MONTANA DECEMBER/JANUARY 2020/2021 LAWYER

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IN THIS ISSUE FEATURE ARTICLES

4 PRESIDENT AND EXECUTIVE DIRECTOR’S MESSAGE 6 MEMBER NEWS 10 YOU SHOULD KNOW 11 COURT NEWS 11 JEST IS FOR ALL 13 FASTCASE BYTES 29 IN MEMORIAM 30 JOBS/CLASSIFIEDS 20

APPELLATE ADVOCACY Preparation and practice are crucial to having an effective oral NEW THIS ISSUE argument. Second in a two-part series by Matthew Cochenour and Stuart Segrest on appellate advocacy.

1099 FORMS IMPORTANT FOR LAWYERS & CLIENTS These forms for reporting various types of incomes are among the most im- portant tax documents and should not be taken lightly. Page 14 LAW FIRM ACCOUNTING New comic debuts. “Jest Is for All,” a comic strip by If you were stressing about Massachusetts based lawyer the books instead of enjoy- Arnie Glick, debuts in this is- ing the holidays this year, sue of the Montana Lawyer. check out these tips. Page 11 Page 17

WWW.MONTANABAR.ORG DECEMBER/JANUARY 3 PRESIDENT & EXECUTIVE DIRECTOR’S MESSAGE After a trying 2020, we look to a stronger future

Well, what a year. better attorney well-being. As we end 2020 and turn the cal- At the State Bar of Montana, we have endar, we close the books on a historic continued to adapt, both by making and trying year for all of us, particularly changes internally for the health of our for those most closely impacted by the staff and externally to deliver more pro- COVID-19 pandemic. So many of our gramming and continuing legal educa- fellow citizens have been affected and tion remotely. In fact, since the pan- too many have lost someone close to demic forced a change in operations in them. Our deep condolences go out to March 2020, we’ve hosted over 5,000 of each family, including those in our bar, you for our remote CLEs and programs. who have lost loved ones. In 2021 we will continue to offer remote The ongoing global pandemic has options and we will make additional changed much of how business is changes to our online presence to meet conducted the world over. It also has the increased demand for nontraditional Kate McGrath Ellis is an attorney with the challenged the legal profession. We are engagement and participation. Montana Auditor’s office proud of the way our fellow attorneys, Through diligence and creativity, paralegals, judges and support staff the finances of the State Bar of Montana have responded to the crisis, remaining also remain strong and the organization steadfast to the promise of equal justice is financially healthy. We consider our- under the law by maintaining court selves fortunate in these difficult times. operations and ensuring that the third At the end of the day, perhaps most branch of our government continues to importantly, 2020 reminded us of the function. importance of family and friends, and In fact, everywhere we turn, we see that we are all stronger when we pull innovation and new thinking that we together. It also reminded both of us hope will have a positive and lasting that we are very fortunate to work for an impact in the legal sector. In a large state outstanding membership of women and like Montana, the opportunity for re- men committed to our clients, to our John Mudd is the mote delivery of legal services has never profession and to each other. executive director of the been stronger and offers real promise So, here’s to the next chapter. We State Bar of Montana to help bridge the continuing access to wish you and yours a healthy, happy justice gap for too many of our fellow and prosperous 2021. Montanans. The traditional norms that Kate McGrath Ellis, President. have governed law offices have been -re placed with more flexible work environ- John Mudd, Executive Director. ments that, perhaps, hold promise for

Montana Lawyer Subscriptions are STATE BAR OFFICERS BOARD OF TRUSTEES Matt Haus, Bozeman a benefit of State Bar membership. Randy Snyder, Bigfork Bozeman Subscriptions for nonmembers are President Elizabeth Brennan, Alanah Griffith, available for $50 per year. Kate McGrath Ellis, Helena Missoula Big Sky Advertising rates and subscrip- Erica Grinde, Missoula Shane P. Coleman, President-Elect The official magazine of the State Bar tion information are available upon Beth Hayes, Missoula Billings Brian C. Smith, Missoula of Montana. State Bar of Montana, 33 request or at www.montanabar.org/ Kaylan Minor, Dillon Ben T. Sather, Billings S. Last Chance Gulch, Suite 1B, P.O. page/MTLawyer. Secretary-Treasurer Gregg Smith, Eli Patten, Billings Box 577, Helena MT 59624. 406-442- David Steele, Missoula Great Falls 7660; Fax 406-442-7763. Statements and expressions of ABA DELEGATES opinion appearing in the Montana Immediate Samir Aarab, Shane Vannatta, Lawyer are those of the advertisers or Past President Great Falls Missoula (Montana Montana Lawyer Staff authors and do not necessarily reflect Juli Pierce, Billings Kent Sipe, Roundup Delegate) Publisher | John Mudd the views of the State Bar of Montana. Danna Jackson, Helena Tucker Gannett, Billings Editor | Joe Menden Chair of the Board (State Bar Delegate) Alanah Griffith, J. Stuart Segrest, 406-447-2200; fax: 442-7763 Postmaster: Send address changes Eli Patten, Billings Big Sky Helena email: [email protected] to Montana Lawyer, P.O. Box 577, (Delegate at Large) Aislinn Brown, Helena Helena MT 59624.

4 MONTANALAWYER WWW.MONTANABAR.ORG WWW.MONTANABAR.ORG DECEMBER/JANUARY 5 MEMBER NEWS 3 new attorneys join MLSA where he earned his Juris Doctorate in Championship baseball team. Will at- May 2019. While attending law school, tended law school at the University of Montana Legal Services Association he wrote for and served as an editor for Montana, graduating with honors in recently announced it has hired three new the Public Lands and Resources Law 2019. During law school, he was a mem- attorneys. Review. He also competed in National ber of the National Trial Competition Alexandra House joined MLSA as Environmental Moot Court and served Team and the recipient of the a domestic violence attorney. House as a board member for both the Outdoor International Academy of Trial Lawyers received her J.D. from Tulane University Recreation Law Group and the student Award for Distinguished Achievement School of Law where she also received chapter of the Montana Trial Lawyers in Trial Advocacy. After law school, Will a certificate in International and Association. Burke is licensed to practice clerked for Judge Sam E. Haddon, United Comparative Law. While at Tulane, she law in both the state and federal courts of States District Court for the District of POWERING worked with the Criminal Justice Clinic Montana. His areas Montana. Will is where she advocated for clients at vari- of practice include an avid outdoors- ous stages of the justice system. She also insurance coverage man and spends his PAYMENTS interned with the Innocence Project, the and civil defense free time fly fishing, Bozeman Office of the Public Defender, litigation. In his hunting, and skiing. FOR THE and Hogan Lovells in Paris. She received spare time, Nathan Rebecca L. Trust Payment her undergraduate degree from the enjoys hiking and Stursberg was born IOLTA Deposit Wharton School of the University of skiing, growing and raised in New Pennsylvania. indoor plants, and York City. She Amount LEGAL Bridgitt Erickson graduated from reading. attended college at $ 1,500.00 Creighton University Law School in Burke Ames grew Casey the University of INDUSTRY Omaha, Nebraska, and then served as up in Rapid City, Michigan, where Reference The easiest way to accept credit, an assistant state prosecutor in Omaha South Dakota, she earned a B.A. in NEW CASE before being appointed Platte County and received his English literature in debit, and eCheck payments Attorney in Nebraska. Erickson con- bachelor’s degree 2010. Following a Card Number tinued in government practice with from Montana State cross-country road Montana state agencies until 2014 when University in 2015 trip, Rebecca ended **** **** **** 4242 The ability to accept payments online has she was named to the Federal Register of where he gradu- up in Missoula, fell become vital for all firms. When you need to Administrative Law Judges and narrowed ated with honors. in love with the get it right, trust LawPay's proven solution. her practice to administrative law. She He earned his Juris community and serves as MLSA’s public benefits attorney Doctorate from the life in the Rocky focusing on social security, disability, and Blewett School of Stursberg Mountain west, As the industry standard in legal payments, Medicaid/Medicare issues. Ames Law in May 2020, and decided to stay. LawPay is the only payment solution vetted Jacob Johnson joined MLSA as an with a certificate in She attended the and approved by all 50 state bar associations, EJW Elder Justice Fellow, with a focus on Federal Indian Law. University of Montana School of Law, providing legal advice and representa- He interned with the Brown Law Firm where she worked as an editor on the 60+ local and specialty bars, the ABA, and tion to elder victims of crime, fraud, and during his third year of law school. Ames Montana Law Review, a teaching assistant, the ALA. abuse. He received his J.D. from Indiana is admitted to practice law in both the and a research assistant. After graduat- University - Bloomington’s Maurer state and federal courts of Montana. His ing with honors in 2019, Rebecca clerked Developed specifically for the legal industry School of Law in 2011. Prior to joining practice focuses on civil defense litiga- for Justice Beth Baker of the Montana MLSA, he worked as an appellate public tion. In his spare time, Alex enjoys all Supreme Court. In her free time, Rebecca to ensure trust account compliance and defender, administrative law judge, and of the wonderful outdoor opportuni- enjoys hiking, skiing, biking, and cooking deliver the most secure, PCI-compliant as law clerk for the Honorable James ties Montana has to offer. He is an avid with her family and friends. technology, LawPay is proud to be the Reynolds in the 1st Judicial District in fly fisherman, backpacker, hunter, and preferred, long-term payment partner for Helena. skier, and is a member of the Westslope Sorena Joins Stacey & Funyak Chapter of Trout Unlimited and as litigation associate more than 50,000 law firms. Brown Law Firm welcomes Backcountry Hunters and Anglers. Burke, Ames as associates Billings-based firm Stacey & Funyak is Boone Karlberg welcomes proud to welcome Morgan M. Sorena to The Brown Law Firm, P.C., with of- associates Casey, Stursberg the firm as a litigation associate where she fices in Billings and Missoula, welcomes will continue her career focusing on the Nathan Burke as an associate in the Boone Karlberg P.C. has announced trial practice of civil litigated matters on Billings office and Alex Ames as an as- two new associates of the firm, William T. behalf of both plaintiffs and defendants. sociate in the Missoula office. Casey III and Rebecca R. Stursberg. Sorena has represented a wide range of cli- Burke grew up in Missoula and gradu- William T. Casey III was born ents including disputes involving personal ated from Montana Tech in 2016 with and raised in Kennesaw, Georgia. He injury, products liability, insurance dis- a Bachelor of Science in environmental earned an undergraduate degree from putes, employment related matters, securi- ACCEPT MORE PAYMENTS WITH LAWPAY engineering. He attended the University the University of South Carolina, where ties litigation, construction defect claims, of Montana’s Blewett School of Law he was a member of the 2011 National medical malpractice, and class actions. 877-245-4845 | lawpay.com/montanabar

