and put a timer on demands. For example, one type of ransomware threatens to delete select files every 30 minutes that the demand is unpaid. Another version escalates the cash demand after 24 hours and ultimately destroys the data if 48 hours pass without payment. Some newer variations aim to sweeten the deal and convey good faith (or capability) by offering to decrypt one file for free before making a full demand for the rest of your data. Unfortunately and disturbingly, ransomware is popping up that has the ability to spread from the infected machine out to other computers and drives on the network. Threats from ransomware are not confined to the desktop computer. Smart phone infection of Android and iOS devices has also been observed in the wild. Investigators in Tennessee reported an instance when ransomware downloaded child pornography to a 12-year-old girl’s phone. An official-looking message accompanied the pornography with references to criminal penalties and offered to make the problem go away for a fee. She went to police, though experts fear many adults would cave in and pay to avoid even the possibility of being linked to child pornography. (One investigation of a ransomware infection turned up evidence that the victim was, coincidentally, trafficking in child pornography.) Response Law enforcement and security experts advise against paying ransoms to rescue a computer. Paying may rescue data but also creates a market for more such exploits. Late last year, the city of Detroit was hit with a ransomware attack but the staggering demand for $800,000 was refused. The city relied on backups and the good luck that affected computers were non-critical. Had the demand been lower, the city might have acted differently. By contrast, the Dickson County (Tennessee) Sheriff’s Office paid $500 to rescue 72,000 files, including sensitive documents, autopsy results, photographs, and criminal reports. Sometimes, the stakes are high enough and the price is right to deal with the devil.
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The Journal of the Kansas Bar Association
Prevention Avoiding ransomware infections should be the primary aim of lawyers. The basic steps for avoidance and treatment are relatively simple. • Back up religiously. Maintaining thorough backup habits significantly reduces the leverage ransomware can exert on you. Why pay to decrypt data you have elsewhere? • Use reputable, updated antivirus software and a firewall. Keep antivirus software running and update it daily. Work with an IT provider to tweak firewall settings including “blacklists” for known problem sites. • Use a browser with a pop-up blocker and enhance it with a reputable ad blocker. Dangerous ads continue to be the vector for most malware and can even cause problems on otherwise reliable sites. • Think before you click. If something is odd, out-ofplace, too good to be true, in your face, etc., then it represents a potential vector for dangerous infection. Close it out. • If infected, disconnect. Remove a computer from the network the minute it even appears infected. Disconnect the Ethernet cable and turn off Wi-Fi. Shut down the computer. • Reinstall instead of removing. Often it will be easier and safer to completely reinstall everything, including the operating system, on an infected computer. Good backups are critical but you are religious about backing up, right? • Contact a reliable IT resource. Some of the ransomware attacks observed in the wild have been flawed and relatively straight-forward to reverse. Data can be recovered sometimes when backups were not made or cannot be trusted. • Notify authorities. It may seem they are uninterested, but several high-profile cases demonstrate interest and capacity to prosecute. In June 2014, the U.S. Department of Justice seized the Gameover ZeuS botnet helping to isolate one of the more publicly successful ransomware rings. Ransomware is an old computer problem and it is not going away any time soon. In fact, late 2014 actually saw a resurgence and even regional targeting. Liam Neeson will not come to our aid, chasing our data across three continents, so it is important for lawyers to pause for a moment to consider – and test – how to avoid and respond to such an attack. n About the Author Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and an adjunct professor teaching law and technology at Washburn University School of Law. He is one of the founding members of the KBA Law Practice Management Section. kslpm@larryzimmerman.com
law students’ corner
Enjoy the Ride
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s my 3L year begins to wind down, I cannot help but reminisce over the past three years of law school. It has been a crazy ride and, while I am not sure I would want to do it over again, it has been an unbelievable time in my life, and the opportunities that have been afforded to me at KU Law have put me in a position that makes my future bright. Now I could go on and talk about all of the amazing professors I have had or the doors KU Law has opened for me, but I am not going to. That is not to say that I have not had amazing professors or that KU Law has not opened a ton of doors for me (it has), but I want to focus on a part of law school that I think gets lost on a lot of people. It is easy to get caught up in the law school rat race and forget to just enjoy the ride. What do I mean by “enjoying the ride”? I don’t mean that you should just coast along, treat law school like undergraduate education, and get your JD after three years with not a whole lot to show for it. Sure, you would come out with a graduate level degree from what I believe to be the pinnacle of a liberal arts education, but you would likely have developed few skills and your job prospects wouldn’t be hot. On the other hand, “enjoying the ride” also does not mean that you should treat law school like a 100-hour a week job at Goldman Sachs. Outlining, case briefing, and getting excellent grades are good and all, but if you are putting in all of the hours to the neglect of your friends, family, and classmates, then you are not going to have very happy memories of law school when you look back on it. Also, the real world is undoubtedly a lot more difficult than law school, so while you may not have as much free time as you did during undergrad, you have more free time now and certainly much greater flexibility with your hours than you will for the rest of your life (I hear that most partners don’t allow for midday naps). So, I have said what I don’t mean by “enjoying the ride,” but I need to further explain what I think it does mean. While there are likely countless others, the following are three ways that I try to “enjoy the ride” of law school. First, find joy in the ebbs and flows of daily life in the law school. While it is understandable to dislike having to do hours and hours of reading each day, find joy in the impromptu conversation with a professor you see in the hall or the Burge lunch with one of your best law school friends. Second, law school is a lot like high school and that does not have to be a bad thing! As a self-identifying nerd who had
a good but not great high school experience, law school being like high school is not a bad thing. Even for those who did not like high school, I think that law school takes the good parts of high school and gets rid of most of the bad. The most positive part of law school being like high school is that you see the same people every day and, unlike high school, they often share many of the same interests. This makes we want to hang around the law school a little bit more because it is my last opportunity to have a large friend group that is close largely by virtue of the fact that we see each other so often. Sure, for the rest of my life I will make new friends here and there, but largely those will be in settings like work, my kid’s school, or other couple-friends. Whether it is going to TGIT, weekly trivia events, late-night study groups, or any other group activity you can think of, don’t go through law school alone! Finally, find something that you enjoy about law school and do it, whether it is a class or an extracurricular law-related activity. All of us have classes that we would rather not take again but there are other classes or teachers that you may have absolutely loved. Follow the subjects and professors that inspire you. The key is that there is not one thing that I am going to say you have to do or take, but it is imperative that you find something about law school that you really like and do it! While I could go on and on about other ways that you can “enjoy the ride” in law school, these three provide a starting point and even if you find none of my suggestions helpful, hopefully you can think of something to ensure that you enjoy your remaining semesters in law school. As for me, I’ll being doing a lot of my first and second options this semester, combined with a healthy dose of Netflix, and trying not to think too much about the Bar Exam that I am going to have to take about three months from now. n About the Author Thomas Hiatt is a third-year law student at the University of Kansas School of Law. He was a summer associate at Spencer Fane Britt & Browne, where he will return full time upon graduation. During law school, Hiatt was president of Phi Alpha Delta, a member of Moot Court Council, and a Shook, Hardy & Bacon scholar during the spring semester.
www.ksbar.org | April 2015
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kba news
Members in the News Changing Positions Joan K. Archer and Nathan E. Oleen have been named partners at Husch Blackwell LLP, Kansas City, Missouri. Christopher L. Arellano, Matthew K. Holcomb, and John E. Rapp have been added as members of Hinkle Law Firm, Wichita. Chad E. Blomerg and Amy M. Brozenic have been selected partners at Lathrop & Gage LLP, Kansas City, Missouri. Ross A. Boden has joined Sandberg Phoenix, Overland Park, as an associate. Matthew P. Clune has been promoted partner at Martin Pringle Oliver Wallace & Bauer LLP, Wichita. Douglas C. Cranmer has become the managing member of Stinson Laswell & Wilson L.C., Wichita. F. William Cullins has been named chief judge of 14th Judicial District, Independence. Sean D. Ervin has joined Douthit Frets Rouse Gentile & Rhodes LLC, Leawood. Michael J. Hoelscher has been named district judge of Division 19 in the 18th Judicial District, Wichita. Cole A. Hoffmeister has been made a member of Emert, Chubb & Gettler LLC, Independence. Shannon L. Holmberg has joined First National Bank of Hutchinson in the First Wealth Management Department, Hutchinson. Mark A. Kanaga has been been named a partner with Kutak Rock LLP, Wichita. Rachel E. Lomas has become new partner at Hite Fanning & Honeyman LLP, Wichita.
Rebecca Mann has been named a shareholder with Young Bogle McCausland, Wells & Blanchard P.A., Wichita. David S. Martin has become a shareholder with Gilmore & Bell P.C., Kansas City, Missouri. Jeffrey A. Pyle has joined Martindell Swearer Shaffer Ridenour LLP, Hutchinson. Melissa D. Richards has joined Weary Davis L.C., Manhattan, as an associate. Jerald W. Rogers has joined Spirit AeroSystems Inc., Wichita. Ryan W. Rosauer has been appointed a district judge of the 8th Judicial District, Junction City, by Gov. Sam Brownback. Seth L. Rundle has been named a district judge of Division 5 in the 18th Judicial District, Wichita. Timothy A. Shultz joined Goodell, Stratton, Edmonds & Palmer LLP, Topeka, as special counsel.
Changing Places DeVaughn James Injury Lawyers has moved to 3241 N. Toben St., Wichita, KS 67226. Lewis Brisbois Bisgaard & Smith LLP has opened a new office location, 1605 N. Waterfront Pkwy, Ste. 150, Wichita, KS 67206. Linda I. Priest has started her own practice, Law Office of Linda I. Priest, 1005 N. Market, Wichita, KS 67214. Edward L. Robinson has formed Robinson Law LLC, 2313 N. Zoo Park Circle, Wichita, KS 67205.
