March 2024 V3 Tulsa Lawyer Magazine

Tulsa MagazineLawyer

March 2024

"May you have all the happiness and luck that life can hold, and at the end of your rainbows may you find a pot of gold."

A Message from the President Michael E. Esmond

The Importance of Bench and Bar Relations to the Effective Administration of Justice

In February, the Tulsa County Bar Foundation held its bi-annual Judicial Dinner. The sold-out event raised money to contribute to courthouse needs and celebrated the passing of the Presiding Judge gavel to Judge Dawn Moody. It also provided an opportunity for advancing bench and bar relations and conveniently gave me a theme for my monthly President’s message.

The relationship between the bench and the bar is unique. The roles of judges and lawyers in our legal system are different and, at times, in tension. However, the aim of both is (or should be) always the same – the effective administration of justice. Achieving that goal requires maintaining public confidence in the integrity of the judicial process. Attorneys and judges share responsibility for that.

On the judge’s part, Rule 1.2 of the Code of Judicial Conduct requires that “[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety.” The comments to Rule 1.2 add that “[a] judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.” It occurs to me that these principles combine to put judges in a tough spot if they are subjected to unfair public scrutiny. That’s where the bar’s responsibility comes in.

Lawyers have a corresponding obligation, under Rule 8.4 of the Oklahoma Rules of Professional Conduct, to avoid engaging in conduct that is prejudicial to the administration of justice. In that regard, one of the ABA Canons of Ethics, a predecessor to the modern Rules of Professional Conduct, imposed a duty on lawyers to support the bench against “unjust criticism and clamor”:

It is the duty of the lawyer to maintain toward the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases, but not otherwise, such charges should be encouraged and the person making them should be protected.

Significantly, the canon acknowledged the lawyer’s right and duty to report complaints to proper authorities, “but not otherwise.” This limitation supports the bar’s role in maintaining public trust in the integrity of the judicial system by prohibiting the irresponsible public

airing of unfounded grievances on which the public might place great weight coming from a lawyer.

The Oklahoma Supreme Court addressed this ethical canon in a case involving an attorney who publicly accused justices with having accepted bribes. The court held that the attorney’s action exceeded the bounds of decency and truth and was “aimed at the destruction of public confidence in the judicial system.”1 Whether or not the case is still good law under the Rules of Professional Conduct, the court’s analysis and the spirit of the ethical canon it addressed remain sound in my view and illustrate the importance of maintaining good relations between the bench and bar.

When attorneys and judges have strong professional relationships, built on positive interactions inside and outside of the courtroom, conflict and unprofessional behavior are less likely to occur. And if they do occur, they are more easily addressed and resolved in a constructive manner if the lawyer and the judge have invested time in simply getting to know one another. 2

The TCBA and TCBF have a long track record of fostering good relations between the bench and the bar and providing opportunities to build professional relationships through events like TCBF’s Judicial Dinner and the programs and initiatives of TCBA’s Bench and Bar Committee. In addition, judges serve in leadership roles on the TCBA board and its committees, and actively support and volunteer at events like the annual golf tournament and the many annual Law Week activities. Local judges and lawyers’ involvement in collaborative projects extends to the University of Tulsa College of Law, which, as stated in the preamble to its mission statement, plays a vital role in its partnership with the bench and bar.

So, whether you’re a law student or young lawyer

looking to build new relationships or a veteran judge or lawyer looking to maintain lifelong friendships, there is no shortage of opportunities available to nurture and uphold the vital relationship between the bench and the bar and promote public confidence in our judicial system. If you’re interested in taking advantage of these opportunities or creating others, please contact us to get involved.

Sincerely,

1 State ex rel. Okla. Bar Ass'n v. Grimes, 1967 OK 178, ¶ 28, 436 P.2d 40, 46

2 For a good read on the importance of these relationships and how to develop them, I recommend Judge John I. Guy’s article, The Benefits of Bench and Bar Relations, in the January/February 2023 issue of The Bencher.

Michael E. Esmond TCBA President, 2023-2024

Member Spotlight

Rhiannon K. Thoreson

Firm/Organization: City of Broken Arrow

Family Info: Two daughters, Kennedy & Sydney

How long have you been practicing law and what are your practice areas?

Almost 15 years. I practice primarily in civil litigation, but I also do some estate planning on the side.

What do you like most about being a lawyer?

That it offers the opportunity to be a continuous learner. I’ve always said that if it paid better, I’d just be a professional student! But with the legal field, it provides multiple opportunities to grow in your knowledge, so in many ways, it is like being a student.

What has been your biggest professional achievement?

I would point to all the “firsts” as being moments I’m proud of. The first time I took a deposition, the first time I went to court and argued a motion, the first time I tried a case, the first time I taught a CLE, etc. Those are the moments that originally intimidated me but proved to be valuable growth experiences.

What is your passion outside of work and the law?

Working with and advocating for victims of crime. I serve on the Board of Directors for both DVIS and Tulsa Lawyers for Children, two organizations I’m passionate about because of the work that they do.

How long have you been a TCBA member?

Every year since law school, except when I moved out of state.

What is your favorite book, movie, or television show?

The Lord of the Rings trilogy – it has almost everything: adventure, fantasy, romance, and comedy.

Tell us a fun fact that no one knows about you! I’ve been to Area 51. Or, at least as close as they let you get while they watch you from the top of a hill with binoculars!

What is your favorite food?

My grandma’s homemade noodles. Second would be my mom’s Waikiki meatballs.

Special Judge Melissa East Sworn In

Multiple offices available at 91st & Yale in professional growth corridor of South Tulsa. Easy access to Creek Turnpike and Riverside Drive. Office space includes common area, conference rooms, storage, rest rooms, kitchenette and ample parking. Furnishings and common receptionist optional. Classic finishes and private entrance available. If interested, please contact Sean Jacoway at (918) 392-5209.

On February 1st, Melissa East was sworn in as a new Special Judge for the Tulsa County District Court. Her husband, Shawn East, assisted her with her robe.

The TCBA will be closed Monday, March 25, for the TCBF Annual Charity Golf Tournament.

