~ II

Ii UTAH BAR JOURNAL Vol. lLNa. 2 March 1998

;i ~ ~ il

l: il

11

.,1l Utah Honors It's First "i d Hundred Women Attorneys ~l

1872-1976 II

Video Trial Exhibits 10 ~ Provisional License for New Bar Admittees

Not the Answer 15 '\1 Tracking Damages From a Personal Injury 17 Remarks of Chief Justi'Ce Michael D. Zimmerman Before First 100 Dinner of Utah State Bar i: 27

'i il il .. '" t\~ .. --

1\

1

Westlaw is the source you can trust for unsurpassed news and business information.

In today's competitive world, there's more Dow Jones Newsetrieval'" source on WESTIW, have WESTIW automatically run a search as oftn infOlmation to stay on top of than ever before. there are 24 percent* more top 100 U.S. newspapers as you like. And automatically deliver the result.

You can tlUst in WESTIAW'" for the quality than on NEXS:" Top industiy publications, newsres It's no wonder that you can trust in WESTIAW sources you need to track your clients or company and intemational sources. As well as exclusive to take you further. in the news. Follow hot issues in key industries. same-day coverage of The Wall Stl'eetjournal:" L¡iarn. 110re ~boutthetoi) And develop your facts more fully. You can also tap into DIAOG'" on WESTIW sources on \'iSTIAW. Call '\'4 ~'í . r&l That's because among the thousands of sources for expert topical coverage. Or even 1-800-328-9963. (B

ww.weslpub.com . Research verification dale 9- i -96 (Ç i 996 West Publishing 7.9349.3/9.9616615331 1.350.049.5

I i øI Utah D UTAH BAR JOURNAL Published by The Utah State Bm- 645 South 200 East Salt Lake City, Utah 84111 Vol. 11 NO.2 March 1998 Telephone (801) 531-9077 www.utahbar.org VISION OF THE BAR: To lead society in the creation of ajustice system Bar Journal Committee and Editorial Board that is understood, valued, respected and accessible to alL. Editor MISSION OF THE BAR: To represent lawyers in the State of Utah and Calvin E. Thorpe to serve the public and the legal profession by promoting justice, profes- Associate Editors sional excellence, civility, ethics, respect for and understanding of, the law. William D. Holyoak Randall L. Romrell Articles Editors President's Message...... 5 Christopher J. Burke Blain H. Johnson Annual Bar Awards: Opportunity for Celebration Lee S. McCullough by Charlotte L. Miler Letters Editor Victoria Kidman Commissioner's Report Views from the Bench Editors It's Time for Lawyers to Teach Civics 101 ...... 7 Judge Michael L. Hutchings by Fran Wikstrom G. Kevin Jones Lorena P. Riffo Legislative Report Editors Video Trial Exhibits...... 10 Lisa Watts Baskin by John Fay Heather Miller Case Snmmaries Editors GlenA. Cook Provisional License for New Bar Admittees Not the Answer...... 15 J. Craig Smith by Stephen iv Owens Daniel M. Torrence

Book Review Editors Tracking Damages From a Personal Injury...... 17 Betsy L. Ross Penni ann J. Schumann by Mark J. Gregersen & James A. Shore "How to . . ." Editors David Hartvigsen Remarks of Chief Justice Michael D. Zimmerman Lisa M. Rischer Annalisa A. Steggell Before First 100 Dinner of Utah State Bar ...... 27 Judicial Profies Editors Brett J. DelPorto State Bar News ...... 29 Angelle H. Frehner Derek P. Pullan Jennifer L. Ross The Barrister ...... 47 ADR Editor by Heather J. Dunn Cherie P. Shanteau Law and Technology Editors Case Summaries ...... 49 Bruce R. Findlay by Glen A. Cook Mark J. Gregersen Young Lawyer Representatives Mark C. Quinn Utah Bar Foundation ...... 51 Cathy E. Roberts Peggy E. Stone CLE Calendar ...... 52 Committee Members Suchada P. Bazzelle David W. Brown Classified Ads ...... 53 Tamra Cole David B. Erickson Andrea J. Garland H. Craig Hall COVER: Utah Honors It's First Hundred Women Attorneys 1872- i 976. Honored Sandra K. McDonald January 14, 1998. Photo couitesy of Busath Photography Laurie 1. Sartorio Kimberly J. Smith Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published Denver Snuffer on the cover of the Utah Bar 101/nial should contact Randall L. Romrell, Randle, Deamer, Zarr, Romrell & Lee, David R. Ward P.c., 139 East South Temple, Suite 330, Salt Lake City, UT, 84 i i i - 1169, 53 i -0441. Send a slide, transparency or Judge Homer F. Wilkinson print of each scene you want to be considered. John C. YnchaustI The Utah Bar Journal is published monthly, by the Utah State Bar. One copy of each issue is furnished to members as part of their State Bar dues. Subscription price to others, $40; single copies. $4.00. For information Bar Commission Liaison on" advertising rates and space reservation, call or write Utah State Bar offices. D. Frank Wilkins Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publi- Bar Staff Liaison cation of advertisements is not to he considered an endorsement of the product or service advertised. Maud C. Thurman Copyright rD i 998 by the Utah State Bar. All rights reserved.

Marc/¡ /99R 3 b , LETTERS-- Letters Submission Guidelines: r------, Interested in 1. Letters shall be typewritten, double State Bar, the Board of Commissioners or spaced, signed by the author and shall not any employee of the Utah State Bar to civil Writing an exceed 300 words in length. or criminal liability. 2. No one person shall have more than one 6. No letter shall be published which Article for the letter to the editor published every six months. advocates or opposes a particular candidacy 3. All letters submitted for publication for a political or judicial office or which Bar Journal? shall be addressed to Editor, Utah Bar contains a solicitation or advertisement for a Journal and shall be delivered to the office commercial or business purpose. The editor of the Utah Bar of the Utah State Bar at least six weeks 7. Except as otherwise expressly set forth Journal wants to hear about the prior to publication. herein, the acceptance for publication of let- topics and issues readers think 4. Letters shall be published in the order ters to the editor shall be made without in which they are received for each publi- regard to the identity of the author. Letters should be covered in the magazine. cation period, except that priority shall be accepted for publication shall not be edited given to the publication of letters which or condensed by the Utah State Bar, other If you have an article idea or reflect contrasting or opposing viewpoints than as may be necessary to meet these would be interested in writing on on the same subject. guidelines. a particular topic, contact the edi- 5. No letter shall be published which (a) 8. The Editor, or his or her designee, shall tor at 566-6633 or write, Utah contains defamatory or obscene material, promptly notify the author or each letter if Bar Journal, 645 South 200 East, (b) violates the Code of Professional Con- and when a letter is rejected. Salt Lake City, Utah 84111. duct, or (c) otherwise may subject the Utah L______~

Code-Co's Internet Access to Utah Law http://www.code-co.com/utah With a computer and a modem, eveiy member of your firm can have unlimted access to ~ The Utah Code ~ The most recent Utah Advance Reports ~ The Utah Administrative Code ~ The Utah Legislative Report and Code-Co's NEW ~ Legislative Tracking Service

. Always current . No "per minute" charges . Much lower cost than an "on-line" service . . FULL TEXT SEARCHING.

Preview on the Internet at: htt://ww.code-co.com/utah. get a FREE TRIAL PASSWORD from Code-Co* at E-mail: admin(fcode-co.com SLC: 364-2633 Provo: 226-6876 Elsewhere Toll Free: 1-800-255-5294 *Also ask about customer Special Package Discount

4 Vol. II No.2 . I .

Annual Bar Awards: Opportunity for Celebration

By Charlotte L. Miller

not the final recipient. PRO BONO LAWYER OF THE YEAR One of onthe the best Bar aspectsCommission of serving is cele- When nominating individuals, provide 1996 Mary Margaret (Peggy) Hunt brating the contributions and achievements specific information about the person's con- 1995 Vinh K. Ly of colleagues. In April, the Bar Commis- tributions. Nominations that simply state 1994 Nelda M. Bishop sion will be selecting the recipients of the that a person has been a good lawyer, has 1993 James C. Lewis and annual awards to be presented at the annual represented the poor, or has been a good L. John Lewis meeting. I encourage each of you to nomi- judge, are not very helpfuL. Instead, tell a 1992 Betsy Ross nate at least one person for an award this story about the person, about a particular 1991 James Haisley/Roger Moffitt year - and it would be great if you nomi- case or a particular contribution that was nated a person in each of the categories. meaningfuL. The latter has far more impact. DISTINGUISHED LAWYER

There are many benefits to nominating The criteria and the list of awards are OF THE YEAR individuals for awards. Nominating a col- published in this Bar Journal, and the due 1997 Gayle F. McKeachnie league allows you to focus on the date for submissions is April 1, 1998. To 1996 Dale A. Kimball colleague and discover information about help give you ideas about whom to nomi- 1995 Gordon L. Roberts him or her. It allows you to share that nate, I have listed below some of the 1994 Joseph Novak information. I have told the Commission recipients in each category. 1993 William B. Bohling members that when we discuss nominees 1992 Hardin A. Witney for awards we should spend time relishing JUDGE OF THE YEAR 1991 Herschel 1. Saperstein in their accomplishments, that we should 1997 Hon. W. Brent West 1990 Brian R. Florence remember the accomplishments, and make 1996 Hon. Leslie A. Lewis 1989 Randon W. Wilson a point of letting others know about the 1995 Hon. J. Thomas Greene 1988 Ellen M. Maycock accomplishments of their colleagues. Even 1994 Hon. John A. Rokich those who are not selected as recipients 1993 Hon. Bruce S. Jenkins YOUNG LAWYER OF THE YEAR should be told "thank you" and "good job" 1992 Hon. Michael Murphy 1997 Jensie L. Anderson for their service. Nominations also allow 1991 Hon. Cullen Y. Christensen 1996 Kristin G. Brewer you to honor a colleague simply by nomi- (From 1986 to 1990 awards were presented 1995 Hon. Kimberly K. Hornak nating him or her. I have found that people to Appellate, District, Circuit and Juvenile 1994 Colleen Larkin Bell who are nominated are often quite touched judges of the year.) 1993 Gregory G. Skordas by the nomination - even when they are 1992 Gordon K. Jensen

March /998 5 1991 Elizabeth A. Dalton DISTINGUISHED NON-LAWYER FOR SERVICE TO THE PROFESSION DISTINGUISHED 1997 Margaret R. Bird XPERT SECTION/COMMITTEE 1996 Sherianne S. Cotterell "WEDICALESTIMONY 1997 Young Lawyers Division - 1994 Ray Westergard Daniel D. Andersen 1993 Lyle K. Campbell · Credible Experts 1996 Needs of Children Committee 1992 Stanley B. Bonham All physicians are board-certified. Most are medical school faculty 1991 Norma W. Matheson - Carolyn B. McHugh members. Unauthorized Practice of Law Committee- PRO BONO LAW FIRM OF THE YEAR · Selection of Experts Within 90 minutes of talking G. Steven Sullivan 1990 Parsons, Behle & Latimer with Dr. Lerner we will fax the 1995 Litigation Section - 1989 Fabian & Clendenin proposed specialist's curriculum Ross C. Anderson 1988 Edwards & McCoy vitae and retainer agreement for 1995 Delivery of Legal Services 1987 Jones, Waldo, Holbrook review. Committee - Keith A. Kelly & McDonough · Plaintiff or Defense 1994 Ethics Advisory Opinion Time is not an abundant commodity for Since 1975 our multidisciplinary group of medical specialists (MD, , Commttee - Gary G. Sacket any of us, but please take some time to cele- DDS, DPM, OD, OTR, PharmD, 1993 Litigation Section - brate your colleagues' contributions and to Wiliam Bohling honor them. Do not use as an excuse an PhD, RN and RP) have provided services to legal professionals. Legislative Affairs - assumption that the award process is closed David R. Bird and pre-determined. It is a very open DR. STEVEN E. LERNER 1992 Ethics and Discipline process, but to assure its effectiveness you & ASSOCIATES Committee need to participate. I look forward to seeing 1..800..952..7563 1991 Family Law Section your nominations. Visit our web site at http://www.drlerner.eom

,j ~i

CALLISTER NEBEKER & McCULLOUGH í î ANNOUNCE WITH PLEASURE THAT l ~ RICHARD T. BEARD , f AND ~

PAUL H. SHAPHREN t l HAVE BECOME PARTNERS IN OUR FIRM .. ~ ~ !; t~ AND THAT r' tj ¡R JEANENE F. PATTERSON f ~ HAS BECOME ASSOCIATED WITH OUR FIRM ./ ~j .. ~ø THEY CONTINUE TO CONCENTRATE IN CORPORATE, i ' - \' BUSINESS AND FINANCE LAW ..

JANUARY 5, 1998 GREAT IDEA!

GATEWAY TOWER EAST, SUITE 900 Advertising in the Utah Bar Journal is 10 EAST SOUTH TEMPLE a really great idea. Reasonable rates SALT LAKE CITY, UTAH 84133 and a circulation of approximately TELEPHONE: (801) 530-7300 6,0001 Call for more information. FACSIMILE: (801) 364-9127 Shelley Hutchinsen · (801) 486-9095

6 Vol. 11 NO.2 ri

It's Time for Lawyers to Teach Civics 101

By Fran Wikstrom

In the meantime, a lot can be gleaned teachers. Every time we get an opportunity to Recentlyico thecommissioned State Bar an of opinion New Mex- poll from the results of the first survey. It turns speak to a group, to write an article, or to on the public's perception of lawyers and out that much of the public's negative view talk to a neighbor over the back fence, we the legal system. The results are not pretty! of lawyers and the legal system is fueled by should look for an opportunity to correct A majority of the respondents have nega- misperceptions of what occurs in the system the misperceptions and misunderstandings tive feelings about lawyers and the court and some fundamental misunderstandings of of our fellow citizens. system. They believe that the system is too the way the system is designed to work. For We need to teach them that our Bill of slow, too expensive, too adversarial and not example, a large percentage of the respon- Rights is not a list of "technicalities." fair. They feel that the legal system does dents were critical of lawyers and courts for These fundamental rights protect all of us not treat them with respect. allowing criminals to go free on technicali- from being subjected to a police state. We Lawyers fared even worse. The respon- ties. They also believe that courts are too need to patiently explain that most police dents had a very low opinion of the lenient in sentencing. officers play by the rules and most defen- honesty and ethics of lawyers in general, These results are consistent with what dants end up being convicted and although they were very positive about most of us have experienced. How many punished. We must explain why it is better their own lawyers. Thirty-four percent times have we heard the entire criminal jus- that an occasional criminal go free than to don't like lawyers and forty-five percent tice system castigated because of the 0.1. have innocent citizens subjected to war- would not want their son or daughter to Simpson debacle? How many times have rantless searches. become a lawyer. people asked us: "How can a lawyer repre- Similarly, the word needs to get out that It is a novel thing for the bench and bar sent someone she knows to be guilty?" the vast majority of convicted criminals are to commission a poll of consumers of legal Unfortunately, most people's perceptions of not being treated leniently. In fact, judges services. Too often we fall into the trap of lawyers and the legal system are shaped by are sending so many people to prison that thinking that the legal system exists to media reports of aberrant cases and dramati- most states are running out of places to put serve the needs of the professionals within zations ranging from "LA Law" to "Ally them. The number of persons incarcerated it. New Mexico will follow up with sur- McBeal." No lawyer toiling in the trenches in the country has never been higher. veys of recent litigants to obtain more can recognize himself or herself in these TV While we're at it, we need to throw in a specific information on how the system depictions or in the latest John Grisham noveL. little high school civics. People need to met their needs. Trade-off questions will But, the public doesn't know that. If they understand that our adversarial system of also be asked to determine whether people ever learned about the American legal sys- justice requires that there be vigorous are wiling to sacrifice thoroughness for tem in high school civics, certainly they advocates on both sides. This includes people faster, cheaper litigation. One of the goals have long ago forgotten it. who are charged with crimes. The system of the studies is to identify ways in which What can we do about it? Quite a bit, does not break down when criminal defen- the legal system may be reformed. actually. It is time for all of us to become dants are well represented. To the contrary,

March 1998 7 it works best under those circumstances. The O.J. Simpson trial was an aberration; it should not define the system. With approximately five thousand lawyers in this state, we should be able to UTAH LAW AND JUSTICE CENTER get the word out pretty well. Before long 645 SoUTH 200 EAST · SALT LAKE CITY, UTAH 84111 we might hear people say in response to criticism of the legal system: "That's not the way it is. I spoke to my friend Sue who QUALITY MEETING SPACE is a lawyer and she told me . . . ." But this AVAILABLE FOR PROFESSIONAL, Civic AND COMMUNITY ORGANIZATIONS wil never happen if we complacently sit by and allow misperception and misunder- THIS MODERN FAClLÍTY PROVIDES ANY STYLE OF SEATING standing to determine public opinion. ARRANGEMENT AND FEATURES: A final word about respect. Odd how respect is a two-way street. We can hardly complain that the public has no respect for REASONABLE RATES PERSONAL ATIENTION us if we show them little respect. All of us, lawyers, judges and court staff, need to CENTRAL DOWNTOWN LOCATION FREE ADJACENT PARKING treat litigants with more respect. For starers,

we need to be considerate in scheduling, AUDIO - VISUAL EQUIPMENT REGISTRATION AREA we need to answer their questions, we need to explain the process and we need to define COMPLETE CATERING DAY OR NIGHT technical language. Instead of focusing on individual annoyances, we must remember that without these consumers of legal ser- vices, we would have no clients and no FOR INFORMATION AND RESERVATIONS, CONTACT: cases. In short, we would be out of business. THE UTAH LAW AND JUSTICE CENTER COORDINATOR (801) 531-9077

A NEW BOOK BY A UTAH LAWYER THE LATE MARVIN ). BERTOCH

The jury system and the basic concepts of modern law werefounded i I on principles first practiced in the Golden Age of Greece during the fifth century B.C.

Modern Echoes from Ancient Hills describes the most famous Athenian trials, including the trial of Aspasia, the trial of Socrates, the "topless" trial of Phryne, and the impeachment of Pericles.

This fascinating 205-page hardback book with ilustrations, bibliography, and index is indispensable for a lawyer's library.

Price is only $15.95 and your satisfaction is guaranteed.

This book is available at Sam Weller's Books in Salt Lake City, or

(with NO postage or handling charges) you can call and place an order at 801-280-6979, or FAX your order to 801-280-6979. Your book with an invoice wil be sent the next day. Or to prepay simply make check or money order for $15.95 and send to: FREETHINKER PRESS 1716 SOUTH WRIGHT COURT SALT LAKE CITY UT 84105-2914

8 Vol. 11 No.2 r Exploe Integrated Legal Research Power

You tap into a proven system of legal information when you choose West Group products.

The merger of the West Group companies-Bancroft-Whitney, Clark Boardman Callaghan, Lawyers Cooperative Publishing and West Publishing-allowed us to assemble the legal profession's most respected tools into a powerful integrated research system.

The flexibilty of this integrated system lets you research your way-on WESTIW"', on CD-ROM or using books-moving between sources quickly and easily. Start wherever you want, the

system links you directly to a complete library of state, federal and topical legal information.

With a library of interrelated tools from West Group, you save time, you save energy, and you find the information you need quickly. And West Group Customer Service offers you unparalleled service and support.

Explore the power of the best legal research system anywhere. ~ WEST GROUP For complete details, . Bancrofi-Whitney. Clark Boardman Callaghan call 1-800-762-5272. lawyers Cooperalive Publishing . WESTLA~. Was! Publishing Please provide OFFR NUER 814254.

(Ç 1998 West Group 9-9754-2/1-98 1814541 --

Video Trial Exhibits

By John Farell Fay

of motion pictures they are admissible to More oftenstakes these are high, days trial when attorneys the the same extent as photographs. Roberts v. try to persuade the jury with computer Stevens Clinic Hosp. (w. Vir. 1986) 345 videos attempting to recreate or simulate S2d 791, 796 Cisarik v. Palos Comm. what actually happened or with plain Hosp. (Il 1991) 579 NE 2d 873, 875. In videos to help portray how their clients' Utah, "photographs include still pho- injuries severely impact their every day tographs, X-ray films, video tapes, and lives. (Note: It is interesting to note that motion pictures." URE, Rule 1001(2) day in life videos are the plaintiff's trial Admission of these videos however, is weapon yet, historically such videos are not without formidable contest. Defense the birth child of the surveilance film long counsel wil object to the video, charging used by the defense bar to show malinger- that it is inflammatory and unduly prejudi- ing plaintiffs.) ciaL. Plaintiff's counsel will offer that while the scenes are unpleasant, so are the DAY IN THE LIFE AND plaintiff's injuries. Plaintiff's counsel SURVEILLANCE VIDEOS: should argue that what it portrays is the Attorneys representing seriously plaintiff's "real" life and thus, it accurately impaired and disabled clients will often JOHN F FAY is an experienced civil trial liti- shows his dependencies, physical limita- want to introduce videos that portray a gator practicing in Salt lake and Park City. He tions and frustrations. Since it is "real", it "day in the life of" their clients. Such has presented hundreds of personal injury can't be "unduly" prej udicial. Finally, videos can be highly effective in demon- claims in arbitration. He writes and lectures counsel should argue that the video is nec- on personal injury, insurance bad faith, trial strating the day to day difficulties and work and arbitration. He recently wrote a essary for the jury to fairly assess the challenges plaintiffs must endure with even comprehensive text, "Arbitrating Personal plaintiff's continuing pain and suffering the most taken-for-granted tasks, e.g., get- Injury Claims" published by Wiley & Sons. He and hom this, determine what is adequate ting in and out of bed or a chair, bathing authored a chapter; "Maximizing Damages in compensation for him. and dressing, using the bathroom, negotiat- Small Personal Injury Cases" in the Insur- Exclusion prejudice means more than ing stairs, etc. They can portray how the ance Settlement Handbook published by the James Publishing Group. He received his B.S. the expected damage or prejudice done to plaintiff now interacts with his family and from Merrimack College and his 1. D. from the adversary's claim or defense through other loved ones and can show the extent Western State University. He is a member of introduction of the video. Exclusion preju- of his daily medical needs all leading to a the Utah and California bars and tries cases dice means any, "undue tendency to suggest greater understanding of the reality of the in both jurisdictions. He is a member of the a decision on improper grounds." Leonard burdens of his present life. In many cases Association of Trial Lawyers of America and the Utah Trial Lawyers Association where he v. Nichols Homeshield, Inc., 384 PA i; 557 the video wil show how the plaintiff has sits on their Board (~f Governors. He sat as a A2d. 743. It is argued that day in the life been forced to modify his home to accom- judge pro-temp for the Los Angeles Superior videos generate too much sympathy for the modate his injuries. Thus, day in the life Court and he has served as an arbitrator for plaintiff. Exclusion prejudice has been videos enable the jury to compare the the LA Superior Court and the LA and Salt defined by other courts to include a video plaintiff's lifestyle with that of a compara- Lake Districts of the American Arbitration Association. which "serves little purpose other than to ble, non-disabled person. Such videos are create sympathy for the plaintiff." Bannis- valuable when you have an unsophisticated ter v. Town af Noble, (10th Cir. 1987) 812 ,I client who is unable to verbally paint a pic- statement, and always during closing argu- F.2d 1265, but this same court said ,"the ture of his impairments and how they ments, plaintiff can use still photographs possibility that a film will be prejudicial is disable him. Such videos are near essential from the video to effectively make his significantly reduced when the subject of for the client too ill to come to court. points. This permits counsel to focus on a that film can be cross examined at triaL." Hence, the video will aid the jury in deter- particular injury or disability depicted in the Id. (f 1270. Clearly, being unavailable for mining the nature and extent of plaintiff's "day in the life" video. cross-examination is a problem for plain- injuries, impairments and attendant disabil- The general rule governing the admissi- tiffs too il to come to court. Here, plaintiff ities. With permission during opening bility of videos is that since they are a form will need to present a knowledgeable nar-