6 MONTANALAWYER WWW.MONTANABAR.ORG POWERING PAYMENTS FOR THE Trust Payment IOLTA Deposit Amount LEGAL $ 1,500.00 INDUSTRY Reference The easiest way to accept credit, NEW CASE debit, and eCheck payments Card Number

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WWW.MONTANABAR.ORG DECEMBER/JANUARY 7 After graduating from Billings West and individuals University in Stillwater, Oklahoma, in High School, Sorena graduated from seeking to protect 2015. Williams’s practice will focus on the University of San Diego cum laude their rights, and he renewable energy law. in 2013 with a degree in International endeavors to find Chandler joins the firm after serving Relations and International Business. the best solutions as a law clerk to the Honorable Chief She then graduated from the University for his clients. Justice Mike McGrath of the Montana of Notre Dame Law School cum laude in During law Supreme Court. Chandler graduated May of 2016 where school, Alvey with honors from the University of she was selected worked as a law Montana School of Law in 2019. He also to the Journal of Alvey clerk for a bank- received certificates in Environmental Law Ethics and ruptcy law firm and Natural Resources Law and Natural Public Policy and also worked as an Resource Conflict Resolution. While in became a published extern for the Utah Bankruptcy Court. law school, he served as the Publication author. She also Prior to law school, Jackson learned Editor of the Public Land & Resources was selected to the value of hard work through jobs in Law Review and twice competed in the serve on the Moot landscaping, construction, and building National Environmental Law Moot Court Court Team for the maintenance. Competition. Chandler is proud to be Sorena 7th Circuit Court Alvey is a 2019 graduate of the a “double Griz,” having received his of Appeals where University of Utah’s S.J. Quinney College Bachelor of Science in Geography with she wrote, filed and of Law and a 2016 graduate of Brigham honors from the University of Montana argued a matter before the 7th Circuit. Young University. When not working, he in 2012. Chandler’s practice will focus on While in law school, Morgan interned enjoys backpacking, running, and read- renewable energy law. for the Honorable Roger Benitez for the ing about western U.S. history. Southern District of California as well as Alvey is fluent in Spanish and special- Rasmusson opens civil the California Attorney General’s Office. izes in legal translation. plaintiffs practice in Missoula After graduation, Sorena returned to San Diego where she passed the Uda Law Firm welcomes Eric Rasmusson opened Rasmusson California Bar and worked at the law Williams, Chandler Law Offices in Missoula in January 2020, firm of Neil Dymott handling primarily where he represents injured and dis- medical malpractice litigation. She then Uda Law Firm, P.C. in Helena has an- abled people in workers compensation, accepted a job with the international nounced the addition of two associates to personal injury, Social Security disability, law firm of Duane Morris LLP work- the firm, Colson R. Williams and Lowell wrongful death, and medical malpractice ing in their litigation department in San Chandler. cases. Diego. Knowing that she would return to Williams joins the firm after prac- Rasmusson grew up in Helena and Montana to practice law in 2018, Morgan ticing as a Deputy District Attorney in began higher edu- passed the Montana Bar and eventually Umatilla County, cation at Montana left San Diego and began practicing law Oregon. In 2018, State University in Connecticut and New York. Before Williams graduated in the early 1980s. moving back to Montana, she was an from the University Wanderlust led him associate at Klafter Olsen & Lesser LLP, of Richmond to take a few years a plaintiffs’ firm handling significant School of Law away from college class action and personal injury litigation in Richmond, before “gap” years throughout the United States includ- Virginia. While were a thing. In ing working on the class action filed as a in law school, Scottsdale, Arizona, result of the Flint, Michigan, water crisis Williams gained Rasmusson he worked at a law which recently was publicly reported as Williams valuable experi- firm and attended involving a $600 million settlement with ence interning for paralegal school in the State of Michigan. the Appalachian Phoenix at night. He finished his un- Sorena’s husband, Matthew, is a Trail Conservancy dergraduate work at the University of music therapist and they along with their and Capital Region Montana and earned his J.D. at the UM dogs, Moose and Mud are very happy to Land Conservancy. School of Law in 1992. be back in Montana. Additionally, he After law school, he operated his own served as Vice general practice law firm for several years Bridger Law welcomes Alvey President of before joining a Missoula law firm where as its newest attorney the law school’s his focus was on representing plaintiffs in Environmental Law civil disputes. Bridger Law is pleased to introduce its Chandler Society. Prior to You can reach him at 401 N. newest attorney, Jackson Alvey. law school, Williams Washington St, Missoula MT 59802, 406- Alvey’s practice includes civil litiga- received his Bachelor 721-2729, and [email protected]. tion, bankruptcy, family law and business of Science in Business Administration advisement. He works with businesses in Economics from Oklahoma State

8 MONTANALAWYER WWW.MONTANABAR.ORG Scrimm retiring as Labor & Industry chief

Is pleased to announce the following administrative judge David Scrimm, the Department of Labor & Industry’s Chief Associates in the firm: Administrative Law Judge for the past 15 years, is retiring from state government on Dec. 31. Daniel Chizek practices in the During his tenure, the Office of Administrative Hearings firm’s Billings, MT office. His handled 15,000 unemployment insurance cases and 2,400 cases practice focuses on employment involving collective bargaining, discrimination, wage and hour, and tort litigation. Daniel received and professional licensing his J.D. from Gonzaga University issues. Scrimm personally and joined Crowley Fleck in 2020. presided over almost 900 of those cases, many of which were cases of first impres- Lacey Fortin practices in the Billings, sion, involving complex MT office. Her practice focuses on regulatory issues. Under his commercial transactions and tax. Lacey received her J.D. from the guidance, OAH has been University of Montana and joined recognized as one of the best Crowley Fleck in 2020. unemployment insurance appeals programs in the country garnering several Madeleine Lewis practices in the firm’s national awards. Sheridan, WY office. Her practice “The work has always focuses on commercial litigation and oil been challenging and I’ve & gas law. Madeleine received her J.D. been blessed to work with a from the University of Wyoming and lot of great people who I will joined Crowley Fleck in 2020 after deeply miss.” Scrimm said. Scrimm clerking with the U.S. District Court of Prior to joining DLI Wyoming. in 2005, Scrimm was an assistant attorney general for the Jacob Rebo practices in the firm’s Montana Department of Justice and the Department of Billings, MT office. His practice focuses Environmental Quality. He is a graduate of the University of on commercial and tort litigation.Prior Montana School of Law and holds a bachelor’s degree in Earth to his legal career, Jacob served in the Sciences from Montana State University United States Army. He received his “I’m going to get to spend more time with my wife, Lainey, J.D. from the University of Montana learn how to catch a few more fish and explore other profes- and joined Crowley Fleck in 2020. sional opportunities” he said.