TCBA Joins Magic City Books for Book EventThe Devil's Smokehouse

The Law Day Committee's first celebratory event for Law Day 2024 was in collaboration with Magic City Books and brought author Justin Jones to Tulsa. Jones was in conversation about his new book, The Devil's Smokehouse, on January 23 at the Bar Center. Following the presentation, Jones conducted a book signing for attendees, His conversation about the book was facilitated by Law Day Committee member and retired judge, Martha Rupp Carter.

The Devil's Smokehouse is a raw, gritty comingof-age story about Jenkins. Jenkins is a young boy victimized by a violent, alcoholic father and a mother incapable of protecting him or his sister. The unrelenting evil sustained by Jenkins at his father's hands causes the young Jenkins to believe his father is actually the Devil and his mother the Devil's minion. The story is compelling, drawing readers into Jenkins's daily horrific struggles and his escalating desperation and anger. The hardscrabble rural setting in which Jenkins lives contains a cast of unforgettable characters, mostly unsavory. Jenkins and his sister navigate this landscape supported only by an aged, illiterate grandfather to whose home they run when the Devil rampages. How can the fate of such an angry, desperate boy, otherwise lacking help from his small community and without

care of social services, be changed? The twists and mysteries contrived by Jones's in the book lure the reader deep into his spell.

Justin Jones is the former Director of Oklahoma's Department of Corrections. He served as the Director of the Tulsa Juvenile Bureau and was instrumental in overseeing construction of the Tulsa County Family Center for Juvenile Justice. He serves as a consultant in litigation involving treatment of prisoners. He is the author of two other books. Jones is also the recipient of the 2021 TCBA Liberty Bell Award.

Special Judge Stephen R. Clark Retires

District Judge Rebecca Nightingale honored Special Judge Stephen R. Clark on his years of service to the Tulsa County District Court. After presiding over his last Drug Treatment Court graduation, Judge Clark gave thanks to his wife, Martha, and an assembly of Judges, attorneys, court staff and graduates of the DTC program who were in attendance, before passing the Hammer (see oversized gavel below) to Presiding Judge Dawn Moody.

Diversity Development Committee

Greetings TCBA Members!

We are pleased to announce the appointment of Marvin Lizama, as Chair of the Diversity Development Committee and Matthew Ingham, as Vice Chair. Mr. Lizama is the owner of Lizama Law, PLLC, focusing his practice on criminal defense, family law, juvenile law, and immigration law in State and Federal Courts. Mr. Ingham is currently a Staff Attorney with Legal Aid Services of Oklahoma (LASO), and he has over fifteen years of legal experience representing a diverse clientele as a family law attorney and now in his role with LASO. Both Mr. Ingham and Mr. Lizama are graduates and former classmates at the University of Tulsa College of Law.

One of the goals of our committee is to continue to push for diversity, equality and inclusion in the field of law. To that end, we are looking forward to creating and advancing opportunities for all members to become more involved in the TCBA and become active participants in the services we provide our membership and the Tulsa legal community. There are a number of ways for you, the reader, to get involved here. One way is simply by joining us at any of our monthly events at the TCBA Center; you can join us at one of our Courthouse Brown Bag CLEs; or you can come out to one of our fun membership mixers. Another way is by becoming a presenter at one of our numerous CLEs throughout the year. Our CLEs are popular and well attended because they are relevant, up to date, and

most importantly, they are led by brilliant attorneys who are TCBA members and whom we proudly call our colleagues and friends. A third way you can help advance diversity, equality and inclusion in the law is by becoming a sponsor to any of our events planned for this year. No, it’s not about how often you participate, or how many events you attend, or how much money you are willing to contribute to sponsor TCBA events. It’s about participating, getting involved, and making a positive impact on our profession.

In January, the Diversity Development Committee organized a walking group of lawyers and law students from the University of Tulsa College of Law as our entry for the Martin Luther King, Jr., Parade. It was unfortunate that the Parade was postponed due to inclement weather, but we will be present and well represented on the re-scheduled date—which will be announced by the parade organizers soon. On February 9, 2024, The Tulsa County Bar Association was part of the “Diversity Day” held at the University of Tulsa College of Law. This was a full day of workshops, presentations, and a CLE led by attorney Kevinn Matthews, titled: “What is Diversity?”. The workshops included an array of topics ranging from how differences in race, ethnicity, gender, sexual identification, class and other social, political, and cultural differences interrelate, to a presentation about understanding and accepting the fact that not all individuals’ brains are “wired” the same way; that there is no “correct way” for the brain to work; and that people should embrace and

encourage these differences. The Diversity Day also included a twohour career fair that was sponsored and attended by numerous law firms, non-profits organizations, government agencies, and solo practitioners; all of whom took the time to meet and get to know current law students looking for job opportunities and career advice. Of course, no diversity event would be complete without a few wise words from attorney Kevinn Matthews, who presented a one-and-onehalf hour CLE about diversity, equity and inclusion. The Tulsa legal community is well served by the work of the TCBA and its membership, but most importantly, it is the individual work of our members, who are willing to dedicate their time, energy and effort to actively engage in advancing our legal profession, as well as championing social justice for all.

And that’s what makes our bar association so special— our members. Our members respond to the call, each and every time.

Whether is volunteering at a nonprofit, donating clothes during our clothing drive, donating toys for Christmas, or answering phones during our annual Law Day “Calla-Lawyer” event, our members step up to the plate and they deliver! The TCBA Diversity Development Committee offers our membership yet another opportunity to serve our community, to continue to advance the mission of diversity, equality, and inclusion in the field of law and continue to answer the never-ending calls for social justice in Tulsa, Oklahoma, and beyond.

In closing, we invite to join the Diversity Committee monthly meetings, held virtually the second Monday of every month, at 12:00 p.m. You can register for our meetings by emailing us at marvin@lizamalaw.com, or Heather Heck, our membership and CLE director at heatherh@ tulsabar.com. Until next month, cheers. Marvin Lizama, Chair, TCBA Diversity Development Committee.

