Your Partner in the Profession | April 2020 • Vol. 89 • No. 4
KBA COVID-19 Response and Help Center www.ksbar.org/COVID19
COVID-19 and the New Normal Lawyers Don’t Shut Down: You are Essential to the Survival of Our Country by Mira Mdivani, President of the KBA P 8
Serving in Time of Crisis by Karla Whitaker, Interim Executive Director, KBA/KBF P 7
Top 10 Tips for Lawyers “Zoom”ing into Remote Work During the Pandemic by Susan Berson P 10 Now more than ever, we need to stay connected.
Celebrating April as National Poetry Month
8 | Lawyers Don’t Shut Down: You are Essential to the Survival of Our Country by Mira Mdivani
7 | Serving in Time of Crisis by Karla Whitaker
10| Top 10 Tips for Lawyers “Zoom”ing into Remote Work During the Pandemic by Susan Berson
Cover Design by Ryan Purcell
April Substantive Article
20 | Professor Prufrock Revisited: Poetry and the Law...... Robert W. Parnacott
Special Features 16 | Lucky Number Seven: Kansas Bar Foundation Scholarships 30 | Sestina and Compassion Fatigue...... Elizabeth L. Oliver 36 | Poetry and the Law: Members’ Poetry
Regular Features 14 | April and May CLEs 49 | Members in the News Don’t Duck Out of Your CLEs 51 | Obituaries 41 | Substance and Style Mind Your virtual Manners: A Brief Guide to Social . 55 | Appellate Decisions Graces in Online Writing ...... Joyce Rosenberg 64 | Advertising Directory NEW 44 | The Diversity Corner Fighting Lawyer Loneliness?...... Diana Stanley 65 | Classified Advertisements 47 | Law Students’ Corner Overcoming Imposter Syndrome One Docket at a ... Time...... Zach Palominor
www.ksbar.org | April 2020 3 THE Let your VOICE 2019-20 be Heard! O KBA Officers & Board of Governors OF THE KANSAS BAR ASSOCIATION President Mira Mdivani, [email protected] President-elect 2019-20 Charles E. Branson, [email protected] Journal Board of Editors Vice President Cheryl Whelan, [email protected] Emily Grant (Topeka), chair, [email protected] Secretary-Treasurer Nancy Morales Gonzalez, [email protected] Sarah G. Briley (Wichita), [email protected] Hon. David E. Bruns (Topeka), [email protected] Immediate Past President Hon. Sarah E. Warner, [email protected] Richard L. Budden (Kansas City), [email protected] Boyd A. Byers (Wichita), [email protected] Young Lawyers Section President Mitch Biebighauser, [email protected] Jennifer Cocking (Topeka), [email protected] Connie S. Hamilton (Manhattan), [email protected] District 1 Michael J. Fleming, [email protected] Michael T. Jilka (Lawrence), [email protected] Katie A. McClaflin, [email protected] Lisa R. Jones (Ft. Myers, FL), [email protected] Diana Toman, [email protected] Casey R. Law (McPherson), [email protected] District 2 Hon. Robert E. Nugent (Wichita), [email protected] Bethany Roberts, [email protected] Professor John C. Peck (Lawrence), [email protected] District 3 Rachael K. Pirner (Wichita), [email protected] Angela M. Meyer, [email protected] Richard D. Ralls (Overland Park), [email protected] District 4 Karen Renwick (Kansas City), [email protected] Brian L. Williams, [email protected] Jennifer Salva (Kansas City), [email protected] District 5 Teresa M. Schreffler (Wichita), [email protected] Vincent Cox, [email protected] Richard H. Seaton Sr. (Manhattan), [email protected] Terri J. Pemberton, [email protected] Sarah B. Shattuck (Ashland), [email protected] District 6 Richard D. Smith (Topeka), [email protected] Tish S. Morrical, [email protected] Marty M. Snyder (Topeka), [email protected] District 7 Patti Van Slyke, Journal Editor & Staff Liaison, [email protected] Gary L. Ayers, [email protected] Hon. Jeffrey E. Goering, [email protected] Catherine A. Walter (Topeka), [email protected] Megan S. Monsour, [email protected] Meg Wickham, Dir. of Communications & Member Svcs., [email protected] District 8 Issaku Yamaashi (Overland Park), [email protected] Gaye B. Tibbets, [email protected] Natalie Yoza (Topeka), [email protected] District 9 Aaron L. Kite, [email protected] The Journal Board of Editors is responsible for the selection and editing of all substantive legal articles that appear in The Journal of the Kansas Bar Association. District 10 The board reviews all article submissions during its quarterly meetings (January, Gregory A. Schwartz, [email protected] April, July, and October). If an attorney would like to submit an article for District 11 consideration, please send a draft or outline to Patti Van Slyke, Journal Editor Mark Dupree, [email protected] at [email protected]. District 12 Alexander P. Aguilera, [email protected] Ryan Purcell, graphic designer, [email protected] Bruce A. Ney, [email protected] John M. Shoemaker, [email protected] At-Large Governor The Journal of the Kansas Bar Association (ISSN 0022-8486) is published Eunice Peters, [email protected] monthly with combined issues for July/August and November/December for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., and at KDJA Representative additional mailing offices. The Journal of the Kansas Bar Association is published Hon. James R. Fleetwood, [email protected] by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806; KBA Delegate to ABA House Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, Natalie G. Haag, [email protected] which is included in annual dues. Nonmember subscription rate is $45 a year. Eric Rosenblad, [email protected] The Kansas Bar Association and the members of the Board of Editors assume ABA State Delegate no responsibility for any opinion or statement of fact in the substantive Linda S. Parks, [email protected] legal articles published in The Journal of the Kansas Bar Association. YL Delegate to ABA House Copyright © 2017 Kansas Bar Association, Topeka, Kan. Joslyn Kusiak, [email protected] For display advertising information, contact: Interim Executive Director Bill Spilman at (877) 878-3260 toll-free, (309) 483-6467 or Karla Whitaker, [email protected] email [email protected] For classified advertising information contact Patti Van Slyke at (785) 234-5696 or email [email protected]. Our Mission Publication of advertisements is not to be deemed an endorsement of any TheKansas Bar Association is dedicated to advancing the professionalism and product or service advertised unless otherwise indicated. legal skills of lawyers, providing services to its members, serving the community POSTMASTER: Send address changes to The Journal of the Kansas Bar through advocacy of public policy issues, encouraging public understanding of Association, 1200 SW Harrison St., Topeka, KS 66612-1806. the law, and promoting the effective administration of our system of justice.
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6 The Journal of the Kansas Bar Association from the interim executive director
Serving in Time of Crisis by Karla Whitaker, KBA/KBF Interim Executive Director
s the COVID-19 crisis has arrived in Kansas, one thing As live events have been postponed or canceled, a growing is clear: the delivery of legal services has never been number of online resources are being made available to KBA more important. In fact, the statewide Stay Home di- members. The first Town Hall Webinar focusing on technol- Arective specifically cites “Preserving Constitutional or Legal ogy and practicing remotely drew nearly 200 lawyers from Rights” as an essential service in Kansas. Kansas lawyers and across the state. These webinars will provide a forum for shar- judges have always had great stamina, strength and the stabil- ing information and will continue throughout the crisis. ity to serve those in need. Those services are now being pro- The Association is also providing a growing number of we- vided from a distance greater than six feet away, by telephone, binars for CLE credit, to help you meet your annual CLE text, email or video “Zoom.” Despite the COVID-19 restric- requirements. I encourage you to continue checking the KBA tions, the judicial system is adapting in its continuing work to website for more CLE offerings. maximize access to justice for all Kansans. The KBA will also continue to provide resources for man- The Kansas Bar Association is prepared to help. We have aging your practice and for encouraging health and wellness. established the KBA COVID-19 Response and Help Center We will advocate for emerging issues during these trying to serve as a source of the most current information during times. The Association is dedicated to serving you in new this pandemic. and developing ways as we face the COVID-19 challenge to- This new resource guide provides lawyer-specific links, vid- gether. n eos and related sources for professional and personal success in this new and very trying time. Go to ksbar.org for direct access to this information. kba president’s column
Lawyers: Don’t Shut Down, You Are Essential to the Survival of Our Country
by Mira Mdivani
Dear Colleagues: with completing work on a client’s will because the law didn’t allow for virtual notaries, or finishing an I-9 audit that nor- mally requires face-to-face interaction for an employer under Don’t Shut Down COVID-19 lockdown, clients cancelling work while you have I live next to a beautiful park. It is spring. As I run in the to meet payroll at our own firms, isolation and cabin fever, park early in the morning, while keeping six feet away from and this is just the beginning. So what do we do? One option runners, the park delights me with its luscious green grass and is to shut down, lay off our staff, close our doors, wait until it gorgeous magnolias, cherries, and mulberry trees in bloom. gets better. The other? Stay open, find a new way to practice While I run, I feel free and happy. I am happy that so far, virtually, help each other to adapt, innovate and evolve while my family, friends, and colleagues, many of whom are also continuously serving our communities. close friends, are all alive, and I am still able to practice law. Lawyers Are Essential Providers I also feel terrified because my daughter is a physician whose As state and local governments issue orders to shelter in surgery practice has been shifted to ICU where she is risking place, they designate lawyers as essential providers, in the her life treating patients with coronavirus. I am afraid that same category as physicians, nurses, food distributors, air someone I know may die. Our lives and practices have been traffic control, abused women shelters, police and firefighters. upended because of a deadly epidemic. There are so many This is because lawyers are enablers of essential functions of hurdles to overcome and so many difficult decisions to make. society, as well as providers of services that allow other es- Sheltering in place, practicing from home, dealing with re- sential businesses to stay open to take care of our health, civil mote access, learning how to videoconference, how to run a order and wellbeing. paperless office, inability to see clients in person, struggling
8 The Journal of the Kansas Bar Association kba president’s column
How to Stay Virtually Open: Help for Lawyers Everyone says we are in this together, and it is so true. KBA members are essential providers of support to businesses and Among many sources of help, there are two that are avail- infrastructure. And we are not only each other’s keepers, we able to lawyers: are keepers of due process and civil society. Let’s work very KBA Resources hard to help each other to stay open, so when the pandemic Kansas Bar Association has resources available to our mem- is over, we can get back to a sense of normal, thank each bers at KBA COVID-19 Help Center at https://www.ksbar. other for doing our part in keeping our country functioning, org/ . The COVID-19 taskforce, KBA lawyer volunteers and and enjoy gorgeous parks in each other’s delightful company staff are providing vital information and help with moving again. virtual practice-related legislation forward, addressing vir- tual practice IT, employment, financial, emotional and other practical issues, through online posts, a townhall webinar About the KBA President meeting (available to watch), online CLEs, and personal calls Mira Mdivani is current KBA President. She and emails between KBA members, staff, and volunteers. practices business immigration law at Mdivani Legislation Helpful to Our Clients Corporate Immigration Law Firm. She loves and to Lawyers/Law Firms her KBA friends and colleagues, many of whom are her friends and the reason why she Legislation is on the way to help our clients and businesses, loves practicing law. including lawyers, with tax relief and SBA loans. It is going [email protected] to be really tough, and KBA will provide information and resources to weather the storm.
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www.ksbar.org | April 2020 9 feature
Top Ten Tips for Lawyers “Zoom”ing Into Remote Work During the Pandemic To Maintain Confidentiality, Privacy and Productivity
by Susan Berson
eemingly overnight, people have switched to remote ing any technology are set forth, in pertinent part, below. work environments, and with the transition, learning ABA Rule 1.6 (c): “A lawyer shall make reasonable efforts to conduct videoconference calls. Tools such as Zoom to prevent the inadvertent or unauthorized disclosure of, or Shave become a very popular platform in the pandemic for unauthorized access to, information relating to the represen- lawyers to communicate with staff and even clients. Below tation of a client.” are a few considerations for maximizing safeguards to protect confidentiality and privacy, along with short cuts that can Comment 8 of ABA Rule 1.1 says, “To maintain the req- save time. uisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and 1. Be Aware of Ethical Rules and Confidentiality risks associated with relevant technology.” for Purposes of Data Privacy Encryption and password protection must go hand-in-hand While everyone should be aware of the importance of pro- with any and all technology. Rules of thumb applying to use tecting and safeguarding their personal information, lawyers of any technology: have a duty governing confidentiality when implementing 1. Create strong passwords.1 platforms such as Zoom or other virtual service providers when practicing in the virtual world. Lawyers have an ethi- 2. Have at a minimum, two-factor authentication enabled cal duty to safeguard confidential information and must take for all accounts.2 reasonable efforts to do so. This means that with any tool that 3. For a Virtual Privacy Network, carefully evaluate who is used to communicate with clients or others about confi- will be accessing and disseminating information when find- dential or sensitive information, a lawyer must evaluate the ing a communication platform, and choosing a VPN.3 product first to make sure it can work for the purpose for When vetting a technology—whether a product, vendor or which it is to serve. service—ensure that it only allows authorized users, is secure Briefly, the Rules a lawyer should review before implement- and has a system of monitoring in place to prevent acciden-
10 The Journal of the Kansas Bar Association feature
tal or malicious breaches. All staff should be appropriately access to only individuals invited and specified for attending. trained about the technology and privacy policies. In the Heard of Zoombombing? It’s when an unauthorized user event that, despite reasonable efforts, a data breach happens joins a meeting. From your end, the way to avoid this from to occur, lawyers may have obligations to discuss or otherwise happening is to never post a link to any meeting on Zoom disclose the breach under certain circumstances to clients.4 with public forums (e.g. Twitter, Facebook). Even if you 2. Review Privacy Policies and Terms of Service think it is an innocent social gathering, the opportunity for a troll to access the meeting with the link exists, and should Generally, service providers must post their privacy policies documentation be shared, plant malware. So, to maximize and terms of service on their websites. Zoom is no different security protections, make sure that the default setting under in that regard, and it posts its Privacy Policies and Terms of Screen Sharing is changed so that you control whether access Services for a User to review on its website. Attorneys should occurs. (It is common to have the settings set to “default” review the policies and terms of service before signing up and when the Zoom account is first opened.) When your screen implementing any product or vendor providing service(s). At- setting is set on default, this means that the ability for both torneys have a responsibility to take the appropriate safeguards the host and participants to share their screens or content to protect client confidential and sensitive information. during meetings is turned on. A highlight of a few of the features and policies to be aware To get out of Default, go to Settings (on the left side of the of when deciding to use Zoom includes: Zoom website). Scroll down to Screen Sharing. There is a Real-time User Activity: Information such as a toggle, slide the toggle to the left to disable. The color of the participant’s IP address, location data, and device toggle should change from blue to gray to show that it is in information (e.g. PC, Mac, Linux, mobile), and even disabled mode. Once disabled, this setting will block partici- specs on the model of a peripheral audiovisual device pants from sharing content. like cameras or speakers that might be in use can To prevent others from sharing files, go to Settings. Scroll possibly be seen by an administrator. down to the File Transfer section. Slide the toggle to the Administrators Can Log-In: For firms with multiple left of the statement: “Hosts and participants can send files partners or staff with administrator approval, be through the in-meeting chat”. Again, once it is disabled, the aware that Zoom allows for anyone who is an color of the toggle will go from blue to gray. “administrator” to have the ability to log in and Finally, it should be mentioned that as of this writing, attend a call. Zoom has not yet filed a transparency report which is the Shared Data with Third Party Services: Zoom’s industry standard for technology companies to, among other privacy policy also states: “our third-party service things, disclose statistics concerning collection of user data, providers, and advertising partners (e.g., Google records, content and requests for government agencies for the Ads and Google Analytics) automatically collect same. The Access Now organization has called upon Zoom to 11 some information about you when you use our file such a report. Products…”5 4. Attention Tracking12 3. Confidentiality is Key: Password Protecting If you are a participant with interruptions, don’t click away Meetings and Changing Default Settings for longer 29 seconds. Why? There is a built-in tool in ver- First, the “Secure a Meeting with End to End Encryption” sions of Zoom 4.0 and higher, that allows a host to deter- should be selected in settings to maximize confidentiality.6 mine whether the participants have been away from the active Second, have users connect by computer instead of phone. Zoom window that kicks in after 30 seconds. “Hosts can see When everyone connects in a Zoom meeting using “comput- an indicator in the participant panel of a meeting or webinar er audio”, the meeting can be secured with Zoom’s featured if an attendee does not have Zoom Desktop Client or Mobile “end-to-end” encryption technology.7 Connecting with a App in focus for more than 30 seconds while someone is shar- phone (audio) option does not offer the same level of security ing a screen. ‘In focus’ means the user has the Zoom meeting 13 capabilities according to security analysts,8 and users should view open and active.” be aware of the pre-meeting settings that are necessary to uti- There is an option in a user’s account settings to disable the lize the Zoom end-to-end encryption features.9 tracking feature. However, as the administrator of the Zoom Likewise, stop a hack before it starts by password protecting call, clicking on the lock icon in the (administrator’s) settings, each meeting scheduled on Zoom.10 Cryptography is used by makes it mandatory that all users are subject to the attention Zoom to identify a host so it is difficult for a potential hacker tracking abilities. So, as a host who is in screen-sharing mode, to determine the identity of a Zoom host or call that is sched- when an attendee of a meeting does not have the Zoom video uled. The host can password protect each meeting to allow window in focus during the call, after 30 seconds, there will
www.ksbar.org | April 2020 11 be an indicator next to the name of the attendee/participant 9. Filters which shows the host that the Zoom window is not active. In everyday life, beauty is the eye of the beholder. However, Note that the tracking is not enabling audio or video, so, it in the virtual world of Zoom, there is filter tool that can al- 14 “…only tracks attention while someone is sharing a screen.” low adjustments to lighting for presenting a “polished” look.17 5. Dual Monitors 10. Keyboard Hacks Two monitors—in some offices three monitors-is incredibly A few shortcuts using the keyboard:18 efficient for getting work done. There is a setting that allows for customizing to “dual monitors”.15 In a Zoom call, this Invite: “I” is for invite. Press Cmd+I (macOS) or Alt+I function can be helpful because it allows a user to view meet- (Windows) which brings the Invite window. ing attendees/participants on one separate screen, and then, Mute: “M” is for mute. Press Cmd+Ctrl+M (macOS) or the content that is being shared on the other screen. By leav- Alt+M (Windows) which allows the meeting host to mute ing the setting off, the attendees/participants and the shared attendees/participants on the call. content will be appearing on the same screen. Pause: “P” is for pause. Press Cmd+Shift+P (macOS) or 6. Customizing the Space Bar As A Mute Tool Alt+P (Windows) to pause/resume recording the call. Share: “S” is for share. Press Cmd+Shift+S (macOS) or Ever try to review a document on a call with a colleague, Alt+Shift+S (Windows) which allows the sharing of your screen. and you have to fumble around to find the Zoom window to unmute? When using a phone, there is a mute button and CONCLUSION push it, the microphone doesn’t pick anything up and a dis- cussion can ensue to talk or grab a document needed without For legal professionals, the priorities of maintaining our the other party hearing. In Zoom, a user can also mute, and clients’ confidences and satisfying their expectations remains then, when it’s time to speak, unmute. It is possible to cus- the focus of practicing in the virtual world. Whatever plat- tomize the space bar as a hack for quickly shifting into un- form is chosen for communicating with clients in the virtual mute in Zoom. You’ll see that the space bar only works when world, make certain that it is properly vetted before imple- Zoom is in the main window. To create the shortcut, just go menting and using with clients and their information. Once into the Zoom settings. Set up a customized shortcut allow- chosen, there are shortcuts and uses that can enhance our ing the ability to mute and unmute when in another window. practices and the service we provide to our clients and each other, as colleagues. n 7. The Zoom “Waiting Room” Late note from the author, in response to a colleague’s Ever have colleagues or clients show up early at the recep- question: Another option to Zoom to consider is tion desk for an in-person meeting, and bump into to each GoToMeeting (https://www.gotomeeting.com).While other before you happen to arrive? The receptionist might take there are no free plans (unlike Zoom basic) being offered, each one to a different room to wait. In Zoom, there is also there is a 14-free trial period. For fees, the minimum is a way to have individuals stay in a “Waiting Room”. In fact, a $12 a month payment for video calls with up to 150 it is called the “Waiting Room” feature, and it works similar participants. Skype, Slack and Facebook Messenger to a conference call line. A single email can be sent with a are not recommended options because they do not have single Zoom link. When the individual logs in, the individual encryption, discussed further under heading 3. “enters” into a room until the host’s arrival. A waiting room screen appears which allows the attendee/participant to know About the Author that he or she will be admitted soon. The waiting room screen can be customized with a logo and/or title and description of Susan Berson advises on the substantive a meeting or presentation. The host can see when an attendee/ law matters of data privacy, tax and other regulatory matters. She helps clients in various participant enters the waiting room. The host can admit all industries and professions, including other legal attendees/participants when ready. professionals. Susan is also the author of several books published by Law Journal Press and the 8. Backgrounds American Bar Association, and has written many articles as well. Susan and her husband, Dave, Zoom allows a user to change the background that appears practice law together in Berson Law Group for the virtual call or meeting.16 Whether it works properly LLP. Experienced working in remote environments, and maximizing is dependent upon a user’s computer processor. Otherwise, technology and applicable safeguards for confidentiality and it is simply going to the settings and the user can adjust protecting privacy, Susan has helped colleagues transition and adjust accordingly. to working remotely in the pandemic. [email protected].