Holly Suek practices in the firm’s Billings, MT office. Her practice primarily focuses on tax, estate planning, and commercial transactions. Holly received her J.D. from the University of Montana and joined HAVE NEWS TO SHARE? Crowley Fleck in 2020. The Montana Lawyer welcomes news about Constance Van Kley practices in the Montana legal professionals including new firm’s Missoula, MT office. Her jobs, honors, and publications. Send mem- practice focuses on commercial, tort, ber submissions to [email protected]. and appellate litigation. Constance Photos should be at least 200 ppi by two received her J.D. from the University inches wide for head and shoulders shots. of Montana in 2017 and joined Crowley Fleck after clerking with the Ninth Email or call 406-447-2200 with questions. Circuit and District of Montana courts.

www.crowleyfleck.com

WWW.MONTANABAR.ORG DECEMBER/JANUARY 9 YOU SHOULD KNOW Abbott, Levine appointed to judicial positions in 1st, 3rd Judicial Districts

Helena lawyer Chris Abbott was ap- pointed in November to an open First Judicial District judge seat. Abbott replaces the Honorable James P. Reynolds, who retired effective Oct. 2. He is an assistant attorney general with the Montana Department of Justice, Agency Legal Services Bureau, where he has worked since 2017. Before that, he was an attorney with the Office of the State Public Defender for 10 years. Abbott was OPD’s Public Defender of the Year in 2009, and he received OPD’s Peer Recognition Award in 2012, Outstanding Criminal Advocate award in 2013. Abbott is a 2006 graduate of the University of Washington School of Law, where he was named to the Order of the Coif. Abbott Levine Abbott is subject to Senate confirma- tion during the 2021 legislative session. If confirmed, he will serve for the remain- der of Judge Reynolds’ term, which University of Montana’s Blewett School Department of Environmental Quality. expires in January 2023. of Law, is a partner at the Great Falls Before law school, Levine served The annual salary for the position is firm Linnell, Newhall, Martin & Schulke, three terms in the Montana House of $136,896 where she has worked since 2012, mostly Representatives representing Missoula. Great Falls lawyer Michele Reinhart in workers’ compensation and personal She received her bachelor’s degree from Levine has been appointed to an open injury cases. She also has criminal law Carroll College in Helena in 2002 and a Eighth Judicial District judge seat. experience from an internship with the master’s degree from the University of She replaced the Honorable Gregory Missoula County Attorney’s Office, Montana in 2006. G. Pinski, who retired effective Oct. 2. and environmental law experience as a The Eighth Judicial District covers Levine, a 2012 graduate of the legal clinic student with the Montana Cascade County.

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10 MONTANALAWYER WWW.MONTANABAR.ORG COURT NEWS Lawyer disciplinary system changes adopted

The Montana Supreme Court has The MRLDE has been amended DISTRICT COURT COUNCIL: adopted numerous changes to the several times since the ODC’s creation The Montana Judges Association has Montana Rules for Lawyer Disciplinary in 2002. In its petition, the commis- elected 10th Judicial District Judge Jon Enforcement. sion said it believed the new changes for Oldenburg and 11th Judicial District In all, the changes affect 23 of the further refinement and clarification of Judge Amy Eddy to three-year terms on 35 rules in the MRLDE. Many of the the process were appropriate and in the the District Court Council. Judge Eddy amendments reflect changes in ter- best interests of the court, the lawyer replaces former 18th Judicial District minology or clarification of language, discipline system, and the stakeholders Judge Holly Brown, whose term on but there are also several substantive in the Montana legal system. the council ended in June 2020. Judge changes. The changes were to take effect Jan. Oldenburg was re-elected to his seat on One significant is the reintroduction 1, 2021. the council. Their terms end June 30, of the concept of private admonitions The original petition including the 2023. for minor infractions of ethical rules proposed changes, as well as the new UNIFORM DISTRICT COURT where recurrence is not likely and there MRLDE, are posted at www.montana- RULES COMMISSION: Judge Eddy has been little or no harm to the client, bar.org under “Recent Court Orders.” was also reappointed to a four-year term the public or the profession. Under the APPOINTMENTS on the Uniform District Court Rules proposed change, a request for a private Commission. The term will expire on admonition must be initiated by the The Montana Supreme Court has Oct. 1, 2024. ODC and must be approved by a Review announced the following appointments Panel, which will deliver the private to court boards, commissions and JUDICIAL NOMINATION admonition if approved. committees: COMMISSION: The Montana Supreme The Commission on Practice, Court has reappointed Billings attor- SENTENCE REVIEW DIVISION: in collaboration with the Office of ney Elizabeth Halverson to a four-year The court reappointed the Honorable Disciplinary Counsel and other stake- term on the court’s Judicial Nomination Dan Wilson of the 11th Judicial District holders, petitioned the court for the Commission. Her term will run through to a three-year term on the Sentence changes in May 2020, and the court Jan. 1, 2025. Review Division. Wilson’s term will run adopted them after seeking comment through Dec. 31, 2023. COMMISSION ON COURTS OF from bar members. LIMITED JURISDICTION: Brian Smith has been appointed to the com- mission as the division administrator of the Office of the State Public Defender. Smith replaces Peter Ohman following JEST IS FOR ALL Ohman’s appointment as an 18th Judicial District judge. ACCESS TO JUSTICE COMMISSION: The court reappointed Montana state Rep. Katie Sullivan of Missoula to a three-year term on the commission, replacing former Rep. Kimberly Dudik. The court also reap- pointed state Sen. Terry Gauthier, Fourth Judicial District Judge Leslie Halligan, Yellowstone County Justice of the Peace David A. Carter, Helena at- torney Aimee Grmoljez, and Chouteau County Clerk of Court Rick Cook to the commission. Their terms will run through Sept. 30, 2023.

WWW.MONTANABAR.ORG DECEMBER/JANUARY 11 ACTIVE ATTORNEY & PARALEGAL SECTION MEMBERS

12 MONTANALAWYER WWW.MONTANABAR.ORG FASTCASE BYTES The State Bar of Montana offers Fastcase legal research as a free benefit for Active Attorney and Paralegal Section members. You can access it by logging in at www.montanabar.org. Fastcase announces release of COVID-19 Case Alerts Fastcase has announced a new COVID-19 Case Alerts email service. The daily digest of new civil opin- ions, selected pleadings, breaking news, “This is a dangerous and fast-changing and analysis of legal issues is available free to attorneys using Fastcase through pandemic, and it’s more important the State Bar of Montana. than ever for firms to be ahead of “This is a dangerous and fast-chang- ing pandemic, and it’s more important the curve when advising clients. than ever for firms to be ahead of the curve when advising clients,” said Ed There is no excuse for missing Walters, Fastcase CEO and co-founder. “There is no excuse for missing key key developments, especially now.” developments, especially now.” To subscribe to COVID-19 Case Ed Walters, Fastcase CEO and co-founder Alerts, log in to Fastcase through www. montanabar.org and look under Apps & Tools. The State Bar of Montana provides Case Alerts Powered By Fastcase at no cost to Active Attorney and Paralegal Section members.

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The most powerful and flexible way to search for cases in Fastcase is with Boolean operators. The Fastcase search engine is com- Law Street Media Insights offers patible with eight simple Boolean legal news, embedded analytics operators. Click on the “question mark” icon at the top right of the Free legal news from Law Street Media by search page to open support materi- Fastcase now includes a selection of articles als, then select “Boolean Tips” to see with embedded analytics. all of the examples. You can check out Law Street Media Go to tinyurl.com/y9otjked to Learn Insights articles at www.lawstreetmedia. more about using Boolean operators on com/insights/, where you can also subscribe Fastcase. to have articles on a variety of legal topics delivered to your inbox.