Miscellaneous Kenneth L. Cole, Russell, was recently recognized by the Gorham City Council for achieving 25 years as the city attorney. The Wichita Bar Association has announced its officers for 2015-16: Holly A. Dyer will serve as president; Marcia A. Wood, president-elect; Kellie E. Hogan, vice president; Gwynne H. Birzer, secretary-treasurer. Board members include Rebecca Mann, Deborah B. McIlhenny, C. Edward Watson, and Hon. William S. Woolley. Forker Suter LLC, has changed its name to Forker, Suter, Robinson & Bell LLC, Hutchinson. Karen R. Glickstein, Kansas City, Missouri, received the Defense Research Institute’s Mary Massaron Award for the Advancement of Women in the Legal Profession. Hon. Cheryl R. Kingfisher, Topeka, has been selected to co-chair the National Association of Women Judges’ Informed Voters Project committee. Amy J. Mellor, Great Bend, was appointed to the Commission on Peace Officers Standards and Training by Gov. Sam Brownback. Editor’s note: It is the policy of The Journal of the Kansas Bar Association to include only persons who are members of the Kansas Bar Association in its Members in the News section.
Obituaries Deborah E. “Debbie” Berkley
Carol Llewellyn (Buchele) Bonebrake
Deborah E. “Debbie” Berkley, 63, died March 20 at Hospice House of Reno County, Hutchison. She was born February 29, 1952, the daughter of Harold Rayfield and Doris Eleanor (Corman) Berkley. Berkley was a Great Bend resident and an attorney. She was a member of Elks, Golden Plains Quilts of Valor, which she started, CASA, and American Legion Post 180 Auxiliary. Survivors include her mother, Doris Berkley, of Great Bend; one daughter, Jennifer Zupfer, of Vancouver, Washington; one sister, Terri Rous, of San Jose, California; one grandson, Mason Zupfer, of Vancouver, Washington; one niece, Sarah DeWitt, of Pearl Harbor, Hawaii; and one nephew, Darren Rous, of Fort Worth, Texas.
Carol Llewellyn (Buchele) Bonebrake, 65, of Topeka, died February 26 at the University of Kansas Medical Center. She was born December 28, 1949, in Arkansas City, Kansas, the daughter of Julian and Vergie (Bryant) Buchele and grew up in Cedar Vale, where she graduated from high school in 1967. Bonebrake received her bachelor’s degree with honors from Kansas State University in 1971 and her juris doctorate, cum laude, from DePaul University in 1975, where she was a member of the DePaul Law Review from 1973-75. She was a partner with the law firm of Cosgrove, Webb and Oman since 1987, where her areas of practice included taxation, litigation, wills, probate, and contracts. Bonebrake was a member of the Kansas and Minnesota State bar associations. She had worked for the law firm of Dorsey and Whitney in
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Rochester, Minnesota, from 1975-79, as counsel for the Mayo Clinic, and then served as the director of taxation for the state of Kansas from 1979-87. Bonebrake was a member of the Topeka Lawyer’s Club; SOABs; YWCA Board; and CASA of Shawnee County, where she had served on the board and was past board president. She is survived by her husband, Dr. Richard Bonebrake; her children, Dr. Michael Bonebrake, of St. Louis, Ashley Fairchild, of Gardner, Natalie Bonebrake, of Denver, and Matthew Bonebrake, of Kansas City, Kansas; and her sisters, Hon. Nancy Parrish, of Topeka, Barbara Buchele, of Winter Park, Florida, and Phyllis Buchele, of Lawrence.
From 1998 to 2004, Fox served as squadron commander of the Civil Air Patrol, Topeka Eagle Composite Squadron, Kansas Wing. He received numerous meritorious service awards and commander’s commendation awards for his service. Fox is survived by his wife, Claudia Dillon, of the home; his daughters, Jenni Fox and Carissa Robertson; his mother, Marjorie Fox; and his sister, Susan Sparks. Kari Lynette Gilliland
Kari Lynette Gilliland, 44, died March 9 in St. Francis. She was born September 11, 1970, in St. Francis. Survivors include her husband, Dustin, of the home; her children, Joel and Molly, of the home; brother, J.W. Milliken, John C. Eisele of St. Francis; sister, Kelly Milliken, of Denver; her parents, John C. Eisele, 84, died on January 22 in Corpus Christi, Jim and Ruth Milliken, of St. Francis; and in-laws, Don and Texas, while residing at the Cimarron Place Nursing Home. Sherri Gilliland, of Bird City. He was born on January 7, 1931, in Bartlesville, Oklahoma, Harland Kenneth Rieger to Ernest and Martha Eisele. He received both his undergradHarland Kenneth Rieger, 77, of Topeka, died February 4, uate and law degrees from the University of Kansas. Eisele practiced law in Johnson County for more than three decades. in Albuquerque, New Mexico, at the Raymond G. Murphy Eisele is survived by his wife, Jane; his former wife, Janet; his Veterans Administration Medical Center. He was born August children, John Eisele, of Fort Collins, Colorado, Sarah Moe, 18, 1937, in Clay Center to Opal Leona Heath Rieger and of Albuquerque, William Eisele, of Olathe, and Mary Riley, of Ernest Carl Rieger. He graduated from Topeka High School and later from Washburn University in 1961. Rieger graduNixa, Missouri; and 12 grandchildren. ated from Washburn University School of Law in 1964. Robert A. Fox Rieger served as a member of the Kansas National Guard Robert A. Fox, 61, died February 25 in Topeka after a short and the U.S. Air Force in active and reserve duty with the battle with cancer. He was born April 25, 1953, the son of Judge Advocate General Corps for 36 years; he retired as a Robert D. and Marjorie Fox in Grand Island, Nebraska. He lieutenant colonel. He served as an assistant district attorney graduated from Fairview High School in Boulder, Colorado, in Shawnee County and later established a private practice, in 1971 and graduated from Hastings (Nebraska) College practicing for over 40 years. in 1976. He graduated from law school at the University of He is survived by his wife, Barbara "Bobbi" Rieger, of AlbuSouth Dakota in 1979. querque; his two daughters, Cardinal Rieger, of Albuquerque, Fox lived in Hutchinson from 1979-88, working in private and Tonna Burgos, of Corrales, New Mexico; three grandpractice and later as Reno County juvenile prosecutor. He chilren, Mateo, Mayo, and Salome Burgos, of Corrales, New moved to Topeka in 1988 to work for the Kansas Corporation Mexico; and many nieces and nephews. He was preceded in Commission as deputy general counsel and later for Foulston death by his parents; his sister, Maralene Joan Wallter; and his Siefkin in Topeka until 2009 when he became assistant Jef- brothers, Bill Earnest Rieger and Wayne R. Rieger. n ferson County attorney. In 2011, Fox was appointed Jefferson County attorney before finishing his career at the KCC as chief litigation counsel.
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Happy 800th Birthday, Magna Carta
By Mike Hoeflich Magna Carta, 1215. One of four surviving copies written on sheepskin parchment by a single scribe. Source: The British Library.
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wenty miles west of London is a small meadow called Runnymede. In this meadow 800 years ago King John of England and his barons met to settle what was threatening to become a major internecine conflict. John, a member of the Angevin dynasty, had suffered a stunning defeat in France and lost much of his French territories. At the same time the king had quarreled with Pope Innocent III, a quarrel which had led to his being excommunicated and church services in England being suspended on the order of the Pope. John’s French wars had been expensive, as had the crusade and kidnap ransom of his predecessor King Richard. To pay for all of those royal adventures, the barons of England had been taxed and taxed again. By 1215 the barons had had enough. The king had been weakened by his defeats and his battles with the Pope, and the barons were in revolt. In June the two sides met at Runnymede to find a peaceful means of ending the conflict between them. On June 15, the barons and the king reached what has been called a “peace treaty” by some scholars.1 In fact, the barons had demanded a series of political, legal, and financial concessions from the king, and the king granted them in the form of a royal charter. They were not consciously attempting to draft a constitution in the modern sense, nor is it likely that either side believed that the agreement that they reached on that English summer day would become one of the cornerstones of English law. Indeed, John soon asked Pope Innocent to nullify the charter. But the grants made by John that day did indeed last, because the charter that was agreed to by King John on that day would some centuries later come to be called the Great Charter or, in Latin, Magna Carta.2 Magna Carta was first issued in 1215 and was neither a constitution nor was it formally created as a a statute at first.3 It was reissued in 1216, 1217,1225, 1297, and 1300. In the course of reissuance the language of the Charter underwent some changes; there are significant differences between the earliest version of 1215 and the version of 1225.4 In spite of those differences, the provisions that are of greatest significance to us today remained virtually the same in all versions. 20
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Magna Carta has been characterized by A.E. Dick Howard, one of its best known interpreters, as an “intensely practical document” created by “practical men.”5 It was, above all, a document firmly grounded in the feudal system then in place in England that put the king at the top of a political and legal hierarchy, followed by the great barons. Under feudal law, all land belonged ultimately to the king and the barons held their rights from the king and owed feudal duties to him.6 The barons, in turn, granted land and prerogatives to lesser men who owed them feudal duties.7 In the course of the years preceding the issuance of Magna Carta, the king had imposed ever increasingly onerous financial and other duties upon the barons and had usurped many of their most profitable feudal privileges. In Magna Carta, the king was forced to reduce those financial burdens and guarantee the privileges to the barons that they felt had been unjustly taken away from them. Today it is popular to see Magna Carta as a kind of protoconstitution and bill of rights and to find in it many of the
“King John Signing Magna Carta,” by James Edmund William Doyle, which appeared in Chronicle of England, 1864. Source: Wikimedia Commons.
doctrines enshrined in the United States Constitution. That is a somewhat anachronistic view. The truth is that Magna Carta was neither a constitution nor a bill or rights as we understand such things. But Magna Carta did introduce certain basic principles into English law and governance, principles that inspired so many of the civil liberties we enjoy today. Even more important, Chapter 39 of Magna Carta quite clearly enunciated the fundamental notion of “due process” of law: No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.8 It was the last phrase of Chapter 39, the reference to the supremacy of the “law of the land” which, several centuries later became the basis for Sir Edward Coke’s arguments against royal claims of supremacy.9 Coke, one of the greatest common lawyers of all time was the chief architect of the theory that all men, including the sovereign, were subordinate to the law. Chapter 39 of Magna Carta provided Coke with the historical justification for that claim.10 Coke’s theory of the supremacy of law over men was incorporated by William Blackstone into his Commentaries on the Laws of England, and through the Commentaries became one of the basic principles of American law and government.11 Magna Carta itself was one of the principal texts used by the colonists in North America and continued to inspire American law during at the founding of the new republic. It was then and continues to be today one of the founding documents of the American idea of a government of “laws not men” and, is thus, one of the bases for American democracy. n About the Author Michael H. Hoeflich is the Kane Distinguished Professor of Law at the University of Kansas School of Law. He has been on the faculty since 1994. Hoeflich has degrees from Haverford College, Cambridge University, and Yale Law School. hoeflich@ku.edu
Endnotes 1. See M. Dillon, “Magna Carta and the United States Constitution: An Exercise in Building Fences,” in Magraw, Martinez & Brown, Magna Carta and the Rule of Law (2014), 82-110, at 85. 2. Magna Carta was written in Latin. The best modern translation is found in A.E. Dick Howard, Magna Carta. Text and Commentary (1964). 3. Magna Carta did not become part of the English statutes until 1297; see Magraw, supra n.1, “Introduction” at 5. 4. Dillon, supra n.1, at 85-86. 5. Howard, supra n.2, at 8. 6. On the feudal system in general, see M. Bloch, Feudal Society, trans. Manyon (rpt. 1964), see also, S.F.C. Milsom, The Legal Framework of English Feudalism (1976); see also R. Turner, “The Making of Magna Carta. The Historical Background,” in Magraw, supra n.1, 17-81.