10 Vol. J1 No.2 rator to authenticate the video. dence to prove the truth of the matter screaming in pain while undergoing ther- Courts are legitimately concerned that a asserted." A "statement" is defined as the apy is to invite exclusion as too prejudicial video which generates great sympathy for "nonverbal conduct of a person if it is even when the screams were reaL. Avoid the plaintiff may improperly lead the jury intended by the person as an assertion," prejudicial backgrounds in the video. In to determine the liability issues against the URE, Rule 801. This hearsay objection, one case a crucifix was shown above the defendant. Aware of this danger, one way however, has been defeated by courts that plaintiff's bed; the court found this courts have found to admit a highly preju- hold the videos, "are offered to illustrate the improper. To avoid the objections of self- dicial video is to keep it from the jury until plaintiff's testimony" regarding his injuries. serving audio and a lack of opportunity for liability has been established. Grimes v. As such "it is not offered to be an assertion, cross-examination, do not question the Employer Mut. Liabilty (US DC, Alaska, nor to prove the truth of any matter plaintiff on film. 1977) 73 F.D.R. 607, 610. Here plaintiff asserted." Accordingly, it should be treated An effective narration can be tremen- asks for a bifurcated trial or a directed ver- as a photograph. Strach v. St. John's Hospi- dously important. Generally, it seems best dict on liability after he puts forth all his tal, (Mich. App. 1987) 408 NW2d 441,453. to use a nurse, doctor or the spouse of the liability evidence. On occasion, the exclu- "It is not hearsay. It is demonstrative evi- plaintiff to narrate and authenticate the sion of a video is affirmed as too dence that plaintiff offered to illustrate and video. The video will have no audio but at prejudicial in a jury trial but the appellate supplement his testimony. He testified to its trial while testifying, the narrator tells the court has indicated it may have admitted it (the film's) accuracy, and he was subject to jury exactly what is happening in the dif- in a bench triaL. Thomas v. C. G. Construc- cross-examination". Arnold, supra (¡ 176. ferent video scenes. When the plaintiff tion Co., (USDC D. So. Carolina, 1979) Without the plaintiff testifying, if the video's elects for narration on film or at trial, 465 F. Supp. 566, 570. authenticating witness cOan testify to what he/she argues that the narration explains Often, defense counsel objects to a he/she observed then the film is seen as a exactly what is OCCUlTing when it is occur- video claiming that it is highly prejudiciaL. means of communicating these same obser- ring and this will be helpful to the jury in Defendant wil argue that the plaintiff is a vations. Grimes, (¡ 610. understanding the video evidence. Plaintiff malingerer or tremendously over exagger- argues that so long as the narration is accu- ates his injuries and their effects on his rate, factual, and not inflammatory and the daily life. Plaintiff can counterattack narrator is present for cross-examination, asserting that defense counsel could have "Courts have found that selective the audio or narration should be admitted. made (had an opportunity to make) a sur- scenes may be the basis for exclusion When the plaintiff is a client too ill to veillance film to refute the plaintiff's come to court, there is an appropriate video. When defense didn't take this ?f the discontinuity destroys avenue to pursue. Consider letting adverse opportunity, they waived this valuable right the probative value of the film." counsel examine the plaintiff about the and should not now be heard to complain. video scenes during the filming. If you Defendants will argue that a video elect to do this, or are forced into this, at should be excluded because it is cumula- least you will have a video that should pre- tive and hearsay evidence. Technically Next, defendants will argue that the film vail over most objections to its' admission. speaking, however, "a video is only cumu- lacks continuity in depicting selective, self- When there is some merit to defense lative of other photographic evidence of serving scenes. Courts have found that counsel's objection that is confined to spe- the same kind." Grimes supra, (¡ 610. A. selective scenes may be the basis for exclu- cific footage of the video, plaintiff's Scott, Photographic Evidence Sec. 1022 (¡ sion if the discontinuity destroys the counsel may be able to edit out the objec- 332 (2nd Ed. 1969). Knowing that they can probative value of the film. Grimes, supra (¡ tionable footage and thereby gain exclude a video when they can show, "the 610 In affirming the admission of a video, admission of the video. For example, motion picture is not necessary to prove or the Arnold court (supra (¡ 176) said, defense counsel may argue that certain disprove a material proposition" of the "although it was selective and self-serving, activities portrayed in the video are done claim, defense còunsel wil argue that it is much relevant evidence is of that character." by the plaintiff so infrequently that it mis- cumulative of the oral testimony. Wein- The courts have also replied that to include leads the jury. Here you simply edit out stein's Evidence, Section 1001-1036. The segments that are otherwise totally irrelevant that footage. If the objectionable materials limitation of "necessity" has been to the issues simply to give the film "conti- consist of very minor footage or time when expanded to include when it, "would add nuity" is illogical and unnecessary. Juries compared against the whole video you can to the medical testimony by visually need to see segments of the video that are argue that the objectionable material is de demonstrating the extent and impact of relevant and probative of the issues they minimus. Remember that films seemingly injury," Grimes supra, (¡ 610, or, when it need to decide. When the court finds objec- calculated to inflame the jury or which are is offered "to illustrate and supplement the tionable footage and orders it deleted, it thus unnecessarily cumulative of oral testimony plaintiff's (doctors' or spouse's) testi- judicially creates a "discontinuity". What is properly can be excluded. To avoid the mony," and thus it is found not to be important is what the jury sees not in what cumulative objection, you can show the cumulative. Arnold v. Burlington Northern order the scenes were filmed. video before, or simultaneously with, the R. R., (Or. App. 1988) 748 P2d 174,175 To help insure that your video gets into oral testimony concerning it. Hearsay is commonly defined as an evidence, avoid the common pitfall of objec- Defense counsel can also object to the extra-judicial statement "offered in evi- tionable audio. That is, to show the plaintiff admission citing that it unfairly depicts the

March 1998 11 b -- '1

plaintiff by using certain camera tricks, needs it to find out if the edited version is cross-examine the plaintiff during the film- self-serving editing of the video or subject to exclusion because it is inaccurate. ing. The trial court granted the request improper lighting or film speeds. To use a That is, maybe what has been edited out finding the filming akin to an evidence slower film speed than proper can show the strongly contest the footage left in. When deposition. The appellate court reversed plaintiff to be more disabled than he really the defense discovers that the plaintiff has finding that the video was merely a type of is. To cleverly stage the film's background omitted relevant scenes, the courts allow the demonstrative evidence. "The preparation or to use certain lighting conditions, cam- defendant (the plaintiff with surveillance of such evidence falls within the work era angles or telephoto lenses can lead to films) to use the footage the plaintiff omit- product of the (plaintiff's) lawyer. . . . We misleading impressions. Defense counsel ted, assuming it is otherwise admissible. believe the opposing counsel has no right needs to show this, not just speculate about to intrude into the production of this it in objections. demonstrative evidence". The court When failing to exclude, defense coun- believed the protections afforded defense sel can address these same issues and how counsel at trial before admission of the "While defense counsel may have they "trick" the jury during both his/her video of requiring a proper foundation and opening and closing. If defense counsel no right to be present at the filming, a weighing of its probative value against has a surveillance film and it is not surprise one way to insure admission of the danger of unfair prejudice were suff- evidence, he/she can tell the jury how that the "day in the life of" video is cient safeguards against an improper video will refute the plaintiff's video. In all to invite him/her to the filming." admission. Cisarik, supra (g874-875 events, defense counsel can tell the jury While defense counsel may have no that the video is not a typical "day in the right to be present at the fiming, one way life of Mr. Plaintiff" but rather shows to insure admission of the "day in the life scenes carefully chosen by plaintiff's of' video is to invite him/her to the film- lawyer to exaggerate plaintiff's injuries Plaintiff's counsel (defense counsel with ing. If opposing counsel has been given the and that it is merely a tool to try to get surveillance films) should object to releasing opportunity to monitor the filming, his/her more money from them. the unedited version, arguing that what was objection at trial wil be significantly Once it is decided that the video will be edited out is protected from discovery by diluted. Anticipating defense counsel's introduced at trial, defense counsel (plain- both the work-product rule and the attorney- presence, plaintiff's counsel should go to tiff's counsel with known surveilance client privilege. To produce the unedited plaintiff's home beforehand and have the fims) has the right to discover facts about version will reveal the attorney's impres- plaintiff act out again and again the rou- the video, e.g., fim speed, date, time and sions, opinions and conclusions which are tines that wil be fimed as well as those lighting conditions, who was present at the absolutely protected from discovery. Further, activities that wil occur between scenes, filming, who did the filming, what footage he/she can argue that it is pure speculation to e.g., getting from one place in the home to was deleted from the final version and claim that the edited version improperly por- another, eating or taking medicine during why, etc. While plaintiff may try to invoke trays the plaintiff and that defense counsel is the day of the filming, etc. Plaintiff's coun- a "work product" privilege (as defense merely "fishing." Before discovery of the sel wil thus help insure that his client will counsel would with his/her surveillance unedited version, defense counsel needs to give his best "performance" and avoid fim) to deny discovery of the information, show some evidence that the final product damaging off camera mistakes in front of the weight of the authority seems to disfa- was improperly manipulated. He/she can the adverse attorney. vor the objection. That is, once the depose the camera operator to find out if In contrast, one way for defense counsel decision is made to introduce the video, all their suspicion of improper alterations is to keep the video out of evidence is when privilege is waived. Likewise, the court well founded. If plaintiff is to preclude this the plaintiff has suffered from previous would find a waiver of any attorney-client discovery the camera operator (or other injuries and residual disabilities from those privilege asserted. Defense counsel can qualified witness) wil need to testify that: injuries. If the impairments and disabilities also plead that denial of this discovery will . The camera was in good operating attributable to the present injuries cannot lead to surprise and unfairly prejudice to condition, be clearly separated out from those that them in not being able to properly prepare · The scenes in the film were not preexisted the event at bar, the video for cross-examination of the plaintiff, the rehearsed, should be excluded. video and the camera operator. . No special camera effects were used, Moreover, an equity argument defense (Note: While Plaintiff has a right to dis- . No scene was edited out of the original counsel can use to deny admission of the cover the surveilance film, a fundamental fim (or if scenes were, what scene(s) was video is to plea that he/she is on "unequal fairness dictates that the defendant be per- edited-out and why; and importantly, footing" to contest this piece of the plain- mitted to depose the plaintiff before the . The film accurately portrays what he/she tiff's evidence. Thus, the defense is unable video is discovered. This provides the saw while filming. Grimes, supra (g609. to defeat or even offset such high impact defense protection against the plaintiff tai- In one case the defense knew about the evidence. Addressing this issue in Thomas loring his testimony according to what he day-in-the-life video before it was created v. C. G. Construction Co., supra (g 571, sees on the surveilance film.) and made a motion to the court, asking that the court said it: In moving to secure the unedited ver- they be permitted to attend the filming. They can conceive of no way in which the sion defense counsel should argue he/she argued their rights to this "discovery" and to defendant can possibly depict with

12 Vol. 11 No.2 tz equal impact those periods of time demonstrative evidence are limited only by during the plaintiff's recovery your imagination. Computer animations can process when he was either free from give the jury visual access to heretofore CORPORATION KITS FOR pain or relatively speaking, free of totally inaccessible places, e.g., inside a gas pain. Defendant never had the oppor- UTAH combustion engine to see its pars in operation, COMPLE OIl tunity of preserving such periods and inside a wall to view the plumbing and elec- being able to present them in such a trical systems, and even inside a human body $56.95 Preprited By.Laws, Minute & Resolutions, prited stock dramatic way. In this court's judgment, to see its many functions interacting and work- ceficate w/fu page stubs. tnfer ledger, embossing sea no amount of testimony from attend- w/pouch, binder & slipcase. index tabs & ta fonns for ErN & ing simultaneously. It can show an object S coipnition. ing physicians, nurses etc., could from angles otherwise totally inaccessible. 8I Kit wISO.. bin bon p_ (no By-La... pk 553.95 possibly offset the dramatic effect of No Utah case has addressed the use of Kit w/o se S44.95 S5.OO additiona S & H pe kit (uS growid) the audio-video tape in question. computer animations. An analogy, however, In the case of Bannister v. Town of Noble, can be made that such animations are only supra, the court addressed a checklist that high tech off springs of our more traditional the trial court should address in deciding if form of demonstrative evidence. Accord- "a day in the life" video should be admit- ingly, the requirements for admissibility ted. The Bannister court said the trial court should be analogous. "If the reason is the shoulri view the film outside the presence of same the rule should be the same." Caltfor- the jury and then consider whether: nia Civil Code 35//. In People v. McHugh, . Its' probative value outweighs the possi- (1984) 476 N.Y.S. 2d. 721, a manslaughter bility of prejudice. (That is, does the case, the court, in talking about a computer- film fairly represent the facts with ized reenactment of a motor vehicle collsion respect. to the impact the injuries have where four people where killed said: had on the plaintiff's daily life? Here, The evidence sought here is more akin outside the jury's presence, the court to a chart or diagram than a scientific can decide if it accurately portrays the device. Whether a diagram is hand OTHER PRODUCTS plaintiff's daily routines.) drawn or mechanically drawn by a . NON-PROFIT OlJIT S59.95 . The fim seems to demonstrate self- computer is of no importance. What is . LTD. LIABILIT CO. OlJrr S59.95 . LTD. PARTNERSHIP qlJIT S59.95 serving behavior or exaggerated important is that the presentation be . FAM. LTD. PART. OlJIT S59.95 . SEAL WIPOUCH (CORP, NOl S25.00 diffculty in performing ordinary tasks? relevant to a possible defense, that it . STCK CERTSlS1S (20) S25.00 Or whether, the film has little or no pur- fairly and accurately reflect the oral pose other than in creating sympathy for testimony offered and that it is an aid .):. .,t:.. AVAILABLE ON DISK $29.95 the plaintiff. to the jur's understanding of the issue...... ,.::::,:. PC WORD PERFECT 5,6,7 & 8 . :\~/",:::. (SUO S & Ii . The dominating nature of the film wil In seeking admission of your computer- give it more weight than more conven- ized animation when you might have used ARTICL PLUS BY.LAWS. MI '" REOLtmONS PACK. AGE FOR CORPORATIONS; tionally elicited testimony? (That is, a model, chart, graph, photograph or film, OPERTIG AGRE FOR t. UAIL COMPANS (B011 MEER '" MAAGER MAAGED); wil the jury remember it clearer than you should argue: SIMLE WI FORM '" FAX ORDER FORM the other testimonial evidence and . It can better help the jury understand the accordingly give it greater weight than ASK ABOUT issues than a model, chart, graph, photo- WILL & TRUST STATIONERY it truly deserves?) and whether, , graph or film; ... . Any prejudice from the fim can be . It accurately and fairly portrays what it INDEX TABS &... CLOSING SETS reduced through cross-examination? purports to portray; REGISTERED AGENCY SERVICES Finally, Bannister offered that, "the pro- . The foundation witness is qualified to FOR MONTANA bative value of the fim is greatest, and the testify on both the subject matter underly- possibility of prejudice lowest, when the ing the reenactment, (e.g., accident ORDER TOLL FREE! conduct portrayed is limited to ordinary, reconstruction) and the intricacies of how PHONE 1-800-874-6570 day-to-day situations." Bannister, supra the animation was produced, i.e., how the (g 1269. Since the focus of all day in the software program manipulates the data FAX 1-800-874-6568 life videos is admission at trial, take the fed into it; E-MAIL corpkit~digisys.net court's advice and create the video to max- · It wil not confuse or mislead the jury on ORDERS IN BY 2:00 PM MT SHIPPED SAME DA Y. imize its' probative value. Temper the the issues before it, nor wil it create a LAW FIRMS: WE WILL BILL YOU wrr YOUR ORDER. creation by the fear of exclusion. substantial danger of any undue preju- SATISFACTON GUARANTED I!! dice; and, CORP-KIT NORTHWEST, COMPUTER ANIMATIONS: . It wil save a considerable amount of INC. Computer animations are the new, unbe- trial time. 413 EAST SECOND SOUTH lievably unique, expensive, yet - highly Because the computer animation is gener- BRIGHAM CITY, UT 84302 impressive demonstrative aid of the 21st ated from basic facts there are many century. The possibilities of this type of opportunities to take an advocate's license in

March 1998 13 ~

embellishing and in editing it. Trees or what editorial decisions he/she made to get Remember, when you are opposing the buildings present at a scene cannot easily the final product. Lastly, you need to know admission of a video simulation, like any be edited out of a photograph. Nor, can a why he/she made such assumption and edi- other exhibit, careful examination of the photograph in a construction site claim add torial decisions. computer animation should reveal fertile another 6 floors to a skyscraper beyond When you are faced with trying to deny ground for cross-examination and hope- what was already built at' the time of the admission of a highly impressive computer- fully ways to impeach the expert. incident. A computer can handily do such ized simulation, use your discovery tools to (Note: A devastating mistake often editing of, or adding to, the video. find out the input data, all the assumptions made by plaintiff's attorneys when they Because of this power, accuracy can be made, all the editorial decisions elected and make a video trying to recreate the incident iJ problem fraught. To evaluate what came the basis for them and how the software that injured the client is when they fail to out, you need to know what went in. For manipulated all this materiaL. Find out the show why the actor in the recreation video example, if the real data reflects a G-force sçientific theory or logic that underlies the was not injured. For example, a video of four but the plaintiff's expert used a G- software program, each assumption and each recreating a fall that injured the plaintiff force of eight, the severity of an impact is editorial decision. Discover their expert's needs to show footage immediately before greatly distorted. Likewise, if the real evi- qualifications. (or after) the reenactment explaining why dence attests to a crash at sixteen miles per the actor was not hurt in the recreation. hour but the defendant's expert used twelve Show himfher getting dressed with protec- MPH in his video simulation, the defense tive equipment worn underneath regular clothes or that other protective or safety expert's video will mislead the jury and When you present or challenge you may not know it. measures were taken. If you fail to show Computer animations need a foundation a computer animation, you need why the actor was not hurt, later some juror wil be arguing that your client was- I laid by a qualified expert to testify to the to know what "real data" I~ reasonableness of the data used, how it was was input, what assumptions were n't hurt or wasn't hurt as severely as you input, the accuracy and general acceptance made and what was the basis for have portrayed him/her to be.) of the software used and the accuracy of An equity argument that can defeat the results. Bear in mind that, "reasonable making such assumptions." admission of a computerized animation is data" needs to be grounded in the facts in that the adverse party is unable to rebut evidence. While it can include the plain- such highly dramatic evidentiary influence tiff's or defendant's version of the facts because he/she does not have the money. If those facts must be in evidence. The expert Federal case law has upheld your right you foresee this as a valid objection, you needs to be able to take the jury through to discover this information. Perma may be able to preclude it. Invite your the step by step processes toward arriving Research and Development v. Singer, (2d adversary to participate in the creation of at the animation and importantly, needs to Cir. N.Y. 1976) 542 F2d. 111, 115, cert. the simulation. He/she can then observe be able to defend and justify the choice of denied 429 U.S. 987 (1976) U.S. v. Liebert, and comment on the process as it proceeds specific data over other data also in evi- (3rd Cir. PA 1975) 519 F.2d 542,547 cert. to the final product. Later, you can argue dence and the reason certain assumptions denied 423 US 985 (1975), Cleveland v. their input proves the "fairness" of your and/or editorial decisions were made. Cleveland Elec., (N.D. Ohio, 1980) 538 F. exhibit. Once invited to participate, a failure When you present or challenge a com- Supp. 1240,1266-1267. to do so can be argued as a waiver against puter animation, you need to know what certain trial objections to this exhibit. "real data" was input, what assumptions RECREATE VS. ILLUSTRATE: were made and what was the basis for A seemingly forceful but bogus argument making such assumptions. You need to against the admissÎon of an animation of an know what software was used and if it is expert's theories is that it attempts to "recre- an accurate program. You need to know if ate" the event rather than purely "illustrate" experts in the relevant scientific commu- the testimony. Generally, such videos should nity generally rely upon the computer be admitted when it is shown they will help program. Aside from the "computer data", the jury understand the technical opinions. you need to know the qualifications of the To argue that the jury will assume they are ii expert. Is he or she qualified to testify in seeing a re-creation of the actual event in II' this subject area, e.g., the physical proper- issue is simply speculation. When your i ties of time, speed, weight, mass and exhibit seems susceptible to exclusion distance? Assuming the experts are quali- because of this objection, request the court fied in the field of testimony, are they give the jury a cautionary, oral instruction at likewise qualified to testify to exactly what the time that the exhibit is introduced. Such data was input and exactly how the soft- an instruction should properly protect the ware used this data to generate its' adverse party from the exhibit being given findings? You need to know what assump- excessive credit by the jury, and this can pre- tions the expert took in inputting data and serve your verdict on appeaL.

14 Vol. 11 No.2 -I ~ --1

Provisional License for New Bar Admittees Not the Answer i By Stephen w: Owens

generally few and far between and often The Octoberhad an article1997 Utahentitled Bar "Future Journal of have small enrollment caps with lengthy the Bar," discussing the long-term planning waiting lists. Internship programs also of the Bar. Among the ideas listed was offer real-life training. However, nearly all "revising the admission process of the Bar of the classes offered at the law school to require more practical knowledge and taught few, if any, practical skills. training prior to full admission to the Bar." During a full year of Contracts, the first I was intrigued by this reference and. year student does not draft a single con- sought further information. tract. Not once in Civil Procedure is the It turns out that the Bar wants to do student required to prepare a simple com- something about the fact that new bar plaint. After completing Trust & Estates, a admittees, although conversant in legal the- student still has few skills to draft a basic ory and blue book citations, actually know wilL. An "A" student in Family Law stil very little about how to practice law in the does not know how to perform an uncon- real world. To combat this evil, the Bar is tested divorce for, a friend. In considering a proposal to create a "provi- Administrative Law (perhaps the least sional license" for new bar admittees. practical class of my stint in law school), I Similar to a medical residency require- STEPHEN W OWENS is an associate with the did not learn the first thing about practice ment, this license will, after three or so Salt Lake City law firm of Hanson, Epperson in front of an administrative agency. The 1 years, become a full license upon "certifi- & Wallace, where he concentrates his practice list goes on and on. cation" of good standing by the Office of on medical malpractice and insurance defense. When we bought a house following law He is a 1994 graduate of the University of Professional Conduct and upon completion Utah College of Law and clerked for Justice school, my wife said to me, "I am glad you of a new lawyer CLE program and "per- Richard C. Howe of the Utah Supreme Court. are a lawyer because you know how to go haps" a mentoring requirement. The He is active on the Bar's Law-Related Educa- about buying our home." I laughed. provisional license reportedly will not tion Committee and is co-chail' of the Young Although I did well in my first year Property restrict the legal practice of a new lawyer, Lawyer's Long-Term Planning Committee. course, I was not taught how to complete a This article is solely the opinion of the but will "emphasize the critical need for author, but includes some ideas discussed at simple real estate purchase. Ask me about training beyond law school to become fully recent meetings of the Young Lawyers' Execii- the rule of perpetuities, Bette Midler's prepared to assume the responsibility of tive Committee. This Committee unanimously rights when her image is used without her law practice." (October 13, 1997 Draft voted to oppose the provisional license idea. permission, a homosexual's rights when Recommendation). his landlord evicts him, or medieval Eng- lish feudal law. Do not ask me about THE SHORTCOMINGS bel'S of the ABA accreditation team. The executing a basic real estate transaction. OF LAW SCHOOL University of Utah College of Law was I have heard the law school response I applaud the Bar for recognizing that going through its once-every-seven-years many times: "Law school is not there to new lawyers lack needed practical skills review to maintain its ABA accreditation. provide you with real-world skils to solve and often are not prepared to face the The committee members questioned stu- real-world problems, but is meant only to demands of real-life practice. However, the dents about the benefits and shortcomings of teach you to think like a lawyer." Fine, but Bar's efforts should be focused on encour- the law schooL. The one nearly universal do not wonder why the new, Order of the aging the re-tooling of law school comment was that students are not being Coif law school graduate does not have a curriculums to emphasize practice-based taught the practical skills they need to enter clue how to conduct a deposition, draft a courses, not on adding an additional barrier the practice of law. pleading, or research a complex issue. Do to practice. Law schools offer some practical applica- not ask why many of the stars in law During my last year of law school, I sat tion classes such as document drafting and school cannot fit into a law firm environ- on a student committee with several mem- advanced legal writing, but these courses are ment where clients cannot afford them . Marcii 1998 15 a spending forty (or even five) hours drafting handling client and trust monies. CONCLUSION a summary judgment motion. I find it A mandatory internship or mentoring I applaud the Bar's interest in providing