WWW.MONTANABAR.ORG DECEMBER/JANUARY 13 TAX LAW

14 MONTANALAWYER WWW.MONTANABAR.ORG IRS 1099 form triggers taxes for clients and lawyers By Robert W. Wood the forms before you sign a settlement if you were paying someone on a Form agreement. In some cases, you might be 1099, the main choice was between box Lawyers and clients should care able to steer the defendant to completely 3 and box 7. Box 3 is for other income, about IRS 1099 forms. These forms allow avoid a 1099 form. That would be appro- a more neutral category compared with computer matching of Social Security priate if a portion of a settlement is fairly box 7. numbers and dollar amounts paid and attributable to physical injuries, physical Because of the self-employment received, so IRS collection efforts are sickness, and emotional distress. tax, most payees would rather receive streamlined and automated. In most Even if it is certain that you will amounts reported in box 3 compared cases, 1099 forms report income, so if receive a 1099 form, there are different with box 7. Sometimes you can specify you receive a 1099 form in the mail, open boxes on the forms that signal different (such as in a legal settlement agreement). it and check the numbers. You may not things to the IRS. You should consider Otherwise, the payer of the money gener- be able to change it, but you will usually what the boxes mean, and you may want ally picks whatever reporting he thinks is need to report it on your tax return. to make it explicit that the defendant best and issues the 1099. For payments in As we will see, one exception is 1099 should record the payment in one box 2020 and later years, the IRS has a special forms that report gross proceeds to law- instead of another. What difference does form for independent contractors. Maybe yers, a category that a surprising number a box make? the gig economy finally got to the IRS. of lawyers may not understand. Errors in New Form 1099-NEC is specifi- reporting do occur, of course, so if you Boxes on 1099 form cally for paying independent contrac- believe a 1099 form is wrong, you may be Isn’t one box on a 1099 Form as good tors. Starting in 2020, do not use Form able to get the issuer to correct or undo it. as another? Not really, as we will see. 1099-MISC for that purpose. Use Form But that is usually tough unless it is truly Concern about 1099 forms causes some 1099-NEC instead. I am guessing that in an error. clients and some lawyers to prefer sepa- early 2021, there could be considerable For example, suppose that you receive rate checks, one for the funds payable to confusion about Form 1099-NEC, and a 1099 form that says a company paid the client, and one for funds paid to the there might even be some disputes. What you $100,000, but you can prove that the attorney directly. That way the attorney happened to Form 1099-MISC now that company actually paid you only $10,000. receives a 1099 form for only the attorney box 7 was essentially made into a whole You hope the company would correct fees, and not also for the client’s money. new tax form? that kind of error. But if you cannot And the client may think he can sidestep get the company to correct it, you must tax on the legal fees that way. Other Income or “Gross Proceed report the $100,000 and explain that you But let’s look at the realities and the Paid to an Attorney”? actually received only $10,000. different boxes on a 1099 form before you For 2020 and subsequent-year pay- Unfortunately, in my experience, most decide. The most common version used ments, your choices on Form 1099-MISC “please fix my 1099 form” requests fall on is 1099-MISC form, for miscellaneous are more limited. Most payments are deaf ears. Often that is because the issuer income. But to discuss it, we also must recorded in box 3, as other income. For believes it issued the form correctly. Also, also talk about the newest one, 1099- lawyers settling cases, though, “gross many 1099 form reporting issues that NEC. Up until 2020, if you were paying proceeds paid to an attorney” is the most seem like errors really are not. Suppose an independent contractor, you reported important category. Many lawyers may you are a plaintiff, and you net $60,000 it on form 1099-MISC, in box 7, for non- not see Form 1099 that arrive at their from a legal settlement when your lawyer employee compensation. office, but they should be aware of this collected $40,000, a 40% contingent fee. important box on the form, and what it You will usually receive a 1099 form Self-Employment Tax In other words, Form 1099-NEC means for their taxes. for the full $100,000, even if your lawyer It impacts their clients too. Up was paid directly by the defendant and reports a payment for services. For 2019 and prior years, putting income in box 7 through 2019 payments, IRS form 1099- you only saw $60,000. Arguing about that MISC Box 14 was for gross proceeds paid after the fact is nearly always a waste of of a 1099-MISC form usually tipped the IRS off that this person should not only to an attorney. That means the payments time. The only time you have any bar- you received in 2019 that were reported gaining power about how 1099 forms will be paying income tax but also paying self- employment tax. Self-employment tax is in early 2020 were on these 2019 forms. be issued is before you sign a settlement For payments in 2020, they will be report- agreement. equivalent to both halves of the employer and employee payroll taxes that apply to ed in January of 2021 on a new version of Failing to report a 1099 form on your Form 2020-MISC. tax return (or at least explain it) will get wages, which are reported on Form W-2. Self-employment tax can add a For 2020 payments, good-old Form you an IRS notice. Thus, if you receive 1099-MISC still exists. Gross proceeds a 1099 form, report it, even if you are whopping 15.3% on top of income taxes. That 15.3% applies up to the wage base paid to an attorney for 2019 and prior claiming that the money should be tax years was Box 14. But now, it is reported free. Report it even if some of it really of $137,700, with 2.9% tax thereafter on any excess over the wage base. There is in Box 10 of the new 2020 Form 1099- went to your lawyer and you are entitled MISC. This box is only for reporting to a tax deduction for legal fees. no limit on that 2.9%, even if you earn millions. In short, self-employment tax payments to lawyers. It turns out that Ideally, if you are a plaintiff or a law- there are numerous special yer, you or your client should think about is nothing to sneeze at. Up through 2019,

WWW.MONTANABAR.ORG DECEMBER/JANUARY 15 Form 1099 rules for lawyers. payment of $500 would not trigger the the IRS has extensive provisions govern- Why is the gross proceeds paid to rule, two payments of $500 to a single ing joint checks. Most of these rules mean an attorney category so important? For payee during the year require a Form that lawyers receive the forms along with one thing, gross proceeds reporting for 1099 for the full $1,000. Lawyers must their clients when legal settlements are lawyers is not counted as income to the issue 1099 forms to expert witnesses, jury payable jointly to lawyer and client. In lawyer. Any payment to a lawyer is sup- consultants, investigators, and even co- general, two 1099 forms, each listing the posed to be reported, even if it’s all the counsel when services are performed and full amount, are required. client’s money to close a real estate deal. the payment is $600 or more. A notable Many lawyers receive funds that they Case settlement proceeds count as gross exception to this $600 threshold rule is pass along to their clients. That means proceeds, too. payments to corporations for services. firms often cut checks to clients for a Say that a lawyer settles a case for $1 However, the rule that payments to share of settlement proceeds. When a million, with payment to the lawyer’s a lawyer must be the subject of a Form plaintiff law firm disburses money to trust account. Assume that 60% is for the 1099 trumps the rule that payments to clients for legal settlements, should the client and 40% is for the lawyer as a fee. a corporation need not be. Thus, any firm issue a 1099 form to its own client? The lawyer is sure to receive a Form 1099 payment for services of $600 or more to Some firms issue the forms routinely, but reporting the full $1 million as gross pro- a lawyer or law firm must be the subject most payments to clients do not require ceeds. The lawyer need not report the full of a Form 1099. It does not matter if the it. Even so, there is rarely a 1099 form $1 million as income, because it is not. law firm is a corporation, limited liability obligation for such payments. In fact, the lawyer can simply report as company, limited liability partnership, or The reason is that most lawyers re- income the $400,000 fee without worry- general partnership. ceiving joint settlement checks to resolve ing about computer matching, since gross The size of the law firm also does client lawsuits are not considered payers. proceeds do not count as income. The cli- not matter; it might have one lawyer or In most cases, the settling defendant is ent isn’t so lucky. Unless the settlement is thousands. This affects law firms as 1099 considered the payer. Thus, the defendant a non-income settlement (compensatory forms issuers and receivers. A lawyer or generally has the obligation to issue any damage for personal physical injuries) law firm paying fees to co-counsel or a 1099 form necessary. If lawyers perform or a capital recovery, the client in this referral fee to a lawyer must issue a Form management functions and oversight of example will receive a Form 1099-MISC 1099 regardless of how the lawyer or law client monies, they become payers re- (probably in Box 3) for the full $1 million. firm is organized. Moreover, any client quired to issue 1099 forms, but just being The client must then figure out how to paying a law firm more than $600 in a a plaintiff’s lawyer and handling settle- deduct the $400,000 in legal fees. Not all year as part of the client’s business must ment money is not enough. legal fees are deductible, and it is harder issue a Form 1099. to find a way to claim them in many Although many payments to lawyers Conclusions kinds of cases since 2018. In any event, can and should be reported as gross pro- Every tax return must be signed under apart from the very good deal that gross ceeds paid to an attorney (box 10, starting penalties of perjury. That makes tax proceeds reporting is for lawyers, in other with the 2020 form), not all payments to returns themselves the most important ways lawyers are disadvantaged when it an attorney should be reported that way. tax form of all. They are not to be taken comes to 1099 forms. Lawyers receive For example, a payment of legal fees to lightly. Still, as many vast numbers of im- and send more 1099 forms than most the lawyer should probably be reported in portant tax forms are there are, it is hard people, in part because of tax laws that box 3. However, many parties seem to opt to think of many that are more important single them out. for gross proceeds reporting even then. or pivotal to our tax system than the little Some businesses and law firms prefer 1099 form that most of us see many of Lawyers, IRS Audits, & 1099 forms to issue 1099 forms at the time they is- every year. Lawyers make good audit subjects sue checks, rather than in January of the Whether you are paying money or because they often handle client funds, following year. For example, if mailing receiving money, consider these forms at and many also tend to have high incomes. out thousands of checks to class-action tax time and throughout the year. And Since 1997, most payments to lawyers recipients, you might prefer sending a remember, not everyone is likely to agree must be reported on a Form 1099. Of single envelope that includes both check on how and when the forms should be course, the basic Form 1099 reporting and 1099 form, rather than sending a issued. There are hundreds of pages of rule (for lawyers and everyone else) is check and later doing another mailing IRS regulations about 1099 forms, and that each person engaged in business and with a 1099 form. we have only scratched the surface here. making a payment of $600 or more for Differences of opinion are common, even services must report it on a Form 1099. Joint Payees and 1099 forms among seasoned tax professionals, so The rule is cumulative, so while one Lawyers are often joint payees, and plan ahead.

Lawyers receive and send more 1099 forms than most people, in part because of tax laws that single them out.