Magna Carta, 1297, issued as part of Edward I’s Confirmation of Charters. An issue is on permanent loan to the National Archives in Washington, D.C. Source: U.S. National Archives & Records Administration.
7. This was the process known as subinfeudation. 8. In Howard, supra n.2, at 43. 9. See Dillon, supra n.1, at 99-105. On Coke, see A. Boyer, Sir Edward Coke and the Elizabethan Age (2003). A wonderful popular biography of Coke is C.D. Bowen, The Lion and the Throne (1957). 10. Dillon, supra n.1, at 99-105. 11. Id. at 108-09; and see W. Blackstone, The Great Charter and Charter of the Forest with Other Authentic Instruments (1759).
Learn more about Magna Carta in the March 2015 issue of Law Wise. View online today at http://www.ksbar.org/lawwise. www.ksbar.org | April 2015
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Over 1,000 Child Adoptions and No Signs of Slowing Down for Gene Balloun “I just try to work hard and do a good job and help people,” he explained. “It’s just part of my makeup frankly. It’s like people say, ‘Well, when are you going to retire?’ and I say, ‘Well, never.’” Balloun doesn’t practice in adoption, in fact, his field of practice is commercial litigation. It’s what he has done for most of his career, and he said his pro bono work in adoption has been a nice contrast. “I feel like I do a good job of it and I enjoy trying to solve problems and satisfy clients and work out the issues so everybody goes away feeling Attorney J. Eugene Balloun is given a standing ovation by the courtroom audience in the Johnson County District as good as they can about it,” he said. Court following his 1,000th child adoption case. Source: Shook, Hardy & Bacon LLP. Balloun grew up in Depression-era t started back in 1987 when Kansas City attorney J. Eugene Russell with three brothers, one sister, and four cousins on Balloun and his wife, Sheila, made the decision to become the edge of town. Like most kids, he worked, having a paper foster parents. Being a lawyer in a support group for foster route, working construction, on the farm, or at a flour mill. parents, he was always asked for legal advice and was more Balloun said he did all those things by the time he was ready than happy to oblige. The legal advice was the beginning, and for college. Of course, he got into the cattle business, because then he was handling their adoptions, but at no charge. his family had a “semi-farm.” In fact, Balloun helped pay for “Becoming foster parents changed our lives,” Balloun said. college with three Holsteins that he raised. “If we were given the privilege of being lawyers, it’s such a “You scraped and did whatever you needed to do,” said great opportunity to give back.” Balloun. Throughout the years, he and his wife have taken care of 29 While growing up during that time period, Balloun said, foster children, including two that they adopted. people developed a stronger work ethic, and that becomes a “As I watched my own kids that we’ve adopted, you looked part of your life. and you say, ‘I wonder what their life would’ve been like if we “I think having a purpose in life is important, and frankly I had not come along,’” Balloun said. think it probably keeps you healthier,” he explained. Thirteen years ago his wife had the idea of creating a scholFor Balloun it’s about where he can do the most good, and arship fund from the attorney fees paid by the state. His firm, that’s where he has tried to focus. n Shook, Hardy & Bacon LLP, was more than happy to help. The fund, administered by the Greater Kansas City Community Foundation, has granted over $625,000 in educational scholarships to nearly 500 students who have been foster children in Kansas. Balloun and Shook Hardy accept adoptions from across the state of Kansas. As Balloun explained, if an agency calls and says there’s an adoption in Hays, Shook Hardy will automatically say yes and call a lawyer in Hays to partner. The firm will handle the paperwork, the pleadings, and contacts with the client, and the lawyer in Hays will take the family to the courthouse and complete the adoption once it’s set up. “I feel like we are doing a public service, that first of all benefits children and second, kind of secondarily, is improving the image of lawyers,” said Balloun. “The main purpose is to try and help kids. You meet these kids and you know you want to help them and you go away with this great feeling of Lexie Hicks, center, sits with 10- and 12-year-old siblings who have been living with her as foster children. Hicks made it her mission to get the children living satisfaction.” Balloun is well past 1,000 adoptions and at the age of 85, he under the same roof for the first time in eight years after discovering they had been separated from each other for most of their lives. On February 23, 2015, they shows no signs of slowing down. became a legal family with Balloun’s help. Source: Shook, Hardy & Bacon LLP.
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Keynote Speakers I'm Bitter, But I Am Better Darryl Burton Thursday Keynote Speaker
June 17 – 19 Overland Park
Darryl Burton, a St. Louis native, is an innocent man who spent 28 years in prison for a crime he did not commit. On August 29, 2008, he was exonerated. Darryl travels nationally and internationally sharing with the world his message of hope and forgiveness. He is currently pursuing his Masters of Divinity degree at the Saint Paul School of Theology and works as a Pastor Intern at the United Methodist Church of the Resurrection, both in Leawood.
Register online at http://www.ksbar.org/am15.
Well-Bring and the Practice of Law: The Choices Happy Lawyers Make Daniel S. Bowling Friday Keynote Speaker Daniel S. Bowling is a senior lecturing fellow at the Duke University School of Law whose focus is at the intersection of law, work, and psychology. He teaches labor and employment law and has also designed and taught courses on lawyers and personal well-being. He leads seminar courses exploring the connection between happiness, legal professionalism, and work satisfaction. He is also a lecturer at the University of Pennsylvania where he assists in teaching graduate level courses on positive psychology, positive humanities, and character strengths and virtues.
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The Law is the True Embodiment:
Gilbert and Sullivan for Lawyers By Roger W. Badeker
A scene from “Trial by Jury,“ 1875. First performed at London’s Royalty Theatre on March 25, 1875, “Trial by Jury“ is a one act comic opera by Gilbert and Sullivan, From the Illustrated Sporting and Dramatic News. (Photo by Fine Art Images/Heritage Images/Getty Images)
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o legal education can be considered complete without a working knowledge of the works of Gilbert and Sullivan and others who produced several masterpieces of comic opera. For those already acquainted, this will be a review. Newcomers will have the pleasure of meeting legal luminaries, such as the judge in Trial by Jury and the law clerk elevated to “Ruler of the Queen’s Navee” in H.M.S. Pinafore. I first became acquainted with the work of those composers at the age of 14, listening to Pinafore on a 78 r.p.m. record. I have been a fan ever since. First, a little about the two men: Arthur Sullivan was a serious composer. His works were not confined to comic opera. He is probably best known as the composer of the hymn “Onward, Christian Soldiers.” W.S. Gilbert was a practicing barrister who wrote comic prose for a magazine titled Fun until he found comic writing more profitable and abandoned the practice of law. The two men collaborated on fourteen comic operas between 1871 and 1896. Their operas are still performed frequently throughout the English-speaking world. Lawyers, judges and people connected with the law in one way or another appear in many of the operas. Trial by Jury is a good place to start. The setting is a “breach of promise” action. The plaintiff, unlike a woman in the judge’s background, had not been forgiving. She sued. It is interesting to note that this was a recognized cause of action in the United Kingdom until 1971. The presiding judge had an interesting personal history. As a young barrister he had agreed to marry the elderly, homely daughter of an established and prosperous barrister and then jilted her. Her father had promised to help the young lawyer and does so despite his conduct. The judge provides some comments about his progress in the profession with this: The rich attorney was as good as his word The briefs came trooping gaily, And every day my voice was heard At the Sessions or Ancient Bailey. All thieves who could my fees afford Relied on my orations, And many a burglar I’ve restored To his friends and his relations.1 After hearing all the evidence (such as it is), the judge resolves the matter by marrying the plaintiff himself, explaining his decision: All the legal furies seize you No proposal seems to please you I can’t sit up here all day. I must shortly get away. Barristers, and you, attorneys, Set out on your homeward journeys; ... Put your briefs up on the shelf, I will marry her myself.2 Despite the irony of the learned judge’s conduct as a young lawyer in jilting the daughter of his employer, the jury and public approve of him. In H.M.S. Pinafore, another lawyer plays a prominent role. Sir Joseph Porter, the First Sea Lord, recounts his rise from a humble beginning as “office boy to an attorneys firm” to his present lofty position as “Ruler of the Queen’s Navee.” In his words: Of legal knowledge, I acquired such a grip That they took me into the partnership And that junior partnership, I ween, Was the only ship that I ever had seen. Footnotes 1. Gilbert & Sullivan, Trial by Jury, act I, lines 138-45. 2. Id., lines 376-85.