12 The Journal of the Kansas Bar Association 1. See “Creating Strong Passwords Using Password Managers,” Sur- meeting hosts. When a host starts a meeting with the ‘Require Encryp- veillance Self-Defense, available online at https://ssd.eff.org/en/module/ tion for 3rd Party Endpoints’ setting enabled, participants see a green creating-strong-passwords. padlock that says, ‘Zoom is using an end to end encrypted connection’ 2. See “How to Enable Two-Factor Authentication,” Surveillance Self- when they mouse over it. But when reached for comment about whether Defense, available online at https://ssd.eff.org/en/module/how-enable- video meetings are actually end-to-end encrypted, a Zoom spokesperson two-factor-authentication. wrote, ‘Currently, it is not possible to enable E2E encryption for Zoom 3. “Choosing A VPN That’s Right for You,” Surveillance Self-Defense, video meetings. Zoom video meetings use a combination of TCP and available online at https://ssd.eff.org/en/module/choosing-vpn-thats- UDP. TCP connections are made using TLS and UDP connections are right-you. encrypted with AES using a key negotiated over a TLS connection.’”) 4. See Formal Opinion 483 October 17, 2018, Lawyers Obligations 10. See Zoom, “Meeting and Webinar Passwords,” Zoom Support, avail- After an Electronic Data Breach or Cyberattack. able online at https://support.zoom.us/hc/en-us/articles/360033559832- 5. If you were using Zoom prior to March 27, 2020, be aware that Meeting-and-Webinar-Passwords. certain non-sensitive information may have been shared with Facebook. 11. See Access Now, Public Letter to Zoom (March 18, 2020), available See https://www.vice.com/en_us/article/z3b745/zoom-removes-code- online at https://www.accessnow.org/cms/assets/uploads/2020/03/Letter- that-sends-data-to-facebook. Prior to March 27, the iOS version of to-Zoom-.pdf the Zoom app had been found to possibly be sending certain data to 12. Since the writing of this article, Zoom has announced Facebook—even if a user does not have a Facebook account. Is this an changes to the attention tracking feature. See https://blog.zoom.us/ uncommon practice in its industry? No. There are many apps that use wordpress/2020/04/01/a-message-to-our-users/.” the software developments kits from Facebook because they offer an 13. See Zoom, “Tips for Educators: Attendee Attention Tracking,” easier method for quickly implementing features that Facebook uses in (January 26, 2018), available online at https://blog.zoom.us/word- their apps. Prior to March 27, Zoom had disclosed that it may collect press/2018/01/26/zoom-tips-for-educators-attendee-attention-tracking/ user’s “Facebook profile information (when you use Facebook to log-in to 14. Id. our Products or to create an account for our Products)…” For users who 15. See Zoom, “Using Dual Monitors with the Zoom Desktop Cli- do not have a Facebook account, be aware that includes you, too. ent.” Zoom Support, available online at https://support.zoom.us/hc/en- 6. Since the writing of this article, Zoom has announced changes to the us/articles/201362583-Using-Dual-Monitors-with-the-Zoom-Desktop- encryption features. See https://blog.zoom.us/wordpress/2020/04/01/a- Client . message-to-our-users/. 16. See Zoom, “Virtual Backgrounds”, Zoom Support, available 7. See Zoom Security page, available online at https://zoom.us/security online at https://support.zoom.us/hc/en-us/articles/210707503-Virtual- 8. See Zoom Security White Paper, available online at https://zoom. Background. us/docs/doc/Zoom-Security-White-Paper.pdf 17. See Zoom, “Touch Up My Appearance,” Zoom Support avail- 9. See “Zoom Meeting Encryption”, available online at https://thein- able online at https://support.zoom.us/hc/en-us/articles/115002595343- tercept.com/2020/03/31/zoom-meeting-encryption/ (“In Zoom’s white Touch-Up-My-Appearance. paper, there is a list of ‘pre-meeting security capabilities’ that are available 18. See Zoom, “Hot Keys and Keyboard Short Cuts for Zoom,” to the meeting host that starts with “Enable an end-to-end (E2E) en- Zoom Support, available online at https://support.zoom.us/hc/en-us/ crypted meeting.” Later in the white paper, it lists ‘Secure a meeting with articles/205683899-Hot-Keys-and-Keyboard-Shortcuts-for-Zoom. E2E encryption’ as an ‘in-meeting security capability’ that’s available to
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www.ksbar.org | April 2020 13 To Register: www.ksbar.org/CLE April & May CLEs
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Tuesday April 14 at Noon Staying Ethical During a Pandemic with Stephanie Goodenow (approved for 1.0 Ethics credit) Wednesday April 15 at Noon Deal or No Deal: Ethics on Trial (pending 1.0 Ethics credit) Wednesday April 15 at Noon May it Displease the Court? Keeping Your Head (and Your Law License) in Court (pending 1.0 Ethics credit) Thursday April 16 at Noon YLS Sponsors “Blurred Lines: Setting Boundaries to Improve Your Work and Well-Being” with Danielle Hall (pending 1.0 Ethics credit) Friday April 17 at Noon 8 Mistakes Experienced Contract Drafters Usually Make Tuesday April 21, 12 – 2 PM IP Series: Expert Views on Hot U.S. Patent Law Topics with Kathleen Daley, Mike Jakes, Amanda Murphy, and Tom Irving Wednesday April 22 at Noon Yakety Yak! Do Call Back! The Ethical Need for Prompt Client Communication (pending 1.0 Ethics credit) Thursday April 23 at Noon Me Too: Sexism, Bias, and Sexual Misconduct in the Legal Profession Tuesday, April 28 at Noon 501(c)(3) Organizations: Formation, Governance & Best Practices Wednesday April 29 at Noon Technical Fouls: Even Minor Ethics Violations Can Have Major Consequences (pending 1.0 Ethics credit) Tuesday May 5 at Noon Legal Ethics is No Laughing Matter: What Lawyer Jokes Say About Our Ethical Foibles (pending 1.0 Ethics credit) Wednesday May 6 at Noon The Accidental Lawyer: Terms of Engagement (pending 1.0 Ethics credit) Thursday May 7 at Noon The Passion of the Barrister: An Ethical Lawyer is a Happy Lawyer (pending 1.0 Ethics Credit) Tuesday May 12 at Noon From Competence to Excellence: The Ethical Imperative for Excellent Client Service (pending 1.0 Ethics credit) Tuesday May 19 at 11:00 AM It’s Not the Fruit, it’s the Root: Getting to the Bottom of Our Ethical Ills (pending 1.0 Ethics credit) Wednesday May 20 at Noon If You Can’t Say Something Nice, Shut Up!: The Ethical Imperative for Civility (pending 1.0 Ethics credit) Wednesday May 27 at Noon The Paperless Law Firm – A Digital Dream Wednesday May 27 at 11 AM Ethical Jeopardy: A CLE Game Show! (pending 1.0 Ethics CLE) Thursday, May 28 at Noon How to Lose an Appeal with One Simple Brief with Lyndon Vix
14 The Journal of the Kansas Bar Association More dates are being added all the time – Keep up to date at www.ksbar.org/cle or Follow us on Twitter @KansasBarCLE Education Law
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www.ksbar.org | April 2020 15 kbf Lucky Number 7: Seven law students receive recognition and financial assistance through KBF Scholarships
erhaps you know someone who has benefitted from the generosity of a KBF donor who has established a scholarship. Since 2007, with the creation of the scholarship program, 76 scholarships have been awarded. The KBF Scholarship Committee has been overseeing the award process and hasP worked with the KBF Investment Committee to make sure the recipients of the awards meet with the wishes and requirements established by the donors. It is with pleasure that the Board of Trustees presents the 2020 scholarship award recipients.
The Justice Alex M. Fromme Memorial Scholarship Award $1,000 • The award is provided to a law student attending the University of Kansas School of Law or Washburn University Law School who is committed to practicing law in Kansas. Paige E. Hungate / Washburn University School of Law Born and raised in Wichita, Hungate is a proud Kansan. After graduating from Wichita State University with a B.S. in Computer Science and a B.A. in Political Science, she proceeded to Washburn University School of Law. She hopes to practice patent prosecution — working with the United States Patent & Trademark Office to obtain patents for clients. During her first summer of law school, she clerked at Morris, Laing, Evans, Brock, & Kennedy, Chtd. in Wichita. This summer, she will be clerking at Erise IP in Overland Park, KS, and Patterson + Sheridan LLP in Houston. Her ultimate goal is to work in Kansas and eventually develop a patent practice in Wichita, an area lacking patent attorneys. “I am honored to have been selected as the recipient of The Justice Alex M. Fromme Memorial Scholarship Award. I am passionate about Kansas and keeping people in the state to make it better. This has led to my interest in working with entrepreneurial Kansans to receive intellectual property protection without having to go out-of-state for legal assistance. Kansas has invested in me, and I would like to invest back in the state. Thank you, Kansas Bar Foundation, for providing me with this opportunity. Ad Astra Per Aspera!”
Hinkle Law Firm Student Scholarship $3,000 • This scholarship is given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Because community service is extremely important to the Hinkle Law Firm, applicants must also demonstrate a history of community involvement to be considered. Emily Reed / University of Kansas School of Law Originally from Pomona, Reed graduated with a B.S. in Political Science from Emporia State University. Reed is a 2L at the University of Kansas School of Law, where she is a Lawyering Skills teaching assistant, research assistant to Lou Mulligan, and co-founder and vice president of the Midwest Innocence Project Student Organization. Reed spent last summer at Spencer Fane, LLP in Kansas City, MO and will be returning this summer. Emily’s favorite part of law school so far has been participating in the National Moot Court Competition and participating in KU’s Project for Innocence and Post-Conviction Remedies, where she assists clients with a student practice permit. “I am so honored to be awarded the Hinkle Law Firm Student Scholarship. This support from the Kansas Bar Foundation will help me continue my educational pursuits with less financial burdens. I look forward to getting more involved with the KBF throughout the years, and one day helping future law students as the KBF has so generously helped me.” 16 The Journal of the Kansas Bar Association kbf Lucky Number 7: Seven law students receive recognition and financial assistance through KBF Scholarships
Lathrop Gage Student Scholarship $2,000 • This scholarship shall be given to a law student at the University of Kansas School of Law or Washburn University School of Law. Applicants should demonstrate a bona fide intention to practice law in Kansas. Applicants must demonstrate a history of community involvement to be considered. Jake Schmidt /University of Kansas School of Law Jake Schmidt is a 2L at the University of Kansas School of Law. Originally from Overland Park, his family moved to Atchison in 2003. Jake grew up Catholic and attended Catholic school for all twelve years of his early education. This culminated in four years of high school at Maur Hill – Mount Academy. While in school, he spent most of his time playing football, basketball, and baseball. When it became clear he wasn’t going to play tight end for the Kansas City Chiefs, Jake decided to move on to his back-up plan; he began undergraduate coursework at the University of Kansas in 2015. Schmidt majored in economics and completed his degree in three years, graduating with highest distinction. However, he couldn’t fathom leaving Lawrence after only three years, so naturally he began law school. During his first summer, he was employed as a summer associate at Foulston Siefkin LLP in Wichita. He has subsequently interned for two federal judges on the United States District Court for the District of Kansas: the Hon. Carlos Murguia and the Hon. Holly L. Teeter. Schmidt was recently selected to be an Articles Editor for the Kansas Law Review. Next summer, he plans to return to Foulston Siefkin LLP. “It is a true honor to receive a scholarship from the Kansas Bar Foundation. In my short time as a member of the legal community, it has become abundantly clear to me that Kansas lawyers are among the best in the country. Not only do Kansas lawyers excel at their craft, but they also are genuinely caring people. I thank the Kansas Bar Foundation and contributing lawyers for caring about me and my fellow law students. I look forward to joining you in serving our great State.”
The Frank M. Rice Scholarship $5,000 • The Frank M. Rice Scholarship promotes the practice of law in the state of Kansas by annually awarding funds to a student attending the University of Kansas School of Law or Washburn University School of Law to assist with the costs of tuition. The scholarship is intended to help law students become lawyers in the mold of Frank M. Rice who was “among the finest…in the Bar. He was at the top of his class…and always applied the highest level of legal scholarship to any legal matter in which he was involved.” The recipient must have been admitted to law school and must be a Kansas resident. Suzie Locke / Washburn University School of Law Originally from Idaho Falls, ID, Locke moved to Kansas to work on a master’s degree in Leadership. She met her spouse and now lives on a cattle ranch outside El Dorado with her husband and three sons. While in law school, she has participated in Moot Court, Trial Team and in several student organizations. In the Summer of 2019, she interned with Hinkle Law in Wichita and currently works as an extern for Hon. Eric F. Melgren, District Judge, United States District Court for the District of Kansas. After graduation, she plans to work for Adams Jones Law Firm, splitting time between the El Dorado and Wichita offices. When not in Topeka attending classes, she enjoys spending time outdoors with her family. “I am honored to be the 2020 recipient of the Frank M. Rice Scholarship and to be among the class of past recipients. The Kansas Bar Foundation Scholarships have been a blessing during my tenure at Washburn University School of Law. I look forward to joining a legal community that cares significantly about student success and education. I hope I am able to reciprocate the generosity and support in the future.” kbfpoetry and the law
Frank C. and Jeanne M. Norton Scholarship Award $2,000 • This scholarship is available exclusively to Washburn University School of Law students in their second or third year of study who are not receiving any other scholarship support. Carissa Leffler / Washburn University School of Law Leffler, a 3L at Washburn University School of Law, grew up in Bellevue, NE. She attended Missouri State University, earning a B.S in Criminology with a minor in Public Law. She enjoys honing her advocacy skills by being a member of Washburn Law’s Moot Court Council, ABA Trial Competition Team, and Voir Dire Competition Team. Throughout law school, she has interned at the Shawnee County District Attorney’s Office. Leffler plans to pursue a career in criminal law or civil litigation upon graduation. “I am humbled and grateful to be selected as the recipient of the Frank C. and Jeanne M. Norton Scholarship. I want to thank all of the generous donors who make the Kansas Bar Foundation scholarships possible for law students faced with financial stress. I look forward to being a practicing member of the Kansas Bar Association and Foundation and hope to contribute to Kansas’s future law students.”
Case, Moses, & Zimmerman P.A. Law Student Scholarship $1,000 • This scholarship is intended to go to a future Kansas lawyer attending a Kansas law school, Creighton University School of Law or Oklahoma City University School of Law. This award is specifically given to a second-year student who intends to practice law in the state of Kansas. Emily Brandt / Washburn University School of Law Brandt grew up in Beloit and is a 2L. Prior to law school she graduated summa cum laude from Fort Hays State University with a B.A. in Political Science. Brandt was selected to participate in the Dane G. Hansen Foundation Rural Externship Program at Washburn Law and spent her first summer working at Dreiling, Bieker & Hoffman in Hays. Brandt serves as an executive board member for the Rural Practice Organization and Women’s Legal Forum. She is also a junior staff writer for the Washburn Law Journal and a member of the AAJ Trial Competition Team. After graduation, Brandt intends to return to rural Kansas to practice law. “I am honored to have been selected as the recipient of the Case Moses & Zimmerman, P.A. Law Student Scholarship. I am thankful for the support and generosity of the Kansas Bar Foundation while I pursue my legal education. Thank you, Kansas Bar Foundation, for supporting future Kansas lawyers like me.” Hon. Richard D. and Cindy Rogers Scholarship $1,000 • The scholarship promotes the practice of law in the state of Kansas by annually awarding funds to a student attending Washburn University School of Law to assist with the costs of tuition. The student must have been admitted to law school and must be a Kansas resident, preferably from a rural community. Preference is given to applicants who have displayed perseverance in the pursuit of a legal education, and who share the passion for the law with the late Judge Rogers, a passion as exemplified in community or pro bono service. Darby VanHoutan / Washburn University School of Law VanHoutan, originally from Rose Hill, is in her second year at Washburn University School of Law. Before law school, she attended the University of Kansas and earned a B.A. in Political Science and a B.S. in Journalism. In 2019, after her first year of law school, VanHoutan participated in the Dane G. Hansen Rural Externship Program where she was selected to work in Sharon Springs for Etta L. Walker, Attorney at Law. Currently, VanHoutan serves as secretary of the Women’s Legal Forum, an ambassador for the law school, and a member of the AAJ Trial Competition Team. After graduation, VanHoutan plans to remain in Kansas and practice criminal defense and family law.
18 The Journal of the Kansas Bar Association poetry and the lawkbf
“I am incredibly grateful to have been chosen as the recipient of the Hon. Richard D. and Cindy Rogers Scholarship. I cannot put into words how much the financial support means to me. I will continue to pursue the justice that Judge Rogers and other passionate Kansans have fought for and protected for so long. Thank you to the Kansas Bar Foundation for helping to support students like me as we strive to be the next great lawyers of Kansas.”
There have been years that the applicants for scholarships did not meet the criteria outlined for the scholarship. This year, three scholarships did not have applicants that met the criteria established or there was not an applicant for that scholarship. The following were not awarded this year: • Capitol Federal Foundation Diversity Scholarship, • John E. Shamberg Memorial Law Student Scholarship • Maxine S. Thompson Memorial Scholarship Award.
You can help us reach students who might qualify for these awards next year. We appreciate your suggestions. Descriptions of each scholarship can be found here: https://www.ksbar.org/mpage/scholarships
Congratulations to the 2020 recipients!
Testimonial from Past Scholarship Winner Michael T. Crabb
Receiving the inaugural Case Moses Scholarship in 2007 made a big difference to me as a non-traditional student. At the time, I was a 2L, married with a toddler at home and another on the way. I had left the workforce to pursue a legal career and I hoped against hope that I hadn’t made a big mistake. The looming Great Recession made it all the more nerve-rattling. But the Case Moses scholar- ship helped us pay the bills so I could focus on schoolwork. I ended up landing a great job at Husch Blackwell. I’m now a partner with Kuckelman Torline Kirkland, focusing on personal injury and civil rights litigation. I’ve made it a priority to pay it forward through pro bono legal work and giving financially to worthy causes. Michael T. Crabb Attorney
www.ksbar.org | April 2020 19 poetry and the law
Professor Prufrock, Revisited: Poetry and the Law1
Robert W. Parnacott
20 The Journal of the Kansas Bar Association poetry and the law
“Even as there are laws of poetry, so there is poetry in law.” and whose mind is not stored with the treasures of our great 2 literary inheritance...’”14 Reading outside the law, whether What does the practice of law have to do with poetry?3 it be nonfiction, fiction, drama, or poetry, is recommended to benefit the lawyer’s ability to read, think, and write in “Law is not typically viewed as being related to poetry.”4 It 15 has been said: “[t]here is little poetry in a lawyer’s life...”5 their practice: “[g]o, then, and read—in the law and out.” It is also said: “[i]n the bright light of day, the work of a Professor Harold Bloom, from a non-legal perspective, said: lawyer seems to have absolutely nothing to do with that of “[i]t matters, if individuals are to retain any capacity to form their own judgments and opinions, that they continue to the poet.”6 However, “[t]hough Mr. Justice Holmes properly 16 said the law is not the place for the poet, there are affinities read for themselves.” between the lawyer and the poet not visible to the undis- After a brief review of law as literature, as well as law and cerning eye.”7 Others have said: “[l]aw and poetry have a cu- literature, this article will focus on two primary topics: com- rious but intriguing relationship with one another.”8 Jacob paring the writing of poetry and the writing of legal materi- Grimm, who while perhaps better known as a compiler of als and then comparing the reading and search for meaning fairy tales, also a philosopher of jurisprudence, commented: in poems and legal texts. The article will then address ex- “‘poetry and law have risen from the same bed.’”9 Early law amples of judicial opinions that use poetry to make points, was often expressed poetically.10 One commentator notes followed by examples of poems touching either directly or that historical roots of legal writing may have arisen out of indirectly on the practice of law. The article will continue the oral tradition which allowed easier memorization and with mention of attorneys (including Kansas attorneys) who recitation.11 A variety of schools of thought in jurisprudence are also poets of varying degrees of renown, and then finish coalesce “around the idea that lawyers and judges are or with some related matters. For those so interested, a list of should be more like poets, storytellers and interpreters rather further reading suggestions will be provided at the end of than like scientists or engineers.”12 the article. But, as Professor Prufrock says: “[o]h do not ask 17 The primary benefit for the lawyer to read or write po- ‘what is it?’ / Let us go and make our visit.” etry is that it can improve the lawyer’s ability to read and Law as Literature, Law and Literature write in general. Judge Richard Posner wrote: “[t]o be a good lawyer one must be a careful and resourceful reader, and Many legal commentators consider legal writing to be lit- immersion in poetry and other difficult imaginative litera- erature.18 Literary both in the broader sense regarding our ture is therefore not the worst preparation for the study and written output, but also in the more particular sense legal practice of law.”13 Bryan Garner, in his book on legal writ- writing can “acquaint us with the forces which motivate ing style, notes Lord Macmillan’s observation: “‘no advocate [people] and the place of [people] in society.”19 Often, law- can be a great pleader who has not a sense of literary form yers and judges are at their core “storytellers.”20 Justice Ruth
www.ksbar.org | April 2020 21 poetry and the law
Bader Ginsburg also considers our calling as literary.21 An- is the “‘proper word in proper places.’”37 Similarly, poetry is other commentator has said: “[l]egislation is a form of liter- described as “the best words in their best order.”38 22 ary composition.” Professor James Boyd White opined that: Judge Thomas Marten noted “[g]ood writing is . . . know- “law can be regarded as an imaginative activity and its art 23 ing and following the rules (or violating them deliberately a literary one ...” It has also been said that “like storytell- 39 24 and with a purpose)....” All writers must work with the same ing, appellate advocacy is an art form.” Professor William general rules.40 For those interested in further exploring the Prosser found law to be one of the “principal literary profes- rules of poetry writing, particularly as to form, I would rec- sions.”25 However, Justice Felix Frankfurter believed: “‘[l]aw 26 ommend Miller Williams Patterns of Poetry: An Encyclopedia as literature is restrained by responsibility.’” Justice Benja- of Forms (1986). As an example, the type of poem known as min Cardozo noted: “I am told at times by friends that a 27 a sestina has very specific rules. It is thirty-nine lines, bro- judicial opinion has no business to be literature.” ken into six stanzas of six lines and a concluding stanza of Law and Literature is a discipline which seeks to view law three lines.41 The degree of difficulty is increased by requiring through the prism of literature.28 Law and Literature came that the same six words be used for ending each line in each under fire in the late 1980s with Judge Posner’s criticism stanza, in a rotating order, and then all six words must ap- in the first edition ofLaw and Literature: A Misunderstood pear in the final segment, three used to end a line and then Relation. Therein, Judge Posner, among other points, noted the remaining three included somewhere in the three ending that many of the literary critics writing about law lacked lines.42 legal training and many of the legal commentators writing 43 29 Be clear and precise in writing. “The language of good about literature lacked sufficient background in literature. poetry” is both “active” and “exact.”44 So, too, with legal writ- Professor White, a contemporary reviewing that first edition, ing.45 Garner provides the example of the precise distinction pushed back, however, against Judge Posner’s position: “[b]ut between masterly and masterful.46 The former he notes in- in another sense I agree with virtually nothing that is said” 30 dicates the person is acting as a master, the latter relates to a in Posner’s book. Judge Posner later walked back from this person acting in a “domineering” manner. Mark Twain said criticism in later editions of his work.31 Modern examination 32 “[t]he difference between the right word and the almost right of this relationship can be traced to the 1960s. However, word . . . is the difference between lightning and the light- the genesis of this movement may be traced to an essay by 47 33 ning bug.” In writing poetry, as in legal writing, it is better Justice Benjamin Cardozo published in the 1920s. Writers to avoid general statements when concrete facts can be used.48 in the Law and Literature movement more often focus on “Good writing tends to present evidence.”49 “Show, don’t tell” prose literary works, such as novels, short stories, and plays, is a mantra for both poets and legal writers.50 Avoid wordi- rather than poetry. It is certainly easier to compare the func- ness.51 Strike out pomposity, jargon, and doubling or tripling tions of legal writing, i.e. opinions or briefs, to the usual arts up word combinations such as “due and payable” where due of storytelling, e.g. plays and fiction, whether novels or short works just fine.52 Professor White says: “[t]he proper poem stories. Law as subject of the novel or play yields a rich and formed a complex and organic whole in which all parts be- varied field to draw from, ranging from Shakespeare to Dick- longed, nothing was missing, and everything counted some- ens to Grisham with so many stops in between. There are, of how...”53 Judge Irving Kaufman, former Chief Judge of the course, poems that tell a story, sometimes in great detail and 34 Second Circuit, in comparing writing poetry to appellate length. And there are poems, as noted later in this article, briefing, noted Edgar Allen Poe’s advice to aspiring poets: “a that address law and legal issues. poem should be so disciplined that every word, every sound, 54 Writing Poetry and Writing in the Law led to a single, predetermined effect.” Brevity, of course, should be highly prized. The shortest In Bryan Garner’s interviews of Chief Justice John Rob- judicial opinion award likely goes to Chief Justice John Mar- erts and Justice Anthony Kennedy, both Justices noted that a shall, who once wrote an opinion that only said: “The United writer can develop through increased reading, with Kennedy States never pays costs.”55 The shortest poem may be Lines 35 advocating for more reading of literary works in particular. on the Antiquity of Microbes, by Strickland Gillian: “Adam No matter how long one has practiced law, it is always help- / Had ‘em.”56 A bit longer, but still pretty short and to the ful to stop and think; take a break; refresh; focus on what is point, from Robert Frost, The Span of Life: “The old dog barks good legal writing. Good writing, whether law or on other backward without getting up. / I can remember when he was subjects, share certain common attributes: “[g]ood writing is a pup.”57 . . . good writing. It does not matter whether it is a newspaper story, a novel, a song, or a legal memorandum. . . .”36 As Judge Poets, and legal writers can be “like a Sherlock Holmes, Jerry Elliott would often say to this author, there are gener- assembling a phalanx of data from which to draw [an] edito- ally two things wrong with legal writing: style and substance. rial conclusion.”58 “[T]he form of a poem, the plot of a poem, For writing in general, Jonathan Swift’s observation was style the argument of a poem, the narrative of a poem—would