Lawyers Helping Lawyers

Monthly meeting led by a Lawyers Helping Lawyers Committee member. The small group discussions are intended to give group leaders and participants the opportunity to ask questions, provide support and share information with fellow bar members to improve their lives – professionally and personally

Tulsa Meetings are held 5:30-6:30 p.m. on the second Thursday of each month at the office of Scott Goode, 1437 S. Boulder Ave., Ste. 1200, Tulsa. scottbgoode@gmail.com

Oklahoma City Meetings are held 6-7:30 p.m., Visit okbar. org for dates or email debraj@okbar.org. In-person meetings in Oklahoma City are held at the office of Tom Cummings, 701 NW 13th St., Oklahoma City. The group will also meet virtually at the same time using BlueJeans. Email debraj@okbar.org for login information.

Marvin Lizama

Matthew Ingham

TCBA Seeking Liberty Bell Award Nominations

The Liberty Bell Award was established more than 50 years ago to acknowledge outstanding community service. The Liberty Bell is presented to a non-lawyer who has promoted better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government in the community. The Liberty Bell Award is one of the most prestigious awards the Tulsa County Bar Foundation can bestow on an individual or group of individuals.

Please forward all nominations to Tami Williams, TCBA Executive Director

tamiw@tulsabar.com

Nominees may be an individual or a group that has:

• Promoted better understanding of the rule of law

• Encouraged a greater respect for law and the courts

• Stimulated a sense of civic responsibility

• Contributed to good government in the community

Previous Recipients

1984 Lois McIlroy

1988 Mary Jo Speaker

1989 Nancy McDonald

1990 Lynn Jones

1991 George Singer

1992 Jill Tarbel

1993 Ha Thi Crick

1994 Steven Dow

1995 Michael Reggio

1996 Marty Mundell

1997 Winona Tanaka

1998 Kim Camp

1999 Harriet Morgan

2000 Sally Howe-Smith

2001 Sandra K. Cousins

2003 Chester Cadieux

2004 Jane Kolesnik

2005 Channel 2

2006 Tuesday Morning Miracle Workers

2007 Hamilton 6th Grade Teachers

2008 Community Service Council of Greater Tulsa

2009 Theresa Hansen

2010 Sherri Carrier

2011 Cortez Tunley & Tava Slocum

2012 Ralph Schaefer

2013 Cheryl Conklin

2014 Disabled American Veterans

2015 Bill Braun

2016 Julie Delcour

2017 Suzane Stewart

2018 Amley "Popsey" Floyd

2019 Christine Po

2019 Karen Keith

2020 Not Awarded

2021 Justin Jones

2022 Michael Willis

2023 Matt Lay

Judicial Dinner 2024

Bar members and friends came together to support the Tulsa County Judiciary and recognize the new Presiding Judge for the Tulsa County District Court, Dawn Moody. The dinner serves as a fundraiser for the Tulsa County District Court. Proceeds are made available to the judiciary for much-needed equipment and repairs that could otherwise not be addressed in the court's limited funding from the state. This year’s Judicial Dinner took place at the Mansion in Woodward Park on February 8th, and there were almost 260 people in attendance, making this year’s event the most attended Judicial Dinner to date!

TCBF Trustee Ann Keele welcomed guests before Judge Rebecca Nightingale took the podium to share stories from Judge Moody’s early days at the Public Defender’s office and words of wisdom from serving as the first female Presiding Judge for Tulsa County District Court.

Judge Moody thanked all the sponsors and attendees for making time to attend the dinner and raising muchneeded funding for the Judiciary. She accredited this funding source to covering a recent and significant technology improvement expense that included the purchase of wireless handheld and lapel microphone systems for each courtroom on the fifth and seventh floors; amplifiers for speaker reinforcements for each courtroom on the fifth and seventh floors; additional speakers for the courtroom jury boxes and gallery areas on the fifth floor; and a replacement camera in courtroom 501. Services also included removing old equipment, modifying control panels, and training courses for bailiffs and court attendants. This project cost over $55,000 and was covered by a $30,000 grant the courts were awarded from the Oklahoma Bar Foundation and the TCBF Judicial Dinner fund.

The program ended with a presentation of a ceremonial gavel from Tulsa County Bar Foundation President Mike Esmond.

The Foundation would like to thank members Ann Keele, Tana Van Cleve, and Belinda Wildcat for their assistance the night of the event and the following for donations to the raffle: Corbin Brewster, Shena Burgess, Catherine Hoopert, Joe Hull, Stephanie Jackson, Larry Leonard, Pansy Moore-Shrier, Justin Munn, Kara Pratt, and Tami Williams. The following firms and organizations should also be recognized for their contributions to the raffle: AMF Sheridan Lanes, Barber & Bartz, Brewster & DeAngelis, Kord Brown, Philbrook Museum, Modern Spirits, Spa Southern Hills, Trader Joe’s, Vincent Anthony Jewelers, and Tulsa Zoo.

Judicial Spotlight

The Honorable Melissa A. East

Law School: University of Tulsa School of Law

Family Info: I have been happily married for over 12 years to my husband Shawn and we have an 11-year-old son.

How long have you been practicing law, and what were your practice areas before being appointed as a Special Judge?

I have been practicing law for just over 16 years. Before being appointed, I was a partner at McDaniel Acord, PLLC, a law firm I joined in April of 2016. At McDaniel Acord, PLLC, my practice focused on general civil litigation, including areas of construction law, commercial business litigation and environmental and toxic tort law. Prior to joining McDaniel Acord, PLLC, I was an associate attorney at Richardson Richardson Boudreaux, PLLC, where my practice focused on general civil litigation and personal injury law.

How have your prior experiences prepared you to handle the complexities of being a judge?

During the 15 years I was a litigator, I was put be in many different high-pressure situations, be it at a deposition or at a hearing in front of a judge, situations that required me to think on my feet while also keeping my composure. This has helped me become a more measured person, which I feel will help me handle the many different complexities and challenges that I may face as a judge.

What is your passion outside of work and the law?

Spending time with my family and friends.