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Gilbert and Sullivan for Lawyers
But that kind of ship so suited me That now I am the Ruler of the Queen’s Navee.3 After exulting in his success and sharing it with those assembled on the deck of the Pinafore, Sir Joseph offers this advice: Now, landsmen all, whoever you may be, If you want to rise to the top of the tree, If your soul isn’t fettered to an office stool, Be careful to be guided by this Golden Rule – Stick close to your desks and never go to sea, And you all may be Rulers of the Queen’s Navee.4 Does it seem strange that one who had no experience at sea should be running a nation’s navy? If so, look around at our own Department of Defense and see how many senior positions are held by those who have never worn a uniform. The model for Sir Joseph was W.H. Smith, a newspaper man who had no knowledge of the sea or ships. Despite that glaring lack of knowledge, he was made First Sea Lord and became known as “Pinafore Smith.” There were strict orders against playing music from the opera when Smith was around. Ignoring the prohibition, a Royal Marine band played “When I was a Lad” on one of his visits to Portsmouth. The satire was not directed at Smith personally but against the entire system of putting people in charge of affairs in which they had no experience. There is a Kansas connection with Gilbert and Sullivan in the folklore of Dodge City. Legend has it that Wyatt Earp met his long-time common law wife Josey when she was in Tombstone with a traveling company of H.M.S. Pinafore. Another opera with a nautical theme takes us to the other side of the law and a look at a pirate ship and crew in The Pirates of Penzance. They, however, are no ordinary pirates. As the opera opens, the crew is assembled on deck, and the Pirate King is pouring sherry for all hands. Yes, sherry! As the glasses are filled, the crew joins in a chorus: Pour, oh, pour the pirate sherry; Fill, oh, fill the pirate glass; And, to make us more than merry, Let the pirate bumper pass.5 One of the principal characters in Pirates is Frederic, who has been apprenticed to this crew through the mistake of a hearing-impaired nursemaid. She had been instructed to apprentice him to a pilot. Frederic’s apprenticeship is to end on his twenty-first birthday. As he was born on the 29th of February, this raises questions about the intent of the parties. Frederic feels honor-bound to stay with the pirates, but any lawyer can see the contract is seriously flawed. Issue number one is whether an agreement to engage in piracy is enforceable. At the next meeting of your bar association, your colleagues might find it entertaining to identify and analyze the issues presented by Frederic’s contract. The Pirate King makes no apologies for his activities, quite 3. Gilbert & Sullivan, H.M.S. Pinafore, act I, lines 317-23. 4. Id., lines 333-39. 5. Gilbert & Sullivan, The Pirates of Penzance, act I, lines 6-9. 6. Id., lines 151-58. 26
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the opposite. He views himself no worse than contemporary heads of state as he explains: When I sally forth to seek my prey I help myself in a royal way: I sink a few more ships, it’s true, Than a well-bred monarch ought to do. But many a king on a first-class throne, If he wants to call his crown his own, Must manage somehow to get through More dirty work than ever I do.6 In the preceding song “I am a Pirate King,” the lyrics today generally say: Away to the wicked world go you, Where pirates all are well-to-do. But I’ll be true to the song I sing, And live and die a Pirate King. There are several versions of the lyrics to this song which are fraught with possibilities. The legal profession is addressed with: Away to the wicked world go you, Where pirates all are lawyers, too. When the police arrive to round up the pirates, the pirates overcome the police. The sergeant, however, plays his trump card invoking the sovereign: “We charge you, yield in Queen Victoria’s name!” The pirates declare their love for the queen, and all ends happily.7 The Mikado is one of Gilbert and Sullivan’s best known and most popular works. It is a favorite with amateur civic and school performers. Despite its Japanese setting and costumes, the opera is clearly a satire of English customs and institutions. In this topsy-turvy world, flirting is a capital offense punishable by beheading. But, there is a catch: And so we straight let out on bail A convict from the county jail, Whose head was next On some pretext Condemned to be mown off, And made him Headsman, for we said, “Who’s next to be decapitated Cannot cut off another’s head Until he’s cut his own off.”8 Later in Act I, a letter arrives from the Mikado noting that no executions have taken place in the city of Titipu for a year. As a result, the city risks being reduced to the rank of village. The Mikado decrees that someone must be beheaded within the month or the city will suffer the consequences.9 As the Mikado enters Titipu, he breaks into song declaring his aspirations:
7. Id., act II, line 569. 8. Gilbert & Sullivan, The Mikado, act I, lines 118-26. 9. Id., lines 545-50.
Gilbert and Sullivan for Lawyers
My object all sublime I shall achieve in time – To let the punishment fit the crime And let each prisoner pent Unwillingly represent A source of innocent merriment! Of innocent merriment!10 As the Mikado elaborates on the punishments he proposes for various offenses, one wonders about his ideas of both innocence and merriment. The constitutional lawyer will observe a glaring combination of powers all held in the hands of Pooh-Bah as First Lord of the Treasury, Lord Chief Justice, Commander-in-Chief, Lord High Admiral and Archbishop of Titipu, as well as Lord High Executioner. As Pooh-Bah explains it: Our logical Mikado, seeing no moral difference between the dignified judge who condemns a criminal and the industrious mechanic who carries out the sentence, has rolled the two offices into one, and now every judge is his own executioner.11 When it is discovered that Pooh-Bah has executed the heir to the throne, who was living incognito in Titipu, the Mikado commiserates with him but explains that nothing can be done because the law contains no relief for a mistake. The Mikado attempts to console Pooh-Bah, saying: That’s the slovenly way these acts are always drawn. However, cheer up, it’ll be all right. I’ll have it altered next session. Now, let’s see about your execution – will after luncheon suit you? Can you wait till then?12 In another opera, Gilbert and Sullivan focused on the British House of Lords and created what is regarded as a comic masterpiece. Iolanthe has a fairyland connection, which fits well with the House of Lords. The first legal issue we encounter is a conflict of interest involving the Lord Chancellor, who declares: The Law is the true embodiment Of everything that’s excellent It has no kind of fault or flaw And I, my Lords, embody the Law. The constitutional guardian, I, Of pretty young Wards in Chancery. All very agreeable girls – and none Are over the age of twenty-one.13 Unfortunately, the Lord Chancellor, a widower, has fallen in love with one of his wards and hopes to marry her. After many twists and turns, the Lord Chancellor discovers that his 10. Id., lines 337-44. 11. Id., lines 138-41. 12. Id., act II, lines 550-53. 13. Gilbert & Sullivan, Iolanthe, act I, lines 263-70.
own wife is alive, and the ward marries another. The opera ends with the peers in the House of Lords marrying fairies, sprouting wings and going off to Fairyland. Late in Act I, the Lord Chancellor offers some comments on legal ethics. Here, with the parenthetical refrain deleted, are his ideas of proper conduct: When I went to the bar as a very young man, [Said I to myself – said I] I’ll work on a new and original plan I’ll never assume that a rogue or a thief Is a gentleman worthy of implicit belief Because his attorney has sent me a brief. Ere I go to court, I will read my brief through, And I’ll never take work I’m unable to do. My learned profession I’ll never disgrace By taking a fee with a grin on my face When I haven’t been there to attend to the case. I’ll never throw dust in a juryman’s eye Or hoodwink a judge who is not over-wise Or assume that the witnesses summoned in force In Exchequer, Queen’s Bench, Common Pleas or Divorce Have perjured themselves as a matter of course.14 William H. Rehnquist, former chief justice of the U.S. Supreme Court, is said to have been a great Gilbert and Sullivan fan. He added four gold stripes to his judicial robe after seeing the costume of the Lord Chancellor in Iolanthe. Chief Justice John Roberts has not continued the practice. Rehnquist, while an Associate Justice, quoted the Lord Chancellor’s statement above (“The Law is the true embodiment / Of everything that’s excellent / Without any fault or flaw / And I, my Lords, embody the Law”) in his dissenting opinion in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). The principal characters in another opera are a defense counsel’s dream come true – a family of habitual criminals who are wealthy. These are the bad barons of Ruddigore in an opera of the same name – Ruddigore. The first baron persecuted witches, and one of his victims cursed him and all future barons to commit a crime every day or suffer terrible agonies.15 Late in Act I, it is discovered that the real baronet has been living in the village under the name of Robin Oakapple to avoid the title and its curse. Committing a crime a day is not as easy as it may sound, especially when the performance is evaluated by the ancestral ghosts. The ghost of Sir Roderick, who has stepped from a picture frame to confront the living baronet, explains: It is our duty to see that our successors commit their daily crimes in a conscientious and workmanlike fashion. It is our duty to remind you that you are evading the conditions under which you are permitted to exist.16 In his defense, the baronet describes the crimes he has committed that week. These include filing a false income tax re14. Id., lines 465-87. 15. Gilbert & Sullivan, Ruddigore, act I, lines 81-88. 16. Id., act II, lines 207-10. www.ksbar.org | April 2015
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turn, forging a will and forging a check. They are all rejected by the ghosts, who propose carrying off (i.e., kidnapping) a lady as an acceptable crime. Through a misunderstanding, a retainer carries out the abduction. The whole matter is resolved with an interesting argument, to wit: the baronet’s failure to carry out a daily crime is tantamount to suicide, which is itself a crime. That disposes of the curse.17 In this discussion of legal gems, I have not intended to overlook the music in these operas. There is, for example, a delightful waltz at the beginning of The Gondoliers. The legal issue in that opera is the identity of the Prince of Barataria. The setting is Venice, where an infant prince has been left with the family of a gondolier, who has a son the same age. Does this begin to sound like something set up by Shakespeare in Twelfth Night or The Comedy of Errors? The two young men travel to Barataria to determine who shall become king. Although there are two of them, they receive rations for only one. Upon complaining about this, they learn they are considered to be one person. Two solicitors explain it: Anni: It is a legal fiction, and legal fictions are solemn things. Giu: …when you supply us with only one ration, I should describe it as a legal fiction carried a little too far … Anni: … I don’t like to express an opinion offhand. Suppose we reserve it for argument before the full Court? Mar: Yes, but what are we to do in the meantime? Anni: I think we may make an interim order for double rations
on their Majesties’ entering into the usual undertaking to indemnify in the event of an adverse decision.18 Ultimately, it is determined that neither of the young gondoliers is heir to the throne. In Act I, it appears that the infant prince has been left with the family of the gondolier. But, instead, near the end of Act II, an elderly nurse reveals that she has given away her own son and kept Luiz, explaining: The Royal Prince was by the King entrusted To my fond care, ere I grew old and crusted When the traitors came to steal his son reputed My own small boy I deftly substituted! The villains fell into the trap completely. I hid the Prince away – still sleeping sweetly.19 For those wishing to pursue the study of Gilbert and Sullivan or further explore any particular opera, I would recommend The Complete Annotated Gilbert and Sullivan by Ian Bradley. That book has the libretti for all the operas plus extensive explanatory notes printed on the facing pages of the libretti. Wikipedia is a good place to get a quick and convenient look. If the reader is inclined to take the plunge by viewing one of the operas, Opera World on the Internet is a good source. In closing, let me caution you to be careful how you sample the works of Gilbert and Sullivan. Experimentation can lead to addiction, and there is no known cure. If you find yourself humming the tunes or using some of the expressions, you are already hooked. You will simply have to learn to enjoy the experience. n About the Author Roger W. Badeker is an attorney based in Alma. He earned his bachelor’s degree from the University of Colorado at Boulder and his juris doctorate from the University of Kansas School of Law.