humorous that, when confronted with a term prior to obtaining a full license is also a new lawyers with better practical skills so new legal problem to which I have had lit- bad idea. Law students and new graduates that they can hit the ground running and tle exposure, I think back-not to what I are, generally speaking, already doing all appropriately and competently represent learned in law school-but to what I that they can to obtain internships and their clients. Although the burden should learned in my bar review course.2 employment positions where their skills will fall primarily to law schools, the Bar can The Bar should encourage law schools be used and where they wil receive addi- take some steps to assist in the transition. to focus more on training lawyers than tional training from experienced However, the proposed provisional licens- legal theorists (who, ironically, then seek practitioners.6 Such a requirement for the ing scheme is a drastic and unfair barier to to become law professors, continuing the law school graduate, or worse, for the fourth practice that should be rejected. incestuous cycle). To their credit, law year law student," wil only compound the I It is true that the law school curriculum cannot be tied to the problems and stress each of these individu- schools are providing more "nuts and bolts" law of any particular state. However, one wise commentator classes taught by individuals with real life als already feels in attempting to find questioned whether the currculum of certain law schools is permanent employment. An additional prob- tied to the law of any particular planet. See James D. Gordon experiences, but the fact remains that for il, "How Not to Succeed in Law School," 100 Yale L. Rev. every trial advocacy or business planning lem is the cost to the ever-expanding Bar to 1679, 1684 (1991). class, there remains six or seven straight I appreciated the teaching style of U. of U. law professor run the program and to deal with the Paul Cassell, a seasoned prosecutor, who taught me Evidence lecture and historical case law courses.' inevitable problems of choosing. and Criiunal Procedure. He never played "hide tbe ball" or shrouded the law in "mystery/philosophy/sociology/nihilistic relativism! astrology/voodoo/-masochistic Socratic kung fn." PROVISIONAL LICENSE PROPOSAL OTHER ALTERNATIVES !d. at 1684. While more practical training in law In addition to working with our two law 2The fact that a new law school graduate, after spending school is a good idea, the provisional $30,000 and three years of hard work "leaming tbe law," is schools within the state to offer more practi- then essentially required to shell out another $1200 for a bar license scheme is not. While I assume that cal skills classes, there are other things that review course to leam what is needed to pass the bar exam is I would be "grand-fathered" out of any another topic entirely. the Bar can do to help new lawyers to suc- 3This is undoubtedly due in part to the econoiucs of running such requirement" I strenuously oppose cessfully adapt into the real world of a law schooL. In a humorous critique of law schools, one pro- the idea. The provisional licensee should practicing law. A voluntary mentoring network fessor wrote: Studies have shown tbat tbe best way to lear is to have not have to go about practicing law with could work. Under such a system, experi- frequent exams on small amounts of material and to enced lawyers would sign up through the receive lots offeedback from the teacher. Consequently, the knowledge that the Bar stands ready to law school does none of this. Anyone can leam under revoke her probational standing if she does Bar under their respective are¡¡s of practice ideal conditions; law school is supposed to be an not keep in line. to provide support to new lawyers who find intellectual challenge. Therefore, law professors give only one exam, the FINAL EXAM OF THE LIVING The proposed scheme gives the false themselves in over their heads and who have DEAD, and tbey give absolutely no feedback. . . . impression that new lawyers are the cause no personal network in which to obtain help James D. Gordon II, "How Not to Succeed in Law School," 100 Yale L. Rev. 1679, 1692 (1991). Small class sizes and of many problems and that the Bar needs and oversight. The Bar may need to provide one-on-one feedback from law professors (who hopefully to more closely monitor them. It is true incentives to get experienced lawyers to sign practiced law for more than one year before realizing that they hated it) equates to big money. This may be why tuition that the laws in our society are becoming up for this potentially burdensome duty, such at medical school, where they practice many of the above more complex and that the lawyer work as a waiver of certain CLE requirements or principles, is several times that of law scbools. See id. force in Utah is increasingly younger even discounted bar dues. Malpractice issues 4perhaps I should not make this assumption. If the provi- sional license idea comes to pass, and if this aricle offends (thanks in par to our two law schools that would also need to be resolved. any of the big fish at the Bar, and if they decide that perhaps I pump out some. 250 new lawyers a year, Another idea that some state bars have would make the perfect candidate for the provisionallicense, then let me just státe for the record that I do not believe a not including those who move into Utah). used are "Supplemental Licenses," in which word of this article. However, these realities do not justify a practitioner, through additional course 51 requested statistics from tbe Utah Bar's Offce of Profes- adding an additional hoop through which work and experience, can receive an addi- sional Conduct, but was told that they are not sorted by tbe number of years the lawyers has been in practice. The cited new lawyers are required to jump before tional, specialized license from the Bar in, numbers are from a national analysis performed by J. Randolph practicing. There is no evidence that new for example, bankruptcy. This way more Evans of the Atlanta, Georgia fi of Arnall, Gordon & Gregory. Mr. Evans presents a seiunar entitled, "An Intemal Audit for lawyers get in any more bar discipline or experienced lawyers are appropriately rec- the Ethical, Non-Negligent and Professional Attomey." malpractice trouble than their more experi- ognized without weakening the credibility of Some of the reasons given for tbe phenomenon that more experienced lawyers are stung more often by malpractice enced colleagues. In fact, the statistics that new lawyers or giving the false impression actions tban newer lawyers is that they generally have heavier I have seen indicate the contrary: fewer that new lawyers have proportionately schedules and risk relying more on otbers to meet dealines while ignoring technological advances designed to help avoid malpractice complaints are brought against greater disciplinary or malpractice problems. malpractice (e.g. conflct check and calendaring systems). lawyers who have been out of law school Finally, the Bar can fine tune new lawyer Additionally, more experienced lawyers may have less faril- iaiity witb or wilingness to exaiune court rules. 0-5 years than against lawyers who have CLE programs and perhaps start a library of 60ne altemative is for law schools to do away witb course been out 5-10 years or those who have Utah-based practice help books and videos work entirely during the tbird year, requiring instead that stu- been out over 10 years (this last category dents do practical internships under close supervision. This to provide greater resources to new lawyers idea has some merit. After all, what lawyer has not found his comprising two-thirds of such actions).5 struggling to figure out how to go about first year of practice to be vastly more educational than all of New lawyers are, overall, very sensitive to practicing in a new area of law. Some have law school combined? complying with the rules of professional 7This idea is promoted by tbose who are anxious to expand the even suggested that the Bar provide sample influence (and perhaps tuition receipts) of the law schools. I conduct and, I believe, just as conscien- forms and practice guides to bar members will save my comments on this nauseating idea for if and tious as more experienced lawyers in when it gains any momentum. Of course, a fourth year of law over the Internet. school would have postponed my student loan payments. . . .

16 Vol. 11 NO.2 --

Tracking Damages from a Personal Injury

by Mark J. Gergersen, Attorney and James A. Shore, C.P.A. I

MARK J. GREGERSEN attended Brigham JAMES A. SHORE is a Certified Public Young University, where he received his Accountant, licensed in the State of Utah. law degree, and a B.S. in Business In 1973 Mr. Shore graduated with honors Finance with a minor in Computer Science. with an accounting degree from the Uni- He is admitted to the state and federal versity of Utah. He worked for several bars of both Utah and California. He years with a multi-national CPA firm in operates a litigation practice in Centervile, Portland, Oregon. He worked for 14 Utah, and serves as Law and Technology years as Controller for a large real estate Editor for the Utah Bar Journal. developer and has been in private prac- tice for the past six years. In 1996 he merged his practice with Foote, Passey, Grifn and Company, in Salt Lake City, where his practice is concentrated in tax- ation, accounting, consulting, and business valuation. He has consulted on accounting issues related to personal injury cases.

1. INTRODUCTION track total charges, not unpaid balances. Our track damages by computer. 1 First, I used a A QUEST TO TRACK DAMAGES biker clients lacked sophistication, but not spread sheet. This allowed me to add In i 988, I (Mark Gregersen) graduated assertiveness. Our clients would never expenses automatically, and eliminate from a Utah law school and moved my authorize settlement without knowing what addition errors. As I received more medical family to Los Angeles County. Among my would remain for them. bills, I would add these to the spread sheet adventures, I worked for a firm which rep- To accurately calculate our clients' share and create a revised total without re-enter- resented solely motorcyclists injured in of any settlement offer, we had to then (and ing the medical bils which I had accidents. Of its army of paralegals, one have to now), identify, project, and total all previously posted. Searching for more devoted her efforts to tracking medical outstanding obligations due to a multitude of "user-friendly" software, I began to use a expenses. The firm owned impressive tech- care providers, insurers, and others. single-entry accounting program (Quicken"'), nology, but the "meds" paralegal possessed To minimize tedium and eliminate addi- which proved superior to a spread sheet. only an adding machine, which she used to tions errors, I have since sought a method to For each entry injured client, I created a

17 - March 1998 r ~I i Quicken file, within which I created an 2. HOW TO BEGIN: Exhibits "1" and "3"), are used to generate :1 I account for each doctor, hospital, and sub- TRACK MEDICAL EXPENSES Exhibit "4A" (Report Showing Pro- rogated insurer. Recently, I have reviewed Start simply. Begin by tracking only med- jected Settlement). For those who speak specialized Case Management software ical expenses and payments. If you attempt accounting, this report is actually a Balance 2), which pro- (such as PINS(i/NEEDLES(i to start tracking all items at once, you may Sheet. 10 We assume in our hypothetical vides all-round tools for handling the be overwhelmed by detaiL. To illustrate the example that as a last effort to settle the multitude tasks associated with personal tracking of medical expenses, we use the case, Plaintiff's attorney has negotiated an injury cases. Although they do not focus on hypothetical transactions shown in Exhibit offer from Defendant to settle the case in accounting, many Case Management pro- "I" (Table of Sample Transactions). This the amount of $51,500.00. Plaintiff's attor- gram possess a limited capacity to perform exhibit lists each event, together with the ney believes that such a settement is fair T "single entry" accounting. applicable law and accounting transactions. and in the best interest of Plaintiff. There- But single entry has limitations. For Account names are italicized.8 (We avoid fore, Plaintiff's attorney seeks Plaintiff's example, the collateral source rule pre- using the terms "debit" and "credit.") From acceptance of the $51,500.00 offer. serves a Plaintiff's claim against the these sample transactions, numbered one Exhibit "4A" estimates that if Defen- Defendant, even though a bill is paid by through eight, we have used Quickbooks(i to dant's settlement offer of $51,500.00 is Plaintiff's health insurer.3 Thus, a system generate Exhibit "2A" (Report Showing accepted by Plaintiff, then after all liabili- should track the reduction of medical bills Status of Medical Expenses). We have also ties are repaid, the total payments to which Plaintiff owes, while separately generated Exhibit "2B" (Report Showing Plaintiff from this case will be $32,486.52. tracking the damages (e.g., medical Status of Liens). However, $32,486.00 is an estimate of the charges) which Plaintiff continues to be total amounts which will be paid to Plain- owed. To meet this need, I experimented tiff, including all amounts Plaintiff has with double-entry accounting software already received from insurance companies ¡ (Quickbooks(i).4 "The concept al double entry (for property damage, lost earnings PIP II The concept of double entry can be benefits, and out-of-pocket reimburse- likened to a principle of physics. Isaac can be likened to a principle of ments). Plaintiff desires an estimate of Newton observed that in our physical physics. Isaac Newton observed what additional monies he or she will world, for every action there is an opposite that in our physical world, receive from accepting the $51,500.00. and equal reaction.s Similarly, if Plaintiff's Therefore, from the sample transactions we health insurer pays a doctor bil, then lia- for every action there is an generate Exhibit "4B" (Report Showing bility due the doctor is decreased AND as opposite and equal reaction." Detail of Amounts Paid to Plaintiff), an opposite and equal reaction the liability which estimates that of the $32,486.52 due the health insurer is increased. There- total payments to Plaintitl, accepting the fore, if a system is to accurately track $51,500.00 would allow a $25,671.55 damages of an injured plaintiff, then the 3. FROM MILK TO MEAT: additional payment to Plaintiff. Armed system must 1) track both halves of the TRACK ALL DAMAGES with this estimate, Plaintiff can more com- transaction, and 2) show the nexus between Once you and staff grow comfortable fortably decide whether to accept or reject both halves of the transaction.6 Through with tracking medical expenses, you are the settlement offer. trial and error, I came to understand that ready to track additional items of damage, to B. Prepare for TriaL. Possessed with there is power in using computerized dou- show the complete economic picture of your current and accurate financial data, you ble-entry accounting, to track damages. injured client. For example, you can track will likely settle the case. But if a trial is Stil, I did not know how to completely such transactions as those shown in Exhibit necessary, print a report which itemizes harness this power. "3" (Table of Additional Transactions). and totals amounts due from the Defendant. I joined forces with James A. Shore, an For brevity, the details of these additional From our sample transactions, we generate experienced Certified Public Accountant. transactions (numbered nine through twenty- Exhibit "5" (Report Showing Itemiza- Accountants make it their business to dis- one) are omitted. tion of Damages). Offer the report as a cover and record the "opposite and equal" summary under Utah Rule of Evidence '! I financial transactions. At first we had 4. USE THIS SYSTEM 1006, so the fact finder can understand the difficulty communicating, since our profes- TO FILL YOUR NEEDS I bills and damages. You may decide to print i sions think and speak differently. As our A. Prepare to Settle. To discuss settle- graphics, such as a pie chart showing a minds met, refinements resulted.? Following ment with your injured client, place visual representation of the relative quanti- I is our system to track damages. Note that we Projected Settlement amounts into accounts ties of damages. implemented these concepts using Quick- labeled as "WHAT IF." This allows auto- C. Prepare to Compromise a Minor's books(i software. However, these ideas may matic calculation of other related amounts, Claim. If you represent a parent as be used to track damages in Case Manage- such as the residual funds to be distributed Guardian ad Litem of a minor child, then ment software, spreadsheets, Quicken(i, to your client. Print a separate report for track the damages of the child. When the and other accounting packages (or for that each scenario, which captures its assump- parent pays for a prescription, this creates a matter even on paper or in your head). tions (input) and conclusions (output).9 Our liability of the child to the parent. At the sample transactions i through 21 (shown in hearing to compromise the minor's claim,

18 Vol. if No, 2 2 the parent can seek approval for repayment With all the complexity which accompa- One window shows what Plaintiff is owed by others (assets). A second window shows what Plaintiff owes to others (liabil- of this liability. By tracking all such nies personal injuries, at least the accounting ities), and what Plaintiff has "invested" in his or her claim amounts, you offer the Court and your should be made simple, so we attorneys can both literally through Plaintiff's purchase of medications, and figuratively through the destruction of his or her automobile, clients an organized view of all financial focus on the law for which we are trained.14 through loss of wages, and through suffering of pain. Because transactions of the child. Even defense counsel and adjusters should these two views are of the same financial claim, the totals shown in each window are equal, and are said to "balance." D. Wind Up the Case. As you deposit yearn for plaintiffs' counsel to track dam- Hence the financial statement which reflects these windows is settlement monies into your trust account, ages, so settlement discussions can occur termed a "Balance Sheet." The balance sheet obeys the Fun- damental Accounting Equation which is as follows: you enter this deposit into your client's early and earnestly. It is said that "perfor- mance measured is performance improved." ASSETS r computerized "books" and print a status Similarly, damages measured are damages Cash in trust report, which shows intended disburse- Due from Defendant ments of settlement monies. You present recovered. this report to your client, and obtain his or 1 Benjamin Franklin declared that "Necessity is the mother of LIABILITIES her written approval, before making final invention." My finite ability to keep track of, and cOlTectly add, Due to Care Providers disbursements to insurers, care providers, numbingly-long columns of numbers, created my need for a Due to Insurer-Subrgatn. Plaintiff, and yourself. From our sample system to perform this clerical task. Due to Attomey 2Quicken" is a registered trademark of Intuit. PINS. and NEE- + transactions, we generate Exhibit "6" DLES. are registered trademarks of Chesapeake Interlink, Ltd. (Report Showing Disbursements to be Powerful case management software can cost several thou- EQUITY sand dollars, while Quickbooks costs only a few hundred Paid by Plaintiff Authorized by Plaintiff). Experience has dollars, for a version which will handle the other billing and Less received by Plaintiff shown that this single step can avoid the accounting needs of a law offce. Thus, accounting software can Less Attorney Fees Paid later need to spend 1) time (trying to make be more financially accessible than case management software. 3"Under this rule, if an injured person receives compensation 1 1The attorney keeps his or her own set of books, which mir- sense of past financial transactions), and 2) for his injuries from a source wholly independent of the tort- rors the transactions shown in the Plaintiffs books along with money (personally repaying liens which feasor, the payment should not be deducted from the damages the trust transactions shown in every other client's books. The which he would otherwise collect from the tort-feasor." Black's high duties which govern the attorney trust account, and the were "missed.") This account mirrors the Law Dictionary page 262 (6th Ed. 1990). "The collateral source specific accounting duties associated therewith, are beyond attorney's trust account, and should contain rule provides that a wrongdoer is not entitled to have damages, the scope of this article. for which he is liable, reduced by proof that the plaintiff has 12In states with joint and several liability (such as Califor- all transactions of the Plaintiff, which received or wil receive compensation or indenmity for the loss 11 nia), all defendants may be considered liable, and from the involve the attorney's trust account, from an independent collateral source." Dubois v. Nye, 584 P.2d 823,825 (Utah 1978). Plaintiff's perspective no allocation needbe made. As you accurately track medical Note that in Utah, the courts have carved out an exception 13This system depends upon the gathering of financial infor- expenses, you may find errors in medical to the collateral source rule, for pip benefits provided by Plain- mation. You must obtain medical bills and other financial til's first-party coverage: "(TJhe injured party should not plead documents. Then, you must enter them into the computer. bils, caused by a provider's failure to for damages which are covered by PIP benefits, but should Develop a system which works for you. When documents acknowledge payment by Plaintiff's plead only for those damages for which he has not received anive at your offce, place them with your client's file folder. reparation under his first party insurance." Bear River Mut. Ins. Upon entry of this information into the computer, the docu- insurer. You can then print a report showing Co. v. Wall, 937 P.2d 1282,1287 (1997), quotingAllstate Insur- ment should be marked to show that it has been entered. the correct balance, and itemizing entries ance Co. v. Ivie, 606 P.2d 1197 (Utah 1980). When you negotiate a reduction of a lien, you must document from which your balance is derived. Clients 4Quickbooks. is also a registered trademark of Intuit. I believe this reduction in your file, and must flag this information so it that other accounting packages could be utilized, such as those gets entered in your system. appreciate attorneys who sophisticatedly created by Peachtree Software, Inc. 14To skillully assist an injured plaintiff, the attorney must detect such errors, even if your discoveries 5principia Mathematica (1686), by English mathematician and master principles of not just law, but also of such non-law Ðreas as accident reconstruction, medicine, and time-value of work to preserve only modest sums. physicist, Sir Isaac Newton. 6My cousin is a railroad adjuster, with access to in-house soft- earnings. Little time remains for the attorney to undertake the E. Adopt to your Client's Case. Each "clerical" task of tracking the medical bills and other dam- ware which tallies medical charges, and performs countless ages. But every case will either be settled or tried. To case is different. You will encounter cir- other tasks. Some case management software packages can accomplish either, the attorney must measure the magnitude cumstances which require modification of track medical bills and payments, as single entries. To account of damages. for the corresponding transactions, a user could enter the second 15Technically, two additional transactions arise on Plaintiff's your system. For example, cases with mul- entry singly. This would achieve the goal of placing both halves of a transaction into the system. Yet such software fails to show books when Plaintiff incurs a medical expense: tiple defendants may benefit from use of the nexus between the two transactions. Because of its capabil- First, an asset increases, consisting of amounts Due From clearing accounts, allowing an estimation ity for dual-entry, accounting software may offer advantages for Plaintiff's Insurer (either auto PIP or health). "Eveiy policy of tracking damages, and can be used in conjunction with case insurance. . . purchased to satisfy the owner's or operator's of the amount due from each defendant, management software. However, the attorney should use soft- security requirement of Section 41-12a-301, . . . shall also 12 include personal injury protection under (§3IA-22-307)." pending an authoritative alocation at trial. ware which he or she finds most usefuL. 7 Albert Einstein created the special theory of relativity, then Utah Code §31 A-22-302(2). "Personal injury protection cov- erages and benefits include: (a) the reasonable value of all 5. CONCLUSION spent his remaining life pursuing a general theory of relativity. expenses for necessary medical. . . services, not to exceed a Similarly with our more mundane system of accounting: Mr. total of $3,000 per person; . . . (6) Deductibles are not permit- When a case is young, the attorney may Shore helped create procedures to track a large array of dam- ted with respect to the insurance coverages required under ages, using a full spectrum of balance sheet accounts. "Man's perceive the need to track only assets: what this section." Utah Code §3IA-22-307(1). mind stretched to a new idea never goes back to its original Second, a contingent liability increases, consisting of Defendant owes Plaintiff. For example, the dimension." Oliver Wendell Homes. amounts Due To Plaintiff's Insurer, on account of the subro- attorney may wonder whether medical bils 80ur sample data assumes that Plaintiff's injuries were caused gation lien which will inevitably arise upon payment of the by an automobile accident. Therefore, we use the rules applica- medical bill by Plaintiff's insurer. If Plaintiff's insurer exceed $3,000 so that general damages can ble to such a case. If Plaintiff were injured through some other behaves as expected, these transactions wil offset each other, be pursued. The attorney may neglect to means, then a separate set of rules would apply. For example, if and be of little importance. Plaintiff were the victim of medical malpractice, then this For simplicity, these transactions are omitted. If the attor- track liabilities: what Plaintiff owes others. would invoke other exceptions to the collateral source rule. ney encounters a first-party insurer which fails to pay its Later, the attorney wil suddenly need this 9 At the end of your predictions session, you can zero out each obligations, then these transactions can be tracked to ensure "WHAT IF" account so your system contains only historical fig- full recoveiy, both in the initial action and in the following information, as the attorney seeks to settle. ures, with the exception of an "ESTIMATED Discount" account bad -faith claim. You need a system which tracks informa- and an "ESTIMATED General Damages" account which you 16Similar treatment is given to a co-payment from Plaintiff's may choose to leave on the books as mere estimates, until pocket. tion early, so it can answer questions you actual amounts are ascertained through settlement or judgment. 17 See, Allstate Insurance Co. v. Ivie, 606 P.2d 1197 (Utah will later inevitably ask. 13 lOA balance sheet allows to financial views of Plaintiff's injury. 1980). Note that if a health insurer had paid this amount, then

March 1998 19 ~ i

EXHIBIT "1 " TABLE OF SAMPLE TRANSACTIONS TO ILLUSTRATE TRACKIG OF MEDICAL EXPENSES AN SUBROGATION LINS

FACT LAW ACCOUNTING

#1 1. Defendant is liable to Plaintiff for the 1. "Due from Defendantfor Bodily Injury: Medical Defendant causes an automobile accident. $5,068.20 medical expense. Expenses--Past" (an asset account) increases by Plaintiff incurs a hospital bil of$5,068.20. 2. Plaintiff owes $5,068.20 to the hospitaL. $5,068.20. (Hospital lien per Utah Code § 38-7-1.) 2. "Due to Hospital" (a liability account) increases by $5,068.20.15

#2 1. Defendant is liable therefor to Plaintiff. 1. "Due from Defendant for Bodily Injury: Medical Plaintiff receives a bill from an orthopaedic 2. Plaintiff is liable therefor to the Expenses" (an asset account), increases by surgeon for $13,329.71. orthopaedic surgeon. $13,329.71. 2. "Due to Orthopaedic Surgeon" (a liability account), increases by $13,329.71.

#3 Note: Due From Defendant remains 1. "Due to Orthopaedic Surgeon " (a liability When Plaintiff receives the bill from the unchanged, because ofthe Collateral Source account), decreases by $500.00. Orthopaedist, Plaintiff makes a payment of rule. 2. "From Plaintiff (pDILOElPainIocket)" (an $500.00 from his or her own pocket.16 equity account), increases by $500.00.

#4 1. Defendant is liable therefor to Plaintiff 1. "Due from Defendant for Bodily Injury: Medical Plaintiff pays $114.97 from his or her own 2. Plaintiff has "invested" $114.97 from his Expenses--Past" (an asset account), increases by pocket for a prescription pain killer. or her own pocket. $114.97. 2. "From Plaintiff (pDILOElPainIocket) " (an equity account), increases by $114.97.

#5 1. An auto policy must offer minimum 1. "Due to Orthopaedic Surgeon " (a liability Plaintiffs auto insurer makes two payments to PIP/no-fault coverage of$3,000.00 for account), decreases by $3,000.00. the Orthopaedist, in the amounts respectively medical bills. 2. "Due from Defendantfor Bodily Injury: Medical of$718.56 and $2,281.44, totaling $3,000.00. 2. Utah has exempted first-part P.I.P. Expenses--Past" (an asset account), decreases by benefits from the collateral source rule.t7 $3,000.00.