22 The Journal of the Kansas Bar Association poetry and the law
correspond to the sequence of perceptions.”59 “‘[O]ne percep- canon of interpretation is absolute. Each may be overcome tion must move instanter on another...’”60 To me, this passage by the strength of differing principles that point in other di- could equally be read with the phrase “judicial opinion” sub- rections.” 77 On the other hand, there are differences between stituted for “poem.” interpreting legal texts and poetry. Poetry and legal writing 78 Both writing poetry and legal materials, i.e. good poetry have different goals. Unlike poems, which may have more and good legal writing, are really extensive rewriting. “[T]he limited purposes, legal texts, particularly judicial opinions, mystery of the creative process itself, what we call poesis— perform a variety of functions, including settling the rights the ongoing kinetics of writing...” is largely “tied up with the of competing parties, directing the parties (and in the case of tricky and endless activity of rewriting...”61 Justice Antonin appellate opinions, directing the lower courts) to take certain actions, and commenting on the law as it is or should be un- Scalia and Bryan Garner also emphasize the need to edit and 79 revise your work.62 One recommendation for both poets and derstood. lawyers is to put the work aside for a day or so, then come Holmes drew a distinction between what the legislature, back to it with fresh eyes for editing.63 and legislators, may have intended, and what the words used meant.80 Somewhat in contrast, Archibald MacLeish wrote: Reading Poetry and Reading the Law “A poem should not mean/but be.”81 But, in reading the law, Judge Posner posits that we might read literature to: “im- as well as reading poetry, understanding of the writing often prove our . . . reading skills.”64 Professor White commented: requires context by going behind the words to understand “[t]here is a sense in which my own literary education could the history and surrounding circumstances. As an example, almost be reduced to ‘how to read a poem,’ and my legal edu- Yeats’ An Irish Airman Foresees His Death, set in the First cation to ‘how to read a judicial opinion.’”65 How to interpret World War, is illuminated with an understanding of the re- 82 the text, whether legal or literary, is subject to various schools lationship between Ireland and Great Britain at that time. of thought.66 Rather than delve into the intricacies of origi- Understanding any written material cannot be done without nalism, textualism, and other methods, this article will focus at least some context. “‘A lawyer without history or literature on a more general take on interpreting written materials. For is a mechanic, a mere working mason; if he possesses some example, regarding judicial opinions, Professor White says: knowledge of these, he may venture to call himself as an ar- 83 “[w]e start by comparing what the judge does and what the chitect.’” Judge Learned Hand said: poet does, and ask: is the judge really a poet, his opinion re- ally a poem?”67 I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, Both law and poetry must be read closely to fully compre- to have at least a bowing acquaintance with Acton and hend the material.68 The meaning of a poem arises out of a Maitland, with Thucydides, Gibbon and Carlyle, with mix of the elements of the poem: images, rhythms, rhyme, Homer, Dante, Shakespeare and Milton, with Ma- and the poet’s diction.69 All parts must be considered: the chiavelli, Montaigne and Rabelais, with Plato, Bacon, title, first lines, the body of the poem, and how they all work Hume and Kant, as with books that have been specifi- together to create a meaning.70 Sometimes, the meaning of a cally written about the subject.84 poem arises out of the movement of the poem from the gen- eral to the specific, or the specific to the general, or back and The primary canon of statutory construction is that if plain 71 forth. Carl Sandburg wrote: “[p]oetry is a projection across meaning can be determined solely from the text of a statute, silences of cadences arranged to breach that silence with defi- the judge should go no further. First, however, that canon is 72 nite intentions of echoes, syllables, wave lengths.” Again, contradicted by several competing canons. Further, a judge regarding judicial opinions specifically, Professor White also does not read a statute in a vacuum; he or she reads a statute suggests “the movement of the [judicial] opinion, like that of within the universe of his or her training, and understanding a poem, ought to be one of education: expressing a change of the meaning of the words and style of the statute.85 Vague- from one attitude, one way of seeing things, to another, by ex- ness and ambiguity can be reduced by context.86 pansion of understanding.”73 The movement can be between the unique and the universal. Both poems and judicial opin- There is also a larger context to consider in reading and 74 interpreting law and poetry. Professor Bloom contends any ions “unite the unique with the universal.” Professor White 87 notes: “poets merge the universal in the particular, the pre- poem is “about,” or even a “response” to another poem. cept in the example, just as good common-law judges do ...”75 Wallace Stevens, a lawyer/businessman and a noted poet, in The Man with a Blue Guitar wrote: “Poetry is the subject of Much like writing, there are accepted rules for interpreta- the poem/From this the poem issues and/To this return...”88 tion of text. The legislature itself sets certain rules for inter- The meaning of a poem, much like the meaning of statutes 76 preting statutes. Garner and Justice Scalia have categorized or judicial opinions, requires examining how it is like or dis- the canons of interpreting legal texts, but they note: “[n]o
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similar to other poems.89 Judicial opinions are also about how mous fight between the gingham dog and the calico cat” to other judicial opinions, or statutes and regulations, affect the make a point in a case about whether a share of stock in a bank case at hand, and may even be direct responses to other ju- is tangible or intangible for tax purposes.108 He analogized the dicial opinions, particularly with dissents and concurrences. poem,109 which resulted in the two pets fighting each other Professor Bloom also offers: “a poem necessarily is always an so fiercely that nothing remained of both at the end, with interpretation of that poem’s interpretation of other poems.”90 competing legal and taxation theories that “might eat each Much the same, obviously, with legal writing. other up” resulting in “no money to run the government...”110 “[T]here’s no such thing as a wholly original work of lit- Not surprisingly, another quoted poet in the Kansas Reports erature.”91 Just as one judicial opinion springs from other ju- is our favorite son Eugene Ware, aka Ironquill, quoted by Jus- dicial opinions and other legal texts, “poems [grow] out of tice John Dawson to buttress the point that courts should 92 let the legislature legislate: “‘We -- don’t make – law. We are other poems.” Poems and judicial opinions are alike in that 111 they both, within their respective spheres, form a body that bound / To interpret it as found.’” continues to grow with each new poem or opinion.93 “Every Much farther back, the Kansas Supreme Court had occa- poet is a being caught up in a dialectical relationship . . . with sion to quote a rhyme from Mother Goose: 94 other poets.” Similarly, each judge, and attorney, through See-saw, Margery Daw their writing and practice, are way stations between those Sold her bed and lay upon straw; that came before, and those to come after. Was not she a dirty slut, 112 Poetry in Law To sell her bed and lie in the dirt? This is not necessarily the version I read to my daughters It has been said that: “[p]oetical reports of law cases are not when they were children, but was part of the original Mother very common, yet it appears to me desirable that they should Goose rhymes. The Kansas Supreme Court used the poem to 95 The case of In re Rome96 provides some cautionary be so.” address whether the assertion a woman was a “dirty slut” was guidance on going too far with the judicial opinion and poet- actionable as slander.113 Although the court principally relied ry connection. A magistrate judge had presided over a crimi- on the Century Dictionary definition of slut as being careless, nal case regarding prostitution.97 After sentencing, the judge lazy or unclean, which was accompanied by several literary filed a memorandum decision, in verse, regarding the “saga examples, Justice Burch used Mother Goose to further make of” the defendant, whose name was left out by the Kansas the point that being called a slut did not necessarily imply Supreme Court in its opinion.98 The memorandum decision’s promiscuity.114 last of six verses ended: “If from all this a moral doth unfurl / It is that Pimps do not protect the working girl!”99 Perhaps, Other examples of Kansas Supreme Court opinions citing then, it is better to use poetry sparingly? poetry include: Whitmore v. Jewell115 and American General Financial Services, Inc. v. Carter.116 In the former, Justice Per- Justice Cardozo, writing in the 1920s, commented that “[i]n ry Owsley quoted a poem, included in a Colorado Supreme days not far remote, judges were not unwilling to embellish Court opinion,117 to further illustrate that stare decisis should their deliverances with quotations from the poets.”100 That not be considered a “frozen compass of the ancient past.. .”118 practice continues. “[T]he use of poetry in judicial opinions The poem began with noting a meandering trail started by a illustrates how judges, too, utilize the full range of human wandering calf, later followed by a series of succeeding ani- emotion and understanding to communicate the points of mals, and men, resulting in it becoming a “village street,” law.”101 For example, Justice Harry Blackmun’s opinion in then a city “thoroughfare,” which remained an unchanged Flood v. Kuhn, regarding free agency in baseball, cited famous path of travel centuries later.119 The latter opinion reached baseball poetry such as “Casey at the Bat” and “Tinkers to back to the Greek poet Hesiod and his epic poem on the Evers to Chance.”102 Judge Posner offers an example of the origin of the gods, Theogony, quoting: “‘right timing is in all different uses of the same poem by Justices Stephen Breyer things the most important factor.’”120 The issue of the case, and Scalia from Frost’s poem Mending Wall.103 The case was appropriately, being priority of liens.121 Kansas judges still oc- Plaut v. Spendthrift Farm, Inc.104 Scalia simply quoted Frost’s casionally quote poetry in appellate decisions, most recently, famous line from this poem: “Good fences make good neigh- perhaps, in Justice Stegall’s concurrence in State v. Riffe.122 bors.”105 That line is often taken out of context, when the user Therein, Justice Stegall noted the Kansas Supreme Court had fails to also read Frost’s following lines from the poem: “‘[w]hy not “expressly” recognized its constitutional interpretation do they make good neighbors? / Before I built a wall I’d ask model as “originalism” although it had “repeatedly and regu- to know / What I was walling in or walling out, . . . “ Breyer, larly affirmed originalist principles;” those being that the law in his dissent, points out the larger context of the quote.106 does not change but remains “‘an ever-fixed mark.’”123 Kansas Supreme Court Justice Rousseau Burch was partial to Shakespeare and Robert Browning107 and he used the “fa-
24 The Journal of the Kansas Bar Association poetry and the law
Law in Poetry You Are Old, Father William Poetry, being an examination of the entire human experi- Although the examples of law in poetry above are more ence, must include law as a subject. The earliest English lan- or less serious in nature, law does figure in some humorous guage reference to lawyers may be in a poem about a four- verse. For example, this Lewis Carroll poem has this verse teenth century practitioner in the Canterbury Tales.124 This following the impertinent question of the youth as to how work tells the story of pilgrims, traveling to and from Canter- William, at his age, was able to “finish[] the goose, with the bury, charged with telling stories to pass the time.125 The law- bones and beak” and William replied: yer of the group tells a story “of justice at work in this world,” “In my youth,” said his father, “I took to the law, regarding the maiden Constance and her travails.126 This part And argued each case with my wife; of the article will provide some examples of poems which in- And the muscular strength which it gave to my jaw, volve legal themes. These examples are far from exhaustive, Has lasted the rest of my life.”132 and more examples can be found in the poetry anthologies listed at the end of this article. An Ill-read Lawyer The Lawyers Know Too Much127 And, then there is this short poem by John G. Saxe, a prac- Karl Llewellyn included the full text of this poem in his ticing attorney in the nineteenth century, included here in its book on legal education, Bramble Bush: entirety: The lawyers, Bob, know too much An idle attorney beseeching a brother They are chums of the books of old John Marshall, For “something to read—some novel or other, . . . . That was really fresh and new.” The lawyers, tell me why a hearse horse snickers hauling “Take Chitty! replied his legal friend a lawyer’s bones.128 “There isn’t a book that I could lend Would prove more ‘novel’ to you!”133 Song of the Law Llewellyn himself wrote at least one poem, Chitty, of course, was a well-known author of legal trea- Review : tises, at the time this poem was written. Oh, I was a bright law student, My grades were good and high. They said I’d make the Law Review, Nemo Repente Turpissimus And now I’d like to die ...129 Saxe also wrote another humorous short poem. BOB SAWYER to a man of law Poor Richard’s Opinion Repeating once the Roman saw Benjamin Franklin, writing as Poor Richard in his Alma- “Nemo repente” and the rest, nack, wrote of lawyers: Was answered thus, “Well, I protest, However classic your quotation, I know you lawyers can with ease I do not see the application.” Twist words and meanings as you please; “‘Tis plain enough,” responded Sawyer: That language, by your skill made pliant, “It takes three years to make a lawyer!”134 Will bend, to favor every client; ...130 The Latin title phrase, abbreviated in the poem, translates: “no one ever becomes extremely wicked suddenly.”135 Law Like Love This W. H. Auden poem, not titled but generally known as Law Like Love, looks at law from various viewpoints, includ- Ballad of Reading Gaol ing that of the judge: On a more serious note, there is Oscar Wilde’s work from Law, says the judge as he looks down his nose his time in jail: Speaking clearly and most severely, I know not whether Laws be right, Law is as I told you before, Or whether Laws be wrong; Law is as you know I suppose All that we know who lie in gaol Law is but let me explain it once more Is that the wall is strong; Law is the Law...131 And that each day is like a year, A year whose days are long.136
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There is also poetry that does not expressly involve law, lawyer-poet would be Albert Pike, a Confederate general who but may provide a parallel between the two genres. For ex- was an Arkansas lawyer and poet.152 He is the only Confed- ample, in learning of the necessity defense in first year crimi- erate military figure with an outdoor statue in his honor in nal law, it is likely the case of R. v. Dudley and Stephens was Washington, D.C., although a bill has been introduced in the brought up.137 The facts of that case are that in 1884 a ship House of Representatives to remove the statue. The website sank and the crew ended up in a lifeboat.138 After exhaust- http://lawlit.net/lp-2001/intro/ provides a fairly comprehen- ing their meager rations, the shipmates decided they would sive index of lawyer-poets, including Kansas lawyer-poets, need to sacrifice one member to provide food for the rest.139 with options to look at the list from an alphabetical and state After rescue, Dudley and Stephens admitted they had killed listing. Perhaps bridging the gap between the rest of the na- one of the crew for food, believing they were protected from tion and Kansas, Edgar Lee Masters, the author of the Spoon prosecution by custom of the sea.140 They were not, eventually River Anthology, was born in Garnett, Kansas, and later prac- were convicted, sentenced to death with a recommendation ticed as an attorney in Chicago, Illinois.153 141 of mercy, and the sentence was then reduced to six months. Brian Moline and Professor Michael Hoeflich published To illustrate the custom as understood by the surviving crew an article on Kansas lawyer-poets.154 Most of the article is members, one can look to W.S. Gilbert, of Gilbert and Sul- focused on the previously mentioned Kansas lawyer-poet, livan fame, for his poem The Yarn of the Nancy Bell, published Eugene Ware.155 Ware was himself a regular practitioner in almost two decades before the events above. A shipwrecked the Kansas Supreme Court, and he wrote a poem for a news- survivor is found, and he says: paper reducing the Kansas Supreme Court decision in State “Oh, I am a cook and a captain bold, v. Lewis156 to verse. The Reporter in Kansas later included And the mate of the Nancy brig, the poem as an addendum to the decision in the Kansas Re- And a bo’sun tight, and a midshipmite, ports.157 That poem, and another titled: An Agreed Statement And the crew of the captain’s gig.”142 of Facts [As to the Admission of Mr. Hic Jones to the Paint Creek Bar, Kansas], were included in The Lawyer’s Alcove, a collec- Initially skeptical of how a single person could fill so many 158 roles, the rescuer learns how after the ship sank, the survivors, tion of law-related poetry from the early twentieth century. Paint Creek, Kansas, was not a real jurisdiction, but instead a one by one, ate nine of the ten surviving shipmates (the men- 159 tioned crewmembers), leaving the one to be rescued. location made up by the author. Brian Moline and Professor Hoeflich note a handful of less- The Lawyer as Poet er-known Kansas lawyer-poets in their article, but recognized 160 Justice Oliver Wendell Holmes, as noted earlier, remarked: their list was incomplete. Other Kansas lawyer-poets they “the law is not the place for the artist or poet.”143 But there omitted include Senator John James Ingalls, who was known are many lawyers who were poets, sometimes of some renown more for his political career than his legal practice. The Sena- 161 and many poets who while perhaps not practicing attorneys, tor’s poetical career started in his college days. Judge Spen- nonetheless either were trained in the law, or somehow oth- cer Gard, besides being an author of the noted work on civil 162 erwise associated with legal practice.144 Judge Posner com- procedure, can claim some fame for poetry, having pub- 163 ments that while there are many lawyers who then become lished a poem in the ABA Journal. Justice John Fontron writers, there do not appear to be any writers that then be- apparently also had a poetical bent: upon Earl Hatcher’s re- come lawyers.145 It may be beyond peradventure that Wallace tirement as a Commissioner of the Kansas Supreme Court, Stevens was the pre-eminent attorney-poet, and one of the Justice Fontron penned an eight stanza work for the occa- 164 premier American poets of all time.146 There is some disagree- sion. Professor David Ryan of Washburn Law School pub- 165 ment, even by Stevens himself, whether he was a practicing lished a poem as a tribute to Professor Ray Spring. Judge attorney or simply a business executive.147 Stevens admitted, Deanell Reece Tacha once presented a lecture as poetry at a 166 however, that ‘“[o]ne is not a lawyer one minute and a poet law review banquet. 148 the next...’” Nonetheless, the considered view is that Ste- Other Benefits for Lawyers Reading and Writing Poetry vens’ prolific output of poetry was not really law related.149 In a survey between 1982 and 1989, a legal database search of Reading poetry can illuminate ethical issues by addressing opinions indicated Stevens and poet W.H. Auden were tied basic moral concerns that inform ethical issues in the prac- for the most citations in law reviews, “slightly ahead” of poets tice of law. One of the core ethical problems for attorneys is T.S. Eliot and Robert Frost.150 the tension between zealously representing a client167 and the duties towards the tribunal,168 the opposing counsel and par- There are too many lawyer-poets to recognize in this ar- 169 170 ticle, but a few bear mention. The previously mentioned W.S. ties, and persons not represented by counsel. Professor Charles Ogletree placed this tension in the criminal defense Gilbert, seeing less success in the law, turned his attention to 171 the more creative arts and we are better off for it.151 Another context and contends the lawyer cannot be a friend to the
26 The Journal of the Kansas Bar Association poetry and the law
client; instead he or she must be “more like a mercenary, using Conclusion . . . specialized skill and training to battle [the] client’s op- ponents and achieve [the] client’s objectives.”172 When I read Poetry and the law have much to share with, and contribute this, I immediately thought of Yeats in his line from An Irish to, each other. Reading and writing poetry can help a lawyer Airman Foresees His Death: “those that I fight I do not hate/ improve reading and writing skills, offer insight, or simply Those that I guard I do not love.”173 provide a break. Kansas has a great tradition of lawyer-poets, from its inception in the 1800s to the present day. I take my Burnout, of course, is a concern for the practitioner. reader’s leave with Judge Marten’s, perhaps, probably, possi- Chauncy M. Depew said “[l]aw is a jealous mistress, and yet 174 bly, rhetorical question: “How many of you read poetry? Or great lawyers have found rest and recreation in literature.” better yet, write it?”185 Judge Posner also said: “[m]ight not the reading of poetry be a relief from practicing or writing about law rather than a Further Reading source of professional guidance?”175 Yeats, perhaps, offers his non-legal perspective: “The intellect of the man is forced to These additional books of poetry anthologies are worth choose / Perfection of the life, or of the work...”176 I would reading for those interested: disagree with Yeats, and argue that there is a balance to be Anthology of Nineteenth Century American Legal Poetry, ed. struck between the perfection of life and work. Michael H. Hoeflich (2018) In writing “The Fascination of What’s Difficult,” Yeats was Justice and the Law: An Anthology of Legal Poetry and Verse, bemoaning the impact of managing a playhouse: “The fasci- ed. Percival Jackson (1960) nation of what’s difficult / Has dried the sap out of my veins, Lawyer Poets and That World We Call Law, ed. James R. and rent / Spontaneous joy and natural content / Out of my Elkin (2013) heart...” He goes on: “My curse on plays / That have to be set up in fifty ways, / On the day’s war with every knave and Lawyer’s Alcove, ed. Ima Russelle Warren (1900) dolt, / Theatre business, management of men.”177 He ends by Poetry of the Law: From Chaucer to Present, ed. David Kader throwing up his hands and exclaiming: “I swear before the and Michael Stanford (2010) dawn comes around again/I’ll find the stable and pull out the About the Author bolt.”178 This references his earlier metaphor in the poem of his heart, as a colt, that has to “[s]hiver under the lash, strain, Robert W. Parnacott retired and received 179 the Kansas Bar Association Distinguished sweat and jolt/As though it dragged road-metal.” Government Service award in 2016 after serving The well-being of persons in our profession is a key con- 16 years in the Office of the County Counselor cern. Poetry can perhaps help with burnout, and keep practi- for Sedgwick County, Kansas. He graduated in 1991 from Washburn School of Law with Dean’s tioners from having to choose between perfection of life over Honors. This is his tenth article published in the the work, or of having to: “throw[] poor words away/And be[] Journal of the Kansas Bar Association, including a content to live.”180 Judge Posner, citing a different Yeats poem, two-part article on summary judgment. notes that those doing public interest law, whether legal aid or indigent defense, given the subject matter of the practice and [email protected] the workload, may find, as Yeats writes, “Too long a sacrifice/ 181 1. Ali Khan, Professor Prufrock, 35 J. Legal Educ. 117 (1986). Can make a stone of the heart.” One thought would be to 2. Anonymous, A Treasury of Jewish Quotations (Joseph L. Baron ed.) keep a book of poetry at your desk, or on your legal tablet, or (1956), quoted in The Quotable Lawyer 163 (David Shrayer and Elizabeth even bookmarked on your computer. Take a break and read Frost eds.) (1986). some poetry before you get back to the grind. 3. James M. Haughey, The Arts and the Lawyer, 28 U. Kan. L. Rev. 589, 589 (1980) (“What relevance if any has art to the law?”). Lawyers, in a sense, are fortune-tellers, attempting to pre- 4. Robert F. Blomquist, The Poetry of Law, 45 Val. U. L. Rev. 107, 107 dict the future.182 If a client does this, or does not do that, and (2010). the client ends up in the legal system, what is the likely result? 5. The Lawyer’s Alcove: Poems by the Lawyer, for the Lawyer and about the Professor Bloom, similarly opines: “[p]oetry is the crown of Lawyer v (Ina Russelle Warren ed.) (1900). imaginative literature, in my judgment, because it is a pro- 6. Lawyer Poets and That World We Call Law 11 (James R. Elkins ed.) 183 (2013). phetic mode...” In Inferno, the Italian poet Dante crafted 7. Justice and the Law: An Anthology of Legal Poetry and Verse xxi (Percival a sentencing scheme for various crimes, e.g. sins, committed Jackson ed.) (1960). by those incarcerated in that sulfurous realm, Hell. In par- 8. Edward J. Eberle and Bernhard Grossfield, Law and Poetry, 11 Roger ticular, for fortune-tellers, the punishment assigned was to Williams U. L. Review 353, 353 (2006). 9. Id. at 361 (quoting Jacob Grimm, Von der Posie im Recht, 2 Zeitschrift have their heads turned one hundred-eighty degrees, so that Für Geschichtliche Rechtswissenschaft 25 (1916)). as they walked, all they could see was what was behind them, 10. Id. at 363. i.e., the past, not the future. Perhaps that is why “a hearse- 11. Michael Frost, Brief Rhetoric—A Note on Classical and Modern horse snickers, hauling a lawyer’s bones.”184 Themes of Forensic Discourse, 38 U. Kan. L. Rev. 411, 427 (1990).