17. Id., lines 581-86. 18. Id., lines 30-50. 19. Id., lines 840-45.
Bruce Nystrom, PhD Licensed Psychologist
River Park Psychology Consultants, LLC www.riverparkpsych.com 727 N. Waco, Suite 320 Wichita, KS 67203 telephone: (316) 616-0260 • fax: (316) 616-0264 28
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Appellate Decisions
Appellate Decisions All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at info@ksbar.org or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions.
Supreme Court Civil BREACH OF FIDUCIARY DUTY AND CLEAR AND CONVINCING EVIDENCE BECKER V. KNOLL FINNEY DISTRICT COURT – AFFIRMED COURT OF APPEALS – REVERSED NO. 105,643 – JANUARY 30, 2015
FACTS: This case involved an action by shareholders in a Kansas irrigation corporation against the president of the corporation (Knoll), alleging breach of a fiduciary duty and seeking removal of the president as an officer and director. The Supreme Court affirmed the Court of Appeals determination that the plaintiffs had made a prima facie case but reversed on the question of whether the facts supported judgment for the defendant. Holding that the courts below had applied incorrect legal standards, this court remanded the case to the district court so that it could reapply the law to the facts before it on the record. On remand, the district court again ruled for the defendant. The court held that Knoll engaged in no self-dealing, no misfeasance, and no malfeasance to the detriment of the corporation. The plaintiffs again appealed to the Court of Appeals. The Court of Appeals reversed, holding that Knoll's failure to maintain employment records undermined his position to such an extent that, as a matter of law, he acted in bad faith. The Court of Appeals remanded the case to the district court for determination of damages. ISSUES: (1) Breach of fiduciary duty and (2) clear and convincing evidence HELD: Court held the district court applied the correct standards, which were supported by the evidence, and the Court of Appeals erroneously reversed the district court. Court found that Knoll provided evidence that a rational factfinder could apply to overcome the inference that the missing written data would be adverse to him. The Court of Appeals rejected or ignored the explicit testimony that Morehouse, the corporation’s ditch rider, worked far more than the required 40 hours a week. In so doing, the Court of Appeals may have implied that the adverse inference rule is an absolute rule: Knoll’s failure to keep hourly records constituted per se proof that Morehouse did not work the required number of hours and that Knoll acted in bad faith detrimental to the corporation. Or the Court of Appeals may have reevaluated Knoll’s and Morehouse’s testimony and concluded that the testimony was inadequate to overcome the inference of bad faith. Either approach is incorrect. The former analysis is wrong because
the adverse inference rule establishes a method of supporting a claim, not a form of strict liability. The failure to produce a record under the party’s control does not establish a breach of duty in itself. Knoll introduced substantial, credible evidence tending to show that he did not breach his duty. The latter analysis—which would be based on the quality of the evidence—is also wrong because it requires the appellate court to reweigh the evidence. The testimony regarding the number of hours that Morehouse worked was quite explicit, and the district court explained why it found that evidence credible. The district court properly carried out the task assigned to it on remand, and the Court of Appeals applied an incorrect standard of review. The opinion of the Court of Appeals was reversed. The decision of the district court was affirmed. STATUTES: No statutes cited ESTATES, ALLOCATION ORDER, AND JURISDICTION IN RE ESTATE OF BUTLER WYANDOTTE DISTRICT COURT – AFFIRMED COURT OF APPEALS – REVERSED AND APPEAL REINSTATED NO. 108,747 – FEBRUARY 20, 2015
FACTS: This case involved an allocation order and subsequent orders refusing to set it aside, issued in a Wyandotte County probate matter in 2007 and 2008, and whether those were final orders appealable within 30 days. The probate allocation order selected a Colgate-Palmolive Co. severance package on behalf of Kenneth Lee Butler, who was employed at the company’s closing Kansas City plant at the time he died intestate in October 2006. The order also divided Colgate-Palmolive’s obligations under the selected severance package between Kenneth’s father, Leo, and Kenneth’s estate. After a federal court interpleader proceeding filed by the administrator of Leo’s estate, the amounts allocated by the state pro tem district judge in the probate matter were left intact: $63,640.50 for Leo’s estate and $176,359.50 for Kenneth’s estate. There was no state court appeal from the allocation order. Nor did Leo or his estate ever file a demand against Kenneth’s estate in the state probate proceeding. Four years after the denial of Leo’s motion to set aside the allocation order, Kenneth’s son and only heir, Franklin Burch, successfully sought a partial distribution from Kenneth's estate. Leo’s estate attempted a late appeal of the order of partial distribution, arguing excusable neglect from lack of notice. The district court judge disallowed the late appeal, ruling that Leo’s estate had no interest in Kenneth’s estate to pursue. Leo’s estate filed a timely appeal from that order. The Court of Appeals ultimately dismissed www.ksbar.org | April 2015
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the appeal for lack of jurisdiction, although, along the way, it addressed the propriety of the district court’s ruling on the late appeal from the partial distribution order. In re Estate of Butler, 49 Kan. App. 2d 335. ISSUES: (1) Estates, (2) allocation order, and (3) jurisdiction HELD: Court held on the facts of this case, an allocation order issued by a pro tem district court judge in a probate matter was final and appealable under K.S.A. 2012 Supp. 592401(b) and K.S.A. 60-2102(a)(4), and failure to file a timely appeal eliminated any interest the decedent’s father possessed in the assets of his son’s estate. Under those circumstances, the district judge did not abuse his discretion by refusing to allow a late appeal for excusable neglect by the father’s estate, which was based on failure of notice of proceedings leading to an order of partial distribution of estate assets. Court affirmed the result in the district court that denied relief to the estate of the decedent’s father. STATUTES: K.S.A. 59-2401; and K.S.A. 60-260, -2102, -6103
Criminal STATE V. BETANCOURT SEDGWICK DISTRICT COURT – AFFIRMED NO. 108,944 – FEBRUARY 13, 2015
FACTS: Thirteen-year-old Migeul died from gunshot wounds suffered as he opened the door of his family’s home. The state charged four men with crimes related to Miguel’s death. One of those men, Betancourt, brought this appeal after a jury convicted him of premeditated first-degree murder and criminal discharge of a firearm at an occupied building. He raised five issues related to (1) the admission of his statements to law enforcement officers, (2) the admission of certain hearsay statements, (3) the trial court’s failure to give an instruction on eyewitness testimony, (4) sufficiency of the evidence, and (5) allegations of ineffective assistance of trial counsel.
ISSUES: (1) Motion to suppress, (2) eyewitness jury instruction, (3) sufficiency of evidence, and (4) ineffective assistance of counsel HELD: Court held that because Betancourt failed to establish that he requested the assistance of counsel during his interrogation, he failed to establish that he was denied his statutory or constitutional right to counsel during the interview. Court rejected Betancourt’s argument that the trial court erred in admitting hearsay statements under the coconspirator’s statement exception in K.S.A. 60-460(i)(2) and there was sufficient evidence to establish that the statements were made while the conspiracy was in progress. Court held the eyewitness identification was not crucial to the state’s case because Betancourt admitted to being present and therefore the failure to give it was not clearly erroneous. Court held there was sufficient evidence presented to the jury to prove premeditation and the intent to kill. Court lastly held that substantial evidence supported the trial court’s finding that trial counsel was ineffective because she failed to sufficiently communicate with Betancourt or that counsel was deficient in failing to consult as expert or present expert testimony regarding the effects of cocaine and alcohol. STATUTES: K.S.A. 22-3414, -4503, -4704; and K.S.A. 60-404, -460(i)(2) STATE V. BRAMMER MARSHALL DISTRICT COURT – AFFIRMED COURT OF APPEALS - AFFIRMED NO. 106,696 – FEBRUARY 20, 2015
FACTS: Brammer was convicted of involuntary manslaughter while driving under the influence (DUI), K.S.A. 21-3442. On appeal he a claimed jury was instructed on alternative means without sufficient evidence as to each means. Brammer also claimed that the district court erred in (a) giving a causation instruction different from Brammer’s proposed jury instruction, (b) giving a lesser included offense instruction that created an improper sequencing of jury’s consideration, and (c) not giving a reasonable doubt instruction for lesser included offense. The
Appellate Practice Reminders . . .
From the Appellate Court Clerk’s Office
Page Limits for Briefs A common source of confusion concerning briefs is the difference between the binding requirement and the total page limit allowed. If a brief exceeds 15 pages in length, at least 10 of the copies must be assembled with full-length spiral binders. See Rule 6.07(c) [2014 Kan. Ct. R. Annot. 51]. This part of the rule counts all pages. The next part of the rule details the page limitations for each type of brief. This part of the rule does not count the table of contents, appendix, or certificate of service towards the page limitation. See Rule 6.07(d). For example, the main brief filed by either an appellant or appellee may not exceed 50 pages. When counting the 50 pages, the litigant would not count the table of contents, appendix, or the certificate of service. Fax Filing Filing by fax is available for many pleadings as long as the pleading does not exceed 10 pages in length. The fax cover sheet and certificate of service are not included in the 10-page limit. See Rule 1.08(a) [2014 Kan. Ct. R. Annot. 8]. Petitions for review and briefs, however, cannot be fax filed. When filing by fax, litigants only need to fax one copy of the pleading. See Rule 1.08(d). For further information, call the Clerk’s Office at (785) 296-3229 and ask to speak with Heather L. Smith, Clerk of the Appellate Courts, or Jason Oldham, Chief Deputy Clerk of the Appellate Courts. 30
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Appellate Decisions
Court of Appeals affirmed in an unpublished opinion based on verdict form listing only one alleged means, Brammer’s failure to submit written proposed proximate cause instruction in advance of trial, and no clear instructional error by district court. Brammer’s petition for review was granted. ISSUES: (1) No alternative means instructed and (2) jury instruction challenges HELD: No merit to Brammer’s alternative means argument, and no need to rely on verdict form. Under rationale in State v. Chiffon, 297 Kan. 689 (2013), K.S.A. 21-3442 identifies three factual circumstances in which a material element of the crime may be proven. It does not create alternative means of committing involuntary manslaughter while DUI. Based on K.S.A. 22-3414(3) and State v. Waggoner, 297 Kan. 94 (2013), an attorney must object on the record to the giving or omission of an instruction before the jury retires to consider the verdict, with counsel clearly stating the reason for the objection. The statutory mandate of K.S.A. 22-3414(3) is not satisfied by merely having filed an earlier pretrial request for a different jury instruction. No clear error was found in district court’s failure to give any of Brammer’s proposed instructions. STATUTES: K.S.A. 8-2504(c); K.S.A. 20-3018(b); K.S.A. 21-3109, -3442; K.S.A. 22-3414(3); K.S.A. 60-2101(b); and K.S.A. 2009 Supp. 8-1567 STATE V. JOLLY SALINE DISTRICT COURT – AFFIRMED COURT OF APPEALS – REVERSED NO. 106,680 – FEBRUARY 20, 2015
FACTS: On February 11, 2008, Jolly pleaded guilty to one count of rape of a child less than 14 years of age under K.S.A.