16 MONTANALAWYER WWW.MONTANABAR.ORG LAW FIRM ACCOUNTING

Stressed over books instead of enjoying the holidays? Here are some tips to fix that

By Tanyaa Kilham Track down any errors and make cor- Collect outstanding payments recting entries to ensure that at tax time If your bookkeeping is up to date, Year-end is typically a time for you are not scrambling to locate errors then tracking your accounts receivable reflection, but many firms spend hours that are keeping your accounts from and billing will be much easier. Run trying to finalize their books instead of balancing. an accounts receivable report from celebrating and enjoying the holidays. Year end is also the time to ensure your general ledger to see all past-due I would like to share a few tips to make that your IOLTA trust account is in invoices and outstanding amounts and your year-end bookkeeping less stressful compliance. Mismanaging a trust ac- start collecting. Current clients that and costly for you. count can have horrible consequences are 30 to 60 days past due will give you 1099 reporting on your law career and could potentially your highest return on time and energy Lawyers tend to send out and receive lead to disbarment, and most lawyers invested in the collection process. This more 1099 forms than most individu- receive little to no training on how to may also be a good time to consider bill- als due to stricter tax laws. Basically any manage a trust account properly. It is ing your current clients every two weeks person engaged in business making a important to know how a trust account so you can receive some of that money payment of $600 or more for services works so you do not run into issues. The sitting in the trust account. must report it on Form 1099. That trust account should never be comingled For clients that are 60 to 90 days past means each investigator, consultant, with your operating account or bor- due, identify if you have been receiv- expert witness, etc. that you paid more rowed from for any reason. Bank fees ing regular payments from them, and if than $600 will need to be presented with and credit card processing fees are the those payments have stopped. Now is this form. By the end of November you responsibility of the firm and should be a great time to call each of your clients. should have a list of 1099 recipients paid from the operating account. If you do not have a consistent billing (https://www.irs.gov/forms-pubs/about- As part of the reconciliation process, schedule it is possible that they are not form-1099-misc) that you will need to you should also run a work in prog- aware of how much they owe. This is a send out W-9 forms for. Completed ress report so you can invoice and pay wonderful time to talk about setting up a W-9 forms should be received by year yourself for any fees earned prior to payment plan or offering a discount for end to ensure adequate time to prepare year-end as well as to review any items full payment on their balance. Accepting and issue 1099s by the Jan. 31, 2021, that should be written off. Then perform credit card payments may also help deadline. your final three-way reconciliation for ensure faster payment. For any accounts the year, (which should be completed receivable considered uncollectible, Complete reconciliation at regular intervals - I suggest monthly) write the balances off as of Dec. 31. Your checking accounts, trust ac- ensuring that the client ledger account, Going forward, take some time to count, savings accounts, credit card the general ledger account and the bank look at your processes and systems. Are accounts and any loan activity should be statement balance all agree. This is also you asking for and getting a retainer? Is reconciled monthly. If you have not kept a great time to send each client a ledger the retainer large enough? Do you have current on your reconciliations, now is report of their transactions that oc- a retainer policy in place to request re- the time to make sure they are complete. curred during the year. plenishment when the retainer balance

WWW.MONTANABAR.ORG DECEMBER/JANUARY 17 18 MONTANALAWYER WWW.MONTANABAR.ORG funds are low? Are you billing regularly? Much like the income statement, do pipeline? How much additional capacity Is time entry current and do all time- a yearly or monthly comparison and do you have to take on new clients? Do keepers understand how critical timeli- look for any irregularities and mate- you need to increase your rate? Don’t ness is for billing and collection? Are rial variances. Are there negative forget to compare your actual revenue you monitoring and following up on balances in accounts that should not and expenses to your budget to see how non-paying and slow-paying clients? Do have negative balances? A big issue you are preforming, and don’t be afraid you have a collection process in place? in most firms is receivables – keep an to make adjustments to your budget as eye on this number and remain fo- the months pass. Review your financial statements cused on your collections. What does As a business owner you need to Visit your tax preparer your working capital (current assets stay on top of your finances and man- If you feel like you are now buried less current liabilities) look like? age your firm’s cash flow on a recurring under a mountain of non-billable work, How liquid is your firm (current basis. You should also have a vision for hiring an experienced legal bookkeeper assets divided by total liabilities)? Do your firm’s future and a plan on how to is often more efficient and cost effec- you have enough money to pay your make that vision a reality (i.e. a budget). tive than trying to do it all yourself. A immediate bills? Having a profitable law firm is more bookkeeper will also ensure that your ■ Statement of cash flows: than being able to pay your monthly reconciliations and other day-to-day fi- Cash is king. Have you ever asked obligations on time, it is also having nancial tasks are kept current saving you yourself why you have no cash even adequate capital and cash flow to fund expensive fees at the CPA’s office. though you are making money? This the firm for the foreseeable future. There Your bookkeeper should know the statement can provide the answers are three basic financial statements that ins and outs of your business and be to where your cash comes from can help you see how your firm is doing: able to liaise with your tax preparer and and where it goes. This statement the income statement, the balance sheet present a clean set of records saving you is broken down into three catego- and the statement of cash flows. additional time and headaches look- ries: operating activities, investing ■ Income statement: This state- ing for pertinent financial date your tax activities and financing activities. ment is all about your net income preparer may need. The statement of cash flows provides or “bottom line.” Obviously you When you meet with your tax pre- a short-term outlook which is help- want to know how much income parer they will likely ask for the follow- ful when it comes time to manage you produced, but this statement ing documents: prior year tax returns, bill payments, deal with unexpected provides additional value beyond current balance sheet, income state- repairs and replacements and fund income. Compare your prior year ment, and business related expenses. payroll. revenue and expenses. How does this Be prepared to discuss deductions such There are of course a number of compare to the current year? How as the business use of your home and other reports that your firm may find much of your income was derived charitable contributions if appropri- useful such as a Budget to Actual report, from client fees versus reimbursed ate, as well as the deductions hiding in Trust balance report, Client report client expenses? Is revenue trending plain sight like your bookkeeping and with transactional activity, Timekeeper down or are expenses trending up accounting fees. Also inquire about reports, Attorney compensation reports, year after year? Take a look at your ways to reduce your taxable income as Contingency cost reports, and more. expenses, paying particular attention well as plan for the future by consider- to large expenses or irregularities. Prepare a budget ing retirement plan contributions such Are there ways to cut some of these Now that you have a clean set of as a 401(k) or Roth IRA. Now take a big expenses back and add more to your books, use that to your advantage. Make breath and celebrate the fact that you are bottom line? a realistic budget and stick to it. Cut ready for tax time. ■ Balance sheet: This statement expenses where you can, look at your Tanyaa Kilham is the owner of is also known as the statement of staffing levels, salaries and benefits, The Legal Accountant, a virtual firm offering bookkeeping, -ac financial position and it provides technology needs, CLE and training, counting and CFO services exclu- a snapshot of your business for a and capital expenditures. Look at your sively to solo to small law practices specific period of time. If you want expenses such as rent, utilities, website in the Pacific Northwest. Tanyaa to project your firm’s annual growth hosting, bookkeeping and accounting is a certified QuickBooks Online compare your current assets less cur- services, insurance, software fees, adver- ProAdvisor, a LeanLaw Accounting rent liabilities to last year’s numbers. tising and marketing to see if there are Pro, and certified in Xero and Clio. Check your client trust liabilities areas to save. She can be reached at 406-203-5845 against your IOLTA account. To Project your revenue by looking at and tanyaa@thelegalaccountant. avoid professional reprimand, these how many cases are likely to close in the com. two accounts should match exactly. next year? How many matters are in the

WWW.MONTANABAR.ORG DECEMBER/JANUARY 19 APPELLATE LAW GETTING READY FOR ORAL ARGUMENT

By Stuart Segrest and Matthew Cochenour

This article, a companion to our previous article on appellate brief writing, clarifies the purpose of appellate oral argument and to suggest goals and strategies we think make for effective oral argument presentation. Specifically, we hope to provide some practical guidance and tips to help you prepare for argument and to deliver an effective argument. As with briefing, it is key to remember that your audience is now different than at the trial level (a panel of judges instead of a trial judge or jury). And your goals are therefore different (preserving a win or explaining error below). Keep these points in mind as you prepare for, and deliver, your argu- ment to the Court. The foundation for your oral argument, of course, begins before argument is even granted, with a well-written brief. It clarifies issues on ap- peal and the differences in the parties’ positions, focuses the court on what matters, and allows the court to home in on the questions it may have. It also sets the theme, which, if well developed, can continue through to your argument. Finally, if punchy and well-organized, your brief can serve as a reference to the court for further explanation of a point you make at oral argument.1 The best way to prepare for argument will dif- fer some depending on the appellate court and its judges. Some judges, for example, are happy to sit back and hear the advocate make a presentation, while others more actively use the argument to ask questions left open by the briefing,

1 For pointers on writing an appellate brief, see our article in the August 2020 issue of Montana Lawyer, and the references therein.

