Nuts and bolts cle book by The State Bar of South Dakota

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CLE

The State Bar of South Dakota and The Committee on Continuing Legal Education PRESENT

Ole Olesen, Chair

Friday, October 27, 2017 Drifterâ&#x20AC;&#x2122;s Bar & Grill Ft. Pierre, South Dakota __________________________________________________________________________________________________

CLE

The State Bar of South Dakota and The Committee on Continuing Legal Education

Present: Ole Olesen, Chair

NUTS and BOLTS October 27, 2017 9:00am - 2:00pm 9:00 – 9:15 9:15 – 9:30 9:30 – 10:30 10:30 – 11:30

Drifter’s Bar & Grille Ft. Pierre, SD

REGISTRATION: Free to Active SD Bar Members, Others: $100 Introduction to the Young Lawyers Section - Abigail Howard, YLS President, State’s Attorney’s Office, Brookings Getting Started with Civil Procedure - Nicole Tupman, Lindquist & Vennum, Sioux Falls Writing your first appeal to the SDSC - Meghann Joyce, Boyce Law Firm, Sioux Falls

11:30 – 11:45 Break – Food Served 11:45 – 12:45

Lunch: Unique Issues They Didn’t Prepare You For In Law School - Ashley Anson, Attorney at Law, Wessington Springs

12:45 – 1:00 Finding Balance in Your New Practice - Tamara Nash, Attorney General’s Office, Sioux Falls 1:00 – 2:00 Criminal Defense Basics - Alecia Fuller, Pennington Co. Public Defender’s Office, Rapid City

The Statewide Swearing-In Ceremony Starts at 3 pm. If you wish to have this program submitted to a mandatory CLE jurisdiction for Continuing Legal Education credit, please see Tracie (tracie.bradford@sdbar.net) or Nicole (nicole.ogan@sdbar.net) at the registration desk or drop them an email.

Introduction to the Young Lawyers Section Abigail Howard, YLS President Brookings County States Attorney Brookings, SD

Abbey was raised in Volga, South Dakota, and attended South Dakota State University where she earned her B.A. in Political Science and Spanish. Abbey went on to obtain her J.D. from the University of South Dakota School of Law. In 2011, Abbey joined the general practice firm of Fite, Pierce & Ronning Law Office in Brookings, where she handled Bankruptcy Trustee work, Criminal Defense, Trusts, Wills & Probates, and other general practice matters. In 2013, Abbey joined the Brookings County States Attorneyâ&#x20AC;&#x2122;s Office as a Deputy States Attorney. In 2015, she was promoted to Chief Deputy States Attorney. In 2016, she was elected as the Brookings County States Attorney, taking office in January of 2017, where she oversees the criminal prosecutions in a county of approximately 35,000. Outside of work, Abbey enjoys serving her community by serving on the Advisory Board for the Brookings Boys & Girls Club, serving as the Co-Chair of the Eastern Plains Sexual Assault Response Team, serving on the Board of Directors for the South Dakota States Attorneyâ&#x20AC;&#x2122;s Association, and serving as the President of the Young Lawyer Section of the State Bar for the 2017-2018 year.

PRESIDENT ABIGAIL HOWARD States Attorney’s Office Brookings ahoward@brookingscountysd.gov

4TH CIRCUIT ERIC DAVIS City of Spearfish Spearfish eric.davis@cityofspearfish.com

VICE PRESIDENT TAMARA NASH Attorney General’s Office Sioux Falls Tamara.Nash@state.sd.us

5TH CIRCUIT OLE OLESEN Siegel, Barnett, & Schutz, LLP Aberdeen oolesen@sbslaw.net

SECRETARY/TREASURER NATHAN CHICOINE Gunderson Palmer Nelson Ashmore, LLP Rapid City nchicoine@gpna.com

6TH CIRCUIT CARRIE SRSTKA Attorney General’s Office Pierre caroline.srstka@state.sd.us

1ST CIRCUIT JUSTIN JOHNSON City Attorney’s Office Mitchell jjohnson@cityofmitchell.org 2ND CIRCUIT JASON KRAUSE The Krause Law Firm, P.C. Sioux Falls jason@thekrauselawfirm.com 3RD CIRCUIT BRITTANY MCKNIGHT States Attorney’s Office Brookings bmcknight@brookingscountysd.gov

7TH CIRCUIT KASSIE MCKIE SHIFFERMILLER Lynn, Jackson, Shultz, & Lebrun, PC Rapid City kshiffermiller@lynnjackson.com AT LARGE NICOLE TUPMAN Lindquist & Vennum Sioux Falls ntupman@lindquist.com LAW STUDENT MORGAN NELSON University South Dakota School of Law SBA President, USD School of Law Morgan.Nelson@coyotes.usd.edu

Notes:____________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________Â _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________ _________________________________________________________________________________________

Getting Started with Civil Procedure Nicole Tupman Lindquist & Vennum Sioux Falls Nicole Tupman is an attorney at the Sioux Falls office of Lindquist & Vennum, LLP, where her practice includes civil and regulatory litigation. Nicole also assist clients in employment matters, negotiating contracts, and providing legal guidance for business decisions. After graduating from St. Louis University School of Law in 2010, Nicole clerked for the Honorable Karen E. Schreier with the District Court for the District of South Dakota for two years. As a result of her clerkship, Nicole is well-versed in federal practice and procedure. Nicole lives in Sioux Falls with her husband, two young children, and two dogs.

Primer on Civil Litigation Nuts and Bolts CLE October 27, 2017

Starting an Action • Determine if any prerequisites are necessary before suit • Demand letter – accounting, shareholder actions • Conference

• Determine causes of action • Research causes of action • Factors v. elements • South Dakota civil jury instructions

Statute of limitations • Ensure that statute of limitations has not passed or a tolling provision applies • SDCL Ch. 15‐2 is the statute of limitations for SD • Make review of statute of limitations part of your intake process

Complaint Rules

Determine if you need a complaint, petition, or application •

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Some causes of action require a petition •

Guardianship

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Conservatorship

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Trust disputes

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Eminent domain

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These are usually verified and signed by the client!