21-3502(a)(2) and (c). The sentencing judge found substantial and compelling reasons to grant Jolly’s departure request and sentenced him to 300 months’ imprisonment. Jolly appealed his sentence, arguing that the district court, in granting his departure request, failed to impose a sentence pursuant to the sentencing guidelines. The Supreme Court agreed and remanded the case for resentencing. See State v. Jolly, 291 Kan. 842 (2011). Following remand, the district court again granted Jolly’s request for a departure. He was sentenced to 165 months’ imprisonment rather than the mandatory minimum of 25 years to life pursuant to K.S.A. 21-4643(d), the statute known as Jessica’s Law. The state appealed, arguing the district court abused its discretion in concluding there were substantial and compelling reasons to depart. Jolly sought review of the divided Court of Appeals opinion that concluded there were no substantial and compelling reasons for granting a departure. Jolly contended: (1) the Court of Appeals erroneously considered aggravating factors when considering the departure under K.S.A. 21-4643(d); and, (2) the Court of Appeals substituted its own findings for those made by the district court. ISSUES: (1) Jessica’s Law and (2) departure HELD: Court held that the proper statutory method when considering a departure from a Jessica’s Law sentence is for the district court first to review the mitigating circumstances without any attempt to weigh them against any aggravating circumstances. Then, in considering the facts of the case, the court determines whether the mitigating circumstances rise to the level of substantial and compelling reasons to depart from the otherwise mandatory sentence. Finally, if substantial and compelling reasons are found for a departure to a sentence
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within the appropriate sentencing guidelines, the district court must state on the record those substantial and compelling reasons. Court held the district court applied the correct analysis, and the Court of Appeals engaged in an inappropriate weighing of the factors. Court held the district court did not err in granting a departure based on Jolly’s lack of criminal history, his taking responsibility for the crimes, and a psychology report which showed that Jolly displayed no signs of mental disease or defect, that he had no history of alcohol or drug abuse, that he had long employment and a stable relationship with his wife, that he exhibited no signs of pedophilia or sexual predation, that he was unlikely to reoffend, and that he might be a good candidate for probation with psychotherapy and medication. STATUTE: K.S.A. 21-3502, -3504, -4625, -4626, -4643, -4716 STATE V. LEWIS JOHNSON DISTRICT COURT – CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS NO. 108,310 – FEBRUARY 20, 2015
FACTS: After a bench trial, Lewis was found guilty of felony murder and aggravated robbery of Tyler. Lewis received a hard 20 life sentence for the felony-murder conviction and a consecutive 61-month prison sentence for the aggravated robbery conviction. The district court also imposed lifetime parole for both convictions. Lewis argued: (1) the state presented insufficient evidence to convict him of either felony murder or aggravated robbery; (2) he did not knowingly and voluntarily waive his right to a jury trial; (3) the district court erred in denying his motion to dismiss the charges against him based on the alleged destruction of potentially exculpatory evidence; (4) the district court erred in imposing lifetime parole in connection with the aggravated robbery conviction; and (5) the cumulative effect of the alleged trial errors deprived him of a fair trial. ISSUES: (1) Notice of appeal, (2) sufficiency of the evidence, (3) waiver of jury trial, (4) destruction of evidence, (5) lifetime parole, and (6) cumulative error HELD: First, Court held that the notice of appeal was sufficient to confer jurisdiction over all the issues, not just sentencing. Second, Court held there was sufficient evidence, viewed in the light most favorable to the state, that showed a rational factfinder could have found that Lewis robbed and shot Tyler and was guilty beyond a reasonable doubt. Third, Court held the transcript of the waiver hearing indicated that Lewis knew and understood that he had a right to a jury trial and that he voluntarily waived that right so his case could be decided by a district court judge. Fourth, Court found that substantial competent evidence supported the district court’s finding that the state did not act in bad faith by failing to preserve any images that may have been recorded by the security system in the vehicle in which Tyler was shot. Court vacated the lifetime parole sentence and remanded for imposition of the correct term of postrelease. Court also found no errors to establish cumulative error. STATUTES: K.S.A. 21-3427; and K.S.A. 22-3403, -3504 32
The Journal of the Kansas Bar Association
CITY OF WICHITA V. MOLITOR SEDGWICK DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS – REVERSED NO. 104,940 – JANUARY 30, 2015
FACTS: An officer stopped the vehicle driven by Molitor and conducted DUI investigation. Molitor failed horizontal gaze nystagmus (HGN) test, passed walk-and-turn and oneleg-stand tests, and then consented to officer’s request for a preliminary breath test (PBT). PBT results led to Molitor’s arrest and conviction for DUI. In appeal to district court, Molitor filed motion to suppress HGN results as inadmissible pursuant to State v. Chastain, 265 Kan. 16 (1998), and State v. Witte, 251 Kan. 313 (1992). District court denied the motion, ruling HGN results could be admitted to establish officer’s reasonable suspicion of DUI even though the results were inadmissible at trial. Waggoner appealed. Court of Appeals affirmed that HGN test could be considered as part of totality of circumstances in determining whether officer had requisite reasonable suspicion to request a PBT, and held that the officer had enough other evidence to form a reasonable suspicion of DUI even if HGN test results were excluded. 46 Kan. App. 2d 958 (2012). Supreme Court granted Waggoner’s petition for review in which he argued that the Frye reliability test had to be met before HGN test results could be used for any purpose, and sought review of panel’s determination that reasonable suspicion existed without considering the HGN test results. ISSUES: (1) Admissibility of HGN test results and (2) harmless error HELD: The HGN test is based on scientific principles. Before HGN test results may be considered by a Kansas court for any purpose, the state must establish the reliability of such a test in district court. Here, district court and Court of Appeals erred in allowing the state to rely on scientifically unproved HGN test results to establish reasonable suspicion that permitted the officer to request that Molitor submit to a PBT pursuant to K.S.A. 2010 Supp. 8-1012(b). Reviewing facts other than HGN test results in this case, the consideration of HGN testing was not harmless error. An appellate court should not deviate from criteria and scoring of National Highway Traffic Safety Administration’s standardized testing model to glean reasonable suspicion of driving under the influence from driver’s successful completion of standardized field sobriety tests. Determinations by district court and Court of Appeals, that officer possessed the requisite reasonable suspicion that Molitor was operating a vehicle while under the influence of alcohol when officer requested that Molitor submit to a PBT, are reversed. CONCURRENCE AND DISSENT (Biles, J.) (joined by Nuss, C.J. and Rosen, J.): Agrees with majority’s holding that it was error to allow state to rely on HGN test results to establish reasonable suspicion for officer’s request for a PBT because state has not established the test’s reliability as required by Witte. Disagrees with majority’s harmless error analysis, and would affirm Court of Appeals on this point and affirm the conviction. Majority is setting reasonable suspicion standard too high. The officer in this case observed evidence indicating impaired driving and intoxication, and was justified under the statute to request the PBT.