What is the best advice you have ever received? My path to becoming a lawyer wasn’t the smoothest and I found myself doubting that path my freshman year in college. I felt a bit lost and decided to meet with a school counselor to discuss what options I had when declaring a major. At one point, I told her I had wanted to be a lawyer since I was in seventh grade but I wasn’t sure I would get into law school. She told me, “Anyone can go to law school.” That was all I needed to hear and I am forever grateful for that piece of advice.

If you could spend the day with one attorney/judge, dead or alive, who would it be and why?

Ruth Bader Ginsberg. I admire her for her perseverance and for her passion of the law. She is a true gem, and I have no doubt spending a day with her would be priceless.

What is your favorite book, movie, or television show?

I have many favorites in these categories, but one of my all-time favorite movies is My Cousin Vinny. It was my inspiration to become a lawyer, and then eventually a judge.

Tell us a fun fact that no one knows about you!

Something fun that not a lot of people know about me is that when I was in 8th grade, I placed 3rd in my age group in the Missouri State free throw championship.

What is your favorite food?

Chips and Queso.

Expert Evidence and the Power of Authority

By Tamara R. Piety

In January, I wrote about the horrifying case of Doctor Henry Cotton1 in Trenton, New Jersey who, in the early part of the 20th century, subjected the inmates of the Trenton State Hospital to extensive surgeries, including pulling all their teeth, in pursuit of his ultimately discredited theory that periodontal disease was the cause of mental illness. Although Dr. Cotton’s theory was a minority position even in his own time and contemporaneous study demonstrated that these surgeries were of dubious benefit, our current legal test for expert evidence, Daubert, 2 would have been of little use in demonstrating how empty his theory was. As I discussed in that article, Dr. Cotton’s work had been tested, but the public ones were inconclusive or ambiguous. More damning testing was not publicly released until many years after it was conducted. It had been subject to peer review and published, but such review failed to reveal its lack of soundness. There was no known error rate but Dr. Cotton was a licensed physician, highly credentialed and performed his surgeries along with contemporary standards. While it would not be quite fair to say that his theory had gained “general acceptance,” it was considered to be within the range of legitimate, if unproven and minority opinions on the issue. So, Dr. Cotton’s practice would probably have allowed him to testify as an expert, despite its actual invalidity.

This outcome is obviously troubling. We don’t want someone to testify as an expert to a theory that is completely without foundation. The reason we don’t is that we are uncertain of the jury’s ability to differentiate between good and bad expertise. How can we expect them to if even Dr. Cotton’s own colleagues weren’t prepared to clearly discredit his practices? This goes to a key criterion

1 See Andrew Scull, Madhouse: A Tragic Tale of Megalomania and Modern Medicine (2007). This book is non-fiction but reads like a novel and is highly recommended for those who interested in this case. Reading the full account makes more obvious that the factors that led to Dr. Cotton’s being able to carry out these dangerous, unnecessary, and disabling operations persist to this day.

2 Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

for expert testimony: will it “help”3 the jury? If all we mean by “help” is to help them come to a decision, then even bad expert testimony might help the jury. But if we mean by this that it will help them come to the correct decision factually, then invalid expert testimony is not only no help, it is worse than nothing. The reason invalid expert testimony is worse than nothing is one of the same reasons that Dr. Cotton was able to persist with his terrible practices for so long- the psychological persuasiveness of authority.

In his seminal book Influence: The Psychology of Persuasion, 4 Dr. Robert Cialdini describes obedience to authority as one of the potent tools of influence.5 Part of the reason for this is that it allows us to simply react, to substitute thinking about a subject for simply responding. This makes sense when it comes to expertise that we don’t share where thinking harder about something won’t help.6 Nevertheless, in trials we need decisions, even to questions that perhaps don’t have clear answers, and expert testimony presents juries with a very tempting reason to simply defer to the expert (even though they may not be called “expert” and even though there may be evidence from competing “experts”). This tendency to defer is at least potentially unfair in prejudicial ways. How prejudicial may be illustrated by a famous (or infamous) experiment of the power of authority: the Milgram experiments.

3 See Fed.R.Ev. 702(a) “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

4 Robert B. Cialdini, Influence: The Psychology of Persuasion (rev ed. 2007).

5 Id. at 218.

6 It is worth noting that the rules of evidence essentially a judge who is also not an expert in the myriad areas that come before the courts to “think harder” about, for instance, whether “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Fed.R.Ev. 702(d). As the late Justice Rehnquist suggested this may be a duty that is impossible to discharge.

Milgram, a Yale psychology professor, was puzzled, as many people were, by what led so many otherwise normal German citizens to commit atrocities against their their fellow citizens and those of other countries in the Nazi concentration camps during World War II. He set up an experiment in which he recruited volunteers from the community who were told that they were participating in a memory experiment. The volunteers believed that they were randomly selected to be “teachers” in an experiment with “learners” who were set up in another room where they could not see them. The “teachers” were presented with a set up which they were told would administer electric shocks to the “learner” on the other side every time they made a mistake. On the display before them, the shocks were graded from 15 volts rated as “mild” all the way to 450 volts labeled “XX.” The teachers were told to administer shocks to the learner every time the learner made a mistake on the memory test. In the experiment, most of the subjects continued to administer shocks to the learner even after he7 heard screamsand cries of pain from the other room simply because the person conducting the experiment (who, of course wore a white coat) said to any hesitation or question: “the experiment requires that you continue.”8

In fact, there were no electric shocks, and the cries of pain were pre-recorded. The learners were actually recruited by Milgram to pretend to be part of the experiment, but were not actually subjects. Milgram wanted to know how far people would go simply because they were told be someone in authority that they should do so. The answer was (no pun intended) shocking. Two thirds of the subjects were willing to shock the learner on no better evidence than that someone in a white coat urged them to do so.

We need to be able to defer to experts in many cases,

7 One of the weaknesses of this study, in terms of extrapolating it to the population, is that the subjects were exclusively middleaged white men in the New Haven area, perhaps not sufficiently representative of the population to extrapolate the results precisely. Nevertheless, the results were robust enough to be alarming.