20 MONTANALAWYER WWW.MONTANABAR.ORG WITH TIME COMING AT A PREMIUM, PRACTICE AND PREPARATION ARE PARAMOUNT TO SUCCESS

WWW.MONTANABAR.ORG DECEMBER/JANUARY 21 to test the parameters and implications What follows is our recommended question list that you can use to craft, of a particular rule, or to push the advo- “best practice” approach to prepare for and hone, your answers. Compile the cate on weak points. As discussed below, argument. If your time is more limited, questions you jotted down while review- one strategy to determine what a court or your resources scarce, then undertak- ing the briefs, cases, and record into a may be looking for is to watch or listen ing what preparation you can manage single list. As you compile and review, to prior arguments on similar topics. (one moot instead of two, e.g.) will still add to the list any other questions you Whatever the particulars, oral argu- be beneficial. think the court may ask, or points you ment is an opportunity for you to dis- A. Reread briefs, cases, and the record. need to clarify from the briefing (i.e., cuss your case face-to-face (in person, or Begin by refamiliarizing yourself points you want to make even if the as is common these days, virtually) with with the case. Time has passed since you court doesn’t ask a specific question). the judges who will decide your case. As briefed the matter, and it is important to Once you have your list, separate the Justice Ruth Bader Ginsburg put it when get back up to speed. questions into two groups by impor- discussing her first argument before the First, reread all briefs (including am- tance. The first group is those questions U.S. Supreme Court, once she took the icus briefs) at least once. For the parties’ you must know the answer to, such podium the nine justices were her “cap- briefs, we recommend you read each as the specifics of your legal theory, tive audience” with nowhere to go dur- brief two to three times if possible, once what specifically you want the court to ing her argument time.2 But the time very closely. While reading, keep a list of decide, and the factual circumstances you have with your “captive audience” is the possible questions that occur to you. relevant to the main issues. If you are limited, ranging from 10 to 20 minutes At this point, it is more important to jot the appellant, this should include the in the Ninth Circuit to 30 or 40 minutes down questions; don’t necessarily worry specific relief you are seeking, includ- in the Montana Supreme Court. Given about answering each question yet ing the steps necessary to effectuate that this short time frame, preparation is (though if you think of an answer feel relief (remand, vacatur, etc.). This “must essential. As we discuss next, prior to free to include it with the understanding know” group should include the 10 to argument you need to have your theme, that your answer will be refined as you 20 hardest questions for your position. key points, and affirmative arguments prepare). A good place to gather these questions is down cold. Next, reread the major cases cited from the other side’s brief, the relevant cases, and areas you feel are underde- Preparation in the briefs. You don’t need to read all 60 cases cited, at least initially. Instead veloped or otherwise lacking in your When preparing for argument, you focus on the substantive cases. If there brief. These are the questions that give must master two categories of informa- is time later, you can read or skim the you pause when you think about them, tion: (1) affirmative arguments or points minor cases (i.e., those cited for minor or that are difficult to answer succinctly. you hope to make; and (2) answers to or procedural points, such as the ele- The second group of questions are those potential questions from the court. ments of summary judgment, etc.). As that are that are relevant but not critical To make the most of your argument to the key cases, read each case two to to the case (i.e. all the others you jotted time, we suggest you develop a prepara- three times if possible. Again, as with down). tion schedule and stick to it. We recom- the briefs, as you read these cases add to Once collected and grouped, prepare mend devoting two to four weeks for your list of potential questions. answers to these questions, beginning preparation, if possible, depending on After you have reviewed the briefs with the first group of “must know” and the complexity of the case and your oral and cases, turn to the record. Review hardest questions. Your initial answers argument experience. No doubt some the important record documents and may be narrative in form, but refine the might balk at dedicating this much time transcripts that are relevant to the issues answer down to a few bullet points. You to a single argument considering other on appeal. As with cases, focus on the may find that there is no good answer matters on your docket, or your client’s relevant documents first. Later, if you to some questions. For these, come inability or unwillingness to pay for this have time, review the more tangential up with the best answer you can and much preparation. But remember Chief portions of the record. As you review— workshop with others if possible. Often Justice Roberts’ response when asked you guessed it—add questions to your the limits of your answer will come up whether clients always paid for that list. It can also be helpful to create a list at the moot and can be workshopped much preparation: “Sometimes I have to of relevant document or record citations there. And sometimes the best answer is write down bills. But I long ago decided that may come up at argument, espe- to punt. Admit the issue is a hard one, that telling the court, ‘I don’t know be- cially for record-intensive issues. This give your best answer (which sometimes cause the answer to that question wasn’t checklist should name the individual is an admission to preserve credibility), in the budget,’ was not what I wanted to and tell the court why you win despite 3 document, briefly describe the relevant say.” information, and include the record cite. the problem with that particular issue 2 See https://www.law.columbia.edu/news/ (perhaps because the court shouldn’t archive/memoriam-ruth-bader-ginsburg-59. B. Create potential question list and practice answering out loud. reach the issue, or you win for a differ- 3 David C. Frederick, Supreme Court and ent reason). Appellate Advocacy, 72 (3d ed., Thomson Re- The next step is to create a combined uters 2019). Now that you have your questions