Appellate Decisions
STATUTES: K.S.A. 2014 Supp. 60-456(b); K.S.A. 2010 Supp. 8-1012(b), -1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 8-1567(a)(1); K.S.A. 20-3018(b); K.S.A. 60-402, -456, -2101(b); and K.S.A. 8-1012 (Furse)
Court of Appeals Civil
WORKERS COMPENSATION AND DAY-TO-DAY LIVING MOORE V. VENTURE CORPORATION ET AL. WORKERS COMPENSATION BOARD – AFFIRMED NO. 110,883 – JANUARY 30, 2015
FACTS: Moore injured his knee at his road-construction job, either when he stepped off a backhoe or shortly thereafter when walking around the backhoe. An administrative law judge denied his request for workers compensation, finding that his injury was the result of walking, which she considered a normal activity of day-to-day living not covered by the Workers Compensation Act (Act). The Workers Compensation Board reversed, finding that Moore’s injury arose out of and in the course of his employment because stepping down and walking around the backhoe were part of a single job task—operating a backhoe—that was not a normal activity of day-to-day living. ISSUES: (1) Workers compensation and (2) day-to-day living HELD: Court held that the case law interpreting the pre2011 version of the Act remains applicable when determining whether a worker’s injury arose out of and in the course of employment or was the result of the normal activities of day-today living. Under Bryant v. Midwest Staff Solutions Inc., 292 Kan. 585, 596, 257 P.3d 255 (2011), in determining whether an injury arose out of the course of employment, the primary question is whether the activity that resulted in the injury is connected to, or is inherent in, the performance of the job. Court found that substantial evidence supported the Board’s finding. In this case, operating the backhoe was Moore's job duty, stepping down from and walking around the backhoe was part of the work required to operate the backhoe, and no evidence suggested that Moore’s injury happened outside the time frame in which he was operating the backhoe. We therefore affirm the Board’s decision that Moore’s injury was covered under the Act and not the result of a normal activity of day-to-day living. STATUTES: K.S.A. 44-508, -556; and K.S.A. 77-621
Criminal STATE V. BELONE DOUGLAS DISTRICT COURT – AFFIRMED NO. 109,742 – FEBRURARY 20, 2015
FACTS: Belone’s 2007 conviction for second-degree murder and other crimes related to the beating death of his girlfriend Begay was reversed and remanded for new trial, holding the admission of Begay’s statements to officer Brixius violated Belone’s right of confrontation under Giles v. California, 554
U.S. 353 (2008). State v. Belone, 295 Kan. 499 (2012). On retrial, Belone was convicted of second-degree murder and violation of protective order. He appealed arguing: (1) admission of Belone’s testimony from first trial violated his right to remain silent, and was procedurally barred by state’s failure to endorse him as witness in the second trial; (2) his conviction for unintentional second-degree murder was inconsistent with jury’s not-guilty finding on lesser included offense of involuntary manslaughter; (3) Brixius’ testimony at second trial violated Belone’s right to confrontation and was inadmissible evidence; (4) Begay’s statements to nurses implicating Belone as her attacker constituted testimonial hearsay and violated his right to confrontation; (5) district court erred in denying Belone’s motion for mistrial after state improperly admitted bad character evidence in violation of K.S.A. 60-447; (6) state failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and (7) district court unconstitutionally enhanced Belone’s sentence based on criminal history not proved to jury. ISSUES: (1) Admission of Belone’s prior trial testimony, (2) inconsistent verdicts, (3) inferences from officer’s testimony, (4) admissibility of Begay’s statements to nurses, (5) motion for mistrial, (6) disclosing exculpatory evidence, and (7) criminal history HELD: Holding in Harrison v. United States, 392 U.S. 219 (1968), is construed to preclude the state from introducing a defendant’s prior testimony in a subsequent trial only when the prior testimony was compelled by the improper admission of evidence that was illegally obtained. Here, there was no evidence that Begay’s statements to police were coerced or otherwise obtained in violation of Belone’s statutory or constitutional rights, thus Belone’s testimony from first trial did not constitute fruit of poisonous tree subject to suppression at subsequent trial under the rule announced in Harrison. Belone’s alternative statutory argument also failed. There was no showing that Belone was unfairly surprised when state gave notice it intended to read his prior testimony into evidence, or that it deprived Belone of opportunity to adequately prepare his defense. Belone’s conviction for unintentional second-degree murder is not inconsistent with jury’s finding he was not guilty of involuntary manslaughter, and Belone does not allege insufficient evidence supports his unintentional second-degree murder conviction. No merit to Belone’s separate argument that jury’s finding of guilt was not truly unanimous. The confrontation challenge to admission of Brixius’ testimony was not reached because the issue was not preserved for appeal. Kansas and United States cases were reviewed and applied. Under facts in this case, district court correctly found Begay’s www.ksbar.org | April 2015
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Appellate Decisions
statements to nurses were not testimonial. There was no violation of Belone’s right of confrontation by the admission of those statements. At trial Belone argued testimony was inadmissible under K.S.A. 60-455 as a prior bad act. Challenge to this testimony as improper character evidence under K.S.A. 60-477 was not preserved for appeal, nor did challenged testimony constitute character evidence tending to prove Belone was untrustworthy or violent. Under the facts in the case, the challenged information did not constitute exculpatory evidence, and no evidence established the state ever suppressed the evidence. Criminal history claim was defeated by Kansas Supreme Court precedent. STATUTES: K.S.A. 213201(c), -3402(b), -3404(a); K.S.A. 22-3201(g), -3213(2), -3423(1)(c); and K.S.A. 60-404, -447, -447(b), -447(b)(ii), -455
structing the jury and that he was denied a fair trial based on prosecutorial misconduct and cumulative error. ISSUES: (1) Jury selection, (2) jury instructions, (3) prosecutorial misconduct, and (4) cumulative error HELD: Court reversed Crabb’s conviction based on the hotbox jury selection issue. Court held that the hot-box method as opposed the method outlined in K.S.A. 22-3411a is erroneous because it requires counsel to exercise their peremptory challenges piecemeal rather than in comparison to the entire panel and after the parties have exercised all peremptory challenges and the final juror is seated in the jury box, that final juror may only be removed for cause. The court also stated the state failed to persuade the court that the error was harmless or make an affirmative showing that the jury selection error did not affect Crabb’s substantive rights. Court did not address Crabb’s other issues. STATUTES: K.S.A. 22-3411a, -3412; and K.S.A. 60-261
STATE V. CRABB SHAWNEE DISTRICT COURT – REVERSED AND REMANDED NO. 110,673 – FEBRUARY 6, 2015
STATE V. EVANS JOHNSON DISTRICT COURT – REVERSED AND REMANDED NO. 111,143 – FEBRUARY 13, 2014
FACTS: Crabb appealed his conviction of one count of interference with law enforcement for running from a police officer while Crabb was outside of the area of his parole without permission. Crabb claims the district court committed reversible error by using what is commonly known as the “hot-box” method of jury selection over Crabb’s objection instead of using the statutory method of jury selection set forth in K.S.A. 22-3411a. He also argues that the district court erred in in-
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The Journal of the Kansas Bar Association
FACTS: Prior to trial on various felony charges, Evans filed motion to dismiss charges for criminal possession of firearm and for possession of marijuana after a prior conviction. Citing State v. Pollard, 273 Kan. 706 (2002), Evans argued his successful completion of probation on prior Missouri offenses in which he had entered guilty pleas and received suspended sentences did not constitute convictions under Missouri law. District court agreed and dismissed
Appellate Decisions
pending charges for which a predicate offense had not been established. State appealed. ISSUE: Prior convictions for predicate offenses HELD: Pollard made clear that Kansas law controls the determination of what constitutes a conviction for predicate offenses. Kansas statutes clearly define a conviction as including a proceeding where a defendant pleads guilty and is found guilty by a tribunal as a result of the plea even if a sentence has not yet been imposed. District court erred in using Missouri law in determining whether Evans’ crimes in Missouri constituted convictions in this case. Reversed and remanded. STATUTES: K.S.A. 2013 Supp. 21-5111(d), -5706, -5706(b), -5706(b)(4), -5706(c)(2)(A), -5706(c)(2)(B), -5304, -6304(a)(1), -6811(e); K.S.A. 2013 Supp. 65-4105(d) (16); K.S.A. 21-3110(4); K.S.A. 79-5208; and K.S.A. 2001 Supp. 21-4204(a)(3) STATE V. RUIZ SEDGWICK DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, AND REMANDED NO. 111,005 – FEBRUARY 20, 2015
FACTS: Ruiz entered no contest plea to attempted aggravated sexual battery. Prior to sentencing, Ruiz filed motion to withdraw plea. He maintained his innocence and claimed defense counsel’s failure to prepare and investigate rendered counsel incompetent to advise Ruiz about entering plea. Ruiz also claimed, defense counsel had assured him that plea hearing would allow him to address court to argue for finding of innocence. District court held evidentiary hearing and found Ruiz knowingly and voluntarily entered plea. At sentencing, defense counsel stipulated to Ruiz’s criminal history but objected to use of 1991 California convictions to enhance sentence. Ruiz appealed, claiming in part that district court erred by denying presentence motion to withdraw plea, and by classifying the 1991 California convictions involving child sex offenses as person offenses for criminal history purposes. State argued Ruiz invited error in calculation of criminal history by defense counsel’s stipulation to criminal history at sentencing hearing. ISSUES: (1) Motion to withdraw plea and (2) criminal history calculation HELD: Considering all evidence, there was no abuse of district court’s discretion in finding no credible evidence that defense counsel’s representation was deficient, or in finding that Ruiz’s plea was knowingly and voluntarily entered. Kansas Supreme Court and inconsistent Court of Appeals decisions addressing stipulations to criminal history were reviewed. Here, invited error doctrine did not apply to bar Ruiz’ appeal. Ruiz did not personally admit his criminal history in open court, nor was he requested to do so by the judge. And under rationale in State v. Weber, 297 Kan. 805 (2013), and State v. Donaldson, 35 Kan. App. 2d (2006), Ruiz challenged only the legal effect of the classification of his prior out-ofstate crimes as person offenses. Applying the holding in State v. Murdock, 299 Kan. 312 (2014) (modified Sept. 19, 2014), Ruiz’s 1991 California convictions must be classified as nonperson offenses for criminal history purposes. Sentence is vacated. Remanded for resentencing. STATUTES: K.S.A. 2014 Supp. 21-6814(a); K.S.A. 2014 Supp. 22-3210(d)(1); K.S.A. 21-4701 et seq., -4711, -4715(a), -4721(e); and K.S.A. 22-3504, -3504(1)
STATE V. WAGGONER DOUGLAS DISTRICT COURT – AFFIRMED NO. 111,548 – JANUARY 30, 2015
FACTS: Waggoner was convicted of possession of methamphetamine and marijuana. On appeal he claimed that the district court erred in classifying an April 1993 Kansas juvenile adjudication as a person felony for criminal history purposes. Waggoner argued that the holding in State v. Murdock, 299 Kan. 312 (2014), that out-of-state convictions committed prior to enactment of Kansas Sentencing Guidelines Act (KSGA) must be classified as nonperson offenses, applies to in-state pre-KSGA convictions as well. ISSUE: Criminal history score and pre-KSGA Kansas convictions HELD: Murdock and State v. Williams, 291 Kan. 554 (2010), were discussed. As modified by Supreme Court order of September 19, 2014, Murdock is limited to classification for criminal history purposes of out-of-state convictions committed prior to enactment of KSGA. Under the facts in this case, the district court did not err in classifying Waggoner’s prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes. STATUTES: K.S.A. 2014 Supp. 21-6804(c), -6809, -6810(d)(6), -6811(e), -6811(g); K.S.A. 21-4710 et seq., -4710(d)(8), -4711(e); and K.S.A. 21-3301(c)(3), -3414 (Ensley 1988)
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Save the Date May 5
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Legal Ethics is No Laughing Matter: What Lawyer Jokes Can Teach Us About the Profession Sean Carter Webinar Series Approved for 1.0 CLE credit hour, including 1.0 hour ethics and professionalism credit, in Kansas
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Positions Available Concordia Firm Seeking Associate. North Central Kansas law firm of Condray & Thompson LLC, recently voted “Best Law Firm of Concordia,” seeks an outgoing associate attorney with at least three years’ experience. Candidates must have good academic credentials, strong written and oral communication skills, and experience with a general practice office handling corporations, estate planning, real estate, title insurance, administrative law, and tax planning and preparation. They must possess a good work ethic and be comfortable interacting with the community. They must also be happy living and working long term in a rural community of 5,300 people. Please send resumes and cover letters to Condray & Thompson LLC at PO Box 407, Concordia, KS 66901, or email them to condraylaw@condraylaw.com. All inquiries will be kept confidential. County Counselor Sought. Sedgwick County is seeking a county counselor to support and advise the Board of County Commissioners, the county manager, the legal department and others as needed to provide legal advice and opinions on a wide variety of municipal laws. The selected Attorney will have the capacity to analyze, appraise and organize facts, evidence, and precedents concerned in difficult and complex cases and to present such material in clear and logical form in oral and written presentations, briefs, opinions, orders, or decisions. The county counselor will have the ability to understand and develop technology standards that comply with the Kansas Code of Professional Responsibility. The county counselor must have knowledge of county resolution and charter provisions, particularly as relating to the authority and functions of county department, agencies and boards. Applications are to be submitted through www.HRePartners.com. Go West Young Lawyer. After nearly 39 years of solo law practice in northwest Kansas, I am ready to sell my practice and move on to other pursuits. My office building and tenants, client files, and office equipment will soon be ready for you to take over. There are nine county courthouses within an hour’s drive. A run for county attorney will be available in August 2016. My secretary might even be persuaded to stay on. This has been a great place to live and work. Interested candidates should send resume and cover letter by email or mail to: Stover Law Office, PO Box 275, Quinter, KS 67752, or Stoverlaw@hotmail.com. All inquires will be kept confidential. 38
Lateral Attorney. McDowell Rice Smith Buchanan P.C. is actively seeking lateral mid-senior level candidates with established practices who are interested in continuing to serve their existing clients but also interested in providing depth and experience to the firm in the areas of commercial, business, dispute resolution, tort and professional liability litigation. Minimum requirements include: • Licensed in Missouri and Kansas • Excellent academic credentials • Exceptional verbal and written communication skills • Strong interpersonal skills • Capability and continued potential to retain and develop business Please forward your introductory letter and resume for immediate consideration to: korme@mcdowellrice.com. Office Manager Wanted. Medium-sized Wichita law firm seeks a dynamic and highly organized office manager to have overall responsibility for day-to-day operations and non-attorney personnel. The successful candidate will administer the operations of the office and will be expected to enhance law office management. The ideal candidate will have experience in human resources, computer technology and marketing. Minimum of a bachelor’s degree from an accredited university and 2 years’ administrative experience. Salary commensurate with experience. Send resume to: Selection Process; Attn: Linda S. Parks, 100 N. Broadway, Suite 950, Wichita KS 67202 or parks@ hitefanning.com.