www.ksbar.org | April 2020 27 12. Thomas C. Grey, The Wallace Stevens Case 39 (1991). 58. Ginsberg, supra n. 48, at 154. 13. Richard Posner, Law and Literature: A Misunderstood Relation 194 59. Id. at 160. (3d. ed. 2009) [hereinafter Posner]. 60. Id. at 161. 14. Bryan Garner, The Elements of Legal Style 147 (1991) (quoting Lord 61. Packard, supra n. 34, at 123. Birkett, Six Great Advocates, 108 (1961)) [hereinafter Elements]. 62. Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of 15. Karl Llewellyn, Bramble Bush 153 (9th prtg. 1991). Persuading Judges 80-81 (2008). 16. Harold Bloom, How to Read and Why 21 (2000). 63. Id. at 81. 17. T.S. Eliot, The Love Song of Alfred J. Prufrock, reprinted in John 64. Posner, supra n. 13, at 485. Ciardi, How Does a Poem Mean 757 (1959) [hereinafter Ciardi]. 65. White, supra n. 53, at 1670. 18. Elements, supra note 14, at 3 (“Law is a literary profession.”). 66. W. Probert, Interpretation: Its Relevance in Courts, Criticism and 19. Karl Beckson and Arthur Ganz, Literary Terms: A Dictionary, 146 Jurisprudence, 25 Washburn L.J. 1 (1985) (hereinafter Interpretation). (3d ed. 10th prtg. 1999). 67. The Legal Imagination, supra n. 23, at 211. 20. Sandra Craig McKenzie, Storytelling: A Different Voice for Legal 68. Cf. How to Read and Why, supra n. 16, at 71 (“[A] first principle Education, 41 U. Kan. L. Rev. 251 (1992). for how to read poems: closely . . . .”); Professor Orin Kerr also said, in his 21. 13 The Scribes Journal of Legal Writing 10, 133 (2010). advice to law students, “You have to read [judicial opinions] carefully...” 22. Felix Frankfurter, Some Reflections on the Reading of Statutes, reprint- How to Read an Opinion: A Guide for New Law Students, 11 Green Bag 2d ed in Essays on Jurisprudence from the Columbia Law Review 53 (1964). 51, 61 (2007). 23. James Boyd White, The Legal Imagination 211 (abridged ed. 1985). 69. Ciardi, supra note 17, at 663. 24. Laurie A. Lewis, Winning the Game of the Appellate Musical Shoes 70. Packard, supra n. 34, at 104. When the Appeals Band Plays, Jump from the Client’s to the Judge’s Shoes to 71. White, supra n. 53, at 1681. Write the Statement of Facts Ballad, 46 Wake Forest L. Rev. 983, 986 n.14 72. Carl Sandburg, Complete Poems 317 (1950). (2011). 73. The Legal Imagination, supra n. 23, at 238. 25. William L. Prosser, English as She is Wrote, 7 J. Legal. Educ. 155, 74. Grey, supra n. 12, at 39. 156 (1954). 75. The Legal Imagination, supra n. 23, at 761-62. 26. Henry Weihofen, Legal Writing Style 9 (1961). 76. K.S.A. 2018 Supp. 77-201. 27. Benjamin Cardozo, Law and Literature, reprinted in Essays on Ju- 77. Bryan A. Garner and Antonin Scalia, Reading Law: The Interpreta- risprudence from the Columbia Law Review 313, 313 (1964)[hereinafter tion of Legal Texts, 59 (2012). (Canon #3: Principle of Interrelated Can- Cardozo]. ons). 28. See, e.g., James Boyd White, Law and Literature: A Misunderstood 78. See, e.g., Posner, supra n. 13, at 29 (noting Aristotle’s observation Relation, 102 Harv. L. Rev. 2014, 2015 n. 3 (1989) (book review). that history, which to some extent is what law is, focuses on “what actually 29. Posner, at 6. happened” versus poetry, which more often looks to “probabilities”). 30. White, 102 Harv. L. Rev. at 2014. 79. Interpretation, supra n. 66, at 16. 31. Posner, 6 (noting the “negative and even defensive character” of the 80. “‘We do not inquire what the legislature meant, we only ask what first edition was gone by the second edition). that statute means.’” Id. at 29 (quoting Oliver Wendell Holmes, Jr.). 32. Alexander J. Roberts, Constructing a Canon of Law and Poetry, 90 81. Ars Poetica, in The Oxford Dictionary of Modern Quotations 143 Tex. L. Rev. 1507, 1507 (2012) (book review: Poetry of the Law: From (1991). MacLeish graduated from Harvard Law School in 1919. Ar- Chaucer to Present (David Kader and Michael Stanford eds.) (2010)). chibald MacLeish, Apologia, 85 Harv. L. Rev. 1505 (1972). 33. Cardozo, supra n. 27. 82. See also Posner, supra n. 13, at 295-99 (discussing capital punish- 34. William Packard, The Art of Writing Poetry 60 (1992) (noting that ment and Yeats poem of the Irish Rebellion Easter 1916). three major categories of poetry are narrative, dramatic and lyrical works). 83. Elements, supra n. 14, at 211. 35. 13 The Scribes Journal of Legal Writing 10, 82 (2010). 84. Learned Hand, Sources of Tolerance, 79 U. Pa. L. Rev. 1, 12 (1930). 36. J. Thomas Marten, A Few Questions and Thoughts on Writing, 50 85. See, e.g. Karl N. Llewellyn, The Common Law Tradition: Deciding Washburn L.J. vii, vii (2011). Appeals, Appendix C, Canons on Statutes 524 (1960) (the rule that the 37. Elements, supra note 14, at 5. plain language of the statute controls is overridden when it would lead to 38. Samuel Taylor Coleridge, Bartlett’s Familiar Quotations 404 (17th absurd results). ed. 2002). 86. Reading Law, supra n. 77, at 33. 39. Marten, supra n. 36, at vii. 87. Harold Bloom, A Map of Misreading 18 (1975). 40. McKenzie, supra n. 20, at 267-68. 88. Wallace Stevens, The Collected Poems of Wallace Stevens 176 (1982). 41. Miller Williams, Patterns of Poetry 93 (1986). 89. Map of Misreading, supra n. 87 ,at 75. 42. Id. 90. Id. 43. Bryan A. Garner, Legal Writing in Plain English 37 (2001). 91. Thomas C. Foster, How to Read Literature Like a Professor 29 (2003). 44. Ciardi, supra n. 17, at 785, 788. 92. Id. at 33. 45. Legal Writing in Plain English, supra n. 43, at 24. 93. Harold Bloom, The Anxiety of Influence19 (1973) (“[Percy Bysshe] 46. 13 Scribes Journal of Legal Writing 62. Shelley speculated that poets of all ages contributed to one Great Poem 47. Weihofen, supra n. 26, at 11. perpetually in progress.”). 48. Allen Ginsberg, Meditation and Poetics, in Spiritual Quests: The Art 94. Id. at 91. and Craft of Religious Writing, 145, 154 (William Zinnser ed., 1988). 95. 2000 Famous Legal Quotations 498-99 (Frances McNamara ed.) 49. Ciardi, supra n. 17, at 793. (1967). 50. Id. at 672; Bryan A. Garner, The Winning Brief: 100 Tips for Persua- 96. 218 Kan. 198, 542 P.2d 676 (1975). sive Briefing in Trial and Appellate Courts 333 (3d ed., 1999). 97. Id. at 199. 51. Legal Writing in Plain English, supra n. 43, at 17. 98. Id. at 200. 52. Id. at 34, 43. 99. Id. at 201. 53. James Boyd White, The Judicial Opinion and the Poem, Ways of 100. Cardozo, supra n. 27, at 325. Reading, Ways of Life, 82 Mich. L. Rev. 1669, 1676 (1984). 101. Eberle and Grossfield, supra n. 8, at 386. 54. Irving R. Kaufman, Appellate Advocacy in the Federal Courts, 79 102. 407 U.S. 258, 32 L. Ed 2d 728, 733, 92 S. Ct. 2099 (1972). F.R.D. 165, 169 (1979). 103. Posner, supra n. 13, at 5. See also Robert Frost, Poetry of Robert 55. United States v. Barker, 15 U.S. (2 Wheat) 395, 395 (1817). Frost, 33 (1969). 56. Bartlett’s Familiar Quotations, supra n. 38, at 651. 104. 514 U.S. 211, 131 L. Ed 2d 328, 115 S. Ct. 1447 (1995). 57. Reprinted in Ciardi, supra n. 17, at 994. 105. Poetry of Robert Frost, supra n. 103, at 33. 106. 131 L. Ed. 2d at 328. Robert Frost, T.S. Eliot, and Hart Crane). 107. Jalen O-Neil and Curtis J. Waugh, Note, Style and Substance: 147. Grey, supra n. 12, at 12. Posner, supra n. 13, at 191, singles out Kansas Supreme Court Justice Rousseau Angelus Burch, 26 Washburn L.J. Stevens for extended discussion, although mostly through commentary 297, 318 (1987). on Grey’s work. 108. Id.. at 334 (citing Stevens v. Metsker, 130 Kan. 251, 253 (1930), 148. Id. at 39. and drawing a rebuke from Justice Harvey in dissent: “ for I have a firm 149. Id. at 2 (quoting Law and Literature, supra n. 13, at 179). conviction that such acrobatic intellectual feats have no place in a judicial 150. Id. at 115, n.3. opinion,”130 Kan. at 263). 151. Robert E. Rains, Of Cantos and Clerihews, 13 Green Bag 2d 453, 109. The Duel, by Eugene Field. 457 (reviewing Poetry of the Law, supra n. 30). 110. 130 Kan. at 253. 152. https://en.wikipedia.org/wiki/Albert_Pike. 111. Jones v. State Board of Medical Registration, 111 Kan. 813, 818 153. The Penguin Anthology of 20th Century American Poetry 1 (Rita (1922) (Dawson, dissenting). The Ware poem is discussed in the text ac- Dove, ed.) (2011). companying endnote 141. 154. Brian Moline and Michael H. Hoeflich,Some Kansas Lawyer- 112. Cooper v. Seaverns, 81 Kan. 267, 269 (1909). Poets, 55 U. Kan. L. Rev. 971 (2007). 113. Id. at 268. 155. Some consider him the “unofficial poet laureate of Kansas.” James 114. Id., Syl. ¶ 1. C. Malin, Ironquill—Paint Creek Essays 7 (1971). 115. 223 Kan. 67, 69-70, 573 P.2d 573, 575 (1977) (Justice Owsley, 156. 19 Kan. 260 (1877). As for the unofficial poet laureate of lawyers dissenting). in general, it could be John Godfrey Saxe. The Lawyer’s Alcove, supra n. 5, 116. 39 Kan. App. 2d 683, 688, 184 P.3d 273 (2008). at 268. 117. Van Kleeck v. Ramer, 62 Colo. 4, 44-46, 156 P. 1108 (1916). 157. The Lawyer’s Alcove, supra n. 5, at 266. 118. 223 Kan. at 69. 158. Eugene F. Ware, The Rhymes of Ironquill (1939). 119. Id. at 70. 159. Malin, Ironquill—The Paint Creek Essays, supra n. 155, at 8. 120. 39 Kan. App. 2d at 688. 160. Some Kansas Lawyer-Poets, supra n. 154, at 978 (discussing, e.g. 121. Id. at 684. Solomon Levy Long, who “was as strange as they come”). 122. 308 Kan. 103, 113, 418 P.3d 1278 (2018). 161. Burton J. Williams, Senator John James Ingalls, Kansas’ Iridescent 123. Id., quoting William Shakespeare, Sonnet 116. Republican 67 (1972). A contemporary also wrote about Ingalls life, in- 124. The Lawyer’s Alcove, supra n.5, at 267; Geoffrey Chaucer,The Can- cluding his literary work. William E. Connelly, Ingalls of Kansas (1909). terbury Tales, The Man of Law’s Tale 122 (Penguin Classics ed. 1977). 162. Kansas Law and Practice: Vol. 4, Kansas Code of Civil Procedure 125. Id., at xvi. Annotated (5th ed.2012). 126. Donald R. Howard, Chaucer: His Life His Works His World 419 163. Spencer Gard, On the Office Wall, 60 American Bar Association (1987). 988 (1974). 127. Reprinted in Llewellyn, The Bramble Bush, supra n. 15, at 170. 164. The poem, in part, is quoted in James M. Concannon, “The Ideal 128. Sandburg, Complete Poems, supra n. 70, at 189. Place . . . for the Establishment of a Great Law School: History of Washburn 129. Karl N. Llewellyn & William L. Prosser, The Song of the Law Re- Law School, 1903-2003, 216 (2012). The full text of the poem is reprinted view, in The Judicial Humorist: A Collection of Judicial Opinions and Other at 11 Washburn L.J. iv, viii-ix (1971). Frivolities, 42 (William L. Prosser, ed. 1952). 165. 40 Washburn L.J. xiv, xiv (2001). 130. Reprinted in Law: A Treasury of Art and Literature, 151 (Sara Rob- 166. Deanell Reece Tacha, Lecture: Oh the Faces You’ll See, 49 Kan. L. bins, ed. 1990). Rev. 1149 (2001). 131. W.H. Auden, Selected Poems 89-90 (1st Vintage Ed. 1989). 167. Preamble, Rule 226, Kansas Rules of Professional Conduct 2 132. Ciardi, supra n.17, at 680. (hereinafter KRPC) (“As advocate, a lawyer zealously asserts the client’s 133. The Lawyer’s Alcove, supra n. 5, at 249. position under the rules of the adversary system.”) (emphasis added). 134. Reprinted in Michael H. Hoeflich,Anthology of Nineteenth Century 168. KRPC 3.3. American Legal Poetry, 233 (2018). 169. KRPC 3.4. 135. Eugene Ehrlich, Amo, Amas, Amat and More: How to Use Latin to 170. KRPC 3.4.3. Your Own Advantage and to the Astonishment of Others 193 (1985) (using 171. C.J. Ogletree, Jr., Beyond Justifications: Seeking Motivations to Sus- the alternative formation from Juvenal, Satires: nemo repente fuit turpis- tain Public Defenders, 106 Harv. L. Rev. 1239 (1993). simus). 172. Id. at 1253. 136. The Portable Oscar Wilde 606 (Richard Aldington ed.) (1966). 173. W.B. Yeats, The Collected Poems of W.B. Yeats 133 (1967). 137. https://en.wikipedia.org/wiki/R_v_Dudley_and_Stephens. 14 174. The Lawyer’s Alcove, supra n. 5, at vi. QBD 273 DC (1884). 175. Posner, supra n. 13, at 194. 138. Neil Hanson, The Custom of the Sea, 91-92 (1999). 176. The Collected Poems of W.B. Yeats, supra n. 152, at 242. 139. Id. at 117. 177. Id. at 91. 140. Id. at 148-49. 178. Id. at 92. 141. Id. at 280, 286. Cf. Lon Fuller, The Case of the Speluncean Explor- 179. Id. ers, 62 Harvard L. Rev. 616 (1949). 180. Id. 142. Reprinted in Ciardi, supra n. 17, at 702-03. 181. Posner, supra n. 13, at 483 (quoting Yeats, Easter 1916). 143. The full quote is “Of course, the law is not the place for the artist 182. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: or the poet. The law is the calling of thinkers.” Oliver Wendell Holmes, Structure, Strategy and Style, 52 (3d ed., 1998). See also John H. Crabb, The Profession of the Law, Speeches 22 (1913) reprinted in The Common Law The Law the Lawyer Predicts, 7 Kan. L. Rev. 457, 457 (1959). & Other Writings, Collected Legal Papers, The Profession of the Law 29, 30 183. How to Read and Why, supra n. 16, at 69 (“Poetry is the crown of (The Legal Classics Library 1982). For a listing of various poets who were imaginative literature, in my judgment, because it is a prophetic mode . trained in the law, or somehow associated with the practice of law, see . . .”). Walter R. Arnold, The Law and Poetry, 1 Notre Dame L. Rev. 77, 78-80 184. Sandburg, The Lawyers Know Too Much, supra n. 72, 189. (1926) (noting attorney-poet connections back to Roman times). 185. Marten, supra n. 36, at xii. 144. See, e.g., Eberle and Grossfield, supra n. 8, at 354 (noting various lawyer-poets). 145. Posner, supra n. 13, at 5. 146. Bloom, How to Read and Why, supra n. 16, at 138 (commenting that Stevens belonged in the pantheon of American poets that includes poetry and the law
Sestina and Compassion Fatigue
by Elizabeth Oliver
ttorneys are inundated with excruciating stories, and • anxiety, consequently, are impacted by secondary trauma stress. • agitation, This stress manifests itself differently, including com- Apassion fatigue or burnout. While the legal community has • irritability, developed ways to combat these manifestations, the reality is • self- doubt, that this problem does not have a “one size fits all” solution. • loss of confidence, One way the legal community can combat these manifesta- tions is to encourage lawyers to engage in therapeutic writing • apathy, to cope with secondary stress. But before any conversation • and avoidance of clients.3 occurs on coping with secondary stress trauma, compassion fatigue, and burnout these conditions must be defined. While compassion fatigue is typically self-evolved, burnout is not. Burnout is a combination of one’s personality traits Andrew P. Levin, M.D. conducted a study in 2003 to de- and their organizational culture.4 Since compassion fatigue is termine if attorneys dealing with victims of domestic violence self- evolved, it develops from one’s responses to the exposure experienced secondary trauma and burnout. Dr. Levin dis- to client’s injustices and other pains. Charles Figley stated covered that attorneys experienced more burnout and second- that it is the “cost of caring,” and professionals exposed to ary trauma than mental health care providers or social service clients’ stories of fear, pain, and suffering may begin to experi- workers.1 He identified that attorneys had higher levels of rec- ence the same feelings due to their empathy for their client.5 ollection of the trauma and experienced diminished pleasure in activities; they also developed “difficulties with sleeping, Compassion fatigue manifests in three ways: cognitive, irritability, and concentration.”2 emotional and physical.6 The symptoms of burnout include: Cognitive manifestations include: • depression, • difficulty concentrating, • confusion and memory loss, • hopelessness, • loss of sense and direction, • headaches,
30 The Journal of the Kansas Bar Association poetry and the law
• an inability to recognize cause and effect, Some say he wears black, but I know better as I wait for death • minimization of problems, consequences or conditions, But, I know better, I have faith. • and preoccupation with current stressors that cannot I know his company be externally changed or controlled.7 will bring me peace. Emotional manifestations include: If I could only feel his touch. • chronic fear and anxiety, I don’t know why he hides. • inexplicable guilt and shame, Death, why do you hide? • self- doubt, I know you’re there in the light, death. • withdrawal I see your white suit glistening as I wait for your company. • and isolation.8 Why can’t I touch you? Finally, physical manifestations of compassion fatigue in- Why won’t you share your peace clude: I yearn for peace. • musculoskeletal pains, I’ve watched from afar as you’ve brought peace to others with • immune system issues, your touch. • digestion and appetite issues, Why death? • shortness of breath, Why do you hide? • chest pain, I know there’s peace in your company. • trouble sleeping, • and headaches.9 While others run from your company, Since secondary trauma stress, burnout, and compassion I long for it, I long for peace fatigue are interrelated conditions, the symptoms may over- I know I will find it in your presence. I have faith. lap. One way to combat these conditions is to engage in thera- I long for you death. peutic writing. Why do you hide The definition of therapeutic writing is writing about a as I long for your touch. stressful event in order to process the event. There are many forms of poetry that one can write, but I believe firmly that If I didn’t know better, I would lose hope in ever feeling your the sestina and the villanelle are the most useful for attorneys. touch. I imagine your touch bringing waves and waves of peace. The sestina has been disvalued by some English scholars for its reliance on circular reasoning and repeating words. Despite Waves that engulf one in your company. being disvalued by some, this 12th century form provides a Why do you hide? way for lawyers to write poetry concerning legal matters that Why death? explores the emotional turmoil found in legal matters. I fear that I am losing faith. The sestina is composed of six elements. The Elements are Faith, I am losing faith as follows: death, do you dread my company? 1. Six stanzas of six lines each and three- line envoi or I’ve watched you touch congedo (Spanos 546). Others who were unworthy of your company, others undeserv- 2. The stanzas do not have to rhyme within itself (Spanos ing of your peace, 546). others who fear you, others who don’t see your white glistening 3. Six words are repeated according to their order in the suit. first stanza (Spanos 546). Some say he wears black, but I know better as I wait for death. 4. The ending words will repeat going downward (Druce Death, why do you hide? 295). 5. There are 39 lines in total, and there is no rhyming The repetition and the circular reasoning of the sestina creates (Druce 295). an emotional connection with the reader. The tension builds The best illustration of these elements and their usefulness using the words against the reader’s own frame of reference. for a lawyer is in analyzing a poem. Following is “Where are Its use of repeating six words throughout the work create you death?” a tension between the reader’s own concept of death and the
www.ksbar.org | April 2020 31 poetry and the law – sestina and compassion fatigue
proposed patient in the poem while the refrains at the begin- 1. Andrew P. Levin, M.D, Symposium: Syndromes, Framework and ning and end of the sestina do not resolve the tension; they Expert Testimony: What Jurists Need to Know: Pace Women’s Justice purposefully leave the reader pondering if their pre-conceived Center The Second Annual Domestic Violence Think Tank: Introducto- notion of death is wrong. ry Remarks: Vicarious Trauma in Attorneys, 24 Pace L. Rev. 249. (2003). 2. Id. at 249. In “Where are you death?,” I explore the frustration of an 3. Portnoy, Dennis, M.F.T. “Burnout, and Compassion Fatigue: Watch individual who may become the proposed patient in a Care for Signs.” Journal of the Catholic Health Association of the United States, and Treatment case. This area of law is hidden from sight as 2011, pp. 47–50., compassionfatigue.org/pages/healthprogress;pdf.; Lee Norton, Ph.D, M.S.W., Jennifer Johnson, Esq., & George Woods, they are typically closed cases. Only people who have been MD. Burnout and Compassion Fatigue: What Lawyers Need to Know, 84 involuntarily committed or have friends and family who have UMKC L. Rev. 987. (2016). been through the Care and Treatment process will under- 4. Lee Norton, Ph.D, M.S.W., Jennifer Johnson, Esq., & George stand the legal process. Despite modifying the sestina’s for- Woods, MD. Burnout and Compassion Fatigue: What Lawyers Need to mat, I maintain the six repeating words: death, faith, com- Know, 84 UMKC L. Rev. 987. (2016). 5. Charles R. Figley, Compassion, Compassion Fatigue as Secondary pany, peace, touch, and hides (hide). These words allow the Traumatic Stress Disorder: An Overview in Compassion Fatigue: Sec- reader a glimpse into what the mindset of a proposed patient ondary Traumatic Stress Disorder in Those who Treat the Traumatized 1 is and allows the reader to experience what a defense lawyer (Charles R. Figley ed. 1995). experiences in communicating with his client. 6. Lee Norton, Ph.D, M.S.W., Jennifer Johnson, Esq., & George Woods, MD. Burnout and Compassion Fatigue: What Lawyers Need to To write your own sestina, identify the six words you want Know, 84 UMKC L. Rev. 987. (2016). to repeat. Then follow the pattern diagram of 7. Id. at 989. 8. Id. A F C E D B AB or BA 9. Id. 10. Druce, Robert. “Information control and making: the pragmatics B A F C E D CD or DC of a sestina.” Word & Image, vol. 5, no. 3, 1989, pp. 295. C E D B A F EF or FE D B A F C E E D B A F C About the Author 10 F C E D B A Elizabeth L. Oliver is a dedicated public servant having worked as a public defender, staff attorney For legal subject matters in poetry, the sestina builds the at Kansas Legal Services, in private practice, and tension that exists in any case or fact pattern while allowing currently, as an Assistant County Attorney at the the poem to communicate on a deeper level with the reader Montgomery County Attorney’s Office. She teaches than mere circular reasoning. Legal subject matters never find as an adjunct instructor at Ottawa University. peace, but each matter does have a resolution. Therapeutic writing in the form of the sestina can help lawyers process the [email protected] stress of practicing law. n
Poetry and the Law: Member’ Poetry continued on Page 36
32 The Journal of the Kansas Bar Association Need clients? Need increased VISIBILITY?
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poetry and the law – members’ poetry
Ed. Note: We asked our member readers to submit poems they had written that they would like to share. Although not many chose to share, we certainly appreciate those who did. Enjoy their words and consider whether poetry—in any of its forms—might be a way for you to express yourself in this unsettling, unprecedented time in our lives. Sometimes, putting one’s fears, frustrations, gratitude or any other emotion down on paper (or on a screen) makes it easier to handle. Makes it tangiable, and therefore, manageable. Read these submissions...and think about it. pVs (Editor, The Journal of the KBA)
Heart Song I have a song in my heart, Whenever I think of you.
I soar like an eagle in the sky Upward into unending blue.
It’s just a matter of time Before you are here with me,
To be touched and loved anew. It has been so long, I can’t stand the wait!
How sweet it will be to have you here with me. I am anxious to hold you, and gaze into your eyes.
The time is fast coming, soon you will be here! I will gaze upon your face, and hold you so dear!
I have so much to tell you, Where shall I begin?
I will say I love you, Over and over again!
I must be patient; I must be strong Even if time us slow and the days are long!
Time is finally flying, The wait is almost done.
Such a journey we’ve been on, Now it’s time to see the sun!
As the time passes, will we remember these Days, or will it become just a distant haze?
I can feel your touch; the beating of your heart, I know you are with me and we will never part!
I have a song in my heart, Whenever I think of you. Robert L. Heath
36 The Journal of the Kansas Bar Association poetry and the law – members’ poetry
CINC to a four year old Gather your things, it is time to go. I scrambled to grab an outfit, a toy as arms reach out to pick me up. Wait, I need one more thing. My siblings are already in the social worker’s van. I scream to no avail. They didn’t let me get my buzz lightyear. “Your fine”, my brother says. Gather your things, it is time to go. I’ve been placed at Grandma Judy’s house with MJ. Ecstasy and Star are at Uncle Don and Aunt Lyndsey’s house. Wait, I need one more thing. And, I don’t even know where mom’s been placed. I haven’t seen mom in a long time. Gather your things, it is time to go. Grandma Judy took me to court. My lawyer came and talked to me. Wait, I need one more thing. She asked if I needed anything. “Yes, I need my buzz lightyear.” My lawyer stinks; she didn’t get me my buzz lightyear. Gather your things, it is time to go. She hasn’t gotten me home, and I only see my siblings once in a while. I haven’t seen mom since court. Wait, I need one more thing. She was in the ugliest orange outfit with the ugliest bracelet. And, the guards yelled at her when she tried to hug me. Gather your things, it is time to go. Today, the social worker came. She took MJ and me away from Grandma Judy. Wait, I need one more thing. “You’ll be placed with your dad.” The social worker said. “Who’s that?” I ask. “The man you meet with twice a week.” Gather your things, it is time to go. “You’ve been doing overnight visits for the last month” says the social worker. I can’t believe I’m stuck living with this guy. Wait, I need one more thing. Are they sure he’s my dad? I thought he was an uncle. And, I’ve told him about my buzz lightyear too, and I still don’t have my buzz lightyear. Gather your things, it is time to go. 12 months have come and gone since the social worker took us away in that van. Wait, I need one more thing. It’s been at least that long since I last saw mom at court. My lawyer called and told me that I am staying with my dad. Gather your things, it is time to go. At least, my siblings are happy and live with me and dad. But, I still haven’t got my buzz lightyear. Gather your things, it is time to go. Wait, I need one more thing. Elizabeth Lee Oliver
www.ksbar.org | April 2020 37 poetry and the law – members’ poetry
The Pursuit
You come to the river early, with the mist still resisting the rays of the sun.
You step gingerly along the bank, looking for the perfect Place to enter the the water’s edge.
A bed of smooth stones show the way; water rushes over your boots. You turn down stream, squinting at the sun.
You see a deep pool, covered in dappled shade. Just in front, a shelf funnels the current into the pool.
The water swirls, cascading downward; you move to the bend, And steady yourself against the water’s rush.
You search for a shadow in the hole; then you spot him, A beautiful fish, majestic and still, waiting patiently,
To see what the water might bring. Your mind races; You blow on your fingers numbed by the cold.
Suddenly you see a cloud of tiny glistening wings ascending from the water, pushing toward the sun…a May fly hatch!
You reach for your fly box, with fingers fumbling at the clasp. The chosen fly resists coming out, but finally it is in your hand
You lower the rod butt and reel to rest against your boot, And you thread the tippet through the eye of the #18 pale dun.
You smile as it passes through on the third try, and the knot Cinches down, and you trim down the tag against the fly.
Raising the rod, you pull off just the right amount of line, And cast into the water, with great anticipation.
38 The Journal of the Kansas Bar Association poetry and the law – members’ poetry
The current pulls the line on its path, the strike indicator Showing the way. You tighten your grip, and mend the line.