22 MONTANALAWYER WWW.MONTANABAR.ORG and best answers in bullet-point form, opening argument. exercise designed to simulate as closely it will be tempting to practice by silently Before crafting the remainder of your as possible the experience of an actual reading the questions and answers to outline, we suggest making a checklist oral argument. In a moot, the advocate yourself. While this can be useful, it is of the few key points you need to make argues the case to a panel of “justices” critical to practice answering these ques- in bullet-point fashion. These should and responds to the justices’ questions. tions out loud, especially the hardest flow from your roadmap. The number of While nothing can substitute for the questions. One useful tool to get you key points will vary based on complex- actual argument, a moot provides a close speaking out loud is to create note cards ity and the number of issues, but keep approximation because it requires an with questions on one side and answers these points as succinct and focused as advocate to stand up in front of other on the other. Then go through the cards, possible. attorneys, give an opening, and present answering each out loud before check- Use these key points to create topic affirmative arguments while answering ing the answer. Others prefer to go headings for the body of your outline. questions in a way that both advances over their working outline in question This should be an actual, pared-down the client’s interests and addresses the and answer form, or to workshop the outline, not something to read from. panelists’ concerns. questions with another lawyer (or non- Under each topic include a few points In choosing the moot-court panelists, lawyer for that matter). You can even that frame your argument, including an advocate should find several4 good deliver your argument while driving applicable cites and quotes. But remem- lawyers who will actively participate by around town or while going for a hike. ber: less is more. The outline should be putting in the time to read the briefs Whatever method is used, the key is to sparse enough that you can locate the and important cases and, crucially, will practice answering the questions out relevant topic quickly in response to a ask hard questions during the moot. loud. Make sure you begin this exercise question, and to facilitate reordering While some panelists prefer to listen to prior to your first moot. That way your based on the opening argument. Avoid an argument and discuss questions later answers will flow better, and you are less reading to the court. You are having a with the advocate, it is essential for the likely to get off track during the moot. conversation, not giving a speech, which advocate to hear questions in the moot Moreover, the panelists can better assess means eye contact and agility. Even if and have an opportunity to respond your answers when given succinctly, you don’t get many questions, a discus- within the practice session. Of course, instead of in narrative, roundabout fash- sion with eye contact is more impactful there is always time for discussion after ion (more on moots below). than a canned presentation. the moot. C. Create your opening, outline, and Once your outline is drafted, turn to Some advocates prefer to have the binder. your podium binder. It should contain same number of panelists as judges on There are some advocates, usually the order appealed from, other relevant the court. While that is manageable for very experienced and skilled, that can orders, the briefs, relevant statutes, a three-judge panel, it can be difficult present an oral argument without notes case summaries, cases, and the list of to find seven to nine lawyers who will and seemingly extemporaneously. For important record citations you created devote the time necessary for a moot. the rest of us, we need an outline and earlier. Other documents may be useful There is also the risk, with too many likely also a binder of relevant material. depending on the issues (such as jury in- panelists, that some may refrain from Here we provide some advice on how to structions) but don’t overdo it. Include asking questions to avoid seeming im- create an opening, outline, and podium a table of contents or tab the documents polite, which defeats the purpose—hear- binder. (or both) so you can quickly locate ing and responding to questions within Your opening should be short — less material. Some cases are straightforward the context of the moot. An alternative than two minutes — and should set out enough that a binder isn’t necessary, at approach, if you have that many lawyers your theme, why you win, and a road- least not at the podium, but it is good to willing to help you, would be to have map of the main points you hope to have a binder if needed, even if it’s left different panelists on each moot so that make. It should also include a sentence on counsel table and not taken to the you have “fresh eyes” each time. This or two articulating the legal test or podium. Importantly, do not over rely can identify overlapping questions, standard you want the court to apply. on your binder. You should know the which may highlight concerns that One effective method is to introduce record well enough that most questions justices will have. Finally, if possible, your argument serially: “We win for can be answered from memory without include some panelists who are familiar three reasons. First ...., Second ...., and needing to look up a specific document with the area of law and some who are Third ...” This method provides a suc- or transcript cite (which takes precious not given that appellate judges often cinct preview and may prevent the court time and can get the argument off track). have varying depths of knowledge in any particular area of law. from interjecting with a question before Moot Courts you finish your opening. Even if you Ideally, an advocate will conduct two In the final two to three weeks before are respondent, it is helpful to have an moots, one approximately a week to 10 the argument, most of your time will opening, though you should maintain be spent preparing for the moot courts. 4 We recommend three to five per moot flexibility to address pressing ques- A moot court is an interactive practice for most cases, including some lawyers who tions or concerns that arose during the have not previously worked on the case. WWW.MONTANABAR.ORG DECEMBER/JANUARY 23 days before the argument and a second character, even if it means struggling begin? In the Supreme Court, for ex- more formal moot a few days before the with questions and answers. ample, counsel say, “Mr. Chief Justice argument. While the first moot is some- It can be valuable to record the moot and may it please the Court,” whereas times referred to as an informal moot, so that you can review questions and in the Ninth Circuit and the Montana Endnotes “informal” does not mean unstructured critique your performance. It can also Supreme Court, counsel generally begin or unprepared. Rather the moot is only be helpful to have someone take notes with “May it please the Court.” While informal in comparison to the formal during the moot. Following the moot these may seem like small things, being moot or to the oral argument itself. argument, it is helpful to discuss the ar- in step with local customs starts your In general, with both moots, you and gument and the case with the panelists, argument on the right foot. the justices will stay in your respective covering what worked and what didn’t, Watching oral arguments can also roles throughout. You should stand and then workshop how to make the provide some familiarity with the Court up, say “May it please the Court,” give argument more effective. and the courtroom, which may help a short opening that succinctly encap- After the first moot, you will have you feel more at ease. You can learn sulates why you should prevail and a better sense of which arguments are how the Court questions counsel and provides a roadmap of what you hope effective and which are not. You will whether it is typically a “hot” or “cold” to discuss. You then begin presenting know what areas troubled the panelists bench. Simply by observing a few argu- your affirmative arguments and focus and will likely be armed with a new list ments, you can also learn how rebuttal on answering the justices’ questions of questions to consider. Following the is handled, where counsel sit, how close as they come up. In an informal moot, first moot, you should develop answers you will be to the justices, and other in- an advocate should have the opportu- that address the panelists’ concerns, formation that can remove some of the nity to fully present an opening before refine your opening and arguments, unknowns surrounding the argument. the justices begin their questioning. and if needed, do additional research Finally, at least in the Ninth Circuit, Similarly, justices should allow counsel related to questions that came up dur- it can be helpful to watch live streams to finish answering a question before ing the moot. After the formal moot, of oral arguments in the days immedi- firing off additional questions. While the any research is generally minimal, and ately before your argument, if possible. moot is designed to simulate oral argu- you should spend the remaining days Generally, the same panel of judges hear ment, it is important for the advocate refining and rehearsing arguments and cases for a week at a time and watching to work through and articulate answers putting the finishing touches on your these arguments can provide a sense for to questions so that when a particular podium binder. how particular judges ask questions and question comes up in the actual argu- interact with advocates. Additionally, Between Moots and Argument ment, the advocate will be prepared. In the same panel sometimes hears similar Following the moots, you should some instances, if genuinely unsure how cases, and you may find that a case continue to practice and refine your to answer a question, the advocate can scheduled earlier in the week has issues arguments, striving for ownership of break out of the role to discuss possible like those in your case. the material and the points you hope to answers. Relatedly, there is no rigid make. During this time, there can often Oral Argument timekeeping. The point is to hear what be a sense of exhaustion and uncertainty There is a maxim in appellate law questions the justices have and work about what to do next, and it can feel that the briefing was about this case, but through the answers to those questions. like you’re just killing time until the the oral argument is about the next case. Dispensing with a timing requirement argument. Rather than give in to com- The foundation for a successful oral allows the advocate to focus on answer- placency, though, this can be a valuable argument begins with understanding ing as many questions as the justices can time to double check whether any recent that the purpose of the argument is not ask. decisions have cast doubt on the validity only to answer the questions left over A formal moot differs from the in- of your primary cases and to refresh from the briefing but to help the Court formal moot in a few ways. You should yourself on the standard of review, juris- understand the ramifications that follow dress the part and wear courtroom diction, and the relief requested. from a ruling in your favor. In other attire, and you should use your prepared This can also be a good time to watch words, you are there to talk about what outline and podium binder. While you or listen to archived oral argument the Court thinks is important, not what should not put time constraints on from the appellate court (or watch live you may think is important. That is not questioning, it can be helpful to keep arguments if possible). Prior arguments to say that you aren’t there to persuade track of time so that you are aware of can provide insight into local customs the Court or to argue for your position; how quickly your allotted time passes of the court. For example, do appellate to the contrary, your goal is to convince and can measure how effective you counsel introduce themselves? In some the justices that they should vote for have been in making your affirmative courts, like the U.S. Supreme Court your position because the rule you are arguments. Finally, all the participants they do not, but in the Ninth Circuit advocating is not only right for this case should maintain their roles through- and the Montana Supreme Court, they but for future cases. Rather than focus- out, and you should resist breaking do. Similarly, how does the argument ing on the correctness (or incorrectness)

24 MONTANALAWYER WWW.MONTANABAR.ORG of the lower court’s ruling, you should argument is not a lecture, an oration, jurisdiction over a defendant is lacking focus on the correctness of the rule a speech, or a performance. Indeed, unless the defendant’s forum-related you’re advocating. your primary task at oral argument is conduct was at least a but-for cause Regardless of whether you are the to answer the justices’ questions in a of plaintiff’s claims. With this theory, appellant, appellee, or an amicus, there way that both advances your affirmative Ford’s counsel could answer hypotheti- are some common features to a good arguments and alleviates any concerns cals ranging from products liability cases argument. Perhaps the most important the Court may have about your position. involving automobiles, to airbags, to is a well-prepared opening. In general, Many advocates, however, seem to go personal computers — counsel simply the only time when you may have a few to great lengths to avoid questions from had to keep clear whether the hypotheti- minutes of uninterrupted argument is the Court. But while evading eye contact cal was dealing with causation or not. when you first stand up at the lectern or talking nonstop may make question- If there was causation, then jurisdiction — make it count. Following your initial ing difficult, it does you no favors with might be present; if there was no causa- preparation and the moots, you should the Court and it removes an opportunity tion, then jurisdiction was not present. have a carefully thought-out open- to persuade. In short, the Court’s ques- Regardless of whether the Court ulti- ing that clearly sets out why the Court tions are not an interruption of your mately finds this argument persuasive, should rule in your favor and provides argument, they are the point of your Ford had a clear principle that it could a roadmap of your argument. It can be argument. The best advocates welcome use to address the Court’s questions. as simple as saying, “The court below questions because they offer insight into As another example in the criminal ruled X . That determination is consti- the Court’s concerns and provide an context, let’s say your theory of the case tutionally invalid for three reasons. First opportunity to directly address them. is that a warrant is not required for a ...” Then after briefly describing your When answering questions, if the ques- search or seizure unless the defendant reasons with one or two sentences, turn tion calls for a yes or a no response, maintains exclusive control over the to the first point and elaborate until the there’s no need to beat around the bush. area searched or the item seized. For a Court asks its first question. The first few Answer with a yes or no, and then go hypothetical involving a warrant, you minutes of oral argument should not be on to elaborate and provide context if must simply ask yourself, “does the wasted detailing the procedural path of necessary, or transition back to your defendant have exclusive control over the case, introducing your clients to the argument. this?” If the answer is yes, then officers Court, asking about rebuttal time (keep What about the dangers underlying would be required to get a warrant; if the track of your own time or work it out hypothetical questions or questions that answer is no, then no warrant would be with the clerk or marshal before the ar- ask for concessions? Admittedly, for required. If you know your theory, then gument begins), or discussing anything the unprepared advocate these types of you have a framework within which that does not get right to the point. questions are fraught with peril. Even to answer the Court’s questions that The opening is equally important for the most prepared advocate should advances your affirmative points. the appellee; however, because the ap- answer carefully — no one wants to Finally, a few comments about rebut- pellee is going second, there are a couple read a court opinion that resolves the tal arguments. Keep it short; in most of options for an opening. First, it may case based on a concession made at cases, three to five minutes is plenty of be beneficial to reorient the Court. You argument. As an initial matter, there is time to make an effective rebuttal. Also, can achieve this by presenting an open- no getting away from hypotheticals; re- because you are rebutting the other ing like that described above, perhaps member the argument is not just about side’s argument, it is generally diffi- setting out the two or three reasons why this case but the next case (and the case cult to prepare a rebuttal argument in the decision below fits comfortably with- after that). Justices use hypotheticals to advance. Thus, you must listen carefully in constitutional parameters. Another test the rule you’re advancing and to to the respondent’s argument and pay option is to immediately address con- determine whether there is any limiting attention to any cues from the Court. As cerns that came up during the appel- principle. And this is the key to un- far as what to argue in a rebuttal, there lant’s argument. Under this approach, derstanding how to answer hypotheti- are primarily three different approaches. you might say something like, “A lot cal questions: knowing your theory of One is to emphasize your strongest of the discussion has been about X . the case and your limiting principles argument even if it is on a minor issue. That is not an issue in this case because removes some of the danger these ques- The underlying rationale is that the . . .” or “May it please the Court. I’d like tions pose and gives you the freedom to Court leaves the argument convinced to start by addressing Justice Brown’s concede points that don’t jeopardize the that your position is correct. The second question . . . .” If there are no follow-up case. approach is to thematically rebut the questions, you can then transition into For example, in the recent U.S. respondent’s argument by returning to an opening that sets out the roadmap for Supreme Court personal jurisdiction your overarching theory of the case and your argument. case, Ford Motor Company v. Montana reemphasizing the affirmative points Notwithstanding the importance Eighth Judicial Dist. Court, No. 19- of a well-rehearsed opening, an oral 368, Ford’s theory was that specific Argument, page 26