8 A video clip of a longer movie on this subject is available at https://youtu.be/Kzd6Ew3TraA

if no better reason than that sometimes it is better to make a wrong decision than to make no decision at all. Certainly, legal cases – to some extent anyway – fall into this category. We cannot defer a decision in every case until we know with certainty what happened. Experts are not the only ones who can be wrong. As we know, eyewitnesses can be wrong. Lawyers can fail to uncover all the relevant evidence or make strategic decisions not to present all the evidence they have. Mistakes happen. Nevertheless, the power of the authority of someone who purports to be an expert, or who comes clothed in the trappings of expertise, is such that it exerts a special type of unfair prejudice that the rules permit the court to exclude if it appears that their testimony is of uncertain and ambiguous validity.

Much statistical evidence arguably falls into this category. So, for example, if an expert can testify that crossracial identifications are less likely to be reliable than intraracial identifications, but the witness cannot say whether this particular witness was right or wrong, one could argue that this evidence will not “help” the jury, that it might be misinterpreted as offering that all cross-racial identifications are wrong. On the other hand, it seems unconscionable not to admit such testimony where it is relevant. The key factor may be where this evidence sits amongst the other evidence. If the other evidence, for example a defendant who says he is not the perpetrator, there is no other forensic evidence where you expect you would find evidence, etc., these facts suggest that the expert testimony might be particularly relevant. If there is no other reason to doubt an identification, there may be a stronger argument to exclude. Still.

This problem with deference to authority is a key problem with witness credibility at every level, not just experts. How we receive evidence, who we believe is telling the truth, is intimately tied up with a person’s status in society. Deference to authority is part of how Dr. Cotton managed to continue with his dreadful surgeries long after he and other knew or should have known that his theories about their efficacy did not hold water. That same deference is why even judges and lawyers may have difficulty in sorting out the difference between astrologers and astronomers. In my final installment, I will talk about other psychological and social phenomena that make it so difficult to sort our truth from falsity and expertise from flim-flam.

ABOUT THE AUTHOR

Tamara Piety is a Professor emerita of Law at the University of Tulsa College of Law where she taught Evidence, Expert Evidence and Corporate Law. Before coming to TU she practiced law in South Florida and remains an active member of the Florida Bar. Professor Piety is a internationally recognized expert on corporations and the First Amendment and has written extensively on this topic, including her book, Brandishing the First Amendment, which was published in 2012 by the University of Michigan Press.

Judicial Spotlight

The Honorable Todd Chesbro

Law School: University of Oklahoma College of Law

Family Info: Married to Julian Moyer Chesbro with two children, Gabe (21) and Abby (20)

How long have you been practicing law, and what were your practice areas before being appointed as a Special Judge?

I began my career in 1997 as a Tulsa County Assistant District Attorney as a felony prosecutor practicing before Judge Jesse Harris. After three years, my wife and I moved to New York, so I could have the opportunity to coach college wrestling at the United Sate’s Military Academy at West Point. It was a great experience for a young couple without children, but then my wife became pregnant with our first child, and we knew we were coming home. I was fortunate to resume my position with Tulsa County. I soon became Team Captain before ultimately becoming a member of the Major Crime team. After my father’s passing in 2006, I went into private practice with my law partner and now Washington County Special Judge Jared Sigler with a focus on criminal defense. I remained in private practice until 2018 until a received a call from Tulsa County, and

ultimately, returned to being a prosecutor as the Director of the Robbery Division. I stayed in Tulsa County for four years until I had an opportunity to take a position in Rogers County as their Major Crimes prosecutor which I held until my appointment.

How have your prior experiences prepared you to handle the complexities of being a judge?

Prior to law school, I honestly had no idea what it meant to be a lawyer. I was going to be a doctor or coach college wrestling. Somehow that changed, and I really don’t know why. I just wasn’t sure what I wanted to do, but prior to my time at the University of Oklahoma, I was a successful college wrestler at Oklahoma State. It’s my wrestling experiences that have provided me with the foundation that I believe jump started my law career. My goal was to be an NCAA Champion. I didn’t achieve that goal, but when I look back today, I realize how much I learned that prepared me to be an attorney. Wrestling taught me work ethic, humility, and how to deal with adversity. My last year of law school, I found myself in a position where I had completely lost my identity. I had no idea who I was or why I was there. I was ready to quit. My friend was working as an intern at the Oklahoma County District Attorney’s Office. He convinced me that I should give it a try. I did and I loved it. I second chaired two murder trials as a legal intern participating in voir dire, witness examination and closing argument. I found my identity in the legal profession. As a prosecutor, I managed dockets on a daily basis. I learned how to deal with difficult witnesses, victims, and attorneys, and I most importantly learned how to handle myself in the courtroom. I believe I have a unique background that has prepared me to handle this position.

What is your passion outside of work and the law?

Outside of work, I am passionate about family, cooking, and Oklahoma State University athletics, especially wrestling.

What is the best advice you have ever received?

I have a sign in my home office that used to hang on the wall in the basement of Gallagher Hall. This is where I grew up, Oklahoma State University’s wrestling room where my father was the Head Coach. It reads “By Failing to Prepare, You Are Preparing to Fail.” I have succumbed to that lesson in life many times, so I keep it there as a reminder although I always remember as well that failing is an important part of future success. If you could spend the day with one attorney/judge, dead or alive, who would it be and why?

David L. Moss. I came to Tulsa just two years after his passing. He had been Tulsa County’s District Attorney for fourteen years. At the time, I had no idea who he was and there was no way for me to fully appreciate what he meant to Tulsa County. I’ve had the honor to

work with many who worked with him and knew him well. He is described as a man of character, a man of integrity. I had no one in my family who practiced law, much less a prosecutor. My heroes and mentors were typically coaches and athletes. I’ve worked with some amazing people and learned from so many. It would have been an honor to work for and known him.

What is your favorite book, movie, or television show?

Chef

Tell us a fun fact that no one knows about you!

I’m a Food Network junkie.

What is your favorite food?

Anything Asian

Lynn Miller Law Day Book Club - March 2024

Tuesday March 19th

"We are surrounded by the extraordinary," writes Mark Darrah, the leader of the March 2024 Lynn Miller Law Day Book Club, in his book A Catalogue of Common People. Join him in a conversation about those people in our lives whose names will never be included in the history books, who will not be known for inventing life-changing gadgets or writing learned treatises, but whose wisdom and character are anything but common.