#6 1. A health insurer can make reimbursement 1. "From Plaintiff (pDILOElPainIocket) " (an equity Plaintifrs Health insurer reimburses Plaintiff payments to Plaintiff for his or her out-of- account), decreases by $614.97. $500.00 for transaction #3, and $114.97 for pocket expense.IS 2. "Due to Plaintiff's Health Insurer--Subrogation " transaction #4, for a total of$614.97. 2. Upon payment, a health insurer receives a (a liability account), increases by $614.97. subrogation lien.19

#7A 1. "Due to Orthopaedic Surgeon" (a liability Plaintifrs Health insurer pays $9,030.67 to account), decreases by $9,030.67. orthopaedtst 2. "Due to Plaintiff's Health Insurer--Subrogation " ,(a liability account), increases by $9,030.67.

#7B 1. "Due to Orthopaedic Surgeon " (a liability At the time the health insurer pays $9,030.67, account), decreases by $32.00 the Orthopaedist agrees to watve $32.00. 2. "Waiver of Liabilties" (an equity account), increases by $32.00.

#8A 1. "Due to Hospital" (a liability account), decreases Health insurer pays hospital $3,364.40. by $3,364.40. 2. "Due to Plaintiffs Health Insurer--Subrogation" (a liability account), increases by $3,364.40.

#8B Health insurers may enter contracts with 1. "Due to Hospital" (a liability account), decreases At time health insurer pays $3,364.40 to "Preferred Providers," requiring that in by $1,703.80. hospital, hospital waives $1,703.80.20 exchange for payment of a specified amount 2. "Waiver ofLiabilitid' (an equity ac~ount), for a service, the remainder of the bill must increases by $1,703.80. be forgiven. See Utah Code § 31A-22-617.

20 Vol. 11 No.2 Exhibit "2A" Report Showing Status of Medical Expenses

Date Num Name Split Amount DueFromDefenForBodilylnjury Medical Expenses-Past 1/1/97 #01 General Hospital Due to Hospital 5,068.20 1/1/97 #02 Orthopeadic Group Due to Orthopaedic S... 13,329.71 1125/97 #04 Pharmacy +From PL (PD/LOEl... 114.97 211/97 #058 Dr.Ortho, MD Due to Orthopaedic S... -2,281.44 211/97 #05A Dr.Ortho, MD Due to Orthopaedic S... -718.56 Total Medical Expenses-Past 15,512.88

Total DueFromDefenFor80dilyinjury 15,512.88

TOTAL 15,512.88

Exhibit "28" Report Showing Status of Liens

Date Num Name Split Amount

Due to Hospital 111/97 #01 General Hospital Medical Expenses-P... 5,068.20 2115/97 #08A General Hospital Due ToPL'sHealthlnsu... -3,364.40 2115197 #088 +Waiver of Liabilities -1,703.80 Total Due to Hospital 0.00 Due to Orthopaedic Surgeon 1/1/97 #02 Orthopeadic Group Medical Expenses-P... 13,329.71 1/20/97 #03 Dr. Ortho, MD +From PL (PD/LOE/.... -500.00 211/97 #058 Dr.Ortho, MD Medical Expenses-P... -2,281.44 211/97 #05A Dr.Ortho, MD Medical Expenses--P... -718.56 2110/97 #07A Dr.Ortho, MD DueToPL'sHealthlnsu... -9,030.67 2110/97 #078 +Waiver of Liabilties -32.00 Total Due to Orthopaedic Surgeon 767.04 DueToPL'sHealthlnsurer--ubroga 215/97 #06 Plaintiff -Paid to Plaintiff 614.97 2110/97 #07A Dr.Ortho, MD Due to Orthopaedic S... 9,030.67 2115/97 #08A General Hospital Due to Hospital 3,364.40 Total Due TOPL'sHealthlnsurer-Subroga 13,010.04

TOTAL 13,777.08

March 1998 21 the health insurer would have received a subrogation lien. of the use of a motor vehicle in anyone accident," Utah Code Plaintiff from Defendant is decreased, just as when Plaintiff's 180nce medical coverage is exhausted under Plaintiff's auto §3IA-22-304. auto insurer pays outstanding medical bills. See, Allstate policy, Plaintiff's health insurer becomes liable for additional 231n addition, a contract claim arises of Defendant against his Insurance Co. v. Ivie, 606 P.2d 1197 (Utah 1980) (declaring expenses. or her insurer, under the liability insurance provisions of Defen- this result as to Personal Injury Protection payments). See 19This is not an aiticle on the existence, perfection, and pri- dant's auto insurance policy. "(I) Every policy of insurance or also Utah Code §3IA-22-301 (declaring that lost earning benefits are a species of Personal Injury Protection benefits). ority of liens. The attorney must accurately determine the combination of policies purchased to satisfy the owner's or operator's security requirement of Section 41-12a-301 shall Note that property damage payments are ordinarily made legal consequences of a particular transaction, so that suitable by Defendant's insurer (unless paid by Plaintiff's insurer include: (I) motor vehicle liability coverage under Sections accounting entries are made. under Comprehensive/Collision coverage). Therefore, at the 20 Additional complexities arise when a medical bill is paid 3IA-22-303 and 3IA-22-304;" Utah Code §3IA-22-302. "Poli- cies containing motor vehicle liability coverage may not limit outset, the Collateral Source rule is inapplicable to Property Damage payments, and they work to reduce the amount due through public assistance. When such benefits have been paid, the insurer's liability under that coverage below the following: government consent may be critical before suit or settlement, from Defendant. (I)(c) in the amount of $15,000 because of liability for injury to to avoid harsh results. See, e.g., Camp v. Offce of Recovery . . . property of others. . ." Utah Code §3IA-22-304. However, 27"(a) A lawyer shall hold property of clients or third persons Services of Utah Dept. of Social Services, 779 P.2d 242, 245 as Plaintiff's counsel we keep Plaintiff's books, rather than that is in a lawyer's possession in connection with a represen- (Utah App. 1989) ("Accordingly, we conclude that the State is Defendant's. tation separate from the lawyer's own property. . . . Complete entitled to full, rather than equitable, reimbursement from a 24For simplicity, future lost earnings are omitted from this records of such account funds and other property shall be recipient for all its Medicaid expenditures when the recipient kept by the lawyer. . . (b) . . . a lawyer shall promptly deliver proceeds against a third party without the State's consent."). example. However, future losses are similarly tracked, but should be placed into an accounted labeled as an ESTIMATE, to dis to the client or third person any funds or other property that 210bviously, this assessment remains confidential, for use by tin- guish that account from those containing historical data. the client or third person is entitled to receive and, upon the attorney and client, in making decisions regarding the case. 25 As discussed above, technically two additional transactions request by the client or third person, shall promptly render a 22"A prima facie case of negligence requires proof of four full accounting regarding such property." Utah Rule of Profes- arise between Plaintiff and his or her auto insurer. For simplic- sional Conduct 1.5. ". . . All property which is the propeity elements: (I) defendant owed plaintiff a duty of care; (2) ity, these transactions are not tracked herein. of clients or third persons should be kept separate from the defendant breached that duty; (3) defendant's breach of duty 26"Every policy of insurance. . . purchased to satisfy the lawyer's business and personal property and, if monies, in was the actual and proximate cause of the plaintiff's injury; one or more trust accounts." COllent to Rule 1.15. and (4) plaintiff suffered damages as a result of defendant's owner's or operator's security requirement of Section 41-12a- breach of duty." (Bansasine v. Bodell, 927 P.2d 675, 676 301, . . . shall also include personal injury protection under 281n this example, these accounts are labeled "ACTUAL," to (Utah App. 1996). (§3IA-22-3071" §3IA-22-302(2). "Personal injury protection distinguish them from "WHAT IF" accounts. Before settle- Also, a contract claim arises of Defendant against his or coverages and benefits include: (b)(I) the lesser of $250 per ment has been achieved, the attorney can create a "WHAT IF" her liability insurer. "Policies containing motor vehicle liabil- week or 85% of any loss of gross income. . ." Utah Code §3IA- account, which assumes a certain settlement amount is ity coverage may not limit the insurer's liability under that 22-307(1). received, and shows the resulting amount which would then i coverage below the following: (I)(a) $25,000 because of lia- When Plaintiff's auto insurer pays lost earning benefits to be available to the client. bility for bodily injury to or death of one person, arising out Plaintiff, no subrogation lien arises. Instead, the amount due i

EXHIBIT "3" L TABLE OF ADDITIONAL SAMPLE TRANSACTIONS TO ILLUSTRATE TRACKIG OF ALL ECONOMIC CONSEQUENCES OF TH ACCIDENT, INCLUDING TH FOLLOWING: LOST EARNGS, PROPERTY DAMAGE, GENERAL DAMAGES, COMPARATIVE NEGLIGENCE AN OTHR RISKS TO RECOVERY, AN TH RECEIPT AN DISTRIUTION OF SETTLEMENT MONIS

#9 Defendant claims that Plaintiff caused the collision. Attorney for Plaintiff estimates a jury would allocate fault 90% to Defendant and 10% to Plaintiff. However, attorney knows if a jury allocates at least 50% to Plaintiff, then the claim is completely barred under Utah law. Considering all this, attorney discounts the case value by the somewhat arbitrary amount of$20,725.35 (which will result in the case being valued at the round number of$51,500).21 22

#10 Plaintiff has propert damage of$I,400.00, arising from damage to PlaintiíPs car.23

#11 Defendant's insurer pays Plaintiff$I,400.00, to settle propert damage.

#12 Plaintiff loses earnings of$II,342.47.24 25

#13 PlaintiíPs auto insurer pays Plaintiff$4,800.00, as no fault coverage for wages lost,26

#14 Plaintiff suffers pain, and is unable to engage in his or her accustomed activities. PlaintiíP s attorney estimates the monetary value of damage to be $50,000.00.

#15 settlement monies of 51 ,500.00 are paid by Defendant's insurer to PlaintiíP s attorney. 27 28

#16 Under fee agreement, attorney acquires interest in 1/3 contingent fee, upon obtaining settlement funds.

#17A From settlement funds, attorney sends check to Orthopaedist for $690.34.

#178 With acceptance of $690.34, Orthopaedist waives $76.70.

#18A From settlement monies, attorney writes check to PlaintiíPs auto insurer for $7,846.90.

#188 By accepting $7,846.90, health insurer agrees to waive $5,208.60.

#19 Earlier, attorney fied suit and demanded ajury, at a cost of$170.00.

#20 Attorney writes check to himself for fees earned and out-of-pocket costs fronted, totaling $17,336.67.

#21 At same time, attorney writes check to Plaintiff to distribute residual trust monies of $25 ,671.55.

22 Vol. 11 No.2 T

Exhibit 14A" Report Showing Projected Settlement

Jul30, '97

ASSETS Current Assets " Checking/Savings Cash in AttyTrustcct 0.00 Total Checking/Savings 0.00 other Current Assets DueFromDefenForBodilylnjury Medical Expenses-Past 15,512.88 LossOfEarnings..past 6,542.47 General Damages 50,00.00 Court Costs Due From Defendant 170.00 DiscountForRisk(O:O) -20,725.35 ReceivedForDF-Bodilylnj -51,500.00 Total DueFromDefenForBodilylnjury 0.00 DueFromDF forPropDamage 0.00 Total other Current Assets 0.00

Total Current Assets 0.00

TOTAL ASSETS 0.00 LIABILITIES & EQUITY Liabilties Current Liabilties other Current Liabilties Due to Hospital 0.00 Due to Orthopaedic Surgeon 0.00 DueToPL'sHealthlnsurer-Subroga 0.00 Due to Attorney 0.00 Total other Current Liabilties 0.00 Total Current Liabilties 0.00

Total Liabilties 0.00 Equity +From PL (PD/LOE/Pain/Pocket) 63,357.44 +Waiver of Liabilties 7,021.10 -DamagesNotRecoverable -37,892.02 -Paid to Plaintiff -32,486.52 Total Equity 0.00

TOTAL LIABILITIES & EQUITY 0.00

Exhibit "48" Report Showing Detail of Amounts Paid to Plaintiff

Date Num Memo Split Amunt .Paid to Plaintiff 215197 #06 DueToPL'sHealthlnsurer-.. . -614.97 3/2197 #11 Paid by Defendant's i... DueFromDF forPropDama... -1,40.00 5/1197 #13 loe LossOfEarnings--Past -4,800.00 7/30t97 #21 distribution of residual. Cash in AttTrustAcct -25,671.55 Total-Paid to Plaintiff -32,486.52

TOTAL -32,486.62

March 1998 23 Exhibit "5" Report Showing Itemization of Damages

Date Num Name Amount ~ DueFromDefenForBodilylnjury Medical Expenses-Past 1/1/97 #01 General Hospital 5,068.20 111/97 #02 Orthopeadic Gr.. 13,329.71 1125/97 #04 Pharmacy 114.97 211/97 #05B Dr. Ortho, MD -2,281.44 211/97 #05A Dr. Ortho, MD -718.56 Total Medical Expenses-Past 15,512.88 LossOfEarnings--Past 4/1197 #12 11,342.47 5/1/97 #13 Plaintiff -4,800.00 Total LossOfEarnings-Past 6,542.47 General Damages 6/1/97 #14 50,00.00 Total General Damages 50,00.00

Total DueFromDefenForBodilylnjury 72,055.35 DueFromDF forPropDamage 3/1/97 #10 1,400.00 3/2197 #11 -1,40.00 Total DueFromDF forPropDamage 0.00

TOTAL 72,055.35

Exhibit "6" Report Showing Disbursements to be Authorized by Plaintif

Type Date Num Name Memo Amount Cash in AttyTrustcct Deposit 7/10/97 #15 Plaintiff and his attorney settlement check 51,500.00 Check 7/15197 #17A Dr. Ortho, MD 9O%of lien amt, a... -690.34 Check 7/20/97 #18A Health Insurance Company pymt in full of sub... -7,801.44 Check 7/30197 #20 Attorney fees 1/30f$51 ,50... -17,336.67 Check 7/30197 #21 Plaintiff distribution of resi... -25,671.55 Total Cash in AttTrustAcct 0.00

TOTAL 0.00

24 Vol. 11 No.2 First One Hundred Women Attorneys 1872-1976

On January 14, 1998, the Utah State Bar 14th as First Hundred Day and presented The territorial Utah Supreme Court held a reception and dinner to honor the signed proclamations to Ms. Miller to com- admitted the first women in 1872, and the pioneering spirit of Utah's First Hundred memorate the tribute. Bar reached the 100 mark over a hundred Women attorneys and to celebrate women James B. Lee was presented the Dorathy years later, in 1976. Approximately half of in the profession today. Over 950 guests Merril Brothers Award for his contributions Utah's First Hundred women attorneys, and dignitaries gathered to honor those in promoting women in the profession. including many prominent attorneys in women attorneys for their leadership, Chief Justice Michael B. Zimmerman con- active practice today, were admitted in the courage and tenacity in paving the way gratulated the contributions of the First early 1970's. With the admission of 28 toward a promising future for women at Hundred and First Hundred honorees Irene women who passed the bar examination in the Bar. The event was hosted by Debra J. Warr and Justice Christine M. Durham rep- 1976, the Bar had admitted a total of 120 Moore who was the Chair of Utah's First resented the group in comments at the women, all of whom were included among Hundred Committee and included remarks dinner. Judge Judith M. Bilings introduced the night's honorees. Today, following the from Bar President Charlotte L. Miller, the keynote speaker, Roberta Cooper Ramo, pioneering steps of the first hundred, Governor Michaela. Leavitt and Salt Lake former President of the American Bar Asso- women comprise about 17% of the Bar's City Mayor, Deedee Corradini. The mayor ciation, who spoke of the virtues of hard membership. and the governor each proclaimed January work and commitment.

First Hundred Corporate Sponsors

Dinner Programs The Utah State Bar gratefully acknowledges the sponsors of Utah's First Hundred Available Women Attorneys -A Celebration of Women in the Profession: The Utah State Bar has a limited number PARTNERS CONTRIBUTORS of programs available from the January 14th reception and dinner which may be Bowne Intermountain Health Care picked up while supplies last at the recep- tionist desk at the Utah Law & Justice Zions Bank- Litho grafics, inc. Center. The 88-page program includes biographical information on each of the Women's Financial Group First Hundred with photographs, com- ments from many of the women about ZCMI their mentors in the legal profession and careers and quotes regarding their expe- O.C. Tanner riences in the practice of law.

II

March 1998 25 .,I I

~

I

Honorable Michael O. Leavitt Roberta Cooper Ramo, Former President, Chief Justice Michael D. Zimmerman American Bar Association (1995-1996). "You. . . have taken your place in the sun, a place you wil never again be denied." i I

I i I

II i

i

I ¡ I i

\

11

Honorable Judith M. Billngs Honorable DeeDee Corradini Honorable Christine M. Durham

" I

i i

Irene Warr Debra J. Moore Charlotte L. Miler and James B. Lee

26 Vol. 11 No.2 Remarks of Chief Justice Michael D. Zimmerman Before First 100 Dinner of Utah State Bar January 14, 1998

Thank you for the introduction. It is a president two remarkable women. privilege and a pleasure to be here tonight. . these developments are mirrored nation- My interest in women's progress in the ally. Ms Cooper-Ramo, our speaker legal profession and in the broader society tonight, was the first woman president is long standing. My three daughters of the ABA. (Although it did take the deserve nothing less of me. Two of them ABA five years longer than the Utah are here tonight. I thought this was a good Bar to get on the bandwagon.) We have opportunity for them to see some fine role women attorney generals of both the models, and to better understand what it United States, and of Utah, and ten of takes to be a professional woman. our fifty state chief justices are women. I would like first to congratulate Jim These are all positive developments. Lee on receiving the Dorathy Merrill And they are a long way from the horror Brothers Award. It is a worthy recognition stories any number of women in this room for one who has worked quietly but persis- could telL. The experience of the recent tently to advance women in the profession. past is encouraging. And I think it bodes As Charlotte noted, this is only one of well for the future. The sheer number of many things Jim has done for the legal women entering the legal procession community and the broader public becoming a large presence in all areas of assures that you will continue to improve I would be remiss if I did not also con- the law. Look around you at the members your position and prospects. You have the gratulate Charlotte Miller for having the of the bench, law firms, and the govern- critical mass to demand change. great idea of putting on this dinner to ment bar. Although their numbers may That is one side of this evening's theme honor the First i 00, and Debra Moore and still be too few, their presence is signif- - the successes women are now enjoying. her committee for putting this all together. icant, appreciated, and most importantly, But there is another theme for this evening, The measure of this idea's success is that I growing. The trend is firmly set. one not as up beat. Things are much better, have never attended as large a gathering of . gender bias, which was openly defended but they are far from ideaL. I was struck by Utah lawyers and their friends. Each of and practiced in the courts, the law firms, remarks of Lois Baar in an article I read in you honored tonight should take this large the bar, and the general business commu- the Intermountain Commercial Record audience as a firm testament that you, and nity little more than a decade ago is no about the aims of this evening. Lois said, all women lawyers, have taken your place longer politically or socially acceptable. in effect, that this dinner should serve as an in the sun, a place you will never again Your award to Jim Lee is evidence that in occasion to refresh our collective memory, be denied. the large firms, once bastions of gender to make sure that women lawyers don't Things are much better for women in bias, such bias no longer permissible. forget, and that the newest of you know, the law today than was the case even 25 . in the judicial system, we have seen a how hard the struggle for gender equity years ago, much less 125 years ago. To dramatic improvement in how women was, how recent your successes have been. illustrate: lawyers, litigants, and employees are And, perhaps more importantly, to realize . the number of women in the bar has treated over the years since the Gender that the struggle is far from over and will I gone from 119 in 1976, to 1267 in and Justice Task Force report was issued in likely not end anytime soon. i I 1998. Women now constitute nearly 1990. Heightened attention to the issue And I take the liberty of adding, as well, l 19% of the bar membership, and 17% has gone a long way to remedy uncon- that this dinner should serve to unify the of the active practitioners. scious sexism. generations of women lawyers present . the number of women graduates from . within the bar, the decline of gender bias tonight. The women in the profession need the Utah law schools is growing to the is evidenced by the fact that we have now to continue to advance other women and point where complete parity cannot be had two women as bar president in seven help them progress. Gender unfairness may far away. years. It is no longer a remarkable thing have become more subtle, and the issues . as women gain years of experience and to have a woman president. The Utah bar may have shifted, but they are still present. advance within the profession, they are is especially lucky, though, to have had as I have only a brief time here tonight, but

March 1998 27 mII .

I

in what remains, I would like to take my neutral, family friendly values. This would women and men occurs in the process. cue from Lois and try to point out what I necessarily be one that, among other things, In conclusion, to each of you, I would see as a principle challenge that confronts would permit a healthier allocation of time say, continue to exert pressure to improve women lawyers, a challenge that they face and energy between family and work. on the parts of the legal culture over which because of certain fundamental characteris- Some would say that this is not possible, you have any influence. You recognition of tics of the legal culture and, to a degree, because the larger culture is riddled with Jim Lee tonight acknowledges that one the larger culture. I choose this issue from gender bias and gender role assumptions. I person can make a difference. The effects among many because it lies at the core of would reply that it is true the legal profes- of the Gender and Justice Task Force on many of the complaints I hear from women sion is not separate from the wider culture, the judiciary and beyond shows that bring- ~~ lawyers, and from some of their more and that it cannot avoid its notions of appro- ing awareness to people of good will can award male colleagues. priate gender roles. But certainly to the alter their behavior. And this dinner shows The challenge of which I speak is extent that the law firm culture is a historical that there are lots of people out there lis- addressing and alleviating the conflict remnant from a time when only men were tening who care about the issues of women between home and work. As an example, lawyers, there is no reason it cannot be lawyers. let's look first at law firm culture. reshaped to match the present demographics I suspect it is because they are not just Although women may be a common and values of the members of the bar. I am the issues of women lawyers, but they are feature of law firms now, law firm culture an optimistic person. I think that this will all our issues. is still shaped by its recent history: it is happen. The only question is how long it Thank you. defined by the traditional male attitudes takes, and how much more alienation of both toward their professional work roles. Put succinctly, a male lawyer's first concern, The First Hundred Committee thanks Richard Y. Merrell of Salt Lake City for recently indeed some would say his only concern, informing it that his sister Ida Merrell was admitted to the Utah State Bar in 1947 and was traditionally has been his career. Children among Utah's first hundred women attorneys. Because the Committee was previously and family were the wife's responsibility. unaware of Ida Merrell, the following photograph and biography did not appear in the Today, women may have a larger pres- commemorative program for Utah's First Hundred Women Attorneys - A Celebration of ence in firms, but they are expected to I i Women in the Profession on January 14. We regret the omission. conform to the firm's male defined culture. I Work is job one. Children and family are someone else's job, be it a partner, a nanny, IDA MERRELL or other child care provider. Many of you Born in 1916 in Brigham City, Utah, Merrell women have succeeded in this environ- received a scholarship from the Business and Profes- ment, but some of the comments you sent sional Women's Club to attend law school at National in to the dinner committee illustrate, you Law University in Washington, D.C., where she know it has been at a regrettably high cost received her LL. B. in about 1946. Merrell returned to to your personal life. Some may say that men pay the same Utah and was admitted to the Utah State Bar in 1947. price, and have for years. That may be true She then engaged in private practice in Brigham City, in the abstract. But I think the pressure the was associated with David J. Wilson, a lawyer candi- law firm job-first culture places on women date for the U.S. Congress, and was employed as a law clerk for the Hon. is unique because of the values of the cul- George Latimer on the Utah Supreme Court. ture outside the law firm. In that wider world, the woman is still expected to be In 1951, Merrell moved to Washington D.C. where she continued to responsible for the health of child and fam- work for Judge George Latimer on the U.S. Court of Military Appeals. Six ily. Women who don't conform to this years later, Merrell returned to Brigham City, where she was elected to the expectation are judged harshly, and they city bench in 1957. She served as city judge until her death in 1961. may internalize those cultural judgments to ¡ their own psychological detriment. II There is little escape from this clash of

cultural expectations. Even if a woman is I lucky enough to find a partner who is will- \ I ing to share the family maintenance i responsibilities equally - and that is a rare thing - the woman has still not put her job first, as the firm culture expects. If I were to generalize from this one example, I would say that the long range challenge for women, and for men, is to evolve a law firm culture that reflects gender

28 Vol. 11 No.2 ~STATE BAR NEWS-- of Commissioners to work with Brent The Commission reviewed the nomi- Commission Manning to draft written comments on nations, discussed several of those Highlights the informal opinion and to submit names, and ballots were distributed those comments to the Judicial CounciL. to tally finalists for a vote. The Com- During its Annual Meeting on December 7. The Board voted to present the Distin- mission selected James B. Lee as the 5, 1997, held in Salt Lake City, the Board guished Service Award to Suzanne award recipient. !, of Bar Commissioners received the follow- Marychild, Chair of the Lawyers 15. The Board approved Ethics Advisory ing reports and took the actions indicated. Helping Lawyers Committee. Opinion No. 97-11, dealing with 1. The Board approved the minutes of 8. Ben Sims, Chair of the Labor & whether or not it was ethical for an the October 24, 1997 meeting. Employment Law Section, appeared to attorney to finance the expected costs 2. Charlotte Miller reported that a c~m- report on the activities of the section of a contingent fee case with a non- mittee had been established including CLE seminars and luncheons. recourse promissory note secured following the Access to Justice Task 9. John Baldwin referred reports regard- only by the attorney's interest in the Report to evaluate the appropriate- ing the various Bar Departments contingent fee for the case. ness and the manner by which legal including the Office of Attorney Disci- 16. John Baldwin distributed a letter assistants could be regulated under pline and the pro bono coordinator. written by an attorney to the the umbrella of the Supreme Court. 10. Baldwin indicated that Bily Walker Supreme Court Rules Committee 3. Charlotte Miler reported that Debra has just been hired as the Bar's new requesting that the court impose a Moore and her committee were well Chief Disciplinary Counsel and would rule requiring malpractice insurance underway in gathering information begin with the office on January 5. of all licensing attorneys. regarding the first hundred women i 1. The Board approved the Legal Assis- 17. President-Elect Jim Jenkins distrib- lawyers in the state, which has tants Division Bylaws. uted copies of memoranda regarding included seeking biographical infor- 12. Budget & Finance Committee Chair, the various strengths and weaknesses mation and photographs and other Ray Westergard, distributed a copy of of the Park City site and the advan- materials. the November financial reports in tages and disadvantages of holding 4. Francis Wikstrom reported on the addition to referring to the October the 1999 Annual Meeting there. The American Bar Association's Leader- financial reports. Board voted that the Park City ship Conference attended last month 13. The Board approved the recommenda- Annual Meeting be postponed to a by Charlotte Miller, John Baldwin, tion of the Budget & Finance later date when the facilities would Jim Jenkins and himself. Committee to bank with Zions First accommodate our size group and that 5. Charlotte Miller distributed a memo- National Bank. the 1999 Annual Meeting be held in randum regarding a proposed 14. Charlotte Miller circulated copies of Sun Valley. amendment to the Supreme Court's nominations that had been received for A full text of minutes of this and other Mandatory Continuing Legal Educa- the newly named Dorathy Merrill meetings of the Bar Commission is avail- tion rule which would allow Brothers Award for promoting the able for inspection at the office of the continuing legal education credit for interest of women in the profession. Executive Director. lawyers who provide seminars to legal assistants. Charlotte mentioned the MCLE Board suggested that the Commission petition the Supreme Medical Insurance Court directly for the changes. The Board voted to petition the Court to adopt the proposed language. Sponsored by 6. Brent Manning, Chair of the Courts & Judges Committee, appeared to The Utah State Bar it lead a discussion regarding a \ recently published informal opinion No. 97-7 issued by the Judicial Blue Cross & Blue Shield or IHC Ethics Advisory Committee address- ing the appropriateness of certain contacts between lawyers and the The Insurance Exchange judiciary. The Board approved a motion to request the Judicial Council Utah State Bar Managing Agency to receive the Commission's input and to establish an ad hoc committee 355-5900 SLC or (800) 654-9032

March 1998 29 a rr --...... 0',1 Get. Organized! l-The and

Flat fee for fi Each additional p ~ Small Firm/Individual

.~ .