And you wait with bated breath as your ruse is about to be tested. You feel a downward tug, instinctively you raise your rod;
It all happens in an instant; the hook is set and The pool explodes as you pull back hard.
A magnificent rainbow breaks forth into the swift current; Line whirs off the reel; you struggle against his power!
Your mind spins -how do I hold him, how do I get down stream? The battle is on! Do I have a chance to land him?
Suddenly the line goes slack; he has reversed course and you struggle To keep the line tight, lifting the rod high, the tip bends.
He is still on! More line is lost; you marvel at his strength! He dances on the water, flashing a brilliant iridescence,
Shining in the brightness of the morning sun. More line is Recovered and for the first time, you have hope of landing him.
He is tiring now, still he pulls but you are winning the battle. You reach for your net, and at that moment he makes one last run.
Line peels off and he heads for a logjam! You do your best to follow. Rod held high, net in hand, you are so close!
Your heart is racing… but then there is one last tug, the line goes slack… you have lost him, the battle is over – he has won and he is free!
Disappointment reigns for the moment but what a thrill! You pause, salute the victor, and begin looking for the next hole. Robert L. Heath
www.ksbar.org | April 2020 39 poetry and the law – members’ poetry
Autumn’s Splendor (A Homecoming) As the air cools, the moisture rises in the grasses with the morning light. The crimson of the creeping vines highlights the woods growing dormant. The subtle wind brings a rustling chime to the sugared leaves. And the hedge apples fall to the ground with great commotion.
The chill and fog of the dawn break in the morning sun. Where the sweat still gathers in a long day’s labor. Skies are christened by the drifting flocks. And insects folly wildly in their last plea before the frosts.
Amidst the harmonious sounds our kind cries out. Pruning and planting, harvesting and tilling. A mortal attempt to contour what is beyond control. As chainsaws buzz and blades spin below the diesel plumes.
Yet the fire of the dance is consumed by stadium lights. As the cheerleaders prance in unison before the painted fans. And while the present is all consuming, some wonder exists. As youth in its prime serves no notice to the memories created in this time.
The harvest brings homecoming to gather the fruits and grain. And dawn the diversion of the gridiron and a season of diamonds battled. For many it is a time of new passions and undaunted expectations. Still most gather to immortalize their youthful visions recanting dreams stilled.
The reminder of our communal need draws us closer to the hearth. As the days grow shorter and the night draws upon its time. A festival of seasons changed with the dearth of winter kept at bay. A grateful pause to remember and lust in Autumn’s splendor Henry R. Cox
Bird Dog Lament There is a small reason Why bird dogs don’t sing.
Their voices are too low For the sweet notes of Spring. Robert L. Heath
40 The Journal of the Kansas Bar Association substance and style
Mind Your Virtual Manners: A Brief Guide to Social Graces in Online Writing by Joyce Rosenberg
In legal writing, we often discuss “ethos,” the notion of post.5 As a result, inclusion of a period to break up sentences credibility underlying everything we write. Alongside our in those media has become unnecessary. If the writer includes professional reputations and the care we take with our work, a period, the reader may perceive it as a stern or serious tone, ethos comes from our ability to relate to our audience appro- or even as anger.6 By contrast, using an exclamation point priately—our manners. conveys enthusiasm and sincerity.7 Consider the contrast in We know that when we’re writing to a court, we are ex- the following text exchange between two people discussing pected to use the most formal language and indicate defer- plans for later: ence to the judge. That formality is in contrast to writing to a Example A: client or colleague, when a more conversational and friendly Joe: I need to work late, let’s move back our dinner reservation tone is more effective. When writing to an opponent, we may change our approach and tone yet again, working within the Sam: Totally fine bounds of professionalism to convey a position of strength. Example B: All of these shifts are connected to our sense of manners— Joe: I need to work late, let’s move back our dinner reservation what’s appropriate “behavior” in a particular situation. Sam: Totally fine. Online writing comes with its own set of manners. As more electronic communication moves into the short forms In example B, Joe is likely to perceive that Sam is annoyed. of texts, instant messages, and social media posts, readers That period at the end of the sentence conveys “a slight deep- form impressions based on the writers’ use of “good digital ening of the voice,” sometimes associated with displeasure, etiquette.”1 Most notorious, perhaps, are etiquette lapses re- especially for younger readers.8 That implication is absent lating to email “reply all” (or not understanding how email from the unpunctuated, and thus more neutral, Example A. listservs work). Additionally, online manners have come to Consider a third example: incorporate “writing the way we talk.”2 Online readers form Example C: a judgment about the writer’s credibility and tone within sec- onds.3 In the absence of facial expressions and body language, Joe: I need to work late, let’s move back our dinner reservation those judgments are based on writers’ word choice and gram- Sam: Totally fine! mar, but also on the visual presentation of the words—in Sam’s exclamation point reflects friendliness and enthusi- short, the tools we have to convey tone and nuance online.4 asm. In an in-person or phone conversation, Joe would pick Listening to Punctuation up how Sam felt about the changed plans by looking at Sam’s facial expression or hearing Sam’s voice. In writing, that’s im- In texts and social media posts, writers use punctuation to possible. So “it’s socially useful to be able to convey a nuanced convey tone and voice. The most significant example is the level of reluctance”9 or enthusiasm—and punctuation can do absence of a period at the end of a sentence. In texting and that. instant messages, each sentence or idea is commonly a new
www.ksbar.org | April 2020 41 substance and style
Visual Voice Cues communicating with. One way to do so is to use individuals’ preferred pronouns. Another way to show respect and inclu- Another common way to convey tone is through visual siveness for all people is by avoiding gendered pronouns or prompts. The most common visual prompt for voice is irreg- by using singular they14 when referring to a singular person ular capitalization. Most people understand that ALL CAPS whose gender is unknown, as in the example above.15 MEANS THE WRITER IS YELLING. Use of no capital Singular they, in the sense of a nonbinary pronoun, was letters at all, even where they’d be expected, conveys a quiet, 16 flat, or deadpan tone of voice.10 And capitalizing words at ran- Merriam-Webster‘s word of the year for 2019. Following dom has become a common way for online writers to express that endorsement, in October 2019, the American Psycho- irony and sarcasm. For example, these three sentences have logical Association amended its publication style manual to three different tones of voice, and thus convey three different recommend the use of they as the preferred third-person sin- meanings: gular pronoun when gender is unknown or irrelevant to the context.17 It specifically disfavors use of he, she, he or she, and Example A: similar forms (such as s/he) as generic third-person singular I LOVE LEGAL WRITING SO MUCH! pronouns.18 The reason for the change boils down to simple This writer is sincere and enthusiastic. The writer loves legal manners: “When readers see a gendered pronoun, they make writing, either the class or the discipline generally, so much assumptions about the gender of the person being described. that this text, tweet, or post is shouting it to the rooftops. . . . APA advocates for the singular ‘they’ because it is inclu- sive of all people and helps writers avoid making assumptions That exclamation point signals excitement; without it, the 19 tone shifts to extreme exasperation. about gender.” Of course, writers should always use singular they when it is the subject’s preferred pronoun. In legal docu- Example B: ments, it is prudent to use a footnote to alert the reader that i love legal writing so much use of singular they conforms to a party’s preference. The lack of a capital letter at the beginning, especially the It might be tough to relate lawyers’ work to the tone of texts i, combined with the lack of ending punctuation, suggests and social media posts. We don’t close deals or write motions this writer feels stressed out or worried. Something bad might on Twitter. Nevertheless, lawyers need to be aware of the ways have happened in connection with a document, or the writer online etiquette affects readers’ perceptions. Lawyers may text might be experiencing writer’s block. If a friend or a student with clients and use social media as part of business devel- texted this to me, I would check on them.11 opment. Moreover, as people communicate with each other electronically, those communications affect negotiations and Example C: become evidence in disputes.20 So it’s imperative that lawyers I lOve LeGal WRitiNG sO MucH understand the etiquette of online communications: How to or read those communications correctly for tone and meaning, and how to achieve appropriate manners in our own online I Love legal writing So Much writing. n The irregular capitalizations in Example C indicate the writer means the opposite of what the words say.12 The first version is more flamboyant, used more commonly by younger writers to convey sarcasm; depending on context, it could also be mocking someone who genuinely loves legal writing. The second version, capitalizing the words the writer means ironi- cally, achieves a similar result with a little less keyboard effort. A similar technique to convey emphasis is to elongate the word the writer wants to emphasize. Writers can elongate us- About the Author ing extra spacing to s t r e t c h the word the writer wants to emphasize. Or they can add extra letters, especially vowels, to Joyce R. Rosenberg is a clinical professor at KU Law School, where she teaches Lawyering stress the word: Nooooooo! Physically lengthening the word Skills. She is a 1996 graduate of KU Law. She on the screen or page is equivalent to the same technique in served as editor in chief of the Kansas Law spoken language.13 Review. A Little Respect [email protected] Finally, an important, often-overlooked component of on- line manners is simply showing respect for the people we are
42 The Journal of the Kansas Bar Association substance and style
1. Victoria Turk, How to Ensure A Good Impression, New York Times, Dec. 16, 2019, at B6 (available at https://www.nytimes.com/2019/12/09/ smarter-living/digital-etiquette-manners-online.html). 2. Gretchen McCulloch, We Learned to Write the Way We Talk, New York Times, Dec. 27, 2019 (available at https://www.nytimes.com/inter- active/2019/12/27/opinion/sunday/internet-writing-text-emotion.html). Id. 3. Founding Partner Kirk C. Stange of Stange Law Firm, PC is 4. Jen Doll, Why Drag It Out? The Atlantic (March 2013) (available at https://www.theatlantic.com/magazine/archive/2013/03/dragging-it- Proud to Present a National Webinar Accredited to Kansas Attorneys out/309220/). on April 8, 2020 for the National Business Institute. 5. McCulloch, supra note 2. 6. Id. 7. Id. 8. Id. 9. Id. 10. Gretchen McCulloch, A Linguist Explains How We Write Sarcasm on the Internet, The Toast, June 22, 2015, https://the-toast.net/2015/06/22/a- linguist-explains-how-we-write-sarcasm-on-the-internet/. 11. “The use of they, their, them, and themselves as pronouns of indefi- nite gender and indefinite number is well established in speech and writing Kirk C. Stange, Esq. . . . .” Definition of They, Merriam-Webster, https://www.merriam-webster. Founding Partner com/dictionary/they. The CLE is titled Divorce“ Attorney’s Guide to Taxes.” 12. See McCulloch, supra note 2. This CLE will help you predict tax opportunities and consequences 13. Doll, supra note 4. Kelly M. Davidzuk, Partner 14. For a more comprehensive discussion of singular they, its acceptabil- during and after divorce so you can avoid pitfalls and structure the ity, and its modern usage, see Joyce Rosenberg, A Singular Understanding of settlement to your client’s advantage. The CLE will also teach the They, J. Kan. Bar Ass’n 20 (April 2016). exploring of the details of family support taxation; anticipating tax 15. See supra note 11. consequences on the sale/transfer of property; planning for the tax 16. Merriam-Webster’s Words of the Year 2019, Merriam-Webster, https:// impacts of dividing retirement accounts/pension plans; what secrets www.merriam-webster.com/words-at-play/word-of-the-year/they. tax returns hold; and how to read them. 17. American Psychological Assoc., Singular They, APA Style, https:// apastyle.apa.org/style-grammar-guidelines/grammar/singular-they. 18. Id. 855-805-0595 I WWW.STANGELAWFIRM.COM 19. Chelsea Lee, Welcome, Singular They, APA Style Blog (Oct. 31, Note: The choice of a lawyer is an important decision that should not be based solely upon advertisements. Kirk C. Stange is responsible for 2019), https://apastyle.apa.org/blog/singular-they. the content. Principal place of business 120 South Central Avenue, Suite 450, Clayton, MO 63105. 20. See, e.g., Matter of Hodge, 307 Kan. 170, 407 P.3d 613 (2017) (using text exchanges between attorney and client as part of evidence of attorney’s misconduct); Doe v. Western New England Univ., 228 F. Supp. 3d 154, 164 (D. Mass, 2017) (referencing Magistrate Judge’s report considering text messages, including emojis, in the context of a Title IX complaint).
https://klsprobono.org/ PRO BONO LEGAL SERVICES Law professionals in Kansas can participate in the pro bono community through clinics, posted projects, or by volunteering to take on specifi c cases displayed on the site. Opportunities are regularly updated by Pro Bono Coordinators in the 11 statewide KLS fi eld offi ces.
www.ksbar.org | April 2020 43 the diversity corner
Fighting Lawyer Loneliness?
by Diana Stanley
t the time I am writing this, KU is shifting to online feel less satisfied with their jobs—costing employers upwards classes and the World Health Organization (WHO) of £2.5 billion ($3.5 billion U.S.) in the United Kingdom has declared COVID-19 a pandemic. So if you are alone.”7 Areading this—congratulations, we made it. Hopefully, you Enter COVID-19. It is common sense that withdrawing are enjoying a public gathering and I am headed off to my from avenues of social contact and tele-commuting for safety very in-person hooding ceremony. But in case we are still purposes can increase loneliness. Less obvious is how it can practicing social distancing, let’s talk about loneliness. pose particular challenges for those with mental health diag- Even without Centers for Disease Control (CDC) suggested noses. As one law student told me: isolation, lawyers are a lonely bunch. In fact, a 2018 survey by the Harvard Business Review found that law is the loneliest Loneliness can hit especially hard when you are deal- profession.1 Sixty percent of lawyer respondents were above ing with mental illness. Granted, mental illness presents the study’s average on the loneliness scale.2 In addition, mil- differently in everyone, so these are just my experiences, lennials,3 rural residents,4 and minorities5 face higher rates of but depression and anxiety make my feelings of social loneliness than their working cohorts. isolation and loneliness multiply exponentially. When All this loneliness has a cost. Lonely people are more likely you are dealing with mental illness, sometimes the last to experience problems with their “immune and cardiovas- thing you want is social contact, even though it’s the cular systems.”6 At work, loneliness affects performance. thing you need the most. Mental illnesses can also make “Lonelier workers perform more poorly, quit more often, and it so hard to interact with people, leading to further self-
44 The Journal of the Kansas Bar Association the diversity corner
isolation. For example, I am an extrovert and get my About the Author energy from other people. When I don’t have that social Diana Stanley is a third-year law student at the contact, the first thing to take a hit is my mental state. University of Kansas. After she graduates, she plans to practice in her home town of Wichita. She is an Articles Editor for the Kansas Law Review, Articles Mental illness also presents a different kind of loneli- Chair of the KBA Diversity Committee, and was a ness, a kind of situational loneliness. Not only do you runner up at this year’s National Environmental Law feel different form everyone else, like you can’t relate to Moot Court Competition. them, but it’s absolutely exhausting correcting ableist [email protected] comments and ideals in others. The coronavirus pan- demic will certainly test my ability to cope with social loneliness and situational loneliness.8 So what do we do to combat loneliness—with or without a pandemic? 1. Shawn Achor et. al, America’s Loneliest Workers, According to Take care of yourself. In addition to the usual suggestions of Research, Harv. Bus. Rev. (Mar. 19, 2018), https://hbr.org/2018/03/ exercising at home and remembering to eat, consider trying americas-loneliest-workers-according-to-research. meditation. As one of KU Law’s resident mindfulness cham- 2. Id.; Kathryn Rubino, New Survey Proves Lawyer Is The Loneliest Pro- fession Of All, Above the L. (Apr. 3, 2018, 4:26 PM), https://abovethelaw. pions told me: com/2018/04/new-survey-proves-lawyer-is-the-loneliest-profession-of- Meditation can be a great way to ground yourself in all/. times of anxiety and uncertainty. My tips on getting 3. Jamie Ballard, Millennials are the Loneliest Generation, YOUGOV (July 30, 2019, 2:45 PM), https://today.yougov.com/topics/lifestyle/ar- started are: ticles-reports/2019/07/30/loneliness-friendship-new-friends-poll-survey 1. Find a good app. Both Headspace and Calm are (study finding thirty percent of millennials report feeling “always or of- ten [] lonely” and over twenty percent reporting they had “no friends”). extremely popular but really a simple timer is all 4. Kay Miller Temple, The Rural-ness of Social Isolation: Informa- you need. tion from Recent Public Health Research, Rural Monitor (July 19, 2019), 2. Keep it short. At least when first starting, 5-10 https://www.ruralhealthinfo.org/rural-monitor/social-isolation-re- search/. minutes is all you need. Once sitting for 10 min- 5. Jo Griffin, The Lonely Society?, Mental Health Found. 6 (2010) utes is easy, try adding time. (“People from minority groups are also more apt to suffer from loneli- 3. Set a regular time of day. Tie your meditation to ness.”); Mary Caffrey, Studies Reveal Loneliness, Trauma Effects Among Minority Urban Women, AM. J. Managed Care (May 20, 2019), https:// an already existing activity that you perform like www.ajmc.com/conferences/apa-2019/studies-reveal-loneliness-trauma- waking up, going to bed, or even eating. This will effects-among-minority-urban-women. make the habit stick better. 6. Griffen, supra note 5, at 6. 7. Achor, supra note 1. 4. Do it regularly. You are better off doing a short-five 8. Email from Ariel Rhines to Diana Stanley (Mar. 17, 2020, 12:27 minute meditation every day than a ½ hour me- PM CST) (on file with author). diation every once in a while.9 9. Email from W. Blake Wilson, Assistant Dir. Instructional & Fac- ulty Servs., Uni. Kan. Wheat Law Library, to Diana Stanley (Mar. 19, To stay refreshed, open a window and prioritize proper hy- 2020, 10:19 AM CST) (on file on author). dration.10 “Sometimes just having a glass of cold water can 10. Tara Roslin, COVID-19: A Law Student’s Guide to Self Care & center you and put you in a better mood.”11 Healthy Remote Work Habits 5 (Mar. 15. 2020) (unpublished manu- script) (on file with author). Maintain your social networks. WHO’s official advice to 11. Id. those limiting physical social contact is to “stay connected 12. Mental Health Considerations during COVID-19 Outbreak, via e-mail, social media, video conference[,] and telephone.”12 World Health Organization 4 (Mar. 6, 2020), https://www.who. And for the extraverts out there, don’t just wait for the call. int/docs/default-source/coronaviruse/mental-health-considerations. If you have not heard from a friend or a family member in a pdf?sfvrsn=6d3578af_2. while, reach out and see how they are doing. Finally, rejoice in the small things. Even at this early stage of virtual school, pets are quickly becoming the stars of classes and meetings. We are getting to see a side of each other that we had not before. The other day I wrote a snail mail letter to an old friend because I knew she would get a kick out of it. Stay healthy and take of yourself. n
www.ksbar.org | April 2020 45 Ethics CLE Sponsored by meets humor, fo r good! WEBINARS ONLY Pending 2.0 CLE credit hours, including 2.0 E&P credit hours in Kansas & Missouri Where Does the Money Go? How Do We Sign Up for this Amazing, Our designated charities for 2020 are: Funny and Informative Program? • CASA (Johnson/Wyandotte Counties) For a mere $90, you get both the ethics and the good, the • Safehome and Hope House (domestic violence programs) entire Ethics for Good – now in its 21st year! • Metropolitan Organization to Counter Sexual Assault (MOCSA) To register for this program, complete the form below or • Kansas Bar Foundation register online at: • FosterAdopt Connect • In addition, we will fund Ethics for Good scholarships to www.ksbar.org/EthicsforGood each of the KU, Washburn and UMKC law schools and the Johnson County Community College paralegal program.
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46 The Journal of the Kansas Bar Association law students’ corner
substance and style
Overcoming Imposter Syndrome One Docket at a Time by Zach Palomino
ell before I came to law school I knew I eventually lishments on Mass Street for lunch. For the first time in law wanted to practice criminal law, and I knew I most school, it actually felt like I was getting somewhere. likely wanted to be a prosecutor. I spent a semester I made sure to build my schedule around the internship. Win undergrad as an intern for the Pima County Attorney’s Of- I knew I needed to wrap up required classes before 3L year fice in my hometown of Tucson. Most of that time was spent came so that I could focus on my internship. Most impor- making copies and getting coffee, but it did allow me to see tantly, I signed up to take Professor Phillips’ Criminal Practice what a trial is like in the real world with real consequences for in Kansas course during the spring semester of 2L. I didn’t everyone involved for the first time. know it when I enrolled, but what I learned in that course Fast forward a few years and I was in the grind of 1L year. would allow me to survive the difficult learning curve that On top of just trying to get by, I was trying to build a resume would come with my internship. Without Professor Phillips, that would hopefully land me an internship in a District At- I’m not sure I would have even deciphered the Kansas sen- torney’s Office somewhere. Luckily, the hard work paid off tencing grid. She used that course to break down a complex during my 2L Fall semester and I earned an internship with criminal case and show us how it all worked. Without the the Douglas County District Attorney’s Office for my 3L knowledge and skills I got from that class, I would have been summer and school year. It was everything I had worked even more shell shocked when I first stepped into the court for up to that point: an internship that not only offered the room during my internship. However, there was nothing that potential to get real world criminal law experience, but also could have prepared me for the first day I would be calling a would be within walking distance to any of my favorite estab- busy docket.
www.ksbar.org | April 2020 47 law students’ corner
I can’t remember anything more unsettling than being sur- many excellent prosecutors at the Douglas County District rounded by almost the entire Douglas County Defense Bar Attorney’s Office, and they have proven to be a great resource. with almost no backup. Every single one of them knew it was Every time I have struggled during my internship, I have al- my first time in a courtroom, and they saw the opportunity. ways been able to seek help from one of my supervisors and I lost count of the surprise bond arguments that were made learn from them. on the fly, but I do remember one of them scolding me for As I continue my internship and finish out law school, I not calling his client’s case early enough. I was so shocked have fewer moments where I feel like an imposter. Every set- that had happened in open court I almost apologized to him. back is a learning experience, and every victory is a confidence Luckily, my supervising attorney caught me and stepped in booster. As long as I am diligent and never make the same herself to help finish calling the docket. I remember feel- mistake twice, there will be a day when imposter syndrome is ing like despite all the work I had done to get there, I didn’t completely a thing of the past. n belong. I had a few weeks of real world experience, and the Defense bar probably had a combined century of experience. As unpleasant as that morning was, my ability to speak in About the Author court and think on my feet is all the better for it today. For as Zach Palomino is a first-generation college and much as KU Law has given me, character building experience law student. He is currently a 3L who is originally like that is unmatched. from Tucson, Arizona. He plans to return there after graduation and take the Arizona Bar Exam in July. He Since then, I have had the opportunity to write and argue hopes to continue his career in prosecution with either motions and perform bench trials, as well as handling count- the Tucson City Attorney’s Office or the Pima County less pleas and other dockets. During all of those experiences, Attorney’s Office. I have the lingering feeling that no matter what I’ve done to prepare, I don’t really know enough to be worthy of being there. When the stakes are high, who am I to play the role of 1. See KRPC 3.8, Comment 1. a prosecutor and be sure to see that “justice may be done”?1 In time, I figured out that the secret is I’m not the only one who feels that way. I believe that most people in this profes- sion suffer from some level of imposter syndrome, but there are ways to get over it. For me, I have found that falling back on the basics I learned at KU Law is a good place to go when I need to find my base. When I felt out of my depth researching and writ- ing a response to a motion to dismiss, I remembered all the LEGAL INTERPRETERS motions I had to write for Professor Phillips when I took her SIGN LANGUAGE & 100+ Criminal Practice in Kansas class. When I looked back at those, I found her comments and feedback useful even a year FOREIGN LANGUAGES later. I also found that it’s best to just swallow your pride and ask for help when you need it. I work under the supervision of ON-SITE • OVER THE PHONE DOCUMENT TRANSLATION
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48 The Journal of the Kansas Bar Association Members in the News
NOTE: Members in the News items are largely gleaned from newspaper articles from across the state, provided by our clipping service. If there are questions or concerns regarding information printed here, please feel free to inquire through the following email: [email protected]
N E W S !!!