A Catalogue of Common People is available online in paper or electronic format at amazon. com. Paperbacks may also be obtained at Boardinghouse Books in Claremore, at thriftbooks.com, at barnesandnoble.com, and at the author's office. They may also be purchased that evening.

If you would like to join us, please register by

emailing Martha Rupp Carter at mruppcarter@yahoo.com. She will provide details. Attendance for this session is not limited to lawyers. There is no charge and no homework. Plan for a healthy discussion and feel free to bring your own stories about uncommon common people. Mark is a long time TCBA member with a solo general practice in midtown and a former commentator on Public Radio Tulsa. The Oklahoma Bar Association recently awarded him with the 2023 Earl Sneed Award for contributions to legal education.

A Catalogue of Common People is a collection of short vignettes and essays about real people and places. It runs 139 pages and the list price is $9.95.

2024 Lynn Miller Law Day Book Club

Two book club sessions left! There is plenty of time to secure the books and read ahead. Remaining Book Club discussion leaders are Mark Darrah in March and Kaylind Landes in April. Our excellent discussion leaders have selected a good variety of literary works to pique our interests and engender interesting discussions. If you want to attend any one or more or all book discussions, please email Martha Rupp Carter at mruppcarter@yahoo.com to register yourself and up to one guest. Once you are registered, location details for Book Club will be shared. Registration is limited to fifteen persons per session on a first come, first served basis. Happy reading.

March 19th - Mark Darrah will lead discussion in March of the book he authored, A Catalogue of Common People, a collection of vignettes and essays about “uncommon common people.” In addition to writing fiction and prize-winning essays, Mark wrote some of the first performance mysteries enacted in this part of the country, including the first performance mystery ever anywhere for a naturist community. He has been a regular contributor to “Studio Tulsa” on Public Radio Tulsa and was the 2018 Carl G. and Gladys L. Herrington Distinguished Lecturer at Rogers State University. Mark was an adjunct judge for the Oklahoma Department of Labor. He is an amateur fiddler. Mark is fascinated by the stories and extraordinary people he encounters in the practice of law.

April 16th - Kaylind Landes will lead discussion in April of Go Set a Watchman, by Harper Lee; this book is the only other published novel by the author of To Kill a Mockingbird. These novels are intertwined. Kaylind graduated with honors from the University of Tulsa where she participated in the Energy Law Journal and the health law moot court team. She received an award for the highest grade in Indian Gaming Law and the Order of the Barristers as a top ten student in law school. She served as assistant district attorney in the Tulsa and Rogers County District Attorney Offices. In those offices, Kaylind worked in every aspect of criminal prosecution from charging cases to jury trials. Kaylind works at the Tulsa DUI Guy with primary focus on defending misdemeanor DUI cases. Kaylind volunteers as a coach for the Owasso High School Mock Trial team and is the OSU liaison for her sorority, Pi Beta Phi.

“The practice of law is a calling, not a business.”

~ David J. Brewer

Mark Darrah

Kaylind Landes

March 19th: A Catalogue

of Common People

by Mark Darrah

April 16th: Go Set a Watchman

by Harper Lee

The Voices of Democracy Law Day theme encourages Americans to participate in the 2024 elections by deepening their understanding of the electoral process, discussing issues in honest and civil ways, turning out to vote, and, finally, helping to move the country forward after free and fair elections. In this way, Americans ensure that our government remains responsive to the wishes of the people. We invite all Americans to join us on May 1, 2024, to celebrate Law Day by lifting their voices to strengthen our democracy.

JOIN US FOR THE TCBF ANNUAL CHARITY GOLF TOURNAMENT

The Tulsa County Bar Foundation is excited to announce its 2024 Charity Golf Tournament is scheduled for Monday, March 25th, 2024, at Meadowbrook Country Club’s par-71, 6,741-yard championship golf course. We hope you can join us for this longstanding event that has benefited many local charities.

As you are planning your budget for 2024, we would sincerely appreciate your support for our tournament, which provides critical financial funding for worthy charitable beneficiaries. Proceeds from the 2024 tournament will benefit the Iron Gate, Tulsa Lawyers for Children, and Coffee Bunker.

As a leader in the community, we know you understand the need to take an active role in supporting area non-profits. Participating in this golf tournament will not only see your sponsorship go back into the community, but it will also allow you to network with other players, sponsors, and guests. Sponsors are also recognized in the Tulsa Lawyer magazine, the official publication of the Tulsa County Bar Association, which is shared with approximately 2,000 attorneys. Sponsor information will also be posted on the TCBA website and all event signage.

Please get in touch with Tami Williams at the Tulsa County Bar Association at 918-584-5243 or tamiw@tulsabar.com for more information. We hope to see you, your employees, friends, and colleagues for a game of golf, food, and fellowship . . . all for the betterment of the Tulsa community.

Sincerely,

Billy Duncan and Michael Thelen TCBF 2024 Golf Tournament Co-Chairs

Includes: Gree fee, polo shirt, golf cart, range balls, hole prizes, swag bag, lunch, and beverages.

A l l s p o n s o r s r e c e i v e : Single players welcome and will be assigned to a team.

* Signage & recognition at tournament site. T E A M S : $ 6 0 0

* Recognition in Tulsa Lawyer Tournament is open to all golfers, including non-lawyers. and on the TCBA website. Teams of consist of four (4) players. Joint team handicap of 40 or greater.

E A G L E - $ 2 , 5 0 0

* Four (4) paid players

* Four (4) golf shirts

Limit (1) player per team may have a handicap of 9 or less.

Proper golf attire is required.

* Two (2) Mulligans per player F O R M A T :

* Opportunity to share promo Four person scramble. materials with players. 18-hole stroke play.

B I R D I E - $ 1 , 5 0 0

* Two (2) paid players

* Two (2) golf shirts

* Opportunity to share promo materials with players.

P A R - $ 6 0 0

* One (1) paid players

* One (1) golf shirt

* Opportunity to share promo materials with players.