CALL TO SCHEDULE YOUR SESSION TODAY (435) 647-0999 BLESS YOUNG, ESQ" PRESIDENT 2447 FAIRWAY VILLAGE DRIVE, PARK CITY, UTAH 84060

cg 1998 Get Organized! Provider certifies that this activity has been approved for MCLE credit (including Law Offce Management credit) by the State Bar of California. Discipline Corner services for methamphetamine." that the simple effort or the cost to see that Another client related an instance in the tests were performed would be justified INTERIM SUSPENSION which a close companion of Pendleton's and not prohibitive." On January 16, 1998, the Honorable "came to him to get a supply of the drug and The Court found "by clear and convinc- Boyd Bunnell, Senior District Court Judge, didn't have cash to pay for it and was told it ing evidence that Pendleton has repeatedly presiding in the Fifth Judicial District was for (Pendleton) and that the price would pòssessed, distributed and accepted a con- Court, entered an Order of Interim Suspen- be credited against his legal services' bilL." trolled substance in exchange for legal sion suspending Gary Pendleton from the Mr. Pendleton's companion tried for some fees: that while defending persons accused practice of law pending final disposition of time to get Pendleton on the telephone, with- of criminal acts, he has participated with the disciplinary proceeding, out success, to verify for theclient the stated those persons in furthering violations of ~, The Court conducted a hearing on Janu- arrangement. The client, "who made and the law and has encouraged those clients to ary 10, 1998, on the Utah State Bar's ~., supplied methamphetamine to Pendleton "violate the same laws of which they are Petition for the Interim Suspension of over a period of time, further stated while he accused of violating; that by these acts he Pendleton From the Practice of Law Until was in custody on a criminal charge that has violated the Rules of Professional Con- Final Conclusion of the Pending Discipli- (Pendleton), who was his attorney, told him duct." The Court further found that he had nary Action. The Court took the matter 'They couldn't wait for me to get out, "demonstrated a callous disregard for the under advisement and on January 16, 1998, because they're getting this crappy Mexican law, his clients and the public and if entered an order finding that the evidence ephedrine. It's just a low grade, And they allowed to continue in the practice of the law clearly showed that Pendleton "was a can't wait for me to get out.''' he will and does now pose a substantial heavy user of methamphetamine for a con- The videotape offered as evidence by the threat of irreparable harm to the public," siderable period of time," Office of Professional Conduct showed Pursuant to Rule 26 of the Rules of At the hearing, one of Pendleton's Pendleton and his "close lady friend" ingest- Lawyer Discipline and Disability, Pendle- clients stated that he supplied Pendleton ing lines of methamphetamine at the home ton had thirty days from January 16, 1998 with methamphetamine "in rather large of clients of Mr. Pendleton. The tape was within which to wind-up his practice. quantities from approximately June of taken by the client without Pendleton's 1995 to November of 1996 in the neigh- knowledge for the client's purpose of having SUSPENSION borhood of 15 to 17 times," Pendleton some insurance that Pendelton would follow On December 22, 1997, the Honorable "admitted that he was using methampheta- through and defend him in court. Anne M. Stirba, Third Judicial District mine for approximately L1I2 years prior to The Court found that "(t)he evidence is Court, entered an Order of Discipline: Sus- the filing of the criminal charges against overwhelming and well substantiated that pension, suspending Frank J. Falk from the him but denier d) that he offered or agreed (Pendleton) offered to and did exchange his practice of law for violation of Rules 1.1 to trade his legal services for drugs. legal services for methamphetamine and did (Competence), 1.2(a) (Scope of Represen- He further stater d) that he had not used so with at least four separate clients. The tation), 1.3 (Diligenc,e), 1.4(a) and (b) the drug for several months." The Court Court took judicial notice that a jury, on (Communication), 1.5(a) and (b) (Fees), found the "the evidence submitted to the December 12, 1997, found Pendleton guilty 1.16( d) (Declining or Terminating Repre- Court clearly demonstrated that Pendleton of possession and use of a controlled sub- sentation), 3.2 (Expediting Litigation), had a general reputation among the drug stance, a 3rd degree felony," 8.4(a), (c) and (d) (Misconduct) of the culture in and around St. George as an Pendleton further admitted at the hearing Rules of Professional Conduct. The suspen- attorney who used drugs and who per- on the Petition for Interim Suspension that sion was held in abeyance, and places Falk formed legal services in exchange for cash the judge in the criminal case had ordered on supervised probation for one year. Falk and methamphetamine." him to submit to chemical tests to see was also ordered to pay restitution. The Three of Pendleton's clients whom he whether drugs were present in his system. Order was based on a Discipline By Consent represented in criminal cases stated that Pendleton admitted that he had never had the and Settlement Agreement entered into by Pendleton "agreed to represent them in tests performed, He stated that he went to Falk and the Offce of Professional Conduct. their respective criminal cases and agreed the offce of the Adult Probation and Parole Fifteen clients retained Falk to represent to take part payment in the form of on two different occasions and they refused them in various types of matters including methamphetamine." Another client, whose to perform the tests without a court order. representation in divorces, modification of ~ statement was introduced into evidence by He further stated that he went to a private divorce decrees, collection of child sup- Pendelton, covered in detail "a time when laboratory but found that the costs were pro- port, visitation, paternity actions, ~ she was in (Pendelton's) office as his client hibitive, The Court noted that if Pendleton protective orders, and one case against the and he produced methamphetamine and "was clean of drugs and wanted that fact Utah Industrial Commission, paraphernalia for its use from his desk and established his attorney could, with little The clients alleged, and Falk agreed, that they jointly ingested the drug for over effort and in one day, obtain the order from that in many of the cases Falk: an hour." The Court found that "the fact Judge Roth by way of fax or telephone," The . failed to competently represent the that (Pendleton) used the drug with his Court noted that Pendleton "knew the signif- client by using reasonably necessary clients at their home and in his office on icance of the results of such tests when he is legal knowledge, skil, thoroughness more than one occasion further substanti- awaiting sentence on a criminal charge and and preparation; ates the allegation that he did trade legal has a disbarment proceeding pending and . failed to diligently pursue the agreed

March /998 31 -

goals of the clients representation by Judgment wherein he alleged that neither he WithdrawaL." He did not notify his client of making timely discovery responses and nor his client received notice of one of the the withdrawal, nor did he file the Notice by consulting with the clients about hearings. A Supplemental Order hearing was with the Court until March 3, 1997, He what response, if any, could be made; held, and Bybee failed to appear. Bybee then dated the document February 6, 1997, and . failed to act with reasonable diligence failed to accurately inform the client of the dated his certificate of mailing February 8, and promptness in responding to discov- true status of his representation. 1997. Bybee failed to notify the Court of ery and in promptly informing the clients In a second matter, Bybee was ordered by his withdrawal prior to the triaL. Although of the outcome of their proceedings; Judge pro tem Carlos A. Esqueda to prepare the certificate of mailing filed with the . failed to respond to the clients' reason- an Order in a matter in which Bybee repre- Court on March 3, 1997, stated that Bybee able requests for information and keep sented the plaintiff. At that hearing, Judge had given notice to his client of the "Notice them reasonably and truthfully Esqueda made certain rulings, When Bybee of Withdrawal," there had been no notice to informed about the status of their mat- submitted an Order and Judgment, Affdavit the client, and Bybee knew this because he ters, and to explain the matters to the of Costs and Attorney Fees, and proposed had received the envelope returned to him extent necessary to enable them to make Findings of Fact and Conclusions of Law, showing that his client had never received informed decisions; and the documents misre,presented Judge the "Notice of WithdrawaL." . upon termination of his representation Esqueda's rulings. After reviewing the docu- In a fifth matter, Bybee represented a of several clients, he failed to give them ments filed by Bybee, the Honorable Judith client in a civil matter. The dispute in that notice of his intent to withdraw and S.H, Atherton, District Judge of the Third civil matter became a criminal prosecution failed to provide the clients with a copy Judicial District Court, filed a complaint in the state of Missouri, Bybee's client was of their client files, with the Utah State Bar alleging that Bybee arrested and jailed in Utah based on an In some cases Falk failed to perform had significantly misrepresented the ruling arrest warrant issued in the Missouri mat- services at all and failed to return the of the Court, including but not limited to ter, In March 1994, Bybee filed a Writ of retainer to the clients, awarding unauthorized attorney fees plus Habeas Corpus to prevent the extradition interest to himself, attempting to include an of his client to Missouri. In April, the Hon- SUSPENSION unauthorized dismissallof an underlying orable Pat Brian ruled against the State On January 16, 1998, the Honorable judgment against Bybee's client, thus regarding the writ and the client was John A. Rokich, Third Judicial District attempting to reinstate without authority, the released, The Offce of Professional Conduct Court, entered on Order of Suspension and client's dismissed action, dismissed the complaint, but on appeal by Probation, suspending Don L. Bybee from In a third matter, Bybee was retained to the complainant regarding the Chair of the practice of law for eighteen months for represent a client in a divorce action. During Ethics and Discipline Committee at the violation of Rules 1.3 (Diligence), 1.4 the course of the representation, Bybee, with Utah State Bar, the dismissal was reversed (Communication), 1.6 (Declining or Ter- his client, spoke to the defendant in the mat- and remanded to the Office of Professional minating Representation), 3,3(a)(I) ter for several minutes regarding the subject Conduct for further investigation. (Candor Toward the Tribunal), 4.2 (Com- of the representation. Although Bybee munication with Person Represented by placed a call to the defendant's attorney so SUSPENSION Counsel), 8.1 (b) (Bar Admission and Dis- that she could participate in the conversa- On January 20, 1998, the Honorable ciplinary Matters), and 8.4(c) and (d) tion, she was not available, Bybee did not Timothy R. Hanson, Third Judicial District (Misconduct) of the Rules of Professional have consent to speak to the defendant. Court, entered an Order of Discipline: Sus- Conduct. The suspension was stayed, and Based on Bybee's violation of Rule 4.2 pension, suspending Stanford V. Nielson places Bybee on supervised probation for Bybee was disqualified by the Commis- from the practice of law for violation of eighteen months. Bybee was also ordered sioner and the Judge from representing his Rules 5,5(a) (Unauthorized Practice of to pay costs to the Bar and to attend the client. In statements to the Court, Bybee Law), 8.l(b) (Bar Admission and Discipli- next scheduled Ethics School of the Utah misrepresented what occurred in his conver- nary Matters), and 8.4(c) (Misconduct) of State Bar, The Order was based on a Disci- sation with the represented party. the Rules of Professional Conduct. The pline By Consent and Settlement In the fourth matter, Bybee represented a suspension will commence on July 1, Agreement entered into by Bybee and the client in an appeal from a small claims action. 1998, for a period of thirty days following Offce of Professional Conduct. A hearing was held in the small claims appeal Nielson's current suspension through June The Office of Professional Conduct before the Honorable Judith S,H, Atherton, 30, 1998. The Order was based on a Disci- received five complaints alleging miscon- On that day, Bybee raised issues that led pline By Consent and Settlement duct, which ultimately resulted in the filing Judge Atherton to continue the appeal of the Agreement entered into by Nielson and the of the formal complaint. In the first infor- small claims matter so that counsel could Office of Professional Conduct. mal complaint, a client retained Bybee to provide the Court with information regarding In October of 1994, a court reporter per- defend him and file a counterclaim in a the custody status of a child and other issues formed reporting services for Nielson. Small Claims action. Bybee filed an concerning the civil liability of Bybee's Nielson failed to respond to the court Answer and Counterclaim, but missed two client for actions committed by her child. reporter's repeated written demands for scheduled hearings and Default was subse- Bybee knew and was aware of the continued payment for more than one year, eventually quently entered against the client. Later, trial date and failed to appear at the triaL. At compelling the court reporter to seek and Bybee filed a Motion to Reconsider the some point, Bybee prepared a "Notice of obtain a judgment for her fees through a

32 \IJ!. 11 No.2 m Small Claims action. Nielson failed to pay Additionally, Nielson was suspended for

the judgment amount, forcing the court non-payment of Bar dues, effective Septem- __.....~./STÄ'f~., '~\(. ;'..;r;.'."...;.;.'.;.ß....¡ ~\ reporter to file further proceedings to ber 3, 1996, and notified by the Bar of his /J~- obtain partial satisfaction of the judgment, suspension on September 5, 1996, but did ~ ~l~" ~.i.~~\ which was not finally satisfied for more not pay his delinquent dues until September \\ It ¡ o::t i /:~/ than seven months after the court reporter 30, 1996. During the period of his suspen- '$Q:~~~.".'.'~'.\~ / filed a complaint with the Offce of Profes- sion and while he was aware of the . ~",/ZEt) sional Conduct. Nielson failed to respond suspension, Nielson practiced law by to repeated requests from the Office of appearing in court on behalf of a client. Fur- Professional Conduct for information con- thermore, Nielson failed to cooperate with cerning the court reporter's complaint. the Bar's investigation, iJtai §tateBar Notice of Amendments to Rules

The following rules have been amended Rule 12. Motions. Changes language in tions of the Court Security Task Force to 1) by the Supreme Court or Judicial Council Rule l2(b)(2) from "motions concerning the require security plans for justice courts; 2) with an effective date of April 1, 1998, admissibility of evidence" to "motions to permits local courts to allow designated unless otherwise indicated. The informa- suppress evidence." officials to carry a firearm in a courthouse; tion is intended to alert Bar members to Rule 26. Appeals. Adds provisions for and 3) clarify the responsibility for pending changes that may be of interest appeal by the prosecution from dismissal of appointment and supervision of bailiffs. and not an inclusive list of all changes a felony information following a refusal to Rule 4-201. Record of proceedings. made. Further information may be found in bind defendant over for trial and from non- Establishes that an audio recording system the following sources: final orders dismissing or quashing part of a may be used to maintain the official verba- . Code-Co. Web Site: felony information if the appellate court tim record in small claims cases, Requires ii http://www.code-co.com/utah/ decides that appeal would be in the interest one original recording to be made when an i,

. Intermountain Commercial Record of justice, audio recording system is used to maintain II'1 (February 6, 1998) the offcial verbatim record. ii I . Pacific Reporter Advance Sheets RULES OF APPELLATE PROCEDURE Rule 4-510. Alternative dispute reso- I . Utah State Courts Web Site: Rule 9. Docketing statement. Adds lution. Amends notice requirements when http:// courtlink. utcourts .gov /rules/ motions under Utah Rules of Criminal Pro- parties use the ADR process. cedure 24 and 26 to Rule 9(c)(1). Rule 4-608. Trials de novo of Justice RULES OF CIVIL PROCEDURE Rule 11. The record on appeaL. Court proceedings in criminal cases. Rule 10. Form of pleadings and other Requires clerks to number only the cover Changes the venue provision for the trial papers. Adds requirement that plaintiff file pages of depositions and transcripts, de novo of justice court criminal proceed- a completed cover sheet with the complaint. Rule 23B. Motion to remand for deter- ings to the district court of the county Rule 17. Parties plaintiff and defen- mination of ineffective assistance of nearest the justice court in which the origi- dant. Recognizes change in divorce statute counseL. Adds requirements for motions nal proceedings were heard, which requires parties to be referred to as requesting findings of fact from the trial Rule 4-803. Trials de novo in small "petitioner" and "respondent." court on a claim of ineffective assistance of claims cases. Changes the venue provision Rule 60. Relief from judgment or counseL. Requires identification of factual for the trial de novo of justice court small order. Removes paragraph (b)(4) due to issues to be addressed on remand. claims proceedings to the district court of the ambiguity and possible conflict with rules Rule 24. Briefs. Indicates how references to county nearest the justice court in which the permitting service by means other than depositions and transcripts should be made. original proceedings were heard. Changes personal service. Rule 27. Form of briefs. Adds propor- references in paragraph (2) from "justice Rule 64C. Attachment. Gives court tional spacing and monospacing typeface court" to "court issuing the judgment." more flexibility in paragraph (b) establish- requirement for briefs, including footnotes, ing the amount of the undertaking to OTHER CODE OF JUDICIAL provide adequate security to the defendant RULES OF JUVENILE PROCEDURE ADMINISTRATION RULES for all damages and costs, Rule 7. Warrants for immediate custody Rule 1-205. Standing and ad hoc Appendix of Forms. Many new forms of minors; grounds; execution of war- committees. have been adopted. rants; search warrants. Adds provision for Rule 3-104. Presiding judges. telephonic issuance of warrant during non- Rule 4-906. Guardian ad litem RULES OF CRIMINAL PROCEDURE business hours or under exigent circumstances. program. Rule 8. Appointment of counsel Rule 4-910. Sanctions for denial of (approved as emergency rule effective CODE OF JUDICIAL child visitation. (deleted) July 1, 1997). Adds provisions governing ADMINISTRATION Rule 9-101. Board of Justice Court qualifications for appointment as counsel for Rule 3-414. Court security (effective Judges. post-conviction proceedings in capital cases, May 1, 1998). Implements recommenda-

March 1998 33 ---~,

Trial Academy 1998 Continues on March 25 Utah State Bar "Part II-Opening Statements" Utah Dispute Resolutions Legal Aid Society On March 25, 1998, the second session six evening seminars held every other month of Salt Lake of the Litigation Sections' popular "Trial over the course of a year taught by top-notch Academy" wil be held at the Law & Jus- trial practi,tioners and focusing on basic trial Utah Legal Services, Inc. tice Center from 6:00 to 8:00 p.m, skills. This is THE course of any lawyer new (Registration begins at 5:30 p.m.) The to trial practice who wants focused, nuts-and The Administrative topic for Part II is "Opening Statements," bolts training in conducting a civil jury trial Prominent local trail attorneys wil lecture from start to finish. Office of the Courts on the applicable law and rules and will Attendees wil receive 2 CLE credit hours The Marriage of demonstrate opening statement techniques and the seminar qualifies for NLCLE credit. before a federal and state judge. Compre- The cost is $25 per session for Litigation Mediation and hensive written materials will be provided, Section members and $35 for non-members. Divorce Note that it is not necessary to have Enrollment is limited and therefore pre-reg- attended the first session on jury selection istration is strongly recommended, To Date: Friday, April 10, 1998 in order to benefit from the program, register call Monica Jergensen, CLE Coordi- The Trial Academy is one of the Bar's nator for the Ut~h State Bar, at 297-7024. Time: 8:00 a,m. to 12:00 p.m. most useful CLE programs and consists of (Registration begins at 7:45 a,m.) Place: Utah Law & Justice Center, Legal Aid Society Receives Partnership Grant 645 S. 200 E., SLC, UT from Salt Lake County Bar Association and Fee: FREE for attorneys who Snow, Christensen & Martineau volunteer to assist mediat- ing parties. $65,00 for all other attorneys, CLE Credit: Four hours

To register please RSVP by Friday, April 3, i 998 to Amy Jacobs at 297-7033

Bar Directory On-Line

John Lund, of Snow, Christensen & Martineau; Toby Brown, President of Board of We receive a lot of requests from Bar Truslees; Stewart Ralphs, Executive Director; Bruce Olsen of SaIi Lake Couiity Bar members about directories of Utah attor- neys. There are a number of hard-copy The Salt Lake County Bar Association Bar and the remaining- two thousand needed versions available from local vendors and the law firm of Snow, Christensen & came from Snow, Christensen & Martineau. which you may want to pursue. However, Martineau have joined together to donate To round out the picture, Complete Con- the Bar has taken steps to make it easy for $7,500 to Legal Aid Society of Salt Lake, cepts, Val Com and Morgan Consulting wil you to find your fellow Utah lawyers. "The $7,500 grant comes at a critical donate their time and expertise to set up the Check out our web site at time. Legal Aid Society is upgrading the new system, htpp:/ /www.utahbar.org/directories.html. computer system so that we can be ready Legal Aid Society provides no cost legal This is an on-line version of the Bar direc- for electronic filing and digital signatur~s representation to low-income individuals tory, It is updated least weekly, so you can offered at the new courthouse sometime with divorces, child custody and support, be sure that it contains the most recent this summer" states Board President, Toby visitation, guardianship and modification of information. As well, at this site. there are Brown. "This advanced technology will orders, Legal Aid Society also assists adults directories of Bar Commissioners, Bar streamline the organization, allowing the and children who are victims of domestic Staff, Sections, Committees and local bar staff to be much more efficient." violence in obtaining protective orders from associations for your conveniece, A formal check presentation was made the court, regardless of the victims' income, to Legal Aid Society on January 6, 1998 at It does not accept criminal cases. Check it out. If you have questions the last Salt Lake County Bar Association During 1997, Legal Aid Society assisted about the site or the directory, plèase con- tact Toby Brown at tbrown (Qutahbar.org. meeting, Five thousand five hundred dol- more than 2,500 clients with domestic relations Thanks! lars were donated by the Salt Lake County cases and 3,000 victims of domestic violence,

34 Vol. II No.2 i æ How to use the Utah State Bar Member Directory The Utah State Bar on line directory is a great resource for lawyers, legal assistants and legal secretaries. It is located from the Bar Web Page (found at http://www.utahbar.org)

Click on "directories" to go the the directory.