New Positions Allison Greenfield has been promoted to member status in the Knight NiCastro MacKay LLC. Her practice focuses on Clifford K. Cate, Jr., is Of Counsel for Barber Emerson, business and commercial litigation, insurance premises, prod- L.C., in Lawrence. His practice is focused in the areas of Civil uct liability and arson-fraud litigation. Greenfield is licensed Litigation, Real Estate, and Oil & Gas law. Cate is licensed in to practice in Kansas and Missouri. Kansas, Oklahoma and Wyoming. John McNish was unanimously appointed Marysville city John J. Gillett was temporarily appointed to serve as Wil- attorney in early March. McNish previously held that posi- son County attorney, filling the post being vacated by Kenley tion from 2004 to 2015. He now succeeds Craig Olsen of the Thompson. Gillett has a law office in Chanute, but lives in Manhattan firm of Morrison, Frost, Olsen, Irvine & Schartz. Fredonia and has previously served as Wilson County attor- McNish earned his juris doctor from the University of Kansas ney (Sept. 1983 – Jan. 1994). He received his law degree from School of Law. He has operated out of Marysville for more the Washburn University School of Law, and he is licensed than 40 years. McNish also serves as Clay Center’s municipal to practice in Kansas and Nebraska, as well as by the U.S. court judge. Federal 10th Circuit Court of Appeals and the U.S. Federal Court, District of Kansas. H. Kirstin Munson was unanimously approved to serve as city attorney by Arkansas City Commissioners. Munson Victoria Gordon has been added to the family law practice is an attorney with the Ark City firm of Wilson, Brewer & group of MannTuckerMuir, LLC. She received her J.D. from Munson; she will represent the city in municipal court cases. Washburn University School of Law, and was one of only four people in her class to obtain a Family Law Certificate. Ashley Repp was introduced by Linn County Attorney to She is licensed to practice in Kansas and Missouri. She was the Linn County Commissioners in February as the new as- a child support enforcement attorney for the State of Kansas sistant prosecutor. Repp is qualified to handle off-grid felo- through her previous position with YoungWilliams. nies of which the county has found itself prosecuting several.
www.ksbar.org | April 2020 49 members in the news
Colby L. Rieke has joined McDowell Rice Smith & Bu- the fields of bankruptcy and insolvency within the U.S. and chanan in Kansas City as a shareholder. He will work as part internationally. Forker is a past chairperson for the KBA Real of the firm’s family law and divorce group. Rieke was named Estate, Probate, and Tax Section and also a past chairperson to the 2019 Super Lawyers list in the area of Family Law in of the KBA’s Bankruptcy Section. He is a contributing author Kansas and Missouri, and was named to the Rising Star list to the KBA’s Bankruptcy Handbook. Forker graduated from from 2014-2018. Reike received his J.D. from the University the Washburn University School of Law. of Missouri—Kansas City School of Law. JoAn Lindfors of Marquette was celebrated by her local Steve Stockard, a partner at Wilber & Towner, P.A., has paper, the Marquette Tribune, in recognition of the 100th been appointed to succeed retired Judge Jeffry L. Jack as the anniversary of women winning the right to vote. The article Eleventh District Labette County Judge. Stockard earned his made the point that Lindfors could be included on a list of juris doctor from Washburn University School of Law. His Kansas women who have made a difference in the lives of oth- experience includes eight years as a Crawford County Assis- ers. Lindfors, now recently retired at 69, practiced criminal tant County attorney and a stint with the Kansas Depart- law for 45 years. She graduated from Washburn University ment of Revenue. Most recently, Stockard has represented cli- School of Law; her class of 160 had 15 women. The in-depth ents in matters including personal injury, bankruptcy, family article was published on Feb. 26th. law and juvenile justice. Ralston, Pope, and Diehl, LLC, was recognized as Two Kenley Thompson, Wilson County Attorney, resigned Year 10 Best Personal Injury Law Firm for Client Satisfaction from that position, effective March 12, in order to accept a by the American Institute of Personal Injury Attorneys. The position as an Immigration Judge with the U.S. Department AIOPIA places the highest emphasis on lawyers and firms of Justice. that have achieved significant success in personal injury law Keynen “KJ” Wall was appointed to the Kansas Supreme without sacrificing the service and support they provide. Court by Gov. Laura Kelly in March. Wall will fill the seat of Angel Zimmerman is the 2020 recipient of the Interna- former Justice Lawton Nuss. Wall’s experience in health care tional J. Reuben Clark Law Society Women in Law Public litigation— representing rural hospitals, community mental Service Award which was awarded to her at the Sandra Day health centers and behavioral health providers—was key in O’Connor Law School in Phoenix. Zimmerman has served his selection. He is a graduate of the University of Kansas on the JRCLS Women in Law Committee since 2009, in- School of Law. cluding as chair from 2016 to 2018. She helped to host the BYU Management Society and JRCLS project of 11 webinars for Women in Law (WIL) and Women in Business (WIB). New Locations She also helped to host the first joint WIB/WIL conference at BYU. An active member of the KBA, Zimmerman has served MannTuckerMuir is located across the street from the on several committees, including as inaugural chair for the Ward Parkway Shopping Center at 8700 State Line Road, Law Practice Management section. She is a recipient of the Suite 395, Leawood, Kansas 66206 Kansas Young Lawyer award and a nominee for the ABA Young Lawyer Award. Zimmerman is a former president of the Women Attorney Association of Topeka, Kansas, the Notables Women Attorneys Association, and the National Conference Ty Cobb, Great Bend Native and former White House at- of Women’s Bar Associations. Zimmerman is also active in torney spoke in January to the Lyons Chamber of Commerce. the 2020 celebrations commemorating 100 years of the 19th Cobb, who still has family in Great Bend, served as an as- amendment, which gave women nationally the right to vote. sistant to the president and special counsel in 2017-2018. He was recognized as one of the top 100 lawyers in Washington, D.C. in 2017. Cobb spoke about his time in the White House, calling it “a horrible place to work.” He indicated “Partisan- ship and hypocrisy are at an all-time high.” Dan W. Forker, Jr., senior partner of Forker Suter LLC in Hutchinson, was inducted as a fellow in the American Col- lege of Bankruptcy as part of its 31st class. Forker is one of two 2020 nominees selected from the 10th Federal Judicial District which includes Colorado, New Mexico, Oklahoma, Utah and Wyoming. Nominees are recognized on the basis of their professional excellence and exceptional contributions to
50 The Journal of the Kansas Bar Association Christel Marquardt—A Tribute by Linda S. Parks and Rachael Pirner
eader, innovator, Christel had many passions. Her family was first and fore- trailblazer. Resil- most. But she was devoted to her church, and she was a huge ient, formidable, supporter of Washburn Law School. And she was a bar as- strong.L Supportive, sociation junkie. She was active in the Topeka Bar Associa- loyal, inspiring. Friend. tion, the Kansas Bar Association (KBA) and the American All words that describe Bar Association (ABA). She took many “firsts” within these Hon. Christel Elisabeth organizations, blazing the trail for other women attorneys in Trolenberg Marquardt, Kansas. In 1987, she was elected to serve as the first female who passed away on president of the KBA. She was then elected to serve as a mem- March 8, 2020. ber of the ABA’s House of Delegates; she served from 1988 to Christel became a 2018 as a KBA delegate, state delegate and delegate at large. lawyer in the non-tra- As another female “first” for Kansas, Christel also served as a ditional way. She had member of the ABA’s Board of Governors. been in the work force It was through the KBA and the ABA that the authors for almost 20 years. of this article came to know Christel. And we also were de- Honorable Christel Marquardt She was a wife and the lighted to get to know her son Joel, who accompanied her on mother of four boys. many a bar association adventure. He was a terrific sport and And when those boys were at ages ranging from five to 12, Christel knew it. she decided to go to law school. She graduated, with honors, At the ABA, Christel introduced us to everyone and any- from Washburn University School of Law in Topeka, Kansas one. She was widely loved and respected in that organization. in 1974, in the upper seven percent of her class. Of the 189 She knew all the hitters. With her help and guidance, we were students in the class, only six were women. able to experience the ABA by making immediate connec- On graduation from law school, Christel joined the firm of tions. She was also very nice about Randy Brown accompa- Cosgrove, Webb and Omen in Topeka. She became a partner nying Linda to all the events. She made him feel so welcome in that firm at a time when few women achieved such suc- and included, and the three of us had many dinners, and a cess. In 1986, she left the firm and started Palmer, Marquardt few cocktails, together. You could always count on Christel and Snyder. In 1991, she joined the Kansas City firm Levy & to be direct, which sometimes was not well received. But you Craig, P.C. and then formed Marquardt & Associates, LLC knew where you stood with her, which is not all that common with her son. In 1995, she was appointed to the Kansas Court these days. of Appeals as the third woman to be appointed to that court. Christel’s professional awards are plentiful, and include the She retired in January 2013. KBA’s highest award—the Phil Lewis Medal of Distinction, When Christel began her law practice in 1974, there were and now her namesake award—the Christel Marquardt Trail- very few women lawyers in the Topeka legal community. In- blazer Award, an award named in her honor to recognize ex- deed, women were not generally accepted as practicing law- ceptional KBA members who break new ground, shatter glass yers. And she was dealt some blows along the way. She was ceilings or pave new paths for others. In 1999, the Kansas divorced not long after graduating from law school. In 1981, Women Attorneys Association recognized Christel’s steadfast her son, Eric, passed away after losing his battle with cancer. efforts on behalf of women practitioners, making her the first Measured against these obstacles, her professional achieve- awardee to receive its prestigious Attorney of Achievement ments are especially significant. Award. Washburn University School of Law has also recog- Christel enjoyed her time on the Court of Appeals. Chief nized her tireless efforts on its behalf, awarding her its Dis- Justice Kay McFarland touted Christel’s opinions as “insight- tinguished Service Award in 2002 and 2004. In 2014, The ful, well-reasoned and masterfully crafted.” As one of three American Business Women’s Association also selected her to women on the thirteen-member Kansas Court of Appeals, receive the Woman of Distinction Award. Christel led the charge as a voice supporting women. Just two Christel was also a wise and unselfish mentor, guiding oth- years after her appointment to the Court of Appeals, Judge er women through the challenges of the legal profession and Marquardt sat with the Kansas Supreme Court and dissented encouraging young women to pursue the field of law. She was from the majority opinion in Heiman v. Parrish, 262 Kan. a prolific speaker at many junior high and high school events 926 (1997), which held that an engagement ring is a condi- and provided many words of wisdom to encourage young tional gift given in contemplation of marriage. Judge Mar- women, and young men, to become lawyers. quardt opined that not only is an engagement ring an irrevo- Yes, she was strong, and she will be missed. cable gift, but a donor who breaks the engagement should not be rewarded for breaching the marriage contract.
www.ksbar.org | April 2020 51 Obituaries
Christel Elisabeth Trolenberg Marquardt tion. She continued to practice law in Topeka, but when her (8/26/1939 – 3/8/2020) kids settled in Kansas City and Chicago in the early 1990s, she moved to Lenexa and started a law practice with her son Christel (Elisabeth) Trolenberg Marquardt, age 84, passed Andrew. After eighteen months, she was appointed to the away on March 8, 2020 after a courageous battle with cancer. Kansas Court of Appeals where she served as a judge for 17 She was very thankful of the many friends who helped her years. through this time. Christel’s civic and community involvement and awards She was preceded in death by her son, Eric, in 1981. Survi- are too numerous to mention. Anyone that knew her under- vors include Phil, Andrew (Jackie), and Joel (Gyalsten), and stood besides her family, her passions were Washburn Uni- grandchildren Charlie, Ben, Grace, Sarah, Andrew, Maddie, versity, Washburn Law School, Topeka Symphony and equal and Tashi. rights for women. She was a Chair of the Washburn Univer- Christel was born August 26, 1935 in Chicago, Illinois. She sity Board of Regents and Chair of the Washburn University attended a Lutheran grade school and her family later moved School of Law Board of Governors. She much enjoyed the to a chicken farm. She worked at the horse track across from fact that her birthday coincided with the historical date when the farm peeling potatoes to make money in junior high. She women won the right to vote. Christel’s legacy of helping attended Crete-Monee High school where she played piano, women in law and business will surely live on and be remem- clarinet saxophone, baritone sax, flute and won several com- bered for a very long time. petitions. Following high school she worked at ACME steel as She was proud of her German heritage and loved doing a secretary until she had enough money to attend Concordia crossword puzzles, playing Bridge (among other games later Teacher’s College. After two years of teaching at a two-room in life) and watching Jeopardy. Those who knew her could see schoolhouse, she married and had four boys, moving from daily her personal discipline of hard work and a drive to do Chicago to California to Minnesota, and finally settling in her best in whatever she needed to do. As she used to say, rais- Topeka. While raising her children, she attended Missouri ing children was no walk in the park. Doing so while earning Western, and graduated with honors from Washburn Law top awards in law school and being a “young lawyer” in her School in 1974 where she was a managing editor of the Law late 30’s and early 40’s was proof of her drive and work ethic. Journal. She was later celebrated as a distinguished alum at She will be remembered for her fierce loyalty and love for her both schools. friends and family. Following law school, she worked for Cosgrove, Webb, and Services will be at Faith Lutheran Church, Topeka, KS Sat- Omen in Topeka, becoming a partner, and then started the urday March 14, 2020, visitation at 9:30am, service at 11am law firm Palmer, Marquardt and Snyder. In 1985, she was followed by reception at Faith and private family interment at named one of the Top Ten Business Women in America by 1pm. In lieu of flowers, please make a donation to the Chris- the by American Business Women’s Association. In 1986 she tel Marquardt Scholarship at Washburn Law School, Topeka became the first woman President of the Kansas Bar Associa- Symphony, or Faith Lutheran Church.
52 The Journal of the Kansas Bar Association obituaries
Nathan Daniel Leadstrom (4/20/76 - 2/26/2020) “Loved ones, Out of all of the tough times, bumps and Nathan Daniel Leadstrom, 43, made his last of many inap- bruises felt along the way, I never lost my sense of humor even propriate jokes he never lived long enough to regret on Febru- though it was greatly challenged in losing my son Landon ary 26th, 2020. and having to tell my children I was dying from pancreatic cancer. But, for every loss, there is at least three joys to cel- Known as “that Leadstrom kid” to those who knew his ebrate and I give to my wife and children all the love, respect other wreck-hellion siblings, Nathan learned from an early and humor I have still in me to carry with them through the age that troublemakers were only the ones who got caught rest of their journey. I love you all. Thank you for such a great ringing the church bells in Savonburg, Kansas rather than life together. Love, Nathan” the instigator who, upon closer inspection, was never actually seen entering or exiting said establishment. Services began with a Ji Jang Bosal Ceremony, Tuesday, March 3, 2020 at 6:00 pm, at The First Congregational Despite years of successfully never attempting to talk oth- Church at 17th and Collins Ave in Topeka, KS. A Memo- ers out of their terrible ideas, he surprised his 1994 graduat- rial Service followed on Wednesday, March 4, 2020 at 10:00 ing class at Marmaton Valley High School in Moran, Kansas am also at the church. Burial took place privately on another by not only graduating with honors, but without any arrests. date. Everyone was welcome to join the family for a short That can hardly be considered surprising as flying under the reception following the Memorial Service. radar was much easier back then before the internet, smart phones and social media stole everyone’s privacy. In lieu of flowers the family asked that donations in Nathan’s name be made to The Ronald McDonald House He married his high school sweetheart, Traci, after two Charities of Northeast Kansas. You may donate by visiting years of living in sin in Fort Scott, Kansas while he attended their website at https://www.rmhcneks.org/donate/ or leave in Fort Scott Community College (’96, Summa Cum Laude) care of the Davidson Funeral Home. davidsonfuneral.com. and Pittsburg State University (’98, Summa Cum Laude) and, most importantly, graduated without any student loan debt (a feat not likely to be accomplished today without the Donald Patterson (8/1/1924 – 2/10/2020) make-someone-else-pay-for-it plan). Donald Patterson, 95, of Topeka, passed away Monday, As special penance for his misspent youth, Nathan con- February 10, 2020. vinced Traci to move to Topeka, Kansas in 1998 with the sole intention of obtaining a law degree before they want- He was born August 1, 1924, in College View, Nebraska, ed to move back to Southeast Kansas. The fickle finger of the son of Charles and Ruth (Swingle) Patterson. He gradu- fate intervened with the birth of their first son at the start of ated with his A.B. (Political Science) from the University of the second year of law school before Nathan earned his JD Nebraska in 1947 where he held Scholastic Honors with Phi from Washburn University School of Law (’01, Magna Cum Beta Kappa. He received his Juris Doctor degree from the Laude). During law school, Nathan started as a law clerk for University of Michigan in 1950. Goodell, Stratton, Edmonds & Palmer, LLP, established in He served with the United States Army. He served overseas 1881 (the oldest law firm in Topeka), where he has practiced for six months in the European Theatre. He was a member of ever since and was later elected as managing partner (’14). He a medium tank crew, serving as driver and gunner. went on to have three more children in his time, never leaving As a founder and senior partner for Fisher, Patterson, Sayler Topeka as once was planned. and Smith, he had many areas of practice: Product Liability With his family by his side, he died at The House of Mid- Litigation, Drug and Medical Device Litigation, Employ- land Hospice in Topeka, Kansas after laughing at the diagno- ment and Civil Rights Litigation and Business Litigation. sis of stage IV pancreatic cancer – for it was not the smoking He was a member of many professional activities including he was going to die from anyway! a member of the Kansas Bar Association, Litigator’s Master Nathan is survived by his immediate family: wife, Traci Roundtable 1990 (faculty of Kansas College of Trial Advo- (43); son, LCpl Tyler Leadstrom (20); daughter, Kayleigh cacy and faculty of NITA Advocacy Program), American Bar (14); son, Liam (11), and their lab pointer mix Buddy (3) and Association, Topeka Bar Association (President from 1974- fat and sassy cat Abigail (6); his siblings: sister, Carrie Smith 75), Kansas Association of Defense Counsel (Charter Mem- (50); brother, Gary Leadstrom (48); sister, Melissa Meyer ber, Secretary (1966-73), President (1973-74), International (45); brother, Steven Leadstrom (38); and brother, Jonathan Association of Defense Counsel (faculty, International As- Leadstrom (36) and more nieces and nephews than you can sociation of Defense Counsel Trial, Academy, Boulder, CO shake a stick at. His father, Leonard, preceded him in death, (1984), Defense Research Institute (subcommittee Chair- along with his precious second born son, Landon, who died man, Currents Trends in Judicial Decisions, Product Liability in 2004. Committee), American Judicature Society, member and State
www.ksbar.org | April 2020 53 obituaries
Chairman, U.S. Supreme Court Historical Society (1989-91), Floy worked as an examiner for the Kansas Securities Com- American Arbitration Association, Fellow, American College mission from 1969 to 1972. In 1972, Floy enrolled in the of Trial Lawyers (1975- ), Listed in “Best Lawyers in Amer- KU School of Law, graduating with a JD in 1974. She was ica” (1983- )(Personal Injury Litigation), Product Liability admitted to the Kansas and Illinois bars, as well as appearing Advisory Council (PLAC), Kansas Bench Book Committee in several federal courts. In 1976, after clerking for several (1975-84), Kansas Supreme Court Nominating Commis- law firms, Floy moved to Chicago and started her career with sion (1979-1989), and Kansas Board of Discipline Attorneys the U.S. Securities and Exchange Commission as an attorney (1980-83). in the enforcement section of the Chicago Regional Office. Donald was a primary author of Defense Research Mono- At the SEC, she investigated violations of the federal securi- graph “Expert Testimony” and The Defense Litigation. He ties laws and brought fraud and other enforcement actions in also was the co-author of numerous books. He was the win- federal court and in administrative proceedings. She had a ner of the 1996 Yancey Memorial Award, IADC and winner reputation for thorough preparation and effective written and of the first annual DRI Award for Lifetime Contribution to oral presentations. the Professions, DRI (1997). In 1984, Floy married Peter Shaeffer, a fellow SEC attorney He was on the board of directors for the YMCA of the who later opened a private practice in Chicago. Since 1986, Rockies in Estes Park, Colorado for over 25 years. they have made their home in Barrington. Floy was active in her community and her church, the Presbyterian Church of Donald was a member of First Presbyterian Church since Barrington, where she served in a variety of leadership roles. 1950 serving as Elder, Trustee, Deacon and a part of the choir. She was a proud member of the PEO, and a life-long Demo- He was one of the founding members of the men’s Wednes- crat. Floy resigned from the SEC shortly after the birth of day bible study. their second son, Peter, because she wanted to be a full-time He was an avid Nebraska Husker Fan his whole life. He also mother. And she was a wonderful one, encouraging and sup- loved spending time with family and will be greatly missed. porting her sons in their school and athletic activities, keeping closely in touch with them as they grew older, and remaining Donald married Mary Verink on August 10, 1947 in Lin- an integral and very important part of their lives until her coln, NE, she survives. Other survivors include daughter, death. Floy and Peter provided a loving home for her mother, Nancy (Bruce) Chapman; sister, Marilyn Baer, six grand- Ruth Lambertson, in the final years of Ruth’s life. children; eight great-grandchildren and numerous nieces and nephews. He was preceded in death by his parents and son, Floy is survived by her devoted husband, Peter; their three Bruce Donald Patterson. sons, Bill (Anne) of Barrington, Peter (Molly) of Oak Park, Il- linois, and David (Emily) of Brooklyn, N.Y.; and three grand- A Funeral Ceremony was held at 2:00 p.m., Monday, Feb- children in Barrington, Will, Elizabeth, and Charlie. She is ruary 17, 2020 at the First Presbyterian Church, 817 SW also survived by her three brothers, Bill, David and Giles; and Harrison St., Topeka. The family greeted friends an hour pri- by numerous cousins, nieces and nephews. Floy’s family and or to service time. Private burial took place at Mount Hope friends remember her as an exceptionally bright and talent- Cemetery. ed woman, always fun to be around, selfless, and filled with Memorial contributions may be made to First Presbyterian empathy, generosity, and love. Her home was always open to Church 817 SW Harrison St. Topeka, KS 66612, or Brewster family and friends. She could always be counted on when Place 1205 SW 29th Topeka, KS 66611. family or friends needed support. She was a fine lawyer, a Penwell-Gabel Funeral Home assisted the family with ar- lively conversationalist, an excellent singer (especially of duets rangements. To leave a message for the family online, please with her father), and a wonderful host. Floy was always at the visit www.PenwellGabelTopeka.com. center of her extended family; indeed she was its center. She was a lovely person. A memorial service for Floy was to be held at a later date. Floy Shaeffer (11/19/1947 - 2/17/2020) Arrangements were entrusted to Davenport Family Funeral Floy Shaeffer (nee Lambertson), died on February 17, 2020 Home and Crematory, Barrington. For information, please in Lawrence, Kansas. Floy was born on November 19, 1947, call the funeral home at 847-381-3411 or visit www.daven- the youngest child and only daughter of Ruth and Alonzo portfamily.com where friends may leave an online condolence Lambertson of Fairview, KS. Floy was a member of the Dela- message for the family. ware Baptist Church in Fairview, and of its choir. She attend- ed Fairview schools, graduating from FHS in 1965, and from the University of Kansas in 1969. She spent her junior year at the University of Bristol in England.