H O L E - $ 3 0 0

*Signage and recognition at tournament site.

*Acknowledgement on TCBA website and in Tulsa Lawyer

Mulligans $10/each - limit three (3) per player.

CELEBRATE & SUPPORT TCBF

By being a member of the TCBA, you are also a member of the Tulsa County Bar Foundation. As a general rule, the funds that come into the Foundation are the result of a fundraising event for our community, and the monies raised are immediately distributed back out into the community through non-profit organizations.

In an effort to assist the Foundation, we have implemented a monthly “Fund the Foundation” program. To participate we are asking each member who has a birthday this month to consider making a donation to the Foundation. You can do so with the QR Code shown here.

If you are not currently a Fellow, please consider joining that program. As a thank you (and let’s be honest, an encouragement to other members), if you donate before the 10th of the month we will include a shout out to you in the next issue of Tulsa Lawyer Magazine.

Michael Taubman

Michael Nesser

Outreach in Action

The TCBF Outreach Committee held a volunteer day at the Tulsa Day Center on Saturday, February 10. Volunteers helped organize donations received recently during a winter weather clothing drive the Day Center held in January.

Gr apevine News

Foster Garvey is pleased to announce the official opening of its Tulsa, Oklahoma office. Located in the Mid-Continent Tower at 401 South Boston Ave., this newest office is part of the firm’s national expansion into the markets most critical to its clients’ success. Led by R. Daniel Carter, who is a Principal in the Tribal Governments and Enterprises practice group, the Tulsa office further enhances the firm’s services for Native American tribes and tribal entities.

“Foster Garvey takes great pride in our long history of service to Native American and Alaska Native tribes and their tribal communities,” said firm Co-Chair Diana Shukis. “Our Tulsa office bolsters our ability to continue working closely with tribes to protect sovereignty and treaty rights, preserve histories and culture, and expand economic opportunities.”

“We are thrilled to have Daniel leading our office in Tulsa,” added firm Co-Chair Rafael Stone. “His dedication to public service and civic leadership, as demonstrated by his tenures in the federal government and as attorney general for tribes, as well as his work on various boards of directors such as the Tulsa Lawyers for Children and the Greater Tulsa Area Indian Affairs Commission, further enhances our commitment to serving our clients and communities."

Daniel Carter, a citizen of the Muscogee (Creek) Nation, joins Chloe Thompson Villagomez, based in the firm’s Seattle office, in Foster Garvey’s longstanding Tribal Governments and Enterprises practice. The firm has decades of experience providing tribes and tribal entities with a full suite of legal services, including those relating to business and economic development, treaty rights, litigation, employment, gaming, real property, intergovernmental relations, historic preservation, financing, and government contracting. “Chloe is a brilliant attorney with extensive experience in treaty rights litigation, economic development, employment matters and more. With almost 20 years of experience, including a decade as in-house tribal counsel, she has a deep understanding of tribal governments and their legal needs. I am excited about bringing Chloe’s valuable insights to our legal representation of tribes in the Oklahoma area,” said Daniel.

In addition to representing tribal governments and enterprises, Foster Garvey’s entrance into the Oklahoma legal market allows for a broader range of legal services

to the wide assortment of businesses operating across the state. “The legal market in Oklahoma is steeped in history, but it has been generally slower to adapt to modern needs. Foster Garvey is on the cutting edge of emerging legal issues, for example, those arising out of artificial intelligence, cybersecurity and renewable energy. With Foster Garvey’s expanded footprint into Oklahoma, businesses and entities will have increased access to legal services that have been difficult to find within Oklahoma’s borders—intellectual property & technology, hospitality and entertainment, and investment management, to name a few,” said Daniel. More information about Foster Garvey can be found at www.foster.com

GableGotwals is pleased to announce the addition of Joseph W. Lang as Of Counsel in the Tulsa office. His practice focuses on commercial litigation and labor and employment matters. Joe has represented clients in a variety of civil litigation matters, including appeals, corporate litigation, insurance coverage, and complex family and domestic relations cases. He has extensive experience in all stages of civil litigation and has successfully represented clients as lead attorney in evidentiary hearings and trials.

Prior to joining the Firm, Joe served as a judicial law clerk for the Honorable John E. Dowdell and the Honorable Terence C. Kern in the U.S. District Court for the Northern District of Oklahoma.

Following Judge Kern’s retirement announcement, Joe decided to transition back into private practice. “I chose GableGotwals because it is the best firm in Tulsa in terms of reputation. And if you want to do your best, you work with the best,” said Joe Lang.

“We are excited Joe decided to join the Firm. GableGotwals has a long history of employing former judicial clerks. Their unique experiences provide critical insight into case proceedings and analysis, which is valuable to our clients,” said John Dale, CEO of GableGotwals.

CERTIFIED COURTROOM REPORTER –

TULSA COUNTY

Position: Certified Shorthand Reporter (District Judge and Pool Openings)

Location: Tulsa County Courthouse, Tulsa, Oklahoma

Hiring Officials: District Judges Kevin Gray and Doug Drummond, Court Administrator, Kim Hall (pool positions)

Salary: Pursuant to Statute

Benefits: State paid annual and sick leave, insurance, and retirement

Necessary Qualifications: Certified by the Oklahoma CSR Board and as required by Oklahoma Statutes

Resumes should be directed to: Kim Hall, Court Administrator Tulsa County Courthouse, 500 S. Denver, Room 637 Tulsa,OK 74103

kim.hall@oscn.net (918) 596-5400

MCDANIEL ACORD, PLLC IS RECRUITING

A LITIGATION

ASSOCIATE

ATTORNEY for the firm’s Tulsa office to assist our clients in civil litigation and family law within a strong team setting that focuses on client service and maximizing outcomes. Our practice includes challenging procedural and technical issues, and the successful candidate will possess strong analytical and advocacy skills. Our Firm provides excellent benefits and rewards performance. We are looking for the right attorney to join our team who will take pride in the service we deliver and fit within our family-oriented, friendly, and low-key firm environment. Candidates should have 2 to 5 years litigation experience that reflects skill in legal research, drafting memoranda, briefs and discovery, taking depositions, managing document production, and oral argument. Candidates should submit a recent writing sample and CV to smcdaniel@ok-counsel.com.