Some causes of action require an application •

Probate

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Application to compel arbitration

Most civil causes of action are by a complaint (verified complaint)

General rules • Need a separate statement in each paragraph. SDCL 15‐ 6‐10(b). • Adoption by reference of other facts. SDCL 15‐6‐10(c). • Do not use Roman numerals for paragraphs in a complaint. SDCL 15‐6‐10(d). • Size 12 font or larger, normal 1 inch margins, standard paper. SDCL 15‐6‐10(e). • Limit headers and footers – check with your court.

Bare bones of a complaint • Parties • Jurisdiction and venue • Factual background • Causes of action • Prayer for relief

Pleading parties •

Name

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Citizenship, domicile, or residence

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Define for ease of reference

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Ex: Plaintiff, Bank Everywhere, LLC (“Plaintiff” or “Creditor”), is a South Dakota limited liability company with a principal place of business in Sioux Falls, SD.

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Ex: Upon information and belief, Defendant Bad Company, LLC (“Defendant” or “Debtor”) is a New York company with a principal place of business at 12345 Easy Road, Bronx, NY 10465.

Bare bones of a complaint • Parties • Jurisdiction and venue • Factual background • Causes of action • Prayer for relief

Pleading venue and jurisdiction •

Every complaint needs jurisdiction and venue

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SDCL Ch. 15‐5 or 28 USC 1391 for venue

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Allege all venue provisions that apply

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SDCL Ch. 15‐7 for state court jurisdiction

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28 USC 1332 for diversity in federal court

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28 USC 1331 for federal question in federal court

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Allege all jurisdiction provisions that apply, plead special jurisdiction if necessary

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This Court has jurisdiction over this action pursuant to SDCL 15‐7‐2. Specifically, Defendant transacted business in South Dakota by contracting with Plaintiff in South Dakota for Plaintiff to purchase Defendant’s Future Receivables as stated in the Master Purchase and Sale Agreement (“Agreement”); and Defendant consented to jurisdiction in South Dakota pursuant to the Agreement.

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Venue is proper in this Court pursuant to SDCL 15‐5‐6.

Bare bones of a complaint • Parties • Jurisdiction and venue • Factual background • Causes of action • Prayer for relief

Pleading factual background – notice pleading •

Seems simple – but who, what, where, when, why, and how

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Notice pleading in South Dakota – SDCL 15‐6‐8(a):

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross‐claim, or third‐party claim, shall contain: (1) A short and plain statement of the claim showing that the pleader is entitled to relief; and (2) A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

Beware of heightened pleading requirements •

SDCL 15‐6‐9(a)‐(i). Special rules for: •

Capacity

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Fraud, mistake, condition of mind

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Conditions precedent

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Official document or act

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Judgment

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Time and place

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Special damages

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Unknown party (Jane Doe)

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Libel or slander

Rule 9 – Heightened pleading • Need to plead facts with particularity if SDCL 15‐6‐9 applies • Cases with causes of action contained in Rule 9 are ripe for motions to dismiss for failure to comply with Rule 9 • Think about your need to plead to avoid or oppose the motion to dismiss

Bare bones of a complaint • Parties • Jurisdiction and venue • Factual background • Causes of action • Prayer for relief

Pleading causes of action • Each cause of action is separate. • Make sure facts are alleged for each element. • Allege both legal and equitable causes of action • You can plead alternative and duplicative causes of action • SDCL 15‐6‐8(a) • Can have inconsistent statements • Election of remedies doctrine – prevents duplicative recovery for single wrong, but is not used to block alternative pleading Ripple v. Wold, 549 N.W.2d 673 (S.D. 1996)

Example – breach of contract • Breach of contract (legal) • Breach of the duty of good faith and fair dealing

• Unjust enrichment (equitable) • Another avenue of relief if contract is found invalid

Attachments and exhibits • In a case covered by Rule 9, err on including more. • Otherwise it is notice pleading, so attachments and exhibits are largely optional. • If you have a written document that is important but you are not attaching it, explicitly reference the document.

Bare bones of a complaint • Parties • Jurisdiction and venue • Factual background • Causes of action • Prayer for relief

Pleading prayer for relief • Damages • Specifically plead punitive (exemplary) or future damages • May reference other damages as “compensatory”

• Interest • Attorneys fees • Declaratory relief

Example of prayer for relief • PRAYER FOR RELIEF • WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief to Plaintiff: • Judgment against Defendant on all Counts alleged herein and in the amount due and owing, plus interest, costs, and attorneys’ fees; • Judgment that Plaintiff is entitled to specific performance under the Agreement; and • For such other and further relief, including equitable relief, as the Court deems just and equitable.

Jury demand • Must allege a jury demand in initial pleading if you want a jury • Ways to demand • In title of pleading • Before prayer for relief • Separate document

Sample complaints •

Included as examples are the following complaints: •

Simple breach of contract / debt collection complaint

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Simple negligence

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Product liability complaint with numerous causes of action •

Breach of contract

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Tortuous fraud and deceit

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Negligent misrepresentation

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Fraudulent misrepresentation

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Breach of express warranty

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Breach of implied warranty of merchantability

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Breach of implied warranty for fitness for a particular purpose

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Unjust enrichment

Summons

Every defendant gets a summons • Action is commenced when summons is served. SDCL 15‐6‐3. • Each defendant gets a summons. • Can serve a summons without a complaint. SDCL 15‐ 6‐4(b) • Use when statute of limitations might run.

• Follow the rules of SDCL 15‐6‐4 for summons.

Service of summons • SDCL 15‐6‐5 for service in state court

• Personal service • Admission of service (state court) • Waiver of service of summons (federal court – 60 days to answer)

Answering a Complaint

Determine whether to answer or move for a 12(b)(6) motion • Answer the complaint if you don’t have a basis to move to dismiss, see SDCL 15‐6‐12 or FRCP 12(b)(6) to determine whether you have a basis to move to dismiss • Note – some grounds to dismiss are waived if not brought before answering.