Did you hear the one about. . . ? Mark your calendars I

Please select an area to explore...

I Public Servces I Q & A I Member Servces I Events I Directones I Lins I irdo(ttahbar.org

hc pqt dóii( by Pll Nu

March 1998 35 Utah State Bar Directory

'Ts is a gateway to the Utah State Bar Memberslup Trackig System, to locate a curent or

past member of the Utah State Bar, enter a keyword into the search widow of your browser to search the membershi records. Multiple keywords narow the sea rch. Keywords are not field sensitive, but operate though the fu record. Matchi is not case sensitive.

uffe r In

Every effort is made to have accurate data but errors may occur. If you have a question or correction, please contact ino~utahbar.org.

Enter the name of the lawyer, or legal assistant, or a firm or city name. The search wil proceed when you click the SUBMIT button.

Multiple records matched your query .

For detaied inormation about a parcular member of the Utah State Bar, please click on their il.

36 Vol. JJ No.2 m In this case, the names of attorneys whose records contain "nuffer" came up. This includes David Nuffer, Denver Snuffer, members of theiffirms and other luminaries. Click on the name you really want to get more information.

Utah State Bar Membership Tracking System

David 0 Nufer 90 East 200 Nort P.O. Box 400 St. George, UT, 84771-0400

Voice Telephone: (801)674-0400 FAX: (801)628-1610 Emai: david.nuffertIsnedws.com Membership Information

This screen is the key. You can copy and paste the address information infor into your word processing document or - Click on the "hot" e-mail address and your e-mailer wil create a message addressed to the listed person.

March 1998 37 Ethics Advisory~ Opinion Committee Basic Mediator OPINION NO. 97-12 a crime or otherwise comes under suspicion Training Issue: Utah Code Ann. §62A-4a-403 as a potential criminal defendant in that obligates any person who suspects a child county? Is it enough that the prosecutor refers Sponsored by the Court Annexed ADR has been subjected to abuse to report such any criminal matter involving the opposing Program & Utah Dispute Resolution conduct to the nearest law enforcement litigant to another prosecutor, or must the officer. Is it a violation of the Rules of Pro- attorney withdraw from both matters? Location: Law & Justice Center fessional Conduct if the attorney does not Opinion: As a general rule, a Utah prose- 645 So. 200 East, SLC report a client's conduct that falls under cuting attonrey acting as. a private Dates: May6- 10 this provision when the attorney learns of practitioner should avoid engaging in a civil 8:00 a.m. - 5:00 p.m. such conduct from the client and the client action that involves parties and facts that Fees: $500 refuses to consent to such disclosure? have been or become the subject of criminal Focus: This 32 hours course provides Opinion: It is not a violation of the investigation within the prosecutor's juris- basic mediator training and Rules of Professional Conduct if the attor- diction. Provided the attorney has not satisfies the requirement for ney does not disclose such information, but become personally substantially involved in participation on the Court the attorney may, to the extent the attorney and has no meaningful control over any Annexed ADR roster. believes necessary, disclose attorney-client investigation of the criminal matter, the information as provided in Rule 1.6(b). attorney already involved in civil litigation need not withdraw from the civil matter and Book Review/ OPINION NO. 98-01 can avoid inherent conficts by referring the CLE Session Issue: Mayan elected county attorney criminal matter to an appropriate conflcts or other prosecutor who is allowed to attorney. The University of Utah College of Law engage in private practice continue to act is presenting a panel review of the award- as attorney in a civil matter in which the winning book A Civil Action by Jonathan opposing party in the civil matter commits Rarr. The panel members are James B. Lee, Bob Peterson and Professor Susan Poulter. Utah Supreme Court Justice Ethics Opinions Available Michael Zimmerman wil be the modera- The Ethics Advisory Opinion Committee of tbe Utah State Bar has compiled a tor. The book review wil take place Thursday, March 19, at 6:30 p.m. in the compendium of Utah ethics opinions that are now ava.ilable to members of the Bar for the law school's Sutherland Moot Courtroom. cost of $10.00. Sixty-five opinions were approved by the Board of Bar Commssioners Light refreshments wil follow. Lawyers between January 1, 1988 and January 23, 1998. For an additional $5.00 ($15.00 total) mem- attending the presentation may receive 2 bers wil be placed on a subscription list to receive new opinions as they become available hours of CLE credit, including 1 hour of during 1998. ethics. There is no charge for the event. ETHICS OPINIONS ORDER FORM Quantity Amount Remitted

Utah State Bar Ethics Opinions ($10.00 each set)

Ethics Opinions/ Subscription list ($15.00) I would like to than all the members Please make all checks payable to the Utah State Bar of the Bar Examiners Committee, Bar Mail to: Utah State Bar Ethics Opinions, ATTN: Maud Thurman C Examiners Review Committee and 645 South 200 East #310, Salt Lake City, Utah 84111. Character and Fitness Committee for a successful February Bar Examination Name that was given February 24th and 25th. è'-':~~ Your voluntary time for the bar exam- ~ -'~, Address nation was very much appreciated. Thank you again, City ,,~'\~,""). $.:: State Zip Darla C. Murhy, Please allow 2-3 weeks for deli"rery;\',::..':,;\ Admissions Administrator

38 Vol. 11 No.2 1998 Annual Meeting Awards NOTICE The Board of Bar Commissioners is ties, exemplified for their fellow attorneys Utah has enacted a revised Pro Hac Vice seeking nominations for the 1998 Annual the epitome of professionalism, and/or who rule effective November 1, 1997 which Meeting Awards. These awards have a long has also rendered extraordinary contribu- imposes new requirements on Utah attor- history of honoring publicly those whose tions to the programs and activities of the neys who associate with non-resident professionalism, public service and personal Utah State Bar in the prior year. lawyers who wish to appear in Utah courts. dedication have significantly enhanced the 3. Distinguished Young Lawyer of the There has been some confusion about the administration of justice, the delivery of Year. Determined by the Young Lawyer's new procedures. The rule (Rule 11-302 legal services and the building up of the Division. Utah Code of Judicial Administration) profession. Your award nomination must be 4. Distinguished Section/Committee. requires that an application and $75.00 fee submitted in writing to Monica Jergensen, This award is presented to a section and/or for each non-resident attorney seeking Convention Coordinator, 645 South 200 committee of the Utah State Bar that has admission must be submitted to the appro- East, Suite 310, Salt Lake City, Utah made outstanding contributions of time and priate court. In addition, a motion 84 i 1 I, no later than Wednesday, April 1, talents to Bar activities as well as provided complying with Rules 11-302 requirements 1998. The award categories include: outstanding services, programs and/or activi- must be filed with the court, affidavits are 1. Judge of the Year. This award is pre- ties for Bar members and the public at large no longer required. Utah counsel must pro- sented to the judge whose career during the past year. vide copies of each application and the exemplifies the highest standards of judicial 5. Distinguished Non-Lawyer for Service motion to General Counsel of the Utah conduct for integrity and independence; to the Profession. This award is presented State Bar. who is knowledgeable of the law and faith- to a non-lawyer who, over a period of time, Copies of the rule, application and ful to it; who is unswayed by partisan has served or assisted the legal profession or instruction sheet can be obtained from any interests, public clamor or fear of criticism; the Utah State Bar in a significant way. court or the Utah State Bar. If you have who is patient, dignified and courteous to 6. Distinguished Pro Bono Lawyer. This questions, please call Lynette Limb at all who appear before the court; and who award is presented to an attorney who has the Bar at 531-9077. endeavors to improve the administration of made an exemplary contribution of time and justice and public understanding of, and effort, without compensation, to provide respect for, the role of law in our society. legal assistance to people who could not 2. Distinguished Lawyer of the Year. afford the assistance of an attorney. This This award is presented to a Utah Bar award is intended to reflect such contribution member who, over a long and distinguished of an attorney during the past year as well as legal career, has by his or her ethical and contributions over an attorney's career. personal conduct, commitment and activi-

. MEMBERSHIP CORNER CHANGE OF ADDRESS FORM Please change my name, address, and/or telephone and fax number on the membership records:

Name (please print) Bar No.

Firm

Address

City/State/Zip

Phone Fax E-mail All changes of address must be made in writing and NAME changes must be verified by a legal document. Please return to: UTAH STATE BAR, 645 South 200 East Salt Lake City, Utah 84111-3834; Attention: Arnold Birrell. Fax Number (801) 531-0660.

L______

Miircli /998 39 Utah's Appellate Courts to Co-Locate You Are Invited The first courts to undertake the move systems wil be "down" and access to court to the Scott M. Matheson Courthouse wil files and records on appeal wil be severely be the Utah Supreme Court and the Utah limited. Unfortunately, disruption and incon- Opening Courts of Appeals. Both courts wil be venience are unavoidable components of located on the fifth floor of the building. such a move. The courts request the cooper- Ceremonies Curent moving plans call for the Court of ation and patience of all as the courts adjust and Dedication of Appeals to move between March 7 through to their new home. March 10 and the Supreme Court from Please note the following address and Scott M. Matheson March 10 through March 12. telephone changes, effective March 10, 1998: While the decision-makng functions of Courthouse UTAH SUPREME COURT the appellate courts wil remain entirely 450 South State. P.O. Box 140210 separate, basic clerical tasks such as dock- Salt Lake City, UT 84114-0210 450 South State, eting' records and transcript management, and briefing scheduling, wil be accom- UTAH COURT OF APPEALS Salt Lake City plished by a combined appellate clerks' 450 South State. P.O. Box 140230 Friday, March 27, 1998 office. The combined offce wil consist of Salt Lake City, UT 84114-0230 Matty Branch, appellate court administra- 2:30 p.m. APPELLATE CLERKS' OFFICE: tor, Pat Bartholomew, clerk of the Supreme 801-578-3900. Fax No 801-578-3999 Court, Julia D' Alesandro, clerk of the Court Public Tours conducted of Appeals, and eight deputy cour clerks. By way of information, the State Law March 30,31 After March 10, pleadings and papers to be Librar wil be open for business at its present filed either in a Supreme Court case or a location in the Capitol until approximately April 1, 2,3 Court of Appeals case may be filed at a sin- June 5, 1998. From June 6 to July 2, the gle appellate counter on the fifth floor. The library wil be closed to permit the sizeable Call Debbie Christiansen staff of the co-located clerks' offce wil have collection to be boxed, moved and reshelved at 578-3832 for the expertise to assist patrons of either court. in the librar's new location on the first floor tour reservations During the move, both courts' computer of the Matheson Courthouse.

UTAH LAWYERS CONCERNED ABOUT LAWYERS

Confidential* assistance for any Utah attorney whose professional performance may be impaired because of emotional distress, mental illness, substance abuse or other problems.

Referrals and Peer Support

(801)297 -7029

LAWYERS HELPING LAWYERS COMMITTEE UTAH STATE BAR

* See Rule 8.3(d), Utah Code of Professional Conduct

40 Vol. 11 No.2 Federal Judicial Conference of the Tenth Circuit Keystone Resort, Colorado June 25-27, 1998

Meeting for the last time in this century, its Affect on the Practice and Substance of young people at the conference. the Judicial Conference of the Tenth Cir- the Law wil be presented by a panel headed Other distinguished guest speakers wil cuit wil look into the milennium for a by Dr. Gordon Bermant, formerly of the be Justice Stephen G. Breyer, syndicated glimpse of what the future of the law and Federal Judicial Center, and Dean Harry columnist Anthony Lewis, and the Execu- allied fields wil have in store for us. The Perrtt of Chicago-Kent School of Law. Also tive Chef of the Keystone Resort. The program wil be keynoted by Chief Judge speakng on current and future applications usual social events, including a grand Harry T. Edwards of the D.C. Circuit of automation in federal courts wil be Gar opening reception, a sing-a-long, and lun- bringing us: "A New Vision for the Legal Bockweg of the Administrative Offce of the cheons wil be capped by a dinner cabaret Profession." Courts and Hon. Edward Nottingham, Chair evening starring Comedian!Musician Pete Under the leadership of Bankruptcy of the Commttee on Automation and Tech- Barbutti and dancing to the music of the Judge Sidney Brooks of Colorado, a panel nology. Professor Joyce Sterling of the Dez Rubano Sextet. composed of Hon. James M. Farley of the University of Denver College of Law and Please mark your calendars for Thurs- Supreme Court of Ontario, Hon. Louise Hon. Wiley Daniel of the District of Colorado day through Saturday, June 25-27 and join DeCarl Adler of the U.S. Bankrptcy Court wil head an animated panel discussion of us at Keystone, Colorado. You must be a of the Southern District of California, and the Constitution and Human Liberty, and member of the Tenth Circuit Judicial Con- John A. Barrett, Esq. of Fullbright & Professors Alan Chinn of D.U. Law and ference to attend. To join, write or FAX Jaworski, wil discuss International Com- Erwin Chemerinsky of USC Law, wil pre- your request to Bryon White, United States mercial Law of the future. We wil hear sent reviews of Tenth Circuit and U.S. Courthouse, 1823 Stout Street, Denver, about bioethics and the law from Professor Supreme Court developments. Hon. David Colorado 80257, Telephone (303) 844- George Smith of Catholic U. Law SchooL. and Gayle Ebel wil also present another of 2067, Fax (303) 844-2079/844-2088. We An extensive program on Automation and their outstanding programs especially for the wil furnish an application promptly.

Kruse, Landa & Maycock, L.L.C. congratulates Ellen Maycock the 820d woman lawyer in Utah and a founder, If you're not inured with senior member and principal owner the Attrneys' Advanta of the firm since 1978, Prfessiona Liilty hiurance Program... and our other women colleagues, you should objec to your curent inurer on the fol- Jody L. Williams lowi grunds: and Pamela S. Nighswonger · You maybe · You may not payig to much have the broad cov- for your liabilty cov- erageyou erage. really nee. KRUSE, LANDA & MAYCOCK, L.L.C. 50 WEST BROADWAY (300 SOUTH) Affity msur8Jce Servces, mc. EIGHTH FLOOR, BANK ONE TOWER 2180 South 1300 East. Suite 500 . Sat Lae City, UT 84106 SALT LAKE CITY, UTAH 84101-2034 1-801-488-2550 TELEPHONE: (801) 531-7090 Fax: 1-801-488-2559 MAILING ADDRESS: Post Offce Box 45561 Brought to you by: Vist our Web SiÚJ at htt://w.attrneys-advata.com Attorneys' . Salt Lake City, Utah 84145-0561 AON iD 1999 Affity Inurnicil S8rvces, Ina. "Advantage

March 1998 41 1998 Mid-Year Convention Sponsors

The Mid-Year Convention Committee extends its gratitude to the following sponsors for their contributions in making this a successful and enjoyable Mid-Year Convention. Please show your appreciation for their donation by supporting these firms and businesses:

BLACKBURN & STOLL NIELSEN & SENIOR CHRISTENSEN & JENSEN OLSON & HOGGAN COHNE, RAPPAPORT& SEGAL PARR WADDOUPS BROWN GEE & LOVELESS DAVIS COUNlY BAR ASSOaATION PARSONS BEHLE & LA TIMER DURHAM, EVANS, JONES & PINEGAR RAY, QUINNEY & NEBEKER FARR, KAUFMAN, SULLIVAN, GORMAN, RICHARDS, BRANDT, MILLER & NELSON JENSEN,. MEDSKER, NICHOLS & ROBERTJ. DEBRY & AssOaATEs

PERKINS SALT LAKE COUNlY BAR ASSOaATION GRIDLEY WARD HAVAS & SHAW SCALLEY & READING IVIE& YOUNG SIEGFRIED & JENSEN JARDINE, LINEBAUGH & DUNN SNOW & JENSEN JONES, WALDO i HOLBROOK & STANDARD INSURANCE

McDONOUGH STRONG & HANNI KRusE, LANDA & MAYCOCK VANCOTT, BAGLEY, CORNWALL & LExiS-NEXIS MCCARTHY UTIGA TION SECTION WEBER COUNlY BAR ASSOaATION McKAy, BURTON & THURMAN WILLAMS & HuNT MORGAN & HANSEN WINDER & HASLAM MOXLEY, JONES & CAMPBELL

1998 Mid-Year Convention Exhibitors

AON RISK SERVICES NEXTlINK A FFINIlY CONTINENTAL INSURANCE AGENCY R.R. DONNELLEY FINANaAL LExiS-NEXIS ATTORNEY'S TITlE GUARANlY FUND, INC. LUMIX COMMUNICATIONS UTAH BAR FOUNDATION

(FORMERLY DATAFLOW SERVICES) WEST GROUP Scott M. Matheson Award In 1991, the Law-Related Education and resources in support of law-related educa- APPLICATION PROCESS: Application Law Day Committee of the Utah State Bar tion, such as serving on committees, forms may be obtained from and sub- presented the first annual Scott M. Mathe- reviewing or participating in the develop- mitted to: son Award. Currently, the committee is ment of materials and programs, or Scott M. Matheson Award accepting applications for the 1998 Award. participating in law-related education Law-Related Education and PURPOSE: To recognize a lawyer and a programs including the Mentor Program, Law Day Committee law firm who have made an outstanding Mock Trial Program, Conflict Manage- Utah Law and Justice Center contribution to law-related education for ment Program, Judge for a Day, or other 645 South 200 East, Suite 101 youth in the State of Utah. court and classroom programs. Salt Lake City, Utah 84111 CRITERIA: Applications will be 3. Participated in activities which encourage Phone: 322-1802 accepted on behalf of individuals or law effective law-related education programs All materials submitted should be in a firms who have: in Utah schools and communities, such form which will allow for their easy repro- i. Made significant contributions to law- programs increasing communication and duction for dissemination to members of related education for youth in the State understanding among students, educators, the selection committee. Applications must of Utah. and those involved professionally in the be postmarked no later than March 31, 1998. 2. Voluntarily given their time and legal system.

PAST HONOREES INCLUDE: Attorney Law Firm Attorney Law Firm 1991 Gregory G. Skordas Van Cott, Bagley, Cornwall 1995 Gordon K. Jensen Utah Attorney General's Office and McCarthy 1996 Kevin P. Sullivan Richards, Caine and Allen 1992 Barry Gomberg Fabian and Clendenin 1997 Steven L. Garside Utah County Public Defender 1993 Kevin F. Smith Ray, Quinney and Nebeker Association 1994 KimM. Luhn LeBoeuf, Lamb, Greene and MacRae Continuing the Tradition: Legal Education for Our Youth In the spring of 1997, 195 judges, attor- Hayes, and the White Aryan Separatist The Utah Mock Trial Program, conducted neys, and community representatives Party, a wrongful death action to determine by the Utah Law-Related Education, and invested a total of 400 hours in judging whether the murder of a black man resulted sponsored by the Utah Bar Foundation and mock trials throughout the state of Utah. from a skinhead's reading of racist literature the Utah State Bar, thanks these persons More than i ,000 junior and senior high put out by a national organization. for their commitment to teach youth their school students from the ages of 12 through Join your esteemed colleagues in judging rights and responsibilities under the rule

18 played the parts of witnesses, attorneys, this year's school shooting case. A sign-up of law: and bailiffs in i 03 three-hour trials. They sheet is found at the back of this issue of the tried the case of Terri Banner v. Johnny Journal (CLE credit has been applied for).

March /998 43 1997 Mock Trial Judges Tammy Abernathy William Cole Ed Havas Margaret Nelson Kent Snider Steven Alder Steve Combe Douglas Haymore Matt Nelson Carolyn Stewart Bernard Allen Catherine Conklin Alicia Head Pam Nelson Craig Story John Allen Glen Cook Hon. James Heffernan JoAnn Nielson Robert Stott Kari Allred Dr. Forest Crawford Debra Hess Ronald Nichols Evan Strassberg Stephanie Ames David Dallenbach Gary Heward Mike Norman Mark Stringer Tawni Anderson Christine Decker Michelle Heward John O'Connell Flora Stagg Katherine Astin OjikDegeus Rein Heymering John Ogilvie Kathy Steinmetz Bruce Baird Gerry D'Elia Ken Higgins Michael Olmstead Kevin Sullivan Junior Baker Sue Denhardt Hon. Robert Hilder Herm Olsen Nate Taggart John Baldwin Dale Dorius David Hodgson Red Olsen Patrick Tan Carrie Bauer John Dow Karen Hom Pat Parker Earl Tanner

Barbara Bawden Paul Durham Hon. Richard Howe Ken Parkinson David Thayer

Beau Behrens Mark Dykes Heath Isaacs Dale Pearson Laura Thompson

Jeff Bell John Fay Gordon Jensen Ed Peterson Margaret Thornton Jenny Bennett Suzanne Gustin-Fergus Scott Jensen Sue Petty Robert Thorup Judy Bezoksi Dave Finlayson Stephen Jewell Nano Podolsky Kirk Torgensen Stephanie Bird Scott Fisher Donna Johnson Robert Reynolds Tonia Torrance Timothy Blackburn Kimberly Fowkes Howard P. Johnson Randall Richards Adam Trupp Rich Blake Honorable Joseph Fratto Paul Johnson Michael Richter Phil Viti Gary Blatter Christine Frodsham Brian Jones Kim Rilling Ed Wall Maria Booth Robert Funk Mike Junk Doug Ritchie Stu Walls Mike Bouwhuis Carlos Garcia Michael Katz Sue Robinson Kim Walpole John W. Bradley Andrea Garland Mike Keller Jennifer Ross Virginia Ward Lynn Bradak Dan Garison Tom King Joseph Rust Terryl Warner Scott Broadhead David Geary Bil Kucera Christine Sagendorf David Weiskoph Mara Brown Ted Godfrey Linda Kucera Dean Saunders Hon. Judith Whitmer (ret.) Toby Brown Mary Gordon Deanna Marie Lasker Gayanne Schmid John Williams Scott Beuhler Diedre Gorman Shirley Leali Stephanie Schmidt Denise Wiliamson Jon Bunderson Linda Gowans Chelom Leavitt Mary Shwab Den Winward John Bybee Hon. Pamela Greenwood Virginia Lee JoAnn Seghini Ray Wong John Caine Douglas Griffith Charles Maak Brook Session Kaye Workman Brian Cannell Marlu Gurr Ramona Mann Alan Sevison Georgia Yardley-Barker Kelly Cardon John Guynn Windy Manning Chris Shaw Lousie York Ralph Chamness Richard Hackwell Kira McFarlane Ann Shosted Kathleen Zeitlin Scott Chapman Stephen Hadfield Eric Middlestadt Sharon Sipes Carolyn Zeuthen Carlie Christensen Scott Hadley Tom Mitchell Gregory Skordas Jini Christensen Craige Harrison Thomas Montano Russell Skousen Terry Christensen Susie Hauser John Musselman Kevan Smith Tom Clawson David Bert Havas Lori Nelson Russell Smith

1997 Mock Attorney Coaches Diane Banks Mary Custen Richard Henriksen, Jr. Edward Ogilvie Bentley Tolk Hon. Wiliam Barett Mark DeCaria Rein Heymering Marty Olsen Dave Tuckett Joseph Bean Loni DeLand Monet Hurtado Karen Patterson Hon. Stephen Van Dyke Matt Blackburn Susan Black Dunn Miles Jensen Keith Pope Ken Wallen tine Tom Blonquist Laura Dupaix Dennis Judd Ruth Ann Renlund Paul Warner Craig Bott Doug Durbano Trisha Judge-Stone Tom Scribner David Weiskoph Mike Bouwhuis Bruce Evans TomKlc Tom Seiler Delbert Welker Richard Burbidge Doug Fadel Hon. Margaret Lindsay Brian Sidwell Hon. Brent West

Jeff Burton Nathan Fisher Kim Luhn Greg Skordas Scott Wyatt

Hon. Kevin Christensen Steve Garside John Lund Devin Sullivan Don Young Mike Christensen Barry Gomberg Julie Lund Marsha Thomas Dave Church Paul Gotay Ruth Lybbert Tony Thurber Catherine Conkin Chris Greenwood Leonard McGee David Tibbs

44 Vol. 11 No.2 i

1998 Mock Trial Schedule Name: Title: Firm or Place of Employment:

Address: Zip:

Phone: Fax: I have judged before. Yes _ No _ I wil judge _ (#) trial(s). Please indicate the specific date(s) and location(s) that you wil commit to judge mock trial(s) during the months of March and ApriL. The dates and locations are fixed; you wil be a judge on the date(s) and time(s) and location(s) you indicate, unless several people sign up to judge the same slot. If that occurs, we wil call you to advise you of a change. You will receive confirmation by mail as to the time(s) and place(s) for your trial(s) when we send you a copy of the 1998 Mock Trial Handbook. Please remember - all trials run approximately 2112 to 3 hours and you wil need to be at the trial 15 minutes early. We wil call one or two days before your trial(s) to remind you of your commitment. Please be aware that Saturday session wil be held on March 21st and March 28th. Multiple trials wil be conducted. Please give these dates special consideration. Specific addresses for all courtroom wil be mailed with the confirmation letter.