54 The Journal of the Kansas Bar Association Appellate Decisions
All opinion digests are available on the KBA website at www.ksbar.org/digests. We also send out a weekly newsletter informing KBA members of the latest deci- sions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and communication services at [email protected] or at (785) 234-5696. For the full text of opinions, access the courts’ website at www.kscourts.org Kansas State Supreme Court that dishonesty cannot be corrected by probation alone. The Attorney Discipline hearing panel recommended that Kupka be suspended for two years, but that she be returned to active practice after TWO-YEAR SUSPENSION serving six months of the suspension, with a two-year term of IN RE LAUREL R. KUPKA probation to follow. NO. 122,053—FEBRUARY 28, 2020 HELD: The panel’s factual findings and conclusions of law FACTS: A hearing panel determined that Kupka violated were deemed admitted. The court agreed that a two-year sus- KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (com- pension was the appropriate discipline. Kupka will be allowed munication); 4.1(a) (truthfulness in statements to others); to apply for reinstatement after completing nine months of 8.4(c) (engaging in conduct involving dishonesty, fraud, de- the suspension. A minority of the court would have required a ceit, or misrepresentation); 8.4(d) (engaging in conduct preju- longer period of suspension before applying for reinstatement. dicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law). The charges arose after Kupka expanded her law practice ORDER OF DISBARMENT to include domestic cases while also taking on extra duties IN RE BRENT E. MAYES after other attorneys at the firm resigned. Kupka’s workload NO. 27,058—MARCH 18, 2020 grew even heavier around the time her first child was born, FACTS: In a letter submitted to the Clerk of the Appellate and she lost administrative support. The heavy workload, Courts, Brent E. Mayes voluntarily surrendered his license to combined with a lack of any support, resulted in Kupka feel- practice law in Kansas. At the time of surrender, a complaint ing anxious and depressed. As those conditions worsened, was pending. Mr. Mayes self-reported violations of KRPC 1.1 Kupka failed to adequately represent clients. She did not file (competence), 1.4(a) (communication), 1.8(e) (conflict of in- things despite saying that she did, she altered documents in terest), and 8.4(c) (misconduct). an attempt to make them look file-stamped, and she falsified HELD: The court accepted Mr. Mayes’s surrender and he judge’s signatures. Kupka also failed to communicate with is ordered disbarred. clients, and when she did speak with them, she lied about the status of their cases. TWO-YEAR SUSPENSION HEARING PANEL: Kupka self-reported her misconduct, IN RE DANIEL VINCENT SAVILLE in addition to another complaint being filed. She fully coop- NO. 121,050—MARCH 6, 2020 erated and admitted to the misconduct. The hearing panel FACTS: Saville stipulated that he violated KRPC 1.7(a) acknowledged that Kupka engaged in dishonest conduct by (2) (conflict of interest). A hearing panel found that Saville cutting and pasting file stamps onto documents and forging also violated KRPC 1.8(e) (providing financial assistance to clerk and judge signatures. But her actions were driven by an client); 3.4(c) (fairness to opposing party and counsel); and overwhelming workload, a lack of supervision or assistance, 8.4(d) (engaging in conduct prejudicial to the administration and depression. She fully admitted her misconduct and co- of justice). Saville engaged in a sexual relationship with a cli- operated with the disciplinary process. The disciplinary ad- ent for over eight years; during the relationship Saville took ministrator asked for a two-year suspension, and that the nude photographs and videos of the client. He also provided suspension be suspended after one year so that Kupka could her with financial assistance. When the client was charged complete a one-year term of probation. Kupka asked that she with a felony, Saville wrote a fee agreement which contem- be allowed to continue practicing under the terms of a proba- plated that he would represent her for free as long as she did tion plan. The hearing panel, however, reiterated its position not get back together with a boyfriend.
www.ksbar.org | April 2020 55 appellate decisions
HEARING PANEL: The hearing panel found numerous ISSUES: (1) Prosecutorial error; (2) jury instructions— conflicts of interest in Saville’s representation of his client. lesser included offenses; (3) Constitutional claims; (4) jury He had a prior disciplinary history after being convicted of instruction—voluntary intoxication; (5) cumulative error; (6) possession of drug paraphernalia, and there was a lengthy, sentencing on-going pattern of misconduct. The panel did acknowledge HELD: Prosecutor’s comments did not fall outside wide mitigating factors, including Saville’s history of drug use and latitude afforded prosecutors, and was not an attempt to ob- emotional problems, and his cooperation with the disciplin- tain a conviction in a manner that offended Becker’s right to ary process. The disciplinary administrator’s office suggested a fair trial. Taken in context, prosecutor’s comments did not discipline of a one-year suspension. Saville requested that direct jury to ignore the plea agreements or to give them no he be allowed to continue to practice, subject to the terms weight in determining witness credibility. Instead, prosecutor of his proposed probation plan. The hearing panel believed was rebutting attacks in defense counsel’s closing argument that probation was not appropriate for the rule violations in regarding a codefendant’s favorable plea agreement. this case. Ultimately, the hearing panel recommended a six- month term of suspension with the requirement that Saville District court did not commit reversible error under K.S.A. undergo a reinstatement hearing before being allowed to 2018 Supp. 22-3414 by failing to instruct jury on lesser in- practice again. cluded offenses of second-degree murder and voluntary man- slaughter. Both instructions would have been legally appro- HELD: Because it was not properly preserved, the Court priate. Even if error is assumed —without deciding—that a makes no finding as to whether an attorney’s payment of bail second-degree intentional murder instruction was factually for a client is a per se violation of Rule 1.8(e). In this case, the appropriate, the error was harmless under facts in this case. undisputed facts show that Saville violated Rule 1.8(e). There And no sudden quarrel factually supported an instruction for was also sufficient evidence that Saville violated Rules 3.4(c) voluntary manslaughter. and 8.4(d) by speaking with a sequestered witness. After con- sidering the recommended discipline and noting that Saville Court considers Becker’s newly raised constitutional claims. refused to accept responsibility of some of the disciplinary Consistent with Beck v. Alabama, 447 U.S. 625 (1980), and counts, a majority of the Court imposed discipline of a two- State v. Love, 305 Kan. 716 (2017), no merit to Becker’s claim year suspension from the practice of law. Saville must un- that the lack of a lesser included alternative required jury to dergo a reinstatement hearing before returning to practice. A render an all-or-nothing verdict in violation of Becker’s due minority of the Court would have imposed the one-year sus- process rights. Also, based on Love and a 6th Circuit Court of pension requested by the disciplinary administrator’s office. Appeals case, district court did not preempt function of jury in violation of Becker’s right to a jury trial. Under facts in this case, district court did not err in failing to instruct jury on voluntary intoxication. Evidence viewed CRIMINAL in light most favorable to Becker establishes methamphet- amine consumption but not intoxication to impair his ability to form the requisite intent. Nor did parents’ unsworn state- CONSTITUTIONAL LAW—CRIMINAL LAW— ments at sentencing hearing establish a level of impairment CRIMINAL PROCEDURE—JURY INSTRUCTIONS— at time of the crime that would have warranted a voluntary PROSECUTORS—SENTENCES STATE V. BECKER intoxication instruction. FORD DISTRICT COURT—AFFIRMED IN PART, No cumulative error in trial having only one assumed VACATED IN PART harmless error. NO. 118,235—FEBRUARY 28, 2020 FACTS: On evidence—including Becker’s confession, Sentencing court’s order of lifetime postrelease supervision jury found him guilty of first-degree premeditated murder. is vacated. District court has no authority to order a term of Sentence included a Hard 25 life prison term and lifetime postrelase supervision in conjunction with an off-grid, inde- postrelease supervision. On appeal, he claimed prosecutor’s terminate life sentence. comments during closing argument regarding plea deals tak- STATUTES: K.S.A. 2018 SUPP. 21-5202(H), 5402(A), en by codefendants was error. Becker also claimed the district -6620(C)(2)(A), 22-3414, -3414(3), -3504, 3504(1), -3601(B) court erred in failing to instruct jury on lesser included crimes, (3), -3601(B)(4); K.S.A. 2015 SUPP. 21-5109(B)(1); K.S.A. and on voluntary intoxication. He also claimed for first time 2014 SUPP. 21-5205(B); K.S.A. 60-2106(C) that failure to instruct on lesser included crimes violated his constitutional rights to due process and jury trial. He claimed cumulative error denied him a fair trial, and claimed the dis- trict court erred in ordering lifetime postrelease supervision.
56 The Journal of the Kansas Bar Association appellate decisions
APPEALS—CONSTITUTIONAL LAW—CRIMINAL LAW— CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUC- SENTENCES—STATUTES TIONS—STATUTES—VENUE STATE V. CARTER STATE V. GALLOWAY SEDGWICK DISTRICT COURT—AFFIRMED; CHEROKEE DISTRICT COURT—AFFIRMED IN PART, COURT OF APPEALS—REVERSED VACATED IN PART, REMANDED NO. 116,223—MARCH 6, 2020 NO. 117,941—MARCH 13, 2020 FACTS: Carter robbed a store using a Taser. Jury convicted FACTS: Galloway sentenced to hard 50 life sentence for her of aggravated robbery. At sentencing, district court found conviction on charges of: premeditated first-degree murder, Carter had used a dangerous weapon to commit the crime, arson, and interference with law enforcement. Prior to trial and marked the box on the journal entry that a deadly weap- she moved for change of venue, arguing she could not receive on had been used to commit a person felony. Sentence includ- a fair trial due to extensive pretrial publicity and the rela- ed registration under the Kansas Offender Registration Act tively small pool of jurors. She also filed motion to suppress (KORA). Carter appealed her conviction and the registration statements she made during interrogation, arguing her lack of requirement. Court of Appeals affirmed the conviction but sleep, low blood sugar, hunger, and pregnancy accompanied reversed the registration requirement, finding Carter did not by gestational diabetes deprived her of the mental capacity use a deadly weapon during the robbery. 55 Kan. App. 2d to make voluntary statements. District court denied both 511 (2018). State’s petition granted for review of the panel’s motions,: On appeal she claimed district court erred by:: (1) registration requirement ruling. denying motion for change of venue without addressing and applying all nine caselaw factors set forth in State v. Longe- ISSUES: (1) Appellate jurisdiction; (2) “deadly weapon”— ria, 301 Kan. 489 (2015), for assessing prejudice under the K.S.A. 2019 Supp. 22-4902(e)(2) venue statute; (2) denying motion to suppress; (3) discussing HELD: Court has appellate jurisdiction over the registra- with counsel and Galloway the answer to a jury question in tion issue under K.S.A. 2019 Supp. 22-3602(a). a closed rather than open court; (4) instructing jury it should find her guilty if the facts supported such a finding; and (5) Phrase “deadly weapon” in K.S.A. 2019 Supp. 22-4902(e) announcing it would not consider the absence of a criminal (2) is interpreted. “Deadly weapon” when used as element of history as a mitigating factor because Legislature had rejected a crime is distinguished from use of that phrase in a nonpu- that as grounds for mitigation. nitive civil regulatory scheme. Under plain meaning of clear statutory language, substantial competent evidence support- ISSUES: (1) Change of venue; (2) suppression of interroga- ed district court’s finding that Carter used a deadly weapon tion; (3) jury question; (4) jury’s duty instruction; (5) mitigat- in committing the robbery. No departure from majority ing sentencing factors of Court’s consistent holdings that a district judge’s deadly HELD: District court’s omission of findings with regard weapon finding under K.S.A. 2019 Supp. 22-4902(e)(2) does to some of the caselaw factors was not error. Galloway did not constitute impermissible judicial fact-finding prohibited not argue all factors to the district court, or for their applica- by Apprendi. tion. Nor did she make a sufficient showing of prejudice for a DISSENT: (Rosen, J.)(joined by Beier, J.): Would hold change of venue. the district court erred in ordering Carter to register under Substantial competent evidence supports district court’s KORA. He first disagrees with majority’s underlying premise finding that Galloway’s statements were voluntary and made that KORA is not a sentencing statute that increases the pun- without coercion, and Galloway makes no showing warrant- ishment for certain convictions, and believes State v. Petersen- ing reversal of the denial of her motion to suppress. Beard, 304 Kan. 192 (2016), was wrongly decided for reasons stated in J. Johnson’s dissent in Doe v. Thompson, 304 Kan. No error found on Galloway’s unsubstantiated speculation 291 (2016). Second, analyzing KORA as sentencing statute, that discussion of the jury question was not conducted in district court’s sentencing pronouncement of “dangerous” open court. weapon did not satisfy KORA, and journal entry box for Galloway’s claim of impermissible interference with jury’s “deadly” weapon had no effect. Third, a deadly weapon find- power of nullification is rejected. Same instruction was up- ing at sentencing would have violated Apprendi. And fourth, held in State v. Patterson, 311 Kan. __ (2020). regardless of whether KORA is punitive or not, State did not District court’s statement incorrectly stated the law, and his produce evidence showing Tasers to be deadly. Majority’s re- open refusal to consider a mitigating factor listed in K.S.A. liance instead on “weight of growing common knowledge of 2019 Supp. 21-6625(a) was not harmless error. Sentence va- Tasers’ danger” is criticized. cated and case remanded for resentencing. STATUTES: K.S.A. 2019 SUPP. 22-3602(A), -4902(E) STATUTES:: K.S.A. 2019 Supp. 21-6625(a),: 22-3420(d), (2); K.S.A. 2011 SUPP. 21-5420, -5420(B)(1) 60-460(f ), K.S.A. 22-2616, -2616(1)
www.ksbar.org | April 2020 57 appellate decisions
APPEALS—CONSTITUTIONAL LAW—CRIMINAL STATUTES: K.S.A. 2018 Supp. 21-5210, -5210(a), -5301, LAW—CRIMINAL PROCEDURE—EVIDENCE—JURIES— -5301(a), -5302(a), -5402(a)(2), -5402(c)(1)(D), -5420, 22- JURY INSTRUCTION—STATUTES 3414(3), -3601(b)(3), -3601(b)(4); K.S.A. 60-405 STATE V. GONZALEZ WYANDOTTE DISTRICT COURT—AFFIRMED NO. 119,492—MARCH 27, 2020 APPEALS—CRIMINAL LAW—CRIMINAL PROCEDURE— FACTS: Passenger (Espinoza) in car driven by Gonzalez EVIDENCE—JURY INSTRUCTIONS shot and killed a man outside a bar. Gonzalez convicted of STATE V. GRAY felony murder, attempted aggravated robbery, and conspiracy SEDGWICK DISTRICT COURT—AFFIRMED to commit aggravated robbery. During trial, district court NO. 117,747—FEBRUARY 28, 2020 refused to compel testimony of Espinoza who had already FACTS: Jury convicted Gray of first-degree premeditat- pleaded guilty and been sentenced for his participation. On ed murder, rape, and aggravated burglary. During trial, he appeal Gonzalez argued: (1) insufficient evidence supported unsuccessfully challenged district court’s admission under the convictions; (2) the attempt and conspiracy convictions K.S.A. 60-455 of evidence of a previous rape. On appeal, ar- were multiplicitous; (3) district court’s aiding and abetting gued for first time that under the identical offense doctrine, jury instruction erroneously lowered the State’s burden of the district court should have sentenced him for intentional proof on specific intent crimes; (4) district court erroneously second-degree murder. Gray next argued the district court permitted Espinoza to invoke Fifth Amendment privilege; (5) abused its discretion in finding evidence of the prior rape State’s peremptory strikes during jury selection constituted was more probative than prejudicial because no juror would purposeful racial discrimination to exclude prospective His- have been able to follow the limiting instruction. Gray fur- panic jurors; and (6) cumulative error denied him a fair trial. ther claimed the district erred in failing to instruct jury on intentional second-degree murder as a lesser included offense ISSUES: (1) Sufficiency of the evidence; (2) multiplicitous of first-degree murder. offenses; (3) jury instruction—aiding and abetting; (4) Fifth Amendment—failure to compel testimony, (5) Batson chal- ISSUES: (1) Newly raised claim; (2) K.S.A. 60-455 evi- lenge, (6) cumulative error dence; (3) jury instruction—lesser included offense HELD: Evidence in this case established the pair’s intent HELD: Gray’s identical offense doctrine claim is not con- to rob the victim and an agreement to commit aggravated sidered. K.S.A. 2019 Supp. 21-6820(e)(3) does not support robbery. Evidence included detective’s testimony, without ob- review because Gray does not challenge the classification of jection, that provided a concrete context to ambiguous text his crime or conviction, and no exception to the preservation messages. rule is utilized. District court’s instruction accurately reflected Kansas’ aid- Jury members are presumed to follow instructions, includ- ing and abetting statute, but did not accurately state appli- ing limiting instructions regarding the admission and use of cable caselaw limiting the statute’s use when defendants are prior crimes evidence. Gray failed to offer any facts or legal charged with aiding and abetting specific intent crimes. In authority to suggest otherwise. this case the legal error was harmless under the clear error Absence of an instruction on second-degree intentional standard. murder as a lesser included offense of premeditated first-de- Multiplicity claim, raised for first time on appeal, is con- gree murder was not clear error. The instruction would have sidered. Gonzalez’ conspiracy and the aiding and abetting been legally appropriate, but even if factual appropriateness attempted aggravated robbery convictions are not multiplici- is assumed, the error was harmless in light of overwhelming tous—each requires proof of an element not required by the evidence of premeditation. other. STATUTES: K.S.A. 2019 Supp. 21-6820(e)(3), 60-455(a), Gonzalez’ failure to make an adequate proffer of what Es- -455(b), -455(d); K.S.A. 2015 Supp. 21- 5402(a)(1), -5403(a) pinoza would have testified about provides no basis for appel- (1); K.S.A. 60-455 late review of whether trial court abused its discretion in not compelling the testimony. CONSTITUTIONAL LAW CONSTITUTIONAL LAW— Jury selection in this case is examined. No abuse of district CRIMINAL PROCEDURE—EVIDENCE court’s discretion in finding Gonzalez failed to show purpose- STATE V. SESMAS ful discrimination given the State’s race-neutral reasons for its SEDGWICK DISTRICT COURT—AFFIRMED peremptory strikes. NO. 119,862—MARCH 13, 2020 FACTS: Sesmas convicted of first-degree murder, kidnap- The single error found in this case does not support applica- ping, and aggravated interference with parental custody for tion of the cumulative error doctrine.
58 The Journal of the Kansas Bar Association appellate decisions
the killing of her friend and the kidnapping of her friends this case because Parker refused to allow detectives to explain newborn daughter. A police certified interpreter assisted Ses- his rights out loud. Overall tenor of the interrogation showed mas during her interrogation. On the Miranda form Sesmas that Parker knew what crime he had committed and how indicated “no” to talking to the police, but after asking ques- he had done it; understood the police were trying to obtain tions about her children and husband, marked “yes” on a sec- incriminating statements from him; played a cat-and-mouse ond Miranda form and confessed to the crimes charged. At a game with interrogators; and understood his rights and how pretrial hearing under Jackson v. Denno, 378 U.S 368 (1964), the interrogation process worked. District court did not err district court found Sesmas voluntarily waived her Miranda when it admitted the interrogation statements. rights and concluded the confession was voluntary, notwith- In line with State v. Campbell, 308 Kan. 763 (2019), and standing court’s concern with the interpreter’s dual role and State v. Wade, 295 Kan. 916 (20120, a voluntary manslaugh- statement that “it could take quite a while for a lawyer to ar- ter instruction would not have been factually appropriate in rive from Wichita.”: On appeal Sesma argued her post-arrest this case with so little evidence of heat of passion at the time confession was involuntary because law enforcement was un- of the shooting and so much evidence of calculated decision- fair in conducting the interview and Sesmas was handicapped making. by her lack of English fluency,: She also claimed the State vio- lated her due process rights at trial by mentioning her invoca- STATUTE: K.S.A. 2018 Supp. 21-5404(a) tion on the first Miranda form of her right to remain silent. ISSUES: (1) Voluntary confession; (2) reference to invoca- CRIMINAL LAW—EVIDENCE—FIFTH AMENDMENT— tion of rights JURY INSTRUCTIONS STATE V. PARKER HELD:: Under totality of circumstances, Sesmas volun- WYANDOTTE DISTRICT COURT—AFFIRMED tarily confessed to detectives, and her incriminating state- NO. 118,349—MARCH 13, 2020 ments were admissible at trial. Use of an interpreter who was FACTS: Parker convicted of premeditated first-degree mur- not also an interrogator would have been better practice, but der. On appeal, he claimed the district court should have in this case the interpreter’s dual role and statement was not a granted motion to suppress self-incriminating statements factor in forcing a confession. made during interrogation because investigators failed to The state is not permitted to impeach a defendant’s version take sufficient steps to ensure that Parker understood his Mi- of events at trial with the defendant’s post-Miranda silence. randa rights. He also claimed district court erred by denying The fleeting violation of Doyle v. Ohio, 426 U.S. 610 (1976), Parker’s request for an instruction on voluntary manslaughter this case was harmless error because Sesmas’ credibility was committed upon a sudden quarrel or in the heat of passion. already throughly impeached by State’s evidence. ISSUES: (1) Motion to suppress; (2) jury instruction STATUTES: None HELD: Substantial competent evidence supported dis- CRIMINAL LAW—EVIDENCE—FIFTH AMENDMENT— trict court’s factual findings which showed Parker’s voluntary JURY INSTRUCTIONS waiver of Miranda rights. Better practice for interrogators to STATE V. PARKER read Miranda summary of rights out loud and make follow- WYANDOTTE DISTRICT COURT—AFFIRMED up inquiries about whether the person being questioned un- NO. 118,349—MARCH 13, 2020 derstands those rights, but that protocol was not possible in FACTS:: Parker convicted of premeditated first-degree this case because Parker refused to allow detectives to explain murder. On appeal, he claimed the district court should have his rights out loud. Overall tenor of the interrogation showed granted motion to suppress self-incriminating statements that Parker knew what crime he had committed and how made during interrogation because investigators failed to he had done it; understood the police were trying to obtain take sufficient steps to ensure that Parker understood his Mi- incriminating statements from him; played a cat-and-mouse randa rights. He also claimed district court erred by denying game with interrogators; and understood his rights and how Parker’s request for an instruction on voluntary manslaughter the interrogation process worked. District court did not err committed upon a sudden quarrel or in the heat of passion. when it admitted the interrogation statements. ISSUES:: (1) Motion to suppress; (2) jury instruction In line with State v. Campbell, 308 Kan. 763 (2019), and HELD:: Substantial competent evidence supported dis- State v. Wade, 295 Kan. 916 (20120, a voluntary manslaugh- trict court’s factual findings which showed Parker’s voluntary ter instruction would not have been factually appropriate in waiver of Miranda rights. Better practice for interrogators to this case with so little evidence of heat of passion at the time read Miranda summary of rights out loud and make follow- of the shooting and so much evidence of calculated decision- up inquiries about whether the person being questioned un- making. derstands those rights, but that protocol was not possible in STATUTE: K.S.A. 2018 Supp. 21-5404(a)
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CONSTITUTIONAL LAW—CRIMINAL PROCEDURE— fair in conducting the interview and Sesmas was handicapped EVIDENCE by her lack of English fluency, She also claimed the State vio- STATE V. SESMAS lated her due process rights at trial by mentioning her invoca- SEDGWICK DISTRICT COURT—AFFIRMED tion on the first Miranda form of her right to remain silent. NO. 119,862—MARCH 13, 2020 FACTS: Sesmas convicted of first-degree murder, kidnap- ISSUES: (1) Voluntary confession; (2) reference to invoca- ping, and aggravated interference with parental custody for tion of rights the killing of her friend and the kidnapping of her friend’s HELD: Under totality of circumstances, Sesmas voluntari- newborn daughter. A police certified interpreter assisted Ses- ly confessed to detectives, and her incriminating statements mas during her interrogation. On the Miranda form Sesmas were admissible at trial. Use of an interpreter who was not indicated “no” to talking to the police, but after asking ques- also an interrogator would have been better practice, but in tions about her children and husband, marked “yes” on a sec- this case the interpreter’s dual role and statement was not a ond Miranda form and confessed to the crimes charged. At a factor in forcing a confession. pretrial hearing under Jackson v. Denno, 378 U.S 368 (1964), The state is not permitted to impeach a defendant’s version district court found Sesmas voluntarily waived her Miranda of events at trial with the defendant’s post-Miranda silence. rights and concluded the confession was voluntary, notwith- The fleeting violation of Doyle v. Ohio, 426 U.S. 610 (1976), standing court’s concern with the interpreter’s dual role and this case was harmless error because Sesmas’ credibility was statement that “it could take quite a while for a lawyer to ar- already throughly impeached by State’s evidence. rive from Wichita.” On appeal Sesma argued her post-arrest confession was involuntary because law enforcement was un- STATUTES: None Kansas Court of Appeals
comply with our mechanic’s lien statutes before that lien Civil becomes enforceable. K.S.A. 2019 Supp. 58-4301 allows a district court to quickly review a lien’s status to determine MECHANIC’S LIENS whether it is fraudulent. Legislative history shows this statute IN RE LIEN AGAINST THE DISTRICT AT CITY CENTER, was enacted to prevent abuses by militias and common-law LLC groups. The quick review is intended to allow an efficient way JOHNSON DISTRICT COURT—REVERSED AND RE- to remove an obviously bogus lien that is being used as a tool MANDED of harassment. The district court improperly equated an in- NO. 121,184—FEBRUARY 28, 2020 valid lien with a fraudulent one. The document filed by KC FACTS: The District at City Center, LLC, hired a con- Steel is recognized by Kansas law, and the district court erred struction company to build a mixed-use development. The by ruling that the lien was fraudulent. The real question is construction company hired Kansas City Steel Werx, Inc. whether KC Steel strictly complied with the mechanic’s lien as a steel and labor subcontractor. Change orders from KC procedures enough to create a valid lien; that is the issue that Steel to the general contractor added approximately $25,000 must be decided on remand. to the cost of the contract. To ensure complete payment, KC Steel filed a mechanic’s lien against the development citing STATUTES: K.S.A. 2019 Supp. 58-4301, -4301(a), unpaid labor and materials of approximately $400,000. The -4301(b), -4301(c), -4301(e), -4302; K.S.A. 60-1102, -1102(a), itemizations filed with the lien included documentation but -1103(a), -1105, -1106, -1108 was incomplete. Instead of challenging the lien as a whole or specific items, the contractor filed a motion claiming the lien WORKERS COMPENSATION was “fraudulent” and asking the court to set it aside. Without AIKINS V. GATES CORPORATION waiting for a response, the district court granted the motion WORKERS COMPENSATION APPEALS BOARD—AF- and removed the lien. KC Steel appealed. FIRMED ISSUE: (1) Ability of the district court to find that the lien NO. 120,905—FEBRUARY 28, 2020 was “fraudulent” FACTS: Aikins was injured in a car accident while leaving work. In May 2018, an ALJ awarded Aikins compensation for HELD: A party asserting a mechanic’s lien must strictly her injuries. One week later, she served Gates with a demand