Basics of answering a complaint • Admit or deny every paragraph of the complaint • Reference the paragraph number of the complaint. • You can admit or deny in part. • SDCL 15‐6‐8(b).

• Defendant lacks sufficient knowledge to either affirm or deny Paragraph 1 of the Complaint (but does not dispute the same). • Defendant admits that he is a resident of South Dakota but otherwise denies Paragraph 1 of the Complaint.

Plead affirmative defenses •

Plead affirmative defenses or they are waived unless brought up in an amended answer.

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SDCL 15‐6‐8(c): “In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.” See also FRCP 8.

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This list is not complete. Use a checklist for more complete list, such as http://vondranlegal.com/affirmative‐defenses‐checklist/.

Counterclaims • Plead counterclaims as you would claims in a complaint • Factual background • Jurisdiction and venue (if different than complaint) • Legal and equitable claims • Prayer for relief

Jury demand • Always include a demand for a jury in your answer for claims in the complaint if your client wants a jury. • Need a jury demand for counterclaims. • Will waive without a demand in the answer and counterclaims.

Reply to Counterclaims

Answering / replying to counterclaims • If you get counterclaims, you need to reply. • Reply functions like an answer. You will need to admit/deny the factual and legal allegations. You will also need to allege affirmative defenses, if you have any. • Demand a jury trial if you haven’t already done so and your client wants a jury trial.

Amending Pleadings

Mistakes happen! • You can amend pleadings. SDCL 15‐6‐15 / FRCP 15. • Can amend once as a matter of course before there’s an answer to a responsive pleading, otherwise either with the opposing side’s approval or a court order. • Note – if there’s a scheduling order in place and you need court approval to amend, you will move to amend the scheduling order.

Process • Need to know the process for your individual circuit. • Redline or compare documents to see changes • Get opposing party’s consent in writing.

Scheduling Order

Federal v. State • Form 52 report in federal court – initial conference, initial disclosures, prepare a form report • State court – much more dependent on judge’s preferences. Some judges will request or order a scheduling order. Otherwise it’s left to the discretion of the parties.

Writing Your First Appeal to the SDSC Meghann Joyce Boyce Law Firm Sioux Falls Meghann grew up in Rock Rapids, Iowa, and attended the University of South Dakota for both her undergraduate studies and law school. Meghann graduated summa cum laude from the University of South Dakota with a Bachelor of Arts in political science. While in law school, Meghann competed in both moot court and trial advocacy competitions across the country, earning accolades, including the prestigious Order of the Barristers recognition, for both her oral advocacy and writing skills. In 2009, Meghann graduated from the University of South Dakota Law School with Sterling Honors. Following law school, Meghann served as a law clerk to the Honorable Glen A. Severson of the South Dakota Supreme Court. As a law clerk, Meghann reviewed hundreds of briefs, heard dozens of oral arguments, and assisted the Court in preparing for oral arguments and researching and writing decisions. Meghann joined the firm after her two-year clerkship with the South Dakota Supreme Court. Since then, she has put her talents for both oral advocacy and writing to work for her clients in a variety of civil litigation matters in both federal and state court, including construction and design litigation, labor and employment law, insurance bad faith litigation, appeals, professional liability, commercial litigation, and trusts and estate litigation. Also, as a result of her experience as a law clerk in the South Dakota Supreme Court, appellate work is a focus of Meghannâ&#x20AC;&#x2122;s practice, and, during her time at Boyce Law Firm, Meghann has brought and defended several appeals to the South Dakota Supreme Court.

How Appealing: How to Do a South Dakota Supreme Court Appeal MEGHANN M. JOYCE

Overview Before You Appeal Starting Your Appeal The Appeal Ethical Considerations How to Get Help

Whether to Appeal It is expensive. ◦ Writing a brief and preparing an oral argument are time‐intensive and therefore expensive.

It takes a long time. ◦ From the time that a notice of appeal is filed, you should expect that it will take approximately one year to receive a decision. ◦ This year, the Court has been issuing decisions fairly quickly: approximately three months from the time that the Court confers on a case to the time that they issue a decision.

It is public. ◦ Of course, most court filings are public. However, most clients, particularly clients in divorce or other sensitive matters, may not want the increased scrutiny that comes with an appeal, i.e. an oral argument and published decision.

Reversals are hard to come by. And be careful what you ask for. ◦ In tracking decisions this year, the vast majority of cases are affirmed – although some decisions are more likely to be reversed than others. ◦ For instance, a grant of a motion to dismiss or a grant of a motion for summary judgment may have a better chance of reversal than a challenge to a jury verdict.

Standard of Review This is the most important factor determining the probable success of your appeal. De Novo: No deference to the trial court’s decision. ◦ Questions of Law ◦ Contract Interpretation & Statutory Interpretation ◦ Constitutional Questions ◦ Motions for Summary Judgment ◦ Motions to Dismiss Clearly Erroneous: Left with a definite and firm conviction that a mistake has been made. ◦ Questions of Fact ◦ Credibility of Witnesses ◦ Weight Afforded Evidence and Testimony Abuse of Discretion: Discretion exercised to an end purpose not justified by, and clearly against, reason and evidence. ◦ Matters Within the Province of the Court ◦ Evidentiary Rulings & Sentence Determinations ◦ Child Custody, Child Support, Division of Property, Alimony Determinations ◦ Award of Attorneys’ Fees

Appeals as of Right SDCL 15‐26A‐3 specifies the judgments and orders from which an appeal may be taken: o A judgment; o An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken; o An order granting a new trial; o Any final order affecting a substantial right, made in special proceedings, or upon a summary application in an action after judgment; o An order which grants, refuses, continues, dissolves, or modifies any of the remedies of arrest and bail, claim and delivery, injunction, attachment, garnishment, receivership, or deposit in court; o An order entered on a motion pursuant to SDCL 15‐6‐11. On appeal from a judgment, the Court may review any order, ruling, or determination of the trial court necessarily affecting the judgment and appearing upon the record. SDCL 15‐26A‐7.