WWW.MONTANABAR.ORG DECEMBER/JANUARY 25 Argument ■ Don’t avoid hypothetical ■ Lead with your strongest from page 25 questions. argument. ■ Make eye contact with the ■ Don’t use demonstratives or that you hope the Court credits. The court. other visual aids. final approach is to focus on the one or two most damaging points that the re- ■ Speak so that you can be ■ Don’t attack the judge below or spondent made and tick off the reasons heard (i.e., speak clearly, speak into opposing counsel. microphone). why those arguments are wrong or not Resources ■ Speak at a measured pace: not persuasive, including correcting the David C. Frederick, “Supreme Court too fast or too slow. record if necessary. and Appellate Advocacy” (3d ed., ■ If arguing in an unfamiliar Dos and Don’ts Thomson Reuters 2019) court, make sure you know how to Antonin Scalia & Bryan A. Garner, ■ Practice your argument out get to the courthouse and the loca- loud. “Making Your Case: The Art of tion of the courtroom and arrive Persuading Judges” (Thomson/West, ■ Strive for a conversational tone. early to court. 2008) ■ Attend oral arguments in ■ If arguing remotely (e.g., Zoom, http://ca3blog.com/oral-argument/ person or watch/listen to archived Vision Net), test equipment and (tips for telephone oral arguments) argument. connections before the day of the Stuart Segrest is the chief of the ■ Stop talking immediately argument. Civil Bureau and Matthew Coche- when a question is asked, even if ■ Memorize your opening, but nour is the acting solicitor general mid-sentence. be flexible, particularly if you’re the for the Montana Attorney General’s ■ Directly answer the question, appellee. Office within the Montana Depart- and then elaborate; if the question ■ Provide the court a roadmap of ment of Justice. Segrest is also a trustee for the State Bar of Mon- asks for a “yes” or “no” answer, an- your argument in your opening. tana. This article does not rep- swer “yes” or “no” first. ■ Be able to provide a one-sen- resent the views of the Montana ■ Don’t answer a question by tence response setting out the relief Department of Justice or the State saying, “I’ll get to that later in my ar- you want. Bar. gument.” Answer the question when ■ Don’t interrupt or talk over a it is asked. judge.

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sept oct.indd 13 10/18/2018 4:38:16 PM IN MEMORIAM Jack Ray Tuholske and improving our world went beyond 27th St., Billings, MT 59101. the courtroom. As a teacher, first at A celebration of his life will be an- Jack Ray Tuholske, one of the country’s the University of Montana and then at nounced later in 2021. leading public interest environmental law- Vermont Law School, his passion for the John Joseph Oitzinger yers and a tireless defender of public lands, law and for the outdoors was infectious. wildlife and waters, died Oct. 17, 2020, Jack’s proudest professional achieve- John Joseph Oitzinger died peace- after a 17-month battle with hepatocellular ment was that dozens of his students have fully in his sleep at the family home in carcinoma. He was 66. become public interest environmental Helena of sudden onset kidney cancer Jack was living proof that if you get up attorneys, ensuring that his impact and that rapidly metastasized to his lungs at at 4:30 every morning and work your ass legacy will live on. age 81. His wife of 39 years, Sandy, was off, you really can move mountains. He Jack served on the Vermont Law with him. earned his law degree from the University School faculty for 20 years, where he John graduated from Fordham of Montana, with honors. The results since co-founded and directed the Water and University Law School. In law school, then speak for themselves: in his 35-year Justice Program, pioneered the school’s John was the very first night law-school legal career, Jack served as lead or co-lead online master’s program, and created the Law Review Editor – a big deal. He counsel on more Public Lands Management: Montana Field practiced securities law with Wilke, Farr than 200 cases Course, the country’s first outdoor expe- and Gallaher for 18 years on Wall Street involving natural riential education law class. Vermont Law in New York. He then moved to Helena, resources, wildlife School will create the Tuholske Institute practicing first as protection, public of Environmental Field Studies to advance a partner with the lands management, Jack’s work in deep field-based experiential Jackson firm and land use and con- education. as bond counsel stitutional law; his In 2009, Jack taught at the Law Faculty for Montana and cases were argued of the University of Ljubljana in Slovenia Wyoming. Later, Tuholske in federal district as a Fulbright Scholar. he was a partner and appellate courts Jack imparted his love for the outdoors with Oitzinger and across the West, the U.S. Supreme Court, to his family, and they enjoyed many ad- Mullendore, then numerous state district courts in Montana, ventures together – and mishaps, too. Jack as a sole practitio- and more than 20 times at the Montana is the only guy we know whose wife has Oitzinger ner, and with his Supreme Court. been helicoptered off a mountain. Twice. daughter, Hilary. He Jack’s work set important precedents Jack swam competitively for five inspired several of his progeny who have under many federal and state laws. His decades and helped found the Montana taken up this charge to protect, uphold, efforts led to the successful listing of the Masters Swimming program; more than and advance the law in myriad ways. bull trout under the Endangered Species a dozen of his Masters swimming records This is a tradition we expect to continue. Act, which not only helped bring this still stand. He also was actively involved in Finally, he was a Montana Legal Services magnificent native species back from near community organizations that promoted Association volunteer attorney for many extinction, but also resulted in the protec- competitive youth swimming, and helped years, advising clients on housing issues. tion of more than 19,000 miles of streams lead a coalition of dedicated residents to For this work, John was given the Neil and rivers. He represented farmers and pass a municipal bond to construct the Haight Pro Bono Award for 2018. ranchers, in conjunction with conservation Splash Montana pool complex in Missoula. He inspired several of his progeny who organizations, to stop coal mining in the Jack loved his family above all else. He have taken up this charge to protect, up- Tongue and Powder River basins, ensur- is survived by his loving wife of 41 years, hold, and advance the law in myriad ways. ing clean water for crops and grazing for Lilly; sons Oliver, Benjamin and Cascade; Two daughters – Hilary as well as Kalispell generations to come. and five grandchildren. city attorney Johnna Preble – became Jack’s legal work has been recognized Jack loved flowers, but what would lawyers, and grandson Kai Rendino is in numerous times, including the 2010 have made him really happy is for you to law school. Kerry Rydberg Award, presented by the remember him by taking a hike up your In retirement, John volunteered with University of Oregon Public Interest nearest hill. However, if you’re inclined Montana Wild in the Spring Meadow Environmental Law Conference (and to make a tangible contribution toward Complex in Helena, and there found his recently re-named the Rydberg-Tuholske Jack’s memory, he requested support for bliss among associate volunteers and its Award in honor of Jack’s work); the 2009 the Jack Tuholske Endowed Scholarship devoted staff. Ever the outdoorsman, John Gary Holmquist Award, presented by the in Environmental Law at the Alexander connected deeply with Montana as his Montana Wildlife Federation; and the Blewett III School of Law, c/o University Last, Best and Forever Place. 2002 Justice William O. Douglas Award, of Montana Foundation, P.O. Box 7159, A memorial gathering will be attempt- presented by the Sierra Club. Missoula, MT 59807; as well as the ed at a later time as COVID-19 vaccine But his contributions toward protecting Northern Plains Resource Council, 220 S. becomes available.

28 MONTANALAWYER WWW.MONTANABAR.ORG Ada Jane Harlen remained active in probate and trust administration. In 1960, her legal practice well she decided to take extension courses from Noted Helena attorney Ada Jane Harlen into her 70s. Lasalle University in Chicago, and also en- died on Saturday, Oct. 24. She was 95. Ada was born in rolled at the University of Montana, where Ada’s 50-year law career began as a Chinook, on Nov. she passed her college equivalency exams, legal secretary, included participation in 2, 1924. Her parents so she could enroll as a law student and be the Montana State Bar Tax and Probate were Norwegian seated for the bar exam, passing it in 1969. Committee, and culminated with the found- immigrants who Over these years, Harry and Ada had three ing of her own longstanding Helena law homesteaded in boys, Craig, Steve and Tom. firm, Harlen, Thompson & Parish, P. C. She Harlen Montana. After several years as an associate, she was most proud of her time and service on Ada married left the Loble firm to start her own firm in the Montana State Bar Probate Committee Harry Harlen Jr. April 1978 where she specialized in probate and assisting and educating fellow lawyers with 7, 1946, and moved to Helena. She was a estate planning. Throughout her long career, Montana’s adoption of the Uniform Probate legal secretary for the law firm of Loble, Ada prided herself in educating the com- Code in 1969, and being able to practice Picotte & Pauly. Rising to office manager, munity on the basics of estate planning and law with her son, Tom, for 13 years. She she discovered a love for estate planning, protecting their families.

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