ESTABLISHED SMALL DOWNTOWN TULSA

2023-2024 TCBA CONTACTS, COMMITTEE & SECTION CHAIRS

www.tulsabar.com

PHONE: 918-584-5243 FAX: 918-592-0208

1446 South Boston, Tulsa, OK 74119-3612

Executive Director

Tami Williams tamiw@tulsabar.com

Ext. 1002

Membership Director

CLE, Sections & Committees

Heather Heck heatherh@tulsabar.com

Ext. 1001

Front Desk Coordinator

General Inquiries

frontdesk@tulsabar.com

Ext. 1000

Accounting accounting@tulsabar.com

Lawyer Referral & Community Resource Navigator

Jeril Haug jerilh@tulsabar.com

Ext. 1003

Tulsa Lawyer Editor - Michael Taubman michael@tulsafirm.com

Associate Editor - Milly Dunlap

Tulsa Lawyer Submissions - tulsabarnews@yahoo.com

TCBA OFFICERS

President ...................................................................Mike Esmond

Past President...............................................................Philip Hixon

President-Elect....................................................Stephanie Jackson

Vice President......................................................Michael Taubman

Secretary....................................................................... Lizzie Riter

Treasurer..................................................................... Austin Birnie

Budget/Internal Operations.......................................Barrett Powers

Foundation President ..................................................Justin Munn

Director at Large (1) Large Firm.................................Austin Birnie

Director at Large (2) Large Firm................................ Natalie Sears

Director at Large (1) Medium Firm.........................Jennifer Struble

Director at Large (2) Medium Firm..................................Kara Pratt

Director at Large (1) Small Firm............................Linda Morrissey

Director at Large (2) Small Firm..................................Mark Smith

Director at Large (2) Public Sector.................. Judge April Seibert

ABA Delegate............................................................. Molly Aspan

OBA Delegate..............................................................Philip Hixon

Library Trustee (1)..................................................... Kim Vojvoda

Library Trustee (2)........................................................ Julie Evans

Presiding Judge .......................................... Hon. Dawn Moody

Chief Judge, U.S. District Court ...................Hon. John F. Heil, III

Chief Judge, Tulsa Municipal Court..........Hon. Gerald Hofmeister

TU Law School Student Representative ..............Taylor Williams

TU Law School Representative..................................Natalie Leone

YOUNG LAWYERS DIVISION BOARD

YLD Chair.........................................................Colton Richardson

YLD Chair Elect...................................................Lacy Williamson

YLD Vice President........................................................Kyle Trice

YLD Treasurer......................................................Pierre Robertson

YLD Secretary..........................................................Kaia Kennedy

FOUNDATION APPOINTMENTS

Law Day Co-Chairs ..............Tana Van Cleave and Mary Clement

Community Outreach................................................ Ashley Webb

Golf Co-Chairs..............................Billy Duncan & Michael Thelen

Scholarship Chair........................................................Randy Lewin

FOUNDATION

President.....................................................................Justin Munn

Vice President...........................................................Billy Duncan

Treasurer...........................................................Catherine Hoopert

Trustee........................................................................Jim Gotwals

Trustee...........................................................................Ann Keele

Trustee..........................................................................Rick White

Trustee...............................................................Michael Taubman

Trustee.........................................................................Lizzie Riter

Trustee ..................................................................Chad McLain

Trustee .......................................................................Kara Vincent

TCBA President.......................................................Mike Esmond

TCBA Pres. Elect..............................................Stephanie Jackson

COMMITTEE CHAIRPERSONS

Access to Justice...............................................Pansy Moore-Shrier

Animal Law .............Katy Inhofe

Bench & Bar........................................................Kevinn Matthews

Bench & Bar Co-Chair ...........Diana Cupps

Children & the Law.......................................................Lizzie Riter

Children & the Law Vice Chair..........Timothy Michaels-Johnson

CLE..................................................................Pansy Moore-Shrier

Diversity Development...........................................Marvin Lizama

Diversity Development Vice-Chair ...........Matt Ingham

Fee Arbitration.............................................................Scott Savage

Law Related Education / Street Law.............................Co-chairs

.......................................................Pierre Robertson , Kara Vincent

Lawyer Referral .........Karen Wilkins

Membership Services.......................................................Kara Pratt

Mentoring ........................................................ ........Shena Burgess

Military/Veterans ......Mitchell Garrett

Military/Veterans Co-Chair... ...Hon. David Guten

Nominations & Awards ...........Philip Hixon

Pro Bono................................................................. Mac Finlayson

Professionalism .............Rick White

Public Relations/Social Media ..................................Collaborative

Special Events ..........Natalie Sears

Tulsa Lawyer................................................... ...Michael Taubman

Young Lawyers Division...................................Colton Richardson

SECTION CHAIRPERSONS

ADR/Mediation...........................................................Diana Cupps

Bankruptcy ..Hon. Paul Thomas

Business/Corporate..........................................Whitney Humphrey

Criminal Law ............Daniel Levy

Energy & Mineral Law.............................................Buford Pollett

Employment Law ............................................ ........Jessica Vaught

Family Law Co-Chairs..........................Anastasia Krich-Mahoney

..............................................................................Jordan Dalgleish

Health Law ...................................................... ......................Open

Juvenile Law. .............Lizzie Riter

Juvenile Law Co-Chair.........................Timothy Michaels-Johnson

Litigation....................................................... Mbilike Mwafulirwa

Municipal Law..................................................Rhiannon Thoreson

Paralegals/Legal Assistant....................................Kathryn Keener

Paralegal /Legal Assistants Vice Chair.....................Gloria Jones

Probate/Estate/Elder Co-chairs................................. ...Kelly Jones

................................................................................Phillip Jennings

Solo/Small Firm .......................................................Mary Clement

Tax............................................................................John Gotwals

Technology .....................................................Pansy Moore-Shrier

Workers Comp...........................................................Valerie Evans

* Section Chairs will be updated as positions are filled