Date Time Place Preside Panel Comm.Rep. Saturday, March 21 9:00-12:00 3rd District ( ) ( ) ( ) 9:00-12:00 3rd District ( ) ( ) ( ) 9:30-12:30 3rd District ( ) ( ) ( ) 9:30-12:30 3rd District ( ) ( ) ( ) 10:00-1:00 3rd District ( ) ( ) ( ) 10:00-1:00 3rd District ( ) ( ) ( ) 10:30-1:30 3rd District ( ) ( ) ( ) 10:30-1:30 3rd District ( ) ( ) ( ) 12:30-3:30 3rd District ( ) ( ) ( ) 12:30-3:30 3rd District ( ) ( ) ( ) 1:00-4:00 3rd District ( ) ( ) ( ) 1:00-4:00 3rd District ( ) ( ) ( ) 1:30-4:30 3rd District ( ) ( ) ( ) 1:0-4:30 3rd District ( ) ( ) ( ) 2:00-5:00 3rd District ( ) ( ) ( ) 2:00-5:00 3rd District ( ) ( ) ( ) Monday, March 23 9:00-12:00 Drem ( ) ( ) ( ) Wednesday, March 25 1:30-4:30 Roy ( ) ( ) ( ) Thursday, March 26 1:00-4:00 Drem ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) Friday, March 27 8:30-11:30 Roy ( ) ( ) ( ) 1:00-4:00 Castle Dale ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) 1:30-4:30 Spanish Fork ( ) ( ) ( ) Saturday, March 28 9:00-12:00 3rd District ( ) ( ) ( ) 9:00-12:00 3rd District ( ) ( ) ( ) 9:30-12:30 3rd District ( ) ( ) ( ) 9:30-12:30 3rd District ( ) ( ) ( ) 10:00-1:00 3rd District ( ) ( ) ( ) 10:00-1:00 3rd District ( ) ( ) ( ) 10:30-1:30 3rd District ( ) ( ) ( ) 10:30-1:30 3rd District ( ) ( ) ( ) 12:30-3:30 3rd District ( ) ( ) ( ) 12:30-3:30 3rd District ( ) ( ) ( ) 1:00-4:00 3rd District ( ) ( ) ( ) 1:00-4:00 3rd District ( ) ( ) ( ) 1:30-4:30 3rd District ( ) ( ) ( ) 1:30-4:30 3rd District ( ) ( ) ( ) 2:00-5:00 3rd District ( ) ( ) ( ) 2:00-5:00 3rd District ( ) ( ) ( ) Monday, March 30 1:00-4:00 Drem ( ) ( ) ( ) 1:00-4:00 Brigham City ( ) ( ) ( ) Tuesday, March 31 1:00-4:00 Drem ( ) ( ) ( ) Wednesday, April 1 8:30-11:30 Roy ( ) ( ) ( ) 9:00-12:00 Public Utilities #451 ( ) ( ) ( ) 1:00-4:00 Drem ( ) ( ) ( ) 1:00-4:00 Public Utilties #451 ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) Date Time Place Preside Panel Comm.Rep. Thursday, April 2 8:30-11:30 Roy ( ) ( ) ( ) 9:00-12:00 Tooele ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 Tooele ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) Friday, April 3 8:30-11:30 Roy ( ) ( ) ( ) 9:00-12:00 Ogden Justice Court ( ) ( ) ( ) 1:00-4:00 Manti ( ) ( ) ( ) 1:00-4:00 Tooele ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) 1:30-4:30 Ogden Justice Court ( ) ( ) ( ) Monday, April 6 9:00-12:00 Public Utilties #451 ( ) ( ) ( ) 9:00-12:00 Brigham City ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 Public Utilities #451 ( ) ( ) ( ) 1:30-4:30 SLC (TBA) ( ) ( ) ( ) Tuesday, April 7 8:30-11:30 Public Utilties #426 ( ) ( ) ( ) 9:00-12:00 Public Utilities #451 ( ) ( ) ( ) 12:30-3:30 Public Utilties #426 ( ) ( ) ( ) 1:00-4:00 Logan ( ) ( ) ( ) 1:00-4:00 Public Utilities #451 ( ) ( ) ( ) 1:30-4:30 SLC (TBA) ( ) ( ) ( ) 1:30-4:30 Spanish Fork ( ) ( ) ( ) Wednesday, April 8 8:30-11:30 Roy ( ) ( ) ( ) 1:00-4:00 Public Utilities #451 ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:30-4:30 SLC (TBA) ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) 5:30-8:30 Logan ( ) ( ) ( ) Thursday, April 9 8:30-11:30 Roy ( ) ( ) ( ) 1:00-4:00 Tooele ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) Monday, April 13 1:00-4:00 Orem ( ) ( ) ( ) Tuesday, April 14 9:00-12:00 Orem ( ) ( ) ( ) 1:00-4:00 Ogden Justice Court ( ) ( ) ( ) 1:00-4:00 Logan ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) Wednesday, April 15 8:30-11:30 Roy ( ) ( ) ( ) 12:30-3:30 Coalvile ( ) ( ) ( ) 1:00-4:00 Coalvile ( ) ( ) ( ) 1:00-4:00 Roosevelt ( ) ( ) ( ) 1:00-4:00 Public Utilties #451 ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) Semi-Final Rounds (If you wil have judged a previous mock trial) Monday, April 20 9:00-12:00 Public Utilities #451 ( ) ( ) ( ) 1:00-4:00 Public Utilties #451 ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 Brigham City ( ) ( ) ( ) Tuesday, April 21 9:00-12:00 Orem ( ) ( ) ( ) 9:00-12:00 Public Utilities #451 ( ) ( ) ( ) 1:00-4:00 Public Utilities #451 ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 Brigham City ( ) ( ) ( ) Wednesday, April 22 8:30-11:30 Roy ( ) ( ) ( ) 9:00-12:00 Public Utilties #451 ( ) ( ) ( ) 1:00-4:00 Public Utilities #451 ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) Thursday, April 23 8:30- 11'30 Roy ( ) ( ) ( ) 9:00-12:00 Public Utilities #451 ( ) ( ) ( ) 1:00-4:00 Public Utilities #451 ( ) ( ) ( ) 1:00-4:00 Orem ( ) ( ) ( ) 1:00-4:00 Tooele ( ) ( ) ( ) 1:30-4:30 Roy ( ) ( ) ( ) Please mail this form to: Mock Trial Coordinator Utah Law-Related Education Project 645 South 200 East, Suite 101 Salt Lake City, Utah 84111 or Fax to: (801) 323-9732 . .THE. .. BARRISTER . ~

Young Lawyer Profile John L. Baxter

By Heather J. Dunn

ALTA, and joining the National Association defender, attorney general and guardian ad In hisblue-collar late 30's, worker John who Baxter, had unloaded Marine, of Criminal Defense Lawyers. Before gradu- litem try to work as a team to resolve hogs from railroad cars and placed explo- ation he had participated in over 20 mock cases. John appears almost exclusively in sive charges for an oil exploration crew, trials and in several national competitions. Judge Andrew Valdez's courtroom, approx- was looking for a new career. After his He was recognized as "Outstanding Student imately 10-20 times per week. He has a wife Alexa's 1961 Volkswagen bug broke Litigator" by the International Academy of paralegal but does not have a secretary and down and she took a job nearer home as an Trial Lawyers and received the American has 75-80 cases open at all times. attorneys' receptionist, John looked at the Jurisprudence Award in Trial Advocacy. By the time John is appointed as coun- attorneys and thought, "I can do that." During law school, he interned with the sel, a parent or parents may have admitted John was born and raised in Salt Lake San Francisco City Attorney's Office on damaging facts to DCFS workers. City. He attended West High School, where their public contracts team, organizing dis- (Miranda warnings are not required.) John he met his wife Alexa. They have been covery and preparing trial notebooks. He states that when he receives the cases, he married for "twenty-three wonderful graduated from law school in 1994 at age goes into "damage control mode." John years," according to John. In 1972-73 John 42, his fellow students voting him the Paul may meet with a client for the first time fif- spent two years in the Marine Corps, S. Jordan Award for outstanding contribution teen minutes prior to a hearing to including eight months in Saigon. He to the law school by a student. He is now determine whether it was reasonable for attended the University of Utah part-time licensed to practice in Utah and California. the state to remove the child or children until he complete a B.S. in psychology and John began his legal career as a contract from the home. If the court finds that the then applied to the College of Law. attorney searching discovery documents for removal was reasonable and should con- Undaunted after being wait-listed twice at "smoking guns." In April 1997 he joined tinue, the parents may have at most one the University of Utah, he headed for Laherty and Associates as a civil public year to complete a DCFS treatment plan Golden Gate Law School in San Francisco. defender to represent indigent parents whose and receive reunification services. John He knew of its reputation for producing children have been removed by Utah's Divi- works with the parents during that period. public interest lawyers and was consider- sion of Child and Family Services, under the The highly-structured plans often require ing an career as a public defender in Juvenile Court Act of 1996, U.C.A. 78-3a- that clients "turn their lives around" by criminal cases. 101 et. seq. Such removals are usually entering substance abuse treatment, finding Awarded a Merit Tuition Scholarship, recommended because of substance abuse, adequate housing, and engaging in ful1- he became active in the litigation program, abuse or parental neglect. Although court- time employment. Clients may also be presiding over the law school chapter of room proceedings are adversarial, the civil ordered to attend classes in anger manage-

March /998 47 ment and parenting. If they work full-time more than excellent trial skils. "I'm not just and depend on public transportation, they their attorney," he says of his clients. "I'm may find it difficult to meet all the require- often their social worker and counselor." He ments. Physical abuse cases which result in investigates clients' homes personally and the parent's incarceration often make it tries to help parents regain custody by impossible for a parent to complete the "cajoling, hand-holding and counseling." uService With Integrity" plan within the year and regain custody. But he insist that his clients have the hard "In these cases," John says, "it is hard to job: "All I have to do is protect their rights explain to parents the ramifications of their through technical legal procedures." Purchaser of Structured Cash actions." In his time away from work, John serves Flows Some of his clients are able to complete on the board of Literacy Volunteers of Amer- 'Real Estate Contracts & Notes with Deeds most, but not all of the DCFS plan. John's ica and volunteers every Sunday morning at of Trust adversaries then become the Attorney Gen- the 6th South Viaduct homeless legal clinic. 'Business Notes 'Structured Settlements eral's office, which represents DCFS in "I can't resolve everyone's legal questions 'Lottery Winnings court, and the guardian ad litem, who is on the spot," he says, "so I do a lot of refer- We lend our expertise to facilitate various appointed to represent the best interests of rals to other agencies. These individuals are transactions. including the provision of funding grateful for any help I can give." for Section 1031 Exchanges, Liquidation of Es- the child. At this point, John may be argu- tate Assets. etc. ing to the judge that the plan is Many attorneys would find the constant Please contact us for a free, no obligation quote unreasonable and doesn't meet the needs exposure to abuse and neglect proceedings regarding the current cash value of your of the family. "These cases are harder to draining, but John finds he is able to have a receivable. lawyer, and also more difficult to explain positive effect on peoples' lives through his Writen Opinions regarding the value of Struc- to the client," says John. The clients tell work. "I enjoy going to work each day," he tured Cash Flows available for a nominalfee. him what they have done to comply with says. "My reward comes when I've helped Sam E. Barker, Esq. the plan, and John tells them what they stil parents change their lives and get their chil- President must do before they can regain custody. dren back." Phone: 1-800-929-1108 John finds that breaking the cycle of Fax: (253) 472-8391 neglect, abuse and substance abuse requires

48 Vol. 11 No.2 ~CASE SUMMARIES~ By Glen A Cook

STANDARD OF REVIEW against her. In his final order, the judge Carrier v. Pro-Tech Restoration, 327 Utah concluded that Poulsen violated Rule 11. Adv. Rep. 3 (1997). Upon appeal, Poulsen claimed that the The Supreme Court has refused to over- trial judge's comments in his order certify- rule prior decisions and continues to hold ing her affidavit of prejudice improperly that a trial court's erroneous allocation of influenced the reviewing judge's decision. peremptory challenges results in prejudice. The Court of Appeals cited prior holdings The court also rejected state and federal in indicating that while it is permissible for constitutional objections to the denial of the certifying judge to append relevant por- separate sets of peremptory challenges. tions of the record to the order, the judge The facts involved an auto accident in may not include advocacy or comment. Pleasant Grove with multiple defendants. The Court of Appeals set out the trial The Supreme Court, upon appeal from the judge's comments, which they characterized Court of Appeal, interpreted Utah Rule of as his version of the incidents described in Civil Procedure 47(e), governing peremp- Poulsen's affidavit. They then noted that tory challenges. This rule provides that these were exactly the type of advocacy or "each party shall be entitled to three comment that the Utah Supreme Court had peremptory challenges, except as provided Utah State Bar. Those rules delegate to the determined was inappropriate. However, under Subdivisions (b) and (c) of this rule. board "all powers necessary and proper to even though the comments were not Subdivision (c), the focus of the dispute, carry out the duties and responsibilities of proper, they were not found to be prejudi- states in relevant party, "Either party may the Bar and the purposes of these rules" and cial, because the affdavit of prejudice was challenge the jurors, but where there are again, "all authority which is not specifically insufficient on its face. several parties on either side, they must reserved to the court." In regard to Rule II sanctions, the court join in a challenge before it can be made. The Supreme Court found that the deci- held that before a court imposed the sanc- The Supreme Court noted that this is a sion was "well within the authority of the tions on a party, due process requires that mixed question of fact and law, inasmuch Board . . ." The court further noted that the the party receive adequate notice and an as the trial court must determine whether procedures for notice and opt out provided opportunity to respond. It was noted that there is a "substantial controversy" by the Bar were entirely adequate to inform this right to respond does not require and between the parties. The Supreme Court Bar members of the Board's decision. adversarial, evidentiary hearing. In most further ruled that the trial court has limited instances, due process is satisfied if the discretion in its Rule 47(c) decisions. TRIAL COURT COMMENTS trial court gives the party against whom the RULE 11 DUE PROCESS sanctions are to be imposed an opportunity BAR POWERS Poulsen v. Freer, 327 Utah Adv. Rep. 48 to file a brief or to otherwise respond. The Arnold v. Utah State Bar Association, 327 (Utah Court of Appeals, 1997). sanctions imposed were reversed by the Utah Adv. Rep. 33 (1997). Lynn Poulsen, (Poulsen), filed an alien- Court of Appeals in the matter remanded to In April, 1997, the Board of Bar Com- ation of affection complaint against Karen the trial court to allow Poulsen an opportu- missioners approved a contribution of up to Freer Poulsen, (Freer). Poulsen appeared pro nity to be heard. $250,000.00 íì'om the general bar fund for se throughout the proceedings. Freer It was also noted that attorney fees were improvements to the new Scott M. Mathe- requested Rule Ii sanctions against Poulsen. awarded without an affidavit of these being son Courthouse in Salt Lake City. Bar The trial court declined to award the sanc- filed. Thus, the order ordering attorney fees members were allowed to opt out of their tions, but issued a warning to Poulsen that was also reversed. pro rata share of the contribution. The con- they could be applied in the future. tribution would then be reduced by the Over two years later, Poulsen filed an IMPROPER PROSECUTORIAL collective pro rata shares. The petitioner affidavit alleging bias agai~st her by the trial ARGUMENT challenged the authority of the Board to judge. The trial judge entered an order certi- State v. Stephens, 327 Utah Adv. Rep. approve the contribution and the adequacy fying the affidavit to another judge. In doing 51 (Utah Ct. Appeals, 1997). of the procedures that followed. The so, the trial judge made substantial com- Defendant was convicted of two counts Supreme Court, upon stipulation, entered ments in his order. The case was sent back to of unlawful possession of a controlled sub- an order restraining any disbursement of the trial judge with the rejection of the stance. He appealed, arguing the trial court the funds until further order. The Court motion for refusaL. erred when it denied his motion to sup- reiterated prior holdings that it exercised After a three day bench trial, the trial press, asserting the prosecutor made an its oversight of the Bar through the Rules judge ruled against Poulsen. He also told her improper, prejudicial remark in his closing for Integration and Management of the he was considering Rule II sanctions argument. The court affirmed. In regard to

March 1998 49 the comments of the prosecutor, the fol- CORPORATION REQUIREMENT cer's objective belief that he or she smelled lowing statement to the'jury was noted. ADOPTED FOR marijuana will be upheld only when the You may say, "Well, yeah we have PROBABLE CAUSE BASED ON search corroborates marijuana or its use. In got Mr. Stephens charged with a THE ODOR OF MARIJUANA the incident case, the various items of para- crime. There is no victim here with State v. Maycock, 329 Utah Adv. Rep. 10 phernalia provided that corroboration. regard to those offenses.("J We have (Utah Ct. Appeals, 1997). only taken roughly two hours to pre- Defendant was pulled over for having no TOLLING OF PROBATION sent the case to you today(.J (WJhy front license plate. The officer testified he State v. Grate, 329 Utah Adv. Rep. 12 all of the big fuss and bother to smelled burnt marijuana when the defendant (Utah Ct. Appeals, 1997). occupy your time for a day? Well, rolled down his window. The officer Pursuant to Utah Code Ann. Section 77- you all know the impact that this requested permission to search the truck. For 18-1(8)(a) (Supp. 1988), any time served type of offense has. once, a defendant refused. The officer pro- by a probationer outside of confinement Defense counsel promptly objected to ceeded to search, based on the smell of burnt after having been charged with a probation the prosecutor's comment about the marijuana. While no marijuana was found, a violation and prior to a hearing to revoke "impact" of the offense and the trial court clip with a burn mark on the end, a film con- the probation does not constitute service of sustained the objection. The trial court then tainer with a ball point pen tube that had time toward the total probation term. immediately cautioned the jury. been cut to fit inside the film container, a In State v. Grate, the court interpreted Unfortunately, the Court of Appeals small pipe containing the burnt residue, a the term "charge" as meaning service of declined to address the prosecutor's state- metal tube, a razor blade with a folding han- notice on a probationer of the actual accu- ment: "Without addressing whether the dle, a small green plastic container, which sations and of the need to prepare a prosecutor's brief comment was improper, contained methamphetamine, were found. defense. The mere filing of a notice of vio- we conclude that defendant was not preju- An oral motion to suppress was denied. A lation with the court and a subsequent diced by it." conviction entered. The appeal followed. arrest do not satisfy the charging require- While the Court of Appeals's opinion is The Utah Court of Appeals adopted the ment. A probationer is not charged with a instructive in demonstrating how prejudice corroboration requirement for probable probation violation until he or she has may be avoided (prompt objection, cau- cause based on the odor of marijuana. This received written notice both of the nature of tionary instruction, the general instruction was an issue of first impression in Utah. The the allegations against him or her and of the to ignore public opinion or public feeling, Utah Court of Appeals adopted the Tenth pendency of an enforcement action in the and the general instruction to disregard Circuit opinion in United State v. Nielson, 9 trial court which requires a response. statements of counsel), it is disappointing that F.3d 1487 (lOth Cir. 1993). The Court of a firm rebuke was not given to prosecutors Appeals therefore held that probable cause who choose to use this type of argument. to support a search based solely on an off- Utah Bar Journal Announces "1997 Cover of the Year"

Congratulations to Raeburn Interest in the covers of the G. Kennard, pictured at right, Bar Journal, featuring pho- whose outstanding photograph tographs taken by members of of the Hale-Bopp Comet the Utah State Bar, continues prompted selection of the April to be strong. It is not uncom- cover of the Utah Bar Journal mon to see past issues of the as the" 1997 Cover of the Journal displayed for their aes- Year." thetic qualities in law offices For all you photography throughout the State. buffs, the photograph was Half of the photographs taken on March 30 at about appearing on i 997 covers were 8:00 p.m., after sunset, but submitted by first-time contrib- before the sky was totally dark. utors. Since August 1988 when The location was at "Pine the Journal introduced its cur- Mountains," a mountain cabin rent cover design, 27 different area II miles east of Oakley, members of the Utah Bar have Utah, along the upper Weber participated as contributing River, elevation approximately 7,000 feet. time approximately 45 seconds. This one photographers. Raeburn used Kodak Gold 400 print film, a was his favorite among approximately six Next time you are in the Law and Jus- Pentax ME Super camera, with 50mm lens, rolls of film used in photographing the tice Center, drop by the "Covers of the at f-stop lA, focus at infinity, exposure comet between January and May, 1997. Year" display on the second floor.

50 Vol. /1 No.2 . . ;. \ ".'" UTAH BAR FOUNDATioN -

Notice of Election D.B.F. Board of Trustees D.B.F. Community

NOTICE is HEREBY GIVEN, in be an active attorney duly licensed to prac- Service Scholarships accordance with the bylaws of the Utah tice law in Utah, and signed by not less than Bar Foundation, that an election of two 25 attorneys who are also duly licensed to The Utah Bar Foundation wil award two 1998 Community Service Scholarships trustees to the Board of Trustees of the practice law in Utah. Foundation wil be finalized at the annual Petitions should be mailed to the Utah in April - one to a student at the J. Reuben Clark Law School at Brigham Young Uni- meeting of the foundation held in conjunc- Bar Foundation, 645 S. 200 East, Salt Lake tion with the 1998 Annual Meeting of the City, Utah 84111 so as to be received on or versity and one to a student at the Utah State Bar in Sun Valley, Idaho. The before April 30, 1998. Nominating petition University of Utah College of Law. The two trustee positions are currently held by forms can be obtained at the Foundation amount of each scholarship is $3,000. Jane A. Marquardt and H. James Clegg. office or requested by telephone (297-7046). To qualify to receive one of these Term of the office is 3 years. The election wil be conducted by secret bal- scholarships, the student must have partici- Nomination may be made by any mem- lot which will be mailed to all active pated in and made a significant contribution to the community by perform- ber of the Foundation (every attorney members of the Foundation on or before licensed to practice law in the State of May 31, 1998. Winners of the election wil ing community service for organizations Utah is also a member of the Foundation) be announced at the Bar's annual meeting in such as Legal Aid Society, Utah Legal Ser- vices, Travelers Aid Society, Guadalupe by submission of a written nominating Sun Valley. petition identifying the nominee, who must School, Salt Lake Detention Center, Odyssey House, Bennion Center, Utah Law-Related Education Project. Applicants should send application let- ters and resumes to the Utah Bar Foundation, 645 S. 200 East, Salt Lake City, Utah 84111, describing the service performed, identifying the beneficiary or organization receiving the service and naming individuals who can be contacted concerning that service. Deadline: March 31,1998.