60 The Journal of the Kansas Bar Association appellate practice reminders
for compensation based on that award. The next day, Gates challenge the adequacy of the SPTP. The SPTP is consistent filed for review with the Workers Compensation Board of Ap- with the statutory criteria of the Sexually Violent Predator peals. Before the Board could decide the appeal, Aikins filed Act and does not shock the conscience. a motion for penalties with the ALJ because Gates had not STATUTES: K.S.A. 2019 Supp. 59-29a06, -29a07(a), yet paid out her award. The ALJ held a hearing and ruled that -29a08(a), -29a08(d), -29a08(f); K.S.A. 60-1501 Aikins was entitled to a penalty payment because Gates had not yet paid as required by K.S.A. 44-512a and had not ob- tained a stay of the judgment. Gates appealed the imposition DRIVERS LICENSE—SEARCH AND SEIZURE of the penalty, arguing that compensation was not yet due STRICKERT V. KANSAS DEPARTMENT OF REVENUE so no penalty could accrue. The Board agreed, and Aikins FINNEY DISTRICT COURT—AFFIRMED appealed. NO. 120,544—MARCH 13, 2020 FACTS: Officer Meinzer stopped Strickert after he left a ISSUE: (1) Whether payment is due such that penalties bar late at night. While obtaining Strickert’s personal infor- could attach mation, Officer Meinzer noticed the smell of alcohol and HELD: K.S.A. 44-512a allows claimants to apply for a civil that Strickert’s eyes were bloodshot and his speech slow. Af- penalty if payments are overdue. In this case, the only issue to ter completing field sobriety tests, Strickert refused to take a determine is whether Aikins’s award was due. Statutes clarify preliminary breath test. Based on clues of impairment and that payment of an award is not due until at least 30 days Strickert’s refusal, Officer Meinzer arrested Strickert. He later after the Board hears the parties’ arguments. There is no stat- received his notice of driver’s license suspension and timely ute which requires the employer to seek and receive a stay of requested an administrative hearing. Both the hearing officer judgment; a stay is only required after payment obligations and the district court affirmed the suspension of Strickert’s have accrued. Aikins was not due any payment until after driver’s license, and he appealed. the Board ruled on Gates’s appeal, and the Board properly ISSUES: (1) Standard of review; (2) reasonable suspicion; reversed the ALJ’s award of penalties. (3) reasonable grounds STATUTES: K.S.A. 2019 Supp. 44-551, -551(l)(1), -551(l) HELD: The appropriate standard is to review the district (2)(A), -551(l)(2)(B), -551(l)(2)(C), -551(p); K.S.A. 44-512a, court’s order looking for substantial competent evidence that -512a(a) the findings were legally correct. It is not appropriate to use the “negative finding” standard of review. Strickert techni- HABEAS CORPUS—MOOTNESS cally violated a traffic statute by not activating his turn signal BURCH V. HOWARD 100 feet before turning, and the Supreme Court has already PAWNEE DISTRICT COURT—AFFIRMED held that such failure provides reasonable suspicion to initiate NO. 120,704—FEBRUARY 28, 2020 a traffic stop. Strickert’s bloodshot eyes and the smell of alco- FACTS: Burch was committed to the Sexual Predator hol warranted an extension of the stop. Substantial competent Treatment Program in 2002. After more than a decade in evidence supports the district court’s findings that reasonable the program, Burch filed a K.S.A. 60-1501 petition which grounds existed for Officer Meinzer to arrest Strickert. raised several concerns. Relevant to this case was his claim STATUTES: K.S.A. 2019 Supp. 8-259(a), -1002(a)(1); that the SPTP does not provide adequate treatment for se- K.S.A. 8-1548, 22-2402(1), 77-621(c) curing an eventual release from the Program. The SPTP op- erated on a leveled system where treatment was provided in phases, and participants gained independence by completing DIVORCE—PROPERTY DIVISION levels. At a hearing before the district court, the evidence IN RE MARRIAGE OF PERALES SALINE DISTRICT COURT—AFFIRMED showed that Burch has not participated in any meaningful NO. 120,306—MARCH 27, 2020 treatment since July 2009. Based on this lack of participation, FACTS: Gary Perales is serving a life sentence in prison. the district court ruled that Burch failed to meet his burden At the time of his divorce from Cynthia Perales, Cynthia was to prove shocking or intolerable conduct and denied the peti- supporting herself and the couple’s four children. Gary did tion. Burch appeals. not complete a property affidavit, but he has been impris- ISSUES: (1) Mootness; (2) adequacy of treatment provided oned since 2012. The district court held a hearing to consider in the SPTP separation of the couple’s property. At the hearing, Cynthia HELD: Although the treatment system is different now provided a quitclaim deed showing that Gary had deeded from when Burch filed his petition, the changes are more the house to her and testified that she needed Gary’s truck style than substance and do not render this appeal moot. Be- to transport herself and their children. Cynthia also testified cause he declined treatment, Burch does not have standing to that she made payments on both the house and truck after
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Gary’s imprisonment. Gary disputed Cynthia’s testimony sufficient evidence for jury to conclude that A.W. had a rea- about the quitclaim deed and claimed that he sold both the sonable expectation of privacy in her bedroom even though house and his truck to his sister. After weighing the evidence, the window blinds were up. Also, Hayes was concealed when the district court ruled that it would be most equitable to he recorded A.W., thus the phone he used was concealed as award Cynthia both the house and the truck. Gary appealed. well. Statute does not require any additional concealment of ISSUES: (1) Award of the house; (2) requirement that Cyn- the recording device. thia compensate Gary District court did not erroneously admit evidence that HELD: There is no evidence that the district court failed Hayes bought a recording device designed to be unobtrusive. to consider the home as marital property subject to division. Hayes failed to preserve this issue for appeal, but even if pre- To the contrary, the district court appropriately considered served, the purchase of a watch that secretly records people the factors established by K.S.A. 2019 Supp. 23-2802(c). A was relevant to whether Hayes secretly recorded A.W.: And division of marital property need only be equitable, not equal. even if issue had been properly preserved and even if receipt There is a statutory requirement that property division may was not relevant, admission of the watch receipt was harm- be accomplished by the payment of a “just and proper sum” less. to one party. In some cases, equity may allow that sum to be District court did not erroneously admit prior bad acts evi- zero. The extraordinary facts of this case mean the district dence. The evidence was admissible to show identity because court’s award of assets to Cynthia was equitable. at time of the rulings Hayes had not admitted that he was the STATUTE: K.S.A. 2019 Supp. 23-2801, -2802(a)(1), one recording A.W. -2802(a)(2), -2802(c) Following established Kansas Supreme Court holdings, dis- trict court did not err by placing “guilty” above “not guilty” on the verdict form. District court did not err in using PIK instruction to in- CRIMINAL struct jury that “[i]f you have no reasonable doubt…, you should find the defendant guilty.”: APPEALS—CRIMINAL LAW—CRIMINAL PROCEDURE— There can be no cumulative error in case with at most one EVIDENCE—JURY INSTRUCTIONS—STATUTES error that was found to be harmless. STATE V. HAYES SEDGWICK DISTRICT COURT—AFFIRMED STATUTES: K.S.A. 2019 Supp. 21-5222(a), -6101, -6101(a) NO. 120,417—MARCH 6, 2020 (6), 60-261, -455; K.S.A. 2014 Supp. 21-6101(a)(6); K.S.A. FACTS: While dark, Hayes used phone to film neighbor 2012 Supp. 21-6101(a)(3); K.S.A. 60-401(b), -404 A.W. through her window in a state of undress. Jury con- victed Hayes of breach of privacy. On appeal he claimed:: (1) insufficient evidence supported the conviction, arguing CRIMINAL LAW—CRIMINAL PROCEDURE—RESTITU- A.W. did not have a reasonable expectation of privacy because TION—SENTENCES—STATUTES STATE V. HENRY her blinds were not closed, and the phone he used to record SEDGWICK DISTRICT COURT—AFFIRMED A.W. was not concealed; (2) district court erred in admitting NO. 119,895—FEBRUARY 28, 2020 evidence of a receipt that Hayes had purchased a spywatch; FACTS: Henry was charged and convicted on one count (3) because he admitted he recorded A.W., identity was not a of felony theft for stealing money from store deposits on 12 material fact thus district court erred in admitting testimony different occasions while employed as armored truck driver. of other neighbors that Hayes had been looking in their win- District court imposed 60 months’ probation and ordered dows; (4) verdict form erroneously placed “guilty” before “not payment of $78,315 in restitution. On appeal Henry claimed guilty; (5) district court erred by instructing jury that you insufficient evidence supported his conviction because the “should” find the defendant guilty if you have no reasonable single larceny doctrine did not apply to thefts that occurred doubt; and (6) cumulative error denied him a fair trial. on 12 separate occasions and each of the individual tak- ISSUES: (1) Breach of privacy; (2) evidence—watch re- ings failed to meet the $25,000 threshold of the felony theft ceipt; (3) evidence - prior bad acts; (4) verdict form; (5) jury charged. He also argued the restitution plan was unworkable nullification; (6) cumulative error because it would take over 43 years to complete, making a HELD: Kansas courts have not addressed the phrase “rea- multidecade term of probation per se unreasonable. sonable expectation of privacy” as used in K.S.A. 2019 Supp. ISSUES: (1) Single larceny doctrine; (2) restitution 21-6101(a)(6). Fourth Amendment is distinguished from right HELD: Henry’s theft conviction is affirmed. The single to privacy. Fact-specific two pronged test is applied, finding larceny doctrine is a rule of evidence and may be invoked
62 The Journal of the Kansas Bar Association appellate practice reminders
whenever the facts warrant it. Disagreement stated with legal pealed. State argued the appeal was not timely filed within 30 conclusion in State v. Ameen, 27 Kan.App.2d 181, rev. denied days of district court’s ruling. 269 Kan. 934 (2000). The doctrine is not only limited to in- ISSUES: (1) Appellate jurisdiction; (2) district court’s juris- stances where multiple misdemeanor takings are charged as a diction; (3) postconviction discovery single felony but also permits multiple instances of felony tak- ings to be charged as a single higher severity level felony. On HELD: State’s jurisdictional hurdle is rejected. District evidence in this case, Henry should have been charged in the court entered its order electronically, with no record in dis- alternative with a lower severity level theft for each separate trict court’s file that court clerk mailed a copy of the order taking, and the jury should have been instructed in the alter- to Mundo-Parra. After that order had been entered Mundo- native on the single larceny doctrine and the elements of each Parra made several requests for a court ruling on his discovery lesser theft for each taking separately, but Henry waived or request, and filed his notice of appeal well within 30 days of abandoned any claims of error concerning the charging docu- district court’s denial of Mondo-Parra’s last request for a rul- ment or instructions. Sufficient evidence supported the key ing. factual determination that Henry’s acts arose out of a single District court had jurisdiction to consider Mundo-Parra’s incriminating impulse or plan. request for postconviction discovery, even though there was District court imposed a workable restitution plan. Henry no pending motion in the criminal case and no pending admitted the monthly payments are workable, and K.S.A. civil action challenging his confinement. There is no Kansas 2019 Supp. 21-6608(c)(7) explicitly allows for a term of pro- statute governing postconviction discovery, and no statutory bation to be extended indefinitely to secure payment of res- limit on district court’s general jurisdiction over it. titution. No provision in Kansas Code of Criminal Procedure covers STATUTES: K.S.A. 2019 Supp. 21-6604(b)(1), -6608(c) postconviction discovery. Kansas cases are reviewed and guid- (7); K.S.A. 2016 Supp. 21-5801(a)(1), -5801(b)(2), -5801(b) ance sought from rules and statutes in federal and state juris- (3), -5801(b)(4) dictions. Panel concludes postconviction discovery sought by the defendant should be allowed when the defendant shows CRIMINAL LAW—STATUTES STATE V. LUCAS it is necessary to protect substantial rights. To get discovery, SEDGWICK DISTRICT COURT—AFFIRMED the defendant must make a good-cause showing by identify- NO. 120,510—MARCH 27, 2020 ing the specific subject matter for discovery and explaining FACTS: Lucas convicted of being a felon in criminal pos- why discovery about those matters is necessary to protect sub- session of a “firearm or knife,” K.S.A. 2017 Supp. 216304(c) stantial rights. Mundo-Parra made no such showing in this (2). The weapon in this case was a folding knife 9 inches long case. Instead, his request is a classic fishing expedition with when unfolded, 5.5. inches long when closed, with a 4.5 in. no stated connection to any claim that could lead to setting blade. Lucas argued the folding knife was not a “knife” as aside either his no-contest pleas or his convictions. defined by K.S.A. 2017 Supp. 21-6304(c)(1). STATUTES: K.S.A. 2019 Supp. 21-2512, 22-3210(d)(2), ISSUE: Statutory definition of “knife” -3212, -3213, 60-1507, -2103(a); K.S.A. 20-301 HELD: District court did not err in concluding the fold- ing knife in this case is a dangerous or deadly cutting instru- ment of like character to those listed in K.S.A. 2017 Supp. 21-6304(c)(1). STATUTE: K.S.A. 2017 Supp. 21-6304, -6304(a)(2), -6304(c)(1), -6304(c)(2)
APPEALS—CRIMINAL PROCEDURE—DISCOVERY— EVIDENCE—JURISDICTION STATE V. MUNDO-PARRA SEDGWICK DISTRICT COURT—AFFIRMED NO. 118,875—MARCH 27, 2020 FACTS: Mundo-Parra convicted in 2005 on no contest pleas to kidnapping and rape. In 2017 while still serving his sentence, he asked prosecutors to provide State’s investigatory files in the case, including anything that might show his in- nocence. District court denied the request. Mundo-Parra ap-
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64 The Journal of the Kansas Bar Association Classified Advertisements
Positions Available civil litigation experience in business, es- Wichita Bar Foundation, and the Wesley tates and trust, family law, personal injury E. Brown Inn of Court. Oversees staff, Attorney Position Available. Arn, Mul- lins, Unruh, Kuhn & Wilson LLP, estab- and other civil matters. Must have Kansas member relations, CLE. Handles finan- lished Wichita law firm seeks associate and/ and Missouri licenses. Great opportunity cial reports, payroll and board minutes. or lateral hire. Minimum two (2) years’ for the right person to learn and grow their Works closely with boards and responsible experience in Civil, Family, Litigation and practice. Please send cover letter and re- for carrying out programs. Experience and General Practice. Attractive benefits, in- sume to [email protected]. leadership skills required. For detailed cluding health insurance, 401(k), disabil- information, see Career Opportunities at ity/life insurance. Please forward resume, Part-Time Legal Assistant. A private law wichitabar.org introductory letter and writing sample(s) firm in Topeka has an immediate opening to: Kris J. Kuhn ([email protected]). for a qualified Legal Assistant processing Workers Compensation Administrative collections. Experience in general office -ad Law Judge. The Kansas Department of La- Attorney Position Available. Young, Bo- ministration required and legal office expe- bor is accepting applications for a Workers gle, McCausland, Wells & Blanchard, a rience is preferred. Only applicants meeting downtown Wichita law firm seeks associ- Compensation Administrative Law Judge specific criteria will be considered; please position in Topeka. Applicants are required ate or lateral hire. At least three years’ ex- contact for duties and requirements. Please perience in civil litigation/general practice to be an attorney regularly admitted to and must be admitted to the Kansas Bar. send resume and cover letter for consider- practice law in the State of Kansas, have at Equal opportunity employer. Competitive ation to the attn. of Alisia at info@probas- least 5 years’ experience as an attorney and benefits, including health insurance. Email colaw.com or via fax (785) 233-2384. must have at least one year of experience resume, introductory letter, writing sample, practicing law in the area of workers com- and salary requirements to Paul McCaus- Shepherd Elder Law Group, LLC is seek- pensation. To apply, please go to www.jobs. land, [email protected]. ing experienced Estate Planning/Elder ks.gov Job ID Number 193714. Law attorney to join its growing practice Crow & Associates, Leavenworth, We are in Overland Park, KS. Qualified candidate Attorney Services expanding our 4-lawyer firm. Opportunity will be able to demonstrate strong dedica- Contract brief and motion writing; re- for attorneys in family law, personal injury tion to elder, estate planning and special search. Experienced attorney with supe- or estate/probate. Send email to Mike Crow needs law and a passion for helping people. rior writing skills, successful track record, at [email protected] or call (913) Requirements: and excellent work history (small and large 682-0166. • J.D. from an ABA accredited law school. firm), available to assist on a contract basis Evans & Dixon, LLC seeks to hire an at- • Licensed in Kansas and/or Missouri or preparing dispositive motions, other mo- torney with strong transactional expertise immediately eligible for admission by Uni- tions, trial court and appellate briefs, plead- for our Overland Park office. We offer a form Bar Examination Score or by recipro- ings, probate/estate planning documents; rewarding work environment with a com- cal admission. also available to assist with legal research. mitment to creating long-term relation- • Minimum of five-years experience. Quality work; flexible. Experience includes ships with our clients by providing excel- • Strong organizational skills. litigation, wills/trusts, probate, debt collec- lent service. Email cover letter and resume • Self-motivated to meet deadlines under tion, bankruptcy, contracts, domestic. Con- to [email protected] pressure. tact Paula McMullen at paulaamcmullen@ • Firm and client confidentiality required. gmail.com, or (913) 940-4521 to discuss. INTRUST Bank N.A. seeks an individual Please email resume and cover letter to Contract brief writing. Former federal law that holds a law degree with emphasis in Es- [email protected]. tate Planning. Trust Advisor is responsible clerk and Court of Appeals staff attorney for the administration and growth of com- available to handle appeals and motions. Wanted. Lawyer with a minimum of 3 Attorney has briefed numerous appeals in prehensive, integrated, multigenerational high years’ experience practice in estate and busi- level trust and wealth accounts. Uses advanced both the Kansas and federal appellate courts. ness law with a desire to become the owner Contact me if you need a quality brief. knowledge to exercise judgment and perform of a central Kansas firm that has a very pre- responsibilities which have a significant effect Michael Jilka, (785) 218-2999 or email dictable gross revenue. The firm limits its [email protected]. on the bank. Establishes work processes for practice to estate planning, probate, trust self and monitors progress to ensure comple- settlement and business planning. Please David P. Mudrick tion of goals as defined by their manager. This , Topeka, is now practic- send your resume to kslawyerrecruit2019@ ing as Mudrick Arbitration & Mediation, level requires the Trust Advisor to be capable of gmail.com. administering multiple account relationships LLC • 785-554-1570 • dmmudrick@hot- with revenue exceeding $1.5 Million. Apply at Wichita Bar Association is seeking an mail.com Mudrick is AV-rated with over intrustbank.com/careers. Executive Director, responsible for the op- 35 years’ experience in employment and la- eration and financial management of the bor law. He is approved by the State of Kan- Overland Park/Corporate Woods Law sas as a Civil Mediator and Teacher Due Firm. WBA, the Sedgwick County Law Library, Jones & McCoy, P.A. seeking expe- the Sedgwick County Law Center, the Process Hearing Officer. Mudrick is past rienced associate attorney with 3+ years of president of KBA Employment Law Sec-
www.ksbar.org | April 2020 65 classified advertisements
tion. Named 2019 Labor Law Management Office Space Available immigrant community in Western Kansas Topeka Lawyer of the year and 2020 Em- for 9 years and have an ample client base. Manhattan Office Space for Rent. Locat- ployment Law Management Topeka Law- Our office is a great source of referrals for a ed in the Colony Square office building in family or criminal attorney as we only prac- yer of the Year. Selected for Best Lawyers in downtown Manhattan. One minute from America in Labor Law Management, Labor tice immigration. Please reply to: erika.jura- the Riley County Courthouse. The available [email protected]. and Employment Litigation. space consists of two offices and an area for a secretary/paralegal. Large reception area and WYCO Office Suite Available Estate & trust litigation. at 134 N. Available to as- kitchen. High speed internet. Open to ei- Nettleton, Bonner Springs, KS 66012. sist you in probate and trust litigation in ther office sharing or “Of Counsel” arrange- 1100-2000 sf. Waiting area, receptionist Kansas, Missouri and other states. www. ment. For more information, all 785-539- area, break room, conference room, large nicholsjilka.com. 9300 or email to [email protected] and small offices, private parking, ADA Ac- cessible. 1.25/sf/mo. Utilities included. For QDRO Drafting. Office Space Available on Ward Parkway I am a Kansas attorney in south Kansas City, Missouri. This is a more information, call (913) 422-1620. and former pension plan administrator with great location for attorneys licensed in MO years of experience in employee benefit & KS. Large suite with 12 offices with two Other law. My services are available to draft your conferences rooms. There are 3 available QDROs, communicate with the retirement offices. Full services provided, including Due to retirement, will sell complete set of plans, and assist with qualification of your phones answered, internet, supplies, and Kansas Reports and Kansas Appellate Re- DROs or other retirement plan matters. Let copier. Contact Kevin Hoop at 816-519- ports. Price negotiable. Will deliver in KC me help you and your client through this 9600 or [email protected]. area. Call 620-215-0236 or technically difficult process. For more infor- email: [email protected] mation call Curtis G. Barnhill at (785) 856- Office for Lease, Corporate Woods. Ap- 1628 or email [email protected]. proximately 300 sf office space available One of a kind walnut 4x8 conference table/desk/Board of Directors table. Four Security Expert Witness. within a working law firm. Convenient lo- Board Certified cation to meet with clients, with access to drawers each side and embossed leather top. Protection Professional and former Senior conference rooms if needed. Comes with all Priced to sell $575 by retiring lawyer. To- Police Commander providing forensic peka location. 785.766.2084. consulting to both plaintiff and defense the amenities of a working law firm; wit- counsel in all areas/venues of security nesses, notaries, fax/copy machine, inter- Retiring due to injuries. I have a complete negligence. A comprehensive CV, impeccable net, phone, etc. On the top floor of a build- set of Kansas Reports and Kansas Appellate reputation and both criminal and civil ing with a fantastic view. Please contact Reports—$1000 OBO. Will deliver in the experience equate to expert litigation support. Tim Winkler at 913-890-4428 or tim@ Topeka area. Contact Robert E. Keeshan, Michael S. D’Angelo, CPP. Secure Direction kcelderlaw.com. Esq., Topeka, KS (785) 554-6187. Consulting, LLC. www.securedirection.net. Ottawa, KS Office Space for Rent- 950 (786) 444-1109. [email protected] sq. ft. for business office. Reception area, Social Security Disability Services. Your conference room, 4 private rooms, loft area clients that are dealing with serious injuries for storage, kitchenette, back storage area, or illness may have a claim for Social Secu- restroom. $600/month Please call (785) rity disability. We have lots of experience, 893-0494 for more information. The loca- get good results, and we are ready to help tion is 110 W 3rd St, Ottawa, Kansas. Pic- and to augment your reputation. If you have tures available upon request. questions, let’s talk. Our practice is limited Overland Park- Offices for Rent. Law of- to Social Security disability. We can travel fices located in Old Downtown Overland anywhere in Kansas, Missouri, Nebraska or Park, in remodeled historic building. In- Colorado. Contact: Pat Donahue at Western cludes: free parking, reception area, kitch- Law (785) 832-8521 or [email protected]. en, conference room, fax, scanner, copier, Veterans Services. Do you want to better phones, voicemail, and high speed internet serve your veteran clients without going to access. The offices are in walking distance the trouble of dealing with the VA? I am of coffee shops, restaurants and retail stores. a VA-accredited attorney with extensive ex- More than fifteen highly respected attor- perience applying for various VA benefits, neys in an office-sharing/networking -ar including Improved Pension. I regularly rangement. For more information contact consult with attorneys (and their clients) James Shetlar at 913-648-3220. about the various services attorneys can of- fer their clients to help qualify veterans and Professional Office Spacefor lease. The their families for various VA programs. As available space consists of one to two offices soon as a client is in position to qualify, I and an administrative staff bay, in a larger of- can further assist by handling the entire ap- fice building. No cost use of reception area, plication to the VA for you. For more in- conference rooms, and high-speed internet. formation about my various consultation Located in southwest Topeka. Competitive and application services, please contact the rent. For more information, call 785-235- Law Office of Scott W. Sexton P.A. at (785) 5367 or write Law Office, P.O. Box 67689, 409-5228. Topeka, KS 66667. WANTED: Due to retirement, candidate Seeking Office Space: Bilingual Immigra- needed for Sumner County Attorney. Ex- tion attorney with over 10 years of experi- perience preferred. Financial backing and ence, looking to rent a conference room community support is present. Contact or office once or twice a month in Garden Mike Brown at 316-777-1186 or elder- City, Kansas. No services needed other than [email protected]. a place to meet clients. We have served the
66 The Journal of the Kansas Bar Association REBEIN BROTHERS TRIALT RIAL LAWYERS
I am handling serious injury cases across the state, many of which come from other lawyers. I appreciate your confidence and friendship and would be happy to discuss any truck, car or significant injury case. Let’s work together, I pay referral fees where appropriate.
DAVID REBEIN Kansas Trial Lawyer
www.ksbar.org | April 2020 67 (620) 339 - 4105 • www.rbr3.com • [email protected] A TRADITION OF SUCCESS
Scott E. Nutter
Matthew E. Birch
Lynn R. Johnson Victor A. Bergman David R. Morantz
OUR EXPERIENCE PAYS 816-474-0004 www.sjblaw.com We have a long history of success inside and outside 2600 Grand Boulevard, the courtroom. For over 40 years, we have maximized Suite 550 the value of cases referred to our firm and we will Kansas City, MO 64108 continue to do so into the future. If you have a client with a serious injury or death, we will welcome a referral or opportunity to form a co-counsel relationship.
The choice of a lawyer is an important decision and should not be based solely on advertisements.