Intermediate Appeals An intermediate appeal is initiated through a petition for intermediate appeal. ◦ A petition must be filed within TEN DAYS of the date of the notice of entry of the circuit court’s order. SDCL 15‐26A‐13.

The opposing party must file their response to the petition for intermediate appeal within SEVEN DAYS. SDCL 15‐26A‐16. Failure to follow the dictates of SDCL ch. 15‐26A may result in dismissal of the petition, and costs may be imposed for filing an unreasonable petition. SDCL 15‐26A‐18; SDCL 15‐26A‐21. If the petition is granted, then the appellant must file a bond for costs, and the appeal largely proceeds as if it had been initiated after a final order by a notice of appeal. SDCL 15‐26A‐17; SDCL 15‐26A‐20. Petitions of intermediate appeal are rarely granted.

Intermediate Appeals SDCL 15‐26A‐14 sets forth in detail what the petition must contain: ◦ A statement of facts necessary to understand the question presented; ◦ A statement of the question itself; ◦ The relief sought; ◦ A concise statement, without argument, of law in support of the request; ◦ The reasons why the appeal should be allowed; ◦ Other papers and exhibits petitioner deems relevant and material. The petition may not exceed TEN PAGES. SDCL 15‐26A‐14. A copy of the order sought to be reviewed; all findings of fact, conclusions of law, or memorandum opinions related to the order sought to be reviewed; and the notice of entry of the order sought to be appealed must be attached to the petition. SDCL 15‐26A‐15. Practice Tip: For purposes of a petition for intermediate appeal, the Court is much more interested in hearing why the case should be heard now, rather than the merits or substance of your argument. In other words, the Court wants to know how with the “ends of justice [will] be served by a determination of the questions involved without awaiting the final determination of the action or proceeding.” SDCL 15‐26A‐3(6).

Beginning Your Appeal Notice of Appeal Docketing Statement Order for Transcripts Filing Fees & Bond for Costs Supersedeas Bonds Notice of Review Transmitting the Record

Notice of Appeal A notice of appeal must be filed in CIRCUIT court within THIRTY DAYS after the judgment or order is signed and written notice of entry of the order or judgment is provided to the opposing party. SDCL 15‐26A‐3; SDCL 15‐26A‐ 6. The notice of appeal must specify the party or parties taking the appeal, designate the order or judgment appealed, and be signed by the appellant or his or her attorney. SDCL 15‐26A‐3. A notice of appeal must be served on all interested parties. SDCL 15‐26A‐ 3(3). See, e.g., In re Reese Trust, 2009 S.D. 111, 776 N.W.2d 832 (holding that failure to serve party‐defendant with notice of appeal was fatal to appeals and required their dismissal). If you miss this deadline, it cannot be fixed. ◦ Practice Tip: File your notice of appeal early to allow room to correct any mistakes. An amended notice of appeal is limited to the correction of clerical errors. SDCL 15‐26A‐4.1.

Docketing Statement The docketing statement is to be filed in the CIRCUIT court along with the notice of appeal. The docketing statement must be in the following form: ◦ Section A: ◦ Circuit Court, Venue, Circuit Court Judge. ◦ Parties & Attorneys. ◦ Section B: ◦ Date of Judgment or Order. ◦ Date of Notice of Entry of Judgment or Order. ◦ Post‐Trial Motions. ◦ Nature of Claims, Circuit Court’s Disposition of Claims. ◦ Was there a final, appealable order? ◦ Issues Presented for Review. ◦ Practice Tip: Parties are not bound by these statements. It is better to be over‐ inclusive, rather than under‐inclusive. ◦ Attachments: ◦ An appellant must attach to the docketing statement the findings of fact and conclusions of law, and memorandum decision, if any.

Order for Transcripts An order for transcripts must be sent to the court reporter ordering transcripts of the proceedings or parts of the proceedings as the attorney deems necessary. SDCL 15‐26A‐48. The order for transcripts must be made within TEN DAYS of the notice of appeal. SDCL 15‐26A‐48. The order for transcripts must be served on all parties to the action, filed with the clerk of the CIRCUIT court, and sent to the court reporter. The appellant may only order portions of the transcript. If he does so, then he must provide the parties a copy of the order for transcripts or certificate and a statement of the issues he intends to present on appeal. If the appellee deems a transcript of other parts of the proceeding necessary, he shall, within TEN DAYS after the service of the appellant’s statement, file with the clerk of the circuit court and serve on the appellant, the court reporter, and the clerk of the Supreme Court, a designation of additional parts to be included. Unless within TEN DAYS after service of his designation, the appellant has ordered those parts and notified the appellee, then appellee may within ten days either order the parts or move in the circuit court for an order requiring the appellant to do so. SDCL 15‐265A‐50. The court reporter will complete the order for transcripts with an anticipated date of completion of the transcripts and transmit the completed form to the Supreme Court. The transcript must be completed within FORTY‐FIVE days after receipt of the order or within FORTY‐FIVE days after receipt of pre‐payment. SDCL 15‐26A‐51. Failure to order a transcript within the time fixed is a waiver of the right to the transcript. SDCL 15‐26A‐49.

Filing Fees & Bond for Costs In most civil cases, an appellant must file a bond or cash deposit in the amount of $500.00 with the CIRCUIT court to serve as security for the payment of costs on appeal. A notice of deposit of undertaking may be filed with the notice of appeal and docketing statement to memorialize that the deposit or bond for costs has been undertaken. SDCL 15‐26A‐23. o This bond is different than the supersedeas bond that may also be required in order for an underlying judgment to be stayed. The filing fees include a $50.00 filing fee payable to the clerk of the CIRCUIT court, and a $100.00 filing fee payable to the South Dakota Supreme Court. o Both checks should be sent to the clerk of the CIRCUIT court, along with the notice of appeal, docketing statement, and notice of deposit of undertaking.