One of Utah Bar Foundation's grant recipients, Utah Law-Related Education Project, shows Neil Harding with Mock Trial students at Grantsville High SchooL. 1988 IOLTA Grant Application Process

The Utah Bar Foundation was organized to the disadvantaged, improve the adminis- must agree to report the use of the funds. in 1963 as a non-profit charitable corpora- tration of justice, support law-related Organization seeking grants may obtain tion. All licensed members of the Utah education and other law-related purposes. In application forms from the Utah Bar Foun- State Bar are automatically members of the 1997, $309,929 was awarded, making a total dation office in the Utah Law & Justice Foundation and can make direct contribu- of $2.25 million since 1985. Center, 645 S. 200 East, Salt Lake City, tions and/or participate in the Interest on The grant application consists of a finan- Utah 84111 (297-7046). The deadline to Lawyers Trust Account Program (IOLTA) cial budget supported by a narrative proposal submit applications for 1998 grants is May that generates funds for grants. A 7-mem- not to exceed eight pages. The Trustees pre- 31,1998. bel' Board of Trustees administers these fer grant applications which specifically funds and awards grants annually to com- describe the purpose of the request and how the munity agencies that support legal services funds are to be used. Those receiving grants

March 1998 51 -.CLECALENDAR- 1998 MID-YEAR CONVENTION Place: Utah Law & Justice Center Time: 5:30 p.m. to 8:30 p.m. (Regis- Date: March 5-7,1998 Fee: $25.00 for Litigation Section tration begins at 5:00 p.m.) Place: St. George Holiday Inn Members; $35.00 for Place: Utah Law & Justice Center CLE Credit: 9 HOURS, which includes up Non-section Members Fee: $30.00 for Young Lawyers to 2 in ETHICS CLE Credit: 2 HOURS (NLCLE) Division Members; *To register, please use the registration $60.00 for all others form that will be provided in the 1998 Mid- ALI-ABA SATELLITE SEMINAR: Year Convention brochure. This brochure LITIGATORS UNDER FIRE! ETHICS ALI-ABA SATELLITE SEMINAR: wil be mailed directly to you. AND PROFESSIONALISM UPDATE BUSINESS VALUATION - WHAT Date: Thursday, April 9, 1998 EVERY BUSINESS LAWYER ALI-ABA SATELLITE SEMIAR: HOW Time: 10:00 a.m. to 1:15 p.m. SHOULD KNOW TO HANDLE BASIC COPYRIGHT Place: Utah Law & Justice Center Date: Thursday, April i 6, 1998 AND TRADEMARK PROBLEMS Fee: $175.00 (To register, please Time: 10:00 a.m. to 2:00 p.m. Date: Thursday, March 12, 1998 call1-800-CLE-NEWS) Place: Utah Law & Justice Center Time: 9 a.m. to 4:00 p.m. CLE Credit: 3.5 HOURS ETHICS Fee: $160.00 (To register, please Place: Utah Law & Justice Center call1-800-CLE-NEWS) Fee: $249.00 (To register, please NLCLE WORKSHOP: CLE Credit: 4 HOURS . call1-800-CLE-NEWS) LAW OFFICE MANAGEMENT CLE Credit: 6 HOURS Date: Thursday, April 16, 1998

ALI-ABA SATELLITE SEMINAR: Those attorneys who need to comply with the New Lawyer CLE requirements, and who HIPAA, COBRA, AND live outside the Wasatch Front, may satisfy their NLCLE requirements by videotape. HEALTH PLANS UPDATE Please contact the CLE Department (801) 531-9095, for further details. Date: Tuesday, March 17, 1998 Time: 10:00 a.m. to 2:00 p.m. Seminar fees and times are subject to change. Please watch your mail for brochures and Place: Utah Law & Justice Center mailings on these and other upcoming seminars for final information. Questions regarding any Utah State Bar CLE seminar should be directed to Monica Jergensen, CLE Adminis- Fee: $ i 60.00 (To register, please trator, at (801) 531-9095. call1-800-CLE-NEWS) r------,, CLE Credit: 4 HOURS CLE REGISTRATION FORM ¡ , NLCLE WORKSHOP: TITLE OF PROGRAM FEE CRIMINAL PROCEDURE Date: Thursday, March 19, 1998 1. Time: 5:30 p.m. to 8:30 p.m. Place: Utah Law & Justice Center 2. Fee: $30.00 for Young Lawyer Division Members; $60.00 for all others Make all checks payable to the Utah State Bar/CLE Total Due CLE Credit: 3 HOURS

ALI-ABA SATELLITE SEMINAR: Name Phone LIMITED LIABILITY VEHICLES- NEW DEVELOPMENTS IN THE Address City, State, Zip ORGANIZATION AND OPERATION OF UNINCORPORATED BUSINESSES Date: Thursday, March 19, 1998 Bar Number American Express/MasterCardNISA Exp. Date Time: 10:00 a.m. to 2:00 p.m. Place: Utah Law & Justice Center Credit Card Billing Address City, State. ZIP Fee: $160.00 (To register, please

call1-800-CLE-NEWS) Signature CLE Credit: 4 HOURS Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.C., Utah 84111. The Bar and the Continuing Legal Education Department are working with Sections to provide a full complement of live semi- nars. Please watch for brochure mailings on these. TRIAL ACADEMY 1998: SESSION II - Registration Policy: Please register in advance as registrations are taken on a space available basis. Those who register OPENING STATEMENTS at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. ll Cancellation Policy: Cancellations must be confirmed by letter at least 48 hours prior to the seminar date. Registration Date: Wednesday, March 25, 1998 fees. minus a $20 nonrefundable fee, will be returned to those registrants who cancel at least 48 hours prior to the seminar date. No refunds will be given for cancellations made after that time. Time: 6:00 p.m. to 8:00 p.m. (Regis- NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the tration begins at 5:30 p.m.) 2 year CLE reporting period required by the Utah Mandatory CLE Board.

52 Vol. 11 No.2 ~CLASSIFIED ADS~ RATES & DEADLINES POSITIONS SOUGHT (801) 495-3500. Bar Member Rates: I-50 words - $20.00 / ENTERTAINMENT LAW: Denver-based Deluxe office space for one attorney, 7321 51-100 words - $35.00. Confidential box is attorney licensed in Colorado and California South State, Midvale, Utah. Avoid freeway $10.00 extra. Cancellations must be in writing. available for consultant or of-counsel ser- congestion. Conference room, reception For information regarding classified advertis- vices. All aspects of entertainment law, area, secretarial space, wet bar and refrig- ing, please call (801) 297-7022. including contracts, copyright and trademark erator. Large parking lot, copy machine, Classified Advertising Policy: No commer- law. Call Ira C. Selkowitz (j (800) 550-0058. cial advertising is allowed in the classified fax, etc. (801) 562-5050 or 256-0329. advertising section of the Journal. For display ATTORNEY: Former Assistant Bar Coun- OFFICE SHARING: Historic Bamburger, advertising rates and information, please call seL. Experienced in attorney discipline 623 East 100 South, SLC. One or two (80 i) 486-9095. It shall be the policy of the matters. Familiar with the disciplinary pro- lawyers. Call John (j (801) 363-9345. Utah State Bar that no advertisement should ceedings of the Utah State Bar. Reasonable indicate any preference, limitation, specification rates. Call Nayer H. Honarvar, 39 Exchange Office share opportunity in small Park City or discrimination based on color, handicap, reli- Place, Suite #100, Salt Lake City, UT Law Office. Good location, low overhead. gion, sex, national origin or age. 84111. Call (801) 994-2675. Ideal for part-time attorney. Contact Grant Utah Bar Journal and the Utah State Bar Macfarlane (j (435) 649-2014. Association do not assume any responsibility CALIFORNIA LAWYER. . . also admit- for an ad, including errors or omissions, beyond ted in Utah! I will make appearances SERVICES the cost of the ad itself. Claims for error adjust- anywhere in California, research and report SEXUAL ABUSEJDEFENSE: Children's ment must be made within a reasonable time on California law; and in general, help in after the ad is published. Statements are often manipulated, fabri- any other way I can. $75 per hour + travel CAVEAT - The deadline for classified cated, or poorly investigated. Objective expenses. Contact John Palley (j (916) 455- advertisements is the first day of each month prior criteria can identify valid testimony. Com- to the month of publication. (Example: May i 6785 or john (jpalley.com. monly, allegations lack validity and place deadline for June publication). If advertisements serious doubt on children's statements as OFFICE SPACE / SHARING are received later than the first, they will be evidence. Current research supports published in the next available issue. In addition, LARGE CORNER OFFICE available. Small STATEMENT ANALYSIS, specific juror payment must be received with the advertisement. downtown estate planning firm located in selection and instructions. B. Giffen, M.Sc. classic landmark building. Excellent decor, Evidence Specialist American College POSITIONS AVAILABLE including wood floors and large windows. Forensic Examiners. (801) 485-4011. Civil Rights Attorney: Public interest law Digital phones, fax, copier, small and large firm seeks experienced litigation attorney conference rooms and receptionist available. LUMP SUMS CASH PAID For Remaining with a commitment to the rights of citizens Also, free exercise facilities with showers. Payments on Seller-Financed Real Estate with disabilities. Persons of color, women Prefer attorney or CPA. Call (801) 366-9966. Contracts, Notes & Deeds of Trust, Notes & and persons with disabilities encouraged to Mortgages, Business Notes, Insurance Set- Deluxe offce space for one attorney. Avoid the apply. Position is located in our Cedar City tlements, Lottery Winnings. CASCADE office. Submit resume and letter of applica- rush hour traffc. Share with three other attor- FUNDING, INC. 1(800) 476-9644. tion to Ronald J. Gardner, Legal Director, ney's. Facilities include large private office, Disability Law Center, 455 East 400 South large reception area, parking immediately DID YOU PREPARE A WILL FOR #410, Salt Lake City, Utah 84111. Equal adjacent to building, Utah Law on disc, fax, CHRISTOPHER D. THORPE? Please Opportunity Employer. copier, telephone system, kitchen facilities. call (801) 277-4495. 4212 Highland Drive. Call (801) 272-1013. Successful personal injury lawyer with 16' SKIP TRACING/LOCATOR: Need to year practice seeks motivated lawyer to share Historic Building on Exchange Place leasing find someone? Wil find the person or no cases on contingency. Move into office and 1600 square foot office space with five indi- charge/no minimum fee for basic search. enjoy large reception area, conference vidual offices, reception/secretarial area, 87% success rate. "Nationwide" Confiden- room and ample parking. Rent negotiable. storage room with separate outside entrance. tiaL. Other attorney needed Searches / Call and leave message: (801) 964-6100. Suite is located half block from new courts records / reports in many areas from our complex and Federal court. Great for small extensive databases. Tell us what you need. ESTABLISHED GENERAL PRACTICE firm requiring easy court access. 4 to 5 park- Verify USA Call toll free (888) 2- Verify. SLC FIRM SEEKS ASSOCIATE WITH ing stalls available. Contact Joanne Brooks PARTNERSHIP POTENTIAL. Must (j (801) 534-0909. APPRAISALS: CERTIFIED PERSONAL PROPERTY APPRAISALS/COURT REC- have 5 to 7 years legal experience. Must understand estate planning and tax and be New deluxe office space in Draper with good OGNIZED - Estate Work, Divorce, willing to particIpate in litigation. Please access for one or two attorneys to share with Antiques, Insurance, Fine Furniture, Bank- send resume to: Maud C. Thurman, Utah two established attorneys. Excellent location ruptcy, Expert Witness, National Instructor State Bar, 645 South 200 East, Confiden- to avoid commute. Facilities include large for the Certified Appraisers Guild of Amer- tIal Box #46, Salt Lake City, Utah 84111. offices with extensive windows, conference ica. Twenty years experience. Immediate room, fax, copier, telephone, reception, service available, Robert Olson C.A.G.A. kitchen, parking adjacent to front door. Call (80 i) 580-0418.

March 1998 53 Get to Know Your Bar Staff

DARLA MURPHY doors camping, fishing, golfing and skiing, schooL. She played basketball, volleyball, Darla is the that is if she is not tending her grandchil- and was the star center on her high school Admission Adminis- dren. She also loves traveling, she has soccer team. She is remembered from high trator. She has been traveled to Japan, Korea, Aruba, Antigua, school as scoring more goals her senior with the Bar since Tahiti, Virgin Islands and lived in Mexico . year than everyone else on the team com- October 1988. She for a few months with 3 of her children. bined. administers the bar Every July when a previously elected Stacey is an avid sports fan. She still examination twice a President takes office, Darla says "it's a enjoys playing, as well as watching, sports. year for approxi- whole new adventure." After hours, you will find her at basketball mately 450 applicants. Darla is responsible games, hockey games, and car races. The for coordinating the Bar Examiner Com- STACEY A. time she enjoys the most is when she goes mittee; Bar Examiner Review Committee; KARTCHNER with her father to the Nascar races. Her Character and Fitness Committee and the Stacey coordinates favorite driver is Mark Martin. Stacey's Admissions Committee. She goes to the for the Office of Pro- other interests include water and snow ski- BYU Law School and the University of fessional Conduct its ing, sky diving, and traveling. Utah Law School to educate the third year work with the Ethics Stacey just earned her bachelor's degree law students in regards to the bar exam and and Discipline Com- from the University of Utah this spring. Go coordinates the Admissions Ceremony mittee. She schedules Utes! She will be entering law school this with the courts. If you need a Certificate of hearings, notifies the falL. Her passion is in the area of criminal Good Standing or a new bar card she is the parties and witnesses, and prepares the fies law. Prior to coming to work at the Bar, person to help you. No, the 4gers, Steve for four Screening Panels a month, which Stacey worked in a criminal defense law Young has not taken the bar exam. consists of twenty-four lawyer members and office. After working in that office and Although Darla was raised in Provo, she four lay members. She also has the responsi- truly seeing and understanding what crimi- is a true Utah Ute fan. Before Darla started bility of assisting Kate Toomey, Assistant nal defense lawyers do, she realized that her career working at the bar, she was the Counsel, in all aspects of litigation and in all she wanted to be a part of that group of cool-aid Mom for her neighborhood stages of appellate advocacy. lawyers whose efforts guarantee to us all and her 4 children. Now she has become Stacey was born and raised in Salt Lake the rights, the freedoms, and the protections the weekend cool-aid grandma to her 3 City. She is very close to her parents and one of the Constitution of this great country. grandchildren. sister. She was her father's little tomboy. She She aspires to follow in the footsteps of She loves to spend her spare time out of participated in athletics all throughout Gilbert Athay, her mentor and best friend. Attorneys Needed to Assist the Elderly Needs of the Elderly Committee Senior Center Legal Clinics

Attorneys are needed to contribute two two hours of time during the next i 2 months. support participating attorneys in helping hours during the next 12 months to assist The Needs of the Elderly committee insti- the elderly. Attorneys participating in these elderly persons in a legal clinic setting. The tuted the Senior Center Legal Clinics pro- clinics have not needed specialized knowl- clinics provide elderly persons with the gram to address the elderly's acute need for edge in elder law to provide real assistance. opportunity to ask questions about their attorney help in locating available resources To make these clinics a permanent ser- legal and quasi-legal problems in the famil- for resolving their legal or quasi-legal prob- vice of the Bar, participation from individ- iar and easily accessible surroundings of a lems. Without this assistance, the elderly ual Bar members is essentiaL. Any attorneys Senior Center. Attorneys direct the person often unnecessarily endure confusion and interested in participating in this rewarding, to appropriate legal or other services. anxiety over problems which an attorney yet truly worthwhile, program are encour- The Needs of the Elderly Committee could quickly address by simply directing the aged to contact: Tom Christensen or Mary supports the participating attorneys, by elderly person to the proper governmental Ann Fowler (f 53 i -8900, Fabian and among other things, providing information agency or pro bono/low cost provider of Clendenin, 215 South State, #1200, Salt on the various legal and other services legal services. Attorneys participating in the Lake City, Utah 84111. available to the elderly. Since the attorney clinics are able to provide substantial com- serves primarily a referral function, the fort to the elderly, with only a two hour time attorney need not have a background in commitment. elder law. Participating attorneys are not The Committee has conducted a number expected to provide continuing legal repre- of these legal clinics during the last several sentation to the elderly persons with whom months. Through these clinics, the they meet and are being asked to provide only Committee has obtained the experience to

54 Vol. II No.2 DIRECTORY OF BAR COMMISSIONERS AND STAFF BAR COMMISSIONERS UTAH STATE BAR STAFF Consumer Assistance Coordinator Charlotte L. Miler Tel: 531-9077 . Fax: 531-0660 Jeannine Timothy President E-mail: info(gutahbar.org Tel: 297-7056 Tel: 463-5553 Executive Offices Receptionist James C. Jenkins John C. Baldwin Summer Shumway (a.m.) President-Elect Executive Director Kim L. Wiliams (p.m.) Tel: 752-1551 Tel: 297-7028 Tel: 531-9077 Charles R. Brown Richard M. Dibblee Other Telephone Numbers & Tel: 532-3000 Assistant Executive Director E-mail Addresses Not Listed Above Tel: 297-7029 Scott Daniels Bar Information Line: Tel: 359-5400 Mary A. Munzert 297-7055 Denise A. Dragoo Executive Secretary Tel: 297-7031 Mandatory CLE Board: Tel: 532-3333 Sydnie W. Kuhre John Florez Katherine A. Fox MCLE Administrator Public Member General Counsel 297-7035 Tel: 297-7047 Tel: 532-5514 Member Benefits: Steven M. Kaufman Access to Justice Program 297-7025 Tel: 394-5526 Tobin J. Brown E-mail: ben (gutahbar.org Randy S. Kester Access to Justice Coordinator Web Site: Tel: 489-3294 & Programs Administrator www.utahbar.org Tel: 297-7027 Debra J. Moore Offce of Professional Conduct Tel: 366-0132 Pro Bono Project Tel: 531-9110. Fax: 531-9912 Lorrie M. Lima E-mail: oad (gutahbar.org David O. Nuffer Tel: 297-7049 Tel: 674-0400 Bily L. Walker Admissions Department Ray O. Westergard Senior Counsel Public Member Darla C. Murphy Tel: 297-7039 Tel: 531-6888 Admissions Administrator Carol A. Stewart Tel: 297-7026 Francis M. Wikstrom Deputy Counsel Tel: 532-1234 Lynette C. Limb Tel: 297-7038 Admissions Assistant Charles A. Gruber D. Frank Wilkins Tel: 297-7025 Tel: 328-2200 Assistant Counsel Bar Programs & Services Tel: 297-7040 *Ex Officio Maud C. Thurman David A. Peña (non-voting commissioner) Bar Programs Coordinator Assistant Counsel Tel: 297-7022 *Michael L. Mower Tel: 297-7053 President, Young Lawyers Division Continuing Legal Kate A. Toomey Tel: 379-2505 Education Department Assistant Counsel *H. Reese Hansen Monica N. Jergensen Tel: 297-7041 CLE Administrator Dean, College of Law, Katie Bowers Tel: 297-7024 Brigham Young University Receptionist Tel: 378-4276 Amy Jacobs Tel: 297-7045 CLE Assistant *Sanda Kirkham Gina Guymon Tel: 297-7033 Legal Assistant Division Representative Secretary Tel: 263-2900 Finance Department Tel: 297-7054 * James B. Lee J. Arnold Birrell DanaM. Kapinos ABA Delegate Financial Administrator Secretary Tel: 532-1234 Tel: 297-7020 Tel: 297-7044 *Paul T. Moxley Joyce N. Seeley Stacey A. Kartchner State Bar Delegate to ABA Financial Assistant Secretary Tel: 363-7500 Tel: 297-7021 Tel: 297-7043 *Christopher D. Nolan Lawyer Referral Services Robbin D. Schroeder Minority Bar Association Diané J. Clark Administrative Support Clerk Tel: 531-4132 LRS Administrator Tel: 531-9110 Tel: 531-9075 *Carolyn B. McHugh Shelly A. Sisam Women Lawyers Representative Law & Justice Center Paralegal Tel: 532-7840 Marie Gochnour Tel: 297-7037 *Lee E. Teitelbaum Law & Justice Center Coordinator Connie C. Howard Dean, College of Law, University of Utah Tel: 297-7030 Assistant Paralegal Tel: 581-6571 Tel: 297-7058

Moich 1998 55 A++

The Coregis Lawyers' Insurance Programs Now Have a New, Stronger Owner to Serve Your Firm Even Better

You'll do anything to find the best Add these strengths to the following facts: professional liability insurance coverage for your law firm, right? ++ Coregis lawyers' programs are the choice of over 30,000 law firms nationwide. Well, your job just got a lot easier. ++ More bar associations endorse our Coregis' professional liability insurance company's professional liability insurance programs are now part of Westport Insurance program than any other insurance company. Corporation and the Employers Reinsurance Group, which has been writing specialized ++ We have insured lawyers for more than liability coverage since 1930. 25 years. Westport is part of the Specialty Division ++ We have unparalleled claim experience of Employers Reinsurance Corporation, a GE handling claims against lawyers. Capital Services company and rated A++ by AM. Best and AAA by Standard & Poor's, the Now you can choose experience, quality industry's highest financial ratings. General and financial strength that is greater than any Electric is our ultimate parent - the world's of our competitors. So, make your decision largest company on a market capitalization basis. easy - our business is helping yours. 00RÉ00/ WESTPORT A GE Capital Services Company www.coregis-westport.com

Endorsed by the Program Administrator: CON T A L INSlJRANC L.L.C. - UtaStateBa 1 :"80 1-466-0805 CERTIFICATE OF COMPLIANCE ForYears 19_ and 19 Utah State Board of Continuing Legal Education Utah Law and Justice Center 645 South 200 East Salt Lake City, Utah 84111-3834 Telephone (801) 531-9077 FAX (801) 531-0660

Name: Utah State Bar Number:

Address: Telephone Number:

CLEHours Type of Activity**

CLE Hours Type of Activity**

CLEHours Type of Activity * *

CLEHours Type of Activity**

IF YOU HAVE MORE PROGRAM ENTRIES, COpy THIS FORM AND ATTACH AN EXTRA PAGE **EXPLANATION OF TYPE OF ACTIVITY

A. AudiolVideo Tapes. No more than twelve hours of credit may be obtained through self-study with audio and video tapes. See Regulation 4(d)-ioi(a).

B. Writing and Publishing an Article. Three credit hours are allowed for each 3,000 words in a Board approved article published in a legal periodicaL. An application for accreditation of the article must be submitted at least sixty days prior to reporting the activity for credit. No more than twelve hours of credit may be obtained through writing and publishing an article or articles. See Regulation 4(d)-iol(b).

C. Lecturing. Lecturers in an accredited continuing legal education program and part-time teach- ers who are practitioners in an ABA approved law school may receive three hours of credit for each hour spent in lecturing or teaching. No more than twelve hours of credit may be obtained through lecturing and part-time teaching. No lecturing or teaching credit is available for participation in a panel discussion. See Regulation 4(d)-ioi(c).

D. CLE Program. There is no restriction on the percentage of the credit hour requirement which may be obtained through attendance at an accredited legal education program. However, a minimum of one-third of the credit hour requirement must be obtained through attendance at live continuing legal education programs.

THE ABOVE is ONLY A SUMMARY. FOR A FULL EXPLANATION SEE REGULATION 4(d)-iol OF THE RULES GOVERNING MANDATORY CONTINUING LEGAL EDUCATION FOR THE STATE OF UTAH.

Regulation 5-102 - In accordance with Rule 8, each attorney shall pay a filing fee of $5.00 at the time of fiing the statement of compliance. Any attorney who fails to complete the CLE requirement by the December 3 i deadline shall be assessed a $50.00 late fee.

I hereby certify that the information contained herein is complete and accurate. I further certify that I am familiar with the Rules and Regulations governing Mandatory Continuing Legal Education for the State of Utah including Regulations 5-103(1).

DATE: SIGNATURE:

Regulation 5-103(1) - Each attorney shall keep and maintain proof to substantiate the claims made on any statement of compliance filed with the board. The proof may contain, but is not limited to, certificates of completion or attendance from sponsors, certificates from course leaders or materials claimed to provide credit. This proof shall be retained by the attorney for a period of four years from the end of the period of which the statement of compliance is filed, and shall be submitted to the board upon written request. C1996. Volvo Cars of North America Inc. Drive Safely is a trademark of Volvo Cars 01 North America, Inc. Always remember to wear your seatbelt.

7 Utah State Bar BULK RATE REG CR: 0 ETHICS CR: 0 u.s. POSTAGE 645 South 200 East MR. ¡~ILUAN HOL'r'OAK Salt Lake City, Utah 84111 201 SOUTH MAIN STREET PAID SALT LAKE CITY, UT P. D. BOX 45898 PERMIT NO. 844 SALT LAKE CITy. UT 84145

Get just what you expect with MVP Advantage for small law firms.

Surprises are great, but not in the courtroom, in front of a client, or on your monthly research bilL. The newly

enhanced MVP Advantage from LEXISQi-NEXISQi offers you the world's premier research database, in your choice of flat-rate, all-inclusive packages that are predictably priced especially for solos and small firms. No strings.

No charge for training. No long-term commitments. And now also available on the web via LEXIS-NEXIS Xchange'M!

For less than the cost of a single book, you have unlimited access to current state or specialty caselaw, statutes,

attorney general opinions, bill and regulation tracking, state Martindale-Hubbell'" listings, and more. Plus, you can

now add SHEPARD'S'" and Auto-Cite~ all for a flat monthly fee. Online research has never been so easy!

It's time for online. It's time for MVP Advantage. 1.800.356.6548 ext. 1020 Ask about~ our Utah State Bar discount. www.lexis.com ~ADVANTAGf ~

LEXIS, NEXIS. Marlindale-Hubbell, and Auto-Cite are registered Irademarks ot Reed Elsevier ~. LEXIS". NEXIS" Properties Inc.. used under license. The INFORMATION ARRAY logo is a trademark ot Reed Elsevier & A member "frhe Reed Ehcvicr pk group Properties Inc., used under license. Shepard's is a registered trademark at Shepard's Company, a Partnership. '1 1998 LEXIS-NEXIS, adivision at Reed Elsevier Inc. All rights reserved.

d