Attorney Services Appeals. Experienced trial and appellate attorney available for state and federal appellate case referrals. Licensed before state courts of Kansas and Colorado, U.S. Supreme Court, and various circuit courts of appeals including the Tenth Circuit Court of Appeals. Listed, Who's Who in American Law. Work featured in The New York Times and The Washington Post. Author of numerous legal articles and Am. Jur. Trials treatise on constitutional tort law. Trial perspective at the appellate court level. Reasonable rates, fee arrangements. Contact John B. Roesler, Attorney at Law, Post Office Box 604, Lawrence, Kansas 66044, (303) 9292244, jroesler@lawyer.com. Contract Brief Writing. Experienced brief writer is willing to take in appellate proceedings for any civil matter. Attorney has briefed approximately 40 cases before
The Journal of the Kansas Bar Association
the Kansas Court of Appeals and 15 briefs before the 10th Circuit, both with excellent results. If you simply don’t have the time to help your clients after the final judgment comes down, call or email to learn more. Jennifer Hill, (316) 263-5851 or email jhill@mcdonaldtinker.com. Contract Brief Writing. Former federal law clerk and Court of Appeals staff attorney available to handle appeals and motions. Attorney has briefed numerous appeals in both the Kansas and federal appellate courts. Contact me if you need a quality brief. Michael Jilka, (785) 218-2999 or email mjilka@jilkalaw.com. Contract Brief Writing. Former research attorney for Kansas Court of Appeals judge, former appellate division assistant district attorney in Sedgwick County. Writing background includes journalism degree, Kansas City Times intern, U.D.K. beat reporter and grant writer. I have written more than 50 appeals and had approximately 30 oral arguments in the Kansas Court of Appeals and Kansas Supreme Court. I have criminal and civil litigation experience, in addition to civil and criminal appellate experience. I welcome both civil and criminal appeals. Rachelle Worrall, (913) 397-6333, rwlaw310@ outlook.com. Estate & Trust Litigation. Available to assist you in probate and trust litigation in Kansas, Missouri and other states. www. nicholsjilka.com. QDRO Drafting. I am a Kansas attorney and former pension plan administrator with years of experience in employee benefit law. My services are available to draft your QDROs, communicate with the retirement plans, and assist with qualification of your DROs or other retirement plan matters. Let me help you and your client through this technically difficult process. For more information call Curtis G. Barnhill at (785) 856-1628 or email cgb@barnhillatlaw.com. Veterans Services. Do you want to better serve your veteran clients without going to the trouble of dealing with the VA? I am a VA-accredited attorney with extensive experience applying for various VA benefits, including Improved Pension. I regularly consult with attorneys (and their clients) about the various services attorneys can offer their clients to help qualify veterans and their families for various VA programs. As soon as a client is in position to qualify, I can further assist by handling the entire application to the VA for you. For more information about my various consultation and application ser-
classified advertisements vices, please contact the Law Office of Scott W. Sexton P.A. at (785) 409-5228.
For Sale Kansas Digest Books. Full set of West’s Kansas Digest books updated through July 15, 2014. Asking $900 for the entire set. If interested please contact Ashley Augustine at (785) 625-8040 or ashley.augustine@eaglecom.net.
Law Office Software Juris DOC Pro Law Office Software. Free use of Juris DOC Pro law office software for 60 days, to see if it may be useful in your practice, by saving time and helping to increase billable hours each month. Application contains child support worksheet for both Kansas and Missouri, in addition to an extensive library of other forms connected to a database. If interested, download the trial version at http://www.jurisdocpro. com/ then request a 60-day license key from Tom Harris at gtharris@sbcglobal.net.
Office Space Available Class A Law Office in Downtown Olathe. Two large office spaces available – located across the street from the Johnson County Courthouse in the prestigious Park-Cherry Building. Services available include telephone, Internet, copier/ scanner/fax, two conference rooms, file space, full kitchen with eating area. Space for staff person, if needed. Call Kay Martin or Jadh Kerr for more information at (913) 782-1000. Downtown Overland Park Office Space for Rent. Free parking, reception area, kitchen, and conference room available for tenant use. The offices are in walking distance of coffee shops, restaurants and retail stores. 2,970 sf of space available. Easy access to Metcalf, I-35, I-635. Contact Tim Gates at Agnes Gates Realty (913) 6455900 or timothygates@yahoo.com.
Office Sharing/Office for Lease— Country Club Plaza, Kansas City. Office sharing or office lease opportunity on the Country Club Plaza in a Class A high profile corner building with ample free public parking for clients. 200 to 11,000 square feet available. Window offices available, high-speed DSL, printer, copier, facsimile, scanning, telephone, kitchen facilities, reception area, and multiple conference rooms. Offices are state-of-the-art with award-winning interior finish and design. Dedicated area available for your assistant if needed. Reasonable rent. No long-term lease required. Some possibility of business referrals depending on your area of practice. We are an AV-rated litigation firm with full management, accounting, research, and other support services. We would consider cost sharing these services with a compatible transactional, tax, and/or real estate practice. Professional, collegial, friendly atmosphere with other attorneys. Confidential inquiries can be made to Michael Grier at mgrier@ wardengrier.com. Office Space Available. Great space for attorney, businessperson, or CPA. Up to 3,000 square feet available, conference room, security system, easy access to downtown Topeka or interstate. Call Bob Evenson at (785) 231-7987. Office Space for Attorney. AV-rated downtown Topeka law firm has spacious window office available for lease. Reception area, free parking, client parking, kitchen, two conference rooms, printers and copiers, space for staff. Prime location – walking distance to courthouse, City Hall, State Capitol and state offices. Would consider office-sharing or of counsel arrangement. Email shery@hensonlawoffice.com. Office Space for Lease. Located at 921 SW Topeka Blvd., which offers quick and easy access to downtown Topeka including the County, Municipal, and Federal Courthouses; State Capitol Building; Docking State Office Building; Curtis Building; and more. There is available space on the first or second floor of the building, which includes individual offices and/or office suites.
The building also includes a beautiful glass atrium sitting room used as an art display. Provided services include private parking and receptionist services. Please call Swinnen & Associates LLC at (785) 272-4878 for more information and to schedule an appointment to view the space. Professional Office Building For Sale or Lease Near 28th & Fairlawn in SW Topeka. A 10,000 SF, two-story building recently remodeled with new HVAC and lighting systems. Building could be used as a whole or easily divided into four or more work areas to accommodate numerous professional organizations. Convenient to the Hwy Loop for quick access to all city, state, and court buildings, turnpike and the mall areas. Great food and other support close at hand. Call Dick May at (785) 633-2217 or (785) 267-8632. Professional Offices, West of Plaza. Two corner offices and reception area/3rd office, plus kitchenette and bathroom. Windows, hardwood floors, new paint throughout. $1,150/month. Eleven-year tenant just vacated. Contact (816) 753-2823 for more information. Professional Office Space for Lease or Sale. Newly vacated space at 79th and Quivira, Lenexa, KS. Great rates, and will consider valuable upfront lease concessions for high quality, long term lease. Office is located in a commercial center that is for sale. Excellent income-producing investment opportunity for an owner-occupant. Attractive owner financing available for qualified buyer. Call (816) 805-6415. We Have the Space You Need at the Price You Want! We have offices available in all sizes from 200 sq. ft. to 8,000, or no office at all under our virtual program. We offer a cost-effective solution for small- to medium-sized companies and branch offices with very little upfront cost and flexible lease terms. You can typically move into your office in a day and have access to a professional environment and services without all the overhead. Please visit us at www. officetechcenter.us.
www.ksbar.org | April 2015
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