Supersedeas Bonds In most civil cases, an appeal from a judgment does not stay enforcement of proceedings in the CIRCUIT court unless the appellant executes a supersedeas bond in an amount and form approved by the CIRCUIT court or otherwise complies with the rules for obtaining a stay. SDCL 15‐26A‐25. o If the appeal is from a judgment directing the payment of money, the amount of the bond must typically be equal to the amount reflected in the judgment. SDCL 15‐26A‐26. o A cash deposit may be made in lieu of posting a bond. SDCL 15‐26A‐41.

For other types of judgments, a stay may be issued without posting a monetary bond, depending on the rules governing the situation and order entered by the CIRCUIT court. SDCL 15‐26A‐23; SDCL 15‐26A‐46 The party for whose benefit a bond is required may agree in writing to waive that requirement. SDCL 15‐26A‐42. A party not granted relief in the CIRCUIT court concerning a stay pending appeal, for additional security on bond on appeal, or on a supersedeas bond may make a subsequent motion for relief in the Supreme Court. SDCL 15‐26A‐39; SDCL 15‐26A‐57.

Notice of Review An appellee may obtain review of an order or judgment adversely affecting him by filing a notice of review. SDCL 15‐ 26A‐22. The notice of review must be filed within TWENTY DAYS after service of the notice of appeal. The notice of review must be accompanied by section B of the docketing statement and must specify the order or judgment to be reviewed.

The Appeal The Record Motions Before the Court The Appellant’s Brief The Appellee’s Brief The Reply Brief Length of Briefs Style Requirements The Appendix The Affidavit of Costs Oral Argument How the Case Is Decided Petitions for Re‐Hearing

The Record The record includes the original pleadings, papers, offered exhibits, and the transcript of the proceedings, if any, from the proceedings in the circuit court. SDCL 15‐26A‐47. Within FIVE DAYS after the filing of the notice of appeal, the clerk of the circuit court must assemble and consecutively number the pages of all the pleadings, documents, papers, and exhibits filed in the action, including any opinion. SDCL 15‐26A‐53. The clerk of the circuit court will then prepare an alphabetical index to the record and serve it upon all counsel and the clerk of the Supreme Court. SDCL 15‐26A‐53. Once the briefs have been served and filed, or the time for filing briefs has expired, the clerk of the Supreme Court will notify the clerk of the circuit court, who will transmit the certified record to the clerk of the Supreme Court. SDCL 15‐26A‐57. Once the appeal is has been decided, the record is returned to the circuit court. SDCL 15‐26A‐59.

Motions Before the Court Motions, although not common, are also not entirely atypical. If the opposing party files a motion, you must respond within TEN DAYS. SDCL15‐26A‐87.2. oMotion to Dismiss the Appeal. o Ordinarily, if an appeal suffers from a procedural or jurisdictional defect, the Court will issue an Order to Show Cause, directing the parties to brief why the appeal should not be dismissed on those grounds. oMotion to Modify or Correct the Record. SDCL 15‐26A‐56. oMotion to Stay Underlying Proceedings. oMotion for Extension of Time. o The parties may allow each other, by stipulation, one extension of time not exceeding FIFTEEN days for serving and filing the appellant’s and appellee’s briefs, if the stipulation is made before the time for filing the brief has expired. SDCL 15‐26A‐76. o Note that this stipulation procedure is not available for the appellant’s reply brief, and that extensions for filing reply briefs must be requested by motion. o No other extensions for the filing of briefs are allowed, except for good cause upon notice and application to the Chief Justice of the Supreme Court. SDCL 15‐26A‐76. o For deadlines not related to briefing, the Court may enlarge or extend the time for anything other than the filing of the notice of appeal. SDCL 15‐26A‐92. oMotion for Extension of Length. o A written request for an extension of length must be filed at least TEN DAYS before the filing date of the brief and must specify in detail why the extension is necessary and the number of additional pages or words needed. SDCL 15‐26A‐66(c).

The Appellant’s Brief The appellant’s brief is due either FORTY‐FIVE days after service of the transcript, or, if no transcript is order, FORTY‐FIVE days after service of the notice of appeal. SDCL 15‐26A‐75. oPractice Tip: Call the clerk of the Supreme Court and ask when your brief is due. The appellant’s brief must contain certain sections and headings: oA cover page that states the title of the action, the name of the court from which the appeal is taken, the name of the circuit court judge, whether the brief is for the appellant or appellee, the names and addresses of the attorneys for the parties, and the date the notice of appeal was filed. SDCL 15‐26A‐69(5). oA table of contents with page references. SDCL 15‐26A‐60(1). oAn alphabetical table of cases, statutes, and other authorities cited with page references. SDCL 15‐26A‐60(2). o A jurisdictional statement establishing that the order sought to be reviewed is appealable. SDCL 15‐26A‐60(3). oA case statement of the legal issue or issues involved followed by a concise statement how the circuit court decided it, and a list of the most relevant cases not to exceed four, and the most relevant constitutional or statutory provisions. SDCL 15‐26A‐60(4). oA statement of the case and facts with reference to the record. o “The facts must be stated fairly, with complete candor, and as concisely as possible.” SDCL 15‐26A‐60(5). oAn argument. SDCL 15‐26A‐60(6). oA conclusion stating the precise relief sought. SDCL 15‐26A‐60(7). oAn Appendix, which much include certain information. SDCL 15‐26A‐60(8). oA certificate of compliance, if required, and a certificate of service. SDCL 15‐26A‐81; SDCL 15‐26A‐66(b)(4).

The Appellee’s Brief The appellee’s brief is due either FORTY‐FIVE days after service of the appellant’s brief. SDCL 15‐26A‐75. The requirements for the appellee’s brief largely follow those for the appellant’s brief. SDCL 15‐26A‐61. As with the appellant’s brief, an original, signed hard copy of the appellee’s brief must be filed with the clerk of the Supreme Court, and a Word version of the brief, except the appendix, which must be in a .pdf form, must be e‐ mailed to the clerk of the Supreme Court. Service on opposing counsel is achieved by copying opposing counsel on the e‐mail to the clerk of the Supreme Court.

The Reply Brief The appellant’s reply brief is due within FIFTEEN DAYS after service of the appellee’s brief. SDCL 15‐26A‐75. The reply brief must be confined to new matter raised in the appellee’s brief. SDCL 15‐26A‐62.

Length of Briefs Monospaced Typeface. SDCL 15‐26A‐66(a). oAppellant and appellee briefs in monospaced typeface shall not exceed forty pages. oA reply brief or amicus curiae brief in monospaced typeface shall not exceed twenty pages. oA supplemental brief in monospaced typeface shall not extend ten pages. Proportionally Spaced Typeface. SDCL 15‐26A‐66(a). oAppellant and appellee briefs in proportionally spaced typeface shall not exceed thirty‐two pages. oA reply brief or amicus curiae brief in proportionally spaced typeface shall not exceed sixteen pages. oA supplemental brief in proportionally spaced typeface shall not extend five pages. Word & Character Limitations: SDCL 15‐26A‐66(a)(2). oA brief may exceed page limitations if they otherwise comply with the character limitations. oAppellant and appellee briefs are acceptable if they contain no more than the greater of 10,000 words or 50,000 characters. oA reply brief and amicus brief are acceptable if they contain no more than half the type volume specified for appellant and appellee briefs. oHeadings, footnotes, and quotations count toward word and character limitations. The table of contents, table of authorities, jurisdictional statement, statement of legal issues, addendum materials, and certificates of counsel do not. oA brief submitted with proportionally spaced typeface must include a certificate that states the number of words or characters in the brief and certifies that the brief complies with the type‐volume limitation.

Style Requirements Monospaced typeface must be no more nor no less than ten characters per inch. SDCL 15‐ 26A‐66(a). A proportionally spaced typeface must include serifs. Sans serif type may only be used in headings and captions. SDCL 15‐26A‐66(b)(1). A proportionally spaced typeface must be 12‐point or larger, including both body text and footnotes. SDCL 15‐26A‐66(b)(1). Briefs must be set in plain, roman style, although italics may be used for emphasis. Boldface can only be used for case captions, section names, or argument headings. All‐ capitals may be applied only for case captions and section names. SDCL 15‐26A‐66(b)(1). Printing must be double‐spaced, except for lengthy quotations, which may be indented and single spaced. SDCL 15‐26A‐69(2). The left margins hall be one and one‐half inches, and all other margins must be not less than one inch. The printing must be left justified. SDCL 15‐26A‐69(3). Each page of the brief, except the front index, must be consecutively numbered in Arabic figures centered at the bottom of the page. Use lower‐case Roman numerals for the table of contents and the table of authorities. SDCL 15‐26A‐69(4). The brief must be securely bound on the left margin by substantial staples and binding tape or other approved binding. SDCL 15‐26A‐69(6).

The Appendix The appendix to the appellant’s brief must contain the following documents: oThe judgment, order, or decision in question and any relevant written findings of fact, conclusions of law, and memorandum decision; oThe statements of material facts and record citations required under SDCL 15‐6‐56(c); oAny relevant portions of the pleadings, instructions, and transcripts; oItems enumerated in SDCL 15‐26A‐65; and oAny other parts of the record to which the parties wish to direct the Court’s particular attention. The appendix to the appellee’s brief should contain any documents that are not included in the appellant’s brief and to which you want to direct the Court’s particular attention. The pages of the appendix must be separately numbered, and the appendix must contain a table of contents with page references. Sections of the appendix must be tabbed (and BOOKMARKED), and salient information must be highlighted.

Oral Argument Select cases are chosen for oral argument, likely because they present complex or new legal issues, or because the Court has particular questions or concerns about the case that they need addressed. If your appeal is chosen for oral argument, you will receive written notice from the clerk of the Supreme Court, stating the date and place that the argument will be heard. SDCL 15‐26A‐82. The appellant is allowed twenty minutes, the appellee is allowed twenty minutes to answer, and the appellant is then allowed ten minutes for rebuttal. SDCL 15‐26A‐83; SDCL 15‐26A‐84. ◦ A party may seek additional time in exceptional circumstances. ◦ A party is not obligated to use all of the time allowed. Not more than two attorneys to the side will be allowed to argue any case, except by special permission when there are several parties on the same side with divergent interests. SDCL 15‐26A‐85.

How the Case Is Decided The Court meets eight times each year: August, September/October, November, January, February, March, April, and May. Occasionally, the Court holds term in other locations such as Spearfish, Yankton, Aberdeen, or Vermillion. Most cases are submitted and decided on their briefs, meaning that the Court does not call for an oral argument but meets to discuss the case. Select cases are, of course, chosen for oral argument. Depending on the issues presented, the Court may choose not to write an opinion and will decide the case through a summary disposition. If the Court does decide to publish an opinion, once the Court has held oral argument and/or conferenced on the case, the Justices return to their offices and begin drafting opinions for their assigned cases. The Justice votes on the conference opinion that is drafted. If a Justice disagrees with the opinion or wants to add some reasoning to the opinion, then he or she will prepare a dissenting or concurring opinion. Opinions are sent to counsel on Tuesday and are published on the Court’s website on Thursday morning. From the notice of appeal to a final decision, this process will likely take approximately one year.

Petitions for Re-Hearing A party may seek a re‐hearing or reinstatement of an appeal within TWENTY DAYS after entry of the order of dismissal. The adverse party may serve and file an answer to the petition within TEN DAYS after service of the petition. SDCL 15‐26A‐91. You will need to show exceptional circumstances in order to have a petition for re‐hearing granted. In the last five fiscal years, the Court has not granted a single petition for re‐hearing.

Ethical Considerations Rule 3.3. Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to timely correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. However, in a criminal matter, the lawyer shall not participate with the client in the presentation of the client's testimony which the lawyer knows to be false.

How to Get Help Review SDCL ch. 15‐26A, particularly the Appendix of Forms. Read Ron Parsons, Appellate Practice in the South Dakota Supreme Court, 56 S.D. L. Rev. 1 (2011). Call the clerk of the Supreme Court. (605) 773‐3511. Visit the South Dakota Supreme Court website. www.ujs.sd.gov

Meghann M. Joyce (605) 336‐2424 mmjoyce@boycelaw.com For South Dakota Supreme Court case updates, statistical analysis, appellate practice tips, and more, follow me on Twitter at @meghannmjoyce or subscribe to my blog at www.southdakotaappeals.com.

Unique Issues They Didn’t Prepare You for in law school Ashley Anson Attorney at Law Wessington Springs Ashley Anson is the Managing Attorney of Ashley Anson, Prof. LLC, a solo practice located in the heart of South Dakota in Wessington Springs. She focuses her practice on Environmental Law, Agricultural Law, Family Law, Criminal Law, Estate Planning, and Crop Insurance Arbitration, Mediation, and Litigation. Ashley is a graduate of the University of South Dakota School of Law where she served on the Board of Editors for the South Dakota Law Review. She also earned her Masters of Environmental Law and Policy, magna cum laude, from Vermont Law School, generally considered the country's premier environmental law program. While attending law school, Ashley interned at the Midwest’s leading public interest environmental legal advocacy organization - the Environmental Law and Policy Center in Chicago, Illinois - focusing her research on South Dakota hardrock mining and reclamation issues and Bureau of Land Management oil and gas leasing. She continues her environmental advocacy in South Dakota by serving on the South Dakota State Bar Association’s Environmental and Natural Resources Committee. Ashley is an active member of the South Dakota Bar Association, Minnesota Bar Association, and American Bar Association. Locally, she serves as an advisor to municipalities, local boards, and the South Dakota Municipal Attorney’s Association. Ashley grew up on a cattle ranch in Wessington Springs and attended Indiana University-Purdue University at Indianapolis, earning her Bachelor of Arts Degree in English and Creative Writing. She also minored in French, and has a basic conversational knowledge of Spanish. Ashley is currently studying Spanish in hopes to offer multi-lingual services to her Spanish-speaking clients in neighboring communities. Ashley has three children, Adelyn, Charlee, and step-son Ezra. She and her husband raise their children, dog, three cats, five kittens, and two guinea pigs on a cattle ranch near Wessington Springs down the road from where she grew up. Her hobbies include oil painting, fictional reading, singing for community events, creative writing and blogging, DIY crafting, digital photography editing, scrapbooking, and most of all playing with her kids.

Unique Issues They Didn’t Prepare You For in Law School Ashley Anson Ashley Anson, Prof. LLC 102 East Main Street Wessington Springs, SD 57382 605-539-9006

The LSAT, Law School, and the Bar…. O The one thing that you realize quickly after

beginning your career as an attorney is that the LSAT, Law School, and the Bar all have only one commonality, and that is they all teach you how to think like a lawyer, but none of them prepare you for the real practice of the law.

First Attempt In Learning O Don’t be afraid to fail, it is the only way we

can learn

O Failure is not the end, but rather the

beginning

O Fear of being turned down is your only real

failure

What’s An Affidavit Anyway? O No matter how prepared you think you are, it

is a rule of thumb that it takes a good solid 5 years before you are considered to “know” what you are doing.

O No one is going to hold your hand O Google is your best friend

You Should Always Rely on Yourself O You can never learn your true potential if you

are constantly looking to your superiors to answer every issue you come across

O Be confident O Be present in your community

Experience Helps, But It’s Not Everything O No matter how much prior experience you

have, no one seems to share the “tricks of the trade” with you

O It’s a myth that you cannot competently and

ethically represent clients out of law school

O Solo practice can be extremely rewarding

because you get to do everything “your” way

You’re An Expert to Everyone O Even if you don’t hold yourself out as an

expert, everyone else will

O You have to be willing to admit when you

don’t know the answers

O You are now an authority figure in your

community no matter your age

“How To Become A Divorce Lawyer” O Google says there are 5 Steps: O First: Earn a Bachelor’s Degree O Second: Pass the LSAT O Third: Earn a Law Degree O Fourth: Pass The Bar Examination O Fifth: Continue Education

The Importance of Mentors O Understand that you can have more than

one mentor, and they don’t necessarily have to be older than you

O Its true that you are competent to start a law

practice, but you would not be wise to go it alone, mentors are gold

Drafting O If you didn’t take a drafting course in law

school, then you are up for a surprise

O You can’t put off taking a client until the next

CLE comes along

O Understanding how the bigger firms do it

Non‐Billable Time O Expectation of billing eight hours a day vs.

billing 2 hours per day

O Research will take up most likely 75% of

your day,

O Realistic goals keep you satisfied O Spend the time to observe!

Ethical & Effective Billing O Itemizing billing is cumbersome, but

necessary

O Reality vs. Expectation O Ethical considerations for Overdue Bills

How to Be a Rainmaker O No one teaches you in law school how to gather

your own clients or how to continually bring in new business

O The reality is you’re expendable after the first

year

O You need to be a salesman O Changing with technology to keep up with

advertising demands

Start Up Costs Don’t Have to Be As High As You Think O Many blogs on starting your own firm lead you

into thinking that you need large capital to get started; this just isn’t true

O Use today’s technology as a way to cut costs and

create efficiency

O Decide right away whether you want to do all of

your own back office accounting, invoicing, letters, etc. If not, then you will need a secretary

Importance of Technology O Courts are going paperless and so should

you

O Keeping records electronically is allowable

as long as you provide for that option in your firm’s policies, which should be given to the client

O Odyssey, Filing a Case, and Free Resources

Law Practice Management O There are quite a few out there: Westlaw

offers its own version now. The most popular are Clio and MyCase

O Tracking billing, integration, and ease of

invoicing and accounting

O Cloud-based means you can access from

anywhere

Marketing O You can have everything that a larger firm

has with a little time and persistence

O Pick one or two markets and develop those

first

O Creating your own brand is essential to

building an image for your firm

Importance of Networking O Regardless of Big Law or Solo, an attorney’s

client base will rely heavily on referrals

O Never expect that meeting an attorney once will

be the last you will see them

O Etiquette is important, learning how to schmooze O Aiming outside your comfort zone and reaching

out to others, attending events, and returning the favor will help tremendously

It’s Okay To Be Yourself! O All Attorneys are unique, it is okay to present

to the court differently than your colleague

O Don’t let other’s ideas of what you want for

yourself dictate your actions

O Don’t be afraid to be overly prepared

Finding Balance in Your new practice Tamara Nash Attorney General’s Office Sioux Falls

Tamara Nash is a Special Assistant United States Attorney for the District of South Dakota. Tamara attended Wayne State College, where she graduated magna cum laude in 2009. Immediately following college Tamara perused her life-long dream of becoming an attorney and attended the University of South Dakota School of Law, where she graduated with honors in 2013. Tamara also was the 2013 recipient of the William F. Day Jr., pro bono award, based upon her several law school involvements. Upon completing her education, Tamara clerked for one year with the Second Judicial Circuit in Sioux Falls, South Dakota. While clerking Tamara had a diverse experience in the law and had the opportunity to be mentored by several members of the judiciary. She successfully completed several memorandum decisions and orders. She also had the opportunity to work with the judiciary on several high-profile cases, including a death penalty matter. Following clerking, Tamara achieved her career goal of becoming a prosecutor when she was hired in 2014 to serve as Deputy State’s Attorney for Union County, South Dakota. In her capacity, Tamara prosecuted misdemeanor and juvenile offenses. After legislative updates, Tamara created and implemented Union Count’s first juvenile diversion program, which has had a successful start. In spring 2016, Tamara transitioned into her current position as a Special Assistant United States Attorney for the State of South Dakota. In her position, she works both with the Attorney General’s Office as well as the United States Attorney Office to prosecute firearm and high intensity drug cases. Tamara maintains her commitment to public service by remaining active in her community. In the South Dakota State Bar, Tamara serves on the Young Lawyer’s Board of Directors, State Bar Law School Committee, and serves as chair of the State Bar Lawyers’ Committee for Diversity and Inclusion. Tamara also is active within the American Bar Association Young Lawyers Division. Tamara serves as the District Representative for North Dakota and South Dakota, a 2016-2017 Division Scholar, a member of the National Conference Team (NCT), and member of the ABA Ethics and Professionalism Committee.

Finding Balance in Your New Practice Tamara P. Nash S.D Attorney General’s Office

 1st

year of practice years of practice  3-5 years of practice  5 + years of practice  1-2

1. How do we find balance in our first year(s) of practice.  Especially

when we may not be where we thought/planned we would be.



Know your firm/organization. 

Learn the culture, policies, and dynamics.

Use every resource available to you  Market yourself internally and externally!  Participate! Find meaningful ways to be heard and contribute.  Always be receptive to change/guidance.  Let your work speak for itself (work hard)  Remember: the learning curve is steep and often uncomfortable, but work through it anyway! 

Change your mind set – open your self to the opportunities!  Be confident enough to go alone.  Join groups, committees, boards, and community organizations (get involved).  Be confident in your product (you!).  Perfect your “elevator pitch” – you never know when opportunity will come knocking! 

 Work/life

balance means taking time for your mental and emotional health, but not losing sight of work obligations.  Work/life balance also is highly individualized. Bottom line: happy, engaged employees are more productive, more creative, more loyal and more efficient.



 Define

your values and priorities for yourself.  Set boundaries (appropriately).  Communicate (directly and honestly) at work and at home.  Prioritize at work and home.  Be organized and efficient to the best of your abilities.

 Be

mindful of yourself and your needs (mentally, physically, and emotionally).  Don’t be afraid to ask for help!  Identify distractions (at work and home).  Don’t overcommit.

 Find

mentors- quality over quantity. personal networks – diversify!  Seek meaningful feedback.  Be open- vulnerability.  Have a vision for your career – who, how, when, where.  Capitalize on every opportunity!  Develop

“Everything expands to the amount of time I give it.”

 LAWYERS  LAWYERS 

CONCERNED FOR LAWYERS ASSISTANCE COMMITTEE

Individuals concerned about an attorney in their life can call Disability Rights South Dakota for assistance.

 Disability 

Rights South Dakota:

605-224-8294 or toll free 800-658-4782

Criminal Defense Basics Alecia Fuller Pennington Co. Public Defender’s Office Rapid City Alecia Fuller is currently serving as Assistant Director at the Pennington County Public Defender’s Office. This position is that of an attorney as well as direct supervisor to the other attorneys. Her path to this position started when she graduated from USD School of Law 2006, served as the Law Clerk for the 7th Judicial Circuit in South Dakota 2006-2007, was an associate at Brady Pluimer, P.C. August 2007 – July 2010, was a Solo Practitioner Fuller Law, PC July 2010 – June 2011, and finally served as an attorney at the Pennington County Public Defender’s Office starting in June 2011.

Service to the Bar and Legal Profession: -

Current President of South Dakota Association of Criminal Defense Lawyers (SDACDL). Board member of South Dakota Trial Lawyers Association (SDTLA) since 2006 and is currently serving as Secretary-Treasurer. Ethics Committee Member CLE Committee Member Black Hills Criminal Defense Bar (President in 2013) Committee Member for Pennington County’s Application and Implementation of the Safety + Justice Challenge supported by the John D. and Catherine T. MacArthur Foundation. #Rethinkjails

State Bar of South Dakota Continuing Legal Education Committee

PROGRAM EVALUATION: 10/27/17

Nuts and Bolts Please rate the following on a scale of one (1) to five (5). Five being excellent and one being poor. 1. Overall, the CLE program was:

Howard

Tupman

Joyce

Anson

Nash

Fuller

2. Program/Presenter Evaluation:

3. Program Materials: Comments:

4. Facility: Comments:

5. Any additional comments: (programming, scheduling, etc.)